author: Middleton, P. J. Guernsey, J.,

text:
    McFadden, Appellee, v. Kendall, Appellant.
    (No. 148
    Decided August 1, 1946.)

      Mr. Paul 0. Boesel, for appellee.

      Mr. A. A. KUpfel, for appellant.
   Middleton, P. J.

This case is in this court on appeal from the Court of Common Pleas of Auglaize county. There is no dispute as to the facts.

The Court of Common Pleas, in June 1939, in a divorce action awarded custody of a minor child to the mother, Carmen Maize, now Carmen McFadden, the plaintiff in this action. Thereafter, in 1941, Mary E. Kendall, the maternal grandmother of the minor child, filed an action in the Juvenile Court of Auglaize county, charging that the minor was a dependent child. In that action the plaintiff herein filed the following designated waiver, to wit:

“I, the undersigned, Carmen Boyd McFadden as the mother of William Maize, a minor do by these presents hereby waive the issuing of service of notice on me in the above entitled cause and I do by these presents consent tó the application herein filed in this cause and confer upon the court jurisdiction for all purposes in the premises, and do consent to the immediate rendition of a decree in the matter of the custody, control and care of the said William Maize.

“Carmen McFadden.”

The Juvenile Court, on hearing, found the child to be dependent, within the meaning of the Code, and placed him in the custody of the grandmother, Mary E. Kendall, defendant herein and mother of plaintiff, Carmen McFadden.

Thereafter, in April 1946, the mother filed a petition in habeas corpus in the Court of Common Pleas of Auglaize county to obtain custody of the minor. The court, on heáring, granted the writ, and it is from that order that appeal'is taken to this court.

The case involves the question of jurisdiction between the Court of Common Pleas and the Juvenile Court.

The jurisdiction of the Court of Common Pleas to award custody of children in divorce actions is contained in Section 11987, General Code, which provides as follows: ■

“The granting of a divorce and dissolution of the marriage in nowise .shall affect the legitimacy of children of the parties thereto. The court shall make such order for the disposition, care and maintenance of the children, if any, as is just. * * * ”

The jurisdiction exercised by the Juvenile Court in awarding the custody of the child to the grandmother is found in Sections 1639-7 and 1639-16, 'General Code, enacted in 1937, which read, in part, as follows:

“See. 1639-7. The Juvenile Court, or Court of Common Pleas, Division of Domestic Relations of any county, separately and independently created, established and functioning as such by law, shall have and exercise the powers and jurisdiction conferred in this chapter. Except in counties in which there now is, or may hereafter be created, a separate and independent Juvenile Court or Court of Domestic Relations, there is hereby established and created within the Probate Court, a Juvenile Court, presided over by the probate judge, which shall be a court of record, and which shall exercise such powers and jurisdiction. * * *”

“Sec. 1639-16. (a) The court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code:

“1. Concerning any child who is (1) delinquent, (2) neglected, (3) dependent, or (4) crippled.

“2. To determine the custody of any child not a ward of another court. * * *” (117 Ohio Laws, 524.)

It is claimed by the plaintiff that the jurisdiction thus conferred on the Juvenile Court does not supersede the authority granted the Common Pleas Court under Section 11987, General Code, and that the Court of Common Pleas, having first acquired jurisdiction over the minor in the divorce action, retains jurisdiction to the exclusion of the exercise of jurisdiction by the Juvenile Court.

The court has carefully considered the cases cited by counsel in their briefs. All these cases hold that the court first acquiring jurisdiction over the custody of a minor retains jurisdiction to the exclusion of all other courts. However, upon an examination of these eases we find none of them, with the exception of the case of Cleveland Protestant Orphan Asylum v. Soule, 5 Ohio App., 67, decided in 1915, involves more than custody, and none of them, with this one exception, involved a minor charged with being a delinquent^ neglected, dependent, or crippled child under the Juvenile Court Code. Also, all the cases cited were decided prior to 1937 when the present Juvenile Court Code, in force at the time this case was decided, was enacted. Prior to the 1937 amendment of the Juvenile Court Code the Court of Common Pleas and the Juvenile Court had concurrent jurisdiction.

This court does not approve the holding in the Soule case but the' reasoning of the court in that case could not apply in the present 'case in view of the change in the Juvenile Court Code since the case was decided.

By the provisions of Section 1639-16, General Code, the Juvenile Court is granted exclusive original jurisdiction (1) concerning any child who is dependent,, and (2) to determine the custody of any child not a ward of another court.

It is urged by the plaintiff that under this latter provision the Juvenile Court has jurisdiction to determine the custody of a child only if such child is not a ward of another court, and that the provision of this subsection is a limitation of the jurisdiction granted to the Juvenile Court over dependent, neglected, delinquent, or crippled children.

With this view we can not agree.

Such a construction is not supported by a study of the section. On the contrary, the only fair construction which can be given is that subsection 2 of Section 1639-16, General Code, is a grant of jurisdiction and not a limitation of jurisdiction.

The jurisdiction over minors, acquired by the Common Pleas Court in a divorqe action, is a continuing jurisdiction and, as between the parties to a divorce action, no other court has authority to make any order affecting the custody of such minors. But where a child is properly charged with being a delinquent, neglected, or dependent child, and is proven to be such, the state has a paramount right, in the interests of the child, to say who shall have the care,, custody and control of the child, and the Juvenile-Court, by the enactment of Section 1639-16, General1 Code, has been made the special and exclusive tribunal for determining such issue.

Taking this view of 'the case, we find error in that the judgment of the Court of Common Pleas is contrary to law.

The judgment is therefore reversed and the court, proceeding to render the judgment the Common Pleas . Court should have rendered, dismisses the petition of plaintiff and enters final judgment for defendant.

Judgment for defendant,

Jackson, J., concurs.

Guernsey, J.,

dissenting. Sections 1639-7 and 1639-16, General Code, are sections of the Juvenile Court Code, now designated as Sections 1639-1 to 1683-33, inclusive, General Code.

The Juvenile Court Code contains detailed provisions for the exercise by the Juvenile Court of the jurisdiction conferred upon it concerning any child who is delinquent, neglected, dependent, or crippled.

Section 1639-30 specifically authorizes the court, upon finding that a child is delinquent, neglected, dependent, or otherwise within the provisions of the Juvenile Court Code, to place such child on probation or under supervision of its own home or in the custody of a relative or other fit person, upon such terms as the court shall determine.

There are no provisions of the Juvenile Court Code or of the Probate Court Code concerning the exercise by the Juvenile Court of the jurisdiction apparently conferred upon it by subsection 2 of Section 1639-16, General Code, to determine the custody of any child not a ward of another court, or prescribing any class or classes of cases upon which such .jurisdiction may operate. Nor are there any class or classes of cases .prescribed in the General Code upon which such apparent grant of jurisdiction may operaté. Nor are there any conceivable class or classes of cases upon which such apparent grant of jurisdiction may operate.

The effect of Sections 8032, 8033 and 8034, General Code, prescribing, among other things, that when parents are living separate and apart from each other, or are divorced, and the question as to the care, custody and control of the offspring of the marriage is brought before a court of competent jurisdiction in this state, the parents shall stand upon an equality as to the care, custody and control of such offspring, so far as it relates to their being father or mother, and further prescribing the rules applicable to awarding such care, custody and control, is to abrogate the rules of the common law giving the husband a superior right to custody. Such sections are applicable only to the award of the care, custody and control of the children of the parents in cases for alimony only, as prescribed in Sections 11997 and 11998, General Code, and in cases of divorce, as prescribed in Section 11987, General Code.

If subsection 2 of Section 1639-16, General Code, apparently conferring exclusive jurisdiction on the Juvenile Court to determine the custody of a child not the ward of another court, is construed to be a grant of jurisdiction and not a limitation on the jurisdiction conferred in subsection 1 of the section, it would be necessary in every case where the husband and wife were separated and not divorced and there were offspring of such marriage, for the parent seeking custody of such children, and either alimony or divorce, to have the custody of the children determined by the Juvenile Court, and then in a separate action in the Common Pleas Court have the support of such children, and either alimony, or divorce and alimony, decreed.

In the absence of definite statutory provisions to this effect it is impossible to conceive that this was the legislative intent in the enactment of this subsection.

As thqre is no class or classes of cases upon which the jurisdiction apparently conferred on the Juvenile Court by this subsection may operate, it. is impossible to construe it as a grant of jurisdiction. To do so would make the subsection wholly meaningless.

“Every part of a statute must be viewed in connection with the whole, so as to make all its parts harmonize, if practicable, and give a sensible and intelligent effect to each. It is not presumed that the legislature intended any part of a statute to be without meaning. ’ ’ 2 Lewis’ Sutherland Statutory Construction (2 Ed.), 919,

As a subsection does not 'constitute a grant of jurisdiction, to give it effect it must be construed as a limitation of the jurisdiction conferred by subsection 1 of Section 1639-16, General Code. So construed, jurisdiction is conferred on the Juvenile Court concerning any child who is (1) delinquent, (2) neglected, (3) dependent, or (4) crippled, to be exercised in the manner prescribed by the Juvenile Court Code, but limited by such subsection 2 to the determination of the custody of a child only in cases where the child is not a ward of another court. Such determination does not preclude the Juvenile Court, upon finding that a child is delinquent, neglected, dependent, or otherwise within the provisions of the Juvenile Court Code, from proceeding as provided in Section 1639-30, General Code, except that in cases coming within the limitation mentioned the court is without jurisdiction to place the child in the custody of a relative, or other fit person, as prescribed in subsection 1 of Section 1639-30, General Code, or to commit such child to a private institution or agency incorporated under the laws ,.of the state, ápproved by the State Department of Public Welfare, and authorized to care for children or place them in suitable family homes, as prescribed in subsection 2 of Section 1639-30, General Code.

