author: Putnam, P. J.

text:
    The State, ex rel. Bruns Coal Co., Appellee, v. Compton, Appellant. The State, ex rel. Bruns Coal Co., Appellee, v. Whitehead, Appellant. The State, ex rel. Bruns Coal Co., Appellee, v. Waters, Appellant. The State, ex rel. Bruns Coal Co., Appellee, v. Kubic, Appellant. The State, ex rel. Bruns Coal Co., Appellee, v. Wade, Appellant. The State, ex rel. Bruns Coal Co., Appellee, v. Headlex, Appellant. The State, ex rel. Bruns Coal Co., Appellee, v. United Mine Workers of America, District 6, Appellant. The State, ex rel. Bruns Coal Co., Appellee, v. United Mine Workers of America et al., Appellants. The State, ex rel. Bruns Coal Co., Appellee, v. Pacifico, Appellant. The State, ex rel. Bruns Coal Co., Appellee, v. Kovaleski, Appellant. The State, ex rel. Bruns Coal Co., Appellee, v. Smith, Appellant.

      (Nos. 758, 759, 760, 761, 762, 763, 764, 765, 766, 767 and 768
    Decided May 6, 1953.)

      Messrs. Graham, Graham, Hollingsworth & Gottlieb, for appellees.

      Mr. Glenn Krieder, Mr. Alfred D. Treherne and Messrs. Williams, Wendt, Murray & Deeg, for appellants.
   Putnam, P. J.

These causes, each a separate appeal on questions of law, were consolidated for argument in this court, and this opinion will cover all of them.

The questions involved concern violations of certain orders of the Common Pleas Court of Muskingum County, in which that court issued an injunction against Certain picketing and other obstruction tactics of labor organizations in the operation of certain nonunion mines producing coal in Muskingum county. The defendants were cited for contempt for a violation of those orders. They were found guilty and given sentences therefor, and it is from those judgments that these appeals are taken on questions of law.

The following background is necessary to understand the propositions involved herein. On October 1, 1951, the plaintiff, Bruns Coal Company, Inc., filed a petition in equity in the Common Pleas Court, being case No. 38040, seeking an injunction. The defendants in that case were: The United Mine Workers of America, and the officers and members thereof; District No. 6, The United Mine Workers of America and the officers and members thereof; Adolph Pacifico, President of District No. 6, The United Mine Workers of America; George Waters, local organizer for The United Mine Workers of America; Walter Kovaleski, organizer for The United Mine Workers of America; and seven other individuals who do not figure in these appeals. The petition alleges, in substance, that plaintiff was and had been operating a strip coal mine in Muskingum county for four and one-half years; that on September 21, 1951, defendants caused about 200 of their members to enter and trespass upon plaintiff’s property and demanded that the mine be closed; and that by threats, intimidation and overt acts, defendants caused the mine to close. Service was had on all defendants personally, except The United Mine Workers of America, which organization was served by registered mail at their office in Washington, D. C. On October 11, 1951, a temporary restraining order was granted. On November 2, 1951, the defendants each entered an appearance in the action by filing an answer to the petition. On May 28, 1952, after full hearing, a permanent injunction was granted, and no appeal from this order was ever prosecuted. Consequently, all questions as to the merits of the permanent injunction, including parties, jurisdiction and the terms thereof are fixed by the law of the case. This permanent injunction is as follows :

“It is further ordered, adjudged and decreed that the defendants, and each of them named and unnamed, and all others associated with them, be and they hereby are permanently enjoined from:

“1. From interfering with the ingress to and egress from any entrance to the mining property or operations of the plaintiff by the plaintiff, its employees or any other person or persons who may have lawful occasion to enter or leave said premises or operations on plaintiff’s business or for employment.

‘ ‘ 2. From interfering by coercion, intimidation, violence or threats of violence or suggestions of danger to any of the several employees of plaintiff or to any of the persons who might offer themselves for employment at the entrance or at the office or mine operation and places of business of plaintiff, or by molesting such employees in. their return from the mining property or operations to and from their mines.

“3. From using abusive, slanderous or threatening language to any employees or persons seeking employment at the mining property, operations or office of plaintiff.

“4. From any unlawful obstructing, delaying or stopping the business of plaintiff.

“5. Unlawfully loitering on or near the mining property, operations, offices, right of way, entrances or territory at or near the mining property, premises or offices of the plaintiff, or from unlawfully picketing said mining property, operations or offices, or from disturbing in any manner the peace, quiet and order of the mining property, operations or place of business of plaintiff, or the homes and premises of the several employees of the plaintiff, or from loitering, stopping, attempting to stop, or interfering in any way with the employees of the plaintiff to and from their homes to their place of employment for the purpose of intimidating or coercing the employees of plaintiff, or from in any way threatening, intimidating, injuring or attempting to injure or coerce any customers of the plaintiff or employees of plaintiff’s customers, who are purchasing coal from plaintiff, and from in any way injuring or threatening to injure any of said plaintiff’s customers or their employees who by truck or otherwise are on their way to and from the plaintiff’s mining property, operations or offices, for the purpose of purchasing and hauling said coal so sold to plaintiff’s customers, or from threatening, intimidating, injuring or attempting to injure or interfere with plaintiff’s trucks, or employees of plaintiff in making deliveries to plaintiff’s customers.

“6. From suggesting, directing, inciting, abetting or aiding any person or persons in committing any of the acts complained of in this petition or set forth in this restraining order, particularly inducing or inciting large crowds to congregate at or near or upon the mining property, operations' or offices of plaintiff.

“7. It is further ordered by the court that the pickets authorized to picket said mining property, operations or offices of the plaintiff, is fixed as follows: Not more than two pickets at any entrance way used by employees going to' and from said mining property, operations or offices; said pickets shall at no time congregate in such a manner that there shall be more than one at each side of each entrance and shall stand when picketing individually on separate sides of said entrance; each picket shall remain on the side of the entrance way that he stations himself on and shall remain on that side until he ceases picketing.”

In the fall of 1952, the plaintiff having reopened its mine, the incidents giving rise to the present litigation occurred. On October 23 there was a violent disturbance in which union organizers and miners again attempted to close down plaintiff’s mine. The court, becoming apprised of this fact, on October 25 entered the following order as-a journal entry:

“The court, upon public report of the inadequate implementation of its existing orders to safeguard the personal and property rights and interests of plaintiffs and all others connected with the property, business and business operations of any of them, on its own motion and for the sole purpose of making said orders effectual against unlawful intrusions from any source, in order to preserve and maintain the authority of duly constituted government with respect to thfe aforesaid orders of this court and to exact compliance therewith from all persons whomsoever, hereby directs the sheriff of this county to employ sufficient deputies regular or special, already or hereafter to be commissioned, and to dispose them so as to prevent violation or frustration of any of said orders in any respect and to make arrests whenever warranted; and that a copy of this order be certified by the clerk of this court to the commissioners of this county for the appropriation of sufficient additional money for the payment of their services as herein provided, until further order of the court.”

This order was likewise served upon all defendants in cause No. 38040, personally as to all of them except The United Mine Workers of America, which was served by registered mail at Washington, D. C.

On October 30, 1952, the most violent eruption took place. Over 200 persons congregated in the municipal park at Crooksville, formed a cavalcade of more than 40 cars and trucks, cruised the entire area, shut down nonunion mines, dumped many trucks hauling coal, stoned others, and forced the shutdown of all nonunion mines in the area. On the same date, plaintiff filed charges of contempt against certain defendants in the original action and others not parties thereto. The charges were heard, the accused were found guilty and sentenced, and these appeals result.

The appeals fall into several classes with some mutual and separate questions involved. ' The original affidavit in contempt was filed on November 1, 1952, against (a) The United Mine Workers of America and the officers and members thereof; (b) District No. 6, The United Mine Workers of America and the officers and members thereof; (c) Adolph Pacifico, President of District No. 6, The United Mine Workers of America; (d) Adolph Pacifico, individually and as a member of The United Mine Workers of America; (e) Walter Koveleski, individually and as a member of The United Mine Workers of America; (f) Delvin Smith, individually and as a member of The United Mine Workers of America; (g) George Headley, individually and as a member of The United Mine Workers of America; and (h) Clem Wade, individually and as a member of The United Mine Workers of America. Later, on November 8, 1952, upon application (i) George Waters, (j) James Compton, and (k) Chris Whitehead, all as individuals and members of The United Mine Workers of America were made parties to the contempt action of November 1 and were personally served with citations. Of these, a, b, c, e, i, were defendants in the original action. The others, d, f, g, h, j, and k, were not parties to that action.

This affidavit charged that such persons violated the permanent injunction order of the court on or about October 23, 1952, and alleged further that the alleged contemnors have continued to congregate in and about the area of the plaintiff’s mine, so as to intimidate the employees of the plaintiff and thereby force the closing down of the plaintiff’s mine.

One of the grounds of error assigned by various defendants, appellants herein, is that the court erred in admitting evidence under this affidavit as to the occurrences of October 30. We hold that the affidavit of November 1 is sufficiently broad and detailed to cover any occurrences on October 23 and, also, the occurrences of October 30. There was no error in the court admitting this evidence. The hearing on the affidavit was not held until November 12 and 13, 1952. All parties were served with a copy of the charge prior thereto and, consequently, were fully apprised of the nature of the hearing. None of them demanded a further bill of particulars.

While we will discuss the errors assigned by the defendant Kubic later, one of his assignments of error should be mentioned here. He seasonably demanded a jury trial. It does not appear that all the other defendants did so. However, we find no authority in law granting to one charged with contempt, civil, criminal, or quasi criminal, the constitutional right to a jury trial. We consequently hold that none of the alleged contemnors were entitled thereto, and that due process of law was not denied them by a denial thereof.

