THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, OHIO
AN OVERVIEW
PREPARED BY JUDGE HENRY E. SHAW, JR., RETIRED
Edited 8-2-2016

A BRIEF CONSTITUTIONAL SOJOURN:

To pin down a beginning point for the instant Overview and before there was a beginning of the State of Ohio, recall the Book of Genesis, Chapter 1, Verse 2, wherein the author states: "And the earth was without form, and void, and darkness was upon the face of the deep." Prior to the year 1802, the situation within the lands which would ultimately become the State of Ohio wasn't nearly as dismal as so described by the Genesis author. However, prior to 1802, Ohio was non-existent, with the boundaries of present day Ohio being included in that huge tract of land known as the Northwest Territory, and governed, such as it could be governed, by the Congressional Ordinance of 1787.

Within the area we now know as Ohio there was a growing population living in communities scattered here and there and also living external to those communities. It is a well known tendency of we Americans that, when we get together as a group of any size and with some degree of frequency, "we have to get organized- - -we need to elect officers." And so it was here in what was to become Ohio. A group of civic minded souls got together in the form of a Convention and emerged with the 1802 Ohio Constitution, which became effective on November 29, 1802.

The 1802 Constitution bears a remarkable likeness to the Federal Constitution and is not particularly invested with an essence of originality and probably set the stage of things to come more than 150 years later. Most lawyers today will certainly attest to the striking similarity between the Ohio Rules of Evidence, the Ohio Rules of Civil Procedure and the Ohio Rules of Criminal Procedure and their Federal Counterparts. In fact, reliable sources have suggested that the old saw "if it ain't broke, don't fix it" originated in November of 1802 right here in Ohio.

In any event, Article III, Section 3 of the 1802 Constitution provided for the creation of Common Pleas Courts and established 3 Common Pleas Circuits. Each Circuit had a President Judge and provision was made that each County have not more than 3 nor less than 2 Associate Judges resident of the County. Section 9 of Article III granted each Court the authority to appoint its own Clerk.

Interestingly enough, Section 8 of Article III required that the Common Pleas Judges be appointed by a joint ballot of both houses of the General Assembly, for a term of 7 years - - - so long as they behaved well!

In reflecting from the present time back to the year 1802, one is drawn to the inescapable conclusion that we Ohioans, have an irresistible impulse to significantly dabble with our State Constitution, and on September 1, 1851, Ohio acquired a new Constitution. While the 1851 Constitution has remained in existence and is our present day Constitution, Amendments have come along periodically but with regularity. In fact, the 1912 Amendment specifically provides for the calling of a Constitutional Convention to be submitted to the electorate every 20 years, commencing in 1932.

Article IV of the 1851 Constitution made a radical change to the Common Pleas Courts of this State. First of all, Ohio was divided into 9 Judicial Districts and each of the 9 Judicial Districts into 3 Subdivisions. Delaware County was placed into Subdivision 1 of the 6th Judicial District with Subdivision 1 being composed of Delaware, Knox and Licking Counties. Judicial terms of office were reduced from 7 years to 5 years, and, perhaps most striking of all, Common Pleas Judges were to be elected by the people in their respective Subdivisions rather than being appointed by the Legislature. An examination of six of the Judicial portraits hanging in Courtroom No. 1 demonstrates that a majority of the Judges that served in Subdivision 1 of the 6th Judicial District, and through 1913, were from Delaware County. One can only speculate on whether these men were better Jurists or better politicians than their campaign opponents from Knox County and Licking County!

Moving ahead 61 years to the Constitutional Convention of 1912 and as applicable to Common Pleas Courts, the 1851 Constitution was amended yet again, and the Judicial Districts and Subdivisions were abolished. Effective September 3, 1912, provision was made that each County in the State could elect its own Common Pleas Judge or, depending upon population, Judges. Additionally, Judicial Terms were increased to 6 years. Of note locally, Frank Marriott, a practicing attorney here in Delaware, was a Delegate to the 1912 Constitutional Convention.

Finally, and down the road another 56 years, we have the 1968 Amendment to the 1851 Constitution, generally known as the Modern Courts Amendment. Really, the only significance to this Amendment from the prospective of Common Pleas Courts was to classify Probate/Juvenile Judges as Common Pleas Judges and to create divisions of the Court, that is, the General Division (the trial division), the Domestic Relations Division and the Probate/Juvenile Division. Today's General Division of the Court of Common Pleas of Delaware County, Ohio, has existed essentially in its present form since the 1851 Ohio Constitution was amended in 1912, with, of course, the addition of a 2nd Common Pleas Judge in January of 1995.