At the time of the decision in the case of Cleveland Protestant Orphan Asylum v. Soule, 5 Ohio App., 67,

decided in 1915, there was no statutory ■ provision similar to subsection 1 of Section 1639-16, General Code, conferring jurisdiction on either the Juvenile Court or Common Pleas Court. This subsection was added to the statutes conferring jurisdiction on the Juvenile Court, in 1937, after the decision' in the Soule case. It is probable that the Legislature enacted this subsection having in mind the law as established by this case and making it statutory.

The law as established' by the Soule case is, in my opinion, incorrect, as the decision in the Soule case is based on a holding of the Supreme Court to- the general effect that where a husband and wife are divorced and the Court of Common Pleas granting the divorce also awarded the custody and control of the children of the marriage to either of the parents, such children become the wards of that court, and the jurisdiction of that court over their custody and control is a continuing jurisdiction, and such decree for the custody and control of the minor children cannot, as between the parties, be affected by' the appointment of a guardian by a Probate Court, nor does any other court, by a proceeding in habeas corpus, acquire any jurisdiction other and further than to enforce the decree so rendered.

It will be noted that the holdings of the Supreme Court, relied on in the decision in the Soule case, apply only to changes in custody of children ■ through guardianship proceedings, or by way of proceedings in habeas corpus, and that none of the decisions upon which the decision in the Soule case is based, in- any way relate to the jurisdiction of the Probate Court, acting as a Juvenile Court, to award the custody of a minor child in dependency proceedings properly instituted before it, where the custody of such child had previously been awarded by a Common Pleas Court in a divorce case pending before it, and consequently that none of the decisions upon which the decision in the Soule case is based support the decision of the court.

It would appear clear that as dependency proceedings in Juvenile Court are on behalf of the state and the paramount issue in the same is the welfare of the child, an action in the Common Pleas Court determining the custody of the child, as between the parents, should not have precluded the Juvenile Court from exercising its jurisdiction to determine the custody as a remedy in dependency proceedings.

But be that as it may, the amendment of the statutes relating to the jurisdiction of the Juvenile Court, by the enactment of subsection 2 of Section 1639-16, General Code, precluded the Juvenile Court from awarding the custody of the minor child of Carmen Maize McFadden the plaintiff herein, to Mary E. Kendall the maternal grandmother of the minor child, and the Common Pleas Court did not err in so bolding and its judgment, in my opinion, should be affirmed .


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Fairbanks, Jr., et al., Appellees, v. The Power Oil Co. of Ohio et al., Appellants.
    (No. 978
    Decided November 10, 1945.)

      Mr. Frank Wiedematm, for appellees.

      Mr. William P. Moloney, for appellants.
   By the Court.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Marion county, and by agreement of the parties is submitted to this court de novo upon the transcript of the evidence introduced in the' trial of the cause in the Common Pleas Court and additional evidence introduced on the trial in this court.

The action is one in equity for the cancellation of a written lease on certain premises owned by the plaintiffs, Charles W. Fairbanks, Jr., and Irenea Kraus Lawrence, and situated in the city of Marion, Ohio.'

On July 20, 1936, at Marion, Ohio, Anna M. Herman Fairbanks, Charles W. Fairbanks and Ida B. Kraus entered into an agreement in writing with The Power Oil Company of Ohio,, a defendant herein, whereby they leased the premises-in question to that company. The lease was recorded in the lease records of the recorder’s office of Marion county, Ohio. Plaintiffs are the successors and assigns of the lessors, Anna M. Herman Fairbanks, Charles W. Fairbanks and Ida B. Kraus.

Under the terms of the written agreement the lessors leased the premises to The Power Oil Company for a term o’f five years beginning on September 1, 1936. The lease provided for two renewals thereof for further terms of five years each. The lease was renewed by lessee as therein provided. The first renewal thereof became effective on September 1, 1941, and the term thereof was thereby extended for a period of five years thereafter to September 1,1946, at a monthly rental of $75 per month. The lease provided also that in addition to' paying the monthly rentals therein specified, the lessee should pay all taxes and assessments on the property during the original term and all extensions thereof. It provided further that the lessee should have the privilege of purchasing the property during the first five-year period at $15,000, and if the lease should be renewed for five additional years the lessee was then to have the privilege of purchase at $18,000, and if renewed for the third five-year period lessee should have the privilege of purchasing at $20,000 during this third or last period.

It is provided further in the lease that:

“It is agreed, that said lessee shall not assign this lease, nor under-let said premises, nor any part there of, nor permit its interest under this lease to be sold under legal process, without the written consent of said lessor; and that if said lessee shall, without such conselit, do or suffer any of the things forbidden to it herein, or if it shall use said premises in any unlawful way Or. for any unlawful purpose, or if any of said rent shall be unpaid for thirty-one days after it shall have become due, then said lessor may recover possession of said premises and terminate this lease, without reference to the time said lease would otherwise have expired. ’ ’

After the execution of the lease on.July 20, 1936, The Power Oil Company equipped the property,.which was then a vacant lot, by placing thereon three steel tanks of sufficient size to hold carload quantities of gasoline. Provision for handling such carload quantities was made by constructing a pipeline from a siding of The Pennsylvania Railroad Company opposite the freight house of that company on West Center street in the city of Marion.' The usual pumps, floodlights, measures, scales and other equipment were installed by the company for the purpose of equipping the premises as an up-to-date oil and gasoline service station. In addition to this equipment a small building was constructed by the company on the premises for the use and accommodation of the attendants and patrons of the station. All this required very substantial expenditures on the part of The Power Oil Company. The result of these improvements was that the company had a first-class filling station and the owners of the property had a non-income vacant lot, converted into a very substantial /income producing property.

In 1943 the manpower situation was very critical and gas rationing reached its peak, and the company, on account of these conditions, found itself in a position where it was becoming increasingly difficult to man this station with competent help and to operate the same at a profit.

Impelled by that situation, Meyer Hoffman,. president of the company, in July 1943, contacted G. F. Dominy, the other defendant herein, who was then operating an oil and gasoline service station known as the Low Price Filling Station in the city of Marion, and talked with him about selling the equipment of The Power Oil Company station to Dominy. Exclusive of the building the removable equipment at that time was worth in excess of $3,000. Dominy stated that he was looking for an additional location, and after some discussion he and Hoffman agreed that Dominy should try out this location with a view to acquiring the same and if after such trial he wanted to continue in the location they would get together on a price, of the equipment and see what could be done toward getting an assignment of the lease, or getting a satisfactory lease. There was a complete and full discussion betwen Dominy and Hoffman at the time and there was a determination of the amount of gas and oil that The Power Oil Company had in its tanks. and on hand; also the amount of rental that Hoffman was paying and. the payment that Dominy would be expected to make to Hoffman during the time he was trying out this station.

The rental that The Power Oil Company was paying was at the rate of $75 per month. •,

Under the terms of the lease The Power Oil Company was also required to pay the taxes on the premises, which items together amounted to approximately $87 per month.

Under the arrangement made between The Power Oil Company and Dominy, Dominy was to occupy the premises immediately and operate the service station thereon for the purpose above mentioned, and to reimburse The Power Oil Company at the rate of $87 per month for the rental and tax,payments made by it during his trial of the location. No definite time was fixed for the termination of such trial period.

The arrangement made between the parties was wholly oral and did not purport to provide for an assignment of the lease or subletting the premises. Consequently unless the nature of the arrangement was such as in law would constitute an assignment of the lease or a subletting of the premises there was no agreement by the parties concerning either the assignment of the lease or the subletting of the premises.

Dominy immediately occupied the premises, removed the sign of The Power Company therefrom and put up his own sign, Low Price Pilling Station, in place thereof, furnished his own products and proceeded to operate the filling station, and has continued in the operation thereof up to this time.

Dominy testified that a few weeks after he commenced the operation of the station he called by telephone Charles W. Fairbanks who was acting as agent for the owners of the premises, and Fairbanks said he had seen the sign out there and knew that it was there. Fairbanks denied having any such conversation with Dominy at the time mentioned. But be that as it may, Fairbanks did not come to the station to see Dominy until sometime in October or November.

When Fairbanks saw Dominy either in October or November Dominy told him that he was trying out this station to see whether he wanted to buy it and that he was paying Hoffman for The Power Oil Company $87 a month, the amount The Power Oil Company paid as rental and the pro-rata payment of taxes. Fairbanks said to Dominy that it was all right for him to continue in possession and raised no objection to his continuing to make these payments until March 1944. Mr. Dominy is still operating the station at this location, using the equipment of The Power, Oil Company but not paying either The Power Oil Company or the owners anything.

On or about December 21, 1943, the plaintiffs notified The Power Oil Company that they were exercising their right under the terms of the lease to recover possession of the premises and terminate the lease without reference to the time the lease would otherwise have expired, for the reason that The Power Oil Company had attempted to assign the lease or underlet the premises without the written consent of lessors, lessors’ successors or assigns, and for the further reason that The Power Oil Company had abandoned the premises to another party without the consent of the lessors or their successors, and for the further reason 'that The Power Oil Company had not paid its rent in accordance with the terms of the iease and was then in default for payment of the same.

