author: Hornbeck, J.

text:
    The State, ex rel. Masterson, a Taxpayer, Appellant, v. Ohio State Racing Commission et al., Appellees.
    (No. 4941
    Decided February 1, 1954.)

      Mr. George J. McMonagle, Mr. Robert E. Sweeney and Mr. Edward Beran, for appellant.

      Mr. C. William O’Neill, attorney general, Mr. Hugh A. Sherer, Mr. John D. Connor, Mr. Charles E. Connor, Jr., Messrs. Gottfried, Ginsberg & Guren, Mr. Howard R. Hirsch and Mr. Charles A. Schwenker, for appellees.
   Hornbeck, J.

This is an appeal from a judgment for the defendants upon motion of defendants to strike plaintiff’s amended petition from the files and for judgment on the pleadings. The amended petition was filed upon leave taken after the court had sustained a demurrer to the original petition on the grounds (1) that the plaintiff has not the legal capacity to sue; and (2) that there is a defect of parties defendant.

The original and the amended petitions aver that the action is brought on the relation of the plaintiff, a taxpayer of the state of Ohio, on behalf of the state and all its citizens and taxpayers; that the plaintiff made demand upon the Attorney General of the state of Ohio to bring the proceedings, but that he failed and has refused to do so. He further avers that the defendants, the members of the Ohio State Racing Commission, will, unless restrained, unlawfully issue a permit to defendants Aurora Downs, Inc., and Cleveland Raceways, Inc., for the conducting of a lottery on the same date or dates, at tracks within 30 miles of each other. The petitions set out Section 6 of Article XV of the Constitution of Ohio, which provides that ‘ ‘ lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this state.”

Plaintiff then continues, averring that the commission’s permits authorizing permittees to conduct the pari-mutuel or certificate system of wagering are in violation of the quoted section and article of the Ohio Constitution, and of Sections 1079-1, 1079-7, and 1079-8, General Code, which are set out in their entirety, and particularly Section 1079-7, General Code, which, among other things, provides:

“No permit shall be issued under this act authorizing horse racing at any place, track or enclosure * * * so as to permit horse racing on the same date or dates at more than one track in one county or on trácks within thirty miles of each other # *

It is specifically averred that the defendant commission violated the quoted portion of this section by issuing permits to the named defendant racing associations.

It is further averred that public funds, namely taxpayers’ funds, are expended from the general fund of the state of Ohio in the particulars set out in the petition. It is further averred that the defendant commission not only has issued, but will hereafter issue, permits to the defendant racing associations in violation of the constitutional prohibition and the specific terms of the section of the General Code hereinbefore quoted, and that they will thereby cause illegal expenditures of public funds of the state of Ohio in the particulars theretofore set out. The prayer is for specific relief against the issuance of permits to conduct the parimutuel or certificate system of wagering to the defendant racing associations and to prohibit the issuance to them of such certificates at race tracks within 30 miles of each other on the same calendar date or dates.

The entry sustaining the demurrer is general, from which it may be concluded that the court found both grounds of the demurrer well taken. However, from the opinion of the trial judge, it is obvious that the demurrer was sustained upon the first ground thereof, namely, incapacity of the plaintiff to sue. The plaintiff contends here that there is also a second question for determination on this appeal, namely, does the amended petition of the plaintiff state a cause of action Í

The plaintiff urges that any taxpayer of Ohio has a right to maintain a taxpayers’ action to enjoin the illegal expenditure of public funds of the state of Ohio. The original defendants, others who have been made defendants since the action was instituted, and amici curiae, contend that the test which must be applied in determining whether or not the plaintiff had the capacity to maintain the action is: Was he or will he be injured as a taxpayer if the acts of which he complains in his petition are not enjoined?

Without elaborating on the Horse Racing Act under which the defendant racing commission is empowered to do the acts complained of in the petition, suffice to say that, if the funds in the hands of the state of Ohio may be said to be public funds, there is little or no probability that any taxpayer will suffer any special damages whatever should the defendants commit the acts of which the amended petition complains. Injury, other and different from that suffered by the public, has generally been held to be a prerequisite to capacity to maintain a taxpayer’s suit. 8 Ohio Jurisprudence, 178, Section 75; 16 Corpus Juris Secundum, 157, Section 76; Fischer v. City of Cleveland, 42 Ohio App., 75, 181 N. E., 668; State, ex rel. Masterson, v. Ohio State Racing Commission (Ohio App.), 115 N. E. (2d), 474; Leasure v. Taylor, 32 Ohio Law Abs., 395; Russell v. State Rridge Commission, 16 Ohio Opinions, 399, 406; Harnett v. Edmonston, Dir., 44 Ohio App., 304, 185 N. E., 426; State, ex rel. Johnson, a Taxpayer, v. Washburn, 30 Ohio Opinions, 435.

There is then presented the broader question, namely, the right of the taxpayer to maintain an action to enjoin the wrongful expenditure of public funds where such funds were not raised by taxation but, as here, by permit fees paid by the racing associations in compliance with the provisions of the Horse Racing Act.

The case of Shipley v. Smith, 45 N. M., 23, 107 P. (2d), 1050, 131 A. L. R., 1225 (and annotated at page 1230), holds, in the first A. L. R. headnote, that:

“A taxpayer has sufficient interest to enable him to sue to restrain a payment of public moneys under a contract alleged to be illegal for noncompliance with a statute requiring advertising for bids, although such moneys were received as a donation instead of being derived from taxation.”

The A. L. R. annotation cites holdings of courts from seven states which have passed on the question, and it is stated that:

“The right of a taxpayer to maintain an action to enjoin the wrongful expenditure of public funds, where such funds were not raised by taxation, has been denied in the majority of cases considering such a question.”

From Ohio, the case of Warm, a Taxpayer, v. City of Cincinnati, 57 Ohio App., 43, 11 N. E. (2d), 281, is cited in support of the majority rule.

In that case, neither the state of Ohio nor any department of the federal government was made a party to the action and it was in such situation that the taxpayer had not a sufficient interest in tax money in the United States treasury to serve as a predicate for an action to enjoin its expenditure.

Appellant cites Horvits v. Sours, Dir., 74 Ohio App., 467, 58 N. E. (2d), 405, to the effect that the plaintiff taxpayer, without regard to his motive, had the right to maintain the suit. That is a sound statement but there was no doubt as to the capacity of the plaintiff to maintain the action which was to enjoin the expenditure of public funds upon an alleged illegal contract.

Authority to maintain this action must be found, if at all, upon the pronouncement in the first paragraph of the syllabus of Green v. State Civil Service Commission, 90 Ohio St., 252, 107 N. E., 531:

“A taxpayer may maintain an action to enjoin public officers or a public commission from the commission of acts in excess of legal authority, which contemplate the expenditure of public money. ’ ’

If that case is controlling, then, clearly, the taxpayer has conformed to one of the requisites by alleging that the defendants are committing acts in excess of their legal authority. There remains the question, did these acts contemplate the expenditure of public money? This requires an examination of the Horse Racing Act, and particularly Section 1079-10, General Code, which, so far as pertinent, provides:

“The commission shall be charged with the duties of enforcing the provisions of this act, and may incur such expenses as shall be necessary, providing, however, that such expenses shall not exceed the revenues derived from the fees and taxes as herein provided.”

It then continues with the requirement that all moneys due the state of Ohio under the provisions of the act shall be paid to the secretary of the commission and by him paid weekly into the state treasury to the credit of a separate fund to be known as “the State Racing Commission Fund.” The fund shall be drawn on only for the purposes of this act; that when, and only when, the amount of revenue paid into said fund exceeds the amount appropriated therefrom for the uses and purposes of the State Racing Commission for said year shall the excess be transferred to the General Revenue Fund. Then, this language:

“All expenses incurred by the commission shall be paid on vouchers signed by the chairman and secretary of the commission, and upon warrant of the Auditor of State by the State Treasurer out of the separate fund herein provided. ’ ’

It is thus clear that, by specific provision, the fund from which the expenditures are to be made against which complaint is urged is a special fund and the payments set forth in the petition will be made from this fund and not the general fund.

