author: Miller, J;

text:
    Wolf, Appellee, v. City of Columbus et al., Appellants.

      (No. 5175
    Decided November 12, 1954.)

      Mr. W. B. McLeskey and Mr. C. W. McLeskey, for appellee.

      Mr. Chalmers P. Wylie, city attorney, and Mr. J. Russell Leach, for appellants.
   Miller, J;

This cause is here on a motion submitted by the plaintiff, appellee herein, seeking an order dismissing the appeal on questions of law and fact for the reason that no appeal bond has been filed as required by Section 2505.06, Revised Code. It is urged by the defendants that the city of Columbus, one of the defendants, is a political subdivision, that the other two defendants are officers of a political subdivision, and that an appeal bond may not be required, citing Section 2505.12, Revised Code, which provides that an appeal bond shall not be required from:

“(B) The state and any political subdivision thereof authorized to sue and be sued;

“(C) Any public officer of the state or of any of its political subdivisions suing or sued solely in his representative capacity as such officer.”

The plaintiff urges however that the city of Columbus is not a “political subdivision” and therefore does not come within the provisions of the cited section of the Code. We are referred to the case of City of Steubenville v. Reiner, 7 Ohio Law Abs., 324, which sustains his contention, but this case was decided on December 21, 1928, prior to the amendment of the section which added to the exemption the words “political subdivision.” The statute at the time of the Reiner case exempted from the giving of bond only “the state of Ohio or an officer thereof.” We find no definition of the terra in our statutes relating to appeals, but as applied to the “Uniform Bond Law” a “subdivision” includes a “municipal corporation” (Section 133.01, Revised Code), and as applied to “elections” the term “political subdivision” includes “cities.” While these definitions have application only to laws in the chapters wherein they are found, they are helpful in determining what the legislative body understood the terms to ordinarily mean. We find many reported decisions which hold that municipal corporations are instrumentalities or agents of the state for a local administration and enforcement of sovereign power and for conducting the affairs of government.

In City of Akron v. Butler, 108 Ohio St., 122, 140 N. E., 324, it is said, at page 124:

“This court has always, as indeed have courts generally, recognized the theory that municipalities have dual powers, the one wherein they exercise the power delegated by the sovereign to preserve the peace and to protect persons and property, and the other where they exercise power, proprietary in its nature, and which relates to the development of the municipality as distinguished from the commonwealth.”

Again, in the case of City of Wooster v. Arbenz, 116 Ohio St., 281, 156 N. E., 210, 52 A. L. R., 518, the court says at page 284:

“In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself.”

In 72 Corpus Juris Secundum, 223, we find the term “political subdivision” defined as follows:

“The term is broad and comprehensive and denotes any division of a state made by the proper authorities thereof, acting within their constitutional powers, for the purpose of carrying out those functions of the state which by long usage and inherent necessities of government have-always been regarded as public; a division of a parent entity for some governmental purpose.
< Í * # *
“Municipalities are political subdivisions of the state, and the term ‘political subdivision’ is applied to cities, towns, and villages # #

See, also, 62 Corpus J uris Secundum, 69, Section 3, wherein it is said:

“In its governmental aspect, a municipal corporation or municipality is an agent, instrumentality, or political subdivision of the state, an arm, branch, or part of the state government.”

We are of the opinion that the powers and functions exercised by municipal corporations may be separated into two classes: (1) public or governmental; and (2) private or proprietary. In their public capacity they function as agents or instrumentalities of the state government and therefore constitute political subdivisions.

The motion to dismiss is overruled.

Motion overruled.

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


source: Caselaw Access Project

author: Wiseman, P. J.

license: Public Domain

text:
    Leakas Furriers, Inc., Appellant, v. Bowers, Tax Commr., et al., appellees.

      (No. 2302
    Decided December 7, 1954.)

      Messrs. Pickrel, Schaeffer & Ebeling, and Mr. Charles W. Slicer, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. Jack H. Bertsch, for appellee.
   Wiseman, P. J.

This is an appeal from a decision of the Board of Tax Appeals affirming an order of the Tax Commissioner in the assessment of sales tax.

Three errors are assigned, as follows:

1. The Board of Tax Appeals erred in holding that the various transactions, as listed in the assessment and testified to before the board, constituted fabrication or production, and, consequently, erred in holding that such transactions were taxable sales under the Sales Tax Act of the state of Ohio.

2. The Board of Tax Appeals erred in holding that a majority of the transactions testified to in the record were taxable on the ground that there was no breakdown between labor and materials on the sales invoices.

3. The Board of Tax Appeals erred in its application of Rule 38 of the Rules and Regulations of the Department of Taxation to the transactions in question in that rule 38 does not provide for a definite standard of conduct, and under such circumstances rule 38 is unreasonable and arbitrary.

When an appeal is taken from the order of the Tax Commissioner by a taxpayer, “the notice of such appeal shall set forth, or have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the taxpayer of the final determination complained of, and shall also specify the errors therein complained of.” (Emphasis ours.) Section 5717.02, Revised Code (formerly Section 5611, General Code).

In the notice of appeal the taxpayer admitted proper assessment on certain items, but objected to the assessment on the remaining items, as follows:

“Appellant objects to the assessment of the sales tax on the remaining items in the assessment on the grounds that under Rule 38 of the Rules and Regulations of the Department of Taxation, the items in question do not constitute fabrication or production and rule 38 should not be applied in such a way as to make such transactions subject to the sales tax. This objection is based upon the proposition that the transactions in question do not constitute such changes in the form of the tangible personal property as to fall into the definition of ‘sale’ and ‘selling’ under the Sales Tax Act.”

The contention is made that in the consideration of the appeal by the Board of Tax Appeals, the board was limited to the errors specified in the notice of appeal, citing American Restaurant & Lunch Co. v. Glander, Tax Commr., 147 Ohio St., 147, 70 N. E. (2d), 93; American Culvert-Fabricating Co. v. Glander, Tax Commr., 158 Ohio St., 351, 109 N. E. (2d), 475; Kent Provision Co., Inc., v. Peck, Tax Commr., 159 Ohio St., 84, 110 N. E. (2d), 776; David v. Peck, Tax Commr., 161 Ohio St., 80, 118 N. E. (2d), 146. It is now contended that the appellant in this court is limited to the errors so specified in its notice of appeal to the Board of Tax Appeals. In appealing from the order of the board, the taxpayer is required, under Section 5717.04, Revised Code (formerly Section 5611-2, General Code), to “set forth the decision of the board appealed from and the errors therein complained of.” The assignment of errors filed in this court is necessarily directed to the decision of the Board of Tax Appeals, which in turn is limited to the errors specified in the notice of appeal from the order of the Tax Commissioner. The Board of Tax Appeals considered the questions raised in light of the errors specified, and we think this court, in reviewing the decision of the Board of Tax Appeals, is limited to such errors. See Bennett v. Dayton Memorial Park & Cemetery Assn., 88 Ohio App., 98, 93 N. E. (2d), 712; 3 Ohio Jurisprudence (2d), 614, Section 663. The provision in Section 5717.04, Revised Code, requiring specification of errors in an appeal from the Board of Tax Appeals does not confer on the taxpayer the authority to broaden the scope of review. The errors specified in an appeal from the Board of Tax Appeals to this court may reduce but may not enlarge the scope of review. A similar situation arose in Ladas et al., d. b. a. Brass Rail Lunch, v. Peck, 162 Ohio St., 159, 122 N. E. (2d), 12, where the court restricted the errors assigned to the questions raised before the Board of Tax Appeals. Therefore, in determining whether the decision of the board is “reasonable and lawful” or “unreasonable or unlawful,” as provided in Section 5717.04, Revised Code, we may consider only assignments of error numbered one and three. We may not consider assignment of error numbered two without qualification. We pass on all assignments of error on the assumption that this court may be reversed in holding that appellant can not now raise the question involved in assignment of error No. 2.

The factual situation and the legal questions involved are set forth in the decision of the Board of Tax Appeals as follows:

“The sole legal issue raised by appellant in its notice of appeal, and the only issue before us for decision, concerns the correct base to be used by appellant ■ in computing the sales tax appellant vendor should have charged its customers on the transactions listed in the Tax Commissioner’s assessment and still in dispute.
“Appellant, Leakas Furriers, Inc., is a corporation located in Dayton, Ohio. It sells at retail ready-made clothes and fur garments for women. It also has a department for the cleaning, storage, remodeling, restyling and repairing of fur garments owned by its customers. As a part of its business it ‘remodels’ and ‘restyles’ used and worn-out fur garments into remodeled and restyled fur coats, fur capes, fur jackets, fur scarfs, etc. It is with these ‘restyling’ and ‘remodeling’ transactions that the parties are here in disagreement.
“The testimony indicates that to ‘remodel’ or ‘restyle’ a fur garment it is necessary that the coat or other garment to be remodeled or restyled must first be cut apart and the good fur parts salvaged and sewn together with such new pieces as may be necessary. Then the furs or pelts are moistened and placed over a pattern of the style of garment to be made. After the furs have dried they are squared to the pattern and softened with cream preparatory to being fitted to the customer. The sewing in of a new or the old lining is ordinarily the last step in reconstituting the fur garment.
“The Tax Commissioner contends that all the transactions in issue are transactions wherein a consumer or customer of appellant furnished appellant a used or worn-out fur garment to be processed or fabricated by appellant into a different but usable fur garment by cutting and processing the old fur and adding materials owned by the appellant. The Tax Commissioner says that these transactions constitute retail sales under the provisions of Section 5546-1, General Code, and that the entire and full consideration or charge made to the customer is the base upon which the sales tax must be computed.”