About January 4, 1944, Hoffman met with Dominy and it was then agreed between them that Dominy would purchase the equipment owned by the company, at a price of $3,000 in the event Dominy should be able to secure the plaintiffs ’ consent to the assignment of the lease or a new lease from the owners of the premises. There is a conflict in the testimony of Dominy and Hoffman as to whether the equipment proposed to be sold included the building erected by the lessee on the leased premises, but the preponderance of the evidence is that it did not include such building.

The Power Oil Company paid the rent directly until December 1943, when the check for the rent was refused, and since that time it tendered the amount each month by check until this action was commenced in the Common Pleas Court on February 28,1944.

The Power Oil Company has also deposited with the clerk of the Common Pleas Court checks for the taxes accruing on the premises since July 1943.

While the taxes were not paid by The Power Oil Company, lessee, as the same became due, it is of no„ consequence in this action as under the forfeiture clause of the lease above mentioned, lessors do not have any right to recover possession of the premises or terminate the lease for the failure of the lessee to pay the taxes when they became due. Clauses of this character are strictly'construed and’ forfeiture will not be decreed for a cause not' specifically covered by the agreement of the parties.

As The Power Oil Company paid the rents provided in the lease, up to the time the plaintiffs refused to accept the same, and has since tendered and paid the amount thereof into court, no forfeiture can be claimed by reason of the nonpayment of the rents, so the sole question presented in this case is whether the arrangement between The Power Oil Company and Dominy as to Donpiny occupying the premises and operating a filling station thereon for the purpose aforesaid, qs consummated by the parties, constituted in law either an assignment of the lease or a subletting of the premises contrary to the terms of the lease, giving the plaintiffs, under' the terms of the lease, the right to recover possession of the premises and to terminate the lease.

The rules of law applicable to such questions are the following:

Restrictions against assignment of leases, being a restraint against alienation, are not looked upon with favor by the courts, and from the earliest times have been construed by courts of law with the utmost jealousy to prevent the restraint from going beyond the express stipulation. 16 Ruling Case Law, 832.

The rule is well settled that an agreement by a lessee with a third person for the permissive use ,by the latter of the leased premises does not constitute a violation of covenants in a lease against assigning or subletting, but merely amounts to a license to use the property. Note, 89 A. L. R., 1325.

In real property law a license is a permission to do some act or series of acts on the land of the licensor, without having any permanent interest in it; it is founded on personal confidence, and is not assignable. It may be given in writing or by parol; it may be with or without consideration, but in either case it is usually subject to revocation, though constituting a protection to the party acting under it until the revocation takes place. 2 Bouvier’s Law Dictionary, Rawle’s Third Revision, 1974.

It has also been defined as an authority to do a particular act or series of acts on another’s land without possessing any estate therein. 2 Bouvier’s Law Dictionary, Rawle’s Third Revision, 1974.

The arrangement between The Power Oil Company and Dominy for the occupation' and use of the premises by Dominy prescribes a permissive use by the latter of the leased premises for a limited and specific purpose amounting merely to á license to use the property. That being the situation, under the rules above mentioned such. arrangement did not and does not constitute a violation of the covenants of the lease against assigning or subletting, authorizing the plaintiffs to terminate the lease, but merely amounts to a license to use the property for the specific purpose. .

As there has been no violation of the covenants of • the lease warranting the plaintiffs to terminate the same, the decree herein will be for defendants, at the costs of plaintiffs.

Decree for defendants.

Middleton, P. J., Jackson and Guernsey, JJ., concur.


author: Hildebrant, J. Ross, J.,

text:
    Cooke, Appellant, v. The New York, Chicago & St. Louis Rd. Co., Appellee.
    (No. 6776
    Decided April 8, 1947.)

      Messrs. Cors, Scherer & Hair, for appellant.

      Messrs. Kunlcel & Kunkel, for appellee. ■
   Hildebrant, J.

To a petition in an action filed on September 16, 1946, defendant interposed a motion to quash the summons and service thereon. On November 9, 1946, an entry sustaining the motion and quashing the summons was entered on the journal of the court. Within 10 days thereafter, plaintiff filed an application for rehearing on defendant’s motion to quash. On January 16, 1947, an entry overruling the application for a rehearing on defendant’s motion to quash was entered on the journal of the court.

The notice of appeal herein is as follows:

“Jimmie R. Cooke, by his attorneys, plaintiff in the above entitled action, and herein designated as appellant, hereby files in this court, notice of his intention to appeal from the order of said court in the above entitled action, wherein, on the 16th day of January, 1947, this court overruled the application of said appellant for rehearing.on motion to quash service of summons and in favor of the New York, Chicago & St. Louis Railroad Company, defendant in the above entitled action and herein designated as appellee.

“Said appeal to-he made on questions of law.”

The cause is now before this court on motion to dismiss the appeal, on the ground that the appeal is not from a final order.

If we treat the application for rehearing as equivalent to a motion for a new trial, under existing Section 12223-7, General Code, it serves only to toll the statute with reference to the time within which the appeal shall be perfected, and on the authority of Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620, the overruling of such application is not a final order upon which to predicate an appeal,' in the absence of an abuse of discretion, which is not claimed in this case. See, also,. Morrison v. Baker, Exrx., 42 Ohio Law Abs., 349, 58 N. E. (2d), 111.

Further, the notice of appeal is specifically directed to the order of January 16, 1947, so that, this court may not under the guise of amendment permitted by Section 12223-5, General Code, substitute an order of a different date as being within the intention, of the notice of appeal. Malone v. Industrial Commission, 66 Ohio App., 505, 36 N. E. (2d), 52; Williams v. Braun, 65 Ohio App., 451, 30 N. E. (2d), 363.

The motion to dismiss the appeal is, therefore, sustained, the appeal is dismissed and the cause remanded.

Motion sustained.

Matthews,-P. J., and Hildebrant, J., concur in the syllabus, opinion and judgment.

Ross, J.,

concurring. I concur in the conclusion of my associates, for the reason that the “application for rehearing” filed by appellant can not be construed as a motion for a new trial under Section 11575, General Code, as amended, and applicable to actions filed after October 11,1945, or as a motion to vacate a judgment under Section 11634, General Code.

The application is in the following terms:

“Now comes the plaintiff and moves the court for a rehearing on defendant’s motion to quash service of summons for the following reasons:

“1. That the order of the court herein and the dismissal of plaintiff’s petition are contrary to the law of the state of Ohio.

“2. That the court erred in entering an order for the defendant quashing service of summons, when- said order should have been for the plaintiff overruling the motion to quash service of summons.”

I do not wish to be placed in the position of holding that the overruling of a motion for new trial or motion to vacate a judgment in a proper case under the statute will not constitute a final order from which an appeal will lie. I do not consider that questions as to these latter situations are raised by the present record.


author: Hurd, J.

text:
    Interstate Sash & Door Co., Appellant, v. City of Cleveland, Appellee.
    (No. 20429
    Decided February 3, 1947.)

      Messrs. Oviatt <& Oviatt, for appellant.

      Mr.-Lee C. Howley, director of law, and Mr. C. L. Mollison, for appellee.
   Hurd, J.

Plaintiff, appellant herein, filed its petition in the Court of Common Pleas, setting up two causes of action against the city of Cleveland, defendant and appellee herein. The first cause of action is based on the theory of trespass and the second cause of action is based on the theory of negligence with five separate specifications thereof and an allegation of notice.

The defendant filed a demurrer to the first cause of action and an answer to the second cause of action. The trial court sustained the demurrer. Plaintiff not desiring to plead further, judgment was rendered' against it on the first ca'use of action, and this appeal was taken on questions of law.

A summation of the allegations of the first cause of action construed most favorably to the plaintiff is as follows:

The plaintiff was the lessee and in possession of a tract of land, improved with á large warehouse, located on Riverbed avenue. This land extends up a hillside from Riverbed avenue to West 24th street. In other words, Riverbed avenue is in the “Flats,” so-called, and West 24th street is on the upper level with a steep hill leading from one to the other.

Plaintiff alleges that the city of Cleveland, some fifty-odd years ago, installed a water pipe line on West 24th street; that West 24th street,'at the point in question, terminates against the Superior high level bridge near its western approach; that some time ago the city of Cleveland filled in with a large quantity of dirt and stones a portion of West 24th street in question, which portion of the street is unused; that the dirt and stones piled on the street at this point and over the old water pipe line were, several feet in thickness; and that West 24th street at this point was on the brink of the steep hill leading down to plaintiff’s warehouse.

On January 31, 1945, the water pipe line on West 24th street, at the point where the large pile of earth and stones was located, broke loose and precipitated a large quantity of boulders and stones down the hillside and against the warehouse occupied by the plaintiff. The large stones broke through the brick walls and permitted water, stones and mud to flow into plaintiff’s warehouse which was filled with kilned-dried sashes and doors and finishing material. The warehouse in question is over 300 feet in length and contained a valuable stock of merchandise. The mud, stones and debris flowed the entire length of the warehouse and caused damage alleged to amount to about $35,000.

It is the claim of the plaintiff in this first cause of action that there was an invasion of its property constituting a trespass, and that the city of Cleveland by maintaining this old pipe line on the brink of the hill and by piling a large quantity of dirt and stones thereon- created a situation that rendered the city of Cleveland liable for the damage sustained, without proof of negligence.

It should be understood that a consideration of the ruling of the trial court on this first cause of action does not in any way affect the rights or claims of the plaintiff in respect to the second cause of action based on negligence, to which an answer has been filed by the defendant.

The single question presented is whether the Common Pleas Court erred in sustaining the demurrer to the first causé of action predicated on the theory of trespass.

