author: Per Curiam.

text:
    The State of Ohio, Appellee, v. Coterel, Appellant.
    (No. 2256
    Decided November 13, 1953.)

      Mr. Mathias H. Heck, prosecuting attorney, and Mr. Walter A. Porter, for appellee.

      Messrs. Canny, Stewart S Cromer, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, Division of Domestic Belations, in an action in which the defendant was found guilty and sentenced for a violation of Section 1639-45, General Code.

The defendant contends that the statute under which the affidavit was filed is unconstitutional, and that the judgment is against the manifest weight of the evidence.

Since there is no bill of exceptions before us, we cannot weigh the evidence.

The charge is that the defendant “did act in a way tending to cause the delinquency” of three minor children under the age of 18 years.

Section 1639-45, General Code, in part, provides:

“Whoever * * * acts in a way tending to cause delinquency in such child * * * shall be fined * * *.”

Defendant contends that these words of the statute are vague and indefinite and do not describe the particular act which is made an offense, and, also,-violate Section 26, Article II of the Ohio Constitution, which provides:

“All laws, of a general nature, shall have a uniform operation throughout the state * *

In support of this proposition counsel for defendant cite 8 Ohio Jurisprudence, 604, Section 467; and Castle v. Mason, 91 Ohio St., 296, 110 N. E., 463, Ann. Cas. 1917A, 164, which case holds:

“The constitutionality of a law may be determined by- its operative effect, though on its face it may be apparently valid.”

See, also, Falk, Exp., 42 Ohio St., 638, which holds that the provisions of Section 26, Article II of the Constitution, are mandatory and not directory.

In support of the contention that the statute does not describe with reasonable certainty the act which is forbidden, counsel cite State v. Bovee, 6 N. P. (N. S.), 337, 17 O. D., 663, which holds that it is necessary that forbidden acts shall be described in the statute with reasonable certainty. See, also, 14 American Jurisprudence, 773, Section 19; Pacific Coast Dairy v. Police Court of San Francisco, 214 Cal., 668, 8 P. (2d), 140, 80 A. L. R., 1217; United States v. L. Cohen Grocery Co., 255 U. S., 81, 65 L. Ed., 516, 41 S. Ct., 298, 14 A. L. R., 1045. The California case, when properly analyzed, supports the state’s contention that the statute under which the defendant was convicted is not void for uncertai. .ty.

The statute in question has uniform operation throughout the state, and does not violate Section 26, Article II of the Ohio Constitution, because of lack of uniformity. The fact that some courts in the state may give a statute a strict construction, and other courts give it a liberal construction, or may be harsh or lenient in its application, does not render the statute void for lack of uniformity.

Is it void for uncertainty? We do not think so. The language of the statute of necessity must be general in its terms. Many different acts of an individual may tend to cause delinquency in a child. In the' instant ease the act was specifically described in the affidavit as indecent exposure of the person. If the act was not specifically described in the affidavit the defendant would be entitled to a bill of particulars. Any act which tends to cause delinquency in a child is made an offense, and the statute is not void for uncertainty if it describes the offense with reasonable certainty. In State v. Sinchuk, 96 Conn., 605, 115 A., 33, 20 A. L. R., 1515, 1518, the court held that a statute penalizing disloyal, scurrilous, or abusive matter concerning the form of government of the United States, its military forces, flag, or uniform is not invalid because it fixes no ascertainable standard of guilt.

In United States v. Ragen, 314 U. S., 513, 86 L. Ed., 383, 62 S. Ct., 374, the court held:

‘ ‘ The mere fact that a penal statute is so framed as to require a jury upon occasion to determine a question of reasonableness does not make it too vague to afford a practical guide to permissible conduct.”

In Winters v. New York, 333 U. S., 507, 92 L. Ed., 840, 68 S. Ct., 665, the court, on page 515, said:

“Acts of gross and open indecency or obscenity, injurious to public morals, are indictable at common law, as violative of the public policy that requires from the offender retribution for acts that flaunt accepted standards of conduct. 1 Bishop, Criminal Law (9th ed.), Section 500; Wharton, Criminal Law (12th ed.), Section 16. When a legislative body concludes that the mores of the community call for an extension of the impermissible limits, an enactment aimed at the evil is plainly within its power, if it does not transgress the boundaries fixed by the Constitution for freedom of expression.”