An analogous situation was presented in State, ex rel. Stearns, v. Olson, Treas., 43 N. D., 619, 175 N. W., 714, wherein in the first paragraph of the syllabus, it is said:

“Under the Workmen’s Compensation Act the state treasurer is made custodian of the fund which is accumulated in the manner prescribed by law for the payment of claims allowed by the workmen’s compensation burean. Held, that such fund is a special, and not a public, fund.”

It is our conclusion that the plaintiff here -had not the legal capacity as a taxpayer to maintain the action as a proper party plaintiff, either as one specially affected by the expenditure of the money by the defendant officers or because the acts of which complaint was made, if illegal, contemplate the expenditure of public money.

The court did not err in sustaining the demurrer to the petition and in entering judgment for the defendants on the amended petition. We pass specifically on the first ground of the demurrer only. We do not hold that there is a defect of parties defendant nor consider the sufficiency of either petition to state a cause of action.

Judgment affirmed.

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


source: Caselaw Access Project

author: Guernsey, J.

license: Public Domain

text:
    In re Belk et al.
    (No. 1496
    Decided April 7, 1954.)

      Mr. Fred R. Raerkircher, for appellee.

      Mr. Paul G. Simpson, for appellant.'
   Guernsey, J.

This is an appeal on questions of law from an order of the Juvenile Court of Crawford County in a proceeding wherein the appellee, Robert V. Belk, the father of Dennis Robert Belk and Kenneth Dwight Belk, aged respectively four and seven years, was the complainant, charging that such minor children appear to be neglected and dependent children and that the appellant, Ruth Arlene Belk, the mother of said children, had, by her certain actions in the complaint set forth, caused such minor children to be neglected and dependent, overruling the motion of Ruth Arlene Belk to dismiss such complaint.

The complaint mentioned, omitting caption, signature and verification, is in the words and figures following :

“Robert V. Belk, residing at No. 808 S. Sandusky Ave., Bucyrus, Ohio, says that he is the father of, and has knowledge of, the following named children, to wit: Dennis Robert Belk, aged 4 years, Kenneth Dwight Belk, aged 7 years, who appear to be neglected and dependent children, in that:
“1. Said children have no known immediate means of support except that which can be furnished by this complainant, their father;
“2. Ruth Arlene Belk, the mother of said children, conceals herself and said children from said complainant and prevents him from furnishing the support necessary for said children;
“3. Said children are kept at divers and sundry places which are improper and unsuitable for their age, from time to time, instead of being kept at their home;
“4. Said children are in the possession of their mother, Ruth Arlene Beik, who is not now able to provide the proper care and control necessary for said children;
“5. The circumstances now surrounding and affecting said children are not for the best interests of said children and their welfare;
‘ ‘ 6. Said children have their domicile, residence and legal settlement in Crawford County, Ohio;
“7. The neglect and dependency affecting said children occurred in Crawford County, Ohio, and, under complainant’s belief, at other places;
“8. Said Ruth Arlene Belk retains possession of said children and prevents by her actions and conduct the father of said children from exercising upon said children the beneficial influence which is necessary to the best interests of said children.
“That said children are not now subject to the jurisdiction of any court in Ohio and they are not now inmates of a state institution or of any institution incorporated under the laws of Ohio, approved by the state Department of Public Welfare and authorized to care for children.
“That Ruth Arlene Belk, residing at No. 1404 N. Sandusky Ave., Bucyrus, Ohio, or in Section 8, Chat-field Township, Crawford County, Ohio, is the mother of said children and is the person with whom said children are now residing.
“Wherefore, complainant prays the court that process may issue to require said Ruth Arlene Belk to appear at a proper time before this court to answer to said complaint, and for said court to inquire into the matter of said minor children and to make such order or orders as may be suitable for their welfare.”

Citation was issued on this complaint and served on Ruth Arlene Belk in Marion County, Ohio.

The motion to dismiss the complaint, omitting caption and signature, is in the words following:

“Now comes Ruth Arlene Belk' and enters her appearance herein for the sole purpose of questioning the jurisdiction of the court in this action, and for no other purpose whatsoever.
“The said Ruth Arlene Belk says that she and Kenneth Dwight Belk and Dennis Robert Belk are all bona fide residents of Marion County, Ohio, and if any neglect or dependency of the said Kenneth Dwight Belk and Dennis Robert Belk has occurred at all, it has not occurred in Crawford County, Ohio, and that therefore this court is without any jurisdiction to hear this matter, and that she moves this court for dismissal of said complaint and citation heretofore issued herein. ’ ’

In the order from which the appeal in this cause is taken the Juvenile Court found “that said motion is not well taken, that said Ruth Arlene Belk failed to establish residence for herself and the two minor children of said parties in Marion County, Ohio, that she failed to establish any absence of any neglect or dependency herein in Crawford County, Ohio, that she failed to establish any lack of jurisdiction of this court over the persons of the parties affected hereby and over the subject matter of this proceeding, and that she failed to show any reason whatsoever for the dismissal of this proceeding,” and ordered that the motion for dismissal be overruled at the costs of Ruth Arlene Belk.

The appellant did not file any separate assignment of errors herein and did not specifically assign any errors in her brief in chief, but in her brief stated:

‘ ‘ The sole question in this case is:
“Did the trial court act contrary to law in overruling the motion questioning jurisdiction of said court, made by Ruth Arlene Belk, on the grounds set forth in said motion, to wit: That Ruth Arlene Belk, Kenneth Dwight Belli and Dennis Robert Belk are residents of Marion County, Ohio?”

However, in her reply brief herein the appellant submits the following propositions, to wit:

1. The trial court went contrary to the law in not dismissing the case for lack of jurisdiction.
2. The greater weight of the evidence shows appellant was and is a nonresident of Crawford County.
3. The action in the trial court was a special proceeding.
4. Substantial right or rights of the appellant have been affected.

While none of the propositions mentioned are made in the proper manner or form to constitute assignments of error, this court, in the interests of justice, will treat the first two suggestions as proper assignments of error. The last two suggestions are not in such form that they may be so considered.

We will consider propositions 1 and 2 as assignments of error, in the order in which they appear.

1. It will be noted from an inspection of the complaint hereinbefore quoted that while the same is in-artfully drawn and is indefinite in many respects it does charge sufficient facts to show that the minor children mentioned are neglected children, as defined in Section 2151.03, Revised Code; that the complainant has knowledge thereof; and that the appellant, Ruth Arlene Belk, has committed certain acts within Crawford County, .Ohio, constituting neglect thereof. The complaint therefore is sufficient under the provisions of Section 2151.27, Revised Code.

The pertinent parts of the two sections of the Revised Code conferring jurisdiction on the Juvenile Court over complaints of the character under consideration, are as follows:

Section 2151.23, Revised Code.

“ (A) The Juvenile Court has exclusive original jurisdiction under the Revised Code:

“(1) Concerning any child who is delinquent, neglected, dependent * * V’

Section 2151.27, Revised Code.

“Any person having knowledge of a child under eighteen years of age who appears to be' delinquent, neglected, or dependent * * * may, with respect to such delinquent, neglected, or dependent child, file a sworn complaint * * * in the Juvenile Court of the county in which such child has a residence or legal settlement, or in which such delinquency, neglect, or dependency occurred # *

Under these sections, the Juvenile Court had jurisdiction of the complaint in the instant case, irrespective of the residence of the minor children charged with being neglected, if the acts constituting the neglect complained of occurred in the county in which the complaint was filed.

While the appellant, in her motion to dismiss the complaint, charges that, if any neglect has occurred at all, it has not occurred in Crawford County, Ohio, the bill of exceptions in this case discloses that there Is no evidence to support this contention. It was incumbent upon the appellant, in order for her to prevail on her motion to dismiss, that she prove that such contention was correct. As appellant did not so prove, the Juvenile Court did not err in overruling her motion to dismiss the complaint, and the proposition of the appellant which we have treated as her first assignment of error is without merit.

2. In this action, it is immaterial whether Ruth Arlene Belk or the minor children were, when the complaint was filed, nonresidents of Crawford County, Ohio.