The plaintiff relies on the cases of City of Barberton v. Miksch, 128 Ohio St., 169, 190 N. E., 387; Mansfield v. Balliett, 65 Ohio St., 451, 63 N. E., 86, 58 L. R. A., 628; and Fletcher v. Rylands (1866), L. R. 1 Exchr., 265, 4 H. & C., 263, 35 L. J. Exchr., 154, 14 L. T., 523, 30 J. P., 436, affirmed, Rylands v. Fletcher (1868), L. R. 3 H. L., 330.

The pertinent paragraphs of the syllabus of City of Barberton v. Miksch axe as follows:

“2. In the construction and maintenance of a system for supplying water to its inhabitants, a municipality acts in a proprietary capacity.

“3. Casting water upon the land of another by seepage or percolation resulting from the construction and maintenance of a reservoir by a municipality as a part of its system for supplying water to its inhabitants, constitutes a trespass.

“4. Liability for damage proximately resulting from such trespass is not dependent upon negligence.”

In a supplemental brief, counsel for plaintiff state that the doctrine announced in City of Barberton v. Miksch, supra, is merely a statement of the principle announced in Rylands v. Fletcher, supra, wherein it wras held that a party maintaining a reservoir «of water which injures another by breaking away in consequence of original defects of which the maintainer was ignorant is responsible for the injury, though ■chargeable with no negligence. Counsel then quote from the opinion of Mr. Justice Blackburn in Fletcher v. Rylands, supra, as follows:

“We think that the true rule of law is, that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do ■mischief if it.escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is a natural consequence of its escape. * * * The person whose grass or corn is eaten down by the escaped cattle of his neighbor, or whose mine is flooded by the water from his neighbor’s reservoir, or whose cellar is invaded by the filth of his neighbor’s privy, or whose habitation is made unhealthy by the fumes and noisesome vapors of his neighbor’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his néighbor’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for,his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority this we think is established to be the law, whether the things so brought be beasts or water, or filth or stenches.”

According to the great weight of authority in this country and in England, the rule set forth in the Rylands case and similar cases is not applicable to underground pipes supplying water to inhabitants of a municipality. On the contrary, liability in the latter instances is dependent on negligence, not trespass, as instance the following:

“Water in an underground pipe is not such a dangerous instrumentality as to require a person so conveying it to confine it at his peril, and no recovery can be had for an injury to property caused by the leakage or bursting of an underground water pipe unless negligence in the construction or - maintenance of thd pipe is shown. Blyth v. Birmingham Waterworks, 11 Exch. (Eng.), 781, 2 Jur. N. S., 333; Green v. Chelsea Waterworks, 70 L. T. N. S. (Eng.), 547; Mann v. Henderson, 154 Ky., 154, 156 S. W., 1063; Littlefield v. Newport Water Co., 110 Me., 129, 85 Atl., 482; McCord Rubber Co. v. St. Joseph Water Co., 181 Mo., 678, 81 S. W., 189; Terry v. New York, 8 Bosw. (N. Y.), 504; Cincinnati v. Renner, 33 Ohio C. C., 189; Esberg Cigar Co. v. Portland, 34 Ore., 282, 55 Pac., 961, 75 Am. St. Rep., 651, 43 L. R. A., 435; Morgan v. Duquesne, 29 Pa. Sup. Ct., 100; Paris v. Tucker (Tex.), 93 S. W., 233. See also Cattle v. Stockton Waterworks Co., L. R. 10 Q. B. (Eng.), 453; Rice v. St. Louis, 165 Mo., 636, 65 S. W., 1002.” Ann. Cas. 1916C, 1050.

In McCord Rubber Co. v. St. Joseph Water Co., supra, it is said in part:

“The plaintiff contends, however, that the defendants are liable regardless of whether they were guilty of any negligence directly causing the accident. * * *

“That contention rests for its authority on the decision in Rylands v. Fletcher, L. R. 3 H. L., 330. * # * There is a wide difference between a great volume of water collected in a reservoir in dangerous proximity to the premises of another and water brought into a house through pipes in the manner usual in all cities, for the ordinary use of the occupants of the house. Whilst water so brought into a house cannot literally be said to have come in in the course of what might be called * * natural user’ * * * yet. it is brought in by the method universally in use in cities and is not to be treated as an unnatural gathering, of a dangerous agent.”

To the same effect see annotation, 14 A. L. R., 555, and cases therein cited. See, also, Simon v. City of New York, 82 Misc. Rep., 454, 143 N. Y. Supp., 1097, wherein the court said, in part:

“A municipality is not an insurer of its water or sewer system, any more than of its streets. It is required only to use reasonable care in establishing and .maintaining such a system.”

See, also, A. J. Brown & Son, Inc., v. City of Grand Rapids, 265 Mich., 465, 251 N. W., 561, decided December 1933, the fourth paragraph of the syllabus of which is as follows:

“Municipality is not insurer of its water system but is required to use reasonable care in establishment and maintenance of system.”

The case of City of Cincinnati v. Renner, 23 C. D., 189, 13 C. C. (N. S.), 407, decided by the Circuit Court of the First Circuit and affirmed by - our Supreme Court without opinion in. 86 Ohio St., 342, 99 N. E., 1132, holds as follows:

“A municipal corporation is not controlled by the principle that one who collects and keeps anything likely to do mischief if it escapes, does so at his peril, where it is acting under legislative authority and without any showing of negligence * *

In that case there was an escape of water by reason of a broken water pipe. It was held that the principle of Rylands v. Fletcher was not applicable, and that the liability of the city, if any, must be founded on negligence. The court there said, at page 191:

“The Legislature authorized the city of Cincinnati to construct and maintain water pipes1 in the streets of the city, and it can only be answerable in damages for their construction and maintenance by reason of some negligent act committed or omitted.”

In the comparatively recent case of Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44, later approved and followed in the case of Metzger v. Pennsylvania, Ohio & Detroit Rd. Co., 146 Ohio St., 406, 66 N. E. (2d), 203, the court distinguishes between an absolute nuisance for which strict liability or liability without fault is imposed by law and a qualified nuisance or nuisance dependent upon negligence which consists of anything lawfully but s.o negligently or carelessly done or permitted as to create a potential and unreasonable risk which in due course results in injury to another.

In this connection it is interesting to note the following excerpt from the opinion of Hart, J., in the Taylor case at pages 435 and 436, as indicating the trend of modern judicial thought concerning the doctrine in the case of Rylands v. Fletcher:

“A person who, for his own purposes, brings on his lands and keeps there anything likely to do mischief, if it escapes, must keep it at his peril; and if he does not confine it he is prima facie answerable for all the damage which is the natural consequence of its escape. Street, in his Foundations of Legal Liability, Volume 1, Chapter 5, designates such acts as ‘agents of harm’ and says that these are cases where one may be held liable for harm not directly done by himself, but by some creature of his for which he is answerable. This is the doctrine of the early case of Rylands v. Fletcher (1868), L. R. 3 H. L., 330, 37 L. J. Ex., 161, 19 L. T. Rep., 220, 33 J. P., 70, which, with modifications, has been adopted as the common-law rule in many jurisdictions of this country. The rule in question, which is being gradually narrowed in scope, has been considered and, in proper cases, applied to situations involving the maintenance of artificial reservoirs for the collection of water as distinguished from mill dams across flowing streams; the storing or use of dangerous combustibles, such as dynamite, nitroglycerin, gun powder, etc.; blasting operations- on one’s own land adjacent to the premises of another; and trespasses due to the escape of wild animals, as distinguished from domestic animals.

‘ ‘ This rule was recognized and applied by this court to the handling of explosives, in Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 60 Ohio St., 560, 54 N. E., 528, 71 Am. St. Rep., 740, 45 L. R. A., 658; to the explosion of an unguarded, unexploded bomb in a public park, in City of Cleveland v. Ferrando, a Minor, 114 Ohio St., 207, 150 N. E., 747; to blasting operations, in City of Tiffin v. McCormack, 34 Ohio St., 638, 32 Am. Rep., 408, and in Louden v. City of Cincinnati, 90 Ohio St., 144, 106 N. E., 970, L. R. A. 1915E, 356, Ann. Cas. 19160, 1171. See, also, Harris, Admx., v. City of Findlay, 59 Ohio App., 375, 18 N. E. (2d), 413.”

Upon analysis of the authorities cited and quoted in the foregoing discussion and applying the principles thereof to the issues of law raised on this appeal, we conclude that, on the authority of City of Barberton v. Miksch, supra, the city of Cleveland in furnishing water to its inhabitants is acting in a proprietary capacity.

We further conclude that in all other respects we must distinguish between the allegations of fact in the instant case and the facts and circumstances in the cases of City of Barberton v. Miksch, City of Mansfield v. Balliett and Rylands v. Fletcher.

The wide difference between the impounding of a great body of water in a large reservoir by a municipality from which reservoir there was a continual and permanent flow of water upon lands of another by seepage and percolation over a period of years [City of Barberton v. Miksch) and the use of underground pipes in city streets for the purpose of supplying water to the inhabitants of á metropolitan area, such as the city of Cleveland, under statutory authority is so obvious and so marked as to require no extended comment.

Likewise, the case of City of Mansfield v. Balliett must be distinguished in that in that case there was a taking of land due to pollution of a stream by casting sewage therein.

Finally, the instant case is not one, as we view it, which comes within the principle of Rylands v. Fletcher, of bringing on to a person’s land and collecting there anything likely to do mischief if it escapes so that the person who does so must keep it inxat his peril and if he does not do so is prima facie answerable for all the damages which are a natural consequence of its escape.

