author: Gillen, J.

text:
    Potts, Appellee, v. The Travelers Ins. Co., Appellant.
    (No. 477
    Decided July 8, 1944.)

      Messrs. Woolley é Rowland and Mr. Paul M. Herbert, for appellee.

      Messrs. Jones & Williams, for appellant.
   Gillen, J.

This appeal upon questions of law is from a judgment of the Court of Common Pleas of Athens county, Ohio, rendered in favor of plaintiff, appellee herein, in the sum of $3,000 on a contract of group life insurance. The cause was submitted upon plaintiff’s amended petition, defendant’s second amended answer and plaintiff’s amended reply. The pleadings contain three pertinent issues as follows:

1. Plaintiff alleges that he was injured on the 17th day of October, 1935. Defendant admits this fact but denies the nature and extent of such injury.

2. Plaintiff further alleges that he became permanently and totally disabled on February 20,1940, which allegation is .denied by defendant.

■ 3. Plaintiff also alleges that due proof of notice in conformity with the provisions of the policy was given to the defendant. Defendant not only denies this allegation but avers that such notice was not given within a reasonable time after February 20, 1940, and was not given during the time the policy of insurance was in effect.

The record discloses that plaintiff’s employment with The F. C.' Stedman Company began in the year 1924 and continued until the latter part of September, 1941. On the 17th day of October, 1935, plaintiff was injured in the course of his employment when his head was caught between a gate bar on the elevator shaft and a descending elevator. According to the testimony of the' attending physician his injuries consisted of a lacerated wound under the chin about four inches long, a lacerated wound on the top of his head about four and one-half inches long and a depressed linear skull fracture near the occipital region. After a period of three or four months plaintiff returned to his employment but found it difficult to perform his usual duties. Other employees assisted him in his work and occasionally he would be sent home for rest. His wages were paid regularly even though he did not perform as much work as he did prior to the accident. His condition became progressively worse and in February, 1940, he began to receive special treatment. However, he had been under the care of a physician, more or less, ever since the day of the original injury.

Dr. Hutchinson, who examined plaintiff about the 20th day of February, 1940, diagnosed the case as post traumatic epilepsy. This witness testified that at the time of his diagnosis on February 20, 1940, plaintiff was totally and permanently disabled. In March, 1940, plaintiff was referred for an encephalelographic study of his skull to Dr. LeFever, a specialist in neuro-surgery, and in April was referred to Dr. Secrest, a specialist in neuro-surgery, for further observation and diagnosis. The testimony of both these experts was substantially the same as that given by Dr. Hutchinson with respect to the nature of plaintiff’s disability and the extent thereof.

Plaintiff continued his employment with The F. C. Steelman Company until the 27th day of September, 1941, when he became unconscious while working and was taken to a hospital where he regained consciousness some time later. It was not until then that he was apprised of his real condition by his attending physician. He had encountered considerable difficulty performing his work, however, and received a great deal of help from his fellow employees. His employer paid him for straight time even during the time he was in Columbus for observation and treatment.

Shortly after plaintiff was apprised of his true condition by his physician he consulted an attorney concerning his rights under the policy of insurance involved in this litigation. The attorney forthwith notified the local representative of the insurance company that he desired to file a claim for plaintiff for total and permanent disability. Shortly thereafter plaintiff was visited by a representative of the insurance company who took a history of the case. The following month, January, 1942, another representative visited plaintiff’s attorney and gave him forms to be filled out which appear in the record as exhibits 3A, 3B and 3C. These forms were filled out by the physicians and mailed by plaintiff’s attorney to the defendant about February 12, 1942.

The contract of group insurance was entered into by and between The F. C. Stedman Company and defendant on the 11th day of April, 1921, and continued in force and. effect until .the date of its cancellation on April 1, 1941. The certificate of insurance under this policy was issued to plaintiff on February 20, 1925, the pertinent provisions of which policy are as follows:

“If any employee insured under this contract shall furnish the company with due proof that he has before having attained the age of sixty become wholly disabled by bodily injury or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wages or profit, the company will pay to him in full settlement of all obligations due him hereunder the amount of insurance then effective on his life either in a single payment or in annual installments as hereinafter set forth.

‘ ‘ Termination of insurance: — The insurance of each employee covered hereunder shall end when he shall leave the service of the assured or be dismissed therefrom, except in the event that he shall leave the service because of physical disability.”

It is strongly urged by counsel for defendant that, since the insurance policy had been cancelled on April 1, 1941, no insurance was in effect at the time plaintiff filed his proof of claim on February 12, 1942. It is the claim of plaintiff, however, that his total and permanent disability existed on February 20, 1940, at which time the insurance was in full force and effect. Defendant further contends that, even though plaintiff’s claim with respect to this matter be correct, the proof of claim was not filed within a reasonable time after the existence of such disability. The provisions of the contract do not specify any time within which proof of claim is to be filed nor is there any forfeiture provision bearing upon this subject. It is said in 22 Ohio Jurisprudence, 731, Section 631, that:

“If the contract of insurance does not specify the time within which notice or proofs of loss must be given or made, time is not of the essence of the contract, and a reasonable time is allowed; and what constitutes a reasonable time will depend upon the particular facts and circumstances of each case.” See, also, 29 American Jurisprudence, 827, Section 1104.

It has been said in the case of Employers’ Liability Assurance Corp. v. Roehm, 99 Ohio St., 343, 124 N. E., 223, 7 A. L. R., 182:

“A provision in a policy of indemnity insurance, to the effect that written notice should be given the company within 30 days from the date of sustaining the injury, is of the essence of the contract, and like other contracts should be construed so as to give effect to the intention and express language of the parties. This rule of law is subject to the qualification, that if at the time of the accident, and within the period stipulated for the giving of notice, no reasonable ground existed warranting a belief that tbe injury was anything but trivial in its character, not justifying a claim for damages, and it subsequently develops that as a result of such accident serious consequences have ensued, and that immediately upon being advised of this fact the insured gives written notice to the insurer, the question whether the notice was given within time is not a matter of law, but is a question for the determination of a jury.”

In the instant case the circumstances were such as to warrant the trial court in submitting the question of the reasonableness of the time, within which the plaintiff filed his proof of claim, to the jury for determination. Plaintiff’s condition, both physical and mental, as described by the medical experts, had grown progressively worse and his state of mind was such that he did not appreciate his true condition until he was advised of it by Dr. Hutchinson in October, 1941. Certainly the terms of the policy of insurance did not require him to file proof of his total and permanent disability until after he was aware of the existence of such disability. It is said in 29 American Jurisprudence, 834, Section 1111, that:

“It is generally held that provisions requiring the insured to give notice or furnish proofs of loss do not apply until the insured has knowledge of the loss. * * * Similarly, under a policy requiring one claiming sick benefits to give notice ‘within ten days from the commencement of total disability,’ the time limited does not commence to run until he realizes that his illness is sufficiently serious to prevent him from following his usual vocation. Notice immediately given upon the discovery-of such serious condition is seasonable.”

In the instant case plaintiff, through his attorney, notified the local representative of defendant'that a claim for permanent and total disability would be filed. Thereafter a representative of the insurance company called upon the attorney and left blanks to be filled out. The proofs of claim were prepared and forwarded to defendant and were received without objection. Certainly evidence adduced to establish these facts, as bearing upon the reasonableness of the time within which the proof of claim was filed, was admissible. It is said in 29 American Jurisprudence, 857, Section 1140:

“However, if an insurer sends a blank form of proofs of loss after the expiration of the time within which such proof was required by the policy to be made, and thereafter receives without objection the proofs made upon such blank, it waives the failure to make such proof in time.”