In Jordan, Dist. Dir. of Immigration, v. De George, 341 U. S., 223, 95 L. Ed., 886, 71 S. Ct., 703, it is held that the provision in the statute requiring the deportation of an alien who had committed “a crime involving moral turpitude” was not void for vagueness. On page 231 the court said:

“Impossible standards of specificity are not required. United States v. Petrillo, 332 U. S., 1 (1947). The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 269 U. S., 385 (1926).”

. See, also, State v. Hannawalt, 26 Ohio Law Abs., 641, 643; and State v. Van Horn, 32 Ohio Law Abs., 406, 409.

Judgment affirmed.

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


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Sutton, Appellee, v. Bethell, Appellant, et al.
    (No. 7745
    Decided June 22, 1953.)

      Mr. Julius B. Samuels and Mr. David J ohnson, for appellee.

      Mr. Andrew O. Haefner and Mr. Paul J. Hengge, for appellant.
   Matthews, P. J.

This is an action contesting the validity of a certain paper writing as the last will of Amy Gertrude Bethell, deceased. An issue was formulated by the court, a trial had, and at the conclusion of the evidence the court sustained the contestant’s motion for a verdict declaring the paper writing not to be the last will of Amy Gertrude Bethell, for the reason that it had been in fact and in law revoked by a separation agreement entered into in her lifetime with her husband when they were divorced. A judgment was entered on this verdict.

The evidence shows that Amy Gertrude Bethell and William James Bethell were married in the year 1929. On January 18, 1943, she made a will in which she named her husband, William James Bethell, as sole beneficiary and executor without bond. In 1951, her husband instituted an action for divorce against her, and, on March 28, 1951, while the divorce action was pending, they entered into a separation agreement. On May 7, 1951, William James Bethell was granted a divorce and in the divorce decree the separation agreement was referred to, attached thereto, and made a part thereof. By this separation agreement, William James Bethell transferred all his interest in the household furniture and certain described real estate to Amy Gertrude Bethell and agreed to pay her $10 per week during the pendency of the divorce action. Nothing was transferred or surrendered by Amy Gertrude Bethell to William James 'Bethell. Following the transfer by William James Bethell, the separation agreement contained these provisions:

“Now, therefore, in consideration of the premises, each party hereto does hereby release and discharge the other from all obligations of support, except as hereinbefore mentioned, and from all other claims, rights and duties arising or growing out of said marital relation; and said parties mutually agree that each party hereto may freely sell or otherwise dispose of his or her own property by gift, deed, or last will and testament, and each party is by these presents hereby barred from any and all rights or claims by way of dower, inheritance, descent, distribution, allowance for twelve (12) months’ support, right to remain in the mansion house, and all rights or claims as widow, widower, heirs, distributee, survivor, or next of kin, and all other rights or claims whatsoever, in or to the estate of the other, whether real or personal, and whether now owned or hereafter to be acquired, which may, in any manner, arise or accrue by virtue of said marriage.
“And each party, for the considerations aforesaid, does hereby release and relinquish to the other, and to the heirs, executors, administrators, devisees, legatees and assigns of the other, all claims or rights of dower, inheritance and distributive share, or as widow, widower, heir, survivor, distributee or next of kin, in and to all the estate of the other, whether now owned or hereafter acquired, and all claim or right to an allowance for twelve (12) months’ support, or to reside in the mansion house, and all other rights or claims whatsoever, which may in any manner arise or accrue by virtue of said marriage.
“And each party further agrees that the other party shall have full liberty to dispose of all his or her property, real and personal, whether now owned or hereafter acquired, during life, or by last will and testament, and that upon the death of such party, all of his or her property, real and personal, which shall not have been disposed of, during life or by last will and testament, shall descend to, vest in and be distributed [to] such person or persons as would be entitled to the same by the statutes of descent and distribution of the state of Ohio then in effect, had the surviving party died during the life of the other party.
“And each party hereby waives any right which he or she may have, to administer the estate of the other party, upon the death of such other party. ’ ’

It will be observed that each of the parties was given complete liberty to dispose of his or her property during life or upon death, entirely free of every possible claim of the other. It will be noted also that the parties had in mind the disposition of their property by last will, as is shown by the provision granting to each the right to do so freely, and, also, that, notwithstanding this, no mention was made of any existing will and, of course, the agreement left each free to name the other as beneficiary in any will which he or she might thereafter make.

