text:
    The High School Board in Department of Education of State of Ohio et al., Appellants, v. The Board of Education of Roundhead Local School District et al., Appellees.
    (No. 418
    Decided January 14, 1953.)

      Mr. C. William O’Neill, attorney general, and Mr. George C. McConnaughey, Jr., for appellants.

      Mr. C. A. Fanllmer and Mr. Thomas Dowd, for appellees.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hardin County rendered by it on an appeal from the order of the Superintendent of Public Instruction of the State of Ohio and the State High School Board refusing to renew the first grade temporary charter of the high school in Roundhead Local School District, which order had the legal effect of revoking the charter of that high school.

The order from which the appeal to the Common Pleas Court was taken is in the words and figures following, to wit:

“April 29, 1952

“Mr. Robert Shipp, President

“Roundhead Local Board of Education

“Belle Center, Ohio

‘ ‘ Dear Mr. Shipp:

“Your board of education was given a hearing before the High School Board on April 14. The High School Board again reviewed the notes of that hearing and the supervisor’s report relative to your school. In light of the deficiencies shown by the supervisor’s report the High School Board passed a resolution on April 28, 1952 to the effect that it would not recommend the renewal of the first grade temporary charter of the Roundhead High School when it expires on July 1, 1952.

“According to Section 154-46e, I am legally obligated to follow the recommendations of the High School Board relative to the chartering of high schools. Since this is the case, it will be necessary for. you to make some arrangements to assign the pupils in grades 9-12 to some approved high school for next year.

“Any communication relative to the action of the High School Board should be addressed to R. M. Eyman, Chairman, or R. M. Garrison, Secretary of the High School Board.

“Very truly yours,

“/a/ Clyde Hissong

“Clyde Hissong

“CH:L “Director

“cc to Co. Supt. F. C. Ransdell

“Ex. Head Howard Browns, Roundhead

“Byron Osborn, Vice-Pres., Roundhead

“Burke Neville, Clerk, Roundhead

“Wilson Dodds, Member, Belle Center

“Howard T. Cox, Member, Belle Center “H. G. Harvey, Member, Belle Center.”

The appeal to the Common Pleas Court was taken by the Board of Education of Roundhead Local School District, The Roundhead organization of parents and teachers, Frank Shaffer and Ted Mulholland, who are the appellees on the appeal from Common Pleas Court to this court, the appellants in this court being The High School Board in the Department of Education of the State of Ohio, and Clyde Hissong, Director of Education of the State of Ohio, who, in the record before us for review, is referred to also as the Superintendent of Public Instruction of the State of Ohio.

The Board of Education of the Roundhead Local School District gave notice to the High School Board in the Department of Education in the State of Ohio, and Clyde Hissong, Director of Education of the State of Ohio to prepare and certify to the Court of Common Pleas of Hardin County a complete record of the proceedings pertaining to the above-quoted order.

In response to the notice a letter under the date and in the words and figures following was addressed to and received by the clerk of the Common Pleas Court of Hardin County, and together with the exhibits therein referred to, which are not herein incorporated in the copy of said letter, filed in the cause:

“May 28,1952

“Clerk of Courts Board of Education Round-

‘ ‘ Court of Common Pleas head Local School District;

“Hardin County et al., appellants

‘ ‘ Kenton, Ohio. vs

The H. S. Board in the Department of Education of the State of Ohio, et al., appellees

“Dear Sir: No. 26378

“In response to a request of the Court of Common Pleas to the High School Board in the State Department of education, State of Ohio, and Clyde Hissong, Director of Education of the State of Ohio, to prepare and certify to the Court of Common Pleas a record of the proceedings with reference to the revocation of the high school charter of Roundhead Local High School, we are attaching herewith certain exhibits. They are not a record of proceedings such as are referred to in Section 154-73 G. C. for the reason that the State Department of Education has not followed the provisions of the Administrative Procedure Act.

“Exhibit A. Copies of that portion of the minutes of the High School Board with reference to Round-head Local School District, Hardin County, Ohio.

‘ ‘ Exhibit B. Policies established by the High School Board to guide the board in making its recommendations to the State Superintendent of Public Instruction.

Exhibit C. Report of the supervisor to the High School Board on the violation of the High School Standards’ by the Roundhead Local School District.

Exhibit D. Copy of a letter under date of June 22, 1951, to Mr. Crosby Manchester, Jr., President of the Roundhead Local Board of Education, concerning the granting of a temporary first grade charter to the Roundhead High School, valid to July 1, 1952.

“Exhibit E. Copy of a letter under date of February 27, 1952, to Mr. Robert Shipp, President of -the Roundhead Local Board of Education, concerning the refusal to renew the Roundhead High School charter after it expires on June 30, 1952.

“Exhibit F. Copy of letter under date of March 27, 1952, from Mr. R. M. Garrison to Mr. Frank C. Ransdell, Superintendent of Hardin County Schools, concerning the time for the hearing granted the Roundhead Board of Education by the High School Board.

“Exhibit G. A copy of a letter under date of April 29, 1952, to Mr. Robert Shipp, President of the Round-head Local Board of Education concerning a resolution of the High School Board of April 28, 1952, to the effect that it would not recommend the renewal of the first grade temporary charter of the Roundhead High School when it expires on July 1, 1952.

“It has been the intention of the State Superintendent of Public Instruction and the High School Board to proceed at all times in accordance with Section 154-46e of the Ohio School Code*, High school standards have been established in accordance with this section of law, with the last revision of such standards being made in 1947, and each school in the state was furnished a copy of these standards.

“In meeting the obligations outlined under Section 154-46e, the State Department of Education has had for years a number of high school supervisors who visit regularly the schools throughout the state, and it is their findings which are submitted to the High School Board. The High School Board then, in accordance with authority granted under Section 154-46e, makes recommendations to the State Superintendent of Public Instruction concerning the chartering of high schools. The State Superintendent of Public Instruction, in accordance with the mandates of the law, in turn follows the recommendations of the High School Board in the issuance and the revocation of high school charters.

“The material attached to this communication is intended to give a fair picture of the policies, standards and procedures observed by the High School Board in making its recommendation concerning the Roundhead High School.

“Very truly yours,

“Clyde Hissong

“CH:L Clyde Hissong

“cc: C. Wm. O’Neill, Attorney General

“ (*) See Opinions of the Attorney General — 1950

“Page 601 — Opinion No. 2263.”

There appears in the files of the cause which were transmitted to this court by the Common Pleas Court a certificate signed by Ted W. Brown, as Secretary of State, to the effect that “in the rules and regulations filed by the Department of Education of the State of Ohio that I do not find a copy of the ‘ Ohio High School Standards’ for the year 1947 in our files.” This certificate bears a notation that it was filed in the Common Pleas Court on July 28, 1952, being the same date the Common Pleas Court filed the minutes of its decision. The certificate mentioned above is not identified, mentioned or referred to as an exhibit or otherwise in any of the other paper writings in the files of this cause and is not mentioned or referred to in the judgment of the Common Pleas Court, and, under the circumstances, it cannot be considered part of the record for review.

The appeal to the Common Pleas Court was submitted to that court on the notice of appeal, and the letter and exhibits attached thereto hereinbefore mentioned, which are referred to in the judgment of the Common Pleas Court as “the informal transcript of the evidence.”

It does not appear that any of the parties objected to the submission of the cause in the Common Pleas Court on the letter and the exhibits thereto, and as the parties who are appellants in this court assumed the responsibility of furnishing the record in the manner it was furnished, they are precluded from making any objection as to the form or incompleteness of the record. The exhibits mentioned in the letter do reflect the actions of the High School Board and the Superintendent of Public Instruction in making the order from which the appeal was taken to the Common Pleas Court, and the letter and exhibits, although irregular in form, do constitute a sufficient record for review as they show affirmatively that the only matters involved in this proceeding are matters of law.

Upon trial of this cause the Common Pleas Court rendered a judgment in the words and figures following, to wit:

“This cause came on to be heard on the appeal of the appellants herein from the order of the Superintendent of Public Instruction of the State of Ohio and the State High School Board revoking the charter of the high school in Roundhead Local School District, as of July 1, 1952, pursuant to Section 154-46e, General Code. This appeal was submitted to the court on the pleadings, the informal transcript of the evidence, and the arguments of counsel.

“On consideration whereof the court finds said order is not supported by reliable, probative and substantial evidence, and is not in accordance with law, in that appellees, heretofore herein found amenable to the State Administrative Procedure Act, followed not the required procedural steps thereof in making this said order; and further that said order is not in accordance with law for the substantive reason that Section 154-46e of the General Code of Ohio, as amended effective October 25, 1949, from which appellees drew pretended authority for the making thereof, is unconstitutional, in that by the provision thereof the Legislature delegated law-making functions to an executive official instead of itself enacting uniform statutory standards for application by such administrative official to facts found and determined by him, upon hearing had, as provided for by the State Administrative Procedure Act.

“It is therefore considered by the court, pursuant to Section 154-73, General Code, that the said order revoking the high school charter of the high school in Roundhead Local School District, be and the same hereby is, vacated, reversed and set aside; and that the appellants may recover from the appellees their costs herein expended. To all of which the State Superintendent of Public Instruction and the State High School Board except. Copy of this entry ordered certified to Superintendent of Public Instruction as provided by law.”

This is the judgment from which this appeal is taken to this court.

The appellants, the High School Board of the Department of Education of the State of Ohio, and Clyde Hissong, Director of Education of the State of Ohio, assign error in the following particulars, to wit:

“I. The Common-Pleas Court of Hardin County erred in accepting, hearing and determining the appeal taken by the Board of Education of Roundhead Local School District, The Roundhead Organization of Parents and Teachers, Frank Shaffer and Ted Mulholland under the provisions of the Administrative Procedure Act for the reason that said court was without jurisdiction to accept, hear, and determine the same.