The record in the case at bar contains positive testimony to the effect that plaintiff was suffering total and permanent disability on February 20, 1940. This situation, however, presented an issue of fact to be determined by the jury. It is urged that since plaintiff continued to work at his usual occupation until September, 1941, he is precluded as a matter of law from claiming the existence of total and permanent disability on the 20th day of February, 1940. Under all the circumstances as established by the evidence we consider this issue to be one of fact rather than of law. While it is true that plaintiff continued to work and receive compensation therefor it is also true as shown by the evidence that his ability to perform his usual duties was greatly impaired. The sympathy of his employer and the help he received from his fellow employees made it possible for him to continue his work. Futile attempts to carry on one’s business or occupation do not disprove total disability. See 29 American Jurisprudence, 873, Section 1161. It has been said in the case of Hayes v. Prudential Ins. Co., 114 W. Va., 323, 171 S. E., 824, that evidence of an attempt by a bank cashier, suffering from severe heart trouble to return to work, which attempt had to be abandoned, does not negative total disability.

It is strongly urged that the trial court incorrectly defined the term “total and permanent disability” and that the instruction given in respect to this subject ignored the rule laid down by the Supreme Court of Ohio in the case of Gibbons v. Metropolitan. Life Ins. Co., 135 Ohio St., 481, 21 N. E. (2d), 588. A careful examination of the charge reveals that the trial court did not broaden the definition of the term “total and permanent disability” as that term has been defined in the Gibbons case, supra. In a more recent decision in the case of Stuhlbarg v. Metropolitan Life Ins. Co., 143 Ohio St., 390, 55 N. E. (2d), 640, the court clearly and definitely defined the term “permanent disability” as used in a disability insurance policy providing for payments to one who has become totally and permanently disabled so as to be unable at any time to perform any work or engage in any business for compensation or profit. The court said in the fourth paragraph of the syllabus of that case:

“Under the terms of a disability insurance policy providing compensation in case of total disability, the test of the insured’s ability to perform any labor for compensation is not limited strictly to the occupation or vocation in which the insured may be engaged at the time his disability accrued, but extends to any comparable employment for which the insured is fitted by education, experience and physical condition.”

This pronouncement has since been approved and followed in the case of Blumenthal v. Metropolitan Life Ins. Co., 143 Ohio St., 464, 55 N. E. (2d), 803,. wherein the court said:

“ 'Due proof’ of total and permanent disability requires only prima facie evidence of such disability, and does not require such certainty of proof of total and permanent disability as is required in the proof of such a claim in an action at law in case the claim is rejected by the insurer.”

In the light of these recent decisions we are of the opinion that the trial court in the case at bar correctly explained the meaning of the term “total and permanent disability” as it was used in the contract of insurance under consideration.

It is said in 22 Ohio Jurisprudence, 775, Section 669, that:

“It may be said, however, that the courts tend to liberality of construction, and- that such provisions as a whole do not require absolute physical helplessness; rather, that substantial inability to perform the duties or labors which are material, substantial, and necessary to be done, or usual in the business in which the insured is engaged, is sufficient.”

Under the terms of the contract of insurance defendant’s liability attached at the time plaintiff became totally and permanently disabled provided the policy was in force and effect at the time. The-fact that the contract of insurance was cancelled by defendant subsequent to the time that plaintiff became totally and permanently disabled and prior to the time defendant received proof of such disability did not necessarily remove this liability.

The complaint directed to the admission of evidence bearing upon plaintiff’s original injury and the manner in which it was received is without merit. The jury was entitled to have a full disclosure of all facts bearing upon plaintiff’s disability and the extent thereof. The cause of such disability and the unusual consequences resulting therefrom constitute the basis for plaintiff’s claim in this action.

We have carefully examined the entire record and have considered each specification of error urged by defendant (appellant). We have reached the conclusion that the record is free from prejudicial error and that the judgment of the trial court should be affirmed. Judgment will, therefore, be affirmed.

Judgment affirmed.

McCurdy, P. J., and Metcalf, J., concur.


source: Caselaw Access Project

author: Geiger, J.

license: Public Domain

text:
    Wildermuth, Appellant, v. Liggett et al., Admrs., et al., Appellees.

      (No. 3748
    Decided November 20, 1944.)

      Mr. Robert J. Beatty and Messrs. Knepper, White $ Dempsey, for appellant.

      Mr. Willis H. Liggett and Mr. E. Searles Morton, for appellees.
   Geiger, J.

The matter is presented to this court on an appeal from the judgment of the court below sustaining a demurrer to the third amended petition. The plaintiff not desiring to plead further, the petition was dismissed at the costs of the plaintiff.

The court considered the motion to strike as a demurrer. While the ultimate question to be determined by this court is rather simple, yet, in order that it may be understood, it is necessary to set out at some length the allegations of the petition.

Plaintiff recites the fact that he is the surviving spouse and sole heir at law of Emma W. Wildermuth, deceased, who, on the first day of November 1925, as lessor, entered into a' 99-year lease, with Henry C. Hanna as lessee, covering certain real estate in Franklin county. One-half interest in such lease was later assigned by the lessee, Henry C. JTanna, to the defendants, Gilbert H. Carmack and Warren A. Armstrong, and the other half interest was transferred from the estate of Henry C. Hanna to Laura E. J. Hanna.

The written agreement recites as part of the consideration for the 99-year lease that the lessee assumes and agrees to pay as same became due a certain mortgage of $30,000 held by tbe Prudential Life Insurance Company, which mortgage had been reduced to- the sum of $14,000. The lessee desiring to extend the time for the payment of $14,000 Emma W. Wildermuth, party of tbe first part, and Laura E. J. Hanna and the other parties of the second part, agreed that if Emma W. Wildermuth should execute and deliver a new mortgage on the premises with the life insurance company, the proceeds of which were to be used to pay the balance of $14,000, the defendants Laura E. J. Hanna and the other parties of the second part would assume and agree jointly and severally to pay the above-mentioned mortgage of $14,000 to the insurance company as the same became due and payable, and that all stipulation should apply to and be binding upon the parties, the same as in the original 99-year lease.

Laura E. J. Hanna died in 1930 and Ellis O. Jones was appointed and qualified as one of the executors of her estate. When the first instalment note of $750, together with the semi-annual interest, became due to the insurance company, the ex'ecutors of the estate of Laura E. J. Hanna failed to pay the sum due according to the terms contained in the contract.

In November 1930, Emma W. Wildermuth, now deceased, and the plaintiff, in order to prevent foreclosure of the mortgage, were obliged to pay and did pay certain sums to the insurance company including the principal sum then due and the interest on the deferred payments. Demand in writing for and on behalf of Emma W. Wildermuth was presented to the executors,, of the estate of Laura E. J. Hanna as to the sum then having been paid to the insurance company, together with interest, and on the 2nd day of February, 1931, such executors disallowed the claim, and Carmack & Armstrong refused to pay any money on account of any payment made to the insurance company.

During 1931 Ellis O. Jones resigned and C. R. Swickard was appointed as co-administrator of the estate of Laura E. J. Hanna. Previous to the resignation of Jones there was pending in the court a suit brought by Emma W. Wildermuth against Ellis O. Jones and Ellis O. Jones, Jr., as administrators of the estate of Laura E. J. Hanna and against Carmack & Armstrong. That suit presented only one issue, that of the legality of the contracts and agreements between the parties, Emma W. Wildermuth and the two Joneses as administrators of the estate of Laura E. J. Hanna and Carmack & Armstrong. Ellis O. Jones, Jr., and C. R. Swickard continued as the duly appointed and qualified administrators of the estate of Laura E. J. Hanna until the death of Swickard when Robert G-. Morton, with Willis H. Liggett, his attorney, was appointed as co-administrator, with Ellis O. Jones, Jr. Morton resigned in 1943, and Liggett was appointed and qualified as co-administrator of the estate of Laura E. J. Hanna.

In 1943 Ellis O. Jones, Jr., resigned and Morton was appointed as co-administrator and Morton and Liggett were duly appointed co-administrators of the estate of Laura E. J. Hanna and, as such, are defendants in this action with Carmack & Armstrong, co-signers with Laura E. J. Hanna as parties of the second part of the agreement with Emma W. Wildermuth.

