¹ Journal of the Senate of the State of Ohio: First Session of the Legislature, held under the Constitution of the State, A.D. 1803, and of the United States the Twenty-seventh (Chillicothe, 1803), I, pp. 1–110Google Scholar.

² 1 Cranch 137 (1803).

₃ The opinion of Marshall did not lay down a doctrine that was new. The principle that an act of legislation contrary to the law under which a legislative body is organized is invalid was familiar in this country long before the Constitution was adopted. Before the Eevolution, colonial legislation was frequently subjected to review by the Privy Council, and both before and after the adoption of the federal Constitution, state courts in a number of states had held state statutes in conflict with state constitutions to be invalid. Schlesinger, Arthur M., “Colonial Appeals to the Privy Council,” Political Science Quarterly, XVIII, 279, 433Google Scholar. Cf. Charles G. Haines, The American Doctrine of Judicial Supremacy; Charles Warren, The Supreme Court in United States History.

⁴ By 1818, the power of the courts to pass upon the constitutionality of legislation was recognized in every state but Rhode Island, and the courts were largely following the lead of Marshall in proclaiming the independence of the judicial department.

⁵ The doctrine of judicial review, as stated by Justice Woodbury of New Hampshire in 1818, came to be the rule adopted in every state. See Merrill v. Sherburne, 1 N. H. 204.

⁶ Western Law Monthly, Vol. V, p. 4passim (June, 1863)Google Scholar.

⁷ The reported cases of the supreme court of Ohio do not antedate 1823, the year when the sessions en banc were inaugurated. However, the opinion in. the case of Rutherford v. McFaddon was printed in the Scioto Gazette and reprinted in the Liberty Hall and Cincinnati Mercury, Nov. 3 and 10, 1807. See also House Journal of the Seventh General Assembly, 123.

⁸ Judge Sprigg did not sit in the case, and the opinion was given by Judges Huntington and Tod. The opinion of Chief Justice Huntington sets forth most completely the position of the court, with Judge Tod supporting the position. It is of interest to note that Calvin Pease, George Tod, and Samuel Huntington were all natives of Connecticut. They practiced law in Connecticut for a time and were admitted to the Ohio bar at the same time. Judge Tod had been a student at Judge Reeves' famous law school at Litchfield, Connecticut.

⁹ Liberty Hall, January 11, 1808. House Journal of the Sixth General Assembly, 43.

¹⁰ House Journal of the Seventh General Assembly.

¹¹ In using the impeachment power as a weapon against the judiciary, the Ohio anti-court group followed the tactics of Jeffersonians in the national government. Since most state courts were under legislative control, the impeachment process was not employed. In Pennsylvania, however, the Jeffersonians used it.

¹² The term of Judge Pease, who was appointed in 1803, would have terminated iu 1810 in any event; but Judge Tod had been appointed in 1806. Under the previous interpretation, the latter would have continued in office until 1813. Never-theless, he was removed.

¹³ As a result of the resolution, the three supreme court judges, three president judges of the common pleas courts, all the associate judges of that court (more than a hundred in number), and all of the justices of the peace, were removed at one fell swoop. King, Rufus, Ohio, First Fruit of the Ordinance of 1787 (1888), p. 314Google Scholar.

¹⁴ Western Law Monthly, Vol. II, p. 1Google Scholar.

¹⁵ For a complete and interesting account of the struggle in Ohio over judicial review, see Utter, William T., “Judicial Beview in Early Ohio,” Mississippi Valley Historical Review, Vol. XIV, pp. 3–26Google Scholar.

¹⁶ William T. Utter, “Saint Tammany in Ohio; a Study in Frontier Politics,” ibid., Vol. XV, pp. 321–340.

¹⁷ For a list of laws invalidated by the early courts, see Haines, Charles G., The American Doctrine of Judicial Supremacy, p. 288Google Scholar.

¹⁸ 17 Ohio Rep. 445 (1848).

¹⁹ 41 Ohio Laws. Nineteen divorces were granted at this session by the General Assembly.

²⁰ In arriving at this decision, Judge Reed did more than question the legislature's power to grant divorces. He boldly maintained not only that the legislature had assumed power not delegated to it, but that it had usurped powers expressly conferred by the constitution upon the courts. This view becomes one of more interest when compared with the statement made twenty years earlier by Judge Hitchcock in the case of Heirs of Ludlow v. Johnson, 3 Ohio 563 (1828). In that case, Judge Hitchcock held that the constitution actually conferred no specific jurisdiction upon the courts, but merely made them capable of receiving such jurisdiction at the hands of the legislature. This is an altogether different view from the one held by Judge Reed. A close examination of the books reveals that changes in the practices of the court between 1828 and 1848 agree quite closely with the change in the tone of the above assertions. This trend in Ohio is in keeping with a general movement taking place in our state governments during that period, in which a gradual readjustment between the legislative and judicial branches was being effected. See Holcombe, Arthur N., State Government (1926), pp. 109–143Google Scholar.

²¹ The constitution of 1802 made no mention of where the power to grant divorces rested, and in practice the legislature had granted divorces from the beginning.

²² See Hixson, Joseph H., The Judicial Veto in Ohio (master's thesis, Ohio State University, 1922), p. 23.Google Scholar

²³ Mr. Jackson H. Ralston, who has compiled a list of state laws held unconstitutional by state courts from 1858 to 1916, lists Ohio as having 132 laws declared unconstitutional up to 1916. Mr. Ralston makes no pretense to absolute accuracy. See Study and Report for the American Federation of Labor upon Judicial Control over Legislatures as to Constitutional Questions (1923), p. 91Google Scholar.