“II. The Common Pleas Court of Hardin County erred when it accepted for determination the question of the constitutionality of Section 154-46e, General Code, and also when it decided that Section 154-46e, General Code was unconstitutional.”

These assignments will be considered in the order mentioned.

Whether the order from which the appeal was taken to the Common Pleas Court comes within the purview of Sections 154-61 to 154-74, General Code, known as the Administrative Procedure Act, must be determined from a consideration of that act.

The following provisions are pertinent to a consideration of this question:

Section 154-62. ‘‘The following words when used in this act shall have the meanings respectively ascribed to them in this section:

“ ‘Agency’ means and includes, except as hereinafter limited, any official, board or commission having authority to promulgate rules or make adjudications in the bureau of unemployment compensation, the State civil service commission, the department of industrial relations, the department of liquor control, the department of taxation, the industrial commission, the functions of any administrative or executive officer, departm'ent, division, bureau, board or commission of the government of the State of Ohio specifically made subject to the provisions of the administrative procedure act, and the licensing functions of any administrative or executive officer, department, division, bureau, board or commission of the government of the state of Ohio having the authority or responsibility of issuing, suspending, revoking or cancelling licenses. This act shall not apply to the Public Utilities Commission, nor shall it apply to actions of the superintendent of banks, the superintendent of building and loan associations and the superintendent of,insurance in the taking possession of, and rehabilitation or liquidation of, the business and property of banks, and building and loan associations, insurance companies, associations, reciprocal fraternal benefit societies and bond investment companies, nor to any action that may be taken by the superintendent of banks under the provisions of sections 710-19, 710-88a and 710-107a of the General Code. This act shall not apply to actions of the industrial commission under the provisions of sections 1465-37 to 1465-112, both inclusive, of the General Code, anything in this act to the contrary notwithstanding. This act shall not apply to actions of the bureau of unemployment compensation except those relating to the adoption, amendment or rescission of rules, and those relating to the insurance [issuance], suspension, revocation or cancellation of licenses.

“ ‘License’ means and includes any license, permit, certificate, commission or charter issued by any agency.

i C # * *

“ ‘Adjudication’ means and includes the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits or legal relationships of a specified person or persons, but does not include the issuance of a license in response to an application with respect to which no question is raised nor other acts of a ministerial nature.

“ ‘Hearing’ means a public hearing by any agency in compliance with procedural safeguards afforded by the provisions of this act.

“ ‘Person’ means and includes person, firm, corporation, association or partnership.

“ ‘Party’ means and includes the person or persons whose interests are the subject of an adjudication by an agency.

“ ‘Appeal’ means and includes the procedure by which a person aggrieved by a finding, decision, order or adjudication of any agency, invokes the jurisdiction of a court. ’ ’

From an examination of the foregoing provisions it is clear that the superintendent of public instruction and the high school board of the Department of Education, in granting a temporary first grade charter to the Roundhead High School and subsequently refusing to renew such temporary charter, constituted a licensing agency and were exercising a licensing function on behalf of the state of Ohio, and as such, were agencies, whose actions in the exercise of such licensing functions constituted adjudications which were appealable to the Common Pleas Court of Hardin County under the provisions of the Administrative Procedure Act, and particularly under Section 154-73, General Code, the pertinent part of which reads as follows:

“Any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination or denying the issuance or renewal of a license, registration of a licensee, or revoking or suspending a license, may appeal to the Common Pleas Court of the county in which the place of business of the licensee is located or the county in which the licensee is a resident from the order of said agency, provided, however, that appeals from decisions of the Board of Liquor Control shall be to the Court of Common Pleas of Franklin County only. If any such party is not a resident of and has no place of business in Ohio he may appeal to the Common Pleas Court of Franklin County. ’ ’

Under the provisions of Section 4834, General Code, the Roundhead Board of Education is a body corporate and its place of business and residence is Hardin county, and within the purview of Section 154-73, General Code, it is a licensee with the right to appeal from the order of adjudication hereinbefore mentioned.

For the reasons above-mentioned the first assignment of error is without merit.

2. Under the second assignment of error, the appellant contends that the court erred, first, in not deciding the cause on matters other than the constitutionality of the provisions of the statute pursuant to which the superintendent of public instruction and the high school board were acting and, second, in deciding that the statute was unconstitutional.

These statutory provisions conferring whatever authority the superintendent of public instruction and the high school board had to act in the premises are as follows:

Section 154-46e. “The superintendent of public instruction shall prescribe suitable forms and regulations for the reports and other proceedings required by the school laws, with such instructions for the organization and government of schools, including the classification and chartering of high schools, as he deems necessary, and transmit them to the local school officers, who shall be governed thereby in the performance of their duties. In classifying and chartering high schools, the superintendent of public instruction shall be guided by the recommendations of an advisory board of five members, hereby created in the department of education, to be known as the high school board. The membership of such board shall include the assistant director of education and four members of the staff of the state department of education appointed to such board by the superintendent of public instruction and to serve during his pleasure. ' The superintendent of public instruction shall, upon recommendation of the high school board, revoke the charter of any high school which fails to meet the standards of high schools as prescribed by the state department of education. In case a high school charter is revoked, the board of education maintaining such high school shall assign the pupils to an approved high schqol.”

An inspection of the above provisions discloses that they purport to give to the superintendent of public instruction authority to classify and charter high schools. This authority so conferred, is unlimited except that he is required to be guided by the recommendations of an advisory board known as the high school board, the members of which board are all appointed by the superintendent of public instruction, and upon recommendation of such board he is required to revoke the charter of any high school which fails to meet the standards of high schools as prescribed by the state department of education.

There are no statutory provisions determining the method or means of classifying or chartering high schools and there are no statutory provisions fixing the standards of such schools. As the statutory provisions now stand the manner and method of classifying and chartering high schools and the standards established for such schools are wholly within the absolute and uncontrolled discretion of the superintendent of public instruction and the high school board.

These statutes, purporting to confer such authority, are not indefinite and are sufficiently broad to confer the authority exercised by the superintendent of public instruction and the high school board in the premises mentioned and such statutes are' not subject to being declared invalid because of indefiniteness and such státutorv provisions and the acts of the superintendent of public instruction and high school board pursuant thereto are binding upon all parties hereto unless such statutory provisions are unconstitutional.

We are familiar with the rule stated in 11 American Jurisprudence, 723, Section 94:

“It is settled as a general principle that courts will not pass on the constitutionality of an act of the Legislature if the merits of the case in hand may be fairly determined otherwise without so doing. * * * Hence, if the case may be decided on either one of two grounds and one of these does not involve the constitutionality of a statute, the court will decide it on that ground. ’ ’

However, this rule has no application to the instant case as the cause cannot be decided upon the theory that the statutory provisions conferring authority upon the superintendent of public instruction and the high school board are indefinite or upon any basis other than the unconstitutionality of the statutory provisions mentioned.

Applicable to the consideration of the validity of the statutory provisions conferring the authority hereinbefore mentioned are the following rules of law which were applied to commissions and boards but which apply with equal force to the superintendent of public instruction and the high school board, to wit:

“It is an accepted doctrine in our constitutional law that the law-making prerogative is a sovereign power conferred by the people upon the legislative branch of the government, in a state or the nation, and cannot be delegated to other officers, board or commission, or branch of government. Thus neither the Congress of the United States nor the General Assembly of Ohio can delegate its legislative power, but may confer administrative power on an executive, a board or commission.

C 6 * * #

“The discretion conferred must not be ‘unconfined and vagrant’ and must be ‘canalized within banks that keep it from overflowing.’ (Mr. Justice Cardozo in Panama Refining Co. v. Ryan, supra.)

“If such general rule-making power could be conferred indiscriminately, the Legislature could meet, create commissions, pass on to them the duties of legislation and then adjourn sine die. Without restrictions on the commission’s power, rules and regulations of whatever kind could be adopted by it without notice, and changed overnight. The result would be that statutory law would lose its significance and legal rights would be grounded in great measure upon the readily alterable rules and regulations of boards and commissions. Thus the constitutional right of referendum would be denied, government would be given over to the despotic rule of administrative authorities and bureaucracy would run wild. * # *

“Exceptions to this rule have been made from time to time and reasons therefor often exist. * * * There are many instances wñere it is impossible or impracticable to lay down criteria or standards without destroying the flexibility necessary to enable the administrative officers to carry out the legislative will; especially may such a contingency arise when the discretion conferred relates to police regulations. In such cases it has been held unnecessary to declare the policy of the law by establishing definite restrictions.

* * * Exceptions of this character should be made with discrimination and foresight, and only in cases where absolutely necessary to accomplish the legislative objective.” Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220.

See, also, Weber v. Board of Health, Butler County, 148 Ohio St, 389, 74 N. E. (2d), 331.

The statutory provisions under consideration in this case clearly come within the general rules of law hereinabove set forth, and not within the exceptions to such general rules mentioned in Matz v. Curtis Cartage Co., supra, as such statutory provisions do not relate to a police regulation for the protection of the public morals, health, safety or general welfare, and the classification, chartering, and establishing of standards of high schools authorized thereby are not matters which are impossible or impracticable to definitely fix and determine by legislative enactment. As a matter of fact until the enactment of the above-mentioned statutory provisions such classification and standards were fixed and determined by the Legislature. See Chapter 3, Title V, Part Second, Throckmorton’s Annotated Code of Ohio, Baldwin’s 1934 Certified Revision and subsequent amendments of the sections appearing in said chapter.

Such statutory provisions purport to vest in the superintendent of public instruction and high school board arbitrary authority to be exercised by said superintendent and board in their unlimited and uncontrolled discretion, and constitute a delegation of legislative power.