It is further averred that the co-administrators, Jones, Jr., and Swickard, and Carmack & Armstrong, each failed to pay to the insurance company the interest and the instalments due, and the plaintiff and Emma W. Wildermuth were compelled to pay the company the additional sum then due, to prevent the insurance company from foreclosing; that on or about May 1, 1932, the plaintiff caused to be presented tó the co-administrators, Swickard and Jones, Jr., a claim that they cause to be repaid to Emma W. Wildermuth a sum that she and the plaintiff were required to pay to the insurance company to prevent it from foreclosing its mortgage because of the refusal to pay of the administrators and Carmack & Armstrong, as parties of the second part in the contract of 1929. It is asserted that this- contract was admitted to be a legal and valid contract and the claim of Emma W. Wildermuth was allowed as a valid, subsisting and continuing mortgage claim as long as the party of the first part, Emma W. Wildermuth, or her heirs were required to make any payments on principal and interest to the insurance company.

It is asserted that on May 10, 1932, the co-administrators paid certain sums to Emma W. Wildermuth, such payments not being sufficient to pay the past due instalments of notes and interest advanced to the insurance company by Emma W. Wildermuth, and thereafter the co-administrators and Carmack & Armstrong wholly failed to pay any of the instalment notes when the same became due, that Emma W. Wildermuth and plaintiff, to prevent the foreclosure, paid the instalments of the principal as they became due on the $14,-000 mortgage, and the entire mortgage was paid to the the insurance company to prevent it from foreclosing; and that the co-administrators and Carmack & Armstrong wholly failed to make any payments on the claim and still refuse to make any payments to the insurance company as provided in the agreement.

C. R. Swickard, as executor, allowed the claim as a valid debt against Laura E. J. Hanna’s estate and made certain payments thereon which were duly credited on the sum Emma W. Wildermuth had paid the insurance company, and the insurance company transferred any interest it had to Emma W. Wildermuth. It later became apparent that the Hanna estate would not be able to meet the payments to the insurance company required by the terms of the contract and the other defendants refused to pay according to their agreement. C. R. Swickard, administrator, allowed the payments as a valid claim against the Hanna estate and began to pay to Emma W. Wildermuth the sum due to her by the sale of real estate, thus reducing by $13,000 the sums Emma W. Wildermuth and plaintiff had been compelled to pay-, leaving due her and plaintiff as her heir at law, the sum of $8,368.72, due him from the present administrators cle bonis non with the will annexed of the estate of Laura E. J. Hanna and Carmack & Armstrong, for which demand has been repeatedly made and payment refused.

It is alleged that Emma W. Wildermuth died in February 1938, and her estate is now in process of administration, and by virtue of inheritance there is due to the plaintiff the sum of $8,368.72, for which written demand has been made upon Liggett, as administrator of the estate of Laura E. J. Hanna, by the sheriff of -Franklin county;, that Morton was duly appointed as co-administrator upon his application, of the estate of Laura E. J. Hanna, deceased, who joined with his co-administrator Liggett in a refusal to allow and pay this claim because the obligations of the Laura E. J. Hanna estate and of Carmack & Armstrong have been paid in full by the estate of Laura E. J. Hanna, deceased, which plaintiff denies, and he reaffirms that there is due him from the defendants Carmack & Armstrong and Liggett and Morton, as the acting co-administrators of the estate of Laura E. J. Hanna, jointly and severally the sum of $8,368.72 with interest. Plaintiff prays judgment jointly and severally against the defendants, Carmack & Armstrong as individuals and Willis II. Liggett and Morton as the duly appointed administrators of the Laura E. J. Hanna estate, in the sum of $8,368.72, with interest.

This is the petition to which the motion was filed and considered as a demurrer.

There are many briefs, some are complicated, from which it is not difficult to determine that the sole question before the court is whether the plaintiff filed his claim with the executors for the sum now claimed to be due, and the further question as to whether the claim was rejected or allowed by the administrators in compliance with the statute.

The plaintiff assigns errors substantially as follows: That the court erred in sustaining the motion to strike the third amended petition from the files; that it erred in rendering judgment in favor of the defendants (appellees), and in considering the motion when defendants’ answer was and is still pending. As to the latter assignment, it would appear to us that when an amended petition is filed the answer to a prior petition need not be formally withdrawn as it is not an answer to the then pending petition.

There are two opinions by Leach, J., one delivered on the 11th of March, 1944, and the other on the 18th day of May, 1944, one being addressed to the second amended petition and one to the third amended petition.

In his opinion of May 18, 1944, considering the third amended petition, the court makes a careful analysis of the pertinent sections and concludes by quoting sections of the statutes which we omit excépt to designate the number of each.

The court says:

“By the terms of Section 10509-199, G-. C., effective January 1, 1932, it was provided * *

And the section there quoted by him provides that a person interested may file a petition in the Probate Court.

“By Section 10509-206, the Common Pleas Court was given concurrent jurisdiction with the Probate Court in such actions. Later, however, said sections were repealed, and Section 10506-86, General Code, now stands in place of the earlier Section 10509-199.”

Section 10506-86, General Code, as now effective, provides in substance that if a fiduciary refuses to make payment to any creditor whose claim has been allowed by the fiduciary and not subsequently rejected, or to make payment to any creditor or other interested person whose claim has been established,- such creditor may file a petition against the fiduciary in the Probate Court from which the fiduciary received his appointment to enforce payment, briefly setting forth the nature of his claim.

“By Section 10506-90 it is provided that the Probate Court may send such proceeding to the Common Pleas Court. The comment following said section as published in Supplement to Page’s Ohio General Code, is in effect as follows:
“ ‘This section is similar to former Section 10509-205. While the Probate Court may refer the proceedings to the Court of Common Pleas, it should be noted that the Court of Common Pleas does not have original jurisdiction. This being a disciplinary proceeding, the committee was of the opinion that original jurisdiction should be confined to the Probate Court, and consequently there is no provision comparable to former G. C. Section 10509-206.’ ”

The court comments that subsequently to the allegation of the allowance of the claim and payments thereon in the amount of $13,021.03, there is no allegation of demand and rejection, except that at the bottom of page 9 and top of page 10 of the amended petition :

“This is an allegation that ‘written demand for the payment of the claim was made upon Willis H. Liggett, as co-administrator cle bonis non, etc., * * * May 11, 1943, by the sheriff of Franklin county.’ ”

The court points out the fact that “written demand” on Liggett by the sheriff on May 11, 1943, .refers to service of summons on Liggett, and that the “refusal to allow and pay said claim” refers to the answer filed in this case by Liggett and his co-administrator on December 28, 1943.

The court comments that the sheriff had authority to serve the summons, but no authority to file a claim on behalf of any creditor, and further that the answer by the administrators denying liability and alleging that the debt had been paid is not the same thing in legal effect, as a rejection of a claim filed by a creditor, which is a condition precedent to a suit in the Common Pleas Court. The court concludes:

“It, therefore, appears from the petition that the claim was allowed and that there is not pleaded any subsequent rejection of the claim, in the sense of the statute,” and that the refusal to pay, particularly where refusal to pay is based on claimed payment, is not a statutory rejection.
“Under the facts as pleaded in the third amended petition, this court does not, therefore, have original jurisdiction, but such jurisdiction is vested in the Probate Court by Section 10506-86, G-eneral Code.” (Reference being to the Court of Common Pleas.)

Briefly, the trial court arrived at the conclusion that there is no allegation in the petition that the claim was properly presented to the administrators, and by them duly rejected. Suit was brought in the Common Pleas Court and such presentation and rejection were prerequisite to the right of the plaintiff to bring the action.

We have given careful consideration to the cases and statutes cited by each side. Those cases that seem most nearly like the case at bar are: Heater v. Mittendorf (Hamilton County Court of Appeals), 72 Ohio App., 4, 50 N. E. (2d), 559; Neidecker v. Neidecker, 63 Ohio App., 416, 26 N. E. (2d), 929; Prudential Ins. Co. v. Realty Co., 143 Ohio St., 564, 56 N. E. (2d), 168.

The pertinent statutes, some of which were effective in 1932, and others effective in August 1941, are given in 119 Ohio Laws, commencing on page 394, wherein there are set forth those effective in 1932 but repealed by the General Assembly in 1941, and pertain to Sections 10509-112, 10509-113, 10509-114, 10509-132 and 10506-86.