Another ground of error assigned by all those cited for contempt who were not parties to the original injunction action is that as a matter of law they cannot be convicted of contempt for a violation of the injunction order unless they had actual knowledge of such order. We agree with the proposition of law that knowledge is necessary, bnt subject to the qualification that one who aids or abets those with actual knowledge is chargeable with that knowledge. The question in this review is: Was such knowledge proven by the requisite degree of proof? We hold that that degree is clear and convincing evidence.

We have read and studied the record, especially with that proposition in mind, and we cannot say that the determination of the trial court that all the nonpartv contemnors did have actual knowledge of the injunction and the pertinent terms thereof is against the manifest weight of the evidence. It is true that much, but not all, of the evidence on that question is circumstantial. However, in many cases, including this one, circumstantial evidence is the most potent and convincing that can be produced. This injunction, temporary and permanent, had been in force for nearly a year. Especially since May 28, 1952, when a copy, of the permanent injunction had been served upon all parties to the original action which included officers and organizers of District No. 6, The United Mine Workers of America, which district embraced all the disputed territory and much more. The testimony shows that the question of the operation of nonunion mines in the district was a subject of general conversation and condemnation among union miners in that part of the country. The case had been given wide publicity by the newspapers in southeastern Ohio. The evidence shows that a day or so before October 30, word was passed around among the union miners that there would be a meeting at city park in Crooksville on October 30. This was after the court had made its order of October 25, which had also been served upon the parties to the action. The deputies appointed by virtue of that order were officers of the court and were cruising the district. Consequently, it may well be said that violations of the injunction in the presence of these deputies was in the presence of the court, and that they would have been justified in making arrests for a violation thereof on the spot. On the morning of October 30, more than 200 persons congregated in said city park with the officials and organizers of district No. 6. They formed a cavalcade of more than 30 cars and trucks and went about the district with the avowed and stated purpose of closing down all nonunion mines in the vicinity. This they did, in violation of the permanent injunction. The events of October 23, although less extensive, showed a similar organizational plan.

On the question of knowledge, and on the question of the duty which this permanent injunction imposed upon the defendants, officials and organizers of district No. 6 and of The United Mine Workers of America, it is the claim of the defendants that this injunction was entirely passive and contained no mandatory features and, consequently, that they were under no duty to inform their members of the same or the terms thereof. With this contention we do not agree. We hold that this injunction order, by its terms, imposed a duty on these defendant officials to see that their members knew of the order and the terms thereof. We believe that they did, because at first pickets were posted as allowed by the injunction and it was otherwise complied- with. One would have to be naive to hold that the circumstances as shown to have existed in this case failed to show actual knowledge. If any other argument is needed, section No. 6 of the injunction is directed to aiding or abetting any person in committing any of the interdicted acts. We cannot perceive that either the officials or actual demonstrators were not aiders and abettors.

The United Mine Workers of America is one of the most powerful and potent unions in this country. It is tightly organized from top to bottom. We know from recent history that a directive or even a suggestion from national or district headquarters is obeyed as a matter of policy. The union has demanded and has been accorded the right to organize and the right to bargain on an industry-wide basis. Certainly these rights and privileges carry with them a corresponding duty and obligation to maintain lawful and contractual discipline among its members as far as industrial disputes are concerned. Were it otherwise it would be impossible to maintain orderly government because of the ease with which other members from other localities and states could violate any order of any court by the simple expedient of claiming lack of knowledge.

It is further contended that the court erred in the admission of evidence. Much of the evidence was tenatively received and, in a case such as this, it is presumed that the incompetent evidence was disregarded.

We come now to the case of the defendant Steve Kubic. His assignments of error not already specifically passed upon consist of the contentions that he was placed twice in jeopardy and that the issues in the actions in which he was convicted and sentenced were, as to him, res judicata, and, in addition, that there is no evidence in the record as to his participation in the events of October 23. Kubic was not a party to the original injunction action. However, on November 1, 1952, an affidavit was filed charging that on or about October 23, 1952, and on October 31, 1952, he committed certain acts in violation of the in junetion. A citation was issued commanding Mm to appear on November 7 to answer thereto. Service having failed, he was arrested, and appeared on November 7 in response to a bail bond. A hearing was had on November 7 and it developed at the hearing that the offenses alleged to have occurred on October 31 had actually taken place on October 30. However, testimony was adduced concerning events of both Oc-. tober 23 and October 30. No judgment was rendered by the court, and the cause was continued. On the same date, November 7, presumably as a result of the testimony taken on that date, another affidavit was filed charging Kubic with violations of the injunction on October 23 and October 30. His case was again set for hearing and was heard with all the other contempt cases on November 12 and 13 when further testimony was introduced as to the occurrences on both October 23 and October 30. The court rendered its judgment on November 15 and held that there was no evidence sustaining charges against Kubic for activities on October 31, but held him guilty of contempt for his activities on October 23 and October 30. We find no elements of either double jeopardy or res judicata in such procedure. No judgment whatever was rendered on the hearing of November 7 until the final judgment was entered on November 15 and that judgment embraced both hearings. However, a detailed examination of the record fails to show any evidence that Kubic, who was not a party to the original action, had any part in the occurrences of October 23. His conviction and sentence therefor consequently must be and is reversed. There is ample evidence to show that he was a ring leader in the riotous activities and injunction violation of October 30. He was justly convicted therefor.

We will now address onr attention to the contention of The United Mine Workers of America, in which it claims that the court erred in not dismissing it from the contempt proceedings because it did not have proper notice and service of process thereon. This union admits in its brief filed in this court that through inadvertance or otherwise it had made its appearance in the original injunction action and was properly before the court when the permanent injunction was issued on May 28, 1952, and that that determination stands unreversed. However, it is now its contention that it was not properly before the court in the contempt proceedings because no proper service was made upon it, although the citation in contempt and the entry of the court on October 25 was served upon it by registered mail in Washington, D. C. Authorities are cited from jurisdictions other than Ohio to the effect that a criminal contempt proceeding is a separate proceeding and service must be made as in the original action. However, this is not the Ohio law.

In the case of Ray v. Broadway & Newburg Street Ry. Co., 10 C. C. (N. S.), 577, 12 C. D., 793, affirmed without opinion, 57 Ohio St., 664, 50 N. E., 1133, the first paragraph of the syllabus is as follows:

“Where there has been a violation of an order of injunction, it is not necessary to docket an independent action' in contempt, or proceed in an independent prosecution, to enforce the order made in the civil action. The court continues to have control to enforce the order under the authority of Section 5881, Revised Statutes.” (See Section 11887, General Code.)

See, also, Beach, Jr., v. Beach, 79 Ohio App., 397, 74 N. E. (2d), 130, where the Ray case is quoted with approval. We have found no decision of the Ohio Supreme Court to the contrary. We likewise hold this to be tbe law. Consequently, it follows that the motion to dismiss was not well taken, and that the court did not err in so holding.

Another error assigned by the various defendants is that the court erred in assessing costs in addition to imposing the fines and jail sentences. No cases in precise point are cited, and we have found none, although we believe that the cases of Pilliod v. Searles, 115 Ohio St., 694, 155 N. E., 231, and Sawbrook Steel Casting Co. v. United Steel Workers of America, 148 Ohio St., 73, 73 N. E. (2d), 373, determine the question. These cases seem to hold that Sections 11887 and 11888, General Code, are cumulative with Section 12137 et seq., General Code. The former sections provide for the payment of costs. The latter sections do not. The fines in the instant case were assessed and were the maximum allowable under Section 12137 et seq., General Code.

In the Sawbrook Steel Castings Company case, supra, the court quoted with approval the following language from the Searles case:

“ ‘Sections 11887 and 11888, prescribing the penalty for disobeying an order of injunction, are not exclusive, but are cumulative with Sections 12137, 12142 and 12147, General Code, relating to contempt and the punishment therefor.’ ”

If we properly understand the meaning of the word, “cumulative,” and the above pronouncement of the law, costs may properly be assessed in addition to the maximum penalty provided in Section 12137 et seq., General Code. We find no error in this regard.

The next questions regarding the various sentences and alleged as error are (a) that the court attached improper conditions by which the jail sentences might be suspended, and (b) that the court was in error in ordering that the defendants, in addition to the jail sentences, be committed to jail until the fines and costs were paid or secured to be paid or they were otherwise legally discharged. As to contention (a), we find no error. The court could suspend or withhold suspension as it saw fit. If the conditions attached to suspension were unacceptable or impractical of fulfillment it simply meant that the jail sentences stood. As to contention (b), we find that the court was in error. It had no power to commit these parties to jail for the additional period beyond the 10 days. The sentences of such parties are consequently reversed as to that feature, and the causes are remanded for re-sentence.

We now come to the appeal of Adolph Pacifico. He is an original defendant in this action as President of District No. 6, The United Mine Workers of America. He is not a party to the original action as an individual. He is a party to the contempt proceedings, having been named in the affidavit of October 31, as an individual and as a member of The United Mine Workers of America. He was not found guilty or sentenced as an individual or as a member of The United Mine Workers of America. He was found guilty and sentenced as President of District No. 6, The United Mine Workers of America. There is no evidence that he as an individual was present or participated in any of the activities resulting in the contempt proceedings. If his conviction is justified it must be justified on the grounds that he, as president of district No. 6, and a member of the policy board of that district was negligent in his duties and, by a failure to issue proper directives for the guidance of the union miners in the light of the injunction, was guilty of aiding and abetting their activities. We can see no difference in his position than in the position of The United Mine Workers of America and District No. 6, The United Mine Workers of America. If one is guilty, they are all guilty, and if one is not guilty, none of the three is guilty. All three were given fines for the violations of October 23 and October 30, but Pacifico, in addition, was given jail sentences for both dates. For the reasons above set forth, we hold that his conviction was not erroneous. He was, however, also sentenced in addition to his jail sentence to stand committed to jail until his fine and costs were paid or he was otherwise legally. discharged. This part of his sentence as above stated was erroneous and his cause is remanded for resentence in accordance with this opinion. •

The defendants, Smith, Headley, Wade, Compton, and Whitehead, were convicted and fined only for their activities on October 23. There is abundant evidence to sustain those convictions, but, as above stated, they must be resentenced because of the reason hereinbefore stated with reference to being committed to jail until the costs were paid.