As said statutory provisions come within the general rules of law set forth in the Matz case, supra, and not within the exceptions therein mentioned such statutory provisions are unconstitutional and void.

Having determined that the Common Pleas Court properly had and exercised its jurisdiction upon the appeal to it and that there is no ground other than the ground of unconstitutionality of the statutory provisions in question for deciding the instant cause, and that said statutory provisions are unconstitutional, the assignments of error herein are without merit and the judgment of the Common Pleas Court is affirmed it the costs of the appellants, and the cause is remanded for execution.

Judgment affirmed.

Middleton, P. J., and Younger, J., concur.


source: Caselaw Access Project

author: Conn, J. Fess, J.,

license: Public Domain

text:
    Commercial Credit Corp., Appellant, v. Reising, Appellee.
    (No. 7648
    Decided December 21, 1953.)

      Messrs. Matthews & Matthews, for appellant.

      Mr. Milton B. Schott, for appellee.
   Conn, J.

This action in replevin was brought in the Common Pleas Court by plaintiff to recover possession of a motor vehicle. The court found that the right of property and possession was in the defendant, and judgment was entered accordingly.

The facts were stipulated by the parties. From the stipulation it appears that one Jack Rogers, on February 18, 1949, purchased a Buick automobile from Capital Lincoln-Mercury, Inc., Tallahassee, Florida, and as part of the purchase price executed a conditional sales agreement to the seller in the amount of $1,193.50, payable in installments, and that on February 19,1949, the Motor Vehicle Commission of the state of Florida issued a certificate of title to Jack Rogers for the Buick automobile and thereon designated that plaintiff, Commercial Credit Corporation, had a lien on the automobile in the amount of $1,393.50 which, under the law of Florida, gave plaintiff the first and best lien thereon.

It was stipulated also that the defendant, Reising, had purchased such automobile in good faith and for a valuable consideration from the Walter E. Schott Company of Cincinnati, Ohio; that at the time of the purchase thereof, a certificate of title was issued to him by the Clerk of Courts of Hamilton County; and that the alleged lien of plaintiff was not noted on such certificate of title.

It was stipulated further that the Walter E. Schott Company had purchased the automobile from one Ellis, that there was issued to such purchaser a certificate of title by the Clerk of Courts of Hamilton County, and that the alleged lien of plaintiff was not noted on that certificate of title.

It does not appear in the stipulation to whom Rogers had sold and transferred the Buick automobile, but it was stipulated that Ellis had assigned the certificate of title issued to him by the Clerk of Courts of Franklin County, to the Walter E. Schott Company, which certificate of title did not have designated thereon the alleged lien of plaintiff. Furthermore, no showing or claim is made that the conditional sales contract or the alleged lien of plaintiff was at any time made a matter of record in this state.

It appears further that no issue of fraud was raised on the pleadings or on the facts stipulated by the parties. In other words; in the instant case, the record does not disclose that the defendant’s certificate of title was obtained in any unlawful or fraudulent manner. On the contrary, the parties stipulated that defendant had “purchased said automobile in good faith and for a valuable consideration. ’ ’

The defendant, appellee herein, briefly states the issue raised on the record in this case as follows:

“Will the bona fide purchaser and holder of an Ohio certificate of title to an automobile, upon which certificate there is no notation of an admitted prior duly executed and properly recorded mortgage in accordance with the laws of the state of Florida, prevail in an action of replevin brought by the Florida mortgagee to recover the property?”

The plaintiff, appellant herein, contends that the issue raised on the record is as follows:

‘ ‘ The issue herein involves a constitutional question, that question being whether or not the courts of Ohio must give full faith and credit to the public acts and records of the sister state of Florida. ’ ’

As already indicated, the plaintiff seeks to have the courts of Ohio give full faith and credit to the public acts of record of the state of Florida, and also to “uphold its equitable ownership and lien of record in Florida.”

It is well settled that where the recognition of the full faith and credit clause in a given instance would do violence to the established policy of a state, as expressed in its statutes, such recognition can not be urged and will not be given. It should be noted also that this general rule applies to the application of the principle of comity between the states where, in a given instance, it would contravene the state’s settled policy, as expressed in its statutes. Anderson v. Poindexter, 6 Ohio St., 622; State Farm Mutual Automobile Ins. Co. v. Dull, Commissioner of Ins., 324 U. S., 154, 89 L. Ed., 812, 65 S. Ct., 573; 12 American Jurisprudence, 381, Section 707; 13 A. L. R. (2d), 1312, 1338.

We call attention to the statutes of this state, enacted April 28, 1937 (117 Ohio Laws, 373) to prevent the importation of stolen motor vehicles and thefts and frauds in the transfer of title to motor vehicles, etc., and specificially to Section 6290-4, General Code (Section 4505.04, Revised Code [125 Ohio Laws, 280]). We quote the latter part of this section: .

“No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter. ’ ’

Under the express provisions of the statute, the assertion of a claim, right, title or interest of any person in and to a motor vehicle in any court of this state can not be sustained or given any recognition, unless such claim is evidenced by a certificate of title, issued pursuant to its authority. The clear, prohibitory language of the statute is applicable and decisive in the instant case.

However, there appears to be some conflict in the reported cases of this state wherein the above statute has been given application; at least the conclusions reached are not reconcilable or clearly distinguishable on the facts unless the variables are deemed material. As illustrative, we cite the following: Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N. E. (2d), 665; Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342; Associates Discount Co. v. Colonial Finance Co., 88 Ohio App., 205, 98 N. E. (2d), 848; Douglas v. Hubbard, 91 Ohio App., 200, 107 N. E. (2d), 884.

We have considered the several assignments of error, urged by plaintiff with much persuasiveness, and also the authorities relied on, and are of the opinion that the alleged errors assigned should not be sustained.

On the record before us and in the light of the clearly-settled policy of this state, a majority of the court is of the opinion that the judgment of the trial court should be affirmed.

Judgment affirmed.

Deeds, J., concurs.

Fess, J.,

dissenting. The statutes of Florida relating to the registration of titles to motor vehicles and liens thereon are substantially similar to the statutes of Ohio. There is, therefore, no conflict between the laws of the two states which clashes with the rights of Ohio citizens or the public policy of Ohio. In the Kelley Kar Co. case, the plaintiff relied solely upon its reservation of title contained in the conditional sales contract, executed in California. The record failed to disclose whether the conditional sales contract was filed or recorded in any public office in California. In that case, the Supreme Court said:

“Since ‘the right, title, claim or interest of’ plaintiff ‘in or to’ the motor vehicle here asserted is not evidenced by ‘a certificate of title or manufacturer’s or-importer’s certificate,’ that claim of right can not be recognized and plaintiff can not prevail in this action. ’ ’

In the instant case, the plaintiff predicates its action upon a motor vehicle certificate of title duly issued by the state of Florida on February 19, 1949, as well as its conditional sale agreement. Defendant relies on his Ohio certificate of title, duly issued on April 11, 1949. The record fails to disclose the evidence upon which an Ohio certificate of title was issued to Ellis by the Clerk of Courts of Franklin County without noting thereon the lien of the plaintiff.

It is apparent that the 1937 act ‘ ‘ To prevent the importation of stolen motor vehicles and thefts and frauds in the transfer of title to motor vehicles, etc., ’ ’ as amended, was ineffective to prevent a fraud in the transfer of the title to the automobile in the instant case. Since plaintiff’s lien noted upon its Florida certificate of title was unreleased, Ellis (defendant’s predecessor in title) did not obtain an Ohio certificate of title in accordance with the provisions of the Ohio statute.

Since there is no substantial conflict between the Florida and Ohio acts, and the object and spirit of the Florida act is identical with that of Ohio, it is my conclusion that by the law of comity, the lex loci contractus controls, that the lien of the plaintiff is valid and prior in time to the title of the defendant, and that plaintiff should prevail. Kanaga v. Taylor, 7 Ohio St., 134, 70 Am. Dec., 62.

Fess, Conn and Deeds, JJ., of the Sixth Appellate District, sitting by designation in the First Appellate District.


author: Middleton, J.

text:
    The Ohio Power Co., Appellant, v. Shroyer, Appellee.
    (No. 258
    Decided March 11, 1954.)

      Mr. C. A. Hoopes, for appellant.

      Messrs. Sanders & Grigsby, for appellees.
   Middleton, J.

This is an action brought by the plaintiff, The Ohio Power Company, to appropriate an easement and right of way in lands owned by the defendant, Harry O. Shroyer.

The farm of defendant consists of 108.66 acres, and the easement being appropriated is 250 feet in width and approximately 1,460 feet in length.

The case was submitted to a jury for the assessment of compensation and damages to be paid by plaintiff to defendant. The jury found the value of the easement taken to be $1,000 and the damage to the residue to be $3,000, or a total sum to be paid the defendant of $4,000. It is from the judgment rendered upon this verdict that appeal is taken to this court on questions of law.

The plaintiff assigns as error, first, the refusal of the trial court to give the plaintiff’s special request before argument, and, second, error in the trial court’s general charge to the jury.

It developed from the evidence that some 30 trees growing on the land appropriated would be cut down, and it is from the relation of the value of these trees to the compensation to be paid defendant that the questions to be decided by this court arise.

At the conclusion of the trial, and before argument, the plaintiff submitted three special requests to charge. Two were given and the third request was refused.

The request to charge, which was refused, reads as follows:

“The court instructs you that you have no right to award compensation or damages for the value of any trees separate, apart and in addition to the fair market value of the land upon which such trees stand.”

It is recognized that the value of any trees removed is to be taken into consideration in fixing the fair market value of the land appropriated; and that the value of the trees removed is not to be awarded as a separate item of compensation or damages.