In other words, it seems to us that to apply the doctrine of the escape from one’s land of something that is inherently dangerous, whether animate or inanimate, to a system of pipe lines conducting water underground on city streets, is carrying the ancient doctrine beyond all reasonable limits.

We agree with the trial court in this case in the conclusion that the facts alleged in the first cause of action do not constitute an absolute nuisance. We think that the most that can be claimed under the allegations of the first cause of action is a qualified nuisance where negligence must be alleged to create liability.

From these views, it follows that the- judgment of the Court of Common Pleas, sustaining the demurrer to the first cause of action, must be affirmed.

Judgment affirmed.

Skeel, P. J., and Morgan, J., concur.


author: Hildebbant, J.

text:
    Adair et al., Appellants, v. Crepps et al., Appellees.
    (No. 6809
    Decided June 27, 1947.)

      Mr. Robert Q. Adair and Mr. Paul W. Steer, for appellants.

      Mr. Ervin L. Bramlage, for appellees.
   Hildebbant, J.

The Municipal Court of Cincinnati, by dismissing the action at the close of plaintiffs’ evidence, held it had no jurisdiction in a forcible entry and detainer action where the defendants were in possession as lessees under a lease containing a privilege of purchase clause, together with a forfeiture clause providing for re-entry and repossession by lessors on breach of the covenant to pay rent which is the breach alleged here.

The court stated in its finding that its conclusion was based on Bevard v. Drucker, 43 Ohio App., 294, 182 N. E., 699, wherein is cited the case of Cullen & Vaughn Co. v. Bender Co., 122 Ohio St., 82, 170 N. E., 633, 68 A. L. R., 1332, in which latter case it is stated in the second paragraph of the syllabus in part:

“A lessee of land in possession under a lease for a term of years which contains a stipulation that lessee may purchase the fee at any time during the term of the lease for a sum stated creates in the lessee an interest which inheres in the land from the date of the execution and delivery of the lease, * * # J)

Relying on the above, the court held that the privilege of purchase clause in the lease created an equitable interest in the defendants from the time of the first payment of rent, so that the remedy lay in equity by way of forfeiture or cancellation, and that neither Section 1558-6, General Code, nor Section 10449, General Code, conferred jurisdiction of this type of case in forcible entry and detainer.

Section 1558-6, General Code, provides that the Municipal Court of Cincinnati has jurisdiction:

“1. In all actions and proceedings of which the justices of peace have or may be given jurisdiction. * * * .

“4. All actions in forcible entry or detainer.”

Sections 10224, 10447 and 10449, General Code, fixing jurisdiction and procedure in the justice of the peace court provide:

“Sec. 10224. * * * 5. To try the action of forcible entry and detention or the detention only of real property, * * #.”

“Sec. 10447. In the manner hereinafter directed, any justice, within his proper county, may inquire as well against • those who make unlawful and forcible entry into lands and tenements, and detain them as against those, who have a lawful and peaceable entry into lands and tenements unlawfully and by fo:fce hold them. If upon such inquiry it be found that an unlawful and forcible entry has been made, and that the lands or tenements are held by force, or that after a lawful entry they are held unlawfully, then such justice shall cause the party complaining to have restitution thereof. ’ ’

“Sec. 10449. Proceedings under this chapter may be had against tenants holding over their terms; against tenants in possession under an oral tenancy, who are in default in the payment of rent as hereinafter provided; in sales of real estate, on executions, orders, or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which such sale was made; in sales by executors, administrators, guardians, and on partition, when any of the parties to the petition were in possession at the commencement of the suit, after such sales, so made on execution or otherwise, have been examined by the proper court, and adjudged legal. Also when the defendant is an occupier of lands or tenements, without color of title, and to which the complainant has the right of possession, or any other case of their unlawful detention.

“If a tenant holding under an oral tenancy is in default in the payment of rent, he shall forfeit his right of occupancy, and the landlord may, at his option, terminate the tenancy by notifying, the tenant, as provided in Section 10451 of the General Code, to leave the premises, for the restitution of which an action may then be brought under this chapter.” (Emphasis added.)

The only witness was a plaintiff, a lessor, who testified as to the possession under the lease, default, and demand for rent, and offered the lease as an exhibit which was received in evidence, the pertinent parts thereof being:

“And said lessees, during the term hereof, shall have the right and privilege to purchase the premises for the sum of twenty-two thousand dollars ($22,000); and provided said privilege of purchase is exercised during the term hereof, lessors shall convey said premises to lessees by general warranty deed, the premises to be free and clear of all incumbrances excepting the within lease and the installment of taxes next due and payable, and all taxes due and payable thereafter.

Yielding and paying therefor, during the said term, the sum of three thousand dollars ($3,000) annually, payable in equal monthly instalments of two hundred and fifty dollars ($250.00) on the 1st day of each month, said payments to be credited against the purchase price hereinabove stipulated, provided the privilege of purchase is executed in accordance with the terms hereof.” '

“Provided, however, that if said rent, or any part thereof shall remain unpaid for ten (10) days after it shall become due, and without demand made therefor; * * * or if said lessee or any assignee shall fail to keep any of the other covenants of this lease, it shall be lawful for said lessors, their heirs and assigns, into said premises to re-enter, and the same to have again, re-possess and enjoy, as in the first and former estate; and thereupon this lease and everything herein contained on the said lessors’ behalf to be done and performed shall cease, determine and be utterly void.”

In the Bevard case, relied upon by the Municipal Court, which was not a forcible entry and detainer case, but an action for money as rent and failure to pay taxes, the court held the petition not demurrable for want of jurisdiction, in the absence of allegations calling, for the exercise of general equity jurisdiction, or raising the question of title to real estate. Speaking through Judge Hamilton, this court said at pages 295, 296:

“It is the law that justices of the peace shall not have jurisdiction of actions in which the title to real estate is drawn in question. This rule is made to apply to the Municipal Court of Cincinnati by statute. However, the action, as disclosed by the bill of particulars, was for money for rent and for unpaid taxes. The title to the property was not drawn in question by the bill of particulars.

“The answers of defendants are in substance that since the 18th day of September, 1929, defendants’ equity in the real estate, described in plaintiff’s bill of particulars, was returned and assigned to her in consideration of her releasing them from any and all obligations assumed under the lease, and deny generally the other allegations of the plaintiff’s bill.

“It is only through these answers that any question, calling for the exercise of general equity jurisdiction or decision of any question regarding title to the real estate, is drawn into the case. It has been decided by the Supreme Court of Ohio that the defendant ,by answer may not destroy the jurisdiction of the court. Nichol v. Patterson, 4 Ohio, 200. See, also, Bridgmans v. Wells, 13 Ohio, 43.

“Moreover, no answer or other pleading had been filed when the court was called upon to rule on the demurrer to the bill of particulars. Therefore, there being no allegations in the bill of particulars, calling for the exercise of general equity jurisdiction, nor calling in question the title to the real estate, the demurrer was properly overruled.”

The bill of particulars which states a perfect cause of action in forcible entry and detainer for the detention of real estate is the only pleading in the transcript before the court and the trial proceeded as above stated.

In 1943 Cumulative Supplement, 19 Ohio Jurisprudence, at page 2344, Section 6a, it is stated:

“While the Ohio Supreme Court has not yet passed upon the question whether forcible entry and detainer may be brought in the municipal or justice court by á vendor in a land contract, to recover possession from the vendee upon default of the latter, the line of demarcation as drawn by the Court of Appeals is between those cases in which the contract contains an express forfeiture provision and those in which it does not.”

The text then cites numerous cases upholding the jurisdiction, where a forfeiture clause is included in the contract and denying it where no forfeiture clause exists, for the reason that before cancellation of the contract by a court, the contract is not void on breach, but only voidable.

The bill of particulars here stated a good cause of action in forcible entry and detainer, and as stated in Jaeger v. Goldzwig, 42 Ohio Law Abs., 340, 30 O. O., 142, 60 N.E. (2d), 625:

“In forcible entry and detention petitions the question of fee simple title is not involved, bnt only the question of right of possession. Where the defendant, as in the instant case, acquired possession through the plaintiff and claims no right otherwise, he cannot be heard to question the possessory title of the plaintiff. This theory arises upon the principle that defendant’s possession is obtained exclusively from plaintiff, and he cannot question plaintiff’s right unless by reason of some happening subsequent to the original contract of lease.”

In other words, defendants aré estopped to question or deny the plaintiffs’ title.

The undisputed evidencé disclosed the breach, and the terms of the lease plainly give the right of re-entry and repossession, and the declaration of forfeiture is unequivocally made in the bringing of the action. By its plain terms, in event of breach of covenant to pay rent, the lease as to lessors is void. • On this record, plaintiffs’ right of possession, which is the sole issue before the court, is plainly shown to exist.

If the defendants could, by answer, allege facts giving rise to the existence of rights under the privilege of purchase clause, they would then defeat the plaintiffs on the proof, so that the possessory right would be denied, and the action dismissed because of lack of jurisdiction in the court to determine the equities, but the filing of the answer alone would not be sufficient to defeat the jurisdiction of the court in the first instance as shown by stating a good cause of action in the bill of particulars.

Under the language contained in the privilege of purchase clause here, the right in the land inhering to defendants was but a potential right which could be transformed into an enforceable right attended with correlative duties by an actual exercise of the privilege by notice of intention so to do, followed by actual tender of an amount equal to the difference between the agreed purchase price and the total of all rent payments. Proof of those facts before breach declared upon by plaintiffs would then defeat the possessory action, be a ground for dismissal of the bill of particulars, and require of a court jurisdiction in equity to determine any controversy arising therefrom. In the face of allegations and proof foreclosing the ripening of a mere potential into an absolute right, the general jurisdiction given to decide the purely possessory question under the facts alleged and proven ought to, and we hold does, attach.

