author: Griffith, J.

text:
    Gustafson et al., Appellants, v. Buckley et al., Appellees.

      (No. 512
    Decided January 16, 1953.)

      Mr. Arthur P. Gustafson, for appellants.

      Mr. William R. Van Ahen, for appellees.
   Griffith, J.

This is an appeal on questions of law from an order of the Court of Common Pleas of Lake County, granting the motion of the defendants, appellees herein, to quash service of summons.

The plaintiffs, appellants herein, filed their petition in the Common Pleas Court against the defendants who were and still are domiciled in Cuyahoga county. Neither of the defendants resides nor maintains a place of business in Lake county. Both were served in Cuyahoga county by the sheriff of Cuyahoga county.

The petition prays that a certain mechanic’s lien filed against the premises of the plaintiffs in Lake county be cancelled and discharged of record.

The question at issue is whether the trial court erred in granting the motion to quash service of summons. The land in question is located in Lake county. Section 11268, General Code, authorizes actions for the recovery of real property or an estate or interest therein to be brought in the county where the subject of the action is situated.

The plaintiffs contend that the Lake County Common Pleas Court has jurisdiction because such an action is within the scope of Section 11268, General Code, and, therefore, that it must be instituted in the county in which the land is located.

Section 11268, General Code, reads:

“Actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in the next two succeeding sections:

“1. For the recovery of real property, or of an estate or interest therein;

“2. For the partition of real property;

“3. For the foreclosure of a mortgage, or the enforcement of a lien or other incumbrance or charge on real property. ’ ’

They further contend that this is an action to quiet title. An action to quiet title under Section 11901, General Code, is a statutory action to determine adverse claims, while an action to remove a cloud on title is directed at instruments rather than at adverse claims asserted by individuals. Section 11901, Genera] Code, provides, among other things:

“An action may be brought # * against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein.”

The defendants do not claim an estate or interest. They claim a lien.

An action to quiet title is an action for determination of an interest in land. In McDonald v. Bayard Savings Bank, 123 Iowa, 413, 98 N. W., 1025, the court said:

“ ‘An interest’ in land is the legal concern of a person in the thing or property, or in the right to some of the benefits or uses from which the property is inseparable. ’ ’

A mechanic’s lien is not an “interest in land,” but is only a right to resort to the land to satisfy a debt. It is merely a security for the payment of a debt.

“The word ‘interest’ is used in this Restatement both generically to include varying aggregates of rights, privileges, powers and immunities and distributively to mean any one of them. ’ ’ 1 Restatement of the Law of Property, 8, Section 5.

“The word ‘owner,’ as it is used in this Restatement, means the person who has one or more interests.” 1 Restatement of the Law of Property, 25, Section 10.

A lien upon land is not an estate or “interest” in the land.

In Morrison v. Clarksburg Coal & Coke Co., 52 W. Va., 331, 43 S. E., 102, it is stated by Judge Pofifenbarger in a concurring opinion, at page 341:

“All the authorities hold that a lien upon land is not an estate or interest in the land. ‘A lien is not, strictly spealdng, either a jus in re or jus ad rem; that is, it is not a property in the thing itself, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing. ’ Story’s Eq. Jur. ss. 506, 1215; Brace v. Duchess of Marlborough, 2 P. Wms., 491; Ex Parte Knott, 11 Vesey, 617. ‘ “Lien” is a term of very large and comprehensive signification. In its widest sense it may be defined to be a hold or claim which one person has upon the property of another as a security for some debt or charge. But it never imports more than security; it confers no right of property. ’ 19 Am. & Eng. Ency. Law (2d Ed.), 6.”

Even a mortgagee holding the legal title is said to have, in equity, only a chattel interest. Morrison v. Clarksburg Coal & Coke Co., supra; 4 Kent’s Commentaries, 160; Clark v. Beach, 6 Conn., 142; Wilkins v. French, 20 Me., 111; Kinna v. Smith, 3 N. J. Eq., 14; Clift v. White, 12 N. Y., 519.

‘ ‘ A lien upon land is not an estate or interest in it. ’ ’ Brackett v. Gilmore, 15 Minn., 245, 251; Bidwell v. Webb, 10 Minn., 59, 62.

This action designated, “An action to quiet title,” is, in effect, a suit to contest the validity of a mechanic’s lien. It is not an action in equity to quiet title, but is an action to be tried by a jury. Denial of this right would be error.

A suit challenging the validity of a mechanic’s lien cannot take the place of a proceeding to quiet title under the statutes of Ohio.

The action to cancel the lien is incidental to the main issue, which issue is the validity of the debt and is a jury matter. If the lien is determined to be illegal, then the chancery court will accord relief. There is a dispute as to the validity of the lien.

In the case of Merchants’ Insurance Co. v. Frick, 5 Dec. Rep., 47, 2 Am. L. Rec., 336, decided by the Superior Court of Cincinnati in 1873, it is stated on page 49:

“It is said there was a mechanic’s lien for a small sum for repairs when the policy was renewed. If so, it was not a mortgage, nor did it amount to an interest of another than the insured in the property. A lien upon property creates no title to or in it.”

The question we have before us was directly decided in 1898 in the case of Wright v. Franklin Bank, 59 Ohio St., 80, 94, 51 N. E., 876, the court saying:

“Coming now to this case, it is clear that the paper signed by Mr. Toutsey was intended to create only a lien in favor of Mr. Wright, and not a trust. The paper cannot be construed to create both a lien and a trust, as they are the opposites of each other. In a trust the property is held for another, while in the case of a lien it is held by the holder for himself, but burdened with a charge, commonly called a lien, in favor of another. The law applicable to liens must therefore rule this case, and not the law applicable to trusts.”

The lien or claim is a mere assertion and depends for its validity on an account, which is the basis of the lien. In the case of Willis, Admr., v. Yount, 29 Ohio Law Abs., 331, the Court of Appeals of the Second Appellate District of Ohio, said:

‘ ‘ The concept of a lien or charge against real estate is inconsistent with any interest or ownership therein; a lien is an encumbrance upon, not an interest in, property. ’ ’

This is not, in fact, a suit to quiet title at all, but merely an action to cancel a mechanic’s lien. Section 8319, General Code, provides an adequate remedy at law for the plaintiff in this case, and, since a lien is not an estate or interest in land, the trial court did not err in granting defendants’ motion. A mechanic’s lien is a creature of statute. Its removal or cancellation Is provided for by statute.

For the reasons set forth, we feel that the trial court did not err in granting the motion to quash service of summons and its judgment, therefore, is affirmed.

Judgment affirmed.

Phillips, J., concurs.

Nichols, P. J., dissents.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    The Artists and Writers Assn., Appellant, v. The State of Ohio, Department of Liquor Control, Appellee.
    (No. 4911
    Decided November 9, 1953.)

      Mr. Bernard 8. Goldfarb, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. Ralph N. Mahaffey, for appellee.
   Miller, J.

This cause comes to this court on appeal from an order of the Court of Common Pleas of Franklin County, affirming the refusal of the Board of Liquor Control to reissue the liquor permit of the Artists and Writers Association for the year beginning June 24, 1951.

The record reveals that on June 24, 1950, the permit in question was issued to the appellant; that on July 7, 1950, due to the expiration of the appellant’s lease of the permit premises, the permit was placed in escrow with the Department of Liquor Control for a period of six months, which period was later renewed for' another six months, which extended the time of the escrow to July 7, 1951, if the permit were renewed upon expiration date, to wit, June 24, 1951; that on May 4, 1951, a request was made that the department return the permit then held in escrow; and that on May 28, 1951, an application to renew the permit was duly filed by the appellant.

The return of the permit was denied on June 6,1951, by the following order:

“This matter having been carefully considered by the Department of Liquor Control upon the application for return of D-4 Permit to Artists and Writers Association, the application is refused and rejected upon the basis of the department’s findings hereinafter set forth:

“ ‘The department finds that the proposed permit premises is an ordinary hotel room * * *, and does not constitute a proper location within the interpretation of the Board of Liquor Control of the provisions of the Liquor Control Act of the State of Ohio.

“ ‘It is further pointed out that said room had no equipment pertaining to those required by a D-4 Permit, said equipment being one davenport, two desks, several chairs, one air conditioning unit, several file cabinets and one adjoining bathroom, and is not equipped in accordance with the requirement of Regulation No. 28, Section IV, as promulgated by the Board of Liquor Control.

“ ‘Accordingly, application for return of D-4 permit No. 16938 is hereby refused and rejected.’ ”

On the same day, an order was made by the department refusing the reissuance of the permit, and reads as follows:

“This matter having been carefully considered by the Department of Liquor Control upon the application, report of investigation and allied documents, the application is refused and rejected upon the basis of the department’s findings hereinafter set forth:

“The department finds that on July 6, 1950, the Artists and Writers Association requested that the Department of Liquor Control hold their permit in escrow until such time as they relocate club rooms. Pursuant to this request, the department did, on July 7, 1950, place the permit in departmental safekeeping.