The request to charge does not include, as a part of the instructions, the right of the jury to consider the value of the trees removed, in fixing the fair market value of the land.

This court is of the opinion that the request to charge is confusing and could be interpreted by the jury as denying it the right to consider the value of the trees as a part of the compensation to be awarded the defendant for the easement. The court is, therefore, of the opinion that the trial court properly refused to give the charge requested.

However, when the evidence offered at the trial, by both the plaintiff and defendant, is examined, the question of whether the court’s refusal to give the charge requested was error ceases to be material.

Defendant’s witnesses fixed the value of the easement from $4,000 to $5,000, and the damage to the residue from $6,000 to $10,000. The defendant fixed the value of the easement at $4,250; his son fixed the value at $4,000; the cashier of a bank fixed the value of the easement at $4,000; and defendant’s witness McMahon gave his estimate of the value of the easement at $5,000.'

In testifying as to the value of the easement, all witnesses took into consideration the cutting of the trees standing on the land.

The plaintiff called two witnesses who testified as to the value of the easement and the damage to the remainder. Plaintiff’s witness H. W. Marshall testified that the value of the easement and the damage to the remainder would be $1,500, and estimated that, of this sum, $600 would be the damage to the residue, thus leaving $900 as the compensation to be paid for the easement. Plaintiff’s witness Ross Dodd fixed the fair market value of the easement as $920, and the damage to the residue as $700.

The verdict of the jury fixed the compensation for the easement at $1,000, a sum only $80 in excess of the value thereof fixed by the plaintiff.

It is, therefore, observed that the refusal of the court to give the charge requested, if error, was not prejudicial.

That part of the court’s general charge to which the plaintiff takes exception and which is the basis of plaintiff’s second assignment of error is as follows:

“Further, Harry Shroyer had the right to have the trees remain and grow there without injury, and the right to maintain the trees in the ordinary way was an absolute right. The Ohio Power Company is depriving Mr. Shroyer of that right, and Mr. Shroyer is entitled to a fair market value of that right, and it is an item to be considered by you in arriving at the fair value of the easement taken.”

The court concludes that the above-quoted portion of the court’s charge is a correct statement of the law, as the defendant had the right to have the trees remain and grow without injury, and the value of that right is an item to be considered in arriving at the fair value of the easement taken.

It should be noted that the plaintiff does not claim that the verdict is contrary to the evidence or that it is excessive.

As we find no prejudicial error, the judgment of the court below is affirmed.

Judgment affirmed.

Younger, P. J., and Guernsey, J., concur.


author: Hildebrant, J.

text:
    Taphorn et al., d. b. a. Little Misses Sweet Shop, Appellees, v. City of Cincinnati, Appellant.

      (No. 7805
    Decided December 14, 1953.)

      Mr. Anthony P. Gonion, for appellees.

      Mr. Henry M. Bruestle, city solicitor, Mr. J. B. Grause, Jr., and Mr. Edgar W. Holtz, for appellant.
   Hildebrant, J.

The city water main under the sidewalk in front of plaintiffs ’ place of business, known as “Little Misses Sweet Shop,” at No. 2113% Beechmont Avenue, burst, flooding the basement and damaging equipment incident to their candy and ice cream business and other contents thereof. A judgment for plaintiffs entered on a jury verdict is the subject of this appeal on questions of law.

The principal error assigned is the failure of the court to grant defendant’s motions for judgment seasonably made during the trial and for judgment non obstante veredicto.

It is alleged that the main had become worn, decayed, and eaten away, so as to become too fragile to withstand the pressure of the water therein, and that its condition was known, or in the exercise of reasonable care should have been known to defendant.

In operating its waterworks system, the city is engaged in a corporate or proprietary function, is charged with the duty of exercising ordinary care and is liable for negligence in the operation of such system.

The break occurred in a 12-foot section of the main shown to be a part of a 1,500-foot installation made in the year 1911. The city had no record of inspections ever being made of this installation.

The burden of proof rests upon plaintiffs.

The bursted section of main was not in evidence and there is no proof in the record as to its actual condition. The record does show that approximately five and one-half feet of the particular 12-foot length was removed and replaced by joining new main to the remainder of the original 12-foot length installation. There is no technical or expert testimony in the record as to the life of a cast iron water main, such as was installed here. Counsel argue a duty to inspect, but no standard or method in modern use by the ordinarily prudent city in the operation of a waterworks system is in evidence to guide the court or jury. Former floodings of the basement were in no way traceable to the city water main.

We, therefore, conclude that plaintiffs have failed to meet those fundamental requirements of proof discussed in White Oak Coal Co. v. Rivoux, Admr., 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas. 1914C, 1082; and Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634, and numerous subsequent decisions.

It was, therefore, error to overrule defendant’s motion for judgment non obstante veredicto.

The judgment i$ reversed, with instructions to enter final judgment for the defendant.

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.


author: McClintóok, J.

text:
    Pottorf et al., Appellants, v. The East Ohio Gas Co., Appellee.
    (No. 2314
    Decided November 1, 1948.)

      Messrs. Amerman, Mills, Mills, Jones & Mansfield, for appellants.

      Messrs. Burt, Carson, Lynch & Miller, for appellee.
   McClintóok, J.

This is an appeal on questions of law from the Court of Common Pleas of Stark County. A petition was filed by plaintiffs, appellants herein, in the court below, seeking a restraining order to restrain The East Ohio Gas Company from turning off the gas used by plaintiffs for domestic consumption in their home. An answer was filed by defendant, appellee herein, and a reply by plaintiffs. The court below granted a temporary restraining order as prayed for by plaintiffs in their petition.

Thereafter defendant filed a motion to dissolve the restraining order on the ground that the court is without jurisdiction therein and is without authority to make such order. This motion came on for hearing in the court below on a stipulated agreement of facts, which is as follows:

“Show that this matter came on for hearing upon the motion of the defendant to dissolve the temporary restraining order heretofore issued, and upon the arguments of counsel, and that it is stipulated by and between counsel for the plaintiffs and the defendant that the notice of appeal in the Supreme Court of Ohio from the Public Utilities Commission of Ohio in the matter of the investigation of the supply of natural gas within the state of Ohio, being No. 13618, of which a certified copy is attached to said motion to dissolve, was filed in the Supreme Court on the 10th day of May, 1948, and that no further proceedings have been taken thereon; that said appeal has been neither perfected nor dismissed.”

After due consideration by the court below, it dissolved the restraining order heretofore allowed to plaintiffs on the ground that the court was without jurisdiction and without authority to grant the restraining order and dismissed the petition of the plaintiffs.

Thereupon, the plaintiffs appealed to this court and for their assignment of error say:

“1. The Common Pleas Court erred in holding that it had no jurisdiction of the subject matter.”

The material allegations of the plaintiffs’ petition are as follows: That they were and have been for 25 years a customer of defendant company and have purchased and do now purchase natural gas from defendant for domestic use in their home at 907 Broad Avenue N. W., Canton, Ohio, that on April 3, 1948, they installed what is known as a gas-conversion burner for the purpose of heating their home, that since April 3, 1948, they have purchased gas from the defendant for the purpose of heating their home in addition to the purchase of gas for cooking and heating, and that on May 6, 1948, the defendant notified plaintiffs in writing that defendant would, within 10 days from the date of the receipt of such notice, shut off the gas from plaintiffs’ home and refuse to furnish any gas thereafter for plaintiffs’ use, unless the conversion burner was removed or disconnected.

Plaintiffs stated further that they have paid all charges for gas purchased by them and are ready and willing to pay all charges for such gas consumption in the future, and that the proposed action of the defendant is in violation of its duty as a public utility corporation, is in violation of its contract with plaintiffs, is in violation of the applicable rules and regulations of the Public Utilities Commission of Ohio and of the laws of the state of Ohio, that if said gas is turned off plaintiffs will be damaged, and that the health and safety of plaintiffs will be impaired. Plaintiffs prayed for a restraining order to restrain defendant from shutting off said gas.

To this petition the defendant filed an answer in which it admits that the plaintiff installed a conversion burner in their home for the purpose of heating it by gas, that defendant on or about May 6, 1948, notified plaintiff to disconnect the burner, and that if it was not disconnected within 10 days, defendant would shut off the gas in plaintiffs’ home. For its defense defendant denied that its proposed action is in violation of any contract with plaintiffs or its duty as a utility or the rules and regulations of the Public Utilities Commission or the laws of Ohio, and denied that it had any contract to furnish plaintiffs gas for heating their home.

For further defense defendant alleged that the Pub-lie Utilities Commission of Ohio, on September 15, 1947, after a full hearing, issued certain emergency orders effective September 16, 1947, to the effect that no distributing utility shall supply or be required to supply natural gas service to any consumer present or prospective in the state of Ohio for equipment designed to furnish the source of space heating that replaces other fuels; that this gas-conversion burner installed by plaintiffs replaced equipment using fuel other than natural gas; that on October 3, 1947, the Public Utilities Commission made a supplemental emergency order which provided in rule 4 that when any consumer has connected gas-fired space-heating equipment which is not eligible for service, the utility shall forthwith in writing direct such consumer to disconnect such equipment; that upon failure so to disconnect it within 10 days the utility shall discontinue the entire supply of natural gas to such consumer until such disconnection is made; and that the notice to plaintiffs to disconnect their conversion burner was made in pursuance to said order. On April 1, 1948, the commission made a second supplemental emergency order, and in pursuance to the same defendant filed with said commission a written statement of its estimated ability to supply natural gas during the continuance of the present emergency.

Answering further, defendant alleged that the total natural gas to be supplied for such equipment exceeds the defendant’s estimated ability to furnish such supply during the continuance of the present emergency, and that it does not have sufficient supplies of natural gas from its own wells, wells under its control or from local producing and distributing companies to serve all its present and prospective demands.