We have read carefully the opinions of Leach, J., and find them sound in every respect.

The judgment of the court below is affirmed.

Judgment affirmed.

Hornbeck and Montgomery, JJ., concur.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.


author: Guernsey, P. J.

text:
    Noel et al., Appellants, v. Fetter, Appellee.

      (No. 966
    Decided December 1, 1943.)
    Messrs, Donithen $ Michel, for appellants.

      Mr. Garter M. Patton, for appellee.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Marion County, Ohio, dismissing an appeal upon questions of law from a judgment of Lawrence G. Fields, justice of the peace in and for Montgomery township, Marion county, Ohio, in an action before the justice, in which the appellants, M. V. Noel and Mabel Noel, were plaintiffs and the appellee, John Fetter, was defendant.

The action is one in forcible entry and detention.

Leave to the plaintiffs, M. Y. Noel and Mabel Noel, to appeal to the Court of Common Pleas from the judgment rendered against them in the justice court was duly granted by the Common Pleas Court upon the application of the plaintiffs. The appeal from the justice court to the Common Pleas Court was dismissed by the Common Pleas Court solely upon the ground that the bill of exceptions was not signed and approved by Lawrence G. Fields, justice of the peace of Montgomery township, Marion county, Ohio.

Both the transcript of the proceedings had before Lawrence G. Fields, justice of the peace, Montgomery township, Marion county, Ohio, in such cause, and the bill of exceptions therein, are signed by “Frank C. Wilson, justice peace Bowling Green twp., (acting in absence of J.'P. in Montgomery twp.)”

Upon the hearing of the motion to dismiss in the Common Pleas Court, the parties duly executed and filed therein a stipulation of facts which they agreed might be considered as an agreed statement of facts on the question of the dismissal of the appeal by the Common Pleas Court and as a part of the bill of exceptions in the Court of Appeals. This stipulation, omitting the caption and signatures, is in the words and figures following, to wit:

“It is agreed by and between counsel for the appellants and counsel for the appellee as follows:
“That the foregoing cause of action was filed and tried to Lawrence Fields, justice of peace in and for Montgomery township, Marion county, Ohio, and involved a question of forcible detention of real estate. That at the aforesaid trial, Robert Hedges, official court stenographer, took the testimony and reduced it to writing, and the bill of exceptions was filed in the Common Pleas Court of Marion county, Ohio, in the appeal of the foregoing case. That Lawrence Fields, the aforesaid justice of peace, presided at the trial and rendered the decision, and before the transcript was made up by the official court stenographer, Lawrence Fields resigned as justice of peace of Montgomery township, Marion county, Ohio, and took employment with the United States Government at Pearl Harbor, Hawaii; and that at the time the transcript was made up and filed in the Common Pleas Court, the said Lawrence Fields, justice of peace, was not in the United States; that at said time no justice of peace had been appointed or qualified for Montgomery township, Marion county, Ohio. Said bill of exceptions was not approved or signed by Lawrence Fields, justice of peace aforesaid, for the reason that he was not in' the United States.
“That Frank C. Wilson, justice of peace of Bowling Green township, an adjoining township to Montgomery township, signed the bill of exceptions.
“It is agreed that the foregoing facts may he considered as an agreed statement of facts on the question of the dismissal of the appeal by the Common Pleas Court, and it is further agreed that said facts may be made and considered a part of the bill of exceptions in the Court of Appeals of Marion county, Ohio.”

There is no statutory provision authorizing the verification of a bill of exceptions of the' proceedings of a justice court, by anyone other than the justice of the peace having jurisdiction of such cause. Peoples Banking Co. v. Rummell, 66 Ohio App., 44, 29 Ohio Law Abs., 91; Cryer v. Conard, 64 Ohio App., 351.

Consequently, the question to be determined upon this appeal is whether the justice of the peace who signed and approved the bill of exceptions, had jurisdiction of the cause.

Whatever jurisdiction the justice of the peace who approved and signed the bill of exceptions had in the cause is derived from the provisions of the following sections of the General Code of Ohio:

“Sec. 1727. Upon the expiration of his term of office, each justice shall deposit with his successor his official dockets, and those of his predecessors which are in his custody, with all the files and papers, laws and statutes, pertaining to his office, there to be kept as public records and property. If no successor is elected and qualified, or if the office becomes vacant by death, removal from the township, or otherwise, before his successor is elected and qualified, the dockets and papers must be deposited with the nearest justice in the township, and, if there be none, then the nearest in the county, there to be kept until a successor is chosen and qualified, then to be delivered to such successor, on request.”
“Sec. 1729. The justice with whom the dockets of another are deposited, either during a vacancy, or as the successor, while having such dockets legally in his possession, may issue executions on any judgment there entered, and unsatisfied, and not docketed in the Court of Common Pleas, take bail in appeal, or for stay of execution, issue certified transcripts of judgments on such dockets, and proceed in all cases in like manner, as if originally had, or instituted before him.”

As shown by the bill of exceptions, the justice of the peace approving the same purported to approve and sign the same in his official capacity, so if any state of facts might exist in law, upon which his official action in approving and signing the same would be valid, such state of facts, in the absence of evidence to the contrary, is presumed to exist.

It appears from the record in the case that Lawrence G. Fields who tried the case was the only justice of the peace in the township in which the cause was tried; that he rendered a decision in the cause, and before a transcript was made up, resigned as justice of the peace of the township and took employment with the United States Government at Pearl Harbor, Hawaii; that at the time the transcript was made up and filed in the Common Pleas Court Lawrence Fields was not in the United States, and that at that time no justice of the peace had been appointed or qualified for Montgomery township, Marion county, Ohio.

The stipulation further shows that Frank C. Wilson, who approved and signed the bill of exceptions in his official capacity, was the justice of’ the peace of Bowling Green township, a township adjoining Montgomery township in Marion county.

While neither the record nor stipulation shows that Frank C. Wilson was the. nearest justice of the peace in the county, to Montgomery township, neither the record nor, stipulation shows that he was not, and pursuant to the presumption of regularity of the official acts above referred to, it is presumed that such fact existed; and from the same state of the record with reference to the subject matter it is presumed that upon the resignation of Lawrence G. Fields, justice of the peace in and for Montgomery township, the dockets and papers of Lawrence G. Fields as such justice of the peace were deposited with him.

Under the provisions of the sections of the General Code above mentioned, the aforesaid state- of facts shown by the record, the stipulation, and facts presumed to exist, jurisdiction was conferred on Frank C. Wilson as justice of the peace-aforesaid to proceed in all cases pending before Lawrence G. Fields, resigned, in like manner, as if originally had, or instituted before him.

This being the case, the Common Pleas Court erred in dismissing the appeal upon the ground specified.

However, a judgment may be reversed only when the error complained of is prejudicial to the complainant. We will therefore consider whether the error of the court in this cause was prejudicial to the appellants.

The dismissal of an appeal operates in the same manner as an affirmance of the judgment appealed from, so that if the facts shown by the record, including the bill of exceptions which was properly brought on the record, are such as to require the affirmance of the judgment of the justice court, the appellants have not been prejudiced by the judgment of the Common Pleas Court appealed from.

An examination of the bill of exceptions discloses that the plaintiff, appellant M. V. Noel, and the defendant, appellee John Fetter, prior to March 1, 1941, entered into an agreement in writing, in the words and figures following, to wit:

‘ ‘ Contract
“M. Y. Noel-John W. Fetter-
“To whom it May Concern:
“This is to certify that M. Y. Noel, party of the first part, has rented his farm consisting of 71% acres, 1% mile northeast of LaRue, in Marion county, to John W. Fetter, party of the second part, for one year, beginning March 1, 1941, and ending March 1, 1942, with the privilege of renewal of two years. Terms: Cash rent, three hundred and twenty-five dollars ($325), and party of first part is to furnish grass seed.
“M. Y. Noel, party of first part.
“ J. W. Fetter, party of second part.
“Party of second part is to pay $150 on date of possession and remainder to be paid January 1,1942.”