The pertinent portions of Section 5739.01, Revised Code (formerly Section 5546-1, General Code), are as follows:

“(B) ‘Sale’ and ‘selling’ include * * * the production or fabrication of tangible personal property for a consideration for consumers who furnish either directly or indirectly the materials used in the production or fabrication work * * *.
ÍÍ * # #
“(H) ‘Price’ means the aggregate value in money of any thing paid or delivered, or promised to be paid or delivered, by a consumer to a vendor in the complete performance of a retail sale, without any deduction on account of the cost of the property sold, cost of materials used, labor or service cost, interest or discount paid, or allowed after the sale is consummated, or any other expense. Price does not include the consideration received for labor or services used in installing, applying, remodeling, or repairing the property sold if the consideration for such services is separately stated from the consideration received for the tangible personal property transferred in the retail sale. Price is the amount received exclusive of the tax, provided the vendor establishes to the satisfaction of the Tax Commissioner that the tax was added to the price.”

Rule 38 of the Rules and Regulations of the Department of Taxation provides as follows:

“The definition of ‘sale’ and ‘selling’ includes the production or fabrication of tangible personal property, as well as the furnishing, preparing or serving of tangible personal property for a consideration. Any change in the form or substance of tangible personal property so as to create a new article of tangible personal property, or any substantia] alteration of the form or shape of an existing article of tangible personal property, wherein the material is furnished by either party, shall constitute a production or fabrication under the provisions of this rule. Such production or fabrication charges are sales and are subject to the tax. The tax base in such cases shall be the entire amount charged for such production or fabrications, including cost of materials.
“This ruling does not apply to those cases where repairs are made to completed articles of tangible personal property.
“A printing charge by a printer for the printing of printed matter, whether the stock or other material is furnished by the consumer or by the printer; a tailoring charge for the tailoring of a suit, whether the cloth is furnished by the tailor or the consumer; a charge for the fabrication of steel, regardless of who furnishes the steel to be fabricated; a charge for the preparation of food for consumption on the premises where prepared, regardless of who furnishes the food for such preparation; a charge for making curtains, draperies or slip, covers, whether the materials are furnished by the maker or the consumer, are subject to the tax.”

After quoting from the code section and rule 38, the board in its decision said:

“The assessment in this case was predicated upon invoices made out by appellant and testified to by appellant’s only witness. The invoices themselves, however, were not introduced into evidence by the appellant. On the great majority of the invoices there was no breakdown as between the consideration charged for materials and the consideration charged for labor. The invoices merely carried the total charge for the restyling or remodeling plus a sales tax charge and a total of the two. The sales tax charge was the appellant’s estimate as to the tax due on the value of the materials the appellant added in the course of remodeling or restyling the fur garment. At no place on the great majority of these invoices was there any breakdown between the consideration charged for materials and the consideration charged for labor or services. In this respect the invoices are similar to those under consideration in the case of Wilson, d. b. a. Nu-Tred Tire Co., v. Glander, 151 Ohio State Reports at page 479, wherein the syllabus reads as follows:
‘ ‘ ‘ Where a person sells material to another and in connection therewith furnishes labor or service in applying such materia] to his customer’s property, the entire transaction shall be considered a sale and subject to tax, unless there is a clear separation, in the making or billing of a charge therefor, of the material furnished and the labor or service performed.’
“As we view the matter the issue in this case can be stated as follows:
“(1) In the transactions here involved was appellant engaged in the production or fabrication of tangible personal property, or was it engaged in the repair of such property?
“(2) If held to be engaged in the repair of such property, has appellant, in its invoices and records, sufficiently complied with the following provisions of Section 5546-1, General Code: ‘ “Price” shall not include the consideration received for labor or services used in installing, applying, remodeling or repairing the property sold if the consideration for such services is separately stated from the consideration received for the tangible personal property transferred in the retail sales’; so as to permit the tax base to be only the value of the materials added by appellant?
“The second question must be answered in the negative. Even if we are to hold that appellant, in the transactions here involved, was a ‘repairer’ of the tangible personal property involved, it is abundantly clear that it has not separated the consideration charged for materials from the consideration charged for labor and services in the majority of the transactions. But even as to this we would be unable to give any relief to appellant on those invoices wherein there was such a breakdown for the reason that appellant, in its notice of appeal to the Board of Tax Appeals, did not specify any error in this respect; and no mention was made of this point in the briefs.
“However, it will not be necessary for us to predicate our decision solely on the answer to the second question since we are convinced that the answer to the first question must be that appellant, in the transactions here under consideration, was engaged in the production and fabrication of tangible personal property and that each transaction constituted a ‘sale’ or ‘selling’ within the meaning of those words as the same are defined in General Code Section 5546-1. We are further of the view that these transactions are ‘retail sales’ as thus defined by the Legislature irrespective of the Tax Commissioner’s rule 38, concerning which rule however we do not agree with appellant that the same is arbitrary and unreasonable.
“The transactions of appellant were made ‘retail sales’ by the Legislature, and if appellant wishes relief it is to the [legislative] body that it should address itself. Neither the Tax Commissioner nor this board has any authority to change the definitions set up by the Legislature.
“Upon consideration of all the evidence in this case we are of the view that the final order of the Tax Commissioner herein complained of is correct and said final order is therefore affirmed.”

The principal question for the court to determine is whether the Board of Tax Appeals properly held the taxpayer was engaged in “production or fabrication of tangible personal property” and that the transactions under consideration constituted a “sale” or “selling” within the meaning of those words as defined in Section 5739.01, Revised Code. The board held such transactions to be “retail sales,” irrespective of the application of rule 38. The statute defines “sale” and “selling,” but the statute does not define the words, “production,” or “fabrication.” The board in its decision fails to set forth the rationale for its conclusion that the taxpayer was engaged in “production and fabrication.” The words, “production,” and “fabrication,” are broad, uncertain terms and resort must be had to definition. The Tax Commissioner recognized this. situation in adopting rule 38, wherein these terms are defined. TJhe Tax Commissioner recognized the distinction between the two words, and also that the Legislature in "Section 5739.01, Revised Code, used these two words in the alternative. We revert to a consideration of the definition of “production” and “fabrication” as found in rule 38. It is there stated that “any change in the form * * * so as to create a new article” or “ any substantial alteration of the form or shape of an existing article * * * wherein the material is furnished by either party, shall constitute a production or fabrication.” (Emphasis ours.) The rule further provides that “the tax base in such cases shall be the entire amount charged for such production or fabrication, including cost of materials.” The rule excepts repairs made to completed articles.

Where words are defined in the statute, the court is bound by the legislative definition. The Ornamental Ironwork Co. v. Peck, Tax Commr., 160 Ohio St., 399, 401, 116 N. E. (2d), 577; Terteling Bros., Inc., v. Glander, Tax Commr., 151 Ohio St., 236, 85 N. E. (2d), 379; 47 American Jurisprudence, 229, Section 24.

In the instant case the assessment is based on invoices made out by appellant when the order was placed by the customer. Appellant’s only witness testified respecting each transaction in controversy and described the article brought into the store and the change to be made in the article., together with a description of the finished product to be delivered to the customer. The examiner for the Tax Commissioner characterized almost all of the numerous transactions as “restyling fur coat,” “restyled to cape,” “restyled to jacket,” or some other similar term. Such terms connote slight change in the article, and would be most favorable to the taxpayer. However, we are required to disregard the examiner’s characterization of the work done, inasmuch as the president of the appellant company testified in detail respecting every transaction. An analysis of his testimony shows that most of the transactions were: coat changed to cape; coat changed to jacket; coat changed to stole; or coat changed to cape-stole. Some of the transactions consisted of making a stole, a cape, a cape-stole, a scarf, a tie, or a muff from several pieces of fur. In all these transactions the original article lost its identity, either in the creation of a new article, or in making a “substantial alteration of the form or shape of an existing article.” Under the statute, and also under the rule, such transactions constituted a “production or fabrication,” and the tax base was the entire amount charged, including the cost of any materials furnished by the appellant. With respect to. this first class of transactions the order of the Tax Commissioner and the decision of the Board of Tax Appeals were reasonable and lawful.

A close examination of the record discloses a second class of transactions where a new article was not created, or where a substantial alteration of the form or shape of the existing article did not take place. We refer to the undisputed evidence where the witness described the process of work done as: collar restyled; coat restyled; coat shortened; coat re-cut; coat remodeled; coat revitalized; cape restyled; scarf restyled; and similar transactions. Such transactions did not constitute “production or fabrication” within the terms of the statute or the rule.