It is significant that Amy Gertrude Bethell made no alteration'of her existing will, although she lived eight months and eight days after the. separation agreement was entered into.

Testimony of the secretary of one of the attorneys in the case was proffered that Amy Gertrude Bethell, after the separation agreement was made, told her that she had a will and wanted to make certain changes in it. This evidence was excluded. We are of the opinion that the evidence was competent as showing knowledge of the existence of the will and as indicating that the failure to have some provision in the separation agreement on that subject was not an inadvertence. However, the absence of such testimony does not render the writing ambiguous or of doubtful meaning.

Our reading of the separation agreement fails to show any express revocation of this will or any provision so inconsistent with its continued existence as to indicate an intent on the part of Amy Gertrude Bethell to revoke it. We find nothing in the agreement to indicate an intention either way, unless the mere fact that the divorce and the comprehensive agreement as to existing property rights and the granting to each complete freedom of action thereafter had that effect.

Contestant relies on that part of Section 10504-47, General Code, which provides that nothing contained in the enumeration of methods of revoking a will set forth in the section “shall prevent the revocation implied by law, from subsequent changes in the conditions and circumstances of the testator.” It is urged that the divorce and separation agreement brought about such a change in the condition and circumstances of Amy Gertrude Bethell as to create a legal implication that she intended thereby to revoke her will.

We are of opinion that both contentions of the contestants — that the agreement expressly revoked the will and that it constituted a revocation by implication of law — are completely answered by the case of Codner v. Caldwell, Jr., 156 Ohio St., 197, 101 N. E. (2d), 901. An examination of the separation agreement involved in that case shows many points of similarity to the agreement relied on in this case. It is true that differences can be pointed out, but the aggregate of the provisions and surrounding circumstances in the case at bar furnishes a weaker premise than in that case for the conclusion that the situation is so repugnant to the idea of an intent to continue the former spouse as a testamentary beneficiary as to require the conclusion that the intent was to revoke the will.

In Codner v. Caldwell, the husband was given a substantial part of the property under the terms of the separation agreement, whereas, in the case at bar, he was given nothing. The only transfer of property effected by the separation agreement in this case was from the husband to the wife, and for all that appears in this record the only effect of her will would be to return to him the property that was his before the separation agreement was made.

In both separation agreements, the right of each party to dispose of his or her property by will, without interference by the other, was expressly declared.

In both agreements, both waived every conceivable right based on the marital relation, and as heir, surviving spouse, or in any other capacity.

In this case, the facts show that the parties were married in 1929, and that it was not until 1943 that the will was executed and not until 1951 that the separation agreement was made and after the husband had filed suit for divorce, and that he was granted the divorce. In Codner v. Caldwell, the parties were married in 1938, and the codicil making the husband sole beneficiary was executed prior to the marriage, that is, on November 4, 1937. On June 4, 1948, the wife— not the husband — sued for divorce and was granted the decree. While the divorce ease was pending, the separation agreement was entered into.

Both testatrices died without heirs of the body. In Codner v. Caldwell, the testatrix lived about five months after the separation agreement 'was entered into without destroying her codicil, or executing a new will. In the case at bar, the testatrix lived more than eight months without destroying her will or making a new will.

In holding that the divorce and separation agreement had not in fact or in law effected a revocation of the codicil, the court, at pages 202 and 203 in Codner v. Caldwell, supra, quoted with approval from the case of Hertrais v. Moore, 325 Mass., 57, 88 N. E. (2d), 909, as follows:

i t í resilit we attain, which is compelled, we think, by our statutes and our decisions, seems to us to be the desirable one. It would be a serious matter to invalidate a will because of a supposed change in intention on the part of a testator not given formal expression by him. Our conclusion avoids the difficulties faced in those jurisdictions where the statutes permit the adoption of a contrary view, where the revocation is not presumptive but absolute, and evidence, not amounting to a republication, cannot be received of a. testator’s actual intent to continue his will in force, and where the prevailing standard seems to be what a reasonable testator would be deemed to have intended. * * * If the changes relied upon by the respondents were held to achieve a revocation implied in law, other changes can be imagined which with equal plausibility might be urged to have similar effect. Persons who have drawn wills or who are to draw wills are not now to be exposed to the risk that, in the present circumstances and perhaps others, the courts might decree revocation notwithstanding that such persons do not avail themselves of the easy means afforded by statute for accomplishing revocation by their own intentional acts.’ ”

One of the assignments of error was that for revocation by divorce and separation to be available, it was necessary that it be specially pleaded. We are of the opinion that this is without merit. Under the issue of whether the paper writing is the last will of the decedent, any fact nullifying the paper writing as the will is available to the contestant. Under this issue, fraud, undue influence, lack of proper execution, and revocation may be asserted.