So then, from an historical perspective, an Ohio Court of Common Pleas is a Constitutional Court rather than a Statutory Court, having its genesis in Article III, Section 3 of the 1802 Ohio Constitution and Article IV, Section 3 of the 1851 Ohio Constitution.

DELAWARE COUNTY FOCUS:

Those persons acquainted with Delaware County History should be quite familiar with the name Moses Byxbe. Mr. Byxbe, in addition to his numerous other enterprises, was one of the 3 Judges who were first appointed in Delaware County. Nepotism perhaps not being much of an issue in 1808 when Delaware County was established, Moses Byxbe, Jr. was appointed Clerk of the Common Pleas Court.

Judge Byxbe and his 2 colleagues first held Court here in the "town" of Delaware on June 3, 1808 in a local establishment known as the old Barber Tavern. It is generally accepted that litigation matters can be vexatious enough even when everyone is righteously treading upon the teetotaler's track, so just imagine attempting to conduct trials and hearings in a saloon. No doubt the Delaware County Commissioners, in due course, took note of the wicked influence of whiskey on what should otherwise be solemn Courtroom proceedings and caused what may be described as the First Delaware County Courthouse to be erected on the present Courthouse grounds. The Courthouse premises were acquired by the County Commissioners from Henry Baldwin and Moses Byxbe and their respective spouses, by General Warranty Deed dated January 7, 1815.

To add a bit of local color, a rather amusing legend surfaces from time to time relating to the Courthouse lot. There exists, in the minds of some, a misunderstanding of the reverter clause contained in the Deed to the Courthouse lot prompting some souls to observe that: "There can't ever be the death sentence handed down in Delaware County or the Courthouse property will go back to the heirs. It's right in the Deed!"

The Deed to the Courthouse lot contains the following language: "Provided, nevertheless that the said premises shall in no wise be at anytime subject to be transferred or sold by virtue of any decree, judgment or execution which may at any time hereafter be rendered, awarded or issued against said County or County Commissioners or against any other persons representing said County." (Emphasis added)

All the foregoing means, if it is enforceable at all, is that the Courthouse premises cannot be levied upon by the Sheriff and sold at Sheriff's Sale in order to satisfy a money judgment rendered against the County. So much for local legends!

The First Courthouse, completed in 1816 at a cost of $8,000.00, was a two story brick structure, 38 feet by 40 feet, with an 18 foot high octagonal cupola, 12 feet in diameter, containing a bell, the bell purportedly coming from the original wooden St. Peter's Episcopal Church. The front of the Courthouse faced South towards Central Avenue and apparently was situated about in the middle of the area where the present Courthouse stands. Court proceedings were held on the ground floor and this area of the building was also used for public events, church services and entertainment, while the several rooms on the second floor were used for other purposes.

The County Commissioners Journal of January 3, 1815 contains a remarkably detailed description of what was expected to be constructed, right down to the color of the shutters or blinds as they were called, the baseboards and the composition and color of the roof shingles. Unfortunately, the schematic drawings---what would now be called blueprints---have disappeared and the only known photograph of this First Courthouse is probably quietly reposing with other artifacts in a box situated under the cornerstone of the present Courthouse. Happily, however, a fine rendition of the first Courthouse was commissioned by the herein author in November of 1997 in connection the his presentation of the Annual Vogel Lecture at Ohio Wesleyan University. The author later donated it to and it may be viewed at the Delaware County Historical Society quarters situated at 157 East William Street, Delaware, Ohio. The work was prepared by Mr. Rod Arter, a Design Illustrator and owner of the Arter Company, maintaining offices at 333 West Central Avenue here in Delaware.

The building was subjected to substantial cosmetic and structural refurbishing, commencing in April of 1831 but serious and ultimately fatal problems had commenced developing. In March of 1852, the Commissioners engaged the services of a "good and ingenious mechanic" to thoroughly examine the Courthouse and to make a report of the condition of the building.