The Tax Commissioner contends that the fur pieces brought to the appellant by the customers are taken apart, the unusuable pieces discarded, new material added when needed, and then the old pieces and new pieces, if any, are put together again in making the article to be delivered to the customer; and that the process of taking apart and putting together creates, by art and skill, a new article. The case of Miller, d. b. a. Orchard Knoll Poultry Farm, v. Peck, Tax Commrs., 158 Ohio St., 17, 106 N. E. (2d), 776, is cited, which defines “manufacturing” on page 20 as follows:

“The term, ‘manufacturing,’ is otherwise defined as the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand labor or by machinery. See the Century Dictionary.”

It is contended that the word, “production,” bears the same connotation as “manufacturing.” The test applied in Miller v. Peek, supra, would have application to the first class of transactions aforementioned, but not to the latter class. Under the provision of the statute and rule 38 the test to be applied in determining whether the taxpayer is engaged in production or fabrication does not lie in the process used, but whether the finished article is substantially different from the original article. In the first class of transactions a substantial change appears; in the latter class the finished article delivered to the customer is practically and substantially the same as the original article. This distinction was made by the Board of Tax Appeals in the case of Black, d. b. a. Black Furs, v. Peck, Tax Commr., Docket No. 24477, decided by the Ohio Board of Tax Appeals on March 8, 1954, where it held that the restyling and remodeling of a coat into a cape or jacket involved a substantial alteration and consequently a taxable sale; but when work consisted of restyling some part or parts of the coat, or putting in fullness, such work consisted of repairing and not production or fabrication and did not result in a taxable sale. Other cases are cited which are not helpful in determining the issues raised.

The order of the Tax Commissioner and the decision of the board in holding that the second class of transactions constituted “production or fabrication” within the meaning of Section 5739.01, Revised Code, was unreasonable and unlawful. Such transactions fall in the category of “repairs” and the assessment of tax is controlled by Section 5739.01, subdivision (H), Revised Code, which provides that the tax may not be assessed on the amount charged for labor, “if the consideration for such services is separately stated from the consideration received for the tangible personal property.” Here we revert to a consideration of the assignment of error No. 2, and do so only on the assumption that this court may be reversed in holding that the question of a breakdown between labor and materials is not before this court. The decision of the board implies that in certain transactions there was a breakdown of the consideration charged for labor and materials. On such transactions the statute expressly provides that the tax shall not be assessed on the amount charged for labor. This court is unable to determine the transactions on which this breakdown occurred. It is not essential that the breakdown be shown by the invoices; it is sufficient if this separate consideration be shown on the books of the taxpayer. This principle was announced by the Supreme Court in Roberts, d. b. a. Adams Upholstering Co., v. Glander, Tax Commr., 156 Ohio St., 247, 102 N. E. (2d), 242; and in Jones, d. b. a. Tennessee Barbecue, v. Glander, Tax Commr., 150 Ohio St., 192, 196, 80 N. E. (2d), 766. It was held that where the records are not available, the taxpayer, in a sales-tax-assessment proceeding, may introduce parol evidence as to the exempt sales, and on this issue the burden of proof is on the vendor or taxpayer to show what part, if any, of such sales are tax-exempt. See, also, Cogen, d. b. a. Hart Jewelry Co., v. Glander, Tax Commr., 156 Ohio St., 263, 266, 102 N. E. (2d), 1. On the transactions where a separate consideration was stated on the records of the appellant, or where the evidence would show a separate consideration, the assessment should not have been made on the entire consideration. To this extent the order of the Tax Commissioner and the decision of the board were unreasonable and unlawful. With respect to these transactions, the cause should be remanded for a reassessment in conformity herewith, if it should later be found that this issue is properly before this court.

If the question just discussed is not properly before this court, and we hold that it is not, we are required to affirm the decision of the Board of Tax Appeals on the questions raised by assignments of error numbered one and three.

In our opinion rule 38 is not arbitrary, and is reasonable and appropriate for the purpose to be served; it neither enlarges nor impairs any right given by the statute.

We find no error in the record prejudicial to the rights of the appellant. The judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Matthews, P. J.

text:
    The State, ex rel. Bosch, Appellee, v. Denny’s Place et al., Appellants.

      (No. 1031
    Decided May 21, 1954.)

      Mr. Jackson Bosch, for appellee.

      Messrs. Hopkins & Curran and Mr. Lee J. Hereth, for appellant.
   Matthews, P. J.

On October 21, 1952, the plaintiff filed its petition to abate a nuisance on certain described premises known as Denny’s Place in Butler County, under favor of Section 13195-1 et seq., General Code (Section 4301.73 et seq., Revised Code). The plaintiff alleged that the defendant for years had conducted the business of selling intoxicating liquor on the premises in violation of law, thereby creating and maintaining a nuisance, as defined in the aforesaid section. The character of the nuisance and its harmful effects upon the public were described in great detail, but for the purposes of this appeal it is not deemed necessary to set forth those allegations.

The prayer of the petition was: “That said nuisance be abated and that said defendant and his agents, servants and employees, and all persons interested directly or indirectly in the operation- of said premises herein described or on said real estate be perpetually enjoined from the use and occupancy of said premises and from maintaining the said nuisance on said premises, and from further maintenance thereof, together with such other, further and different relief as the court deems advisable in the premises.”

On October 28, 1952, the cause came on for final hearing upon agreement of the parties and, thereupon, the court found that the premises had been used as alleged in the petition, in that the illegal sale of intoxicating liquor had taken place thereon on many occasions, that the defendant-owner had managed and operated said business on the premises, and that a common nuisance existed thereon.

On this finding, the court decreed “that a permanent injunction be and the same is hereby ordered as prayed for in the plaintiff’s petition against the defendant Dennis M. Robinette and he is herewith permanently enjoined and restrained from selling or dealing in or serving beer or intoxicating liquors or beverages, either personally or through his agents or servants, at the premises hereinbefore described or in any place in Butler County, Ohio, without a permit from the Department of Liquor Control of the State of Ohio or in violation of law.” This was followed by provisions for abating the nuisance, excluding defendant from the use of the premises for one year, and appointing a receiver to take charge of the property.

On February 10, 1954, the plaintiff filed a motion for a citation for contempt and affidavit in support thereof, charging the defendant with violating the injunction. The motion charged the defendant in general terms with violation of the injunction, but the affidavit averred that the violation consisted in the resumption of the business of selling liquor at Denny’s Place, which was the site of the common nuisance alleged in the petition and decree.

On the hearing of this contempt charge, the court found the defendant guilty and sentenced him to six months imprisonment and a fine of $500. It is from that sentence that this appeal was taken.

Appellant’s counsel point out that by this decree the court in terms purports to enjoin the defendant from violating the laws relating to the selling, dealing in, or serving of intoxicating liquor contrary to law, “in any place in Butler County, Ohio.” It is suggested that this is an attempt to substitute the injunctive process for the safeguards of the criminal code. A similar provision was contained in an injunction reviewed in the case of State v. Brush, 318 Ill., 307, 149 N. E., 262. The defendant was charged with violating that provision. In finding for the defendant, the court, at page 311, said:

“The decree of the County Court of Christian County so far as it purported to enjoin the plaintiff in error from manufacturing, selling or keeping intoxicating liquor on any premises in the state of Illinois, is void, it merely enjoins the plaintiff in error, generally, from the commission of a certain class of crimes, and it is not within the general powers of a court of equity and is not authorized by the statute. Since the decree was void, the plaintiff in error was not guilty of contempt of court if he disregarded it.”

The court, at page 310, said that the Prohibition Act had not conferred any such power upon the court, and that the power of the Legislature to confer such power “may be doubted.”

In Sullivan v. State, 191 Ark., 180, 83 S. W. (2d), 824, similar provisions in an injunction were reviewed in a contempt proceeding. The provision violated, however, was that enjoining the sale, etc., of intoxicating liquor .on the premises (Old Heidelberg Inn) on which the common nuisance had been maintained. The court, at page 184, said-:

“It must be conceded that a proceeding of this kind is to abate a nuisance conducted at a particular place. If it be conceded that, to the extent that the court enjoined W. E. Sullivan from the sale of liquor ‘elsewhere in Pulaski County’ the order was in excess of power, that in no particular impairs the validity of the restraint in so far as it related to Old Heidelberg Inn.”

See, also, 48 Corpus Juris Secundum, 703, Section 424 et seq.; and Watkins v. Wilkerson, 141 Ga., 163, 80 S. E., 718, Ann Cas., 1915C, 1124.

We assume that a decree which in general terms purports to enjoin a defendant from committing a crime in the future, no matter where, within the juris diction of the court, would be beyond the power of the court on constitutional grounds. We agree, however, that the incorporation of such a provision does not invalidate other distinct provisions in the decree that are within the jurisdiction of the court. It should be noted that this portion of the decree does not respond to any prayer unless it should be found to come within the general prayer for relief. In the case at bar, the injunction against the sale of intoxicating liquor at Denny’s Place is entirely separate and distinct from the general provision against sales elsewhere in Butler County, and the invalidity of the latter provision does not affect the former.