The jurisdiction of the Juvenile Court in the instant case is predicated upon the charge in the complaint that the neglect of the minor children occurred in Crawford County, Ohio. Hence, it is immaterial whether the weight of the evidence is to the effect that Ruth Arlene Belk or the minor children were at such time nonresidents of Crawford County. Consequently, the second proposition of the appellant, which we are treating as an assignment of error, is without merit.

Finding no error in any of the particulars the appellant has suggested and argued in her briefs, the judgment of the Juvenile Court is affirmed at the costs of appellant and the cause remanded to the Juvenile Court for further proceedings according to law.

Judgment affirmed.

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


author: Ross, J. Matthews, P. J.,

text:
    Fosdick, Appellee, v. City of Cincinnati et al., Appellants.

      (No. 7804
    Decided December 7, 1953.)

      Mr. Robert Fosdick, for appellee.

      Mr. Henry M. Bruestle,-city solicitor, and Miss Isabel Guy, for appellants.
   Ross, J.

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

The trial court overruled a demurrer of the defendant to .he amended petition. The defendant city of Cincinnati refused to plead further, and judgment was entered in favor of the plaintiff.

The amended petition is short, and is as follows:

“Plaintiff states that defendant George Guckenberger, auditor of Hamilton County sold him at public auction sale lot 21 Harvey Halls Subdivision for the sum of $30 which plaintiff has paid plus cost of deed and transfer fees. First tax bill was nearly $50 which included a sidewalk assessment. Plaintiff claims that said assessment should be stricken from his tax bill and that defendants should be enjoined from collecting it because it was a lien before property was sold and it exceeds the statutory limitation allowed for assessments.”

The defendant filed no motion to make this amended petition definite and certain.

Plaintiff relies upon the provisions of Section 5723. 12, Revised Code (Section 5762, General Code). The pertinent part of this section is:

“When a tract of land has been duly forfeited to the state and sold under such sections, the conveyance of such real estate by the auditor shall extinguish ail previous title and invest the purchaser with a new and perfect title, free from all liens and encumbrances, except taxes and installments of special assessments and reassessments not due at the time of such sale, and except such easements and covenants running with the land as were created prior to the time the taxes or assessments, for the nonpayment of which the land was forfeited, became due and payable. ’ ’

The words, “a sidewalk assessment,” would, if given a construction favorable to the plaintiff, apply only to an assessment due.

If the defendant desired to know whether installments of an assessment not due were included in the terms used in the amended petition, a proper motion would have resulted in securing an allegation covering this matter.

Section 2309.40, Revised Code (Section 11345, General Code), provides:

“The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties.”

In Parletto v. Industrial Commission, 140 Ohio St., 12, 42 N. E. (2d), 153, in the third and fourth paragraphs of the syllabus, it is stated:

“Section 11345, General Code, requires that the allegations of a pleading shall be liberally construed with a view to substantial justice between the parties.
“For the purpose of testing the legal sufficiency of a pleading, a demurrer admits not only the proper and well-pleaded factual allegations thereof, but also the fair, reasonable and favorable intendments and inferences arising therefrom * *. ” Guardian Life Ins. Co. of America v. Veser, 128 Ohio St., 200, 190 N. E., 405, is cited in support of the same rule. See, also, Rice v. Campbell, 71 Ohio App., 477, 483, 50 N. E. (2d), 430; Union Properties, Inc., v. McHenry, 72 Ohio App., 102, 104, 44 N. E. (2d), 744; Hotel Burnet Co. v. Union Central Life Ins. Co., 72 Ohio App., 453, 457, 52 N. E. (2d), 754.

The demurrer could be sustained only if the terms used in the amended petition applied to installments of assessments not due, as well as those due.

To have these terms so include in their scope installments of assessments not due would be adopting a construction in violation of the statute and authorities noted.

Had the plaintiff been relying upon the exception applicable to installments not due, it would then have been necessary for him to state facts bringing him within the purview of such exception. Such is not the case. The defendant relies upon the exception to the general terms found in the amended petition.

If the defendant wished to have these terms of the amended petition so made to apply to the exception, then, either by motion or answer, such issue should have been presented.

The judgment is affirmed.

Judgment affirmed.

Ross and Hildekrant, JJ., concur.

Matthews, P. J.,

dissenting. I find myself unable to concur in the conclusion of my associates.

It is said that plaintiff relies upon Section 5723.12, Revised Code (Section 5762, General Code). At no place in his amended petition does he make the vaguest reference to that section. He does not allege that the title had been forfeited for nonpayment of taxes. He describes his grantor as auditor of Hamilton County, but does not allege, either expressly or by implication, that he was acting as county auditor in making the sale. He does allege that the first tax bill after he became the owner included a sidewalk assessment and asserts that its collection should be enjoined “because it was a lien before property was sold and it exceeds statutory limitation allowed for assessments.” That is the substance of this amended petition.

The fact that the assessment is a lien on real estate certainly furnishes no basis for an injunction against its collection. The only other basis is the general statement that the assessment exceeds the statutory limitation allowed for assessments. No fact is pleaded from which such a conclusion could be drawn. The amount of the assessment is not pleaded. The valuation of the property against which the assessment was levied is not pleaded. No failure to comply with statutory requirements in the manner of making the assessment is pleaded. Can it be said that such a pleading requires an answer from the defendants? Is it sufficient to withstand the assault of a general demurrer ?

In the majority opinion it is stated that on a general demurrer the pleader is entitled to a liberal construction of his pleading. Of course that is the rule, but no construction, no matter how liberal, can supply that which is totally absent.

It is said that “sidewalk assessments” as alleged must be construed to mean installments that were due at the time the plaintiff acquired his title. He does not allege that. The reasons he gives are that the assessment is a lien and exceeds statutory limitations. All' installments — both due and not due — are liens upon property. Furthermore, we are obliged to guess that the pleader has in mind Section 5723.12, Revised Code, before this distinction between dne and not due assessments presents itself.

In the majority opinion it is said tbat the defendants are relying upon an exception and that a litigant who so relies must plead and prove it, and that there is no duty on the part of the pleader who relies upon the general rule to negative the exception. No authority is cited for that statement and my investigation convinces me that there is no such rule of pleading, particularly when statutory rights are asserted.

On this subject of pleading statutory exceptions, it is said in 41 American Jurisprudence, 355, Section 94:

‘ ‘ The courts frequently apply the rule that when an exception appears in (or, as it is sometimes expressed, is ‘incorporated in’ or ‘contained in’ or ‘forms a necessary part of’) the enacting clause of a statute, the party relying upon the statute must allege facts showing that the case at hand does not, fall within the exception. ’ ’

An examination of Section 5723.12, Revised Code (Section 5762, General Code), makes it clear that the exception of installments not due is a part of the enacting clause. This whole enactment is in one paragraph. In this connection, I understand ‘ ‘ clause ’ ’ and “paragraph” to be synonymous. It is not a case of an exception engrafted by another statute, or even an exception in another section of the same statute.

For these reasons, I do not believe the rules of pleading relied upon in the majority opinion support the conclusion that this amended petition states a cause of action.

In King v. Cappeller, 42 Ohio St., 218, the court passed upon the sufficiency of a petition to enjoin the assessment and collection of a tax and the imposition of a lien under the Scott Law. What the court said at pages 221 and 222 concerning that petition is equally applicable to the amended petition in this case:

‘ ‘ Conceding that an auditor may, upon a proper petition, be restrained from placing an illegal assessment upon the special tax list, we cannot say from the vague, indefinite allegations of this petition, that we have any such case before us.
“It is the province of this court to decide causes, not abstract questions; and as the whole question here, in this view of the case, is whether the petition shows a case requiring the court to grant equitable relief by way of injunction, we are clear that it is our duty to declare that it presents no such case; for it is not one of defective, but wholly insufficient statement. ’ ’

Bolton v. City of Cleveland, 35 Ohio St., 319, involved an action to enjoin an assessment. While there are many points of dissimilarity between that case and the case at bar, I think the following statement found on page 321 is pertinent: “There should have been some allegation bringing the case within the operation of the statute, if the plaintiff claimed the benefit of its provisions. ’ ’

For these reasons, in my opinion, the judgment should be reversed and the cause remanded for further proceedings according to law.


author: Fess, J.

text:
    Fike, Appellee, v. Lennex, Appellant.