For these reasons, the judgment is reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed.

Ross and Hildebrant, JJ., concur.


author: Middleton, J.

text:
    Winters, an Infant, Appellant, v. Pence, Appellee.
    (No. 1037
    Decided September 25, 1953.)

      Mr. G. A. Piacentino, for appellant.

      Messrs. Moore & Myers, for appellee.
   Middleton, J.

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

The action is one for personal injuries received by the plaintiff while riding a bicycle, in a collision with the defendant who was driving an automobile, at or near the intersection of South State Street and Pleasant Street in the city of Marion, Ohio. The defendant was proceeding southward on South State Street and the plaintiff was traveling eastward on Pleasant Street. The evidence is in dispute as to whether the collision occurred in the intersection or north of the intersection of South State Street and Pleasant Street.

Upon trial, the jury returned a verdict in favor of defendant, and it is from the judgment entered on that verdict that appeal is taken to this court.

Plaintiff sets forth seven assignments of error, as follows :

“A. Error of the court in admitting evidence offered by defendant over objection of the plaintiff.
“B. Error of the court in rejecting evidence offered by the plaintiff.
‘ ‘ C. Error of the trial court in charging the jury before argument as requested by counsel for the defendant over objection by plaintiff.
“D. Error committed by the court in its general charge to the jury to which plaintiff objected.
“E. That the judgment and verdict are not sustained by sufficient evidence; that the same are contrary to and against the weight of the evidence.
“F. In overruling plaintiff’s motion for a new trial.
“Gr. In other rulings of the court as shown by the record.”

Under the first assignment of error the plaintiff claims the court erred in the admission of certain photographs allegedly showing the area where the collision occurred.

The record contains ample and credible testimony that the photographs offered in evidence fairly, accurately and correctly represent the area where the cause of action arose. Therefore, the court did not err in admitting the photographs in evidence.

Under this same assignment of error the plaintiff claims the court erred in admitting over his objection evidence pertaining to stop signs erected at streets intersecting with South State Street, other than the Pleasant Street intersection where the collision occurred.

At the time this cause of action arose, Section 6307-63, General Code, read, in part, as follows:

“(a) All state routes and all sections of streets and highways on which are operated street cars, trackless trolleys and other electric cars, or motor coaches for carrying passengers for hire along a fixed or regular route under authority granted by the municipal corporation in which such route lies, are hereby designated as through highways provided that stop signs shall be erected at all intersections with such through highways by the state highway department as to highways under its jurisdiction and by local authorities as to highways under their jurisdiction; provided, however, that where two or more through highways intersect and no traffic control signal is in operation stop signs shall be erected at one or more entrances thereto by the department or local authorities having jurisdiction. ’ ’

Section 6307-2, General Code, defines “through highways” as follows:

“Every highway or portion thereof at the entrance to which vehicular traffic from intersecting highways is required by law to stop before entering or crossing the same.”

The erection of stop signs is a prerequisite to establishing a through highway under the provisions of subdivision (a) of Section 6307-63, General Code.

The words, “provided that stop signs shall be erected at all intersections with such through highways,” as used in the first clause in Section 6307-63, General Code, impose a condition which must be met in the establishment of a through highway. Brown v. Franz, 84 Ohio App., 160, 82 N. E. (2d), 778.

The record discloses that the court admitted evidence over the objection of plaintiff that South State Street is a part of the regular bus route in the city of Marion, Ohio. The court further admitted evidence that Columbia Street, Bain Avenue, Gurley Avenue, St. James Street and, in fact, all streets south of Church Street intersecting South State Street are stop streets as to South State Street.