On this proposition of committing to jail until costs are paid in addition to the maximum jail sentence of ten days, this court has announced its position that the practice is erroneous in the case of Bloomberg v. Roach, Recr., 43 Ohio App., 178, 182 N. E., 891, paragraph five of the syllabus.

See, also, the cases of Miller v. Toledo Grain & Milling Co., 21 C. C., 325, 11 C. D., 629; Lubbering v. State, 19 C. C., 658, 10 C. D., 508.

As above stated, Kubic’s conviction for his activities on October 23 is reversed, and he is ordered discharged on that count. His conviction for his activities on October 30 is affirmed, but that portion of his sentence which, orders him to stand committed to jail until the fine and costs are paid is held erroneous, and it is ordered that he be resenteneed.

That part of the sentence of Adolph Pacifico which orders him to stand committed to jail until fine and costs are paid is likewise erroneous and the same is remanded for resentence.

We find no error in the finding of guilty against either Koveleski or Waters. They were both parties to the original action and were served personally with all the orders in the case. They were officials of district No. 6, both being organizers for their division of that district. They were both present and participated in the activities of October 30. There is no evidence that Koveleski was present personally on October 23. There is evidence that Waters was on picket duty that day at the Ten-X mine. But being parties to the action and organizers they were guilty as aiders and abettors. However, that part of their sentences to stand committed to jail until fines and costs were paid in addition to their 10-day jail sentences is erroneous and their causes are remanded for resentence. A journal entry may be prepared in accordance with this opinion in all these cases, submitted to opposing counsel for approval, and then to this court.

Judgment accordingly.

McClintock and Montgomery, JJ., concur.


source: Caselaw Access Project

author: Skeel, J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Clifford et al., Appellants.
    (No. 22996
    Decided April 14, 1954.)

      Mr. Frank T. Gullitan, prosecuting attorney, Mr. John J. Mahon and Miss Gertrude M. Bauer, for appellee.

      Messrs. Baker, Hostetler & Patterson, Mr. Thomas J. Edwards and Mr. Charles D. Johnson, for appellants.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment of guilty of contempt of court entered upon trial in the Common Pleas Court. The facts are not in dispute.

On August 19, 1953, the defendant, Sam Giaimo, a reporter for the Cleveland Press was in the chambers of Common Pleas Court Judge Joseph H. Silbert, awaiting the return of an indictment against Nelson J. Brewer for embezzlement. Brewer had some time prior to that date resigned as Judge of the Probate Court of Cuyahoga County. Judge Silbert told Giaimo that an indictment had been returned and that Judge Brewer would be arraigned at 10 a. m. on August 20, 1953, and directly told Mr. Giaimo in the presence of another reporter that he would not permit the taking of photographs in the courtroom or chambers of the court at the time of the arraignment. That order was in conformity with Canon No. 35 of the Canons of Judicial Ethics of the American Bar Association. In direct defiance of the court’s order against picture taking, while the court was in session, upon the arraignment of Judge Brewer on August 20, 1953, at 10 a. m., the defendants, in carrying out their respective parts in the acts of contempt of court, charged against them (the defendant Clifford directing that the picture should be taken after knowledge of the court’s order; the defendant Giaimo assisting in the taking of the picture, and the defendant Thomas acting as cameraman), took a picture of the court proceedings at the arraignment and delivered the plate to the Cleveland Press for publication.

From a judgment of guilty of contempt of court as to each of the defendants, they claim the following errors:

“1. The finding of guilty against defendants-respondents-appellants, and each of them is not sustained by sufficient evidence and is contrary to law.
“2. In finding that defendants-respondents-appellants and each of them, had been guilty of contempt of court.
“3. In finding that defendants-respondents-appellants and each of them, had been guilty of misbehavior in the presence of, or so near the court or judge, as to obstruct the administration of justice.
“4. In finding that the acts of defendants-respondents-appellants and each of them, obstructed the administration of justice in the case of the state of Ohio against Nelson J. Brewer, being case No. 63332 on the docket of said court.
“5. In holding that the publication of the photograph of the arraignment of Nelson J. Brewer in connection with the aforesaid case was a contempt of court.
“6. In finding that the defendants-respondents-appellants and each of them, had been guilty of contempt of court in that they disobeyed an express order of the court.
“7. In taking judicial notice of matters not properly within the knowledge of said court.
“8. In taking judicial notice of and admitting in evidence matters which were not competent, relevant or germaine in connection with the charges preferred against defendants-respondents-appellants and each of them.
“9. In excluding evidence offered by defendants-respondents-appellants which, was competent, relevant or germaine in connection with said charges.
“10. In finding the defendants-respondents-appellants and each of them guilty of contempt of court in violation of the provisions of Section 11, Article I, of the Constitution of the state of Ohio.
“11. In finding the defendants-respondents-appellants and each of them guilty of contempt of court in violation of the provisions of the first, through the fourteenth, amendment of the Constitution of the United States.
“12. In basing the findings and judgment of guilty of contempt of court on a Canon of Judicial Ethics.
“13. In failing to request the assignment of another judge of the Court of Common Pleas of Cuyahoga County to hold the hearing on the written charges filed against the defendants-respondents-appellants.
“14. The. findings and judgment of the court are contrary to the law and the evidence.
“15. In committing the several errors of law occurring at the trial to which exceptions were taken by the defendants-respondents-appellants at the time.
“16. Other errors manifest from the face of the record.”

It is first claimed by defendants that the order was not properly issued, not having been journalized, the claim being made that a court speaks only through its journal. Such rule has application to the judgments or orders of the court when dealing with the trial of cases instituted and invoking the court’s jurisdiction. A judge is at all times during the sessions of the court empowered to maintain decorum and enforce reasonable rules to insure the orderly and judicious disposition of the court’s business. An order made directly to one in attendance of a judicial proceeding that certain conduct would not be permitted while the court was in session need not be journalized to give such order legal effect, particularly with regard to those who are so directed and act with full knowledge in defiance of the order.

The judge in enforcing orders directing proper and necessary decorum in the courtroom, while the court is in session, must see to it that the rules enforced are reasonable and necessary for that purpose. Under the undisputed evidence in this case, the rule against taking photographs in a courtroom while the court is in session has much support. Such a rule is in force in all of the federal courts of the United States, is clearly stated in the Canons of Judicial Ethics of the American Bar Association, and is recognized as necessary courtroom decorum by many state and local bar associations and by a great many individual judges of state courts. It is therefore impossible for this court to hold that the trial court, in promulgating the rule against photographs, which rule has received such wide acceptance in courts of law as being necessary to the impartial administration of justice, abused its discretion.

It is claimed also by defendants that the enforcement of such rule directly contravenes the constitutional right of freedom of the press. In considering this question, other constitutional guaranties, all of equal importance, must be taken into consideration. The Constitution of this state has vested the state’s judicial power in the courts and charged the judges of our court system with the obligation of administering justice without fear or favor, without respect to persons, ,and free from distractions or disturbances that are inimical to judicious conduct, looking only to the best interests of the litigants whose rights are the subject of a proceeding. The rules of courtroom conduct must be such as to remove it from the distractions and disturbances of tbe market place and to maintain as nearly as possible an atmosphere conducive to profound and undisturbed deliberation. The right to trial in a courtroom conducted and maintained in an atmosphere that bespeaks the profound and dignified responsibilities with which those who are conducting its proceedings — dealing with human rights as they must— are charged, is basic. A court, in enforcing reasonable courtroom decorum, is preserving the constitutional and unalienable right of a litigant to a fair trial, and, in preserving such right, the court does not interfere with the freedom of the press. A fearless and untramelled judiciary is a necessary bulwark in protecting liberty under law and in preserving the rights of the people. There is no claim in this proceeding that all who wanted to attend this session of the court were not permitted to do so, or that the opportunity to report the proceeding was not afforded in keeping with courtroom decorum, such right being limited by requiring that the reporter act so that the proceeding of the court should not be disturbed.

In the case of Bridge v. California, 314 U. S., 252, 86 L. Ed., 192, 62 S. Ct., 190, 159 A. L. R., 1346, the Supreme Court of the United States held that both state and federal courts have the power to protect themselves from disturbances and disorders in the courtroom by the use of proceedings in contempt and that that power cannot be challenged as conflicting with constitutionally secured guaranties of liberty. The constitutional right of freedom of the press was not violated by the order of the court in the proceeding which was the subject of this action and that claim is therefore overruled.

The evidence shows that the acts of ■ defendants caused a disturbance and distracted the court in the proceeding in which the picture was taken. The defendants claim that such disturbance was only for a short time or “momentary” in duration and so constituted no justification for this proceeding. It is enough if defendants’ acts in ignoring the court’s order not to take pictures caused a distraction or had the potential possibility of doing so. The disturbance and distraction caused by picture taking cannot be repaired after the event. The flashlight inevitably startles those nearby when used without notice. Its use is not conducive to sustained mental effort. If a photographer can take one picture, he can take two, or a dozen. If one photographer can take pictures, others should have equal rights. Nor is there any justifica tion because of the character of the proceeding then in progress. It would constitute utter confusion to attempt a differentiation between the character of the proceedings in progress, and none was contemplated by Judge Silbert’s general order against picture taking while the court was in session. In fact this proceeding was specifically designated as included in the prohibition against picture taking during court proceedings under canon No. 35.