í Í * * *

“On May 4, 1951, the Artists and Writers Association requested that the permit be returned to the association, informing the department that the association for some time has maintained its offices and club rooms at 361 Hollenden Hotel, East Sixth and Superior avenue, Cleveland, Ohio, and that they desire the permit to be returned to the association for use by the association at the above mentioned address. Pursuant to this request, the Department of Liquor Control conducted an inspection to determine whether the premises qualify for a D-4 permit. The department found that the premises do not meet the requirements of the Board of Liquor Control regulations and rejected the request. The proposed permit premise is an ordinary hotel room 16 feet wide and 20 feet long and has in it 1 davenport; 2 desks; several chairs; 1 air conditioning unit; several file cabinets and an adjoining bath room.

“Regulation No. 16 reads in part, ‘At the expiration of the six months period, or the extension thereof, if such permit holder does not have premises in which to conduct his business, the permit shall be cancelled without refund.’

“Therefore, application No. E98114 is hereby refused and rejected. Refund check for the fee accompanying said application will be forthcoming.”

Upon appeal being taken to the Board of Liquor Control, a hearing was had on March 20, 1952, at which time evidence was received and testimony taken on behalf of the department and the appellant. On consideration of this evidence the following order was made :

‘ ‘ This cause came on to be heard on the motion of the Attorney G-eneral, counsel for the Director of the Department of Liquor Control, made at the conclusion of the introduction of all the evidence, for dismissal thereof for the reason that same is now moot, and the Board of Liquor Control being fully advised in the premises finds from the evidence that the within cause is moot and that the motion of counsel for the Director of the Department of Liquor Control with respect thereto is well taken, for the following reasons, to wit:

“ (1) That said D-4 permit was by operation of law and the regulations of the Board of Liquor Control cancelled on January 7, 1951, and was without force and effect on and after that date.

“(2) That since January 7, 1951, to the present date, said appellant failed to find a new location and failed to rehabilitate its former permit premises in accordance with the regulations of the Board of Liquor Control, and that by reason thereof said permit was, in any event, by operation of law and the regulations of the Board of Liquor Control cancelled on July 7, 1951.

“It is therefore ordered that the within appeal be, and the same hereby is, dismissed.”

Upon appeal to the Common Pleas Court, the judgment was affirmed for the second reason assigned, but the court held that the board erred in sustaining the motion to dismiss upon the first ground.

The appellant urges that “the Common Pleas Court and the Board of Liquor Control erred in sustaining the department contrary to law, since a permit does not expire by ‘operation of law’ when, during the life of a permit and prior to the expiration of an escrow period during which the permit holder could obtain premises, an application for renewal is seasonably-made which the department rejects and an appeal is taken and a hearing is held before the board after the escrow period expires.” It is the contention of counsel that the time of the hearing is not controlling as to the making of the question “moot,” as was held by the board in sustaining the appellee’s motion to dismiss. It should be noted that the Common Pleas Court found the permit was not cancelled by operation of law on January 7, 1951. If it was not so cancelled, then it was in full force and effect until its expiration on June 24, 1951. The order of the Common Pleas Court is final on this question since the appellee has no right of appeal from the same and none was attempted. Prior to said expiration date, the appellant seasonably filed its application for a renewal, to wit, on May 28, 1951. We are of the opinion that the appellant pursued the proper procedural steps to obtain the renewal permit and that it became the duty of the board to pass upon the correctness of the department’s ruling instead of dismissing the proceeding for the reason that the question presented had become “moot.”

A question becomes “moot” only when it is purely academic or abstract and any judgment which might be rendered thereon would in no way avail or be beneficial to any of the parties. 2 Ohio Jurisprudence, 889, Section 497. . The rights of the appellant became fixed as of the date of the filing of the application and had it been favorably acted upon the appellant would have had from June 24, 1951, to July 7, 1951, in which to take steps to preserve the same by either obtaining a suitable location or applying for an extension of the escrow agreement. We have been cited no cases bearing on this question in this state, but a similar one arose in Burke v. Coleman, 356 Mo., 594, 202 S. W. (2d), 809. In that case, the court said on pages 596 and 597:

“The license was issued on the 1st day of July, 1945, and since it expired on June 30, 1946, it has been suggested that the case has become moot and should therefore be dismissed. * * * Especially in the case of ‘ short term’ administrative orders (such as the suspension of a license) the inflexible application of the doctrine of moot case would defeat the right of"judicial review, a right now contemplated by the Constitution and the Liquor Control Act. # * * In some instances the application of the doctrine would defeat the purpose of the law. As was aptly said in a case under the act, ‘We think that it is not a moot case, for the reason that these parties have a right to a final determination of their rights.’ * * * Then, there is the question of the licensee’s right to future licenses and the just effect of previous administrative rulings upon his future applications. * * # Finally, but not least important, is the public interest in the fair and proper administration of the liquor laws. * * * In view of all these considerations the present appeal does not present a moot case. ”

A similar position has also been taken by our federal courts in a case wherein a renewal license was sought from the Radio Commission. In Technical Radio Laboratory v. Federal Radio Commission, 36 F. (2d), 111, it was held that the time of the hearing is not controlling as to the making of the question a “moot” one. The court said, at page 113:

“It is argued on behalf of the commission that this appeal presents a moot question because of the fact that the commission may not issue a license for a longer period than three months, and that, if the commission had issued the renewal license which appellant applied for, such license would long since have expired according to its own terms. It is argued that, since the period for which the license might have been issued has expired, this appeal has become moot, and should be dismissed. We do not agree with this contention. Such an interpretation of the act would practically nullify the right of appeal granted by Congress in such cases, for it is rarely possible for a station to secure a decision upon such an appeal within three months after the right of appeal accrues. This fact was of course well known to Congress when the statute was enacted. Moreover the relief sought by an applicant for renewal is not limited ’to the issue of a license for three months only, but includes a continuing right to apply thereafter at proper times for successive renewals thereof. The statutory appeal accordingly contemplates the restoration to the appellant, if his claim be sustained, of the continuing right to make such application to the commission as he would have enjoyed had his application first been allowed.”

It is our conclusion that the Common Pleas Court erred in affirming the order of the Board of Liquor Control pronounced on March 20, 1952, sustaining the appellee’s motion to dismiss for the reason that the question presented had become “moot.”

The judgment is, therefore, reversed, and cause is remanded to the Board of Liquor Control for further consideration.

Judgment reversed.

Wiseman, P. J., and Hornbeck, J., concur.


author: Hornbeck, J.

text:
    Hart, d. b. a. Green Acres, Appellant, v. Board of Liquor Control, Appellee.
    (No. 4919
    Decided October 16, 1953.)

      Messrs. DiSalle, Green & Haddad, for appellant.

      Mr. C. William O’Neill, attorney general, Mr. Robert B. Rady and Mr. Kiehner Johnson, for appellee.
   Hornbeck, J.

This is an appeal on questions of law from an order of the Common Pleas Court affirming an order of the Board of Liquor Control after the court dismissed the appeal on the ground that it was not perfected as provided by the fourth paragraph of Section 154-73, General Code, in that the notice of appeal was not filed within 15 days after the mailing of the notice of the agency’s order.

The order appealed from was a suspension for 30 days of the class D-l and D-2 permits of appellant.

The chronology of the proceedings here under review is as follows:

The Board of Liquor Control on September 15, 1952, made its order affirming an order of the Department of Liquor Control holding adversely to the appellant on a citation against her. Notice of this order was mailed to the appellant on September 19,1952. On September 24, 1952, within the time provided by Regulation 65 of the Board of Liquor Control, appellant filed an application for rehearing with the Board of Liquor Control. The board acted adversely to the appellant on the application for rehearing on Septembr 30, 1952, and notice of such decision was mailed to the appellant on or about October 2, 1952. On October 8, 1952, appellant filed notice of appeal with the Board of Liquor Control.

The errors assigned are numbered one to five, but are fully encompassed in the fifth, namely:

“Does the filing of a timely application for rehearing, in accordance with the provisions of Regulation No. 65 of the Board of Liquor Control, amount to a waiver of the right to appeal to the Court of Common Pleas if the Board of Liquor Control does not pass upon such application in sufficient time to permit the filing of an appeal within fifteen days of its original decision ? ”

It is the claim of the appellant that the time within which the notice of appeal shall be filed with the Board of Liquor Control begins as of the date of the order denying appellant’s application f'or rehearing. It is the claim of the board that the order appealed from is the action of the board on appellant’s appeal and that the notice of appeal must be given within 15 days after the mailing of notice of this order to appellant.

We have been favored with exceptionally complete and comprehensive briefs particularly on the part of appellant. We believe that it would serve no good purpose to pursue all the contentions in appellant’s brief and will content ourselves by briefly discussing what wo deem to be the controlling factors.

It must be conceded that .the final order sought to be appealed from here was the action of the Board of Liquor Control on appellant’s appeal from the order of the department. There is no provision in the regulations of the board or by statute which recognizes an appeal from the overruling of an application for rehearing.

Section 12223-3, General Code, provides in part:

“Every final order, judgment or decree of a court and, when provided by law, the final order of any administrative officer, tribunal, or commission may be reviewed as hereinafter provided, unless otherwise provided by law * *

Section 154-73, General Code, a part of the Administrative Procedure Act, contains subject matter as to review which may be characterized as “otherwise provided by law.” This section is specific in its provision that the notice of appeal shall be filed within 15 days after the mailing of the notice of the agency’s order. This requirement admittedly was not met by appellant, but it is contended that the board by section 9 of Regulation 65 has made provision for a rehearing, application for which may be filed with the board within 30 days after the order to which the application is directed. There is no specific language in the rule directed to the tolling of the mandatory time within which the notice of appeal must be filed under Section 154-73, General Code, but it is contended by appellant that the rule of the board has the effect of law and, by implication, grants an extension of the time fixed by Section 154-73, General Code, for the filing of the notice of appeal.