The admission of such evidence could not do other than confuse the members of the jury and create in their minds the inference that South State Street was a through highway. The admission of such testimony was error and prejudicial to the plaintiff.

The court finds no prejudicial error as set forth under assignments B and C.

Under assignment of error D, the plaintiff claims the court erred in his charge to the jury in giving to the jury the provisions of Section 6307-21, General Code, relating to the speed prima facie lawful- on through highways within municipalities and outside the business district.

After charging the jury as to the lawful speed on through highways within a municipality outside the business district, the court charged: “Now the other two speed sections are not applicable.”

Thus, charging the jury as to the lawful speed on through highways inferred application of this provision to the case at bar, and that a through highway was involved. This was clearly erroneous and prejudicial to the plaintiff.

The court finds no other prejudicial error referred to under assignment of error D.

There is ample credible evidence to support the verdict. Therefore, assignment of error designated E is without merit.

This court, finding error in the admission of evidence as set forth under plaintiff’s assignment of error designated A, and error in the court’s charge as set forth under assignment of error D, finds that the trial court erred in overruling plaintiff’s motion for a new trial.

An examination of the record setting forth the testimony complained of under assignment G shows that this testimony was offered and received without objection on the part of the plaintiff. Therefore, assignment of error designated G is without merit.

This court finds no prejudicial error in the general charge, as set forth in assignment of error G.

For the errors herein found occurring at the trial, the judgment of the court below is reversed, and this cause is remanded for a new trial and further proceedings according to law.

Judgment reversed.

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


author: Wiseman, P. J.

text:
    In re Henry: Henry v. Alvis, Warden.
    (No. 5055
    Decided February 8, 1954.)

      Mr. Edgar I. Shott, Jr., for petitioner.

      Mr. C. William O’Neill, attorney general, Mr. Thomas B. Lloyd and Mr. Earl N. Merwin, for respondent.
   Wiseman, P. J.

Petitioner, Clarence Henry, has invoked the original jurisdiction of this court by filing a petition in habeas corpus to obtain his release from incarceration in the Ohio Penitentiary to which he was sentenced after pleading guilty to an indictment charging him with taking indecent and improper liberties with the person of a child under the age of 16 years, contrary to the provisions of Section 12423-1, General Code (Section 2903.01, Revised Code).

The petitioner first entered a plea of “not guilty by reason of insanity.” The court committed him to Lima State Hospital for a period not to exceed 30 days for observation and examination under Section 13441-4, General Code (Section 2945.40, Revised Code). The superintendent of Lima State Hospital reported that the accused was legally sane. Upon being returned to Hamilton County, the accused, through his attorney, withdrew his former plea and entered a plea of guilty, which was accepted by the court. The court immediately sentenced him to the Ohio Penitentiary for the term of from one to 10 years.

Petitioner contends that the sentence was illegal and void on the ground that the sentencing court failed to comply with the provisions of Section 13451-20, General Code (Section 2947.25, Revised Code).

The pertinent part of this section provides:

“After conviction and before sentence, a trial court must refer for examination all persons convicted under Sections 12413, 12414, 12415, 12423-1, 13023 or 13043 of the General Code, to the department or to a state facility designated by the department, or to a psychopathic clinic approved by the department, or to three psychiatrists.”

It will be observed that the offense to which petitioner pleaded guilty is one of those enumerated in the above-mentioned statute. The petitioner contends that the provisions of this section are mandatory and that a noncompliance renders the sentence void. The state claims that there has been a substantial compliance by reason of the commitment to Lima State Hospital prior to conviction.

A reference under Section 13451-20, General Code (Section 2947.25, Revised Code), serves a different purpose than a commitment under Section 13441-4, General Code (Section 2945.40, Revised Code). Under the latter section the purpose is to ascertain whether the accused should be placed on trial, whereas under the former section the purpose is to require a psychiatric examination in order that the court may be advised what sentence to pronounce and to which institution the convicted person should be committed. Therefore, a commitment prior to conviction does not comply with the provisions of the section requiring a reference after conviction. The statute (Section 13451-20, General Code [Section 2947.25, Revised Code]), provides that the court “must refer for examination. ’ ’ In our opinion the provisions of this section are mandatory and the court was without jurisdiction to sentence the accused until after compliance with its provisions. It follows that the sentence is void and that the petitioner should be discharged.