John Moses, "an experienced workman in wood" made the following report to the County Commissioners: "It would be well to go to the woods and get 4 large trees or timbers and place the same at 4 sides of said Courthouse so as to have them in a horizontal (probably vertical) position from the ground towards the top of said Courthouse---but if the Commissioners did not think best to use that precaution to preserve said Courthouse from an untimely end, then it certainly would be best to stop the ringing of the bell."

Being ever the practical souls that County Commissioners tend to be, the Board ordered the following: "That the Auditor immediately notify the Bellringer to desist now, henceforth and forever from ringing said bell." and, according the Commissioners Journal, "which order was obeyed by said Auditor and the Bell is heard to ring no more."

The condition of this first Courthouse went from bad to worse to impossible, and, on April 2, 1858, "after frequent solicitations" the County Commissioners consented to the demolition of the building---and, practicality ever reigning, provided in the demolition contract that some of the bricks from old Courthouse be used to build yet another row office adjoining the Auditors office, located on the Courthouse property and fronting on Sandusky Street. And so, in mid-1858 Delaware County was without a Courthouse.

Despite the repeated efforts of the County Commissioners to secure the passage of a tax for purposes of erecting a new Courthouse, the voters of this County likewise repeatedly rejected the same and Court proceedings had to be held in a variety of leased quarters. At this same period of time, the brick row offices fronting on Sandusky Street and housing the Auditor, Treasurer, Recorder and Clerk were falling into a dreadful state of disrepair, prompting the following observation in the August 24, 1866 edition of the Delaware Weekly Gazette: "We have a beautiful lot with a substantial and commodious jail adjacent, (referring to the 4th Jail) while the miserable and notoriously unsafe little coops in which the county offices are held are a standing reproach to the county, and were very properly presented to a recent Grand Jury as a nuisance."

The foregoing observation was a part of a longer article encouraging the local electorate to go to the polls in the upcoming election and vote in favor of a tax to raise funds to erect a new Courthouse. Sure enough, on Election Day, October 9, 1866, the voters did it again and rejected the tax.

Undaunted, during the last week of February, 1867, a Petition signed by several hundred public spirited and responsible taxpayers of this County was presented to the State Legislature for purposes of imposing a $76,000.00 levy upon the people of Delaware County to be used for the construction of a new Courthouse. A one week delay in legislative action was granted to a Mr. Hough of Delaware so that Mr. Hough's people could present their "remonstrances" to the legislature. No remonstrances being forthcoming, the levy passed the House by a 73 to 4 margin and in the Senate by a 21 to 2 margin.

The Commissioners engaged the services of Mr. Robert N. Jones as architect and building superintendent. Mr. Jones was a native of Radnor and was a well known architect throughout Ohio, having built, among other things, Monnette Hall which formerly stood on the grounds of the Ohio Wesleyan Campus. Plans and specifications were prepared, long since lost, and a cornerstone laying ceremony was planned for May of 1868, to be conducted by the local Masonic Lodge. However, a change in the program was made a week prior thereto, and the ceremony was conducted by Common Pleas Judge Thomas C. Jones. According to a Delaware Gazette news account of the event, the ceremony was conducted in a quiet and unostentatious way, in the presence of a large concourse of people, with Judge Jones presenting a few happy remarks appropriate to the occasion.

By July 10, 1868, the foundation of the Courthouse had been completed and the brick walls were commenced. Work progressed slowly but steadily and the building was ready for occupancy by the end of December in 1869. Relatively few minor changes have been made to the exterior of the Courthouse since its completion, so that which is observed at the present time is, essentially what would have seen on January 1, 1870. To a large extent, the same is equally true within the Courthouse. However, several dramatic changes to the interior of the Courthouse have occurred with the 1949-1950 installation of an elevator necessitating the removal of one of the twin staircases which led from the basement to the 3rd floor, and, with the several remodeling projects on the 2nd and 3rd Floors, the most recent of which was completed in the Fall of 1997.

JURISDICTION OF THE COURT:

Like unto its creation, the jurisdiction of Common Pleas Courts is constitutionally addressed, specifically in Article IV, Section 4 (B) as follows:

"The courts of common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters and such powers of review of proceedings of administrative officers and agencies as may be provided by law." From the foregoing, if one refers to the Ohio Revised Code and its 31 separate Titles one finds, much like Orwell's "Big Brother," that the jurisdiction of the Court is virtually everywhere.

The jurisdiction of the General Division of the Court may be separated into the following three separate general categories: (1) Civil; (2) Criminal; and, (3) Domestic Relations.