In support of this provision is cited Kroger Grocery & Baking Co. v. Glander, Tax Commr., 149 Ohio St., 120, 77 N. E. (2d), 921, and a quotation is taken from page 125 of the opinion:

“This rule [a rule of the Tax Commissioner], like those of other administrative agencies, issued pursuant to statutory authority, has the force and effect of law unless it is unreasonable or is in clear conflict with statutory enactment governing the same subject matter. ’ ’

If all this sentence is read, consideration must be given to that part which excepts the effect of a rule of an administrative agency which is in clear conflict with statutory enactment concerning the same subject matter.

As we have said, the regulation under consideration makes no mention whatever of the time within which notice of appeal from an order of the board shall be filed. However, assuming that such effect may be read into the rule, the Supreme Court in the cited case has held that it would not be effective because it would be in clear conflict with a statutory enactment on the same subject matter.

It is urged that the Liquor Control Act should be liberally construed. That is true where there is any basis for doubt as to its application. However, statutes fixing the time within which certain procedural steps shall be taken have been without exception strictly construed. Manifestly so, because there is no basis for varying a specific time provision of a statute.

Section 11564, General Code, requires the filing of a bill of exceptions in the trial court within 40 days after the overruling of a motion for new trial. The Supreme Court in Tenesy v. City of Cleveland, 133 Ohio St., 251, 13 N. E. (2d), 122, held that literal compliance with the provisions of this statute must be observed and that if this is not done, the reviewing court has no authority to consider the contents of such bill. Similar provisions in the earlier statutes have been uniformly interpreted in the same manner.

This court, within the month, has held that the provision of Section 13445-1, General Code, providing the time within which a bill of exceptions in appeals in criminal cases shall be filed and fixing that time as 30 days after judgment and sentence is mandatory. State v. Potts (unreported), No. 186, Madison county.

We recognize that there is merit in the contention of appellant that the procedure which a party must follow to perfect an appeal from the Board of Liquor Control and to present an application for rehearing at the same time is somewhat burdensome and, perhaps, should be corrected by legislation. The difficulty could be obviated if the board would hold up the formal order from which the appeal is to be perfected until after it had been determined whether an application for rehearing will be filed, and if filed, until it had acted upon it. This relief, of course, is not within the cognizance of courts.

The judgment is affirmed.

Judgment affirmed.

Wiseman, P. J., and Miller, J., concur.


author: Matthews, P. J.

text:
    Floyd & Company, Inc., Appellant, v. The Cincinnati Gas & Electric Co., Appellee.
    (No. 7816
    Decided February 8, 1954.)

      Messrs. Gorman, Silversteen é Davis, Messrs. Cors, Scherer, Hair & Hartsock and Messrs. Ragland, Dixon & Murphy, for appellant.

      Messrs. Peck, Shaffer d> Williams, for appellee.
   Matthews, P. J.

The Court of Common Pleas sustained the defendant’s demurrer to the plaintiff’s amended petition and, the plaintiff not desiring to plead further, judgment was rendered for the defendant. It is from that judgment that this appeal is taken.

While the defendant states four grounds for demurrer to the amended petition, two of which are that the plaintiff does not have legal capacity to sue, and that the amended petition does not state a cause of action, we find it unnecessary to consider whether the plaintiff under any conceivable circumstances might have capacity to sue or whether the amended petition considered abstractly states a cause of action. As we view it, the one question is whether the amended petition states a cause of action in favor of the plaintiff. We shall examine it to determine that question.

The plaintiff, Floyd & Company, Inc., during the period alleged in the petition, was located in Cincinnati, Ohio, where it was engaged in the business of selling, installing, and servicing gas and electric appliances and space heating equipment.

The defendant, The Cincinnati Gas & Electric Company, during that period, had its principal place of business in Cincinnati, Ohio, and was engaged as a public utility in supplying to customers electricity, for light, heat and power, and natural and other gas for power and heating purposes, including space heating. As such public utility, the defendant was subject to the statutes regulating public utilities, and also the lawful orders of the Public Utilities Commission of Ohio, and was bound, both by the common law (43 American Jurisprudence, 599 et seq.), and under Ohio statutes (Sections 4905.22 and 4905.35, Revised Code) to furnish a reasonably adequate supply of gas, without unreasonable preference or advantage to any one, qualified, however, by its duty to conform to the statutes and directives issued in conformance therewith. It was not required to act with the same effectiveness and impartiality in its other relations.

This action is based on the plaintiff’s allegation that defendant violated Section 614-68, General Code (Section 4905.61, Revised Code), in wilfully refusing and failing to observe certain orders of the Public Utilities Commission'of Ohio, to its injury.

The plaintiff alleged that commencing in 1947 and extending to and including 1950, the Public Utilities Commission of Ohio issued seven “emergency gas orders” applicable to the defendant and other public utilities furnishing gas to consumers in Ohio. All these orders recited that after hearings, of which due notice had been given the Public Utilities Commission found that the unprecented demand for gas and the inability of the utilities to satisfy the demand had created an emergency affecting the health, safety and welfare of the people of the state, and that to meet the emergency it was essential that restrictions, operating uniformly throughout the state of Ohio and applicable to all gas distributing utilities dependent in whole or in part upon supplies of gas from others, should be imposed. It was, therefore, ordered that ail orders, rules, and regulations theretofore issued by it should be modified in the following respects:

(1) No distributing utility should supply natural gas service to any consumer for equipment designed to furnish the source of space heating that replaces other fuel or for additional space heating equipment.

(2) Limited the class of new buildings and additions to existing buildings to heat which gas could be furnished.

(3) Authorized replacement of old gas appliances by new, provided the capacity was not increased.

(4) Required the public utility to direct in writing ineligible users of gas to discontinue, and, upon failure to comply within 10 days, required the utility to discontinue furnishing any gas to such person until such user complied and the ineligible equipment was removed. As the plaintiff seems to found its claim upon violations of this order, we quote it verbatim:

“Whenever evidence available to the utility reasonably indicates that any consumer has connected gas fired space heating equipment which is not under these rules eligible for service from the utility’s gas service lines, the utility shall forthwith in writing direct such consumer to disconnect such equipment and discontinue the use of such service, and if such consumer shall fail or refuse to do so within ten (10) days, the utility shall discontinue the entire supply of natura»! gas to such consumer and shall withhold such supply until such gas fired space heating equipment has been disconnected. To insure against reconnection of such space heating equipment the utility, before re-establishing service to such consumer, shall take such measures as may be deemed practicable and necessary to restrict the flow of gas to quantities required for other than space heating purposes.”

(5) Required utilities to curtail natural gas service to industrial consumers to the extent necessary to insure continuous flow of gas to domestic consumers.

(6) Required that no action taken by any utility in compliance with the foregoing rules should be deemed to constitute unjust discrimination or a violation of any other order, rule, schedule, or regulation of the Public Utilities Commission, or of said utility.

By an order of April 1, 1948, the Public Utilities Commission provided, among other things:

“No distributing utility shall be required to furnish or supply natural gas to any new or prospective consumer for space heating until such consumer shall have first made written application to and have obtained from such utility written consent and authorization for such use.”

By an order of September 6, 1949, the Public Utilities Commission directed that:

“No natural gas company shall be required to supply gas for space heating equipment installed from and after the effective date of this order unless the consumer, present or prospective, or his agent, notifies the company of his intention to utilize such equipment and receives approval therefor.”

All these orders were attached to and made a part of the amended petition. They contained many rules and regulations, but we believe the foregoing recitals are sufficient to determine whether the amended petition states a cause of action against the defendant in favor of the plaintiff.

The plaintiff alleged that immediately upon the issuance of such orders and from time to time thereafter, the defendant notified it that gas would be refused to any prospective consumer for space heating unless and until a written permit was first obtained by the consumer prior to the installation of space heating equipment, and if any installations were made without a permit being first obtained, that the defendant would cease to supply gas to such consumer.

The plaintiff alleged also that it had at all times complied with the order and refused to install gas equipment except when its customer had complied, but that the defendant “wilfully failed, refused and neglected to comply with and enforce the mandatory orders of the Public Utilities Commission, in‘that it, with full knowledge, allowed and permitted the installation of 9,000 space heating equipments or appliances in 1948, 15,000 in 1949, and 8,000 in 1950, without written permits first obtained, and has wilfully refused and neglected to direct such consumers to discontinue such heating appliances, and has failed and refused to discontinue furnishing gas to them. ’ ’

The plaintiff charged that the defendant by acting as aforesaid has discriminated against it and thereby caused it to lose customers and business, in that had the defendant complied with the orders and discontinued the supply of gas to such customers, the gas furnished them would have been available for lawful and authorized uses and that it “would have installed 693 additional space heating equipment units” at a profit of $58,828.77 in 1948, 690 in 1949 at a profit of $84.89 on each installation, and would have installed or been able to install 1,395 additional heating units at a like profit, and that during 1950 it would have been able to install 328 additional heating units at a like profit, but was prevented by the aforesaid conduct of the defendant. The plaintiff alleged that its total loss of profits was $205,773.36, and it prayed judgment for treble that amount under the provisions of Section 614-68, General Code (Section 4905.61, Revised Code).