The courts belong to the people. The people elect the judicial officers who are charged with the responsibility of presiding over sessions of the court in the administration of justice under the law. When the court is in session, it is under the complete control of the judge whose directions, reasonably necessary to maintain order and prevent unnecessary disturbance and distraction, must be obeyed. Deliberate disobedience of such orders constitutes a contempt of court punishable under the statutes of this state.

We find no reversible error in the proceedings, and the judgment is, therefore, affirmed.

Judgment affirmed,

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


author: Wiseman, P. J.

text:
    Socotch, Appellee, v. Krebs et al., Board of Liquor Control, Appellants.
    (No. 4934
    Decided November 2, 1953.)

      Mr. Isadore Topper, Mr. R. Brooke Alloway and Mr. William J. Kraus, for appellee.

      Mr. C. William O’Neill, attorney general, Mr. Robert E. Leach and Mr. Ralph N. Mahaffey, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, in which the members of the Board of Liquor Control of Ohio were found to be in contempt of court for failure to obey a former order of the court dated April 14, 1952.

A recitation of the facts is essential for a proper appreciation of the issues involved.

On November 21, 1950, Socotch filed an application to transfer a class D-5 permit, certificate No. 35959, from Clark Avenue to Detroit Avenue, in Cleveland, Ohio. The permit which Socotch sought to transfer terminated on October 21, 1951. On January 29, 1951, the Department of Liquor Control rejected the application for transfer, and, on appeal to the Board of Liquor Control, the action of the department was affirmed on August 17, 1951. Socotch then appealed to the Common Pleas Court of Franklin County, which reversed the order of the Board of Liquor Control on April 14, 1952. The judgment of the court was to the effect that:

“ * * * fljg Board 0f Liquor Control be, and it hereby is, directed to make and issue an order allowing the appeal filed with the Board of Liquor Control by the appellant and directing the Department of Liquor Control and the Director of Liquor Control to transfer the D-5 permit of the appellant from 5801 Clark Avenue to 5801 Detroit Avenue, Cleveland, Ohio, pursuant to the application heretofore filed by the appellant with the Department of Liquor Control.” (Emphasis ours.)

From this order an appeal was taken to this court where the appeal was dismissed on September 22,1952, for failure to comply with Rule VII. A motion to certify the record was denied by the Supreme Court on November 19, 1952. Hence the judgment of the Common Pleas Court entered on April 14,1952, became the final order.

During the progress of this litigation the lease held by Socotch on the Clark Avenue premises expired in July 1951 and she was compelled to vacate the premises. Thereupon, under regulation No. 16 of the Board of Liquor Control, Socotch delivered her permit to the department for safekeeping. In accordance with regulation No. 16, the permit was renewed in escrow on October 21, 1951, and certificate No. 21509 was issued to her with no place of business designated therein except Cleveland, Cuyahoga County, for the reason that she then had no place to operate her business. The new permit was held by the department for safekeeping under regulation No. 16. On or about April 16, 1952, Socotch acquired a new lease for the premises, which she had formerly occupied on Clark Avenue. Thereupon, she requested the department to return to her the permit then held by it for safekeeping. The department refused to comply with the request. Socotch then instituted a mandamus action in the Supreme Court against the Director of Liquor Control to require him to return to her the class D-5, permit. The case is reported under the caption of State, ex rel. Socotch, v. Bryant, Dir., 158 Ohio St., 249, 108 N. E. (2d), 737. The court held that regulation No. 16, which provided for a renewal of a permit at no designated location, held in escrow, was in conflict with Section 6064-20, General Code, which provides that a permit may be issued to a person to carry on the business at a designated place. The court held that under the facts the director was without power to renew the permit and that certificate No. 21509 was null and void.

In light of the above facts, and the opinion of the Supreme Court, the Board of Liquor Control on December 3, 1952, entered an order, the pertinent part of which is as follows:

“Whereas this Board of Liquor Control on the 17th day of August, 1951, affirmed the action of the Director of Liquor Control rejecting the application of Anna J. Y. Socotch to transfer D-5 permit, certificate No. 35959, from 5801 Clark Avenue, Cleveland, Ohio, to 5801 Detroit Avenue, Cleveland, Ohio, and,
“Whereas the unreversed order of the Court of Common Pleas of Franklin County in case No. 183600 on the matter of the appeal of this board’s ruling of August 17, 1951, ordered that the finding, ruling, and order of this board be reversed, vacated and set aside, and further ordered that this board be directed to make and issue an order allowing the appeal and directing the Department of Liquor Control and the Director of Liquor Control to transfer said D-5 permit certificate from 5801 Clark Avenue, Cleveland, Ohio, to 5801 Detroit Avenue, Cleveland, Ohio, pursuant to the application theretofore filed by Anna J. Y. Socotch on November 21, 1950, and,
“Whereas said permit certificate No. 35959 had been issued to Anna J. Y. Socotch on October 21, 1950, and expired on October 21, 1951, and,
“Whereas, the Supreme Court of Ohio in the case of State, ex rel. Socotch, v. Bryant, 158 Ohio St., .249, held that Anna J. Y. Socotch has had no valid permit since the expiration of said permit certificate No. 35959 on October 21,1951, and that a purported permit certificate No. 21509 expiring on October 21, 1952, was null and void and of no force or effect,
“Therefore, the Department of Liquor Control and the Director of Liquor Control are hereby ordered to transfer D-5 permit certificate No. 35959 from. 5801 Clark Avenue, Cleveland, Ohio, to 5801 Detroit Avenue, Cleveland, Ohio, effective as of the date of the rejection of the application of said transfer by the Director of Liquor Control, to wit: January 29, 1951, and to continue until the expiration of said permit certificate No. 35959 on October 21, 1951.” (Emphasis ours.)

On March 28,1953, the lower court found that the order of the Board of Liquor Control did not comply with its former order, and ordered the members of the board committed to the county jail until such time as they had purged themselves of such contempt “by the issuance of an order to the duly constituted and acting Director of the Department of Liquor Control of the State of Ohio to hold an immediate hearing on the application of petitioner, Anna J. Y. Socotch, for a renewal of her D-5 permit for her premises at 5801 Detroit Avenue, Cleveland, Ohio, which application was filed with the Department of Liquor Control of the State of Ohio on December 15, 1952, which order shall further direct the said Director of the Department of Liquor Control to renew the D-5 liquor permit of Anna J. Y. Socotch for her premises at 5801 Detroit Avenue, Cleveland, Ohio, unless it affirmatively appears that causes have intervened which were not involved or presented and could not have been involved or presented in these proceedings heretofore, an’d further indicate affirmatively that such permit should not be renewed. ” (Emphasis ours.)

. In the assignments of error, respondents use the term, “issuance of a current D-5 permit.” The record does not show that the court ordered the issuance of a permit, but rather shows in the first instance an order for the transfer of the permit and, later, an order for the renewal of the permit. In view of the confusion of terms, the court will discuss the issues principally from the standpoint of the issuance of an order to transfer or to renew the permit.

The respondents claim that the lower court in its entry dated April 14, 1952, did not order them to take any action with regard to the matter of the issuance (renewal) of a current D-5 permit. This contention is supported by the specific words of the order which directed the transfer of the permit rather than an issuance or renewal of a permit. In the issuance of a current permit there must be a showing of a compliance with the provisions of Section 6064-16, General Code. State, ex rel. Socotch, v. Bryant, Dir., supra, pages 254, 255. The issuance or renewal of a permit is something entirely different from the transfer of a permit. See Sections 6064-16 and 6064-20, General Code.

Respondents claim that the court lacked jurisdiction on April 14, 1952, to order them to take any action in regard to the matter of the issuance (renewal) of a current D-5 permit. We agree. The matter of the issuance or renwal of a permit was not before the court. The question presented involved a transfer of the permit.

Respondents claim also that they lacked jurisdiction to order the Director of Liquor Control to take any action with regard to the matter of the issuance (renewal) of a current D-5 permit. The Board of Liquor Control is without power to order the director to issue or renew a current permit. The application for the issuance or renewal of a permit in the first instance is made to the department, and the director is required to act thereon. Scaravilli v. Board of Liquor Control (Ohio App.), 61 Ohio Law Abs., 514, 105 N. E. (2d), 654. The Board of Liquor Control has no authority in the matter except on appeal.

Respondents contend also that the lower court lacked jurisdiction on March 28, 1953, to order them to take any action with regard to the matter of the issuance (renewal) of a current D-5 pertnit as requested in the application for the renewal of snch D-5 permit filed with the director on December 15,1952. We agree with respondents for the same reason as stated above and, further, for the reason that the application dated December 15, 1952, was not pending in the Common Pleas Court in March 1953 and, therefore, the Common Pleas Court lacked jurisdiction to order any action in regard thereto.

The court in its order under date of April 14, 1952, ordered a transfer of the permit. The board complied with this order. The fact that the permittee lost her lease, and that the permit which was placed in escrow could not be legally renewed without a designated place of business, was not the fault of the department, but the fault of the permittee. The permit held by the permittee, therefore, was not a continuing permit, but an expired permit which the Supreme Court said was not subject to renewal.

The Board of Liquor Control was without power to direct the Director of the Department of Liquor Control to renew the permit. Action must first be taken by the director on the application. The board does not act except on appeal. The director has no authority to renew a permit unless there is an existing legal permit subject to renewal. The members of the Board of Liquor Control were not in contempt for failure to obey the order of the Common Pleas Court to order the director to renew the permit. A renewal of the permit would be a nullity. The court committed prejudicial error in ordering an act to be performed which would be a nullity.