A more troublesome question is presented by the defendant’s contention that the injunction expired at the end of the year of its issuance by operation of law. This contention is based on the following provision of Section 13195-1, General Code:

“And upon judgment of the court ordering such nuisance to be abated, the court may order that the room, house, building, structure, .place, boat, or vehicle, shall not be occupied or used for one year thereafter; but the court may, in its discretion, permit it to be occupied or used if the owner, lessee, tenant, or occupant thereof shall give bond with sufficient surety, to be approved by the court making the order, in the penal and liquidated sum of not less than $1,000 nor more than $5,000, payable to the state of Ohio, and conditioned that beer or intoxicating liquor will not thereafter be manufactured, sold, bartered, possessed, kept, stored, transported, or otherwise disposed of therein, thereat or thereon, in violation of law, and that he will pay all fines, costs and damages that may be assessed for any violation of the law of Ohio upon said property. For closing the premises and keeping them closed as provided herein, a reasonable sum shall be allowed the officer by the court.”

In the first paragraph of that section any place where intoxicating liquor is sold, etc., is declared to be a common nuisance. In the next paragraph is found provision for its abatement by action for injunction, and in the following paragraph that action' is expressly described as one in equity “brought in any court having jurisdiction to hear and determine equity cases.”

By Section 13195-3, General Code, it is provided that: “In the case of the violation of any injunction, temporary or permanent, granted pursuant to the provisions of Section 13195-1 of the General Code, the court, or in vacation a judge thereof, may summarily try and punish the defendant.”

The plaintiff prayed for a perpetual injunction against the maintaining of a nuisance on the described premises and, as is seen, the court responds to that prayer by awarding a permanent injunction.

It will be observed that this portion of the decree limits the permanent injunction to acts of the same character committed on the same premises as were found to have been a public nuisance. It is clear that the purpose in making the injunction permanent was to secure the public against the unlawful use of the premises by the defendant in such a way as to cause a reversion to the same kind of nuisance that had been abated.

That courts of equity are accustomed to granting permanent or perpetual injunctions in cases of recurring wrongs or threats, such as continuing trespasses, need hardly be stated. Equity intervenes in a variety of circumstances where otherwise a multiplicity of actions at law would result. It is also a familiar principle of equity that the court granting a permanent injunction has power to vacate or modify it at any time on proof of a change of conditions.

We are not advised from the record of the evidence upon which the court found that the premises were a common nuisance. We must assume that it was sufficient for that purpose. To be sufficient, it must have disclosed that the premises were being so used as to harm the civil rights of the citizens in public places or interfere with the transacting of public business. Having found the existence of a common nuisance, the duration of the injunction would rest in the sound discretion of the chancellor in the absence of any enabling statute. But the statute here being construed expressly recognizes that the injunction might be permanent.

We can see no intent to limit the equity power of the court to grant an injunction, temporary or permanent, in the provision authorizing the court to entirely exclude the defendant from the premises for one year. The injunction is only against the use of the premises in unlawfully selling intoxicating liquor thereon.

That the lack of jurisdiction of courts of equity to enjoin crimes as such is no more clear than its jurisdiction to enjoin common nuisances and that the facts calling for equitable intervention are also denounced as criminal is of no significance. This is clearly pointed out in State, ex rel. Stewart, v. District Court, 77 Mont., 361, 251 P., 137, 49 A. L. R., 627, where the court said beginning at page 376:

“This much may certainly be said: In practical operation the statute might easily result in substituting contempt proceedings for jury trials. Of the truth of this the case before us offers an apt illustration.
“No such result follows from the pronouncement of a given act as a public nuisance, punishing the perpetrator for committing the same, and enjoining him from repeating it. (State v. Ehrlick, 65 W. Va., 700, 23 L. R. A. [N. S.], 691, 65 S. E., 935; Ex Parte Allison, 48 Tex. Cr. App., 634, 13 Ann. Cas., 684, 3 L. R. A. [N. S.], 622, 90 S. W., 492; Campbell v. Peacock [Tex. Civ. App.], 176 S. W., 774.)
“Injunction lies to abate a nuisance although maintaining the nuisance involves a crime; to that extent the strong arm of equity aids in preventing crime. In that case, however, there must be proof of what the law denominates nuisance as distinguished from mere crime. The general rule is that an injunction will not lie to prevent or punish the commission of a crime. It is not any part of the intention of the law that constitutional provisions shall be evaded by substituting a civil for a criminal procedure, or a single judge for a jury. (State, ex rel. Alton, v. Salley [Mo.], 215 S. W., 241.)”

The cases cited fully support the court’s contention.

We find that the issuance of the injunction was within the jurisdiction of the court, that it was still operative, and that defendant was in contempt for violating it.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


author: Per Curiam.

text:
    Harper, Appellee, v. Harper, Appellant.
    (No. 541
    Decided October 19, 1954.)

      Messrs. Wead & Aultman, for appellee.

      Messrs. Scharrer, Scharrer é Hanaghan, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Greene County, overruling defendant’s motion for a modification of a former order awarding custody of three minor children of the parties to the plaintiff.

Under date of May 9, 1953, the plaintiff was granted a decree of divorce on the grounds of gross neglect of duty and extreme cruelty. The cross-petition of the defendant was dismissed for failure of proof. The custody of the three boys, who are now six, five and four years of age, respectively, was awarded to the father, with weekly visitation - rights being awarded the mother. ;

On December 29, 1953, the mother moved for a modification of the order of custody, requesting that custody be awarded to her, and, also, moved for an order providing for support of the children.

The record taken at the hearing for divorce is not before this court. Fiom all that appears in the record presented, there is no evidence that the father was unsuitable at the time of the decree or that he is now unsuitable. The court in awarding custody to the father decreed that the children should live with the father in the. home of the paternal grandparents. It appears that-the children have received proper care and attention on the part of the father and grandparents.

The mother grounds her motion for modification on the fact that there has been a change of conditions in that she now has a home in which she and the children may live. The evidence shows that a short time prior to the hearing the maternal grandparents purchased a seven-room residence in the city of Dayton, which they reconditioned and which was unoccupied on the date of the hearing. The maternal grandmother testified that if the custody of the children was given to the mother, she would furnish the home for occupancy by the mother and children, and that she would fur-, nish financial support, if needed, amounting to $60 per week. The evidence fails to show a binding obligation on the part of the grandparents. If the promises were put into immediate execution, the mother and children would continue to live on the beneficence of the grandparents, which could be withdrawn at any time. Also the evidence shows that a few days before the hearing a “for sale” sign was placed on the property. These circumstances, and the fact that the claimed changed conditions were prospective in character, were factors to be considered by the trial judge in determining whether the evidence showed sufficient change of conditions to warrant a modification. There was no serious effort made to show a change of conditions with respect to the father and the care given the children by him. On this point, the evidence indicated that the living conditions of the father and the children had improved.

The defendant in conceding that under the provisions of Sections 3109.03 and 3109.04, Revised Code (formerly Sections 8005-3 and 8005-4, General Code), the rights of father and mother as to custody of the minor children are equal, contends that the former order should be modified by awarding custody to the mother because of the tender years of the children. However, under Section 3109.04, Revised Code, the court in awarding custody of children, is required to take “into account that which would be for their best interest.” In the divorce decree the court found: “That it would be to the best interest of the children of said parties that the control and custody of said children be awarded to the plaintiff exclusively.” The defendant, on the issue made, carries the burden of proof to show such a change of conditions as would warrant a modification of the former order.

While we recognize that strong ties of love and affection exist between a mother and her children, we are conscious, too, of similar ties between a father and his sons, which grow with the years. It is not for the best interest of the children to have them transferred from one parent to another several. times during a short period of a few years. These boys will very shortly need the father’s care, discipline and companionship. It was within the province of the trial court to consider these factors in determining what would be for the best interest of the three boys.

In according the trial court the right to weigh the evidence we cannot say on the basis of the evidence that, the judgment was contrary to the evidence or contrary to law. Certainly the evidence does not show changed conditions, which, as a matter of law, would require modification. On the issue presented and the evidence introduced, the trial court was required to exercise a broad discretion, and this court cannot order a reversal in the absence of a finding that there has been an abuse of discretion, which we fail to find.

The trial court has allowed visitation rights to the mother by permitting her to take the children each Sunday from 8 a. m. to 6 p. m. This does not mean that the mother in the future will always be so limited in her visitation rights. A showing may be made which may cause the trial court, in the exercise of a sound discretion, to relax the terms of .the order with respect to visitation.

If the mother has a suitable home, it would seem only just to modify the custodial order to permit her to have these young children with her for more protracted periods of time than now provided, possibly through school vacations.

We observe that the notice of appeal is on questions of law and fact. In this proceeding, an appeal could only be taken on questions of law and counsel have proceeded on that basis. The court ana aponte dis misses the appeal on questions of law and fact and orders the case retained as an appeal on questions of law.

Since we find no error in the record prejudicial to the rights of appellant, the judgment is affirmed.

Judgment affirmed.

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


text:
    Harmon et al., d. b. a. Lacto-Vee Products Co., Appellants, v. Carson et al., Appellees.
    (No. 2294
    Decided November 13, 1954.)

      Messrs. Eaton & O’Grady, for appellants.

      Messrs. Jacobson é Durst, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County.