A copy of these emergency orders made by the Public Utilities Commission is attached to the answer of defendant and made a part thereof.

To this answer, the plaintiffs filed a reply in which they admit the orders made by the Public Utilities Commission of Ohio, but claim that the order made as of April 1, 1948, has no application to plaintiffs or to the defendant for the reason that such order provides that it shall not be applicable to any gas producing and distributing company that has sufficient supplies of natural gas, and that defendant has sufficient supplies of natural gas, which is shown by the number of installations it has made for commercial enterprises and industrial enterprises prior to and after April 1, 1948.

The reply says further that the second supplemental emergency order of the Public Utilities Commission is unconstitutional in that it amounts to an unconstitutional delegation of legislative authority to The East Ohio Gas Company and in its application is a denial of equal protection of the laws under the state and federal Constitutions by reason of the fact that it permits The East Ohio Gas Company to arbitrarily discriminate among consumers, that The East Ohio Gas Company has arbitrarily discriminated against consumers, and that, since such conversion burner was installed by plaintiffs the defendant has installed and connected a number of other gas conversion burners and gas units, both replacement and new units, which shows that The East Ohio Gas Company does have sufficient gas to supply these plaintiffs.

The questions involved in this case necessitate an examination of the General Code of Ohio as to the rights and power of the Public Utilities Commission.

Section 614-3, General Code, provides as follows:

“The Public Utilities Commission of Ohio is hereby vested with the power and jurisdiction to supervise and regulate ‘public utilities’ and ‘railroads’ as herein defined and provided and to require all public utilities to furnish their products and render all services exacted by the commission, or by law, and also to promulgate and enforce all orders relating to the protection, welfare and safety of railroad employees and the traveling public.”

We find in Section 614-67, General Code, the following :

“Whenever the commission shall be of the opinion that any public utility or railroad has failed, omitted or neglected to obey any order made with respect thereto, or is about to fail or neglect so to do, or is permitting anything, or about to permit anything contrary to, or in violation of law, or an order of the commission, duly authorized under the provisions of this act, the Attorney General, upon the request of the commission, shall commence and prosecute such action, actions, or proceedings in mandamus or by injunction in the name of the state, as may be directed by the commission, against such public utility or railroad, alleging the violation complained of and praying for proper relief, and in such case the court may make such order as may be proper in the premises.”

It is apparent from the two sections of the Code heretofore quoted that this is a matter between the Public Utilities Commission and plaintiffs, and that if plaintiffs claim any irregularities they should have proceeded as provided in Section 549, General Code, which is as follows:

“No court other than the Supreme Court shall have power to review, suspend or delay any order made by the commission, or enjoin, restrain or interfere with the commission or any member thereof in the performance of official duties. Nor shall the writ of mandamus be issued against the commission or any member thereof by any court other than the Supreme Court.”

It is apparent from the agreed stipulation by counsel in this case that plaintiffs did at least attempt to proceed as provided in Section 549, General Code, by taking an appeal to the Supreme Court of Ohio.

The Public Utilities Commission is an administrative body and it is the duty of the plaintiffs to make complaint to them if defendant has not complied with any of their orders. We find in the case of Chillicothe Electric Railroad, Light & Power Co. v. Norfolk & Western Ry. Co., 5 Ohio App., 151:

“1. By the provisions of Section 588, General Code, the Public Utilities Commission has authority to order the erection of a gate where the tracks of a railroad cross a public street at grade, but such gate can only be lawfully ordered erected at such crossing.

“ 2. Such commission, being an administrative body, is presumed to know whether its order has been obeyed, and in the absence of a suit by it to enforce such order the courts will presume that in the opinion of the commission its order has been obeyed.

“3. When the commission has ordered a gate placed at such crossing and has taken no steps, under the provisions of Section 614-67, General Code (102 O. L. 570), to enforce such order, the courts will conclude that in the opinion of the commission the gate has been located at the crossing and that such location of the gate is the order of the commission, and hence the provisions of Section 549, General Code (103 O. L. 816), divest the Court of Common Pleas and the Court of Appeals of jurisdiction to restrain the erection of such gate at such location on the ground that the gate was not located at the crossing. ”

We find also the questions herein involved have been decided in a recent case entitled City of Akron v. Public Utilities Commission, 149 Ohio St., 347, 78 N. E. (2d), 890:

A temporary and state-wide, order of the Public Utilities Commission, which is adopted and promulgated after a hearing and upon a finding that such order is essential to protect the health and safety of the people of the state because of a serious shortage of natural gas for consumption and use by Ohio consumers which shortage is due in part to greatly increased demands of consumers for gas to be used in space heating of homes and which order in part requires that ‘no distributing utility shall supply or be required to supply natural gas service to any consumer, present or prospective, in the state of Ohio for equipment designed to furnish the source of space heating that replaces other fuels, or for additional space heating-,’ is a valid exercise of the police power of the state and binding on all parties to contracts for the sale and purchase of natural gas, whether municipalities, corporations or individuals.”

In conclusion this court is of the opinion under the facts in this case and the law as we have hereinbefore stated that the recourse of plaintiffs must be either before the Public Utilities Commission or the Supreme Court of Ohio, that all questions in connection with the orders of the commission or the constitutionality of its orders must be raised either before the Public Utilities Commission or the Supreme Court of Ohio, and that the judgment of the court below in finding- that it did not have jurisdiction of the matters claimed by plaintiffs was correct.

The judgment is, therefore, affirmed.

Judgment affirmed.

Putnam, P. J., and Montgomery, J., concur.


author: Younger, P. J.

text:
    Bessire, Appellant, v. Fisher et al., Exrs., Appellees.
    (No. 1040
    Decided June 30, 1953.)

      Mr. L. E. Luáwig, for appellant.

      Mr. James C. Blair, for appellees.
   Younger, P. J.

This action was instituted in tne Court of Common Pleas of Allen County for the purpose of contesting the validity of the will of Mary Alice Woods.

The petition, filed on August 7,1952, alleges that the will was admitted to probate on February 11, 1952, in the Probate Court of Allen County. Ralph G. Fisher and Laura F. Roeder, executors of the estate of Mary Alice Woods, deceased, are named as defendants in the caption and body of the petition, together with Laura F. Roeder, Ralph G. Fisher and others also named as defendants. On the same day, a precipe was filed for service on Laura F. Roeder, Ralph G. Fisher and others as individuals, and personal service was made on August 8 by the sheriff of Allen County. The remaining defendants were served properly in their respective counties or by publication, except that Ralph G. Fisher and Laura F. Roeder were not served as executors, they not having been named as such on the precipe.

On January 6,1953, a precipe was filed for service on Laura F. Roeder, executrix of the estate of Mary Alice Woods, deceased, and Ralph G. Fisher, executor of the estate of Mary Alice Woods, deceased, on which a summons was issued the same day. Personal service was made on the executors on January 9, 1953.

Thereafter, a motion to dismiss the petition was filed by Laura F. Roeder and Ralph G. Fisher on the ground that plaintiff did not file a precipe until January 6, 1953, and did not cause summons to be served on the executors until January 9, 1953, and thereby failed to comply with the mandatory provisions of Sections 12080 and 12087, General Code, requiring proceedings to contest the validity of a will to be commenced within six months and requiring that the executors be made parties to the action.

On January 14, 1953, the same day the motion to dismiss was filed, an affidavit by L. Earl Ludwig and Katherine Ludwig, his wife, was filed, which set out that L. Earl Ludwig was attorney for plaintiff and that Katherine was his secretary, and stated further:

“That Katherine Ludwig typed the original precipe filed herein and in so doing inadvertently omitted the names of said Ralph G. Eisher and Laura F. Roeder, executors of the estate of said Mary -adice Woods, deceased, although typing in their names individually as defendants upon which summons ivas to be served by the sheriff of Allen County, Ohio, and that because of said inadvertence said executors were not served within the six-month period following the probating of said decedent’s will.

‘ ‘ That this affidavit is made and filed by said Earl L. Ludwig, attorney for plaintiff, in accordance with the decision of the court in the case of Bynner v. Jones, 154 Ohio St., 184, in which the court in its opinion says that ‘no summons was served on him in that capacity; and no explanation is offered as to why these important steps were not taken. ’

“That this is plaintiff’s explanation as aforesaid, why service was not made on said executors herein within said six-months period.”

The Common Pleas Court sustained defendants ’ motion to dismiss the petition, and it is that judgment from which this appeal is taken.

There is no bill of exceptions showing the proceedings of the trial court, and the appeal is submitted upon the record of the Common Pleas Court consisting of docket and journal entries, original pleadings, precipes, summonses and the returns thereon.

Plaintiff’s first contention here is that the executors were made parties defendant in that they were named as such in the caption of the petition, and the petition alleges that “Letters testamentary were issued thereon to defendants, Ralph G. Fisher and Laura F. Roeder, executors of the estate of said Mary Alice Woods who thereupon qualified as such executors and are now acting as such executors ’ ’; that, since Ralph G. Fisher and Laura F. Roeder were served with summons as individuals within the statutory six-month period, they had notice within such period that they had been sued as executors because they were named defendants in the petition, as executors as well as individuals; that the motion to dismiss admits they had such notice and knowledge in that such motion states “plaintiff failed to file a precipe for summons for the defendants, Laura F. Roeder, executrix of the estate of Mary Alice Woods, deceased, and for Ralph G. Fisher, executor of the estate of Mary Alice Woods, deceased, until the 6th day of January, 1953.”

We think the first contention of appellant is without merit in view of the many reported cases on the subject.