The order of the Common Pleas Court dated March 28, 1953, is a clear departure from the order dated April 14, 1952, and, in effect, holds the respondents guilty of contempt by reason of their failure to take action, not as ordered on April 14, 1952, to transfer a permit, but as ordered on March 28, 1953, which order attempted to impose a new duty on respondents to renew the permit.

We are not unmindful that the permittee, during the progress of this litigation, on three occasions deposited with the Department of Liquor Control the sum of $1,050 for the renewal of her D-5 permit. However, that fact did not confer upon the court jurisdiction which it does not have, or confer upon the Board of Liquor Control, or the Director of Liquor Control, powers which either did not possess. This fact did not influence the Supreme Court in State, ex rel. Socotch, v. Bryant, Dir., supra, as the statement of facts in that case shows that the permittee had made the required deposit.

The petitioner contends that the permit under which she was operating at the time the application was made for transfer should be regarded as a continuing permit, and should be extended for the required time after the date of the final order; that to effectuate the purpose of the Legislature in the enactment of the Administrative Procedure Act, the permit must be considered as a continuing permit; and that an order for a renewal lies within the power of the court, under the provisions of Section 154-73, General Code, a part of the Administrative Procedure Act. The pertinent part of this section of the statutes is as follows:

‘ ‘ The court shall certify its judgment to such agency or take such other action in connection therewith as may be required to give its judgment effect.”

Petitioner contends that the judgment of the court in ordering a renewal constituted “such other action in connection therewith as may be required to give its judgment effect.” A complete answer to this contention is that the original judgment was that the permit-tee was entitled to a transfer of the permit, after which the court substituted a new judgment and ordered a renewal of the permit.

Petitioner contends that the final order entitled her to a transfer of the permit from the Clark Avenue to the Detroit Avenue location; that the necessary delays inherent in our judicial system, and appellate proceedings having been instituted, prevented a final determination until December 3, 1952; that under Section 6064-20, General Code, no liquor permit is issued by the department for a longer period than one year; that the order of the Common Pleas Court confers substantial rights on the permittee; that no delay,• occasioned unavoidably or without fault of .the permittee, can work a forfeiture of such rights; and that if these rights are not duly preserved, the institution of an appeal from an administrative order is vain and useless. The proposition urged would have application but for the fact that the permittee lost her lease and had to vacate the premises. She no longer operated a place of business, and consequently lost her permit and her right to a renewal. State, ex rel. Socotch, v. Bryant, Dir., supra. Cases cited by petitioner have no application to the factual development in the instant case.

Finding error in the record prejudicial to the rights of the respondents, the judgment is reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed.

Miller and Hornbeck, JJ., concur.


author: Doyle, P. J.

text:
    Balogh, Jr., Appellant, v. Sacks, Appellee.
    (No. 4396
    Decided January 6, 1954.)

      Messrs. Meade, Weygandt é Leonard, for appellant.

      Messrs. Karris, Sacks & Subrin, for appellee.
   Doyle, P. J.

Fred Sacks, the owner of a lot in a recorded allotment, entered into an option agreement with one Steve Balogh, Jr., for its purchase. Balogh exercised the option, and, in pursuance of the agreement, paid $485 as partial payment, in addition to $15 which he had theretofore paid as consideration for the option.

Later, Sacks tendered a deed to Balogh, who transmitted it to his attorney for examination. Soon thereafter Balogh learned of an 18-inch gas line which crossed his lot, by virtue of a right-of-way or easement given the East Ohio Gas Company many years prior, and concealed three or four feet deep into the earth. Balogh thereupon brought suit to rescind the contract and to recover back the money paid.

Upon trial the court entered judgment as a matter of law for the defendant, Sacks. This judgment is now before this court on appeal. Error is claimed in the court’s ruling.

The purchaser, as shown by the evidence, exercised the option which contained the following specific stipulation :

“That if this option be duly exercised by the optionee, * * * the optionor agrees to convey said lot to the optionee by a duly executed deed of general warranty, with release of dower, * * * free from all encumbrances, except taxes and assessments, general and special, for the year 1951, restrictions, limitations, easements, reservations, and conditions of record, and subject to any state of facts that an accurate survey will disclose, and to furnish the optionee with a certificate of title showing a marketable title to said lot in the name of the optionor, free and clear from all encumbrances, except as aforesaid.” (Italics ours.)

It is claimed that Balogh, the plaintiff, was a builder of houses, and he negotiated for the purchase of the lot for the purpose of building a home thereon for resale to the public; that although the defendant “did not make any positive misrepresentations that a gas line did not exist, * * * after the plaintiff had stated his business and his intent to construct a dwelling house, the defendant, knowing of the impossibility of constructing such house in a proper location, remained silent, although he knew of the location of the gas line; * * * that concealment of these material facts was equivalent to positive misrepresentations; that there was a duty on the part of the defendant to disclose the gas line, under the situation existing between the parties at the time of negotiation; and that defendant’s concealment was fraud because the gas line was concealed and a latent defect not discoverable upon examination of the premises.”

In contradiction of part of the above claim, the fact is that a house was in fact built on the lot in question in accordance with lot restrictions, although such house and its location on the lot did not perhaps correspond to the type or location of the house which the plaintiff contemplated erecting. It is a further fact that an easement across the land, which later was allotted, and of which the lot in question was a part, was recorded many years ago in the public records of the county.

In the light of the facts and the general rules of law, we believe the following statement appropriate: A party can commit a legal fraud in a business transaction with another by fraudulent misrepresentations of material fact, or by such conduct or artifice, for a fraudulent purpose, as will mislead the other party, or throw him off his guard, and cause him to omit inquiry or examination, which he would otherwise make. However, when there is no relation of trust or confidence between the parties as imposes upon one an obligation to give full information to the other, the latter cannot proceed blindly, omitting all inquiry and examination, and then complain that the other did not volunteer to give the information he had. Ignorance of a fact not essential to a contract, but which, if known, might have influenced the action of a party, is not per se such a mistake as will afford legal or equitable relief. See: 55 American Jurisprudence, Vendor and Purchaser, Sections 57 and 62, and cases therein cited.

In the case before us, the easement was, of course, a limitation to a clear, unencumbered title to the property. Warren v. Brenner, 89 Ohio App., 188, 101 N. E. (2d), 157. It was, however, placed on record and open to the inspection of the diligent. Indeed, when the option was given and later accepted, the specific language of the option instrument undertook to convey title free from encumbrances, except certain specified items, which, in terms, included “easements.” If this language alone is not sufficient to defeat the claim of the purchaser (which we do not decide), certainly it was sufficient to put him on notice, and to neutralize and counteract an affirmative obligation to speak of the easement.

In conclusion, we reiterate that the charge is concealment or failure to speak, and nothing more, and that, under the circumstances, it was the duty of the vendor to speak.

We do not think the claim is sound in law. The parties dealt at arms length. There was no legal duty to speak of the easement. The vendee was warned in the option of such an encumbrance, and it was easily discoverable by a prudent person. The law does not make a vendor the guardian of a purchaser dealing at arms length with him, nor does the law, under these circumstances, create a sword of Damocles to threaten, under the guise of fraud; the legal security of a vendor.

The judgment will be affirmed.

Judgment affirmed.

Stevens and Hunsicker, JJ., concur.


text:
    Emerling, Appellant, v. Aaron, Appellee.
    (No. 22874
    Decided November 30, 1953.)

      Messrs. Woodle é Wachtel, for appellant.

      Mr. Herman Fishman, for appellee.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment entered for the defendant in the Municipal Court of South Euclid, Cuyahoga County, Ohio.

The amended petition alleges that the plaintiff is engaged in the interior decorating business under the trade name of A. M. Emerling & Sons at 13893 Cedar Eoad, Cleveland Heights, Ohio, and that pursuant to an agreement entered into between the plaintiff and the defendant, the defendant acting through the agency of her husband, the plaintiff agreed to and did manufacture draperies for her dining room for the total sum of $503.67 as per order signed by her husband which is attached as exhibit A to the petition. The plaintiff says that the draperies were manufactured and delivered as per said agreement with the defendant, that $100 was paid thereon, and that the defendant now refuses to pay the balance of $403.67, and asks judgment for that amount.

The defendant’s answer denies that Harry Aaron, defendant’s husband, acted as her agent or on her behalf in purchasing the draperies and avers the draperies purchased by Harry Aaron were unexpertly made, and, for that reason, returned by Harry Aaron, now deceased, to the plaintiff and are still in his possession. The plaintiff’s reply denies the affirmative allegation of the answer.

There is no dispute about the following facts as disclosed by the bill of exceptions.

The title to the house or home of Harry and Sadie Aaron, husband and wife, located at 2440 Green Road, University Heights, Ohio, is held in the name of Sadie Aaron, all the furnishings belong to her, and she is the owner of the pawn shop and army and navy store business at 406 West Superior Avenue in Cleveland, known as “Jerry’s Loan Shop” where, before his death, her husband worked as a clerk. The dealings for the purchase of draperies, which are the subject of this suit, were conducted in the presence of the defendant, in which she took an active part. She helped to select the materials, to pass on the design and, after they were delivered, to determine the question of whether they were made in a workmanlike manner. Whether she or her husband paid the $100 is not shown. At the time this transaction was concluded, the husband was in bankruptcy, having previously thereto filed a voluntary petition in bankruptcy.

The court entered judgment for the defendant upon the foregoing facts, the court finding “that the proof was not sufficient to satisfy the mind of the court that there was privity of contract between the plaintiff and defendant or that the relationship of principal and agent existed between defendant and her husband.” The plaintiff claims the following errors:

‘ ‘ 1. The judgment of the court was contrary to law.
“2. The judgment of the court was against the weight of the evidence.
“3. The judgment of the court was not supported by sufficient evidence.
“4. The court erred in excluding from the record evidence offered on behalf of the plaintiff.”

