Locher, J.
This cause presents the issue of whether a mayor, who presides over a mayor’s court in a village which is organized in the “statutory form” of government under R. C. Title 7 and which has combined executive and judicial powers may hear and decide a contested misdemeanor case without violating the defendant’s constitutional right to due process of [660]*660law. Appellant village argues that there was no due process violation in this case. We agree.
R. C. 1905.01 establishes jurisdiction for mayor’s courts and provides, in pertinent part: “In all municipal corporations not being the site of a municipal court nor a place where a judge of the * * * Miami county * * * municipal court sits * * * , the mayor of the municipal corporation has jurisdiction to hear and determine any prosecution for the violation of an ordinance of the municipal corporation * * * , subject to the limitations of sections 2937.08 and 2938.04 of the Revised Code.” Section 1 of Article IV of the Ohio Constitution authorizes the General Assembly to establish courts. “The accepted rule is: An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and the constitutional provisions are clearly incompatible. State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 128 N. E. 2d 59.” State, ex rel. Brockman, v. Proctor (1973), 35 Ohio St. 2d 79, 84. We begin our analysis, therefore, with the presumption that the “statutory form” of village government is constitutional.
Mayor’s courts which decide misdemeanor or traffic cases have received constitutional scrutiny, because the mayor may possess a combination of executive and judicial powers. “ * * * [T]he mere union of the executive power and the judicial power in * * * [the mayor] can not be said to violate due process of law.” Tumey v. Ohio (1927), 273 U. S. 510, 534, quoted with approval in Ward v. Monroeville (1972), 409 U. S. 57, 60. Therefore, the “statutory form” of village government is not unconstitutional on its face.
Rather, due process analysis requires that we examine the interaction of whatever financial interest the mayor may have in a particular case with the nature and extent of his executive powers. Neither of these considerations is necessarily controlling, however. In some cases, a substantial financial interest of the mayor has been a significant factor. See Tumey, supra (mayor’s compensation directly tied to revenue from mayor’s court); Monroeville, supra (substantial portion of village income provided by mayor’s court). In other cases, the lack of executive power in the mayor had a bearing on consti[661]*661tutionality. See Dugan v. Ohio (1928), 277 U. S. 61 (city manager as active executive); State, ex rel. Brockman, v. Proctor, supra (city manager with all executive power and administrative responsibility).
None of these cases provides the same factual situation as this case, however. We must undertake constitutional analysis anew. “ * * * [T]he test is whether the mayor’s situation is one ‘which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused . . . .’ [Turney, supra], at 532.” Monroeville, supra, at 60. In order to examine “the mayor’s situation,” therefore, we must look at the particular circumstances of this case, id., at 62 (White, J., dissenting), and examine the “statutory form” of village government as applied.
The Municipal Court took judicial notice that “[r]evenue from the Mayor’s Court does not constitute a substantial portion of the revenue for the Village of Covington.” (Emphasis added.) This fact distinguishes this case from Monroeville, supra. R. C. 1905.21 prohibits the mayor from receiving a direct benefit from any monies paid to the court and distinguishes this case from Turney, supra.
On the other hand, R. C. 1905.21 provides that the legislative authority must fix the mayor’s annual salary; and R. C. 733.40 requires that the mayor pay all monies received by the court into the municipal treasury. “The mayor * * * receives a salary which is not dependent on whether he convicts in any case or not. While it is true that his salary is paid out of a fund to which fines accumulated from his court under all laws contribute, it is a general fund, and he receives a salary in any event, whether he convicts or acquits. There is no reason to infer on any showing that failure to convict in any case or cases would deprive him of or affect his fixed compensation.” Dugan, supra, at 65. As a result, the “statutory form” of village government does not create a financial “temptation” for a mayor presiding at a village mayor’s court.
Village mayors working within the “statutory form” of government are not autonomous executives. “The executive power of villages shall be vested in a mayor, clerk, treasurer, [662]*662marshal, street commissioner, and such other officers and departments thereof as are created by law.” R. C. 733.23. The legislative authority controls compensation for public servants of the village and supervises financial matters. See R. C. 731.13, 733.32, 733.33 and 733.41, respectively. The mayor has limited powers of appointment. See, e.g., R. C. 733.31 (filling vacancies in elective office); 737.15 (village marshal “with the advice and consent of the legislative authority of the village”); 737.16 (deputy marshal, policemen, etc., subject to confirmation by the legislative authority of the village). On balance, therefore, the “statutory form” of village government “satisfies] the appearance of justice,” Offutt v. United States (1954), 348 U. S. 11, 14, and does not necessarily create a judicial “temptation” because of the mayor’s diluted executive authority.