It further discloses that the defendant took possession of the premises described in the contract, pursuant to the terms thereof, and continued in the possession, use and occupation thereof at the time of this trial in justice court on March 12, 1943. It further discloses that the' defendant paid the rent on the farm from March 1, 1941, to March 1,1942, in conformity with the written contract, and paid the rent on the farm from March 1,1942, to March 1,1943, in May 1942, to which the plaintiff M. Y. Noel made no objection and which he accepted; and on February 27 or 28,1943, defendant tendered to the plaintiff M. Y. Noel, the rent for the period from March 1, 1943, to March 1, 1944, which plaintiff M. Y. Noel refused to accept, claiming that the lease had been renewed for the period of only one year instead of the period of two years prescribed by the written contract.

This claim of plaintiff M. Y. Noel is based solely on. the fact testified to by him, that on or before March 1, 1942, the defendant asked him if he could stay on the leased premises one more year, which is denied by defendant.

The case was tried by the justice of the peace without the intervention of a jury. At the close of all the evidence the defendant moved 'for judgment in his favor “for the reason that the plaintiff had failed in any manner to establish any case against the defendant.” The justice granted this motion and rendered and entered judgment accordingly, which is the judgment from which the appeal to the Common Pleas Court was taken.

• As the written contract between the parties unequivocally provided that the defendant, Fetter, had “the privilege of renewal of two years,” the action of Fetter subsequent to March 1, 1942, in continuing in the possession of the premises and paying the rent therefor, pursuant to the terms of the written lease, operated as a renewal of siich lease for the prescribed period of two years, and his tender of the rent for the second year of such renewal period preserved his rights to the possession of the premises for the second year of such renewal period, unless his asking the plaintiff M. V. Noel, on or before March 1, 1942, if he could stay one more year, in itself constituted a novation of the written contract as a matter of law.

Whether it did, it is unnecessary to decide, as Noel’s testimony on this subject is directly contravened by the testimony of Fetter, thus constituting an issue of fact to be determined by the justice.

As the cause was tried to the justice without the intervention of a jury, he was the sole judge of the facts as well as the law, and by his judgment in favor of the defendant, Fetter, is presumed to have resolved all conflicts in the evidence in favor of the defendant.

His finding and judgment are sustained by substantial, credible evidence and are not against the manifest weight of the evidence.

The situation being as it is, all the claims of error of plaintiffs with reference to the finding and judgment of the justice are without merit, which would have required the affirmance of the judgment of the justice by the Common Pleas Court in case the appeal had not been dismissed.

As the dismissal of the appeal constituted the legal equivalent of affirming such judgment, the error of the Common Pleas Court in dismissing the appeal was not in any way prejudicial to plaintiffs, and the judgment of the Common Pleas Court will for this reason be affirmed at costs of plaintiffs, appellants.

Judgment affirmed.

Jackson and Middleton, JJ.,'concur.


author: Hornbeck, J.

text:
    The State, ex rel. Beane, Director of Law, v. Krebs et al., City Commission of City of Dayton.
    (No. 1834
    Decided January 15, 1945.)

      Mr. G. J. Brennan, for relator.

      Mr. M. J. Gilbert, for respondents.
   Hornbeck, J.

This is an action for a writ of mandamus commanding the respondents to comply with their duty, as provided in Section 44 of the Charter of the City of Dayton, Ohio, to accept the bid of Wall, Cassel & Groneweg, certified public accountants, to make a continuous audit to which we will hereinafter refer more at length.

Averments of the petition material to a determination of the question for adjudication are that Section 44 of the Charter of the City of Dayton, is as follows: “Section 44. The commission shall cause a continuous audit to be made of the books of account, records, and transactions of the administrative departments of the city. Such audit, during each fiscal year shall be made by one or more certified public accountants who hold a certificate issued by the State Board of Accountancy of Ohio or by a state maintaining an equal standard of professional requirements, which entitles the holder of such certificate to an Ohio certificate. The duties of the auditor or auditors so appointed shall include the certifications of all statements required under section 78 of this charter. Such statements shall include a general balance sheet, exhibiting the assets and liabilities of the city, supported by departmental schedules, and schedules for each utility publicly owned or operated; summaries of income and expenditure, supported by detailed schedules; and also comparisons, in proper classifications, with the last previous year. The report of such audit for each previous year shall be printed and a copy thereof furnished to the Ohio state Bureau of Inspection and Supervision of Public Offices, to each member of the commission and to each citizen who may apply therefor; and a condensed summary thereof shall be published in the manner provided by the commission”; that the city of Dayton by its city commission observed the requirements of such section by causing a continuous audit to be made, as therein provided, annually until 1928 at which time it was discontinued; that, pursuant to a resolution of the commission on February 2r 1944, the commission invited bids from certified public accountants in the city of Dayton for the making of the audit provided in section 44; that in response thereto the firm of Wall, Cassel & Groneweg submitted its bid for such an audit at a cost of at least $12,000 nor more than $15,000 annually; that such bid was the sole and only bid received; and that it was rejected by the commission which has declined and now declines to accept the bid and comply with the provision of Section 44 of the Charter of the City of Dayton.

The respondents answered and set up four defenses, the first of which admits all facts set forth in the petition except “as hereinafter denied.”

The second defense asserts that the annual audit provided in section 44 of the charter was discontinued upon determination “that the audit regularly made by the Bureau of Inspection and Supervision of Public Offices of the state of Ohio, pursuant to the requirements of law, of the fiscal affairs of the said city of Dayton, Ohio, was in all respects an adequate audit”; and that “the hiring of private accountants to make a regular and continuous audit would be substantially a duplication of the work regularly performed by the said state Bureau of Inspection and Supervision of Public Offices and consequently a waste of large amounts of the public funds of said city.” (Emphasis ours.)

The third defense is that the sole bid received by the commissioners for such continuous audit as that referred to in the petition “is grossly disproportionate to whatever good or value might be derived from such a duplicating audit and that accordingly said bid was by them rejected.”

The fourth defense sets up at length the provisions of Sections 274 to 291, inclusive, General Code, and, particularly, Section 284 providing that an inquiry be made by the Bureau of Inspection and Supervision of Public Offices “into the methods, accuracy and legality of the accounts, records, files and reports of the office, whether the laws, ordinances and orders pertaining to the office have been observed, and whether the requirements of the bureau have been complied with.”

Further authority of the bureau is set out and, in substance, it is that the uniform system of inspection and audits of the fiscal affairs of Ohio cities set up under constitutional grant and legislative authority is the exclusive, legal method for the performance of such function; that Section 44 of the Charter of the City of Dayton is an encroachment upon the powers and duties of the Bureau of Inspection and Supervision of Public Offices; and that Section 44 of the Charter of the City of Dayton is invalid.

For further answer respondent commissioners state that at the time of submitting the bid, and together with it, the firm of certified public accountants also submitted to them a proposal for “a survey or review of accounting procedures and the preparation of financial statements of the city of Dayton. Said commissioners deem it to be in the public interest that they be free to authorize supplemental auditing of the financial affairs of said city when, as, and if, in their judgment, the welfare of the said city makes such an audit proper and desirable. They are, however, by reason of the recitals heretofore by them made, in serious doubt as to whether such action by them would under the laws of the state of Ohio be proper.”

The answer prays that the prayer of the petition be denied and for a declaratory judgment on tbe question therein propounded.

Tbe parties submitted tbe cause on tbe pleadings and an agreed statement of facts, many propositions of which are confirmatory of tbe respective allegations-of tbe petition and answer. We refer particularly to' propositions 6, 7 and 10 of sucb statement as significant in tbe determination of tbe right to tbe writ of mandamus:

“6. That tbe local audit as called for by section 44 of tbe said charter was discontinued in 1928 by tbe then city commission, after a thorough study of tbe question and in consequence of its conclusion that tbe audit by tbe state of Ohio was adequate, that any further audit was unnecessary and that any expenditure therefor, especially an expenditure so substantial as required, would be a waste of public funds.
“7. That a local audit has never been resumed for tbe reason that each successive city commission in office continuously since 1928, after due and careful consideration, arrived at tbe same conclusion.
“10. That after a full and careful consideration, defendant commissioners, by a vote of its majority, determined that tbe making of sucb an audit would be substantially a duplication of tbe service now regularly performed by tbe Bureau of Inspection and Supervision of Public Offices of tbe state of Ohio and, therefore, a waste of public funds, and tbe said bid was for that reason thereupon rejected.”