From the foregoing evidence, which is not in dispute, the liability of the defendant under the contract is clearly established. The defendant took part in all of the negotiations. The order was made out in the names of the defendant and her husband. His signature simply confirmed the order in both names. To fix liability under the agreement, no signature was necessary. Both were directly interested in securing the draperies and there is not the slightest evidence that the husband was making a gift of them to his wife or that by their conduct the plaintiff could be said to be extending credit to the husband alone.

Whether the plaintiff knew that the husband was without any financial backing and was either in or approaching bankruptcy at the time and that his wife was possessed with all the property of the family, the house, the business and, by her own testimony, all the household furnishings, including draperies purchased from the plaintiff under the same circumstances only a few weeks before, is not determinative of the question here presented. Such facts would be important only where fraud is claimed by the plaintiff. Here draperies are being purchased for the defendant’s house to become a part of that which, by her own evidence, is exclusively hers. She took part in their selection. She cannot now say she is not bound by a contract which she helped to make for her own benefit.

We recognize the fact that Section 1311.10, Revised Code, dealing with the “husband as authorized agent of wife who is owner” has no application here. That statute deals with improvement of a wife’s real property under a contract made by the husband in his own name while the facts here deal with an order for personal property to be placed in the family residence owned by the wife and in which she claims to be the sole owner of all like furnishings.

In the case of Heller v. Hohman (Hamilton County, 1896), 12 C. C., 216, 5 C. D., 338, where the husband contracted for repairs in his own name to be made on his wife’s property and where thereafter he had paid a part of the bill, the court held:

“A wife held to be personally liable for repairs to a building on her land, made under contract with her husband, but with her knowledge and without protest from her. — Sec. 3192, Rev. Stat.” (Section 8318, General Code; Section 1311.10, Revised Code.)

In the opinion, on page 217, the court said:

“Independently of any statutory provision, we incline strongly to the opinion that on this state of facts the wife would be liable for the balance due on the work. The facts alleged point very strongly to the conclusion that the husband was acting for the wife as her agent.”

We see no distinction in theory between the application of such rule as to real property and that of furnishing of personal property for the exclusive use as furnishings in the wife’s property where, under the undisputed evidence, she claims ownership of all like property in the house and at the time the contract was made and was present and took part in the negotiations for their purchase. We hold that upon the undisputed facts this defendant was a party to the contract made with the plaintiff to make the draperies for defendant’s dining room.

The remaining question has to do with whether the plaintiff carried out the obligations of his contract and furnished draperies as ordered. This question did not engage the attention of the trial court as is shown by its journal. It is the claim of the defendant that the draperies were improperly made so that the plaintiff breached his contract. The plaintiff admits that there were some errors in measurements, but claims that these mistakes were immediately corrected when called to plaintiff’s attention and that they have ever since been ready for delivery, but that the defendant has refused to take delivery.

The draperies which plaintiff made for defendant were ‘ ‘ special goods. ’ ’ Under Section 1315.64, Revised Code, if the buyer wrongfully refuses to take delivery, the seller may treat the goods as the buyers and maintain an action for the price. Inasmuch as there was no specific time within which the contract was to be performed, the plaintiff had a reasonable time to make the necessary corrections so that the draperies would satisfy the terms of the purchase order. The letter of defendants attempting to rescind the contract would, after it was received by plaintiff, relieve him of any obligation to thereafter tender delivery.

The case is therefore remanded for trial on the questions of whether plaintiff performed his contract in a workmanlike manner 'and whether the draperies, as repaired, satisfy the terms of the contract. If they do, then plaintiff is entitled to recover. If not, then judgment must be for the defendant.

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

Judgment reversed.

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


text:
    City of Columbus, Appellant, v. Rugg et al., Appellees; et al.
    (No. 5003
    Decided February 15, 1954.)

      Mr. Chalmers P. Wylie, city attorney, Mr. Samuel B. Randall, and Mr. J. Russell Leach, for appellant.

      Mr. B. N. Murray, for appellee Dayton M. Rngg.

      Mr. John F. Carlisle, for appellees Henry L. Young, Ethel M. Young, and Cora Rugg.
   Wiseman, P. J.

This is an appeal on questions of law from an order of the Common Pleas Court of Franklin County in a proceeding in which the court re-taxed the costs pursuant to Section 3697, General Code.

A brief recitation of the facts will suffice. The city of Columbus appropriated certain property, owned by the defendants, to be used for a water filtration plant. The jury assessed the compensation at $50,000, which covered the entire tract and the interests of all defendants. The city failed to exercise its right to take the property. The city did not pay the defendants the amount assessed or deposit the award with the court.

The city, in declining to take the property, exercised its option under Section 11091, General Code, which provides that it must pay the costs.

Section 3697, General Code, provides:

“When a municipal corporation makes an appropriation of property, and fails to pay or take possession thereof, within six months after the assessment of compensation shall have been made, its right to make such appropriation on the terms of the assessment so made shall cease and determine, and lands so appropriated shall be relieved from all incumbrance on account of any of the proceedings in such case, and the judgmént or order of the court directing such assessment to be paid shall cease to be of any effect, except as to the costs adjudged against the corporation. Upon motion of any defendant, such costs may be retaxed, and a reasonable attorney’s fee paid to the attorney of such defendant, which, together with any other proper ex-, penses incurred by the defendant, may be included in the costs.”

The record shows that the city failed to pay the award or take possession within a period of six months as provided in Section 3697, General Code. After the expiration of six months the defendants filed similar motions requesting the court to retax the costs as provided in that section. The statute expressly provides that the court may include in the costs “reasonable attorney’s fees paid to the attorney of such defendant.” In the instant case it is conceded that the defendants had not paid fees to their attorneys. The plaintiff contends that the court is without authority to include a reasonable attorney fee unless the attorney has received such fee from the client; and that the statute makes payment by the client a prerequisite to the including of an attorney fee by the court. We do not so construe the statute. The contention of the plaintiff would require the court to construe the statute as though it read, “fee paid to the attorney by such defendant.” It will be observed that the words of the statute are, “o/ such defendant.” The words, “of such defendant,” are descriptive only and have no other meaning. The statute contemplates that the defendant in such a proceeding has a right to be and will be represented by counsel; that valuable legal services will be rendered; and that the defendant and his counsel are entitled to be protected by an assurance of the payment for such services in the event plaintiff declines to take the property and pay the award. In our opinion, the use of the words, “fee paid,” embraces payment to the attorney of the defendant under the order of the court retaxing the costs. It should be noted that as a general rule attorney fees are not costs; hence the necessity for an express statutory provision authorizing the court to include as part of the costs a reasonable attorney fee.

The plaintiff contends further that the defendants did not incur the expenses of attorney fees; that the attorney fees were contingent on the collection on behalf of the defendants of the amount awarded by the jury; and that since the award was not paid by the city nothing was due to the attorneys under their agreements.

The attorney for Dayton M. Rugg introduced into evidence a written agreement entered into between him and Rugg which provides that the attorney shall receive as his compensation 40 per cent of the amount recovered above the amount offered by the city. The city offered $30,000, the jury awarded $50,000, and the excess was $20,000. Rugg owned the one-half interest in said property. On this basis his attorney claims his fee amounts to 40 per cent of $10,000, to wit, $4,000. The attorney for the other defendants makes a like claim, although the agreement as to his compensation was oral. He claims a fee of $3,882.92. The amount of fees claimed was allowed by the court as part of the costs.

The question here presented is whether under their agreements as to compensation the attorneys were entitled to fees in the event the city failed to take the property and pay the award. We do not concede that under the statute this question is determinative of the authority of the court to allow a reasonable attorney fee, but since the question is urged we proceed to consider and rule on this assignment of error. Plaintiff contends that there is nothing due the attorneys under the agreements with their clients; and that the attorneys must be held to have waived any right to fees for the services here involved. We do not agree. The agreements as to compensation are susceptible to the construction that the attorneys were to receive for their services 40 per cent of the amount of the award of the jury in excess of $30,000, and that the payment of compensation was not dependent upon the payment of the award by the plaintiff. We have examined the record and find that the defendants testified, both in chief and on cross-examination, that they agreed to pay 40 per cent of the amount awarded in excess of $30,000; that they recognized their obligations to compensate their attorneys on this basis. In view of the ambiguity in the contracts, we have no hesitancy in placing that construction upon them, which the defendants and their attorneys have so placed and which this court believes to be reasonable.

There is ample evidence in the record from which the trial court was able to determine the reasonable value of the legal services rendered by the attorneys. We are of the opinion that the trial court may consider all legal services rendered by the attorneys incident to the appropriation proceeding, whether such services were rendered before or after the proceeding was instituted.

The court found that the fees claimed by the attorneys were reasonable and taxed the same as part of the costs. No question is raised as to the reasonableness of such fees.

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

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Conn, J.

text:
    Peters, Appellant, v. Weaver et al., Appellees.
    (No. 4753
    Decided February 1, 1954.)

      Messrs. Marshall, Melhorn, Bloch é Belt and Mr. W. G. Jacobs, for appellant.
    • Messrs. Beams, Bretherton & Neipp and Messrs. Effler, Eastman, Stichter é Smith, for appellees.
   Conn, J.

The appeal in this case was taken by plaintiff from a judgment entered in the Common Pleas Court on a directed verdict for the defendant, Weaver, at the close of plaintiff’s evidence. From the judgment entered on the verdict, plaintiff appeals on questions of law.