By that section, it is provided:

“If any public utility or railroad does, or causes to be done, any act, matter, or thing prohibited by this act, or declared to be unlawful, or shall omit to do any act, matter or thing required by this act, or by order of the commission, such public utility or railroad shall be liable to the person, firm or corporation injured thereby in treble the amount of damages sustained in consequence of such violation, failure or omission; provided, that any recovery under this section shall in no manner affect a recovery by the state for any penalty provided for in this act. ’ ’

It will be observed that the plaintiff has not alleged that any of its customers had applied to the defendant for gas and been refused. There is no allegation that any applicant for gas was denied a supply for any reason. Nor is it alleged unequivocally that the plaintiff would have installed any heating units but for the action of the defendant. The allegation is that the plaintiff “would have installed or been able to install.” It would seem that a fair construction of these allegations is that plaintiff had the capacity or facilities to install more heating units than it had orders for, and that it attributed its lack of orders to the fact that competitors were able to secure the orders or contracts because defendant was willing to furnish gas to their heating units without requiring prior written application therefor. It is not alleged that the plaintiff had binding contracts which defendant’s conduct prevented from being performed.

There is no allegation that the defendant exhausted its supply of gas by reason of furnishing gas to those consumers who did not apply in writing in advance and obtain a permit. It is true that the plaintiff’s amended petition contains the allegation that it would have been able to install heating units had the defendant not furnished gas to unauthorized consumers, but we do not construe that to mean that its supply of gas was exhausted. Furthermore, before- any person coming within the class of the public to whom the defendant owed the duty to supply gas could complain of a failure on defendant’s part to supply gas, it was incumbent on him to apply in writing to it for a permit before installing or enlarging gas consuming appliances, and whether a permit should issue was dependent on the defendant’s decision, made in good faith, as to whether the supply of gas would justify the increased use. Unless and until a prospective customer so qualified and the defendant had so found, or acted in bad faith in not so finding, the applicant would be in no position to assert a cause of action against the defendant. And, for stronger reasons, a disappointed dealer in heating units, deprived of an anticipated sale, thereby, would have no cause of action. The defendant as a public utility owed no duty to the plaintiff as a dealer in heating appliances. The defendant was under no obligation to promote the plaintiff’s business. In relation to the public other than in the furnishing of gas and electricity the defendant acted in its private capacity governed by the same rules that were applicable to private corporations, subject only to the limitation that it could not in any way deprive itself of its ability to perform its public duty by any action it might take in its private capacity.

In 43 American Jurisprudence, 571 et seq., on the subject of this dual capacity of public utilities, it is said:

“The term [public utility service] precludes the idea of service which is private in its nature and is not to be -obtained by the public, although a public utility may perform acts in its private, as distinguished from its public, capacity, in which case it is subject to the same rules as any other private person so acting. ” (Emphasis ours.)

It is stated in 73 Corpus Juris Secundum, 1003:

“The fact that a business or enterpise is, generally speaking, a public utility does not make every service performed or rendered by it a public service, with the consequent duties and burdens, but it may act in a private capacity as distinguished from its public capacity, and in so doing is subject to the same rules as a private person.”

We are convinced, therefore, that this case cannot be classified as a case in which a public utility failed to perform its public duty, resulting in damages to one to whom such public duty was owing.

Counsel assert that various cases under similar circumstances have sanctioned recoveries against public utilities. An examination of those cases discloses that all of them fall within the category of cases construing statutes regulating different types of business and creating commissions with power to implement the law by .promulgating rules and regulations, and making violations criminal and creating a civil liability in favor of persons injured by violations. They are cases involving The Sherman Anti-Trust Act, the Clayton Act, and the Securities and Exchange and Price Stabilization Acts. The questions in those cases were whether the acts charged were violations of the statutes and whether the plaintiffs had been injured as a direct result of such unlawful acts so as to create a liability in accordance with the general rules of the law of torts.

None of the cases cited involved a public utility bound to furnish a service or commodity against which the charge was made of a failure to perform causing damage to a nonuser of the service or commodity. It seems to us that the most that can be said is that those cases are of some value as examples of statutory interpretation. They are not in the same category as the case at bar. They are not actions against a public utility supplying services and commodities in that relation.

However, Kardon v. National Gypsum Co., 69 F. Supp., 512, does set forth a clear statement (plaintiff’s counsel characterizes it as “probably the best statement”) of the test for determining liability resulting from the violation of a statute. It is a case in which two stockholders alleged that they had been induced by deceit and fraud to dispose of their stock in two corporations subject to the Security and Exchange Act. A conspiracy to defraud was alleged against the defendants. The fraud consisted in representing that no negotiations for the sale of the assets of the corporation were pending, whereas, such negotiations were pending, and in pursuance of which the assets were sold later to the defendant, National Gypsum Company. None of the defendants had been served within the district. The action came before the court upon defendants ’ motions to dismiss, because none of defendants had been served within the district, and, also, on the ground that no cause of action was stated. The action was based on the breach of Section 10 of'the Security and Exchange Act, in which event the question presented was whether that act either expressly or impliedly authorized a civil action; or whether the action was based on the general principle of the law of torts relating to conspiracies to defraud. The court found that the purpose of the act could be fulfilled only by implying that a civil action was contemplated and that, therefore, the statute authorized it. The court also stated that on general principles the violation of statutes under the circumstances created a civil liability, even though the statutes could not be said to either expressly or impliedly provide therefor. At page 513, the court quoted with approval the following from 2 Restatement of the Law of Torts, 752, Section 286:

“ ‘The violation of a legislative enactment by doing a prohibited act, or by failing to do a required act, makes the actor liable for an invasion of an interest of another if; (a) the intent of the enactment is exclusively or in part to protect an interest of the other as an individual; and (b) the interest invaded is one which the enactment is intended to protect.’ ”

And, at page 514, the court said:

“Were the whole question one of statutory interpretation it might be convincing, but the question is only partly such. It is whether an intention can be implied to deny a remedy and to wipe out a liability which, normally, by virtue of basic principles of tort law accompanies the doing of the prohibited act. Where, as here, the whole statute discloses a broad purpose to regulate securities transactions of all kinds and, as a part of such regulation, the specific section in question provides for the elimination of ail manipulative or deceptive methods in such transactions, the construction contended for by the defendants may not be adopted. In other words, in view of the general purpose of the Act, the mere omission of an express provision for civil liability is not sufficient to negative what the general law implies. ’ ’

Tested by the rule quoted from the Restatement of the Law of Torts, does this amended petition state a cause of action?

Was it the intent of the Legislature in enacting Section 614-68, General Code, to protect the plaintiff as an individual, regardless of whether he was a consumer of gas? It seems to us that this question must be answered in the negative. We think the sole purpose of the statute was to regulate public utilities in discharging the obligation they had assumed to consumers of gas. Unlike the Securities and Exchange Act and other acts of Congress involved in the cases relied on by the plaintiff, Section 614-68, General Code, does not provide a remedy for the violation of duties theretofore imperfect and made perfect and enforceable by statute. The duties assumed by the defendant attached only in favor of those who used or sought to use its service or commodity. Its assumption of duty was not to the plaintiff as an individual, but only as a customer, desiring its service as' a utility furnishing gas.

Was the interest which is alleged to have been invaded, one which the enactment was intended to protect? The plaintiff alleged that its prospective business with third persons was interfered with and curtailed by the failure of the defendant to perform the duty it owed to supply gas to such prospective customers. Was the plaintiff’s hope of profit from its business as a dealer in gas appliances an interest within the contemplation of the Legislature when it enacted Section 614-68, General Code, or the rules promulgated by the Public Utilities Commission? It seems to us that the only interest contemplated was that which might result from the consumption of gas. Gas was the subject matter. That was what the defendant had bound itself to endeavor with reasonable diligence to supply. The rules or orders were promulgated to regulate and conserve gas so as to enhance the ability of the defendant to supply it in such a way as to promote the public welfare to the greatest possible extent.

A public utility, by dedicating its property to a specific public use, consents to all regulations having a reasonable tendency to promote the object of the dedication. It does not consent by so doing to the imposition thereafter of rules and liabilities having no relation to the purpose of the dedication. That a public utility may own property that is neither used nor useful in the performance of its public duty is recognized in Section 499-9, General Code. As to such property and its relation thereto, the utility is entitled to that due process and equal protection of the law that governs all persons having no special relation to' government.

We fail to see in what way the imposing of liability upon the defendant in favor of a gas appliance dealer would insure, improve, or facilitate the performance of its duty to furnish gas. To construe Section 614-68, General Code, as imposing a liability for damages to the appliance business would be to declare that it was the appliance business that the Legislature intended to regulate and protect. We doubt the constitutionality of the section if given such a meaning. For the same reason, we are of the opinion that the Legislature did not intend to confer on the Public Utilities Commission the power to promulgate rules that would have the effect of imposing liability under such circumstances.