A mayor’s judicial decisions are not without scrutiny either. R. C. 1905.22 provides for appeals from the mayor’s court to the municipal or county court with jurisdiction. R. C. 1905.25 requires that each of these appeals “shall proceed as a trial de novo.”
This opportunity for review of the legal issues and facts enhances the credibility of the mayor’s court system. The United States Supreme Court observed, in North v. Russell (1976), 427 U. S. 328, 335-336: “In Colten v. Kentucky, 407 U. S. 104 (1972), we considered Kentucky’s two-tier system there challenged on other grounds. We noted:
“ ‘The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky. Rule Crim. Proc. 12.06. Prosecution and defense begin anew .... The case is to be regarded exactly as if it had been brought there in the first instance.’ Id.,
Free access — add to your briefcase to read the full text and ask questions with AI
Locher, J.
This cause presents the issue of whether a mayor, who presides over a mayor’s court in a village which is organized in the “statutory form” of government under R. C. Title 7 and which has combined executive and judicial powers may hear and decide a contested misdemeanor case without violating the defendant’s constitutional right to due process of [660]*660law. Appellant village argues that there was no due process violation in this case. We agree.
R. C. 1905.01 establishes jurisdiction for mayor’s courts and provides, in pertinent part: “In all municipal corporations not being the site of a municipal court nor a place where a judge of the * * * Miami county * * * municipal court sits * * * , the mayor of the municipal corporation has jurisdiction to hear and determine any prosecution for the violation of an ordinance of the municipal corporation * * * , subject to the limitations of sections 2937.08 and 2938.04 of the Revised Code.” Section 1 of Article IV of the Ohio Constitution authorizes the General Assembly to establish courts. “The accepted rule is: An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and the constitutional provisions are clearly incompatible. State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 128 N. E. 2d 59.” State, ex rel. Brockman, v. Proctor (1973), 35 Ohio St. 2d 79, 84. We begin our analysis, therefore, with the presumption that the “statutory form” of village government is constitutional.
Mayor’s courts which decide misdemeanor or traffic cases have received constitutional scrutiny, because the mayor may possess a combination of executive and judicial powers. “ * * * [T]he mere union of the executive power and the judicial power in * * * [the mayor] can not be said to violate due process of law.” Tumey v. Ohio (1927), 273 U. S. 510, 534, quoted with approval in Ward v. Monroeville (1972), 409 U. S. 57, 60. Therefore, the “statutory form” of village government is not unconstitutional on its face.
Rather, due process analysis requires that we examine the interaction of whatever financial interest the mayor may have in a particular case with the nature and extent of his executive powers. Neither of these considerations is necessarily controlling, however. In some cases, a substantial financial interest of the mayor has been a significant factor. See Tumey, supra (mayor’s compensation directly tied to revenue from mayor’s court); Monroeville, supra (substantial portion of village income provided by mayor’s court). In other cases, the lack of executive power in the mayor had a bearing on consti[661]*661tutionality. See Dugan v. Ohio (1928), 277 U. S. 61 (city manager as active executive); State, ex rel. Brockman, v. Proctor, supra (city manager with all executive power and administrative responsibility).
None of these cases provides the same factual situation as this case, however. We must undertake constitutional analysis anew. “ * * * [T]he test is whether the mayor’s situation is one ‘which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused . . . .’ [Turney, supra], at 532.” Monroeville, supra, at 60. In order to examine “the mayor’s situation,” therefore, we must look at the particular circumstances of this case, id., at 62 (White, J., dissenting), and examine the “statutory form” of village government as applied.
The Municipal Court took judicial notice that “[r]evenue from the Mayor’s Court does not constitute a substantial portion of the revenue for the Village of Covington.” (Emphasis added.) This fact distinguishes this case from Monroeville, supra. R. C. 1905.21 prohibits the mayor from receiving a direct benefit from any monies paid to the court and distinguishes this case from Turney, supra.