The court orders Alvis, Warden, to discharge the petitioner and to deliver him to the custody of the sheriff of Hamilton County, who will return him to the Court of Common Pleas of that county for further proceedings according to law.

Judgment accordingly.

Miller and Hornbeck, JJ., concur.


author: Skeel, J.

text:
    The State, ex rel. Anshe Chesed Congregation, Appellee, v. Bruggemeier et al., Appellants.
    (No. 22771
    Decided October 19, 1953.)

      Messrs. Halle, Haber, Berick é McNulty, for appellee.

      Messrs. Green, Lausche & Wilmot and Mr. Perry L. Graham, for appellants.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment for the relator entered by the Common Pleas Court of Cuyahoga County. The action is one in mandamus. The relator is a nonprofit corporation organized for religious purposes and is generally known as the “Euclid Avenue Temple” now located at East 82nd Street and Euclid Avenue in the city of Cleveland, Ohio. The respondents are the elected councilmen and the Building Commission of the village of Beachwood in Cuyahoga County, Ohio. The relators are now the owners of a parcel of land located on the northerly side of Eairmount Boulevard in said village, containing about 31% acres of land, which was purchased for the purpose of building a place of worship for its members.

At the time the relator purchased said property, there was in full force and effect a zoning ordinance classifying the uses to which property in specified districts could be devoted. The district in which the relator’s land was located is zoned for single-family residences.

The zoning ordinance authorized the village inspector of buildings, with the consent of the council, to issue a special use permit in certain cases which include the erection of a church, within a residence zone, providing it would serve the public convenience and welfare and would not substantially and permanently injure the appropriate use of the neighboring property. A number of such permits have heretofore been granted by the council for golf ranges, schools, churches and the like.

In August 1951, three years after the purchase of the property, an application for a special permit was made, the plans of the proposed temple having previously been filed with the village. Upon final hearing the village council denied the application.

This action was then filed in the Common Pleas Court, seeking an order compelling the village to permit the relator to build its temple on the land purchased in the respondent’s village for that purpose. From the order of the Common Pleas Court directing the respondents to issue said building permit, this appeal was taken. The respondents claim the following errors:

“1. The trial court erred in rendering judgment, contrary to law, against the defendants-appellant on the petition of the plaintiff-appellee.
“2. The trial court erred in overruling the motion of defendants-appellant made at the close of all the evidence for a judgment in their favor. .
“3. The trial court erred in overruling the motion of the defendants-appellant for a new trial on the grounds therein set forth.
“4. The trial court erred in its findings of fact in that, to the extent that such findings are pertinent to the issues, they were not supported by any evidence.
“5.' The trial court erred in its findings of fact in that, to the extent that such findings are pertinent to the issues, they were not supported by the weight of the evidence.
6. The trial court erred in holding that the evidence showed an abuse of discretion on the part of defendants-appellant in the performance of the discretionary duty imposed upon them by the zoning ordinance pleaded in the petition.
“7. The trial court erred in its finding numbered ‘(20)’ and in basing its holding upon a view of the site and surrounding area, when no such view was presented during the trial and could only have been one extrajudicially made by the trial judge without the knowledge or consent of the defendants-appellant.
“8. The trial court erred in that its finding of an abuse of discretion on the part of the defendants-appellant is not supported by the evidence contained in the record.
“9. The trial court erred in that its decision is contrary to law.”

The trial court in entering judgment for the relator returned findings of fact and conclusions of law. The findings of fact are supported by credible evidence as is disclosed by the bill of exceptions, except as to finding No; 20 which in part must have been found upon a view of the territory. If it be true that the court considered as evidence what was observed upon view as the basis in part of finding of fact No. 20, which finding has to do with the character of the surrounding area, that is, that the area is in fact not rural in character but only at present sparsely built up as are many parts of adjoining suburbs, such conduct on the part of the court in ascertaining such facts from a view would not be prejudicial to the rights of respondent for the reason that such finding is not material to the legal questions here presented and at least in part is supported by the evidence.

Holding as we do that the findings of the court on questions of fact are supported by credible evidence and that such findings are not against the manifest weight of the evidence, the only question upon which this appeal can be grounded is whether or not the judgment is contrary to law when tested by the findings of fact.