²⁴ Between 1790 and 1850, the United States Supreme Court held 32 measures unconstitutional; between 1850 and 1911, some 247.

²⁵ Whereas laws had formerly been invalidated by the courts to protect their own constitutional rights, they were now invalidated because of defective legislative procedure, or because of conflict with the “due process of law” clause of the federal constitution, or its equivalent in the state constitution. The growing complexity of state constitutions and the increasing number of limitations also encouraged judicial supervision over statutory enactments. Moreover, there arose a tendency in many quarters to construe constitutional limitations as limiting the legislative powers very strictly. See Ohio Constitution, Sec. I, Art. 20.

²⁶ It was the same elsewhere. In the brief span between 1903 and 1908, 400 state laws were held invalid by the courts, state and federal. Haines, Charles G., The American Doctrine of Judicial Supremacy, p. 307Google Scholar. All but 28 of these vetoes were by state courts.

²⁷ Unfavorable judicial decisions were responsible for the amendments dealing with mechanics' liens and hours of labor on public work. Laws concerning these matters had been annulled as contravening the broad guarantees of the Ohio constitution which compare to the “due process” clause in other constitutions. The other two amendments were added to prevent possible judicial annulment in the future. Two of the amendments expressly provided that no other provision of the constitution should restrain or limit the powers so granted. See Palmer v. Tingle, 55 Ohio St. 423 (1896); Cleveland v. Clement Bros. Cons. Co., 67 Ohio St. 197 (1902); Steele, Hopkins, and Meredith v. Miller, 92 Ohio St. 115 (1915) [bulk sales law], cited in Dodd, Walter F., State Government, pp. 125Google Scholar.

²⁸ Proceedings and Debates, Ohio Constitutional Convention, 1912, Vol. I, p. 385Google Scholar.

²⁹ In Colorado, Roosevelt's proposal was adopted during the same year in the form of a constitutional amendment authorizing the people, by the same procedure as that provided for the direct initiative, to order the enforcement of a statute which had been duly enacted by the legislature and approved by the governor, but held invalid by the Supreme Court. The provision was held unconstitutional by the state supreme court. People v. Western Union Telegraph Co., 70 Colo. 90 (1921); People v. Max, 70 Colo. 100 (1921).

³⁰ In 1914, a similar plan was submitted to the people of Minnesota. It was approved by a majority of those voting on it, but failed of adoption because of the failure of a majority of all those attending the polls to vote for it, as required by the state constitution. In 1918, a constitutional amendment was adopted in North Dakota providing that “i n no case shall any legislative enactment or law of the state of North Dakota be declared unconstitutional unless at least four of the judges shall so decide.” Since North Dakota has only five judges, this is much the same as the Ohio provision. In 1920, Nebraska adopted a constitutional amendment requiring the concurrence of five of its seven judges. See Cushman, R. E., “Constitutional Decisions by a Bare Majority of the Court,” Michigan Law Review, XIX, 771–803 (1921)CrossRefGoogle Scholar.

³¹ One of the delegates made an examination of cases in the Ohio State Reports from 63 Ohio State to 84 Ohio State, with the purpose of finding the number of cases where individual interest came in conflict with a corporation interest, and where the individual received a favorable decision in the circuit court, only to have this decision reversed in favor of the corporation in the supreme court. He found thirty-three such cases. Proceedings and Debates, Ohio Constitutional Convention, 1912, Vol. II, pp. 1092–1101Google Scholar.

³² This discussion is based on a study made by Mr. W. Rolland Maddox, of the University of Michigan. See Maddox, W. Holland, “Minority Control of Court Decisions in Ohio,” in this Review, Vol. XXIV, pp. 638–648 (Aug., 1930)Google Scholar

³³ Barker et al. County Commissioners v. City of Akron, 98 Ohio St. 446, and 121 N.E. 46 (April 2, 1918); DeWitt v. State ex rel Crabbe, Attorney General, 108 Ohio St. 513, and 141 N.E. L51 (Nov. 13, 1923); City of East Cleveland v. Board of Education, 112 Ohio St. 607, and 148 N.E. 350 (May 26, 1925); Full-wood v. City of Canton, 116 Ohio St. 732, and 158 N.E. 171 (March 29, 1927); Myers v. Copelan, Chief of Police et al., 117 Ohio St. 622, and 160 N.E. 855 (Oct. 26, 1927); State ex rel. Jones v. Zangerle, Auditor, 117 Ohio St. 507, and 159 N.E. 564 (Dec. 21, 1927); State ex rel. Williams v. Industrial Commission of Ohio, 116 Ohio St. 45, and 156 N.E. 101 (March 8, 1927); State ex rel. Bryant v. Akron Metropolitan Park District for Summit County et al. 166 N.E. 407 (Mar. 27, 1929); Shook et al. v. Mahoning Valley Sanitary District et al., 166 N.E. 415 (March 27, 1929).

³⁴ Morton v. State of Ohio, 105 Ohio St. 366, and 138 N.E. 45 (1922); Royal Green Coach Co. v. Public Utilities Commission, 110 Ohio St. 41, and 143 N.E. 547 (1924).

³⁵ State ex rel. Jones v. Zangerle, Auditor, 117 Ohio St. 507, and 159 N.E. 564 (1927). For further criticisms, see Ill. Constitutional Convention Bulletin (1920), pp. 857–858Google Scholar.

³⁶ Bryant v. Akron Metropolitan Park District, 281 U.S. 74.