Tbe net effect of tbe subject matter of those quoted propositions is that an administrative body, namely tbe City Commission of tbe City of Dayton has construed section 44 as requiring a duplication of tbe audits of tbe financial affairs of tbe city of Dayton made regularly by tbe Bureau of Inspection and Supervision of Public Offices of tbe state of Ohio under the state laws. Such an interpretation covering a long period of time must be given some weight with a court which has under consideration the construction of section 44 of the city charter, if such construction can be adopted under the language of the section. 37 Ohio Jurisprudence, 698, Section 387.

It is our judgment, that, under the agreed statement of facts and upon the averments of the second defense of the answer to which no reply has been filed, it may be held that section.44 requires substantially the‘ same inspectional procedure and audit of the fiscal affairs of the city of Dayton as is provided by the applicable sections of the G-eneral Code under which the Bureau of Inspection and Supervision of Public Offices operates, which service the bureau performs and the results of which it makes available to the respondents.

This then brings us to the nice question for determination, namely, does the fact that the city commis•sion now receives by action of the Bureau of Inspection and Supervision of Public Offices substantially the same results as would be obtained upon observation of the letter of section 44 establish a defense to the averments of the petition and the language of the section. It is our judgment that it is a defense although the provisions of .section 44, providing that the commission shall cause a continuous audit to be made, are mandatory.

There is authority to the effect that a court may not refuse to grant the writ of mandamus where under the law there is a mandatory obligation to do that which the writ seeks to accomplish. For instance, there is the right of a shareholder to inspect the books of a corporation. Weihenmayer v. Bitner, Secy., 88 Md., 325, 42 A., 245, 45 L. R. A., 446, and note; Kuhbach v. Irving Cut Glass Co., 220 Pa., 427, 69 A., 981, 20 L. R. A. (N. S.), 185, and note.

However, the general principle governing mandamus is that it is a summary and extraordinary writ, the issuance of which is within the sound discretion of the court and, “although mandamus is classified as a legal remedy, its issuance is largely controlled by equitable principles, and the writ may be refused for reasons comparable to those which would lead a court of equity, in the exercise of its sound discretion, to withhold its protection of an undoubted legal right.” 34 American Jurisprudence, 829, Section 33; State, ex rel. Commercial Investors Corp., v. Curry, 50 Ohio App., 245, 248, 197 N. E., 805.

“Under the guise of enforcing a public right, the writ will not issue if in fact it will operate to the detriment rather than to the benefit of the general public.” 34 American Jurisprudence, 831, Section 35, and cases there cited.

The discretion in granting the writ should be broad enough to support the refusal to grant the writ in the situation here presented. To grant the relief would require a duplication of effort to accomplish the same result as the state audit, at & regular annual cost to the city of a substantial sum of money.

We, therefore, deny the writ upon the one proposition that our discretion in the situation here appearing is sufficient to support such action. It will be so ordered. , i

Upon the fourth defense of the answer to the effect that section 44 of the charter is invalid, we find against the respondents.

Upon the question propounded by the answer we have serious doubts if such an issue is made as is contemplated by the Uniform Declaratory Judgments Act. It is doubtful indeed if there is any dispute disclosed by the record. See Hammontree v. Hawley, 40 Ohio Law Abs., 483, 57 N. E. (2d), 319. We will, however, express an opinion as it may be helpful.

The factual development on the question is not as complete as is desirable. There is little more than a mere statement by caption of that which the respondents desire to do, namely, to conduct “a survey or review of accounting procedures and the preparation of financial statements of the city of Dayton.” Insofar as the preparation of financial statements of the city of Dayton is concerned, section 44 affords sufficient authority for such procedure. The mere fact that this court will not require the commission to do that which it is authorized to perform under the section would not preclude its action thereunder if it desired to adopt any or all of the procedure therein prescribed. As “to a survey or review of accounting procedures,” we find nothing in section 44, which will support such action. We are satisfied that, under section 78, the Director of Finance could, within reasonable limits, be provided with funds for the purpose of a survey or review of accounting procedures, insofar as it would be of advantage in effectuating the provisions of the section, namely, the devising and maintaining for the city adequate records to detail financial transactions. This expression of opinion is not more specific because the'question as propounded is general and not specific.

An entry may be prepared in accordance with this opinion.

Judgment accordingly.

Geiger and Nichols, JJ., concur.

Nichols, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.


text:
    Strain, Dir., Trustee, Appellant, v. Southerton et al., Appellees. (Two cases.)
    (Nos. 475 and 476
    Decided February 5, 1945.)

      Mr. Thomas J. Herbert, attorney general, Mr. David M. Spriggs and Mr. Harold J. Rose, for appellant.

      Messrs. Woolley & Rowland and Mr. R. W. Finsterwald, for appellees.
   Gillen, J.

This action was instituted in the Court of Common Pleas of Athens county, Ohio, by the director of industrial relations, as trustee, pursuant to an assignment made to him by an alleged employee of the defendants to recover the difference between the amount of wages actually paid to such employee and the amount claimed to be due by virtue of a mandatory order issued by such director. The answer filed by defendants contained two defenses, in one of which it was averred that the minimum wage law was in violation of Section 26 of .Article II of the Constitution of Ohio. A demurrer to this defense was overruled by the trial court and, plaintiff not desiring to plead further, final judgment was entered in favor of defendants. Prom that judgment an appeal on questions of law has been perfected.

The, sole question presented for determination, therefore, is the constitutionality of the minimum wage law as codified in Sections 154-45d to 154-45Í, General Code.

Section 26 of Article II of the Constitution of Ohio provides:

“All laws, of a general nature, shall have a uniform operation throughout the state; nor, shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except, as otherwise provided in this Constitution.”

Section 34 of Article II of the Constitution is as follows:

“Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the Constitution shall impair or limit this power.”

It is strongly urged by counsel for .defendants that the Ohio minimum wage law violates the provisions of Section 26 of Article II, supra, because of the unwarranted delegation of legislative power. The right of a Legislature to enact proper minimum wage laws for women and minors cannot now be questioned.

In the case of West Coast Hotel Co. v. Parrish, 300 U. S., 379, 81 L. Ed., 703, 57 S. Ct., 578, which held that the Washington state statute which authorizes the fixing of minimum wages for women and minors is a reasonable exercise of the police power of the state, and is constitutional, it was stated in the opinion that:

“In dealing with the relation of employer and employed, the Legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression. * * * And if the protection of women is a legitimate end of the exercise of state power, how can it be said that the requirement of the payment of a minimum wage fairly fixed in order to meet the very necessities of existence is not an admissible means to that end?”

It is contended that the Washington act there under consideration differs from the Ohio minimum wage law in that the conditions and limitations contained therein restrict the act' to an exercise of police power while the Ohio minimum wage law is free from such standards and limitations.

In ruling upon the demurrer in question the trial court was influenced by the decision in the case of Adkins v. Children’s Hospital, 261 U. S., 525, 67 L. Ed., 785, 43 S. Ct., 394, 24 A. L. R., 1238, which held the act of Congress providing a minimum wage law for the District of Columbia to be unconstitutional. Various state courts in passing upon the constitutionality of minimum wage laws followed the decision in the Adkins case. See People, ex rel. Tipaldo, v. Morehead, 270 N. Y., 233, 200 N. E., 799; also Topeka Laundry Co. v. Court of Industrial Relations, 119 Kan., 12, 237 P., 1041, 47 A. L. R., 208. The Supreme Court of the United States, in the case of West Coast Hotel Co. v. Parrish, supra, decided March 29, 1937, overruled the Adkins case. Since then it has been the tendency of courts to uphold the constitutionality of minimum wage laws. The New York act which is very similar to the Ohio law and which had previously been held unconstitutional in the case of People, ex rel. Tipaldo, v. Morehead, supra, has more recently been declared to be a valid exercise of police power. See Mary Lincoln Candies, Inc., v. Dept. of Labor of State of New York, 289 N. Y., 262, 45 N. E. (2d), 434, 143 A. L. R., 1078, decided December 3, 1942. The court said:

“Under Article 19 of the Labor Law (Cons. Laws, ch. 31) authorizing the establishment of minimum wage standards for women and minors, the Industrial Commissioner may legally promulgate a directory order requiring employers in a specified industry not only to pay a minimum hourly rate to women and minors therein employed but also to pay them at such rate for a minimum number of hours each week.”