On this subject, it is said in 73 Corpus Juris Secundum, 1005-6:

“The power to regulate is not the power to destroy useful and harmless enterprise, but is the power to protect, foster, promote, preserve, and control with due regard for the interests of the utility, its patrons, and the public. Accordingly, a utility may be controlled in the use of its property only as far as may be necessary to secure the proper discharge of the duties which it owes to individuals or to the public. * * * The exercise of its power by the state is further limited, of course, by the state and federal Constitutions, in contravention of which no regulation may be made; and the Legislature may not, under the pretense of regulation, deprive a utility of .any of its essential rights and privileges, but all regulations must be in fact within the police power. Any regulation, therefore, which operates as a confiscation of private property or constitutes an arbitrary or unreasonable infringement of personal or property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of the laws.”

It is said in 73 Corpus Juris Secundum, 1006:

“Generally speaking, every point of contact between the public and a utility which relates to the performance by the latter of its public duties is subject to regulation by the state.”

The converse of that is equally clear, that the fact a particular public service is assumed is no waiver of constitutional protection against unreasonable and discriminating action in matters unrelated to the performance of the public duty.

It seems to us that 2 Restatement of the Law of Torts, 752, Section 286, state's a rule of general application that has been applied and partially expressed in many decisions. In Trustees of De Pauw Memorial Methodist Episcopal Church v. New Albany Water Works, 193 Ind., 368, 140 N. E., 540, 27 A. L. R., 1274, it was said that for a plaintiff to recover against a defendant for violation of a statute imposing liability in favor of a person “injured” by its violation, it was essential to prove that the violation was “an actionable wrong” against the plaintiff and that unless there was a prior duty owing to the plaintiff no legal wrong was inflicted upon him by the violation of the statute. In other cases recovery was denied because the damage to the plaintiff was held to be too remote. But, however expressed, the plaintiff failed because it was found that there was no express or implied legislative intent to impose liability under the general principles governing liability in tort.

We, therefore, conclude that, as the intent of the enactment (Section 614-68, General Code) was neither to protect the plaintiff as an individual nor the business in which it was engaged, there can be no liability in tort based on its violation.

Defendant’s counsel expressly disclaims any assertion of contractual liability and have very properly limited the inquiry to a determination of whether there is any basis for a liability in the law of torts. The inquiry has extended over a wide range in the elaborate briefs that have been filed. In reaching our conclusion, we have considered these briefs and the many authorities cited and commented upon in them. To analyze those authorities would extend this opinion unduly and no good purpose would be served by so doing.

In conclusion, we mention that we have considered the possibility of liability in tort based on interference of contract relation between the plaintiff and its customers, to which the rule stated in 4 Restatement of the Law of Torts, 49, Section 766, could apply. See, also, 30 American Jurisprudence, 70 et seq. The inapplicability of this principle results from the fact that there is no allegation of any contract between the plaintiff and a customer that was interfered with by the defendant, or that any customer was prevented from entering into a contract with the plaintiff.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


author: Doyle, P. J.

text:
    Village of Avon, Appellee, v. Popa, Appellant.
    (No. 1295
    Decided November 11, 1953.)

      Mr. A. E. West, village solicitor, for appellee.

      Mr. Joseph Q. Petro, for appellant.
   Doyle, P. J.

Chester Popa was convicted in the Mayor’s Court of Avon, Ohio, of violating a penal zoning ordinance. It was charged by affidavit “that * * * [he] established [a] business enterprise by opening a sand pit and disposed dirt and other substance from his property for profit.” It is asserted that the defendant violated the ordinance through conduct of a business in a residence zone.

An appeal of the judgment of conviction to the Common Pleas Court of Lorain County was dismissed by that court “upon the grounds that the voluntary payment of the fine waives the right to secure a review. ” Appeal has been perfected to this court from the judgment of dismissal in the Court of Common Pleas, and we are now asked to review the propriety of the court’s ruling in dismissing the appeal.

The Mayor’s Court docket shows the following:

January 17, 1953: Affidavit filed in the Mayor’s Court setting forth facts claimed to constitute a violation of a municipal penal ordinance. Trial hearing set.

January 26, 1953, and subsequent dates: Indicating a trial in which the testimony of witnesses was received.

February 11, 1953: Defendant found guilty and fined fifty dollars and costs.

February 18, 1953: Motion for a new trial filed; motion for leave to file bill of exceptions filed; notice of appeal and a motion for stay of execution of sentence filed.

February 23, 1953: The defendant paid the fine and costs. The record, at the time of payment, shows no disposition of (1) the motion for a new trial, nor (2) the motion for stay of execution.

March 9,1953: Motion for a new trial overruled and leave given defendant to file bill of exceptions.

In the transcript of docket and journal entries in the Court of Common Pleas appears the following:

April 9, 1953: Transcript of docket from the court of Mayor James B. Adams of Avon, Ohio, filed; motion for leave to appeal filed; notice of appeal filed; assignment of errors and brief of defendant-appellant filed; defendant’s bill of exceptions filed.

April 17, 1953: Brief of appellee filed.

May 14, 1953: Amended transcript filed.

May 15, 1953: Motion of defendant for leave to appeal granted. Exceptions.

April term, 1953: “* * * 5/26/53, Jr. 135, page 200, to wit: ‘This day this cause coming on for hearing on an appeal from the Mayor’s Court of the Village of Avon, Ohio, and the Court, in consideration thereof, dismisses the appeal on the defendant’s costs, for which judgment is rendered herein, upon the grounds that the voluntary payment of the fine waives the right to secure a review. To which ruling the defendant excepts. No record.”

It appears probable that the Court of Common Pleas, in its judgment of dismissal, adopted the view of the author of “Appellate Review” in 2 Ohio Jurisprudence, Revised, and the language of Judge Matthews in Village of Addyston v. Liddle, 54 Ohio App., 323, 6 N. E. (2d), 877. Section 128 of said “Appellate Review” speaks as follows:

t l # # *

“The question has been raised as to whether one who has been sentenced to pay a fine waives his right to review by making such payment. The Ohio authority [Village of Addyston v. Liddle, supra] indicates that a voluntary payment of a fine is a waiver of the right to secure a review, and that this is in accord with the great weight of authority. * # *”

It cannot be disputed but that the weight of authority in the jurisdictions where the question has arisen, supports the Ohio case noted above, and especially where payments have been voluntarily made. Various reasons are given by the courts, most of which may be found in the cases cited in the annotation “Payment of fine, serving sentence, or discharge on habeas corpus, as waiver of right to review conviction” in 18 A. L. R., 867, and 74 A. L. R., 638.

The members of this court, while recognizing the fact that the court which decided Village of Addyston v. Liddle, supra, followed the general rule, are of the opinion that justice requires, under factual situations of the kind now before us, the law to be otherwise than that pronounced in the majority of jurisdictions. No statute in this state, in terms, precludes an appeal from a final order of conviction of a criminal offense in which an imposed penalty has been satisfied, whether voluntarily or involuntarily. It is well settled that a trial following the granting of a motion for a new. trial, pursuant to conviction, or the reversal of a judgment of conviction by an appellate court and a remand for a new trial, does not conflict with the constitutional rule of double jeopardy. Certainly an erroneous judgment of conviction of a criminal offense against a man is an injury per se, “from which the law will intend he is or will be damnified by its continuing against him unreversed.” Barthelemy v. People, 15 N. Y. Com. L., 348, at p. 350, 2 Hill, 248, at p. 255. Holmes, J., in Commonwealth v. Fleckner, 167 Mass., 13, 44 N. E., 1053, spoke as follows:

“We should be slow to suppose that the Legislature meant to take away the right to undo the disgrace and legal discredit of a conviction, * * * merely because a wrongly convicted person has paid his fine or served his term. ’ ’

We are in complete accord with the Ohio cases which, in effect, hold that, where payment was made under protest, and for the purpose of preventing the foreclosure of a mortgage given to indemnify the clerk against loss from suspending the collection of the fine until after the next term of the appellate court, at which it was mistakenly supposed that the case would be heard and determined on error, the right to maintain an appeal was not cut off through waiver; and that where a judgment of conviction, which is invalid because the indictment, which was wholly insufficient and failed to charge any crime, could be appealed, even though the fine and costs were paid, because such payment would of necessity be involuntary, as made under duress to prevent imprisonment. John son v. State, 4 C. C., 524, 2 C. D., 687; Hogue v. State, 3 C. C. (N. S.), 315, 13 C. D., 567.

While we might base our decision in the instant case on the ground that the fine was involuntarily paid because there had been no suspension of the execution of the sentence, and therefore the defendant was liable to damage, pursuant to the legal processes of collection if he failed to pay, we prefer to base it on another ground — to wit, that there is nothing in the record indicating that the defendant intended to abandon his right to appeal, except possibly an inference arising from the mere fact that he paid his fine and costs. Contradicting an inference of abandonment or waiver from the payment of the fine and costs, stand the facts that, before and after the payment, he meticulously pursued the procedural steps requisite to appeal, which clearly indicate that he intended to proceed into the appellate court and not abandon or waive his right to appeal. Under such circumstances, a court cannot presume a waiver of appeal from the payment of a fine and costs alone, when the actions of the defendant affirmatively show no such intention.