      (No. 4759
    Decided February 23, 1954.)

      Mr. Walter Kohn, for appellee.

      Mr. 8. A. Fasekas, for appellant.
   Fess, J.

This is an appeal on questions of law from, a judgment of the Common Pleas Court dismissing appellant’s appeal from a judgment entered by the Toledo Municipal Court. The first problem confronting us is whether the appellant may take an appeal from the Common Pleas Court to this court. The Uniform Municipal Court Act affords a party to an action in the Municipal Court an election to appeal either to the Common Pleas Court or to the Court of Appeals. No provision is made in this act for a second appeal from a judgment entered by the Common Pleas Court. However, until such time as the General Assembly shall implement the provisions of the 1944 amendment of Section 6 of Article IV of the Constitution, the Court of Appeals retains jurisdiction to review judgments of the Court of Common Pleas, notwithstanding the action originated in the Municipal Court. United Distillers Co. v. Zeisler, 97 Ohio St., 62, 119 N. E., 139.

The notice of appeal designates a judgment of the Municipal Court entered on April 20, 1953, and a judgment of the Common Pleas Court dismissing the appeal on November 4,1953. The designation of the Municipal Court judgment will, as of course, be disregarded.

The record in the Common Pleas Court discloses the following:

May 23, 1953: Transcript of proceedings from Municipal Court and bill of exceptions filed.

August 14, 1953: Motion of appellee to dismiss appeal for failure to file assignments of error and brief filed.

August 20, 1953: Leave granted appellant to file brief on the merits by September 3,1953.

September 3, 1953: Assignments of error and brief filed.

September 16, 1953: Brief of appellee filed.

October 27, 1953: Motion of the appellee for oral hearing on appellant’s appeal granted and hearing set for November 2, 1953.

November 4, 1953: Journal entry reciting that the cause came on for hearing on November 2, 1953, on motion of appellee to dismiss the appeal and ordering that the appeal be dismissed and cause remanded to the Municipal Court for execution.

Rule 17 of the Common Pleas Court provides that assignments of error, briefs and bill of exceptions shall be filed within 50 days after the filing of notice of appeal. The rule provides further: .

“Applications for extension or shortening of time in which to file briefs in any cause shall be by motion. The court on its own motion may extend or shorten the time for filing any and all briefs.”

For all that appears in the record, an extension was granted appellant, to file his briefs, and the appeal was set for hearing on its merits. Prior to granting the extension, the court could have properly granted the motion to dismiss the appeal, but having granted the extension and set the appeal for hearing on its merits, it was the duty of the court to determine the appeal and its action in dismissing it was prejudicial to the right of appellant to a review of the judgment rendered against him.

The judgment dismissing the appeal is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings.

Judgment reversed.

Conn and Deeds, JJ., concur.


author: Middleton, J.

text:
    Griffin, Appellant, v. Gar Wood Industries, Inc., Appellee.
    (No. 549
    Decided March 16, 1954.)

      Messrs. Morrison, Hecker, Buck, Cosad $ Rogers and Mr. Richard J. Rineholt, for appellant.

      Messrs. Betts & Betts and Mr. William Finn, for appellee.
   Middleton, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas sustaining the motion of the defendant for judgment on the pleadings.

Plaintiff seeks, in his amended petition, to recover damages for alleged personal injuries suffered as a result of the negligence of the defendant.

Plaintiff, in his amended petition, states that he is a resident of the state of Kansas and that the defendant is a corporation doing business in the state of Ohio, and engaged in the building of a machine used in the construction of trenches.

Plaintiff further states that he purchased one of the machines from the defendant, which was delivered to plaintiff on or about December 16, 1946, in Merriam, Kansas, and that the plaintiff, in unloading the machine, was injured and that said injuries were caused by the negligence and carelessness of the defendant.

To this amended petition the defendant filed an .amended answer, and as a fourth defense states that on December 16, 1946, and at airtimes referred to in plaintiff’s amended petition, Gr. S. 1945 Supplement, 44-504, was a valid and subsisting law in the state of Kansas in full force and effect and provided as follows :

“When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other» person. In the event of recovery from snch other person by the injured workman, or his dependents or personal representatives of a deceased employee by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of such recovery and shall have a lien therefor against such recovery, and the employer may intervene in any action to prosecute and enforce such lien. Such action against the other party, if prosecuted by the workman, must be instituted within one year from the date of the injury, and, if prosecuted by the dependents or personal representatives of a deceased workman, must be instituted within eighteen months from the date of such injury. Failure on the part of the injured workman or the dependents or personal representatives of a deceased workman to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman 01 the dependents or personal representatives of a deceased workman may have against any other party for such injury or death, and such employer may enforce same in his own name or in the name of the workmen, his dependents or personal representatives by proper action in any court of competent jurisdiction.”

As a part of its fourth defense, defendant avers that the plaintiff is not the real party in interest and that said action is in fact prosecuted by The New Amsterdam Casualty Company. The defendant avers further that the plaintiff, at the time of the accident, was an officer and employee of The Griffin Construction Company, a Kansas corporation, and was working in the course of his employment for said corporation; that said corporation was subject to the Workmen’s Compensation Act of the state of Kansas; that said insurance company, as insurer of said corporation, assiimed liability under said act, and the Workmen’s Compensation Commissioner duly entered an award in favor of plaintiff herein on account of all disabilities sustained by the plaintiff as the result of the injuries received and described in plaintiff’s amended petition, and, in addition thereto, said commissioner awarded plaintiff a sum in full payment of hospital and medical expenses incurred as a result of such injuries; that said sums awarded plaintiff by said commissioner were paid to plaintiff and received and accepted by plaintiff in full payment of any monies due plaintiff under said compensation act on account of the injuries sustained by plaintiff, in the accident referred to in the amended petition.

As a part of said fourth defense, defendant states that plaintiff failed to institute any action against defendant within one year from the date of said injury or injuries; and, by the terms and limitations of the aforesaid section of the Workmen’s Compensation Act, such failure on the part of the plaintiff to bring any action operated as an assignment of any cause of action to the said The Griffin Construction Company and the said New Amsterdam Casualty Company; and said companies are the real parties in interest herein.

As a part of its fifth defense, defendant states that, if it should transpire that the plaintiff herein is the real party in interest, which defendant specifically denies, and that said companies are not the real parties in interest, then in that event, this action is barred by the aforesaid section of the Workmen’s Compensation Act heretofore set forth which required plaintiff to institute this action within one year from December 16, 1946, the date the plaintiff alleges said injuries were sustained.

Plaintiff, replying to the fourth defense of defendant’s amended answer, states that he made a claim against his employer, The Griffin Construction Company, a Kansas corporation, under the Workmen’s Compensation Statute of Kansas, on account of the injuries received by him on December 16, 1946, and described in plaintiff’s amended petition, and on January 5, 1948, the Workmen’s Compensation Commissioner made an award in favor of the plaintiff in the total amount of $2,175.26, which amount was paid by The New Amsterdam Casualty Company.

Plaintiff, further replying, says that on December 16, 1946, Section 44-504, 1945 Supplement to the General Statutes of Kansas, 1935, was a valid and subsisting law in the state of Kansas in full force and effect, but denies that the provisions of said statute affected any assignment of plaintiff’s cause of action set forth in plaintiff’s amended petition, and denies that plaintiff is barred from prosecuting this action.

Plaintiff, further replying, says he is the real party in interest in said action.

Plaintiff’s cause of action arose in the state of Kansas and his .right to maintain his action must be governed by the laws of Kansas.

The court in this action is required to follow and apply the substantive law of the state of Kansas, as set forth in the within quoted section 44-504 of the Kansas statutes. Hartford Accident & Indemnity Co. v. Procter & Gamble Co., 91 Ohio App., 573, 109 N. E. (2d), 287.

The pleadings admit that the plaintiff was injured on December 16, 1946, and his action was not commenced until twenty-three months thereafter, or on November 24,1948.