Plaintiffs instituted an action for rescission of a contract of purchase of a business owned and operated by defendant Orville Carson. The matter being in equity, the cause was tried to the court, which denied the plaintiffs equitable relief on the ground that the plaintiffs had not tendered to the defendant certain assets transferred to the plaintiffs under the contract of purchase, reserving to the plaintiffs their right to proceed against the defendant in an action at law for damages.

Plaintiffs contend the court erred in overruling the motion for judgment for damages based on the court’s finding of facts in the decision of the court, which finding is a part of the bill of exceptions. A court of equity will not grant compensatory damages where they are not given as an incident of some other equitable relief. Sun Oil Co. v. Dollbeer, 21 Ohio Law Abs., 176; National Tube Co. v. Eastern Tube Co., 3 C. C. (N. S.), 459, 13 C. D., 468, affirmed by the Supreme Court without opinion, 69 Ohio St., 560, 70 N. E., 1127; Buydden v. Mitchell, Admx., 60 Ohio Law Abs., 493, 496, 102 N. E. (2d), 21; 1 Pomeroy’s Equity Jurisprudence (5 Ed.), 436, Section 237d. Where the court refuses to grant equitable relief, as in this case, all it can do is reserve to plaintiff the right to bring an action at law for damages. This was done in the ipstant case. The judgment of the court in refusing rescission is supported by the record. We reject the claim of the plaintiffs that the action was at law for damages.

. It is contended that the court erred in dismissing Ordella Carson and Lawrence Carson, the claim being made that they, together with Orville Carson, were partners. Only a portion of the evidence on the issue of partnership is before the court. The testimony of Ordella Carson and Lawrence Carson is not incorporated in the bill of exceptions. On the record as it comes to us we cannot say that the court was required to resolve this issue in favor of plaintiffs as a matter of law.

We find no assignment of error well made. No error being found in the record prejudicial to the rights of the plaintiffs, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeok, JJ., concur.


text:
    The State of Ohio, Appellee, v. Powers, Appellant.
    (No. 224
    Decided June 28, 1954.)

      Mr. Ray Bradford, prosecuting attorney, and Mr. Ralph Hill, for appellee.

      Mr. Sterling L. Brown, for appellant.
   Matthews, P. J.

The defendant, appellant herein, was convicted of shooting with intent to wound one Morris L. Jordan, at a trial at which John H. Houston, Judge of the Court of Common Pleas of Brown County, presided, a jury having been duly waived by defendant.

Three grounds are urged for the reversal of this conviction. One of these grounds relates to the jurisdiction of Judge Houston to preside as judge in Clermont County under the circumstances hereinafter related, and the other two grounds relate to the conduct of the trial. We shall consider the latter two first.

(1) It is urged that the conviction is not sustained by that degree of proof required in a criminal action.

The trial judge, who heard and saw the witnesses, resolved this issue against the defendant, and this court would not be justified in disturbing his finding unless it manifestly appeared that the state had failed to establish guilt beyond a reasonable doubt.

The defendant admitted that he had intentionally shot and wounded Jordan at the time and place charged in the indictment. He defended on the ground that he acted in self-defense. That placed the burden bn him of proving that he had reasonable ground for believing that it was necessary to shoot to protect himself from death or great bodily harm. 12 Ohio Jurisprudence, 85, Section 44.

We have examined the evidence in the record and have reached the conclusion that the issue was one for the trier of the facts, and the result dependent upon the wéight of the evidence and the credibility of witnesses. Under such circumstances, a reviewing court is not. justified in disturbing the finding made.

(2) After the court had announced its finding of guilty, it announced that it would postpone imposing the sentence until a stated date and in the meantime would have an investigation made to determine wheth er the defendant should be placed on probation. On the stated date, the court announced that the investigation had disclosed misconduct on defendant’s part— one incident involving the use of a gun — and for those reasons had concluded to deny probation. Thereupon, the sentence was imposed in accordance with law.

In this conduct of the trial judge we find no error or impropriety or evidence of bias or prejudice — just the contrary.

(3) As already noted, the defendant waived his right to a trial by jury and the trial proceeded before the judge. At the conclusion of the evidence, which took place on February 10, 1954, the judge announced his finding of guilty of shooting with intent to wound and postponed imposing sentence until February' 16, 1954, stating at the time that he intended to have an investigation made in the. meantime to determine whether it was a proper case for probation. On February 16, 1954, the judge imposed the sentence of imprisonment in accordance with law.

On February 18, 1954, the defendant filed a motion for a new trial, in which for the first time he challenged the jurisdiction of the court, one of the grounds assigned for a new trial being: “That the court had no jurisdiction to hear and determine the case in the first instance.”

On the same day (February 18, 1954) the defendant filed a motion to vacate the decision and set aside the sentence on the ground that “the trial court was without authority and had no jijrisdiction to hear said case on February 10, 1954, nor to pronounce sentence on February 16, 1954, for the reason that said court is a nonresident jurist and was not acting under authority of a valid and effective assignment by the Supreme Court of Ohio, a copy of which is attached hereto and made a part hereof.” The attached document purports to be a copy of an assignment by the Chief Justice of the Supreme Court of Ohio, of the Honorable John H. Houston, a resident Judge of the Court of Common Pleas of Brown County, Ohio, to temporarily preside and hold court in the Court of Common Pleas of Clermont County, Ohio, on Tuesday, February 10, 1954, and to continue therein until the court business on which he had entered was completed.

The record is silent as to whether Judge Houston was acting under a formal assignment or otherwise on February 10, 1954, when he presided at this trial and pronounced the defendant guilty. If we accept as evidence the copy of the assignment attached to the motion to vacate he was acting under a formal assignment by the Chief Justice when he imposed the sentence on February 16, 1954.

However, the parties have presented the case to this court on the basis that there had been no assignment of Judge Houston to Clermont County prior to February 16, 1954. The intimation was that he was sitting in the Court of Common Pleas of Clermont County at the request of the judge of that court. There is no question that Judge Houston is a duly qualified Judge of the Court of Common Pleas of Brown County, Ohio.

There is no question that this trial took place in the courthouse in Clermont County, Ohio, that Judge Houston presided at the trial, that he was recognized by all the court officials at the trial as having authority to preside, and that the defendant made no objection based on any alleged lack of authority until after conviction and sentence. It is now contended that Judge Houston was ineligible to preside and that such ineligibility renders the judgment void. In the language of an earlier day, the contention is that the judgment is coram non judice.

The office of Judge of the Common Pleas Court is created by Section 3 of Article IV of the Constitution of Ohio. It provides for the election of at least one judge in each county, that as many courts or sessions as are necessary may be held at the same time in any county, and that “any Judge of the Court of Common Pleas may temporarily preside and hold court in any county.” This provision for holding more than one court or session is not made dependent upon the disqualification or disability of the resident judge. This provision is followed by procedure in the event of an asserted disqualification or disability of a common pleas judge. The provision is: “And until the General Assembly shall make adequate provision therefor, the Chief Justice of the Supreme Court of the state shall pass upon the disqualification or disability of any Judge of the Court of Common Pleas, and he may assign any judge to any county. to hold court therein. ’ ’

It is clear from these constitutional provisions that a common pleas judge is vested with authority to preside in each and every county in the state. The constitutional provision is self-executing. While no legislative act could deprive a judge of this authority, we assume that the General Assembly has the authority to pass laws regulating the exercise of such power. By Section 2503.04, Revised Code, the General Assembly has assumed to authorize the Chief Justice to assign common pleas judges of any county, without request, to aid in disposing of any unusual accumulation of cases, and, under certain circumstances, has made it his duty to make such assignment, but neither this section nor any other to which we have been referred makes such assignment a prerequisite to a judge presiding in a county other than the one in which he resides. Indeed, as pointed out later, the Legislature has recognized the authority of a common pleas judge to preside without assignment in counties other than that of his residence.

In the absence of a legislative enactment, it would seem that the matter of dispatching the business of the Common Pleas Court should be left to the judges themselves so long as they do so in such a manner as is satisfactory to the Chief Justice. If they allow an unusual accumulation of cases, that would call for the exercise of the power conferred by Section 2503.04, Revised Code.

That a common pleas judge may preside in a county in which he does not reside is expressly recognized in Section 141.07, Revised Code (Section 2253, General Code) providing for the payment of his expenses from the treasury of such county. That section provides that such judge shall receive his actual and necessary expenses "while holding court in a county in which he does not reside, by assignment of the Chief Justice of the Supreme Court under Section 2701.03 of the Revised Code, or without any assignment * * *.” (Emphasis added.) However, in the same section, provision is made for compensation for judges who have been assigned by the Chief Justice, but no provision for compensation is made for judges who serve without such assignment.

Our conclusion is that a common pleas judge presiding in a county other than the one in which he was elected or appointed acts in a de jure capacity, even though he .has not been assigned thereto by the Chief Justice.

However, it is our opinion also that this record shows that Judge Houston was, at the least, acting as a de facto judge in presiding in Clermont County, and that any defect in the title to his office and in his right to so act has been waived and certainly cannot now be raised in this action. He certainly was acting under color of right. Under such circumstances, quo warranto is the appropriate remedy to determine the title to the office.