We observe that Section 10232, General Code, denying jurisdiction in actions on contracts for real estate,, and in which title is sought to be recovered or may be drawn in question is superseded by specific grant of power to hear and decide forcible entry and detainer eases. Brown, Gdn., v. Burdick, 25 Ohio St., 260. See, also, Trustees of Burton Township v. Tuttle, 30 Ohio St., 62, wherein it is stated at page 66 of the opinion:

“The express power to take jurisdiction of a cause of action, and render a judgment therein, implies that the court upon which the jurisdiction is conferred may hear and determine all questions that properly or necessarily arise upon the trial, reflecting upon the rights of the parties involved in the action. ’ ’

In Martin v. Bircher, 46 Ohio App., 239, at page 242 of the opinion, 188 N. E., 365, it is stated:

“Where the complaint states, and the, evidence proves, that the ‘defendant doth unlawfully and forcibly and with a strong hand detain,’ etc., that is sufficient to give the justice of peace jurisdiction, Yeager v. Wilber, 8 Ohio, 399; Barto v. Abbe, 16 Ohio, 408.”

In the case of Brown v. Burdick, supra, the fourth paragraph of the syllabus is:

“The fact that the plaintiff in detainer, in order to show his right to possession, had to prove his title as devisee by a certified copy of the will, constituted no objection to the jurisdiction of the justice.”

If in truth and in fact defendants have a good defense to this action calling for the exercise of equitable jurisdiction on the part of the court, pleading and proof thereof will defeat this action for possession only. Ample remedy exists in the law for the preservation of those rights, but on the record here nothing appears to defeat the jurisdiction in forcible entry and detainer, wherein defendants are estopped to deny title of plaintiffs, title to the real estate is not involved and adequate allegations as to the right- of possession and proof thereof appear.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


author: Guernsey, J.

text:
    Bayer, Appellee, v. Sanford, Appellant.
    (No. 1449
    Decided December 12, 1946.)

      Messrs. Kennedy, Kennedy $ Purdy, for appellee.

      Mr. Robert Carpenter and Mr. Leo J. Scanlon, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Crawford county in an action wherein Carl Bayer, appellee herein, was plaintiff and the appellant, David E. Sanford, was defendant.

The action was (one to recover an amount of- money alleged to be due on a promissory note.

Such of the evidence as is essential to a disposal of the case will be ¡discussed under the separate assignments of error to which it relates.

The assignments of error will be discussed in the order and under the numbers in which they appear. .

Assignment No. 1. In his answer, the defendant admitted the execution and delivery of the promissory note on which the action was based. The note was identified and offered in evidence by the plaintiff in his case in chief. This made a prima facie case for recovery by the plaintiff of the amount appearing upon the face of the note to be due, and the court, therefore, properly overruled defendant’s motion for a directed verdict in his favor at the close of plaintiff’s evidence. State, ex rel. Herbert, Atty. Genl., v. Hoff, 140 Ohio St., 236, 239, 42 N. E. (2d), 990. See, also, Darby v. Chambers, 70 Ohio App., 287, 46 N. E. (2d), 302; Haefner, Admr., v. First Natl. Bank of Elmwood Place, 70 Ohio App., 293, 44 N. E. (2d), 489.

Furthermore, if the court had erred in refusing to grant such motion, the error was waived by the defendant in introducing 'evidence in support of his defense.

Assignments Nos. 2 and 3. These assignments are based upon the refusal of the court to admit testimony in support of the second defense of the answer.

For his second defense the defendant pleaded that on September 23, 1934, he filed his petition in the District Court of the United States for the Northern District of Ohio, Western Division, in case No. 11169, under the provisions of Section 75 of the Bankruptcy Act, the prayer of that petition being that he be offered an opportunity to effect a composition or an extension of time to pay his debts under the provisions of such act; and that on September 26, 1934, he filed his proposition of composition or extension in such court, in which he proposed that he and his wife execute notes' to his secured and unsecured creditors for the respective amounts due and payable in 1940, or six years after date, without interest.

Defendant further pleaded that the note upon which the instant action is founded was listed by him among his debts; that the plaintiff was listed as a creditor in the bankruptcy proceeding; that due notice in writing was given to all defendant’s creditors, including the plaintiff, of the proposed composition or extension of time; that a meeting of such creditors was held at the post-office building at Tiffin, Ohio, on the 9th day of October 1934; that at such meeting a majority of the creditors, both in number and the amounts owing them, including the plaintiff, agreed in writing to accept the proposal and receive notes executed by the defendant and his wife, Elizabeth Sanford,'in satisfaction of the debts of the defendant; and that thereby the note upon which this action is based was fully discharged and extinguished.

In his reply to such defense, the plaintiff admitted the filing by the defendant of the petition in bankruptcy, as alleged; that plaintiff was a secured creditor of the defendant, was listed as such and was notified of the bankruptcy proceeding and of a meeting of the creditors of defendant'to be held as alleged; that on the 9th day of October plaintiff held a promissory note (being the promissory note a copy of which is attached to the petition herein); .and that payment of the same was secured by a chattel mortgage. Plaintiff denied each' and every allegation in the second defense of the answer not expressly admitted to be true in his, reply.

In the statement to the jury, counsel for plaintiff, among other things, stated that the evidence would show that about September 1934 the defendant went into bankruptcy under what is known as the FrazierLemke Act; that just what was done he did not know; that probably the evidence would disclose that defendant sought to have deferred and canceled interest upon all his obligations for a period of six years; and, that there was some kind of proceeding in bankruptcy about October 1934 which took place at the post office at Tiffin before a referee or conciliation commissioner. He further stated that the evidence would disclose that 1940 passed and there was no interest paid thereafter.

In his second defense, the defendant did not allege the execution and delivery by him and his wife of their notes to creditors pursuant to such proposal and did not allege that application was made by him for the confirmation by the court of such extension proposal or the fixing of a date and place for the hearing of the application to confirm such extension proposal, or that the same was heard or confirmed by the court, all of which acts and things were necessary under the terms of such act to make the proposal and acceptance thereof effective to bind the plaintiff to such proposed extension.

Without such affirmative allegations of compliance with the terms of such act, in the respects mentioned, the facts alleged in the second defense did not constitute a defense.

The allegation of the second defense “that thereby the note upon which this action is based was fully discharged and extinguished” did not remedy that deficiency as such allegation was a mere conclusion of law not warranted by the allegations upon which it was predicated, raised no issue, added nothing to the value of t]ie pleading and was of no legal effect or significance. 41 American Jurisprudence, 300, Section 16.

The admissions made by tbe plaintiff in his reply, or the above-mentioned statements made by plaintiff’s counsel to the jury, did not in any manner supply or cure the deficiencies in defendant’s second defense..

The court properly excluded the oral testimony sought to be offered by defendant in support of his second defense, upon the ground that the records of the United States court in the proceedings mentioned were the best evidence. Such testimony was properly excluded because the facts alleged in the second defense did not constitute a defense.

Assignments Nos. 4 and 5. Defendant contends the court erred in denying to him the right to open and close in argument, erred in the charge to the jury by submitting the cause on the third defense only and erred in charging that the burden of proof was upon the defendant to show by a preponderance of the evidence that the note in question had been satisfied, discharged and extinguished, as claimed in the third defense.

As hereinbefore mentioned, the court properly excluded all the evidence offered by defendant in support of his second defense. The admission by defendant, in his first defense, of’the execution and delivery of the note upon which the suit was based and the admission of the note in evidence made a prima facie case for the recovery of the amount appearing due on the face of the note. The only evidence to controvert that prima facie case was the evidence introduced by the defendant tending to prove that the note in question has been satisfied, discharged and extinguished, as claimed in the third defense.

Upon the issue made by the petition and the third defense the defendant had the burden of proving by a preponderance of the evidence the facts alleged in such defense, and unless the defendant prevailed on that defense the plaintiff was entitled to recover upon the prima facie case made by him as aforesaid. In this situation the court did not err in submitting the cause on the third defense only and charging that the burden of proof was upon the defendant to show by a preponderance of the evidence that the note in question had been satisfied, discharged and extinguished, as pleaded in the third defense.

Nor did the court err in denying to the defendant the right to open and close argument, as the burden of proof was primarily upon the plaintiff to establish his eause of action, the burden of proof being secondarily on the defendant to establish his third defense.

Furthermore, the matter of fixing the opening and closing of argument was largely a matter of discretion for the trial court, and no abuse of discretion was shown.

Assignment No. 6. In case the jury decided the issue submitted to them in favor of the plaintiff, the amount of its verdict upon the evidence submitted should have been the amount, with interest, appearing due upon the face of the note. The court, in the submission of the two forms of verdict to the jury, attempted to do this but through an error in' computation the court inserted in the form of verdict for plaintiff the sum of $3471.48 instead of $3438.54, the amount appearing due upon the face of the note.

The plaintiff has filed in this court an offer of remittitur reducing the judgment rendered on the verdict, the sum of $32.94, which will cure the error in computation made by the court. This court will reduce the judgment accordingly.

Assignments Nos. 7, 8 and 9. There is substantial credible evidence to sustain the verdict and judgment as reduced by remittitur and when this remittitur is made as the court has found and directed it should be made, neither the verdict nor the judgment is against the weight of the evidence or contrary to law.

Assignment No. 10. All the matters assigned as errors in the motion for new trial have been considered above and found to be without merit, so the court did not err in overruling the motion.