As hereinbefore set out, the Kansas statute provides :

“Such action against the other party, if prosecuted by the workman, must be instituted within one year from the date of the injury * * *. Failure on the part of the injured workman * * * to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman * * # may have against any other party for such injury * *

Failure on the part of the plaintiff to bring his action within one year from December 16, 1946, operated as a complete assignment of any and all claims he may have had against the defendant for damages resulting from such injuries.

Plaintiff’s right of action is subject to the substantive law of Kansas. However, the enforcement of this right is controlled by the adjective or procedural law of Ohio.

Section 2307.05, Revised Code of Ohio (Section 11241, General Code), provides that actions must be prosecuted in the name of the real party in interest.

At the expiration of one year from the date of the injury without commencing an action against the defendant, any and all interest the plaintiff had was, by operation of the substantive law of Kansas, assigned to the plaintiff’s employer. At the expiration of said time the plaintiff retained no beneficial interest therein which he could assert against the defendant.

The averments and admissions in the pleadings show that the plaintiff’s action was not commenced within one year, the time required by the Kansas statute, and plaintiff is not the real party in interest as any interest, he may have had, had been assigned to his employer prior to the filing of the present action.

The action of the trial court in sustaining defendant’s motion for judgment on the pleadings was proper and is affirmed.

Judgment affirmed.

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


author: Skeel, J.

text:
    Board of Park Commissioners et al., Appellees, v. Krumreig, Appellant.
    (No. 22845
    Decided November 16, 1953.)

      Messrs. Green, Lausche & Wilmot, for appellee Board of Park Commissioners.

      Mr. Charles F. Ross, director of law, for city of Lakewood.

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. A. M. Braun, for the county commissioners.

      Messrs. Rich Ghesney, for appellant Edward L. Krumreig.
   Skeel, J.

This appeal comes to this court on questions of law and fact from a judgment for the plaintiff on its petition seeking an injunction preventing the defendant, Krumreig, from using park properties in furtherance of and in conjunction with his business of transporting passengers for hire or bringing upon the premises of the park board boats or other equipment for that purpose. At the time the defendant filed his answer and cross-petition he made the United States, the city of Lakewood, and the county of Cuyahoga parties defendant.

The plaintiff’s petition alleges plaintiff’s authority as a body politic and corporate under the laws of Ohio. In 1924 the park board, by agreement with the city of Lakewood, took over the control and development of about 79 acres owned by the city in Rocky River Valley, just south of the Detroit-Rocky River Bridge, which was at the time known as Lincoln Park. In conformity with the agreement, the park board established roads, playgrounds, picnic areas and in a general way supervised the area in connection with other property to the south for recreational and public park purposes. The park board then alleges that the defendant, Krumreig, who is in the business of transporting passengers for hire on pleasure and fishing trips on Rocky River and Lake Erie, is attempting to and does use park property in connection with his commercial business, without the consent of the park board, thus interfering with the recreational use of park property, and seeks to enjoin him from making such use of the park property.

The amended answer and cross-petition of defendant, Krumreig, admits the corporate capacity of the park board as provided by law and the acquisition of the use of Lincoln Park by agreement dated April 14, 1924, with the city of Lakewood, in connection with Metropolitan Park, admits that the copy attached to plaintiff’s petition is a copy of such agreement, and that said agreement is still in force and effect, but denies, for want of knowledge, that the park board took possession of the property and developed and improved it as a public park and for recreational purposes. The defendant denies all the other claims of the plaintiff and alleges that any use he has made of the park property was in connection with and necessary in making use of the “Port of Lakewood” as he had a legal right to do; that the “Port of Lakewood” was created (its facilities including the roadways thereto for public use) by agreement between the city of Lakewood, the County Commissioners of Cuyahoga County and the park board, with the United States of America; and that his use of the port is strictly in accordance with such • agreement in his capacity as a citizen and taxpayer.

The defendant’s cross-petition incorporates the affirmative allegations of his answer and then alleges that in 1939 and 1940, the plaintiff, city of Lakewood, and the County Commissioners of Cuyahoga County, entered into an agreement with the United States of America that they would contribute to the construction of a breakwall along the east bank of Rocky River, a part of which breakwall was to be used as a public dock, to be known as the “Port of Lakewood” and to furnish the right of ingress equally to all, in consideration for which the federal government was to dredge parts of Rocky River and extend and repair the break-wall in Lake Erie at the mouth of said river; and that, thereafter, the breakwall was constructed by the city and the county, the park board furnishing some materials, services and equipment and Port Lakewood was thereby established with egress available over one of the park roadways.

' It is alleged further that the city of'Lakewood and the county of Cuyahoga are wrongfully attempting to surrender the power to manage and police such port, and that the plaintiff is, under such authority, attempting to exclude this defendant as a taxpayer and member of the public from his lawful right to use the facilities of Port Lakewood to his damage. This defendant seeks to enjoin the park board from interfering with his lawful use of Port Lakewood.

A second cause of action alleges that in 1948 this defendant entered into certain agreements with the county commissioners for the use of county property fronting on the east side of Rocky River and just north of Port Lakewood to operate a private fishing enterprise, and, upon the faith of such agreement, purchased boats and materials and acquired the right to use the property directly adjacent to the county property to the north and expended large sums in developing such property into his private business, and that the plaintiff has wrongfully denied this defendant and the public the right to pass over the land owned by the county directly from Port Lakewood to the property of the defendant to the north. This defendant then seeks damages from the plaintiff and the city of Lakewood for wrongfully appropriating a portion of Port Lakewood so as to exclude the public from its use; for unlawfully prohibiting this defendant and the public from free access to Port Lakewood, or the normal use of its facilities; for discriminating against this defendant in attempting to prevent him from running chartered boats and taking parties from Port Lakewood while permitting others to do so; for putting chains across the public highways leading to Port Lakewood; and for failing to provide suitable launching facilities, mooring bits and dock area as agreed to for public use. This defendant then seeks damages for such alleged wrongful conduct on the part of plaintiff and the city of Lakewood.

The affirmative allegations of the defendant’s answer and cross-petition are denied by answers and replies so that issues are made up on the affirmative allegations of the parties.

We find the facts as established by the evidence to be as follows:

The city of Lakewood is the owner of land known as Lincoln Park (in one or two places referred to as Scenic Park) consisting of about 79 acres in Rocky River Valley just south of the Detroit Road Bridge over Rocky River. A very small portion of the land is on the west bank of the river and by far the greater part is on the east bank. The north line of park land is contiguous to the right of way owned by the county upon which is built the Rocky River Bridge. The city of Lakewood, by agreement dated April 18,1924, transferred the “control” of the park lands to the Board of Park Commissioners of the Metropolitan Park District with the right to develop such lands into a part of the Metropolitan Park System. The city of Lakewood, under the agreement, purchased two properties necessary for access to Lincoln Park from the east end of the Rocky River Bridge. The entrance to the present park and recreational facilities, including Port Lakewood, is in part over these two lots, purchased for that purpose by the city of Lakewood, and the road was built under the terms of the agreement. The park board also proceeded with the development of play grounds, picnic areas and other recreational facilities as was true of property acquired by it as a part of the Metropolitan Park System.

Rocky River Harbor is located at the mouth of Rocky River, the stream having been recognized and used as a navigable waterway at least for a distance of 4,000 feet from Lake Erie for a long period of time. The federal government in 1876 appropriated about $35,000 to improve the harbor. They built a 900-foot stone and lumber crib pier into the lake at the east side of the mouth of Rocky River, provided for a 100-foot-entrance, and dredged the entrance channel from four to ten feet deep. This work was completed in 1876. Between 1931 and 1935, some part of the pier was removed and the 100-foot entrance was dredged to a depth of 10 feet and 250,000 yards of shale removed over an area from the mouth of the river to a point at least 4,000 feet from the mouth to a depth of 12 feet. The shale was used by the federal government in constructing the Cleveland Harbor.