In State, ex rel. Witten, v. Ferguson, Aud., 148 Ohio St., 702, 76 N. E. (2d), 886, a common pleas judge forfeited his office by entering the armed forces of the United States. Upon his return from military service, he resumed his position upon the bench. In that action in mandamus to require the issuance of a warrant for his salary, the court held, as stated in the second paragraph of the syllabus:

“In such case, where the former judge upon returning from the military service enters upon and performs the duties of his former office with the acquiescence of the public authorities and the public and has the reputation of being the officer he assumes to be and is dealt with as such, he is in the eyes of the law a de facto judge.”

The cases of Stiess et al. v. State, 103 Ohio St., 33, 132 N. E., 85, present facts very similar to those in this case. In those cases a police justice presided and held court outside the village in which he had been appointed. An attempt was made to raise the question of his authority to do so in the actions before him. In the second paragraph of the syllabus, the court held:

“The authority of a police justice of a village, appointed under favor of Section 4544, General Code, cannot be questioned, neither can the question of the constitutionality of Section 4544, General Code, be raised otherwise than in a quo warranto proceeding to determine the validity of the title of such justice to his office, in which proceeding the justice himself must be made a party defendant and have the opportunity to appear and make a defense thereto. (Ex parte Strang, 21 Ohio St., 610, and State v. Gardner, 54 Ohio St., 24, approved and followed.)”

Many other cases could be cited in support of the conclusion reached in those cases. As there is no conflict on the subject, further citation would serve no useful purpose.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


author: Fess, J.

text:
    Pickett, Appellant, v. Industrial Commission of Ohio, Appellee.
    (No. 4813
    Decided December 13, 1954.)

      Messrs. Reams, Bretherton & Neipp, for appellant.

      Mr. George B. Fell, for appellee.
   Fess, J.

This is an appeal on questions of law from a finding and judgment of the Common Pleas Court that plaintiff is not entitled to participate in the workmen’s compensation fund.

The rehearing record discloses that the Sun Oil Company of Toledo, Ohio, let a contract to the Catalytic Construction Company, general contractors, to build additional plants on its premises located at East Toledo, near Woodville Road. The general contractor in turn sublet some of the work to subcontractors, including the G. & L. Firebrick Contractors, Inc., by whom claimant was employed.

Adjacent to the enclosed area surrounding its plant, the Sun Oil Company had a parking lot for the occupancy and use of its employees. This lot accommodated about 100 cars and was divided into parking lanes by cables supported through posts. The Sun Oil Company permitted employees of the Catalytic Construction Company and the several subcontractors to park their cars on the oil company parking lot, but neither the Catalytic Construction Company nor the G. & L. Firebrick Company specifically directed their employees to park in such lot.

The record discloses further that the claimant was employed by the G. & L. Firebrick Company as a brick mason on its job. For a period of three months prior to his injury, claimant had parked his car in the Sun Oil Company lot. After parking his car, he would then walk a distance of 100 yards or so to a shanty on the other side of the fence separating the parking lot from the Sun Oil plant, where he would check in and proceed to perform the work for which he was hired.

Plaintiff’s hours of employment were from 7:30 a. m. to 4:00 p. m. On August 26, 1949, the claimant drove into the parking lot about 7:15 a. m., and while looking out of the right window at another car parked adjacent to the space he was entering he backed his car about two-thirds of the way into a space when his car was bumped by another automobile just in back of his car. He then discovered that another employee, Frank Long, had driven his car from the adjoining lane over one of the cables which was lying on the ground. An altercation arose between the two men over their respective rights to the use of the space. Long got out of his car and walked over to the claimant’s car, reached in and struck the claimant on the jaw, then pulled claimant out of his car and struck him with such force that he fell to the ground, sustaining a fracture involving the base of the neck of the left femur. There is no basis in the record to substantiate a finding that this brutal assault was provoked by the claimant.

Again we are confronted with the troublesome question of whether the injury was incurred in the course of and arose out of plaintiff’s employment.

Shortly after the enactment of the Act of March 13, 1913 (103 Ohio Laws, 82), the Supreme Court incorporated in the definition of compensable injury the limitation that the injury must arise out of the employment. Fassig v. State, ex rel. Turner (1917), 95 Ohio St., 232, 116 N. E., 104. To allow compensation for injuries which may have occurred in the course of the employment, but which did not arise out of or have relation to the employment, would probably contravene constitutional rights of employers in that they would be required to contribute to the fund to cover injuries for which they were in no way responsible. Industrial Commission v. Weigandt, 102 Ohio St., 1, 6, 130 N. E., 38; Malone v. Industrial Commission, 140 Ohio St., 292, 296, 43 N. E. (2d), 266. The limitation announced in the Fassig case was carried into the statute in 1937 (117 Ohio Laws, 109) by the addition of the following definition:

“The term ‘injury’ as used in this section and in the Workmen’s Compensation Act shall include any injury received in the course of, and arising out of, the injured employee’s employment.”

By way of amplification of the definition, the fifth paragraph of the syllabus in the Fassig case also states that such provisions do not cover any. injury which has its cause outside of and disconnected with the employment, although the employee may at the time have been engaged in the work of the employer in the usual way. In 1921, the Supreme Court held that the test of the right to an award is not whether the employer was negligent but whether the employment had some causal connection with the injury, either through its activities, its conditions or its environments. Industrial Commission v. Weigandt, supra. See, also, Ashbrook v. Industrial Commission (1939), 136 Ohio St., 115, 24 N. E. (2d), 33, wherein compensation was denied but the principle was reaffirmed. In the Weigandt case the injury occurred within the plant (but not at the employee’s place of work), as a result of a scuffle between two fellow-employees. Then followed Industrial Commission v. Barber (1927), 117 Ohio St., 373, 159 N. E., 363, which introduced the element of “zone of employment” outside the plant, but under the control of the employer, as constituting a condition and environment of employment under the control of the employer. The hazards of that condition and environment were held to be hazards to which the employee was required to expose himself in the performance of his contract of employment.

Recently the Supreme Court has reiterated that an injury occurs in the course of and arises out of the employment if the injury follows as a natural incident of the work and as a result of exposure occasioned by the nature, conditions and surroundings of the employment; and the workman need not necessarily be injured in the actual performance of work. It is sufficient if he is injured in a pursuit or undertaking consistent with his contract of hire and which in some logical manner pertains to or is incidental to his employment. Sebek v. Cleveland Graphite Bronze Co. (1947), 148 Ohio St., 693, 76 N. E. (2d), 892. See, also, Nelson v. Industrial Commission (1948), 150 Ohio St., 1, 12, 80 N. E. (2d), 430. By way of illustration of the application of the principle, the court, in the Sebek case, cited the following authorities:

DeCamp v. Youngstown Municipal Ry. Co., 110 Ohio St., 376, 144 N. E., 128, injury received while a workman was alighting from a street car and while on his way to work, where the furnishing of transportation by the employer was a part of the employment contract; Industrial Commission v. Barber, supra, fatal injury received while an employee was on his way to work on a street maintained by the employer; Industrial Commission v. Davison, 118 Ohio St., 180, 160 N. E., 693, injury, resulting in death, occurring immediately before delivering an address incidentally promoting the employer’s interests; Industrial Commission v. Henry, 124 Ohio St., 616, 180 N. E., 194, fatal injury after beginning work and while returning thereto after eating breakfast at a nearby restaurant in accordance with sanctioned custom; Kasari v. Industrial Commission, 125 Ohio St., 410, 181 N. E., 809, 82 A. L. R., 1040, fatal injury on employer’s premises while enroute to place of work; Spicer Mfg. Co. v. Tucker, 127 Ohio St., 421, 188 N. E., 870, death from infection following vaccination during working hours, which vaccination was ordered by employer; Outland v. Industrial Commission, 136 Ohio St., 488, 26 N. E. (2d), 760, fatal injury while at home to procure material for soliciting business for employer; Parrott v. Industrial Commission, 145 Ohio St., 66, 60 N. E. (2d), 660, injury while on premises of employer to collect wages after termination of employment; DeStefano v. Alpha Lunch Co., 308 Mass., 38, 30 N. E. (2d), 827, contraction of trichinosis by eating a meal provided by employer, while off duty; Meyer v. Roettale, 64 S. D., 36, 264 N. W., 191, a member of threshing crew, who, as an incident to his employment, ate poisoned food; Goodyear Aircraft Corp. v. Industrial Commission, 62 Ariz., 398, 158 P. (2d), 511, warehouse guard, required to eat his lunch on premises, injured by explosion of cola bottle; Flanagan v. Charles E. Green & Son, 122 N. J. Law, 424, 5 A. (2d), 742, employee, after eating his lunch, went into un lighted room to wash milk bottle and tripped over a stool; Tscheiller v. National Weaving Co., Inc., 214 N. C., 449, 199 S. E., 623, employer sold employee meal coupon books with which employee bought food from another employee during working hours and became ill from eating impure food.