Assignment No. 11. This assignment charges other errors manifest upon the face of the record. However, no errors are argued in defendant’s brief, and under the statute and the practice of this court such assignment will not be considered.

As we find no error in any of the particulars specified and argued in defendant’s brief, except the error in computation of the amount appearing due on the note, which may be cured by the remittitur offered by the plaintiff, the judgment as reduced by the amount of such remittitur is affirmed at costs of plaintiff.

Judgment modified and affirmed.

Miodleton, P. J., and Jackson, J., concur.


author: Middleton, J.

text:
    The State of Ohio, Appellee, v. Zaras, Appellant.
    (No. 484
    Decided April 30, 1947.)

      Mr. Joe M. Moorhead, for appellee.

      Mr. George A. Hurley and Mr. Howard A. Traul, for appellant.
   Middleton, J.

This case comes into this court on appeal from a judgment of the Juvenile Court of Hancock county, Ohio, entered against the defendant, appellant herein, on his plea of guilty to the charge set forth in the following affidavit, to wit:

“The state of Ohio, Hancock county, ss: Juvenile Court.

“Before me, Paul R. Capell, judge of the Juvenile Court in and for said county, personally came Howard Pepple who, being duly sworn according to law, deposes and says, that on or about the 7th day of April 1946, at the county of Hancock aforesaid, one J. P. Zaras then and there unlawfully did contribute toward the delinquency of one Paul Pepple then and there a minor under the age of 18 years, to wit, of the age of 17 years, in this to wit:

“That J. P. Zaras, the owner and operator of the Coney Island Lunch, Findlay, Ohio, and in which place of business, beer is sold, did furnish, aid or participate in the sale of beer to said minor, who being under the age of 18- years, and in divers other ways and times he the said J. P. Zaras did wilfully and unlawfully contribute toward the delinquency of the said minor Paul Pepple he the said J. P. Zaras well knowing the said Paul Pepple to be such minor; contrary to the G-eneral- Code in such case made and provided, and against the peace and dignity of the state of Ohio.”

Upon arraignment on that affidavit the defendant entered a plea of guilty and was fined the sum of $300 and costs.

The defendant assigns two grounds of error.

First. That no charge against the defendant, within the jurisdiction of the Juvenile Court, is set forth in the affidavit.

Second. That the defendant in distress of mind, without adequate legal defense, and under representations of the court yielded contrary to his rights.

The essential part of the affidavit is that “J. P. Zaras, the owner and operator of the Coney Island Lunch, Findlay, Ohio, and in which place of business, beer is sold, did furnish, aid or participate in the sale of beer to said minor, who being under the age of 18 years.”

If the foregoing does not charge an offense under the laws of Ohio, within the jurisdiction of the Juvenile Court, the defendant must be discharged.

The affidavit was drawn pursuant to Section 1639-45, General Code, which reads as follows ;

“Sec. 1639-45. Whoever abuses a child or aids, abets, induces, causes, encourages or contributes toward the dependency, neglect or delinquency, as herein defined, of a child or a ward of the court, or acts in a way tending to cause delinquency in such child, or who aids, abets, induces, causes or encourages a child or a ward of the court, committed to the custody of any person, department, public or private institution, to leave the custody of such person, department, public or private institution, without legal consent, shall be fined not less than five dollars, nor more than one thousand dollars or imprisoned not less than ten days nor more than one year, or both. Each day of such contribution to such dependency, neglect or delinquency, shall be deemed a separate offense.”

As the affidavit charges the defendant “did contribute toward” the 'delinquency of a minor Paul Pepple we must turn to the code for a definition of a delinquent minor. That definition is found in Section 1639-2, General Code, as follows:

“Sec. 1639-2. For the purpose of this chapter, the words ‘delinquent'child’ includes any child:

1. Who violates any law of this state, the United States, or any ordinance or regulation of a subdivision of the state.

2. Who does not subject itself to the reasonable control of its parents, teachers, guardian or custodian, by reason of being wayward or habitually disobedient.

3. Who is a habitual truant from home or school.

4. Who so deports itself as to injure or endanger the morals or health of itself or others.

5. Who attempts to enter the marriage relation in this or any other state without the consent of its. parents, custodian, legal guardian or other legal authority, as required by the laws of this state.”

It is not a prerequisite that the minor be found to be delinquent in a separate action before a charge of contributing toward the delinquency of such minor can be maintained, but the affidavit setting forth the charge, that the defendant contributed toward the delinquency of the minor, must set forth facts showing the minor to be a delinquent minor within the purview of Section 1639-2, General Code.

“1. There can be no valid conviction on an affidavit which charges no offense against laws of state.

“2. Affidavit charging defendant contributed to delinquency of a minor held fatally defective, even after judgment of conviction, where it did not specify some facts showing minor was delinquent child, within meaning of Section 1644, General Code.

“3. It is not sufficient to charge offense of contributing to delinquency of minor in language of Section 1654, General Code.

“4. Affidavit charging one with contributing to delinquency of a minor states no charge, under Section 1654, General Code, unless it charges some one or more acts of delinquency specified in Section 1644, since words ‘as herein defined,’ as used in Section 1654, insofar as they relate. to delinquency, refer to definition of delinquent child contained in Section' 1644.” Edmonds v. State, 30 Ohio App., 195, 164 N. E., 649.

“1. Statute defining offense cannot be extended by construction to person or things not within its terms, though apparently within its spirit.

“2. Allegations that minor was under eighteen, a delinquent within meaning of statute, and that accused contributed to such delinquency, are essential to statement of offense (Sections 1644 and 1654, General Code).

“3. No conviction can rest on affidavit which-charges no offense against'laws of the state.” Peefer v. State, 42 Ohio App., 276, 182 N. E., 117.

The prosecuting attorney, in his brief, maintained that the affidavit contains facts sufficient to show the minor to be a delinquent under Section 1639-2, subdivision 1, to wit: one “who violates any law of this state, the United States, or any ordinance or regulation of a subdivision of the "state.”

The affidavit charges that the defendant'“did furnish, aid or participate in the sale of beer to said minor, who being under the age of 18 years.”

The sale of beer to a minor under 18 years of age is an offense under the laws of Ohio, as set forth in Section 12960, General Code, to wit:

“Sec. 12960. Whoever sells intoxicating liquor to a minor under the age of twenty-one years or sells beer to a minor under the age of eighteen, or buys intoxicating liquor for, or furnishes it to a minor, unless given by a physician in the regular line of his practice, or by a parent or legal guardian shall be fined not less than twenty-five dollars nor more than three hundred dollars, or. imprisoned not more than six months in jail, or both.”

The affidavit, therefore, sets forth fa'cts showing a violation of law by defendant, to wit, sale of beer to. a minor under 18 years of age.

The offense, however, is in the sale of beer and not in the purchase thereof.

“It is within the power of the state to prohibit absolutely the purchase of intoxicating liquors within its borders. Whether the act of making a purchase is an offense depends upon the terms of any existing prohibition law. The general rule is that the.purchase of liquor from one who violates the law in making the sale is not a criminal offense in the absence of legislative declaration to that effect. Indeed, it has been declared .that a statute should not be held to denounce a purchase where it is not explicit on the point, or is aimed at persons acting generally as agents, or at the seller and his employees.”

“Nor is the purchaser, by reason of the fact of his purchase alone, chargeable with the offense of aiding and abetting or conspiring in the commission of the offense of illegal selling. In support of this rule, it is said that since a sale contemplates the purchase, the Legislature would have made the . purchase an offense if it had intended it to be so.” 30 American Jurisprudence, 409, Intoxicating Liquors, Section 289.

The same rule is stated in 23 Ohio Jurisprudence, 156, Section 59a.

Under the rule above stated, the minor in this case did not violate any law in making the purchase charged. Thus it will be observed that the affidavit to which the defendant entered a plea of guilty does not set forth any fact showing the minor to whom the beer was sold to be a “delinquent child,” as defined in Section 1639-2, General Code.

As heretofore stated, there can be no valid conviction on an affidavit which does not charge an offense against the laws of the state;,nor is the situation any different where the defendant pleads guilty to such an affidavit instead of being found guilty by a court and jury. No offense being charged in the affidavit, the plea of guilty did not cure the defect in the affidavit.

The affidavit sets forth facts charging that the defendant violated the law of Ohio, that is, “the sale of beer to a minor under 18 years,” but does not set forth' facts sufficient to charge him with contributing to the delinquency of a minor.

The affidavit sets forth facts sufficient to charge the defendant with a violation of law upon which he could be placed on trial, if the charge were filed in a court having general criminal jurisdiction.

As the affidavit fails to charge any offense under the laws of Ohio within the jurisdiction of the Juvenile Court, there is error in the judgment of sentence of the Juvenile Court. This court, now rendering the judgment the court below should have rendered, dismisses the affidavit and discharges the defendant.

Jackson, P. J., and 'Guernsey, J., concur.


author: Matthews, P. J.

text:
    McCoy, Appellee, v. Bureau of Unemployment Compensation et al., Appellants; A. P. Poster Co. et al., Appellee.
    (No. 6794
    Decided May 26, 1947.)

      Mr. Anthony J. Brueneman, Jr., for appellee McCoy.

      Mr. Hugh 8. Jenkins, attorney general, and Mr. John M. Woy, for appellants.
   Matthews, P. J.

This is an appeal from a judgment of the Common Pleas Court reversing a decision of the Board of Review of the Bureau of Unemployment Compensation dismissing the claimant’s appeal from the decision of the administrator disallowing her claim for unemployment benefits.