By the Harbor Act of August 30,1935, passed by the Congress of the United States, an investigation or survey of Rocky River Harbor was provided for. A report was submitted by the army engineers to the Secretary of War on November 7, 1936, which, in part, provides:

“3. The adjoining residential communities of Lakewood on the east and Rocky River on the west, with populations of 72,000 and 6,000 respectively, are included in the Cleveland metropolitan area. It is reported that 200 pleasure craft ranging in length from 10 to 75 feet, and 2 fishing boats, are based at Rocky River harbor, and that approximately 100 pleasure boats from other ports visit the locality each year. The commerce of the harbor is limited to the catch of the two fishing boats, reported to average 400 tons annually.
‘ ‘ 4. The most suitable plan of improvement is found by the reporting officers to be the restoration of the east pier to its former length of 900 feet and the enlargement of the entrance channel to a width of 100 feet, and depth of 10 feet to a point 600 feet from the inner end of the pier, estimated to cost $48,000 for new work, and $1,500 annually for maintenance of the entire project.
“5. The Board of Engineers for Rivers and Harbors has fully considered the reports of the district and division engineers and the information presented by local interests at hearings before the board. It finds that Rocky River Harbor is used principally as a base for the local fleet of small pleasure craft and concludes that the improvement of interior channels, used largely for the mooring of this fleet, should properly be undertaken by those interests directly benefited. The proposed restoration of the entrance pier and dredging to prove a satisfactory entrance channel, constitute an appropriate measure of federal participation, but this work should be conditioned upon the provisions of local interests of land facilities adequate to insure full use of the improvement by the general public. The board accordingly recommends the improvement proposed, subject to the provision that local interests provide a suitable public landing, with adequate service facilities and highway connection.
“6. After due consideration of these reports, I concur in the views and recommendations of the board. The value of the improvement to general small-boat navigation warrants the measure of federal participation proposed. I therefore recommend that the present project for improvement of Rocky River Harbor, Ohio, be modified to provide for an east entrance pier 900 feet in length, to be secured by a lakeward extension of the present pier, and an entrance channel 100 feet wide and 10 feet deep extending from that depth in the lake to a point 600 feet inside the inner end of the pier; all as indicated on the accompanying map and at an estimated cost of $48,000 for new work with maintenance estimated at $1,500 annually for the entire project; provided that the proposed pier extension shall not be undertaken until local interests shall have given assurances satisfactory to the Secretary of War that they will provide a suitable landing with adequate service facilities and highway connection, open to the users of the waterway on equal terms to all.” (Emphasis added.)

The Board of Park Commissioners, the city of Lakewood, and the county commissioners thereafter in 1939 tried to develop a joint "WPA project to build the necessary retaining wall along the east river bank for a public dock just south of the Rocky River Bridge, as in part required (document No. 70, engineers report quoted herein supra) for federal aid in dredging the harbor. The park board plans were approved by the United States government and the director testified that the job was to be done in such a way as to use hand labor to the fullest extent.

Resolution No. 1916 of the park board, dated April 10, 1939, provides in part:

“Whereas, the federal government, thru the United States, engineers office, in justification for the doing of this work, has insisted that in addition to the increased boating facilities and safety afforded to those of the public who may have access to the private docks along Rocky River within so-called Clifton Park and the Yacht Club Island, that a dock available to the general public shall be provided upon publicly owned land, available by public drives to connecting thoroughfares; and
“Whereas, that portion of the Rocky River Reservation known as “Scenic Park” and lying along the right or east bank of the river, and under the control of this board comes within the conditions set forth by the government engineers; and been prepared and submitted to the United States engineers, and have been approved by them, as satisfying their requirements with reference to the public dock; and

“Whereas, preliminary plans for such a dock have

“Whereas, the construction of this dock and wall has been set up as a WPA project requiring a sponsor’s contribution of approximately $16,000; * * (The plans above referred to were drawn by park board engineers. )

The resolution clearly indicated that property under park board control and drives therein established were to be used to procure the government participation in the improvement of Rocky River.

The resolution indicated also that the contribution of the city of Lakewood was to be $5,500; that of Cuyahoga County $6,000 and that of the park board $4,500, to be contributed in drawing plans, supervising the job and furnishing materials now within the park.

The project did not go through, so in 1940 the city of Lakewood by the expenditure of $8,000, plus the cost of filling in behind the retaining wall, the county of Cuyahoga expending $7,350 and the park board a trifling sum in labor and materials, built the sheet steel piling dock with oakwhales four feet, six inches from the top of the dock on the river side. The dock begins at a point 15 feet to the north of the south line of the county property and proceeds south along the east bank of the river about 475 feet to a concrete wall previously constructed by the city of Lakewood. Two hundred seventy four feet of this sheet steel wall was to be the public dock, to be known as the “Port of Lakewood” and the foregoing sums were spent with full knowledge on the part of the park board, and without objection on its part, that assurance had been made to the United States government that roads within the park would be used for access to the port.

The legislation of the city of Lakewood, in part providing for this improvement, is to be found in resolution No. 3077, Sections 1 and 2, which provide:

“Section 1. That it is declared to be the intention of the council by the construction of a steel piling retaining wall and dock in Lincoln Park on the easterly shore of Rocky River in Lakewood, to provide a suitable small-boát landing with adequate service facilities consisting of mooring bits and a roadway to the dock, open to the users of Rocky River on equal terms to all; and that the Director of Public Works is hereby authorized and directed to give assurances satisfactory to the Secretary of War of the intention of the city of Lakewood to provide such suitable landing, adequate service facilities and highway connections, to the extent necessary to carry out the intent of this resolution.
“Section 2. That said dock or small-boat landing when completed shall be termed and known as The Port of Lakewood * * V’

The mayor of Lakewood notified the army engineers that legislation providing for a suitable boat landing with adequate highway facilities had passed, as required by them, for the improvement of Rocky River, whereupon the engineers advised that upon receiving a copy of resolution 3077 with assurances (that a public dock would be provided) “the Secretary of War has approved, the above ordinance and assurances, as complying with the requirements of local cooperation as specified in house document No. 70, 75th Congress, first session.” Thereafter all parties proceeded and the “Port of Lakewood” became a reality early in 1941.

From 1941 to 1948 the port was used by many persons as a public port and dock, including some commercial interests such as fishermen, boat liveries and the like. Defendant, Krumreig, and a Mr. Cotleur, who now runs a boat livery concession granted by the park board at the Port of Lakewood, were among those who used it in this fashion. In 1948 the defendant, Krumreig, who then had a boat livery on the west bank of Rocky River, leased land immediately north of the county property (the right of way for the Detroit-Rocky River Bridge) and transferred his business to that location. His business was and is devoted to supplying boats for fishing parties and excursions on Lake Erie. He has 24 fourteen-foot rowboats, or boats upon which outboard motors can be used, and three large motorboats. His lease provided for the right to build a stairway up the steep east bank of the river to the bridge or street some 40 or 50 feet above, which would provide egress for people on foot (no such stairway, however, was ever built). There was no physical way in which vehicular traffic could reach the place where he had provided docks and mooring for the boats used in his business on his leased property.

The east abutment of the Rocky River Bridge was built very close.to the water’s edge. There is, however, .a very narrow footpath across the full width of the county property between the abutment and the river. The bridge abutment is 56 feet wide, the right of way 78 feet wide to the abutment wall facing the river and then it widens to 100 feet, the extra width extending to the south and west so that the first 15 feet of the river side of the Port of Lakewood extending back five to ten feet is on county property and the footpath leading from the port to go under the bridge is all on county property until it reaches defendant, Krumreig’s, property to the north.

When Krumreig moved his business to the east side of the river north of the bridge, he used the “Port of Lakewood” (as was true when his business was conducted on the west side of the river) to load materials on flat boats and to launch his boats there for transportation to his place of business. He used a park drive beginning at Sloan Avenue at the east end of the Rocky River Bridge and running from there to the port to transport his goods there either by truck or automobile. Trades people also used this method to make deliveries to him and on a few occasions Krumreig picked up and discharged passengers there. Many of his customers drive to the port, park their automobiles in the parking lot provided by the park board nearby, and then walk to Krumreig’s place of business from the port over the path just described. During the summer of 1948, defendant, Krumreig, was granted permission by the county to build a floating dock 80 feet long in 20-foot sections (two being six feet wide and two being eight feet wide) under the bridge close to the east bank of the river from the port to defendant’s property for the use of his customers in reaching his place of business.