In Industrial Commission v. Henry, supra, the court did not consider the Barber case applicable because the right of way of the railroad upon which the employee was killed was not under the control of the employer, but nevertheless allowed recovery upon the basis that the nature of employment, the hours of service, the condition of the premises, and the location of the tracks which the employee was obliged regularly and continuously to cross, subjected him to a degree of exposure to the common risk beyond that to which the general public was subjected. In the Henry case, prior to the accident, the employee had already entered upon his employment and after having his breakfast was traveling the most direct route to perforin the next necessary act in the course of such employment. In support of its reasoning, the court cited Cudahy Packing Co. v. Parramore, 263 U. S., 418, 68 L. Ed., 366, 44 S. Ct., 153, 30 A. L. R., 532, in which the Supreme Court says at pages 424 and 426:

“The fact that the accident happens upon a public road or at a railroad crossing and that the danger is one by which the general public is likewise exposed is not conclusive against the existence of such causal relationship, if the danger be one to which the employe, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.
ti # # #
“Here the location of the plant was at a place so situated as to make the customary and only practicable way of immediate ingress and egress one of hazard. * * * He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited to do so by Ms employer * * * as a. necessary concomitant of Ms employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected. * * #
“We attach no importance to the fact that the accident happened a few minutes before the time Parramore was to begin work and was, therefore, to that extent, outside the specified hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable time for that purpose.”

In the Henry case the court also concluded that the hazard of the track (over which the employer had no control) adjacent to the plant constituted a hazard of employment for men who, as an incident of their work, after their work had begun, customarily with the consent of their employer went across the tracks to get their breakfast in the early morning hours.

In Kasari v. Industrial Commission, supra, the court approved the pronouncement of the United States Supreme Court under the Federal Employer’s Liability Act that employees injured while on the way to work, after reaching the premises of the employer, are within the course of employment, but the Ohio Supreme Court refrained from declaring a universal rule that the hazards begin in all instances at a point where the employee crosses the line of the employer’s premises. In referring to the Barber case, the court says at page 412:

“The question of control only entered into consideration of that case [Barber] because the workman was injured outside the premises of the employer. * # #
“* * * This fact, however, does not avoid the. obvious holding in that case [Barber] that the hazards do begin before the employe has reached the plant, and even before he has reached the premises. The further fact that the employer in that case had a certain control over the zone outside the enclosure, and that the employer failed to provide separate sidewalks for pedestrians, is not decisive or even important.” (Emphasis supplied.)

In Industrial Commission v. Baker (1933), 127 Ohio St., 345, 188 N. E., 560, the court reiterated that an injury sustained by an employee after reaching the zone of employment under the control of his employer, even though outside the enclosure constituting his place of work, is compensable, but held that the statute contemplates only those hazards to be encountered by the employee in the discharge of the duties of his employment and does not embrace risks and hazards such as those of travel to and from his place of actual employment over streets and highways which are similarly encountered by the public generally. See, also, Industrial Commission v. Heil, 123 Ohio St., 604, 176 N. E., 458; and Walborn v. The General Fireproofing Co., 147 Ohio St., 507, 72 N. E. (2d), 95.

In Gregory v. Industrial Commission (1935), 129 Ohio St., 365, 195 N. E., 699, the court says at page 369:

“In 49 A. L. R. at page 433, the general proposition is laid down, as follows:
“ ‘It is generally held that an injury sustained by a miner, while proceeding, on the premises of his employer, to his place of employment, or an injury sustained while preparing to begin his day’s work * * * arises out of and in the course of the employment, within the meaning of the act. ’
‘ ‘ This is rather a broad statement, but the Ohio authorities are in accord with it in the main.”

In the Gregory case the assault resulting in the death of the employee occurred on the employer’s premises within approximately 200 yards of the barn where the ponies the employee drove and attended were kept, and 250 yards from the mine.

In Merz v. Industrial Commission (1938), 134 Ohio St., 36, 15 N. E. (2d), 632, zone of employment is'defined as the place of employment and the area thereabout, including the means of ingress thereto and egress therefrom, under the control of the employer. This definition was not carried into the syllabus of the case, but in the opinion the court further says at page 39:

“In Kasari v. Industrial Commission, supra, the court, commenting on this phase of the Barber case, stated that the above rule was based on the principle that the zone of employment was under the control of the employer.”

In Krovosucky v. Industrial Commission (1943), 74 Ohio App., 86, 57 N. E. (2d), 607, recovery was allowed an employee who, prior to commencing work, parked his automobile on grounds separated from the entrance to the place of employment owned by the employer who permitted, but exercised no control over, such parking, and was injured by tripping over an icy rut in such grounds. See, also, Spellman v. Industrial Commission (1943), 73 Ohio App., 369, 51 N. E. (2d), 414.

In the instant case it may be inferred that whatever arrangement was made between the employer and the Sun Oil Company with respect to the parking of employees’ cars was for the convenience of the employer as well as the employees in the conduct of the work at the plant. The employer, a subcontractor, exercised no control over the parking lot or even over any portion of the premises of the Sun Oil Company within its enclosure, except possibly that portion upon which the work was performed. As is the Henry case, the Barber case is, therefore, inapplicable except as an illustration of the principle that an injury is compensable when incurred in a pursuit or undertaking consistent with the contract of hire and which in some logical manner pertains to or is incidental to the employment. Sebek v. Bronze Co., supra.

Many years ago the Supreme Court adopted the test of the right to an award as conditioned upon whether the employment had some causal connection with the injury, either through its activities, its conditions, or its environments. Industrial Commission v. Weigandt, supra. Or as more recently expressed — if the injury follows as a natural incident of the work and as a result of exposure occasioned by the nature, conditions and surroundings of the employment. Sebek v. Bronze Co., supra.

The evidence received on behalf of the claimant was unrebutted and no disputed question of fact was presented for determination. Upon this record it is, therefore, concluded that reasonable minds could reach but. one conclusion — that claimant’s injury was incurred in the course of and arose out of his employment.

The judgment of the Common Pleas Court is reversed and final judgment entered for the plaintiff.

Judgment reversed.

Conn and Deeds, JJ., concur.

       But see comment by Matthias, J., in Industrial Commission v. Baker, 127 Ohio St., 345, 350, 351.


author: Doyle, P. J.

text:
    Olds, Exr. and Trustee, Appellee, v. Morse, Appellant.
    (No. 4416
    Decided February 17, 1954.)

      Mr. James Olds, for appellee.

      Messrs. Bailey & Bailey, for appellant.
   Doyle, P. J.

This is an action of forcible entry and detainer, commenced in the Municipal Court of Akron by James Olds, executor and trustee, appointed pursuant to the probate of the will of Prudence Grace Reed, deceased, and is directed against Gerald E. Morse, who occupied a house, owned by the deceased at the time of her death, under a month-to-month tenancy, and who continued thereafter to possess the premises under circumstances which will be later stated.

The Municipal Court entered its judgment against the defendant, Gerald E. Morse, and ordered restitution of the premises to the plaintiff. Upon appeal to the Court of Common Pleas of Summit County, the judgment was affirmed. Further appeal has brought the case to this court for review of the judgment of affirmance of the Court of Common Pleas.

In this court, the appellant, Morse, challenges the right of the plaintiff trustee to bring the action in the Municipal Court of Akron. He charges in effect that the trustee was not entitled in law to receive the real payment; that he was not in default because he paid the rent to the only heir of the decedent; that the trustee was not his landlord; and that a will contest action had been filed. The appellant further contests the right of the Municipal Court to entertain jurisdiction of the cause, on the ground that title to real property was in dispute. To these questions we now direct our attention.

The record shows the following item in the will of the dead lady:

‘‘ Item II: I give, devise and bequeath all of my property, real and personal, of whatever kind and character and wherever situated, which I have the right to dispose of at the time of my decease, to James Olds, in trust for the following purposes:
“(a) All of the income from and increase of said property shall be paid, delivered and given over to my son, Harold Reed, or he shall be entitled to, and have the use and enjoyment of, all or any part of said property, at the sole discretion of the trustee, during the lifetime of my son, Harold Reed.”

It further appears in the record that the tenant, following the death of the owner, paid the rent to Harold Reed, the life beneficiary (in spite of demand for it by the trustee), who in turn paid the taxes, insurance, etc., on the property, and kept the balance, although the tenant had notice and full knowledge of the death of his landlord and the testamentary devise in the will. The record further reveals that the life beneficiary under the will is the sole heir of the deceased, and had instituted an action to contest the will.

1. The will is bare of any intention of the testator other than that the title to the property should vest immediately in the trustee and be used for the purposes stated. Under the law of this state, the legal title to the real property devised to the trustee vested immediately in him upon the probate of the will and related back to the time of the death of the testator. See 41 Ohio Jurisprudence, Wills, Section 729, and cases therein cited.

2. The instrument which created the trust, imposed upon the trustee certain duties, and the trustee, after accepting the trust, was bound to administer it in accordance with the directions given. Under the instrument, he was obligated to so administer the trust that an income could be derived therefrom, not only for the benefit of the life beneficiary, but for use in preserving the property for the benefit of the residuary legatees o.r devisees after the life interest had terminated. It thus became his duty to collect and account for the rents.