If the actions of a defendant are open to two constructions, a court should not presume a waiver on his part. In the case before us, we think the facts clearly show no intention of the defendant to waive his appeal, nor to abandon his right to further litigate.

In answering a clajun that, after the payment of a penalty imposed, the matter becomes moot, we refer to the statement of Holmes, J., set out above. The disgrace and legal discredit remain. It would seem that, in holding the matter moot, we are forgetting the public morals and citizenship aspects of a criminal conviction; that we are placing a criminal case in the same category as a civil case. The claim of moot we believe to be untenable.

The judgment will be reversed, and the canse remanded to the Court of Common Pleas for further consideration.

Judgment reversed and cause remanded.

Judgment reversed.

Stevens and Hunsickbr, JJ., concur.


author: Conn, J.

text:
    Christian Nation Church, Appellant, v. Jenkins, Appellee.
    (No. 220
    Decided January 11, 1954.)

      Messrs. Ely, White & Davidson, for appellant.

      Messrs. Nichols, Speidel & Nichols, for appellee.
   Conn, J.

This action was begun by plaintiff, appellant herein, the Christian Nation Church, against defendant, appellee herein, Amos Jenkins, in the court of J. F. Paschal, justice of the peace for Batavia township, Clermont county, charging the defendant with unlawfully and forcibly detaining from plaintiff certain premises, to wit, a dwelling house situated in the township of Pierce in such county and more particularly described in the bill of particulars filed by plaintiff.

Upon the trial, the justice adjudged that the defendant was guilty and that plaintiff was’ entitled to have restitution. From this judgment, an appeal on questions of law was duly taken by defendant to the Common Pleas Court and, upon hearing therein, the court found that the judgment “was against the manifest weight of the evidence and contrary to law,” and such judgment was “reversed, set aside and held for naught. ’ ’

•Thereupon, the plaintiff appealed from the judgment of the Common Pleas Court to this court on questions of law.

Under the provisions of the statutes relating to appeals from judgments entered in the justice of the peace court, a matter of procedure arises on the record before us which we are constrained to consider initially, although this procedural question was not raised in the oral arguments or briefs of counsel. The statutes to which we refer are Sections 12223-25 and 12223-26, General Code (now 2505.26, Revised Code), a part of the Ohio Appellate Procedure Act. These statutes provide as follows:

Section 12223-25. “When the proceedings of a justice of the peace are appealed on questions of law to the common pleas and the judgment of such justice Is reversed or set aside, the court shall render judgment of reversal, and for costs that have accrued up to that time, in favor of the appellant, and award execution therefor.”

Section 12223-26. “Except when the reversal is because the justice has no jurisdiction of the appellant or of the subject of the action, the cause shall be retained by the court for trial and final judgment.” Prior to the enactment of the Appellate Procedure Act, those statutes formed a part of the Justice of the Peace Code, as Sections 12245 and 12246, General Code, and were adopted without change, excepting some conforming language appropriate to' their place in the Appellate Procedure Act.

It is pertinent to note that those statutes originally formed but one section, to wit, Section 532 of the Code of Civil Procedure, as amended. (67 Ohio Laws, 111, 115 S & C, 1108.)

In the revision and consolidation of the statutes of Ohio effective January 1, 1880, that section became Section 6733, Revised Statutes, which we quote:

Section 6733. “When the proceedings of a justice of the peace are taken on error to the Court of Common Pleas, in manner aforesaid, and the judgment of such justice is reversed or set aside, the court shall render judgment of reversal, and for the costs that have Accrued up to that time, in favor of the plaintiff in error, and award execution therefor; and the cause, except when the reversal is because the justice had no jurisdiction of the plaintiff in error, or of the subject of the action, shall be retained by the court for trial and final judgment, as in cases of appeal.”

In the codification of the Revised Statutes in 1910, the Commission divided Section 6733, Revised Statutes, into two sections, to wit, Sections 12245 and 12246, General Code, with no substantial change in their respective provisions.

These statutes, over the years, have been before the courts in a number of cases, to some of which we wish to refer.

In the early case of Robinson v. Kious, 4 Ohio St., 593, the court construed Section 532 of the Code of Civil Procedure. The Common Pleas Court had reversed the judgment of the justice of the peace court on grounds other than the ground of jurisdiction, and it was held that the court should retain the cause for trial.

We quote the third paragraph of the syllabus:

“The common pleas, upon the reversal of such judgment, must retain the cause for trial and final judgment. ’ ’

Following the revision of the Code, the statute, Section 6733, Revised Statutes, was given consideration in Critchfield v. Robinson, 80 Ohio St., 364, 88 N. E., 792, the syllabus of which is as follows:

“When the Court of Common Pleas reverses a judgment of a justice of the peace upon a ground other than a want of jurisdiction, it properly, under Section 6733, Revised Statutes, retains the case for trial as upon appeal, and until judgment is rendered upon such trial a proceeding in error in the circuit court is premature.”

See, also, Roller v. Esman, 1 C. C. (N. S.), 31, 15 C. D., 183; Henny & Scheible Co. v. Collingwood Furnace Co., 11 C. C. (N. S.), 191, 21 C. D., 17; McLean v. Johnson, 20 C. C. (N. S.), 503, 31 C. D., 403; Adams Express Co. v. St. John, 17 Ohio St., 641.

This court gave consideration to the provisions of Section 12223-26, General Code (Section 2505.26, Revised Code) in Vockell v. Selmeier, 77 Ohio App., 401, 402, 68 N. E. (2d), 129. The Common Pleas Court had reversed the judgment of the justice of the peace court in an action for forcible entry and detainer and retained the case for trial on the merits as provided in that section. An appeal was taken on questions of law on the ground that no valid notice of appeal from the justice of the peace court to the Common Pleas Court had been filed. Judge Hildebrant in the opinion said:

“This court has no jurisdiction to consider the errors complained of, for the reason that under the statute no final order has been entered in the court below. Section 12223-26, General Code, provides:

“ ‘Except when the reversal is because the justice has no jurisdiction of the appellant or. of the subject of the action, the cause shall be retained by the court for trial and final judgment.’

“The judgment of reversal, not being for lack of jurisdiction, is, therefore, not a final order, and the cause must be retained for trial by the court below and proceed to judgment before an appeal may lie here. McLean v. Johnson, 20 C. C. (N. S.), 503, 31 C. D., 403; Kelley v. Hunter, 12 Ohio, 216; Longworth v. Sturges, 6 Ohio St., 143; Ry. Co. v. Bailey, 39 Ohio St., 170; Bradley v. Wacker, 13 C. C., 530, 7 C. D., 565. The appeal is dismissed.”

In the light of the foregoing considerations, we conclude that the court is without jurisdiction to entertain this cause or review the assignments of error. Therefore, the appeal herein is dismissed and the cause remanded to the Court of Common Pleas for further proceedings according to law.

Judgment accordingly.

Fess and Deeds, JJ., concur.

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


author: Guernsey, J.

text:
    The State of Ohio, Appellee, v. Ross, Appellant.
    (No. 105
    Decided January 4, 1954.)

      Mr. Harvey E. Hyman, for appellee.

      Mr. Otto W. Hess and Mr. George A. MeeHson, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a final order of the Court of Common Pleas of Paulding County, Ohio, in an action wherein the appellee, state of Ohio, was plaintiff and the appellant, Wendell Robert Ross, was the defendant.

The grand jury of Panlding county returned an indictment against the defendant, charging:

“That Wendell Robert Ross on or about the 23rd day of January in the year of our Lord one thousand, nine hundred and fifty-three, at the county of Paulding aforesaid being then eighteen years of age raped or ravished one Shirley Jean Mason she the said Shirley Jean Mason being then under the age of sixteen years, to-wit: about 13 years, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

This indictment is predicated upon the provisions of Section 12414, General Code, reading as follows:

“Whoever, being eighteen years of age, carnally knows and abuses a female person under the age of sixteen years with her consent shall be imprisoned in the penitentiary not less than one year nor more than twenty years, or six months in the county jail or workhouse. The court is authorized to hear testimony in mitigation or aggravation of such sentence. ’ ’

The defendant was tried by a court and jury on such indictment and the jury upon such trial returned a verdict, which, omitting caption and signatures, is in the words and figures following, to wit:

“We, .the jury in this ease, duly impaneled and sworn and affirmed, find the defendant, Wendell Robert Ross, not guilty of rape on female under sixteen (16) years, in manner and form as he stands charged in the indictment. But we do find him guilty of attempt to commit rape as therein charged.”

The offense of which the verdict of the jury found the defendant guilty is one of the classes of offenses enumerated in Section 13451-20, General Code, wherein it is, among other things, prescribed that a person convicted of such an offense “after conviction and before sentence” must be referred “for examination” as to his mental condition “to a state facility designated by the department” of welfare.

Pursuant to the provisions of the section above mentioned, the court did not then render sentence on such verdict as it would in criminal cases not coming within the classes mentioned in such section, but made the following order, to wit:

“ It is ordered by the court that the defendant herein, Wendell Robert Ross, be committed to the Lima State Hospital, Lima, Ohio, for not to exceed sixty (60) days for observation and examination according to law, under General Code Section 13451-20.”