In 1949, the park board, through its director, induced the county to let the park officials police the county property north of Lincoln Park (right of way for Rocky River Bridge), which request was granted, and in doing so induced the county to refuse to lease the county property under the ■ bridge to the defendant, which it had by resolution agreed to do if he was the highest bidder, whereby his right to the floating dock under the bridge was terminated. The park board also put posts on each side of the drive leading to the port some 250 feet from its northerly end, and some 60 feet east of the river, and fixed a chain on the posts across the drive with a “No parking” sign suspended in the middle. The director of the park system testified that the purpose of the chain was to prevent parking within the port area, but it had the effect of preventing many citizens from unloading materials at the dock. The chain was later removed.

The park board also erected signs on the border line between the county property and Lincoln Park, which read: “Stop. This is not a public way. Do not trespass. ’ ’' These were later replaced by signs reading:

“North line of park property, Not a public way.” The park director after being asked what happened to the first signs testified: “I did not see them disappear. They may have evaporated into thin air.”

He testified also that the purpose of the signs “was to indicate that the park land there was not a public way to his [Krumreig’s] commercial operation.”

On July 29, 1949, the park director wrote a letter to the county commissioners seeking authority to erect a fence on the line of the bridge across the north side, a part of the letter reading: “To prevent continuous trespass from park property northerly along the river. We find the general public is using a path under the bridge as a means of getting to private property north of the bridge.”

The county, by resolution of August 6, denied the request and no fence was erected on the county’s northerly line. The park board filed this action on July 27, 1949, seeking to enjoin defendant, Krumreig, as above set forth.

We come now to a consideration of the rules of law applicable to the foregoing findings of fact. The plaintiff’s action is in equity. The burden is upon the park board to show, with that clearness which is always necessary to move a court of equity to interfere, a state of facts which constitutes a wrong, an injustice, or which causes irreparable damage for which the law provides no adequate remedy.

The plaintiff’s case begins with a consideration of its right to control that part of Lincoln Park in which the “Port of Lakewood” has been established and the park roadway or drive leading from the port to Sloan Avenue at the east end of the Rocky River Bridge, and to exclude the defendant, Krumreig, from using the port and drive in the operation of his business north of the Rocky River Bridge. The plaintiff’s rights in Lincoln Park do not rise to the dignity of a leasehold under the contract of April 14, 1924. Its interests are those of a licensee, revocable under certain conditions. The last paragraph of the agreement provides:

“It is understood and agreed that control of the premises herein referred to shall not confer upon the Board of Park Commissioners any rights or title other or different than herein expressly provided and particularly that such control shall not ripen into any title by adverse possession.”

No such provision would, under any circumstances, have been necessary had it been the intention of the parties that the park board should be vested with even a limited title under the agreement. After the agreement was signed and the park board took control, the city was still possessed of an unlimited fee in the property. No time being fixed by the agreement within which the park board’s use of the property was to terminate, its control continued at the will of the city.

There is not the slightest doubt that the park board joined in inducing the federal government to expend money in expanding Rocky River Harbor upon assurances that a public port would be established on public property with a road leading to a public thoroughfare. This could mean nothing else than that the park board would make available the park road leading from the proposed site of the port to the nearest available public highway. The board’s resolution of April 10, 1939, referred to above, is clear upon this point. And while the WPA project which was the subject of such resolution never came into being, yet the project was continued and completed with clear assurances to the federal government that the Port of Lakewood would be available to the general public by a proper roadway, of which the park board had full knowledge and acquiesced therein. It is, therefore, estopped from seeking to enjoin the nse of the roadway and the ground around the port, of sufficient size to make its use possible to the fullest extent and necessary for its practical use as a public port.

From its very beginning, the port was used for private and limited commercial purposes. As noted above, the park board’s boat livery concessionaire is now located directly in front of the port and, like the defendant, makes the same use of it for commercial purposes as when he was located on the west side of the river. The plaintiff has failed to show any clear legal right to interfere with defendant’s use of the port and the driveway leading to it from Sloan Avenue.

Defendant has an absolute right to use the roads leading to the Port of Lakewood for all purposes whatsoever, including .the transportation' of goods, boats and equipment to be transported by water to his place of operations. This right, however, is limited to the use of the Port of Lakewood but does not include a right over objections of the plaintiff to transport such materials, goods and equipment from the Port of Lakewood to his place of business by land. Defendant and his employees, as members of the public, do not commit a trespass in walking from park property to defendant’s place of business.

It is true that by Section 1545.09, Revised Code, the park board has been vested with power to adopt bylaws, rules and regulations to govern the use of property under control of the park board. There is, however, nothing in the rules published in 1941 which would in any way conflict with the commercial use of a public port established by the city of Lakewood on its land in control of the park board and, in the creation of which, the park board had acquiesced, and had taken some part in its construction, or that would prevent access to it over park roads to make the port available to all on equal terms. Nor could rules passed subsequently have any effect with respect to the use of roads thus dedicated to serve the needs of the port under the joint sponsorship of the county commissioners and the city of Lakewood, in which the park board took part.

The claim that defendant, Krumreig, induced citizens to come upon the lands under the control of the plaintiff, leave their automobiles in parking spaces provided for that purpose, and then “trespass” on the land under the control of plaintiff for park and recreational purposes in walking to defendant’s place of business to go fishing or for a boat ride on Lake Erie does not show facts which will afford the plaintiff the right to an injunction. The plaintiff’s duty is to afford the public opportunity for pleasure and recreation. Fishing and boating come clearly within such purposes. If it were not so, the plaintiff would have no right to grant boat livery and fishing concessions at and within the Port of Lakewood as it has done. The park board should have no concern with what facilities members of the public use in seeking their recreation. The walking across a roadway or within the limits of the public port, or over a stony path under an abutment where the greater part of the property is owned by the county, and over which the park board has only the right to police and keep order, violates no reasonable rules of a park board seeking to further and provide recreation for the leisure hours of the people.

We must, therefore, dismiss plaintiff’s petition at its cost, including the cost of the transcript of the evidence filed under the stipulation of the parties.

The cross-petition of defendant, Krumreig, seeks damage against the plaintiff and the city of Lakewood, for wrongfully interfering with his business. There is no evidence supporting any of the allegations of the cross-petition against the city of Lakewood, and, as to that defendant, the cross-petition is dismissed.

(Decided January 4, 1954.)

As to the plaintiff, there is some evidence which might tend to support a concerted effort to wrongfully interfere with the defendant’s business. The stretching of a chain across the road to the port, putting up “No trespass” signs at the end of the park property near the path on county property leading to defendant’s place of business, and the attempt to completely fence off any egress to defendant’s property tend to establish such claims.

If the board was interested in the alleged trespassing on property under its control, the signs should have been turned the other way. But even though there is such evidence before the court, there is not a word of evidence showing that the defendant, Krumreig, suffered any damage because of the attempt of plaintiff to prevent members of the public from using his facilities. The court, therefore, enters judgment for the costs of the cross-petition against the plaintiff.

A journal entry is ordered to conform to findings of fact and law in this opinion.

Judgment accordingly.

Hurd, P. J., and Kovachy, J., concur.

On Motion for new trial.

Skeel, J. The plaintiff’s motion for a new trial presents two questions for consideration as follows:

1. The judgment and decree of the court is not sustained by the evidence.
2. The judgment and decree is contrary to law.. The plaintiff’s claim is that its petition should not

have been dismissed in its entirety as the court’s opinion and journal entry in part sustain the right of plaintiff to some of the relief prayed for. Such claim is well taken. This court in its opinion, in limiting the extent to which defendant was privileged to use the public roadway leading to the “Port of Lakewood” and such property adjacent thereto as would be necessary to make reasonable use of such port, which of course would include parking facilities as provided at the port, said that the privilege to which the defendant was legally entitled to in the port and the roadway leading thereto ‘ ‘ does not include a right, over the objection of plaintiffs, to transport such materials, goods and equipment from the Port of-Lakewood to his place of business by land.”