In the second amended petition of plaintiff it is averred, in substance, that on November 15, 1950, at about 11:15 o’clock a. m., plaintiff was operating a 1948 Chevrolet pick-up truck in a westerly direction on U. S. route No. 24 near the village of Grand Bapids, Ohio, in Lucas County, and approaching the intersection of state highway route No. 581; that plaintiff stopped his truck near the center of U. S. route No. 24 “just short of intersection”; that defendant, at the same time, was operating a loaded truck easterly on U. S. route No. 24 approaching said intersection; and that, while the truck of plaintiff remained stationary, the defendant’s truck collided with the front portion thereof with resulting injuries to the plaintiff.

Plaintiff avers that his injuries were proximately caused by the negligence of defendant as follows:

“In proceeding at a speed in excess of thirty-five miles per hour; in failing to maintain a lookout for traffic on said highway; in failing to pass on plaintiff’s left; to stop, swerve, or divert the course of his truck, in crossing the center of said highway, and in failing to maintain control of said vehicle in applying 'brakes unevenly and by skidding and swerving to the wrong side of the road.”

Defendant in his answer admits that his truck collided with the truck of plaintiff at such time and place, and denies that he was negligent. For a second defense, defendant says the collision was caused by the negligence of plaintiff.

As already stated, the trial court directed a verdict for defendant at the close of plaintiff’s evidence. This action of the court is assigned as error. The refusal of the court to permit plaintiff to introduce further testimony after the court stated its intention to direct a verdict for defendant is also assigned as error, but, in view of the conclusion we have reached, this assignment can not be considered as being prejudicial and is not sustained.

It appears from the record that the motion of defendant for a directed verdict was grounded primarily on contributory negligence of plaintiff in coming to a stop without a signal. The evidence is undisputed that the plaintiff, intending to make a left-hand turn in the intersection, brought his panel truck automobile to a complete stop several seconds prior to the collision, at the intersection, near the center of U. S. route No. 24, but north of the dividing line. After plaintiff had stopped, a semi-trailer, approaching from plaintiff’s rear, shortly before the collision, “jack-knifed” in the highway onto the southerly lane thereof, turned completely around and came to rest against the guardrail on the northerly side of the highway to the rear of plaintiff’s truck. The semi-trailer, however, did not collide with plaintiff’s car. Plaintiff gave no signal of his -intention to stop or make a left-hand turn, but there is no evidence from which an inference may be drawn that plaintiff’s failure to signal proximately caused the semi-trailer to get out of its driver’s control, or that plaintiff suddenly stopped in front of the semi-trailer following him. As a matter of fact, plaintiff refrained from making a left-hand turn and remained stationary because he had observed defendant’s truck approaching from the opposite direction some 200 to 400 feet away.

In other words, the trial court granted the motion for a directed verdict on the ground that the proximate cause of the collision and resulting injuries to plaintiff was due to the sudden emergency which confronted defendant, to which we direct attention.

In the operation of his motor vehicle on the public highway, defendant owed the duty to plaintiff to exercise ordinary care. The test of ordinary care in a given instance is what a prudent person would have done under the same or similar circumstances. When one, without fault, is confronted with circumstances of unanticipated- and imminent danger or peril, he is not held to the exercise of the same care a prudent person would exercise in the absence of such danger or peril. The rule is concisely stated in the early case of Pennsylvania Bd. Co. v. Snyder, 55 Ohio St., 342, 45 N. E., 559, 60 Am. St. Rep., 700, in the third paragraph of the syllabus, as follows:

“When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; nor can it be said that, as matter of law, he is guilty of contributory negligence because he fails to make the most judicious choice between hazards presented, or would have escaped injury if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury.”

See, also, Schultz v. Meyerholtz, 91 Ohio App., 566, 109 N. E. (2d), 35.

In considering the defense of sudden emergency in the instant case, it is pertinent and material to examine the facts and circumstances which caused the alleged emergency. Did it arise exclusively by reason of some untoward act of plaintiff; or the act of some third person; or was it the resultant of operating a heavily loaded truck at considerable speed over the wet surface of the highway, with two or more curves, as it led to the intersection of highway No. 581?

With reference to the conduct of plaintiff, the issue of contributory negligence was raised on defendant’s answer, as stated above. However, the evidence shows that defendant observed the motor vehicle of plaintiff 200 feet or more away and concluded he was waiting to make a left-hand turn. As between plaintiff and defendant, it is quite clear that the manner in which plaintiff operated his motor vehicle did not directly create the emergency on which defendant relies.

In respect to defendant and the operator of the semitrailer, there was a distance of approximately 400 feet, or perhaps substantially more, between them when defendant first observed the semi-trailer cross over the center line and turn around in the highway. Furthermore, under the assured-clear-distance-ahead statute, the semi-trailer should not be operated at a greater speed than will permit the operator to bring it to a stop within the distance between his vehicle and a discernible object in his line of travel on the highway. In this cáse, the assured clear distance ahead was not cut down by reason of the operation of plaintiff’s vehicle and, therefore, there is no basis for a finding of contributory negligence as a matter of law. See Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960.

Assuming defendant was confronted with a sudden emergency, reasonable minds might differ as to the claim that the movements of the semi-trailer on the highway were the sole, proximate cause of such emergency. The lack of control on this broad road, when defendant applied his brakes, sustains a proximate relationship to speed, wet pavement, road curves, heavily loaded vehicle and lengthy skidmarks. In view of these related facts and circumstances, and some conflict between the testimony given by defendant and his prior statements, inferences arise that defendant was not without fault in the operation of his motor vehicle as it approached the intersection and that reasonable minds might differ on the issues of sudden emergency and proximate cause.

We call attention to the case of Satterthwaite v. Morgan, Jr., 141 Ohio St., 447, 48 N. E. (2d), 653, where the defendant set up a defense of sudden emergency in an action for damages growing out of a collision between two motor vehicles. We quote the second and third paragraphs of the syllabus, to wit:

“2. An operator of a motor vehicle who has failed to comply with a safety statute regulating the operation of motor vehicles may excuse such failure and avoid the legal imputation of negligence arising therefrom by establishing that, without his fault and because of circumstances over which he had no control, compliance with the statute was rendered impossible.
“3. When a defendant offers evidence of facts from which it may be inferred that his violation of such legal requirement was due to the existence of a sudden emergency arising without his fault, the question of his liability in the premises, and of the proximate cause of injury resulting from such violation, are for the jury.”

The reported cases disclose that the right of trial by jury is guarded with great care. In view of this solicitude for the right of a litigant to have the jury resolve issues of fact, the trial court may not withdraw a case from the jury where the evidence, when viewed with liberality, and any reasonable inferences therefrom, gives rise to fact issues upon which reasonable minds may differ.

In the instant case, it does not appear that the proximate cause of the collision is exclusively a question of law and it is our opinion that the trial court erred in sustaining defendant’s motion for a directed verdict.

The judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

Fess and Deeds, JJ., concur.


text:
    Miami Cigar & Tobacco Co., Appellant, v. Peck, Tax Commr., et al., Appellees.
    (No. 2271
    Decided March 12, 1954.)

      Mr. Ralph A. Shilken, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. Ralph N. Mahaffey, for appellees.
   Wiseman, P. J.

This cause is submitted on motion of appellees for an order dismissing the appeal on the ground that appellant has failed to file its assignments of error and brief within the time fixed by Rule YII of the Rules of the Courts of Appeals and a motion by appellant for an order fixing the time within which to file briefs.

This is an appeal from an order of the Board of Tax Appeals. The appeal to this court is under the provisions of Section 5717.04, Revised Code. The record shows that the notice of appeal was filed on November 12, 1953. On November 19, 1953, a transcript of the record of the proceeding before the Board of Tax Appeals pf the Department of Taxation of Ohio was filed in this court, as required by law. In the notice of appeal, filed on November 12, 1953, the appellant “set forth the decision of the board appealed from and the errors therein complained of” as provided in Section 5717.04, Revised Code. The order appealed from is dated October 14,1953; consequently the notice of appeal was filed within 30 days after the entry of decision of the board.

On the motion of appellee to dismiss the appeal, counsel for the appellant raises the question as to the nature of the appeal, the contention being that the appeal is on questions of law and fact. If the appeal is on questions of law and fact, the provisions of Rule YII have no application.

Section 5717.04, Revised Code, in part, provides:

“The proceeding to obtain a reversal, vacation, or modification of a decision of the Board of Tax Appeals shall be by appeal to the Supreme Court or the Court of Appeals for the county in which the property taxed is situate or in which the taxpayer resides.” (Emphasis ours.)

What is the meaning of the word, “appeal”?

Section 5717.04, Revised Code, was formerly Section 5611-2, General Code, which, in part, provided:

“The proceeding to obtain such reversal, vacation, or modification shall be by appeal to the Supreme Court of Ohio.”

It will be observed that the word, “appeal,” is used in both sections, and in the present section with respect to appeals to both the Supreme Court and the Court of Appeals.

The Supreme Court held, in Neil House Hotel Co. v. Board of Revision, 147 Ohio St., 231, 70 N. E. (2d), 646:

“Upon an appeal from the Board of Tax Appeals, the Supreme Court will not consider any matter not presented to the Board of Tax Appeals, bnt will confine the exercise of its revisory jurisdiction to the transcript of the record of the proceedings of such board pertaining to the decision complained of and the evidence considered by the board in making its decision. (Section 5611-2, General Code.)”

In Swetland Co. v. Evatt, Tax Commr., 139 Ohio St., 6, 37 N. E. (2d), 601, the first paragraph of the syllabus is as follows:

“Under Section 5611-2, General Code, in a proceeding appealed from the Board of Tax Appeals, this court may not consider any evidence which does not appear in the certified transcript of the record and proceedings of the Board of Tax Appeals pertaining to the decision of which complaint is made. ’ ’

It is well settled that the Supreme Court will not consider matters which were not presented to the Board of Tax Appeals. Inasmuch as the appeal taken to this court under Section 5717.04, Revised Code, is the same type of appeal as was formerly taken to the Supreme Court under Section 5611-2, General Code, and which may now be taken to the Supreme Court under Section 5717.04, Revised Code, the rule announced by the Supreme Court in the Neil House and Swetland Co. cases would control. We conclude that the appeal is on questions of law only.