The right of the General Assembly to confer upon administrative boards authority to adopt and promulgate rules and regulations has long since been recognized in this state. It has been said in the case of Matz v. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220, that:

“7. As a general rule a law which confers discretion on an executive officer or board without establishing any standards for guidance is a delegation of legislative power and unconstitutional; but when the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without such restrictions and limitations.”

To the same effect is the case of Coady v. Leonard et al., Bd. of Liquor Control, 132 Ohio St., 329, 7 N. E. (2d), 649.

An examination of the Ohio minimum wage law discloses that the General Assembly provided definite standards to guide the director of industrial relations in establishing a fair minimum wage. The. various provisions of the act are in pari materia and must he construed together in order to give full force and effect to the legislative intent.

Section 154-45ci, General Code, defines the term “oppressive and unreasonable wage” as follows:

“7. ‘An oppressive and unreasonable wage’ shall mean a wage which is both less than the fair and reasonable value of the services rendered and less than sufficient to meet the minimum cost of living necessary for health. ’ ’

To correct a situation where an oppressive and unreasonable wage is found to exist the General Assembly sought to make provision for the establishment of a fair wage.

The term “a fair wage” is defined in Section 154-45d, General Code, as follows:

”8. 'A fair wage’ shall mean a wage fairly and reasonably commensurate with the value of the service or class of service rendered. In establishing a minimum fair wage for any service or class of service under this article, the director, superintendent or the wage board without being bound by any technical rules of evidence or procedure (1) may take into account all relevant circumstances affecting the value of the service or class of service rendered, and (2) may be guided by like considerations as would guide a court in a suit for the reasonable value of services rendered where services are rendered at the request of an employer without contract as to the amount of the wage to be paid, and (3) may consider the wages paid in the state for work of like or comparable character by employers who voluntarily maintain minimum fair wage .standards.”

The act further provides that before the director may summon a wage board to consider the issue of a fair wage, he must be of the opinion from the information in his possession that a substantial number of women or minors in any occupation or occupations are receiving oppressive or unreasonable wages. The director, therefore, is not clothed with unlimited discretion but may proceed only in event the prevailing wage is found to be oppressive and unreasonable. This procedure certainly conforms to the rule announced in the case of West Coast Hotel Co. v. Parrish, supra.

The act further provides for the appointment of a wage board to report upon the establishment of minimum fair wage rates for women and minors if such director is of the opinion that a substantial number of women and minors are receiving oppressive and unreasonable wages, such opinion to be based on information in the possession of the director or the superintendent of the minimum wage division. In event the report is accepted by the director he shall publish it, together with proposed administrative regulations, and a public hearing is required to be held at which all persons in favor of or opposed to the recommendations contained in the report may be heard.

It is urged that the standards contained in sub-section 8 of Section 154-45d, General Code, supra, are so vague, indefinite and uncertain as to render them impracticable. Also that the use of the word “may” in such section clothes the director with unlimited discretion and does not require him to adhere to the standards therein provided in establishing a minimum fair wage.

“The general rule is that the word ‘may’ will be construed as ‘ shall, ’ or as imposing an imperative duty, whenever it is employed in a statute to delegate a power, the exercise of which is important for the protection of public or private interests.”

See Lewis’ Sutherland Statutory Construction, Yol. II, 1153, Section 640.

' The rule is clearly stated in the case of State, ex rel. Myers, v. Board of Education, 95 Ohio St., 367, 116 N. E., 516, as follows:

“1. The literal meaning of the words ‘may’ and ‘shall’ is not always conclusive in the construction of statutes in which they are employed; and one should be regarded as having the meaning of the other when that is required to give effect to other language found in the statute, or to carry out the purpose of the Legislature as it may appear from a general view of the statute under consideration.
“2. Where power is granted by statute to public officers by permissive language, coupled with a provision for invoking the exercise of such power by a petition of voters, or of any part of the public, such language will be regarded as peremptory unless a contrary construction is manifestly required.”

Applying this rule to the case at bar we are of the opinion that the Legislature intended to require the director to adhere to the standards and limitations expressly set forth in the statute. The director is not given unlimited authority in the matter of fixing a minimum fair wage but must act within the limitations prescribed by the act. The rules and standards set forth in sub-section 8,. of Section 154-45d, General Code, are mandatory and must be followed. The language employed by the General Assembly in this statute is explicit and understandable. It sets forth three standards to guide the board in arriving at a fair minimum wage. The factors to be considered are (1) all relevant circumstances affecting the value of the service or class of service rendered, (2) like considerations as would guide a court in a suit for the reasonable value of services rendered at the request of an employer without a contract as to the amount of wage to be paid, .and (3) the wages paid in the state for work of like or comparable character by employers who voluntarily maintain minimum fair wage standards. These standards are definite in meaning and limit the .jurisdiction of the board. The duties to be performed are administrative rather than legislative in character. This being true, the act does not violate the provisions of Section 26, Article II of the Constitution of Ohio.

It is contended that the Legislature could have established the fair minimum wage by statutory enactment instead of authorizing the director of industrial relations to do so by mandatory order. We are concerned with the authority of the Legislature to enact the minimum wage law under consideration rather than the wisdom thereof. The Legislature may delegate to an administrative agency the power to do some things which it might properly but can not advantageously do itself.

In the instant case the Legislature did not exceed its constitutional authority in conferring upon the director of industrial relations power to establish a minimum wage within the standards and limitations set forth in the minimum wage law. It follows, therefore, that the trial court committed prejudicial error in overruling the demurrer to the second defense in the answer. The judgment will be reversed and the cause remanded for further proceedings. This decision will likewise dispose of the case of George A. Strain, Director of Department of Industrial Relations, Trustee, v. Walter S. Southerton and Carl R. Wilson, d. b. a. Athens Steam Laundry, Case No. 476, now pending in this court, since the identical question is presented in both cases. Entries may be drawn accordingly.

Judgment reversed.

McCurdy, P. J., and Metcalf, J., concur.


text:
    The State of Ohio, Appellee, v. Crotinger, Appellant.
    (No. 429
    Decided January 4, 1945.)

      Mr. Bernard 8. Keyt, director of law, for appellee.

      Mr. W. A. Raines, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from the final paragraph of the sentence of the Judge of the Municipal Court of Piqua, Ohio, of date of July 7, 1944, pronounced upon a plea of defendant (appellant herein) of guilty of the offense of violating Section 12606, General Code. The paragraph of the sentence to which the appeal is specifically directed is as follows:

“It is further ordered by the court that defendant’s operator’s license and right to drive be suspended for and during his natural life.”

It is the claim of defendant that the trial judge, who acted by virtue of Section 6296-17, General Code, was without authority because that section had been abrogated by the provisions of Section 6298-1 et seq., General Code, and especially by Section 6298-26, General Code.

Section 12606, General Code, upon which the affidavit against the defendant is predicated, provides:

“In case of accident to or collision with persons or property upon any of the public roads or highways, due to the driving or operation thereon of any motor vehicle, the person so driving or operating such motor vehicle, and having knowledge of such accident of collision, shall stop and upon request of the person injured or any person, give such person his name and address and in addition thereto if not the owner, the name and address of the owner of such motor vehicle, together with the registered number of such motor vehicle. ’ ’

The offense is declared to be a misdemeanor and the penalty is fixed by the section.

The sufficiency of the affidavit was not questioned in the trial court, and is not questioned here. We observe that the affidavit did not aver as provided in the statute, that the collision “was due to the driving or operation” on the highway of the motor vehicle which the defendant was driving. We express no opinion as to the effect of this omission.