This is the order from which this appeal is taken.

The defendant, appellant herein, assigns error in the following particulars:

1. In overruling the defendant’s motion for arrest of judgment.

2. In overruling defendant’s motion for a new trial.

3. The order of commitment of the court is contrary to law.

4. The court erred in the admission of evidence offered by plaintiff over the objection of defendant.

5. The court erred in rejecting evidence offered by the defendant.

6. The verdict and judgment of the court are not sustained by sufficient evidence.

7. The verdict and judgment of the court are against the weight of the evidence.

8. The judgment, order and decree of the court committing the defendant to the Lima State Hospital contravenes Article 1, Section 10 of the Constitution of the state of Ohio, and the 14th Amendment to the Constitution of the United States of America in this— that the defendant is being deprived of his liberty without due process of law, in this, that he has not been convicted of any offense which is defined as a crime by the laws of the state of Ohio, and that the indictment against him does not sufficiently inform him of the nature of the accusation against him, and that he has been committed to an institution for the insane without any hearing upon hi's sanity, and that the portion of Section 13451-20 of the General Code of the state of Ohio which provides for a commitment to an institution for observation after a defendant has been found guilty by a jury, and before sentence, is in violation of both sections of said Constitution.

These claimed errors will be considered in the order in which they are assigned, but in considering these assignments it is essential that the following matters be kept in mind:

Section 13448-2, General Code, among other things, prescribes:

“The jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law. When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense.”

The offense charged in the indictment in the instant case is that the defendant, being over the age of 18 years, did rape or ravish one female person under the age of 16 years. As hereinbefore mentioned, the indictment is predicated upon the provisions of Section 12414, General Code, which, among other things, prescribes :

“Whoever, being eighteen years of age, carnally knows and abuses a female person under the age of sixteen years with her consent shall be imprisoned in the penitentiary not less than one year nor more than twenty years, or six months in the county jail or workhouse.”

It will be noted that the indictment does not charge that the rape or ravishment was “with the consent” of the prosecuting witness.

The provisions of the above-mentioned,,section were formerly incorporated in Sections 6816 and 6817, Revised Statutes, and were under consideration in the case of State v. Carl, 71 Ohio St., 259, 73 N. E., 463, wherein it was held:

“On the trial of an indictment under Section 6816, Revised Statutes, for carnally knowing and abusing a female person under the age of sixteen years with her consent, the evidence having established the carnal knowledge and the alleged ages of the parties, evidence tending to show that the act was committed without consent does not constitute a fatal variance.”

Subsequent to the above decision and in 1910, Section 6816, Revised Statutes, was codified in a number of separate sections as a part of the G-eneral Code.

Between the date of the decision above quoted and the date of said codification, the Legislature made no material changes in the provisions of Section 6816.

It is a settled rule of construction that where the entire legislation affecting a particular subject matter has undergone revision and consolidation by codification, the revised sections will be presumed to bear the same meaning as the original sections, and will be so construed, unless it appears that a change was intended by the Legislature. See 37 Ohio Jurisprudence, 757, Statutes, Section 429, and Loftin v. Loew’s, Inc., 75 Ohio App., 448, 62 N. E. (2d), 535.

To the same general effect as the holding in State v. Carl, supra. See, also, Radke v. State, 107 Ohio St., 399, 140 N. E., 586.

Under the construction placed on the provisions mentioned in the case of State v. Carl, supra, which construction is still effective as to the codified sections, the consent or lack of consent of the prosecuting witness is not an essential element of the offense defined in Section 12414, General Code, and it is unnecessary to charge consent in the indictment or to prove on the trial of the indictment the fact that the prosecuting witness consented or did not consent. The offense is complete without such consent.

The same construction is applicable to the provisions of Section 12415, General Code, and so construed, the offense defined by said section constitutes an attempt to commit the offense defined in Section 12414, General Code, is in itself an offense at law and comes within the purview of Section 13448-2, General Code, authorizing a jury to find a defendant not guilty of committing the offense charged in an indictment but guilty of an attempt to commit such offense.

Before the 1910 codification of Sections 6816 and 6817, Revised Statutes, Section 6816 prescribed:

“Whoever has carnal knowledge of a female person, forcibly and against her will, or, being eighteen years of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of rape. ’ ’

In Section 12414, General Code, which is a codification of the last part of Section 6816, Revised Statutes, hereinabove mentioned, the clause defining carnal knowledge of a female person under 16 years by a person over 18 years old as “rape” is omitted, but there is nothing in said section indicating any intent on the part of the Legislature to change the character of the offense defined in Section 6816, Revised Statutes. In this situation, the above-mentioned rule as to the construction of the provisions of codified sections of statutes is applicable. Under this rule the codified section has exactly the same meaning as the Revised Statute section which was codified, and “carnally know” as used in the codified section is the equivalent of ‘£ rape. ” An attempt to carnally know and abuse a female person under 16 years of age by a person of 18 years of age is an attempt to commit rape.

We will now proceed with a consideration of the assignments of error.

Assignments, of error Nos. 1, 2, 4 and 5.

These assignments of error are not specified or argued in defendant’s brief and in the exercise of our statutory prerogative will not be considered.

Assignments of error Nos. 3 and 8.

As these assignments of error involve the same general question, they will be considered together.

Under the provisions of Section 13451-20, General Code, it was the mandatory duty of the court to commit the defendant for not to exceed 60 days for observation and examination as to his mental condition, and the order of commitment appealed from is in conformity with the provisions of said section.

The order of commitment was valid unless the statute upon which it is based is unconstitutional. We will therefore consider the question of the constitutionality of the statute.

It will be noted that such commitment is required to be made only upon conviction, %. e., upon verdict of the jury finding the accused guilty of one of the classes of offenses enumerated in such section, the offense of which the defendant was found guilty being one of such classes.

The section is a humane section, designed to prevent the sentences of mentally ill persons to penal servitude from being executed during the period of their mental illness and to provide for their incarceration in a state mental hospital where they may receive treatment for the condition from which they are suffering, instead of a penal institution.

By the verdict of the jury, the accused is made subject to confinement and the place and manner of confinement are subject to determination under the provisions of such section and it is only after the observation and examination and report of the mental condition of the accused pursuant to the provisions of such section is had, and after an inquest into the mental condition of the accused is duly had in court, and after a finding is made by the court that the accused is mentally ill, mentally deficient, or a psychopathic offender and such finding entered on the records of the court, that accused may be sentenced. Concurrently with the sentence, the court enters an order of indefinite commitment of such person to the department of public welfare, during the continuance of which the execution of sentence is suspended.

If, upon such inquest, the accused is not found mentally ill, mentally deficient, or a psychopathic offender, he is subject to sentence upon the verdict of the jury in the same manner as any other offender not coming within the purview of said section.

The statute is for the protection and benefit of both the public and the offender.

The provisions of the statute are reasonable, come within the legislative powers of the state, and do not contravene Section 10, Article I of the Constitution of Ohio, or the Fourteenth Amendment of the Constitution of the United States, or any other provisions of the state or federal Constitutions.

Assignments of error Nos. 3 and 8 are, therefore, without merit.

Assignments of error Nos. 6 and 7.

As we have shown in our discussion preceding the consideration of the assignments of error, the offense of which the defendant was convicted constituted an attempt to commit the offense charged in the indictment, and the jury was warranted, under the law, in finding the defendant guilty of such offense.

An inspection of the bill of exceptions discloses that the court properly submitted the question of defendant’s guilt or innocence of such offense to the jury.

As shown in our discussion preceding the consideration of the assignments of error, the consent of the prosecuting witness was not an essential element of either the offense charged in the indictment or the attempt to commit the same and the failure to charge >t in the indictment or to prove it on the trial does not in any way invalidate the verdict of the jury finding the defendant guilty of an attempt to commit rape.

Neither does the fact that the evidence in the instant case shows that the defendant either committed the offense charged in the indictment or did not commit such offense invalidate the judgment, as an attempt to commit an offense is necessarily comprehended in the commission of an offense. Substantial evidence tending to prove the commission of an offense also tends to prove an attempt to commit such offense. This in effect is the ruling of the Supreme Court in the case of State v. Curtis, 149 Ohio St., 153, 78 N. E. (2d), 46.

Under the law of Ohio as we have hereinbefore mentioned, an indictment under the provisions of Section 12414, General Code, of a person over 18 years of age for carnally knowing and abusing a female person under 16 years of age, with her consent, has the effect also of charging the accused person with an attempt to commit rape of a female person under 16 years of age, with her consent, as such offense is defined in Section 12415, General Code, and sufficiently informs the accused that he is charged with committing rape and also with attempting to 'commit rape, and conforms to all the constitutional requirements as to the manner in which a person should be charged with the commission of an offense and does not contravene any of such constitutional requirements.

' The court in its instructions to the jury fully informed it as to tViiat constituted the crime of attempt to rape as defined in Section 12415, General Code, and the verdict of the jury finding the defendant guilty of an attempt to rape is in conformity with these instructions. The fact that the jury found the defendant not guilty of the offense of rape as defined in Section 12414, General Code, and charged in the indictment did not preclude the jury from finding the defendant guilty of an attempt to rape.