It is interesting to note the provision of the Administrative Procedure Act. Section 119.01, Revised Code, defines “agency” as follows: “(A) ‘Agency’ means, except as limited by this division, * * * the Department of Taxation * * which definition is followed by certain exclusions. Section 119.12,' Revised Code, provides for the procedure on appeal from an order of an agency, the third paragraph of which provides as follows: “This section does not apply to appeals from the Department of Taxation.”

“Appeal” is defined in Section 119.01, Revised Code, as follows:

“(H) ‘Appeal’ means the procedure by which a person aggrieved by a finding, decision, order, or adjudication of any agency, invokes the jurisdiction of a court. ’ ’

We conclude that an appeal to this court from an order of the Board of Tax Appeals is not controlled by the Administrative Procedure Act, but by Section 5717.04, Revised Code.

The question now presented is whether the provisions of Rule VII with respect to the time within which assignments of error and briefs must be filed control appeals from the Board of Tax Appeals. It is conceded that briefs have not been filed within the time prescribed by Rule VTI. The appellant contends that Rule VII has no application, and that the statute with respect to appeals from an order of the Board of Tax Appeals applies. Section 5717.04, Revised Code, in part provides:

“Such appeals shall be taken within thirty days after the date of the entry of the decision of the board on the journal of its proceedings, as provided by such section, by the filing by appellant of a notice of appeal with the court to which the appeal is taken and the board. Such notice of appeal shall set forth the decision of the board appealed from and the errors therein complained of.
i 6 * # #
“The board, upon written demand filed by an appellant, shall within thirty, days after the filing of such demand file with the court to which the appeal is being taken a certified transcript of the record of the proceedings of the board pertaining to the decision complained of and the evidence considered by the board in making such decision.”

Because of the above provisions it is contended by appellant that the provisions of the Appellate Procedure Act (Sections 2505.01 to 2505.45, Revised Code) have no application to this appeal. Rule VII of the rules of this court was adopted under the authority conferred on the several judges of the Courts of Appeals of this state to make rules regulating the practice and conduct of the business of the respective courts as provided in Section 2505.45, Revised Code. The narrow question presented is whether ;he rules adopted by the judges of the Courts of Appeals of this state regulate appeals taken from the Board of Tax Appeals. It is clear that the provisions of the Appellate Procedure Act regulating the time for filing a bill of exceptions (Section 2321.05, Revised Code), the filing of a transcript of the proceedings (Section 2505.08, Revised Code), the time within which to perfect an appeal (Section 2505.07, Revised Code), and the statute with respect to the filing of assignments of error (Section 2505.21, Revised Code), have no application to an appeal from the Board of Tax Appeals. Such matters are controlled by the provisions of Section 5717.04, Revised Code. The only matter not governed by the last mentioned section is the time within which briefs shall be filed.

It is conceded that Rule VII was adopted many years ago, before the enactment of Section 5717.04, Revised Code, effective October 2, 1953, which confers jurisdiction on the Court of Appeals in such matters. It was not within the contemplation of the several judges of the Courts of Appeals in the adoption of Rule VII that it should embrace appeals from the Board of Tax Appeals. This type of appeal is the only appeal that may be taken direct to the Court of Appeals; all other appeals from boards, commissions, etc., are taken first to the Common Pleas Court. The time limits provided in Section 5717.04, Revised Code, with respect to the filing of notice of appeal, transcript of the record and the errors assigned, are so different from the statutory provisions controlling other appeals that the court concludes that Rule VII with respect to the provision which requires appellant to file his briefs within fifty days after the notice of appeal has no application to appeals from the Board of Tax Appeals. Until such time as the several judges of the Courts of Appeals adopt a rule controlling such appeals, the time within which briefs are required to be filed will be subject to special order.

The motion to dismiss will be overruled. Motion of appellant for an order fixing the time within which to file briefs will be sustained. The court orders appellant to file briefs within thirty days after entry is filed journalizing this opinion, an answer brief within twenty days after date of filing of appellant’s brief, and reply brief within twenty days after date of filing the answer brief.

Judgment accordingly.

Miller and Hornbeck, JJ., concur.


author: Griffith, P. J.

text:
    The State, ex rel. Bouse, Jr., v. Cickelli et al.; Board of Elections of Trumbull County.
    (No. 1306
    Decided March 29, 1954.)

      Mr. Dennis W. Dunlavy and Messrs. Guarnieri $ Seerest, for relator.

      Mr. Charles E. Anderson, prosecuting attorney, for respondents.
   Griffith, P. J.

The relator filed in this court his petition, seeking a writ of mandamus requiring the Board of Elections of Trumbull County to print and place upon the official Democrat primary ballot the relator’s name for the office of Representative to Congress from the Eleventh Congressional District of Ohio and to certify to the respective boards of elections of the other four counties of the district to do likewise.

There is no issue of fact in this case. The relator, Hugo F. Bouse, Jr., was a Republican candidate for Congress from the Eleventh Congressional District in the Republican primary held in May 1952. At that time, he was a resident of Mantua Township, Portage County, that being within the said congressional district, and he voted the Republican primary ticket.

At the general election in November 1952, although eligible, he did not vote. When the primary of May 1953 arrived he, being a resident of a township within the district where the party primaries are not held in odd numbered years, was precluded from participating in any party primary.

On February 1, 1954, he filed with the respondents his declaration of candidacy and petitions for nomination as a candidate of the Democrat Party for the office of Representative to Congress from the Eleventh Congressional District. The district comprises the counties of Ashtabula, Geauga, Lake, Portage, and a large part of Trumbull, the latter being the most populous county of the district.

It is admitted by respondents that the petitions are sufficient in form and contain the signatures of a sufficient number of qualified electors of Trumbull County alone to entitle relator to a place, on the ballot in the coming May primary and, in all other respects, are in conformity to law.

On February 9, 1954, respondents rendered a decision holding that the declaration of candidacy of Hugo F. Bouse, Jr., as a candidate for said office was invalid for the reason that he was ineligible to file as a Democrat candidate and, therefore, not qualified to be chosen for the office on that ticket and denying relator the right to have his name appear upon such ballot as a candidate for such office on the Democrat ticket.

Section 3513.191 [3513.19.1], Revised Code, reads as follows:

“No person shall be a candidate for nomination at a party primary if at the next preceding primary election he registered or voted as a member of a different political party.”

This law became effective on January 1, 1954. So far as relator is concerned “the next preceding primary election” was the May primary of 1952. By residing in a township of the district the entire year of 1953, he denied himself the privilege of voting in a party primary that year.

Can it be said that, because he resided in a township wherein no party primary is held in the odd-numbered years and, therefore, could not vote, he is discriminated against by one who resides in a city of the district who may vote in such odd-numbered-year primary? Relator complains that he is, thereby, a victim of discrimination. With this contention, this court cannot agree.

At the Republican primary of May 1952, relator voted a Republican ballot. He was affiliated with the Republican Party. That status continues, and he is presumed to remain with that party until he, by an affirmative act, changes his status.

That affirmative act, in this case, for this candidate for nomination at the Democrat primary of 1954 would have been registering or voting the Democrat primary ballot in 1952, that being the next preceding primary election. He did neither. The same qualifications attaching to a candidate at a party primary as attach to an elector no longer exist.

The Legislature, by this recent enactment, has placed a premium upon one offering himself as a candidate at a party primary. That is a stimulant to our two party system.

Section 3513.191 [3513.19.1], Revised Code, pertains to disqualification of candidates for nomination at a party primary and nothing more. Its language is plain. It is not discriminatory, but regulatory in its nature and applies to all alike.

Relator complains that it was the duty of the respondents to certify the various petitions to the respective counties wherein they had been circulated, and that Section 3513.05, Revised Code, makes it mandatory upon the respondents to do so. It is admitted that this was not done.

It is admitted further that the respondents found from the Trumbull County petitions a sufficient number of valid signatures to place relator’s name on the ballot. How is relator hurt by this failure to certify?

Clearly, it is the duty of the board of the most populous county to pass upon the validity or invalidity of the petitions and declarations of candidacy. (Section 3513.05, Revised Code.)

The administrative duty to certify to the other counties is for the purpose of the determination of the validity of the signatures thereon. Else why the provision

“All other matters affecting the validity or invalidity of such petition papers shall be determined by the Secretary of State or by the board with whom such petition papers are filed. ’ ’

The respondents had not only the right, but the duty and authority conferred upon the board of the most populous county, to refuse to certify these petitions because the declaration of the candidacy of Hugo F. Bouse, Jr., was not in conformance with the requirements of law:

Section 3513.191 [3513.19.1], Revised Code, provides for the disqualification of candidates at party primaries on and after January 1, 1954, and does not violate any of the constitutional provisions with reference to retroactive legislation. It is a course of procedure whereby no person may become a party candidate at a primary election if at the next preceding primary election he registered or voted as a member of a different political party.

The conceded facts show that the relator has no such qualifications as entitle him to a place on the official Democrat ballot. The act that he seeks to have performed by the Board of Elections of Trumbull County is not enjoined upon them by law.

The relator is not entitled to a writ of mandamus unless it clearly appears that the performance of the act sought by him is one which “the law specially enjoins as a duty resulting from an office, trust, or station.” (Section 2731.01, Revised Code.)

There being no duty enjoined by law upon the respondents to place the relator’s name on the May fourth Democrat primary ballot, the writ is denied.

Writ denied.

Nichols and Phillips, JJ., concur.