On the other hand, R. C. 1905.21 provides that the legislative authority must fix the mayor’s annual salary; and R. C. 733.40 requires that the mayor pay all monies received by the court into the municipal treasury. “The mayor * * * receives a salary which is not dependent on whether he convicts in any case or not. While it is true that his salary is paid out of a fund to which fines accumulated from his court under all laws contribute, it is a general fund, and he receives a salary in any event, whether he convicts or acquits. There is no reason to infer on any showing that failure to convict in any case or cases would deprive him of or affect his fixed compensation.” Dugan, supra, at 65. As a result, the “statutory form” of village government does not create a financial “temptation” for a mayor presiding at a village mayor’s court.
Village mayors working within the “statutory form” of government are not autonomous executives. “The executive power of villages shall be vested in a mayor, clerk, treasurer, [662]*662marshal, street commissioner, and such other officers and departments thereof as are created by law.” R. C. 733.23. The legislative authority controls compensation for public servants of the village and supervises financial matters. See R. C. 731.13, 733.32, 733.33 and 733.41, respectively. The mayor has limited powers of appointment. See, e.g., R. C. 733.31 (filling vacancies in elective office); 737.15 (village marshal “with the advice and consent of the legislative authority of the village”); 737.16 (deputy marshal, policemen, etc., subject to confirmation by the legislative authority of the village). On balance, therefore, the “statutory form” of village government “satisfies] the appearance of justice,” Offutt v. United States (1954), 348 U. S. 11, 14, and does not necessarily create a judicial “temptation” because of the mayor’s diluted executive authority.
A mayor’s judicial decisions are not without scrutiny either. R. C. 1905.22 provides for appeals from the mayor’s court to the municipal or county court with jurisdiction. R. C. 1905.25 requires that each of these appeals “shall proceed as a trial de novo.”
This opportunity for review of the legal issues and facts enhances the credibility of the mayor’s court system. The United States Supreme Court observed, in North v. Russell (1976), 427 U. S. 328, 335-336: “In Colten v. Kentucky, 407 U. S. 104 (1972), we considered Kentucky’s two-tier system there challenged on other grounds. We noted:
“ ‘The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky. Rule Crim. Proc. 12.06. Prosecution and defense begin anew .... The case is to be regarded exactly as if it had been brought there in the first instance.’ Id., at 113. We went on to note that the justifications urged by States for continuing such tribunals are the ‘increasing burdens on state judiciaries’ and the ‘interest of both the defendant and the State, to provide speedier and less costly adjudications’ than those provided in courts ‘where the full range of constitutional guarantees is available . . . .’ Id., at 114. Moreover, state policy takes into account that it is a convenience to those charged to be tried in or near their own com[663]*663munity, rather than travel to a distant court where a law-trained judge is provided, and to have the option, as here, of a trial after regular business hours. We took note of these practical considerations in Colten:
“ ‘We are not persuaded, however, that the Kentucky arrangement for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available. Proceedings in the inferior courts are simple and speedy, and, if the results in Colten’s case are any evidence, the penalty is not characteristically severe. Such proceedings offer a defendant the opportunity to learn about the prosecution’s case and, if he chooses, he need not reveal his own. He may also plead guilty without a trial and promptly secure a de novo trial * * * .’ Id., at 118-119.” The trial de novo provision of R. C. 1905.25 serves the same purpose as that in Colten and North.
We also note that the North court, at page 337, distinguished Monroeville by observing that the fines recovered were a substantial portion of village income. That court also distinguished Tumey by pointing out that the direct relationship between the fines assessed and the mayor’s compensation might result in bias to the defendant. In light of these remarks and the North court’s approval of Colten, we view any remarks in Monroeville minimizing the importance of trial de novo after a judgment from a village mayor’s court as obiter dicta.
We hold, therefore, that the structure of the “statutory form” of village government does not violate appellee’s right to due process of law under either the Ohio Constitution or the United States Constitution. “There is nothing in the record from which it may be inferred that the mayor, as judge, has any, direct or indirect, personal or official substantial pecuniary interest in reaching a conclusion against * * * [appellee].” Brockman, supra, at 84.
Accordingly, we reverse the judgment of the Court of Appeals.
Judgment reversed.
W. Brown, Sweeney, C. Brown and Krupansky, JJ., concur.
[664]*664Celebrezze, C. J., and Holmes, J., dissent.