In one of the latest of such cases, this court, in Woodruff v. Norvill, 91 Ohio App., 251, 107 N. E. (2d), 911, har a very similar case before it. In that case, decided March 21,1951, it is stated in the opinion written by Judge Guernsey:

“In this situation we are forced to the conclusion that neither the decision in the case of Draher v. Walters, supra [130 Ohio St., 92], nor the above quoted language in the opinion in the latter case mentioned constitutes a holding that the mere fact that the executor was named a party defendant in the petition, although not served with summons thereon within six months from the date of the probate of the contested will, would authorize the service of summons upon him in his fiduciary capacity after the expiration of said'six-month period.

“It is also obvious that in such a situation the service of summons upon an individual in his individual capacity, such individual happening to be the executor of the estate, does not constitute service upon him in his fiduciary capacity, and does not in any manner affeet or bind the estate of which he happens to be the executor. * *

In Peters v. Moore, 154 Ohio St, 177, 93 N. E. (2d), 683, where the person nominated in the will refused to serve and one of the heirs who was named as an alternate executor did qualify, and where the heir and executor was served as an individual and the person who was named and refused to serve was made a party and was served with summons as the executor, the Supreme Court held there had been no compliance with the statute even though the person occupying the position of heir and sole executor is made a party in his individual capacity as heir and not in his distinctive, official, fiduciary capacity as executor and another person sued as executor.

In the recent case of Martin v. The Mansfield Saving & Trust National Bank, 92 Ohio App., 465, 110 N. E. (2d), 814, the bank was acting as sole executor of the will involved and was made a party and served with summons merely in its individual or corporate capacity and not as executor. The Court of Appeals of the Eighth Appellate District held that a person acting in two different capacities is, for all intents and purposes, two separate entities, and affirmed the dismissal of the petition by the court below. The bank in that case certainly knew or had knowledge that it was being sued as executor and not individually, but such knowledge was held insufficient to excuse service in the fiduciary capacity.

The naming of a party as a defendant and referring to him in the petition as such is not the equivalent of making a party a defendant. A person is made a party defendant only when a summons is issued and served upon him.

Plaintiff’s second contention is that the affidavit filed by his attorney and the attorney’s wife and secretary is an explanation of the failure to issue summons on the executors within the six-month period and under the statement in the opinion of the Supreme Court in Bynner v. Jones, 154 Ohio St., 184, 93 N. E. (2d), 687, “and no explanation is offered as to why these important steps were not taken,” such explanation must defeat the motion to dismiss the petition. «

In our opinion plaintiff’s second contention is likewise without merit as we do not believe that by using the phrase referred to, the Supreme Court of Ohio intended to open the door to a judicial determination of an explanation. To place the construction for which plaintiff contends upon this phrase would, in our opinion, be judicial legislation. And the section of the statute requiring that an executor must be made a party to a will contest would read that the executor or administrator must be made a party “unless the failure to make such executor or administrator a party is satisfactorily explained.” Whether the phrase as used is a casual remark, as argued by defendants, or a solemn pronouncement of the court, as plaintiff contends, we need not decide. Suffice it to say that, in our opinion, the phrase refers to a fact pertaining to the case the court had under consideration. That is, that from the record there was no explanation apparent as to why the executor had not been made a party defendant. In other reported cases such an explanation was apparent from the record. In one such case the executor was not made a party defendant because for some reason or other the clerk of courts did not issue the summons as requested. In another case, the person named in the will as executor did not qualify as such executor and the plaintiff by mistake made him a party and had service of summons made upon him. In those two cases there was an explanation from the record “as to why these important steps had not been taken.”

If a sufficient explanation were all that is required to excuse the service of summons upon an executor, these last two instances would appear to be amply sufficient.

We, therefore, hold that the Court of Common Pleas of Allen County was correct in sustaining the motion to dismiss filed by the defendants, and in dismissing the petition. The judgment is affirmed at costs of appellant.

Judgment affirmed.

Guernsey and Middleton, JJ., concur.


author: Montgomery, J.

text:
    Maurer, Appellee, v. Chandler, Appellant.
    (No. 816
    Decided April 21, 1954.)

      Mr. G. Vernon Lee, for appellee.

      Mr. R. A. Mawbray, for appellant.
   Montgomery, J.

On August 28, 1951, the plaintiff filed in the Court of Common Pleas a petition in which he averred that he did, on January 24, 1949, at the request of and for the accommodation of the defendant and without consideration, execute a promissory note in the sum of $775, payable in installments of $25 each; that such note was negotiated to the Oxford Bank at Newcomerstown; that the defendant failed to pay the note; and that the plaintiff was compelled to, and did pay it in the then amount of $869.90, for which amount with costs the plaintiff prayed judgment.

In an amended answer the defendant admitted the execution by the two parties hereto of the note by the terms of which it was to be payable in installments of $25 each, and denied all the other allegations of the petition.

Defendant averred further as an answer that on January 24, 1949, he agreed to purchase from the plaintiff certain coin operated machines; that the note in question was for the purchase price of these machines ; that $25 was paid, and the note executed for the balance of the purchase price; that, while the note was made payable to the Oxford Bank of Newcomerstown, that was done solely as an accommodation and the note was that- day assigned by endorsement to the plaintiff; and that he paid an additional $25, and no more.

He averred further “that as a condition — subsequent thereto defendant was to tender — back to plaintiff said machines if or when ‘he could not use them, or could not legally operate same.’ ”

He averred also that shortly after the execution of the note in accordance with the terms of this condition subsequent to the agreement, he tendered back the machines.

A reply was filed which admitted that thé note represented the agreed purchase price “of certain coin operated machines belonging to plaintiff; admits the payment in cash and the assignment of the note, and denied the other allegation of the petition.”

With the pleadings in this condition, the cause went to trial before a jury. At the conclusion of all the evidence the trial court directed a verdict for the plaintiff for the amount claimed in the petition with costs.

A motion for new trial having been filed and overruled, final judgment was rendered, and from that judgment this appeal was perfected to this court upon questions of law and fact, and that appeal having been heretofore dismissed, the cause is now submitted as an appeal on 'questions of law.

Defendant, appellant herein, has assigned 12 errors,' most of which are restatements of the same proposition, and, except as hereinafter suggested, we find no merit in them and they are ignored.

We have read the bill of exceptions with care. The record does not sustain in any respect the allegations of the plaintiff’s petition.

This note was an accommodation only in the sense that it was for the benefit, not of the bank, but of the plaintiff. The bank really was nothing more than a collection agency and by the agreement the amounts to be paid by the defendant were to be credited by the bank to the plaintiff. In another sense it was not an accommodation because the plaintiff’s own evidence shows that it was for the sale of certain personal equipment, to wit, slot machines, pin-ball machines, penny machines and music boxes.

In another respect the allegations of the petition are not sustained because the plaintiff was not compelled to, and did not pay to the Oxford bank, the amount of this note. It was at the time of the filing of the petition and long had been in the ownership, possession and control of the plaintiff himself.

There was a fatal variance between the allegations of the petition and the proof. However, the defendant did not avail himself of this situation but relied upon his defense. We have heretofore set forth the substance of his defense. In his brief, however, he claims want of consideration and illegality of consideration. Those claims are not specifically pleaded, and they are not sustained by the evidence. At the time of the sale of this equipment from the plaintiff to the defendant, the ownership or possession was not illegal as to any of it. As to some of it, it is not now illegal. There was a consideration, and at the time of the transaction, a consideration that was not illegal. The act of the Legislature making ownership or possession'or exhibition of gambling devices illegal did not come into effect until September 18, 1951, more than two and one-half years after this attempted sale.

However, the defendant does have one other alleged defense which has caused us a great deal of concern, and that is his contention as to a condition subsequent.

The defendant testified, and his testimony was stricken, that plaintiff stated that he would take $800 for the- equipment, and that “I told him I would take them on one condition, if I could make them pay for themselves, I would take them off his hands.” And when inquiry was made about what happened after the execution of the note, the defendant-stated: “Well, after the note was signed I gave him $25 and a month later I gave him $25, and a month later Governor Lausche knocked the props out from under the slot machines and that was all over.”

The defendant’s wife testified’ more specifically in respect to this defense when she testified in effect that she heard the conversation between the parties, and that her husband stated that he would take the machines on that agreement if he could use them.

As stated heretofore, at the conclusion of this evidence, the trial court directed a verdict for the plaintiff for the amount claimed. The one and only assignment of error which we are inclined to take seriously is the rejection of the evidence offered by the defendant as to a condition subsequent and of course with this evidence excluded, the court was not in error in directing a verdict.

What is a condition subsequent? We recognize the fact that the burden of sustaining the existence of such a condition is upon the defendant, but here he made the attempt and was prohibited from proving his contention. The general proposition is discussed in all text books with which we are familiar, and in many cases.

For instance, in the case of W. N. Clark Co. v. Banner Packing Co., 12 Ohio App., 87, it is stated in the first branch of the syllabus:

“A contingency stipulated in a contract, on the happening or performance of which the contract, already in effect, may be defeated, constitutes a condition subsequent. ’ ’

It has been stated also that a condition subsequent may be a contingency on the happening or performance of which a liability under a contract is divested.

A case very near and very clearly in point is that of Horn v. Brand, an Arkansas case reported in 133 Ark., 567, 203 S. W., 5. The first paragraph of the Southwestern Reporter headnotes reads:

“A condition in a contract, the happening of which will defeat a note given pursuant thereto, is a ‘condition subsequent.’ ”

In that case one of the parties had purchased from the other his claim against a certain bank, and had given his note therefor. It was agreed that if the purchaser failed to get possession of all the claims against this bank then the note should be null and void and given back.