The trial judge in suspending defendant’s operat- or’s license for his natural life, acted under authority of Section 6296-17, General Code, which, if effective, clearly authorized the action taken. Section 6296-17, General Code, became effective on October 1,1936 (116 Ohio Laws, pt. 2, 39). When this section was enacted, Section 6298-1, General Code, had become effective, August 20, 1935 (116 Ohio Laws, 218), and authorized and empowered the Registrar of Motor Vehicles of the state of Ohio, under the provisions of the act (Financial Responsibility Law), to revoke and terminate drivers’ operators’ licenses of those drivers who had been convicted of or plead guilty to any of the offenses named in the section.

One offense common to Sections 6296-17 and 6298-1, General Code, is “failing to stop after an accident, when required so to do by law,” although the phraseology defining this offense differs somewhat in the respective sections.

It will also be noted that one offense is set out in Section 6296-17, General Code, which does not appear in Section 6298-1, General Code, namely:

“3. Perjury or the making of a false affidavit,” etc.

At the time of defendant’s trial, Section 6296-17, General Code, was identical in form as it has been since its enactment. Section 6298-1, General Code, was amended, effective August '31, 1939 (118 Ohio Laws, 480), by inserting after the first paragraph of the section following the word “offenses,” the words, “whether prosecuted under the state law or municipal ordinance,” and the section was again amended, effective September 20, 1943 (120 Ohio Laws, 658), by adding in paragraph (a), which follows the first paragraph of the section, after the word “offenses,” the words, “in any court of record within this state.” The section as last enacted was effective at the time of defendant’s trial. As of the date of the last amendment to the section, other sections of the act were also amended, namely, Sections 6298-2, 6298-4, 6298-10, 6298-12, 6298-14 and 6298-24. Section 6298-26, General Code, provides:

“The provisions of Sections 6298-1 to 6298r25 inclusive of the General Code as Thereby amended shall apply to convictions of offenses committed, and judgments on causes of action arising, after the effective date of this act. Any conviction or judgment rendered after the effective date of this act, but based on offenses committed or causes of action arising prior to the effective date-of this act, shall be governed by the provisions of law in effect at the time the offense was committed or the cause of action arose.” (Emphasis ours.)

It will be noted that in these amendments, Section 6296-17, General Code, was not included and if affected at all by this legislation it must be by implication. This is the claim of defendant. We do not so read the sections. Section 6298-1, General Code, insofar as it affects the offenses here involved, was enacted after Section 6296-17, General Code, and no mention specifically or by implication was made of Section 6296-17, General Code, upon the enactment of Section 6298-1, General Code. It seems clear that it. was the purpose of the Legislature to create the law set forth in Section 6298-1, General Code, independent of, and in addition to, the provisions of Section 6296-17, General Code.

There is a further provision in Section 6298-1, General Code, not found in Section 6296-17, General Code, relating to the revocation of drivers’ licenses for failure to satisfy or to stay execution of a final judgment rendered against a defendant in any court of record within the state in an action for wrongful death, personal injury or damage to property, caused by such person’s individual operation of a motor’vehicle, after the effective date of this amendatory act.

There seems to be some overlapping of authority in the two sections, but there is nothing to indicate a purpose by the enactment of Section 6298-1, General Code, to annul the provisions of Section 6296-17, General Code. Obviously, if a judge of a court of record, acting under Section 6296-17, General Code, suspends a driver’s license,-it is effective, and the registrar of motor vehicles can do no more. However, there might be an instance where the trial'judge failed to suspend a driver’s license, although required to do so by Section 6296-17, General Code, in which event Section 6298-1, General Code, would authorize and require the registrar of motor vehicles to act.

We do not find the claim, that Section 6296-17, General Code, has been repealed by any subsequent legislation, well made.

It is also urged that, inasmuch as the offense under Section 12606, General Code, committed by the defendant, is but a misdemeanor, the maximum punishment for which is six months’ imprisonment, revocation of the defendant’s right to drive an automobile for a longer period of time is. unwarranted. Section 6296-17, General Code, makes specific reference to the offense provided in Section 12606, General Code, and authorizes the suspension of the license of an automobile driver convicted thereunder “for any period of time. ’ ’

It is further claimed that the action of the trial judge in suspending defendant’s driver’s license for life is harsh, unusual and cruel punishment within the meaning of the Constitution. Inasmuch as the defendant entered a plea of “guilty,” there is no bill of exceptions and, therefore, if there were any extenuating circumstances, they are not before us. We are not prepared to say that the authorization to a judge of a court of record to suspend a driver’s operator’s license is in violation of any provision of our state or federal Constitution.

The judgment is affirmed.

Judgment affirmed.

Geiger, and Nioi-iols, J J., concur.

Nichols, J., of the Seventh Appellate District, sitting- by designation in the Second Appellate District.


author: Doyle, J.

text:
    Loftin, Appellant, v. Loew’s, Inc., Appellee.
    (No. 3680
    Decided November 27, 1944.)

      Mr. Stanley Denlinger, for appellant.

      Messrs. Wise, JRoetsel & Macaón, for appellee.
   Doyle, J.

The sole question before this court in this appeal on questions of law from the Court of Common Pleas of Summit county is whether Section 12941, General Code (civil rights statute), provides a liability as a “penalty or forfeiture,” or whether it creates a liability “other than a forfeiture or penalty.” If the liability is of the former class, the statute (Section 11225, General Code) provides that the action “shall be brought within one year after the cause thereof accrued.” If the liability is of the latter class, such action “shall be brought within six years after the cause thereof accrued” (Section 11222, General Code).

The original civil rights act specifically designated the liability created as a “forfeit.” 81 Ohio Laws, 15, Section 2. The amendment of Section 2 of the act ten years later, 91 Ohio Laws, 17, carried the same designation. And the act carried in the Revised Statutes likewise used the -word “forfeit.”

By virtue of legislative action, there was created in 1906 a codifying commission “for the revision and consolidation of the statute laws of Ohio.” As an indication of the intent of the Legislature in providing for such commission, its language is here quoted:

“The said commissioners shall bring together all the statutes and parts of statutes relating to the same matter, * * * making alterations to harmonize the statutes with the constitution as construed by the co.urts, reconcile contradictions, supply omissions, and amend imperfections in the original acts, so as to reduce the general statutes into as concise and comprehensive a form as is consistent with clear expression of the will of the general assembly, rejecting all equivocal and ambiguous words, and circuitous, and tautological phraseology.”

The codification after completion by the commission was adopted by the General Assembly in 1910, and the statutes included therein were given the authority of an original enactment.

The civil rights legislation heretofore noted was separated and set out under Code Sections 12940 and 12941. The legislation as codified .did change some-what the phraseology of the original enáctments, but did not change the substantive law. There was deleted, however, the word “forfeit,” and the statute was made to read: “Whoever violates the next preceding section shall also fay not less than fifty dollars nor more than five hundred dollars to the person aggrieved thereby * * *,” as compared with the former language: “* * * shall * * * forfeit and fay a sum not less than fifty ($50) dollars nor more than five hundred ($500) dollars to the person aggrieved thereby * * *.” (Italics ours.)

Adopting the established rule of statutory construction that “where the entire legislation affecting a particular subject-matter has undergone revision and consolidation by codification the revised sections will be presumed to bear the same meaning as the original sections, and will be so construed, unless it appears that a change was intended by the legislature” (37 Ohio Jurisprudence, Statutes, Section 429), to the problem under consideration, it is the judgment of the members of this court that the legislation as codified does not change the liability created from that of a penalty and forfeiture, which is so specifically set out in the original enactments.

A court is only warranted in holding the construction of a statute, which has undergone revision and codification, to be changed, when the intent of the Legislature to make such change is clear; and the addition or omission of words does not necessarily require a change of construction unless the intent to give to the new act a different effect from the old should be clearly manifested. There is no such manifestation here present.

It is therefore determined that the one-year statute of limitations applies, and the judgment of the lower court must be affirmed.

Judgment affirmed.

Stevens, P. J., and Washburn, J., concur.