There is competent, credible and substantial evidence tending to support the verdict of the jury by the degree of proof required in criminal cases and the verdict is sustained by sufficient evidence and is neither contrary to law nor against the manifest weight of the evidence.

Assignments of error Nos. 6 and 7 are, therefore, without merit.

As we find no error in any of the particulars specified and argued in defendant’s brief, the order of the Common Pleas Court from which this appeal is taken is affirmed at the costs of the defendant and the cause is remanded to the Common Pleas Court to cause the terms of said order to be carried out, and for further proceedings according to law.

Judgment affirmed.

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


text:
    The State, ex rel. Nemeth, v. Industrial Commission of Ohio.
    (No. 4879
    Decided May 26, 1953.)

      Mr. Gilbert Weil and Mr. John C. Duffy, for relator.

      Mr. C. William O’Neill, attorney general, and Mr. Chalmers P. Wylie, for respondent.
   Hornbeck, J.

This is an action in mandamus, seeking aji order requiring the respondent commission to make an award to relator under Section 1465-80, General Code, because he is afflicted with silicosis contracted in his employment and a change of occupation is medically advisable.

The factual background, upon which relator’s cause of action is predicated, is that on and prior to July 25, 1950, he was employed as a molder with the John Harsch Bronze & Foundry Company, an employer amenable to the Workmen’s Compensation Act and paying premiums according to law into the State Insurance Fund; that on July 25,1950, he reported to his employer that he was ill and on the next day, i. e., July 26, 1950, entered a hospital for treatment of silicosis; and that, thereafter, he filed a claim for total disability due to silicosis. The silicosis referees, to whom the claim was referred, found on December 2, 1950, that relator’s condition was not totally disabling, but that he did suffer from simple silicosis. On April 9, 1951, the Cleveland District Board of Claims disallowed relator’s claim for total disability and again ordered the file to be referred to the silicosis referees on the question “of allowance of claim for a change of occupation.” On April 9, 1951, the claimant filed his application for an award for a change of occupation due to having contracted silicosis. It appeared that on the date he reported his illness to his employer, he discontinued his employment, going to the hospital the next day, and not having been able to work since. The Silicosis Referee Board recommended that relator be granted an allowance of change of occupation, as did the Medical Board of Review on August 23, 1951. Upon reference to the respondent commission on September 13, 1951, and rehearing on May 22, 1952, it disallowed relator’s application, on the ground that the application does not conform to the statutory provisions of'Section 1465-80, General Code, respecting a change of occupation in which simple silicosis is involved. The commission relied upon a regulation defining the requisite steps to an award under Section 1465-80, General Code, which regulation provides as follows:

“(1) By an application for benefits under the amendment.

“(2) Favorable recommendation by the silicosis referees.

“(3) The commission order the change following the recommendation of the silicosis referees. If all these things happen, the change in occupation must be made by the claimant within a period of three months after the commission’s order approving the change.”

In part, it is the claim of relator that when the Medical Board of Review made a favorable report and recommended an allowance for change of occupation, the board should, as a matter of law, have ordered an award. We believe that in this case the contention is well made. Generally, the action of the Medical Board of Review relates only to a question to be determined from the professional medical standpoint, namely, whether the relator was suffering from silicosis and whether a change of occupation was medically advisable. The procedural questions and the substantive legal right of the relator under the Code to an award are for determination of the commission, which action may not be questioned except for abuse of discretion. Here, the law was misinterpreted, and there is left the medical question only.

The board construed Section 1465-80, General Code, to pre.clude an award to claimant for change of occupation because of silicosis contracted in his employment, unless at the time the order of the commission finding that the applicant suffered from silicosis, he was in the same employment as when he suffered his attack, and that after this award the change of occupation must be made within a period of three months.

The section, in so far as applicable, reads:

“If the ‘silicosis referees’ provided for by Section 1465-68a of the General Code, shall find that an employee has contracted silicosis * # * and that a change of such employee’s occupation is medically advisable in order to decrease substantially further exposure to silica dust and if such employee shall, within a period of three months thereafter, discontinue employment or change his occupation to an occupation in which the exposure to silica dust is substantially decreased, the Industrial Commission shall allow to such employee, the sum of * *

Before going to the determinative question in this case, it is well to consider some well defined principles. In Industrial Commission v. Pora, 100 Ohio St., 218, 125 N. E., 662, Chief Justice Nichols, at page 222, said:

“The real spirit of this act is to measurably banish technicality and to do away with the nicety of distinction so often observable in the law, and commands a liberal construction in favor of employes.”

The court said the same, in substance, in Industrial Commission v. Weigandt, 102 Ohio St., 1, 130 N. E., 38. It is common knowledge' that injured workmen are advised to rely upon the services afforded by the Industrial Commission and its staff. So, in this case, involving a rather complex statute, the applicant needed expert advice. He was given a form of application wherein he sought to recover compensation under the occupational disease section of the Code, viz., Section 1465-68a. Under this section, he was not entitled to compensation and incidents thereto unless he was totally disabled.

In State, ex rel. Stelzer, v. Industrial Commission (unreported), No. 2911, Franklin County, we held that a.claimant under the compensation law is totally disabled if he is so impaired in body or mind or both as to render him unfit to work at any substantially remunerative employment. We followed this pronouncement in State, ex rel. Myers, v. Industrial Commission, 28 Ohio Law Abs., 429, and State, ex rel. Breidigan, v. Industrial Commission, 36 Ohio Law Abs., 160, 43 N. E. (2d), 114

Claimant did not have the advantage of legal counsel until after the commission had held against him on his application for compensation. Manifestly, that part of Section 1465-80, General Code, upon which claimant now relies is but another form of benefit in addition to Section 1465-68a, General Code, guaranteed to victims of silicosis.

One thing is projected clearly from this record, namely, that the claimant at ail times from the date he first consulted a doctor and when he left his employment one day to go to the hospital the next, suffered from silicosis, and that it was contracted in his employment.

As we read this record, of the 10 or 12 physicians who made diagnoses or passed upon the nature of claimant’s illness there was no disagreement. Quite early it was suggested that the second of the first two doctors who examined claimant, namely, Dr. Yarian, stated that an X-ray examination failed to disclose any signs of such disease.

As we read Dr. Yarian’s report, in his handwriting and somewhat difficult, he does not say that an X-ray examination failed to show silicosis. He says: “No physical signs of silicosis but shown by X-ray. ’ ’ Later in his report he states that his diagnosis is silicosis. This probably is of no considerable importance, but it was followed by at least two findings of the board of referees and a finding of the Medical Board of Review that the claimant suffered from silicosis, and both bodies stated that claimant was entitled to an award of change of occupation.

It should be noted that the conclusion that claimant had left his occupation is drawn from the fact that he went to the hospital the day after he was ordered there because of his sickness. He states that he had not been able to work from that day and the findings of the board of referees and the Medical Board of Review that he was not totally disabled do not refute his statement. Thus, we have the physical fact that the claimant left his occupation, if it may be so stated, because he was no longer able to carry on in that occupation.

The original statement of Hr. Lieberman on the claim for compensation does not state that the claimant was totally disabled. This is the language:

“Q. For what period is claimant likely to be disabled? A. Permanently for this type of work.”

‘‘Q. If able to do light work, give your professional opinion as to physical impairment in percentage. A. One hundred per cent his type of work.”

Thus at the inception, as we have hereinbefore said, the commission was put on notice that the only claim the applicant could properly make would be for an order under the change of occupation statute. We do not say that there is authority to consider both a claim for compensation and a claim for an order of a change of occupation in one and the same proceeding, but surely such procedure would be practical and would eliminate much of the delay which is manifest in this case.

The claimant did, after denial of his claim for compensation, make application under Section 1465-80, General Code, and the commission, invoking its regulation, which we have hereinbefore quoted, held that he had not observed the provisions of Section 1465-80, General Code.

At this time the silicosis referees had made the essential medical determination, namely, that the relator had contracted silicosis, and that a change of the employee’s occupation is medically advisable in order to further decrease substantially the exposure to silica dust. In our judgment, this finding is sufficient to support an award by the commission to the claimant under the applicable statute. Of course, he was not then in the employment because he was unable to work at his occupation. After the medical finding provided by the statute, there follows this language:

‘ ‘ And if such employee shall within a period of three months thereafter discontinue employment or change-his occupation to an occupation in which the exposure to silica dust is substantially decreased, the Industrial Commission shall allow to such employee the sum of * * * ? j

It will be noted this language does not require that the employee change his occupation. It is sufficient if he discontinues employment. This was done according to the finding of the commission. In our judgment, the limitation of three months thereafter is the last date upon which the claimant may discontinue employment and if he has discontinued employment formerly, and especially, if he has done so because of physical inability to accept employment in his trade, this meets the intendment of the statute.

The construction which the commission has given this section would require that an employee who has contracted. silicosis by reason of his employment, if able, and in this case unable, should continue to work in the atmosphere which caused his illness until the Board of Silicosis Referees finally acted favorably upon his application for an award because of a change of occupation. .We would not ascribe to the Legislature such a purpose, and we do not believe that the statute requires it.

The relator is as a matter of law entitled to an award under the applicable part of Section 1465-80, General Code.

The writ is granted as prayed for.

Writ allowed.

Wiseman, P. J., and Miller, J., concur.