3. The death of a lessor does not terminate a lease from month to month, and the reversion under a will passes to the devisee of the property; and the new owner of the fee becomes the landlord in the place of the decedent. 24 Ohio Jurisprudence, Landlord and Tenant, Section 399; 32 American Jurisprudence, Landlord and Tenant, Section 95; and cases cited therein. The trustee therefore became the new landlord, and became possessed of all rights in respect to the leased premises that had been previously given by law to his deceased predecessor in title. It thus follows that, upon the refusal of the tenant, after notice, to pay the rent to the person entitled thereto, the said tenant was in default. Payment to a stranger, even though the stranger had a beneficial interest in the property, was not payment under the tenancy.

4. Did the Municipal Court of Akron have jurisdiction to hear and determine the action in forcible entry and detainer?

The Municipal Court Act in Section 1594, General Code (now Section 1901.18, Revised Code), gave the Municipal Court of Akron original jurisdiction within its territory “(A) In any civil action, of whatever nature or remedy, wherein justices of the peace now have or may hereafter be given jurisdiction.” Justices of the peace were, by virtue of Section 10224, General Code (now Section 1909.02, Revised Code), specifically given jurisdiction in actions in forcible entry and detainer. However, in Section 10232, General Code (now Section 1909.10, Revised Code), the justice court was specifically denied jurisdiction “6. In actions in which the title to real estate is sought to be recovered, or may be drawn in question, except in the cases provided for in the next preceding section.” (The provisions of the ‘‘next preceding section” did not measure the instant case.)

At this point in our discussion, it is proper to conclude that, unless the title to the real estate was drawn in question, or unless the fact that the will was being contested at that time is of importance, the trial court had jurisdiction.

Section 10509-22, General Code (now Section 2113. 21, Revised Code), related to the powers of executors, of administrators with the will annexed, and of testamentary trustees, during a will contest. Nothing in this section disturbed the law heretofore stated, relating to the passing of title to real property to a named devisee upon the probate of the will. Nor did it affect the rules of law relative to the rights of a testamentary devisee of real property subject to a month-to-month tenancy from becoming and standing in the shoes of a deceased landlord.

Was the title to real estate drawn in question?

• An undisputed fact in the record before us is a testamentary disposition of the legal title to the property in question to the plaintiff in this case. This conclusion is supported by the case of Brown, Guardian, v. Burdick, 25 Ohio St., 260, wherein the following statement appears:

“1. A copy of the probate and record of a will duly certified by the probate judge, is conclusive evidence of the validity of the will, on the trial of a collateral issue, between a stranger and the devisee respecting the property devised; and is admissible as evidence on the trial of such issue, notwithstanding proceedings to contest it may be pending at the time it is offered and admitted as evidence.”

In our examination of the question of: “ When is the title to real estate drawn in question?” we have examined with interest the following two eases: Lynam v. Schueler, 79 Ohio App., 101, 68 N. E. (2d), 114, and Warner v. Matthews, 79 Ohio App., 111, 69 N. E. (2d), 59. We agree with the pronouncements therein contained, in respect to the legal effect of the statute in question, and we declare, as did the court in those cases, that, if the factual development in the trial of a cause of forcible entry and detainer raises any issue to support a denial of the title in the plaintiff, then the court should refuse to determine the issue of title and dismiss the case for lack of jurisdiction. If, however, in spite of a defendant’s denial of title in the plaintiff, the proof discloses no issue of fact respecting title to the property, the question of title is not involved, and the Municipal Court, as would the justice of the peace court, have jurisdiction to determine a cause of the kind here under consideration.

We adopt for this opinion a statement taken from Warner v. Matthews, supra (at p. 115):

“* # * It wouid be a harsh and unjust rule to hold that in a forcible entry and detainer suit or in any action wherein it is incumbent upon plaintiff to plead and prove his title, a defendant may by the mere act of setting up a denial of such an averment deprive the court of its jurisdiction to hear the cause. The test must be whether the factual development affords any support for the issue made on the question of title. If it does, then the statute must be given application.”

If it does not, the statute does not apply.

5. The undisputed facts in the case now before us (the probate of the will and the testamentary devise to the trustee Olds).did not raise the question of title in the plaintiff, and the court had jurisdiction to determine the cause.

6. Examination has been made of all errors assigned, and vve find none of a prejudicial nature.

The judgment will therefore be affirmed.

Judgment affirmed.

Hunsicker and Hurd, JJ., concur.

Hurd, P. J., of the Eighth Appellate District, sitting by designation in place of Stevens, J.


author: Hornbeck, J.

text:
    Codic, Jr., Appellee, v. Board of Liquor Control of the State of Ohio et al., Appellants.

      (No. 4897
    Decided June 3, 1953.)

      Mr. Leonard J. Stern, for appellee.

      Mr. C. William O'Neill, attorney general, and Mr. Ralph N. Mahaffey, for appellants.
   Hornbeck, J.

This is an appeal from a judgment of the Common Pleas Court reversing an order of the Board of Liquor Control which had affirmed an order of the Director of the Board of Liquor Control refusing to grant a class C-2 permit to appellee.

The grounds for the refusal were:

“Pursuant to the provisions of Section 6064-16 of the General Code of Ohio, a hearing was conducted on June 16, 1952, at 10:00 a. m. in the Cleveland district office of the Department of Liquor Control, at which time the authorities in control of the Ninth Evangelical and Reformed Church objected to the issuance of subject permit.
“The department considers said objections well founded and determines it inadvisable to issue said permit.”

The original hearing and consideration was at the Cleveland office of the department and upon appeal to the board no representative of the church appeared. However, upon cross-examination of the appellee, it developed that the premises for which the permit was sought were located directly across-the street from the objector church and within fifty feet thereof.

The judgment in the Common Pleas Court finds that there was no evidence submitted to the Board of Liquor Control to support the action of the Department of Liquor Control in rejecting appellant’s application for a class C-2 permit.

The section of the General Code involved is 6064-16 which, so far as applicable, reads:

“* * * and no permit shall be issued by the department under authority of this act if the business specified to be operated in the permit applied for is to be operated within a distance of five hundred feet from the boundaries of a parcel of real estate having situated thereon a school, church, library or public playground, until written notice of the filing of said application with the department shall have been personally served upon the authorities in control of said school, church, library or public playground and an opportunity shall have been provided said authorities for a full and complete hearing before the director of liquor control upon the subject of the advisability of the issuance of the said permit; except in the case of an application from a permit holder for a permit of the same class for the same location.”

In Ohio, unlike many other states, the provision as to the granting of permits within a certain distance of school, church, etc., is not a complete bar to the granting of the permit. However, it is manifest from the language of the statute that the department is required, if the situation covered by the act is developed, to give consideration to, and to exercise discretion in determining whether it should grant a permit to sell intoxicating liquors. It will be noted also that there is no distinction in the section as to the type of permit to be considered. Obviously, the board with its knowledge of the character of the business to be operated under the various permits would take that into consideration in allowing or refusing the permit.

It will be noted further that the hearing which is assured the authorities of school, church, etc., is before the Director of Liquor Control and not before the board. The order recites that such a hearing was held and that at the time it was held the church involved objected - to the issuance of the permit. It is our opinion that substantial, probative evidence to support the action of the board in refusing to issue a permit, when the permit premises are to be operated within a distance of 500 feet from a church, is found when these physical facts appear. At the most, there is no obligation on the church or school affected to do more than object to the granting of the permit because of the proximity of the permit premises to the .school or church, although it may go further and offer testimony as to other disadvantages of granting the permit in the situation developed.

There was also sufficient showing before the board on the appeal to support the action of the director in refusing to issue the permit. We have no authority in Ohio directly in point.

It is said in 48 Corpus Juris Secundum, 244, Section 136& that:

“Where a statute or regulation forbids the issuance of a license for a place within a designated distance of certain places or institutions, such as schools, colleges, churches, or other specified places * * * these provisions are liberally construed in favor of the places or institutions which they were designed to protect.”

Manifestly, the legislation here under consideration was designed, as is our statute, to protect churches, schools and-other designated institutions. In State, ex rel. Higgins, v. City of Racine, 220 Wis., 107, 264 N. W., 490, the court supported an order of the Board of Liquor Control which refused to grant a license to an applicant solely on the ground of its location. In this instance there was no statute specifically controlling the situation. The court said that an ordinance or statute providing for the granting of a license upon the furnishing of a proper bond and evidence of good moral character does not prevent the licensing body from giving consideration to the proper location of a tavern, and the denying of a license because the place where the business is to be conducted is not a proper place by reason of surroundings for the carrying on of such an enterprise. See, also, Harrison v. People, ex rel., 222 Ill., 150, 78 N. E., 52; Kretzmann v. Dunne, 228 Ill., 31, 81 N. E., 790; Jugenheimer v. State Journal Co., 81 Neb., 830, 116 N. W., 964; Bernstein v. City of Marshalltown, 215 Ia., 1168, 248 N. W., 26, 86 A. L. R., 782.

The department originally, and the board on appeal, had sufficient probative evidence requiring them to exercise discretion whether or not under the provision of Section 6064-16, General Code, the permit should be granted to the applicant. The order of the board affirming the order of the director should have been affirmed.

Judgment reversed.

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