In her claim for benefits she gave her address as R. R. No. 1, Sharonville, Ohio. On October 30, 1945, her claim was denied on the ground that she had been referred for work on September 21, 1945, and that she was not available for work on that date. On November 9, 1945, she requested a reconsideration, again giving her address as R. R. No. 1, Sharonville, Ohio. On December 27, 1945, on reconsideration, she was again denied benefits for the same reason, and, on the same day, notice of such denial was placed in the post office at Columbus in an envelope, properly addressed to her at R. R. No. 1, Sharonville, Ohio. This notice reached the Sharonville post office, but, for some reason, was not delivered to her, but was returned to the sender.

On the 18th of January, 1946, the claimant filed a notice of appeal to the board of review and assigned as a reason for the delay that she never received the notice mailed to her on December 27th, 1945. She stated in her notice of appeal that she had moved on November 26, 1945, that she had notified the postmaster at Sharonville, Ohio, on that date and that she had been “receiving mail transferred from here.”

The board of review held that the plaintiff had failed to “fulfill the requirements of Section 1346-4 of the General Code, entitling such party to an appeal to the board of review, and the board does not acquire jurisdiction to hear and determine said appeal on its merits,” and on that holding the board decided that the appeal should “be and the same is hereby dismissed.”

The appeal was duly taken to the Common Pleas Court from that decision.

By Section 1346-4, General Code, it is provided that the administrator shall notify the claimant promptly of his decision and the reasons therefor, and that the claimant may appeal and secure a hearing before a referee, but that “Unless a person so notified files an appeal * '* * within ten calendar days after such notification was delivered to such person or was mailed to the last known post-office address of the appellant, such decision of the administrator or deputy shall be final and benefits shall be paid or denied in accordance therewith. ’ ’

On the subject of appeal from the referee’s decision to the board of review, it is provided by the same section that ‘ ‘ The parties shall be duly notified of the referee’s decision and the reasons therefor, which shall be deemed the final decision of the board unless, within ten days after such notification was mailed to the' last known post-office address of the parties” the board permits a further appeal, and it is further provided that when the board permits a further appeal or hearing “The parties shall be notified of the board’s final decision * * *, by mail addressed to the last known post-office addresses of the parties.”

The record, therefore, presents the question of whether time begins to run against an appeal from the time the notice was mailed regardless of the fact that the notice was not actually delivered to the addressee.

The statute seems to furnish a conclusive affirmative answer 'to that question. An attempt to analyze the statute instead of clarifying would only obscure what is already clear.

In 42 American Jurisprudence, 48, it is said:

“Service of process by mail, when authorized, is deemed complete when the writ is deposited in the post office, properly addressed and with the proper amount of postage. And it is sufficient if it is deposited in the mail on the last day allowed for service, although it is not received by the other party until after that day.” ' ,

See Carlson v. Stuart, 22 S. D., 560, 119 N. W., 41, in a footnote to which, as reported in 18 Ann. Cas., 285, at page 286, we find this statement:

“Service by mail, properly made in compliance with statute, is complete from the time the notice or other paper to be served is deposited in the post office with the proper amount of postage, and the risk of failure of the mail is upon the party to whom the paper is addressed.”

The headnote to Hurley v. Olcott, 198 N. Y., 132, 91 N. E., 270, as reported in 28 L. R. A. (N. S.), 238, is: “Failure of the employer to receive the notice is immaterial where a statute providing for service of notice of injury for which the master is to be held liable states that it may be served by post, by letter addressed to the person on whom it is to be served.”

And, at page 239, the court says:

“In many cases the statute provides that notice may be served by mail. Such is the provision as to service of papers on the attorneys in an action, and it has been uniformly held that the service was effective when the papers were properly mailed, regardless of their receipt by the adverse party. The risk of miscarriage is with the party to whom they are directed. Jacobs v. Hooker, 1 Barb., 71; Brown v. Briggs, 1 How. Pr., 152;, Radcliff v. Van Benthuysen, 3 How. Pr., 67.”

The claimant, in her claim for benefits, set forth her address as “R. R. No. 1, Sharonville, Ohio. ” While she changed her residence, she never informed the Bureau of Unemployment Compensation of such change and her original address remained unrevoked on the bureau’s record. It did its full duty when it mailed notice to her at that address. Failure to actually receive the notice did not result from any default on the part of the bureau, but did result from the act of the claimant in moving and of the postmaster in failing to forward the notice.

As the claimant failed to file her notice of appeal within the time prescribed by the statute, the board of review had no jurisdiction to pass upon the merits of her claim for benefits and did not err in dismissing her appeal.

We are of the opinion that the Court of Common Pleas erred in reversing the decision of the board of review.

For these reasons, the judgment of the Court of Common Pleas is reversed, and the decision of the board of review, dismissing' the claimant’s appeal, is affirmed.

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


author: Carpenter, J.

text:
    The State, ex rel. Urschel et al., v. Coller, Auditor.
    (No. 716
    Decided December 9, 1946.)

      Mr. Floyd A. Coller, for relators.

      Mr. Moses Lane, for respondent.
   Carpenter, J.

This is an action in mandamus, originating in this court, in which relator L. B. Barnes, the superintendent of the sewage treatment plant of the city of Bowling Green, seeks to compel the respondent, Wayne R. Coller, as city auditor, to issue to such relator warrants for his salary as fixed by the board of public affairs of that city, to which the council by ordinance had committed the management of that utility, including the duty of fixing the compensation of its employees.

To the petition, the respondent filed a general demurrer, and the legal question thus raised is now-before the court.

The basis of the demurrer is that the provision of the ordinance which seeks to invest the board of public affairs with power to fix the compensation of employees of the utility is invalid.

By the allegations of the petition it appears that the ordinance under which the board is operating was enacted November 19, 1945. By it the “management, control and operation of the municipal electric system, the municipal water works system and the municipal sewerage system shall be carried on by a board of public affairs.” By section 7 of the ordinance, that hoard is authorized and directed, among other things, “to employ and discharge all employees” and “to fix the rate of pay and compensation for each class of employees of each system.” ¡

It is alleged also that prior to January!, 1946, such relator’s salary had been $160 per month, which was fixed by council by ordinance passed December 7, 1942; and that on December 21, 1945, the board, by resolution, had increased it to $200 per month, but that the respondent had refused to pay such relator the increase, although council by ordinance had appropriated money therefor.

The sole question is: Did the council have the power to delegate to the board the authority to fix the compensation of such relator as an employee of the city’s sewerage system?

The court will take judicial notice of the fact that Bowling Green is a city and is operating under a statutory form of municipal government, Section 4206 et seq., General Code. See Morrow v. City of Cleveland, 73 Ohio App., 460, 56 N. E. (2d), 333. As such, its constitutional pQwers of local self-government are not self-executing but must be implemented by statute.

Whatever power the council had in this respect was bestowed upon it by Section 4326-1, General'Code, the material part of which is as follows:

“Whenever in any municipal corporation, the council or governing body thereof, shall, by ordinance, declare it to be essential to the best interests of such municipal corporation, the duties relating to the management and operation of municipally owned public utilities conferred upon the director of public service by Sections 3956 and 4326 of the General Code, shall be vested in a board composed of three members. # * * The council or governing body of such municipal corporation shall designate the compensation, if any, to be paid to said members; their duties, authority and powers #

In a noncharter city such as Bowling Green; city-owned utilities are generally operated in the department of public service under a director. Sections 3956 and 4323 et seq., General Code. The director’s duties are defined in Sections 3956 and 4326, General Code, the material parts of which are as follows:

“Section 3956. The director of public service shall manage, conduct and control the water works, furnish supplies of water, collect water rents, and appoint necessary officers and agents.”

“Section 4326. The director of public service shall manage municipal water, lighting, * * * sewage disposal plants and farms * *

The council is the legislative body of Bowling Green. Section 4211, General Code.

“Except as otherwise provided” council by ordinance shall fix the salaries and compensation of each “employee in each department of the government.” Section 4214, General Code. The department of public service is one of the departments of city government. Section 4323, General Code. City-owned utilities are expressly included therein. Section 4326, General Code.

As to some administrative boards, salary-fixing power is ‘ ‘ otherwise provided. ’ ’ Witness rapid transit commissioners, Section 4000-18, General Code, library hoards, Section 4005, hospital boards, Section 4026, and park commissioners, Section 4061.

It is urged by such relator that the last sentence of Section 4326-1, General Code, as above quoted, wherein the council is directed to “designate” the “duties, authority and powers” of members of the board of public affairs, is broad and confers upon council power to delegate to the hoard authority to fix the compensation of its employees. However, the first sentence of that section is specific and restrictive when it says the council may 'vest in a board “the duties relating to the management and operation of municipally owned public utilities conferred upon the director of public service by Sections 3956 and 4326 of the General Code.” Neither those sections nor any others give the director that authority.

The applicable rule of statutory construction appears in 37 Ohio Jurisprudence, 779, Section 450, as follows:

“In accordance with what is commonly known as the rule of ejusdem generis, where, in a statute,' general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be construed as restricted by the particular designation and as including only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.”

The same principle is stated in 50 American Jurisprudence, 371, Section 367, and 59 Corpus Juris, 981, Section 581.

In the light of that rule of construction and the general plan set up in the statutes for the government of city-owned utilities, it is clear that in Section 4326-1, General Code, the General Assembly did not confer upon the council power to delegate to the board the salary-fixing power, and the demurrer to the petition must be sustained. Unless such relator wishes to plead further, the petition will be dismissed.

Judgment accordingly.

Stuart and Conn, JJ., concur.