The court in its opinion states:

“A condition subsequent in the law of contracts, is one which, if performed or violated, as the case may be, defeats the contract. 13 C. J., 565. Tested by this rule we are of the opinion that the condition in the contract in the present case was a condition subsequent. ’ ’

With the thought in mind of the applicability of this doctrine to the facts in the instant case, and considering the peculiar situation in the case, the nature of the pleadings, the variance in proof, the handicap of defendant’s counsel, which he admits and asserts, and the direction of the verdict by the court, we are of the opinion that this judgment should be reversed. Accordingly, it is reversed and the cause is remanded to the Court of Common Pleas for such further proceedings as may be adopted and followed by counsel and the court, not inconsistent with this opinion.

Judgment reversed.

Putnam, P. J., and McClintock, J., concur.


author: Collier, J.

text:
    The City Loan & Savings Co., Appellant, v. Morrow, d. b. a. Morrow Furniture Co., Appellee.

      (No. 293
    Decided May 26, 1954.)

      Messrs. Meredith & Meredith and Mr. F. G. Motter, for plaintiff.

      Mr. Frederick L. Newdick, for defendant.
   Collier, J.

The parties appear in this court in the same position as in the trial court and will be referred to as the plaintiff and the defendant. This is an action in conversion in which the plaintiff alleged that the defendant converted a Frigidaire electric refrigerator, a coal range, and a Dexter electric washer. At the trial on the merits held on July 21, 1953, the plaintiff introduced its evidence and rested its case. Thereupon, the defendant moved to dismiss the petition on the ground of the insufficiency of plaintiff’s evidence. Defendant’s motion was sustained and plaintiff’s petition was dismissed, from which judgment the plaintiff appeals to this court on questions of law.

The evidence introduced by the plaintiff establishes that on August 8, 1949, Edward Coffey and Flora Coffey, husband and wife, residents of Vinton County, obtained from the plaintiff a loan of $560; that this loan was'evidenced by a promissory note secured by a chattel mortgage conveying certain chattel property, including the articles above mentioned and alleged to have been converted by the defendant; that, prior to the execution of such mortgage, these articles of furniture had been purchased by Edward and Flora Coffey from the defendant; that the Coffeys had executed a chattel mortgage to the defendant to secure the purchase price thereof; that the defendant did not file such chattel mortgage; that the defendant repossessed the articles complained of, by virtue of the unfiled chattel mortgage; that he did not make any search of the chattel mortgage records in the recorder’s office of Vinton County, Ohio, prior to the taking of the property; that, after taking possession of such articles, he resold them to another purchaser; that the plaintiff filed an instrument, purporting to be a copy of the mortgage executed by the Coffeys to secure the loan made by the plaintiff to the Coffeys, in the office of the County Recorder of Vinton County; that the original mortgage was introduced in evidence as plaintiff’s exhibit No. 2; and that the purported copy of the mortgage was introduced in evidence as plaintiff’s exhibit No. 8. The evidence shows further that neither the loan nor the purchase price was paid by the Coffeys.

The defendant contends that the purported copy of the mortgage filed by the plaintiff with the county recorder is insufficient to give constructive notice for the reason that it is not a true copy in two respects, first, that on the original mortgage, exhibit No. 2, the signatures of Edward and Flora Coffey are written signatures with the names typed directly under the signatures, while on the purported copy of the mortgage the names are simply typed and, second, that the copy of the mortgage which was filed with the county recorder contains an affidavit on the back thereof, by an agent of the plaintiff, to the effect that the claim secured by the mortgage is just .and unpaid, that the mortgage was given to secure the same, and that the original mortgage contains no such affidavit. The defendant claims that by reason of these differences in the original mortgage and the purported copy the plaintiff has not complied with the requirements of the statutes regulating the filing of chattel mortgages and, therefore, that plaintiff has no valid lien on the personal property described in the petition and alleged to have been converted by the defendant.

The statutes referred to are Sections 8560 to 8564, inclusive, General Code. (Sections 1319.01 to 1319.04, Revised Code.)

Section 8560, General Code (Section 1319.01, Revised Code), reads as follows:

“A mortgage, or conveyance intended to operate as a mortgage, of goods and chattels, which is not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, subsequent purchasers, and mortgagees in good faith, unless the mortgage, or a true copy thereof, be forthwith deposited as directed in the next succeeding section.” (Emphasis added.)

The next succeeding section, Section 8561, General Code (Section 1319.02, Revised Code), provides that the instruments mentioned in Section 8560, General Code (Section 1319.01, Revised Code), must be deposited with the county recorder of the county wherein the mortgagor resides at the time of the execution thereof, etc. Section 8562, General Code (Section 1319.02, Revised Code), provides that the county recorder shall file and index the instruments. Section 8564, General Code (Section 1319.04, Revised Code), as far as pertinent, reads as follows:

“The mortgagee, his agent, or attorney, before the instrument is deposited for filing or recording, shall furnish therewith a sworn statement placed thereon or attached thereto setting forth the amount of the claim and that it is just and unpaid, if given to secure the payment of a sum of money only.” (Emphasis added.)

The defendant’s first contention is that the purported copy of the mortgage that was filed by the plaintiff is not a true copy in that the names of the mortgagors are simply typed on the copy. It will be observed that, under the provisions of Section 8560, General Code (Section 1319.01, Revised Code), in order to have a valid lien, the mortgagee must deposit with the county recorder “the mortgage, or a true copy thereof.” The defendant contends that where the mortgagee chooses to file a true copy of the mortgage, the copy must be identical in every detail with the original mortgage even to the signatures of the mortgagors and that typing their names on the copy is not sufficient. In other words, the defendant claims that the copy must be a duplicate in order to be a true copy. "We do not believe the law requires such exactness. Had the Legislature intended to require a duplicate, language to that effect, would have been employed in the statute. There is a distinction between a “copy” and a “duplicate.” The two words are not synonomous.

It has been held in Towner v. Hiawatha Goldmining & Milling Co., 30 Ont. Rep., 547:

“It [duplicate] is perhaps a more exacting word than ‘copy,’ or even than the term ‘true copy,’ for in these there may be more or less variation from the original. ’ ’

For further annotations on the distinction between “copy” and “duplicate” see 24 A. L. R., 1209. A duplicate means the double of anything; an original repeated; a document the same as another. A true copy, on the other hand, may be more or less a variation from the original. In the case of Harrington v. Interstate Securities Co. (Mo.), 57 S. W. (2d), 438, it is stated in the fourth headnote:

“Carbon copy of chattel mortgage, exact duplicate of original except that maker’s signature was omitted, held ‘true copy’ within filing statute, and not misleading to other mortgagee knowing facts of transaction. ’ ’

See, also, 42A, “Words and Phrases,” 260.

Section 8560, General Code (Section 1319.01, Revised Code), authorizes the filing of the original mortgage or a true copy thereof, but does not require the copy to be a duplicate, and when the copy which is filed with the county recorder contains the typed names of the mortgagors, in our opinion, the requirements of the statute in this respect have been complied with and we find no irregularity of sufficient consequence to invalidate the chattel mortgage for this reason.

The second reason urged by the defendant to establish the invalidity of the mortgage as a lien is that the original mortgage does not comply with the requirement of Section 8564, General Code (Section 1319.04, Revised Code), in that there is no statement under oath therein as required by the statute. This section provides that the mortgagee, his agent or attorney, before the instrument is filed, must state thereon under oath the amount of the claim and that it is just and unpaid.

The evidence shows that the original mortgage was kept in the possession of the mortgagee and the copy thereof deposited with the county recorder. Is it necessary, as urged by the defendant, that the original mortgage, which was not filed but kept in the possession of the mortgagee, must have placed thereon the the oath that the claim is just and unpaid or is it sufficient that the copy which was deposited with the county recorder contain such oath?

These statutes, Sections 8560 to 8564, inclusive, General Code (Sections 1319.01 to 1319.04, Revised Code), must be read and construed in pari materia. The sense in which particular words, or clauses, are used is to be ascertained from a view of the whole statute or the entire act, rather than from isolated passages. 37 Ohio Jurisprudence, 609, Section 334.

Section 8560, General Code (Section 1319.01, Revised Code), provides that unless the mortgage, or a true copy thereof, be deposited with the county recorder of the county wherein the mortgagor resides at the time of the execution of the mortgage it shall be void, and Section 8564, General Code (Section 1319.04, Revised Code), provides that “before the instrument is filed” the mortgagee, his agent, or attorney must state thereon under oath the amount of the claim, and that it is just, and unpaid. The word, “instrument,” used in Section 8564, General Code (Section 1319.04, Revised Code), refers to “mortgage, or true copy thereof” used in Section 8560, General Code (Section 1319.01, Revised Code). Either the mortgage or a true copy thereof must be deposited and only the instrument that is filed must contain the oath that the claim is just and unpaid.

In construing a statute we should always keep in mind the purpose of its enactment and the mischief which it seeks to avoid. The primary purpose of the recording statutes is to give notice of the mortgage to the persons of the class mentioned therein and to prevent fraud and deception by protecting them from the effects of secret liens and from losses which they might otherwise sustain by relying upon the possession and apparent ownership of the chattels in the mortgagor. 10 American Jurisprudence, 770, Chattel Mortgages, Section 82. It is a maxim that the law never requires the doing of an idle, useless or purposeless thing. What purpose would it serve for the plaintiff to place the affidavit on the original mortgage which he retains in his own files? We are unable to see any purpose for so doing. Only the instrument, whether it be the original or the copy which is deposited with the county recorder must contain such an oath or affidavit thereon in order to meet the requirements of the statute.

For the reasons above stated, the trial court erred in sustaining defendant’s motion to dismiss plaintiff’s petition for these two alleged irregularities in the filing or depositing of the chattel mortgage and, therefore, the judgment must be and is, hereby, reversed, and the cause is remanded to the Court of Common Pleas of Vinton County for further proceedings according to law.

Judgment reversed.