The journal entry is, therefore, ordered amended, striking therefrom the order to dismiss the plaintiff’s petition in its entirety and granting such relief as is not inconsistent with the rights of defendant to use the roadway to the port, the port facilities, and the necessary facilities associated therewith, as outlined in the court’s opinion. All other claims under the first question presented by this motion are overruled.

The second part of the motion is based ‘upon the claim that the plaintiff acting under statutory'authority is in the exercise of a governmental function in the conservation of natural resources and providing for public recreation and is, therefore, immune from liability under the allegations of the defendant’s cross-petition, even if supported by sufficient evidence. This question was not presented either by the pleadings or upon trial. The judgment of the court on defendant’s cross-petition was that there was some evidence tending to show an effort on plaintiff’s part to wrongfully interfere with defendant’s business; but even if this be so, there was no evidence of damage and the costs were therefore adjudged against plaintiff on defendant’s cross-petition. We hold that the plaintiff is in the exercise of a governmental function and is immune from liability for any wrongful conduct, even if shown as charged in defendant’s cross-petition.

The journal entry is, therefore, ordered amended by dismissing the defendant, Krumreig’s, cross-petition. However, this being an action in equity, plaintiff invoking the jurisdiction of the court seeking to enjoin defendant, Krumreig, in the use of the Port of Lakewood for commercial purposes, and the use of the public road which is the only means of reaching the port, and the plaintiff having failed as to its principal claim, the court enters judgment against it for all costs. The journal of the court is ordered amended as herein directed and the motion for new trial is overruled.

Judgment accordingly.

Hurd, P. J., and Kovachy, J., concur.


author: Matthews, J.

text:
    Vandervort et al., Appellants, v. The Sisters of Mercy of Cincinnati, Ohio, Appellee.
    (No. 7681
    Decided December 29, 1952.)

      Mr. Louis J. Schneider, Jr., for appellants.

      Mr. Wm. J. Dammarell, for appellee.
   Matthews, J.

This is an appeal on questions of law and fact from a judgment rendered by the Court of Common Pleas of Hamilton County. It is an action to enjoin the use as a parking lot of certain premises in ,the village of Mariemont.

The defendant owns tracts of real estate in said village designated as parcels 88, 103, and 122. There is located on parcel 103 a hospital with a capacity of 55 beds and as an accessory to the hospital there is a parking lot on said parcel. Because of the alleged inadequacy of the parking lot to serve the present needs of the hospital and to provide for an increase in the capacity of the hospital, it is now proposed to enlarge the parking lot, and that gave rise to this controversy.

In 1942, the council of the village passed a comprehensive zoning ordinance covering the entire village. The whole of parcel 103 was classified as “Residence B” property by the terms of this ordinance. About three months thereafter the defendant acquired title to parcels 88, 103, and 122, and commenced operating a hospital in the building which had been built on parcel 103 some time previously, and designed for hospital use, but which had not theretofore been so used. The hospital has been in continuous operation since the property was acquired by the defendant.

On June 28, 1948, on the petition of the defendant, the council of the village passed an ordinance amending the zoning ordinance of 1942 by transferring a strip 75 feet wide immediately within the perimeter of parcels 88, 103, and 122 from “Residence B” zone to “Residence A” zone, and other parts of defendant’s property were transferred to zone “B.” The record fails to disclose any specific reason assigned by the village council for the transfer.

The defendant plans to use for parking lot purposes about 650 feet of that strip of parcel 103, and has graded or is in the process of grading and leveling it so that it will accommodate 100 automobiles. The tract is contiguous to the lots of some of the plaintiffs.

It is not disputed that a parking lot of this size and for this purpose would be a nonconforming use in “Residence A” zone. The defendant sought relief from the restriction under the hardship provision of the zoning ordinance.

Empowered by Section 4366-11, General Code, the council, in the zoning ordinance, created the positions of building commissioner and planning commission, and delegated to the latter, by paragraph 8 of section 304-1 thereof, the power to relieve against undue hardship in its application by modifying its strict application or by interpreting its meaning, “where the strict application of any provision of this ordinance would result in undue hardship upon the owners of specific property, or where there is a reasonable doubt as to any provision of this ordinance so as to relieve such hardship; provided that such modification and interpretation shall remain in harmony with the general purpose and intent of this ordinance, so that the public health, safety, convenience, comfort, prosperity and general welfare will be conserved and substantial justice done. ’ ’

The general administration and enforcement of the zoning ordinance and building code was delegated to the commissioner of buildings and provision was made for appeals from his decisions to the planning commission. We have, not been cited to and have not found any provision authorizing action by the planning commission other than by appeal from rulings by the building commissioner.

Without applying to the building commissioner for a permit and without giving any sort of notice, the defendant seems to have sought the advice of the planning commission on June 4, 1946. At any rate, the matter was discussed on that date. Sometime prior to July 3,1951, the defendant addressed a letter to the planning commission in which the subject was brought to its attention again. As a result, the planning commission on that date passed a resolution in which it was recited that the expansion of Our Lady of Mercy Hospital had long been contemplated and that the zoning ordinance was amended with that in mind; that adequate parking facilities were a necessity and the ordinances required off-street parking facilities; that the zoning ordinance does not give off-street parking authority in either “Residence A or Residence B zone”; and that the topography of defendant’s property limits the available parking space to the strip in question. After this recital, the planning commission .resolved to, and did, approve “the establishment of a parking lot to accommodate 100 automobiles as shown by a drawing presented by defendant’s representative ‘providing that reasonable standards of paving and landscaping are provided under authority of Section 304-1 (8).’ ”

It is this approval by the planning commission which defendant presents as its authority to use this space for parking purposes. It is conceded that establishment of a parking lot of this character is a nonconforming use in “Residence A” zone.

Governmental restrictions upon the use of property can find constitutional authority only in the exercise of the so-called police power, that is, in the just power of the sovereign to pass all manner of laws to promote the. public safety, the public health, the public morals, and the general welfare and prosperity of the public. It is not sufficient for the law-making power to declare that it is legislating to promote one or more of those objects. The law must, in fact, have some reasonable relation to one of those objects. If it has no such relation, it constitutes an arbitrary exertion of governmental power and violates the “due process” provisions of the federal and state Constitutions.

Assuming that a subject comes within the police power of the government, the determination of whether regulatory rules shall be enacted and their nature is a matter of policy confided by the Constitution to the law-making department of government; that is, the G-eneral Assembly for the state, and the council for the villages. And the authority thus confided cannot be delegated.

In Clifton Hills Realty Co. v. City of Cincinnati, 60 Ohio App., 443, 21 N. E. (2d), 993, we were called upon to determine the power to enact and amend zoning ordinances under the Constitution. In doing so, we set forth at some length our views on the general subject. We think the views there expressed are supported by the cases then decided, as well as the later cases. See: Eggebeen v. Sonnenburg (239 Wis., 213, 1 N. W. [2d], 84), 138 A. L. R., 495, at 500 et seq. We shall not discuss the subject here.

We, therefore, conclude that if the use of this strip for parking purposes was a matter of policy, the village council could not delegate to the planning commission the determination of that question. If it was not a matter of policy, but was only its application to the subject matter of the policy predetermined by council, then the power could be delegated to the planning commissioner or any other administrative officer or body. However, if the authority was properly delegated to the planning commissioner, his action must be taken in the form and manner prescribed by the delegating instrument, that is, in accordance with the zoning ordinance in this case.

It appears to the court, however, that use of this strip for parking purposes would not be a minor change made necessary in the application of the “undue hardship” provision, but rather would serve to reverse and nullify almost the whole of the amended ordinance.

Even assuming it comes within the “undue hardship” provision, the planning commission was unauthorized by the zoning ordinance for two reasons, viz.: There was no action by the building commissioner from which an appeal to the commission was taken, which was a prerequisite, and no notice of the hearing was given, which was required by the ordinance and also by due process.

It, therefore, appears that a case for injunctive relief has been established and a decree may be presented in accordance with this opinion.

Decree accordingly.

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