Gillen, P. J., and McCurdy, J., concur.


author: Kovachy, J.

text:
    City of Cleveland, Appellant, v. Cuyahoga County Board of Revision, Appellee.

      (No. 22847
    Decided November 23, 1953.)

      Mr. Joseph H. Crowley, director of law, and Mr. R. O. Horn, for appellant.

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. F. W. Frey, for appellee.
   Kovachy, J.

The Supreme,Court of Ohio, in the case of City of Cleveland v. Board of Tax Appeals, 153 Ohio St., 97, 93 N. E. (2d), 480, 16 A. L. R. (2d), 1354, ruled that the Cleveland Municipal Stadium and contiguous vacant land devoted to automobile parking was used to carry on a private or proprietary function in competition with others engaged privately in similar enterprises and, consequently, was not exempt from taxation.

In the case before us, we are concerned with the value for purposes of taxation of the land upon which the stadium rests and four adjoining parking lots for the years 1948,1949, and 1950.

The Auditor of Cuyahoga County assessed the value of this land on the basis of $1.25 per square foot at $1,580,550. The Board of Revision, on appeal, assessed it at one dollar per square foot for a total valuation of $1,264,440. Upon appeal by the city of Cleveland to the Common Pleas Court of Cuyahoga County, pursuant to Section 5717.05, Revised Code (Section 5611-4, General Code), the true value in money of the land was again put at $1,264,440 for the years 1948, 1949, and 1950. The instant case is an appeal on questions of law from an order of the Common Pleas Court, which, in effect, affirmed the decision of the Board of Revision and ordered the dismissal of the appeal of the city of Cleveland.

The case in Common Pleas Court was tried on the transcript of the minutes of the hearing before the Board of Revision, which included many maps and an affidavit setting forth the assessed valuation of the land and buildings; a description of the stadium building itself; the use of the stadium land and adjoining-land; the Cleveland stadium operating statement for the years 1947 to 1950, inclusive; the gross receipts for the parking lot areas and the expenses covering the taxes and wages of the two attendants; the amount spent by the city of Cleveland in 1950 for grading and surfacing parking lot No. 1; and the balance sheet of the stadium property. The court, in addition, permitted evidence to be admitted on behalf of the city of Cleveland which showed that there is plenty of land elsewhere along- the lake shore for dock facilities (the Cleveland Municipal Stadium and parking lots are located on the shore of Lake Erie between West 3rd Street and East 9th Street); that the property in the West Basin (west of the Cuyahoga River to 58th Street) is valued at 55 cents a square foot; east of the Cuyahoga River to West 9th Street, one dollar per square foot; West 9th to West 3rd Streets, one dollar per square foot; east of East 9th Street south of the shoreway between East 9th and East 12th Streets, $1.25 per square foot; and that from East 12th to East 55th Streets the land values range from one dollar to 25 cents per square foot.

Mr. George D. MeGwinn, a real estate broker and appraiser, placed the valuation of the property in question at 50 cents per square foot. He testified also that depreciation and maintenance deductions from gross earnings left approximately $30,000 per year net earnings before taxes as to the stadium; that parking lots Nos. 1 and 2, after expenses and before taxes, showed an average net earning of $37,345 for the three years; that lots Nos. 3 and 4 averaged net earnings of $4,750; that on a one dollar per square foot valuation on all the land in question there would be an average loss of $20,901 per year; and that on a 50 cents per square foot valuation, a net loss of $343 per year would result.

The claim of the city is that the land was worth 50 cents per square foot for the years 1948, 1949, and 1950. Plaintiff, appellant herein, sets forth six assignments of error which can be summarized as follows:

■ 1. The court erred in not evaluating the factors in the record properly in its consideration of the value of the property, to wit, in not considering income and in believing the amount that a willing buyer and a willing-seller would agree on, where neither is under compulsion, is the sole test or the controlling factor in such determination.

2. The court erred in not undertaking to ‘ ‘ ascertain and determine the true value in money of the property” from the evidence before it, instead of determining that “no credible evidence was introduced in this case that would warrant this court in reversing the finding- herein.”

The trial judge made a finding- in writing which was spread upon the record. In it he set down the salient facts found by him and the law applied by him to such facts, the finding being a part of the record, which brings it before us for review on this appeal.

In Harner v. Batdorf, 35 Ohio St., 113, paragraph one of the syllabus is:

“A judgment rendered on a special finding- of facts made by the court may be reviewed on error, although such finding was not made at the request of either party. ’ ’

The trial court, in its finding, held that the income realized from this property plays no part in the determination of its value for tax purposes and that value “is the amount that a willing buyer and a willing seller would agree on where neither is under compulsion such as a judicial sale, for instance. ” This we believe to be an erroneous statement of the law in a matter concerned with the assessment of property for taxation purposes.

It must ever be borne in mind that the determination of the true value in money of property for the purpose of raising tax revenue has as its base a fair apportionment of the cost of government from property to property. Equality of assessments of private property similarly situated is the paramount issue and is more 'important than the proper determination of market value. Eminent Domain by Jahr.

To apply that philosophy to the property here in question, in the determination of its true value in money for taxation purposes, the same measurements and methods usually utilized to assess property in the hands of a private citizen must be pursued. The lone goal is to arrive at a figure that is based upon factors customarily used in the case of private property in the same locality and similarly situated. All elements bearing on the question must be considered. No single factor is controlling. Incidents of location, size, nature and general desirability of the land for useful purposes, the price which the property would bring in an open market on a free, not forced, sale between a willing buyer and a willing seller, improvements upon it, their usefulness and income, character of surrounding land and value placed upon it, possibilities of future development and maximum future earnings should all be considered to arrive at the true value in money for taxation purposes of private property.

51 American Jurisprudence, 653, Section 701, provides :

“Generally, the chief element of value of a parcel of land on one of the principal streets of a city is its capacity for profitable use as a location of a building for business purposes.”

South Utah Mines & Smelters v. Beaver County, 262 U. S., 325, 330, 67 L. Ed., 1004, 43 S. Ct., 577, states:

“The value of property bears a relation to the income which it affords. ’ ’

Central Maine Power Co. v. Inhabitants of the Town of Turner, 128 Maine, 486, 148 A., 799, holds:

“In estimating the value of land for the purposes of taxation all of its incidents should be considered and the elements of value which lead to its most profitable improvements fix the proper valuation of the land.”

In B. F. Keith Columbus Co. v. Board of Revision of Franklin County, 148 Ohio St., 253, 74 N. E. (2d), 359, paragraph one of syllabus is:

“In determining- the value of property for the purpose of taxation, the assessing body must take into consideration all factors which affect the value of the property.”

The property here is dedicated to a public use which makes its sale in the foreseeable future highly improbable. There cannot, therefore, be a willing seller. A market value, realistically speaking, therefore does not exist. However, to conform to the requirements of Section 2, Article XII of the Constitution of Ohio that “land and improvements thereon shall be taxed by uniform rule according to value,” this public land must be viewed as though it were privately owned and used for private profit, subject to the usual vicissitudes and uncertainties as well as hopes inherent in a business of like tenor and similar location. This follows as a necessary corollary to the ruling of the Supreme Court in the case of City of Cleveland v. Board of Tax Appeals, supra. Only by so doing will it carry its share of the burden of taxation on an equal basis with private industry.

The court in its finding states, inter alia, “It is my opinion that no credible evidence was introduced in this case that would warrant this court in reversing the finding therein. ’ ’

The provisions of Section 5717.05, Revised Code (Section 5611-4, General Code), pertinent to this case, read:

“As an alternative to the appeal provided for in Section 5717.01 of the Revised Code, an appeal from the decision of a county board of revision may be taken directly to the Court of Common Pleas of the county by the person in whose name .the property is listed .or sought to be listed for taxation. * * *

i 6 ^ ^ ^

“ * * * said board shall certify to the court a transcript of the record of the proceedings of the said board pertaining to the original complaint and all evidence offered in connection therewith.

“The court may hear the appeal on the record and the evidence thus submitted, or it may hear and consider evidence in addition thereto. It shall determine the true value in money of the property whose valuation or assessment for taxation by the county board of revision is complained of * *

Under the plain language of this section, the Legislature clearly intended that the Common Pleas Court hear the entire matter anew on the evidence presented before the Board of Revision, and whatever additional evidence it may see fit to allow and that it then, by the exercise of independent judgment, “determine the true value in money of’the property.”

In our opinion, the trial court in this case was called upon to try the entire matter de novo, by weighing and evaluating all the evidence before it and arriving at its own valuation of the property based upon the evidence before it, rather than to be concerned with the question of whether evidence of a credible nature was introduced to warrant a reversal of the ruling of the Board of Revision, and by so doing committed error highly prejudicial to the substantial rights of the plaintiff. This must be so for the reason that Section 5717.01, Revised Code (Section 5610, General Code), dealing with a parallel and alternative appeal from the Board of Revision to the Board of Tax Appeals, uses the identical language with reference to the matter to be determined by said board, and the Supreme Court of Ohio in interpreting the language so used, in the case of Clark v. Glander, Tax Commr., 151 Ohio St., 229, 85 N. E. (2d), 291, paragraph one of the syllabus, said:

“In an appeal from an assessment based on an alleged erroneous valuation of intangible personal property by the Tax Commissioner, the Board of Tax Appeals is required to consider the entire evidence anew and arrive at its own valuation based on the evidence before it.”

We hold, therefore, that the court below erred in not considering all relevant factors bearing on the question of value before it and in failing to make its own determination of the “true value in money of the property whose valuation or assessment for taxation by the county board of revision is complained of. ’ ’

The judgment of the Common Pleas Court, accordingly, is reversed, and the cause is remanded for further proceedings according to law and in accordance with this opinion.

Judgment reversed.

Hurd, P. J., and Skeel, J., concur.