The ordinance (1946-25, section 17, referred to above) under which relator claims the right to a permit to build the proposed temple or church reads as follows :

“Permit for the location of a ‘class U-5’ use in class U-l district may be given by the inspector of buildings by and with the consent of the council when such location will substantially serve the public convenience and welfare and will not substantially and permanently injure the appropriate use of neighboring property.”

Only two circumstances are provided as qualifying the relator’s right to build its temple in a U or class 1 district. First, that it substantially serve the public convenience and welfare, and, second, that it must not substantially and permanently injure the appropriate use of neighboring property. In other words, the zoning ordinance provides for the construction of churches in the residence districts of the village after the village council upon application determines the fact situation provided for by the zoning ordinance favorable to the applicant, that is, that the erection of such church will substantially serve the public convenience and welfare and its erection will not substantially and permanently injure the appropriate use of neighboring property.

The city council in dealing with the question of granting a special permit under section 17, supra, acts in a ministerial or administrative capacity. Its determination of facts are conclusive except where the conclusions are such as to show a clear abuse of discretion. An action in mandamus is the proper way to test such question. See State, ex rel. Vaad Hachinuch Hacharedi v. Baxter et al., Zoning Comm., 143 Ohio St., 221, 74 N. E. (2d), 242, paragraph two of the syllabus:

“In the absence of evidence of an abuse of discretion a writ of mandamus will not be issued to compel a municipal zoning commission to issue a permit to an owner of residence property authorizing its use for school purposes under a valid ordinance prohibiting such use unless in the judgment of the commission the public .convenience and welfare will be served and the appropriate use of neighboring property will not be substantially and permanently injured thereby.”

In Nectow v. City of Cambridge, 277 U. S., 183, 187, 72 L. Ed., 842, 48 S. Ct., 477, the court said:

“We quite agree with the opinion expressed below that a court should not set aside the determination of public officers in such a matter unless it is clear that their action ‘has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.’ ”

The finding of the council upon relator’s application is contained in a resolution which provides in substance, as set forth in a letter from the mayor of the village, that the building of the temple “would not serve the public convenience and welfare and would substantially and permanently injure the appropriate use of neighboring property as provided in section 17 of the zoning ordinance of the village of Beachwood. Such finding was based upon evidence brought before the council that a great majority of the congregation of the proposed church would be nonresidents of the village of Beachwood, and that the size of the congregation, exceeding by several times the population of the village, would be detrimental to the public safety, welfare and convenience of the village.”

The facts which the council considered as justifying the refusal of relator’s application for a permit are as follows:

The population of the village in 1952 was about 1,800 persons. The membership of Euclid Avenue Temple is 1,801 families which makes the total membership a little in excess of 5,000 persons, all but about two or three per cent of whom live outside Beachwood Village. Religious services are held for the congregation on Friday evening, Saturday morning and Sunday, morning, at which services the attendance seldom exceeds 400 in the Sunday School or children’s department on Saturday and Sunday and not over 350 at any of the adult meetings. The weekday activities of sewing circles and club meetings are not attended in large numbers and in no case to exceed 200. Twice, or at the most three times a year, on special holy days as many as 2,500 are in attendance divided into two separate services on each day.

The temple, with a' front dimension of 370 feet and a total depth of 400 feet, is to be of fireproof construction all on the ground level and consisting of a main sanctuary designed for 1,000 permanent seats, a social hall large enough to seat 1,000 people, a junior temple with a capacity of 750, a library, executive offices, schoolrooms and other rooms providing necessary facilities generally found in a church or temple, including a residence for the caretaker. The temple is to front on Fairmount Boulevard with a setback of 300 feet. It will be located 164 feet east of the west property line of relator’s 31V2 acres of land, which tract has 600 feet front on Fairmount Boulevard and is 2,300 feet deep, with extra frontage on Fairmount Boulevard to the west, of 120 feet by 175 feet. The easterly side yard is 80 feet measured from the most easterly wings of the building to the easterly property line. The entrance driveway leads from Fairmount Boulevard, a two-lane highway, the eastbound lane of which is in Shaker Heights and the westbound lane in Beachwood Village, which driveway of the temple leads to an off-street parking area large enough to adequately take care of general needs, that is, space to park between 300 and 350 automobiles with room for expansion.

There are no cutover facilities from the east to the west roadways of Fairmount Boulevard at the entrance and exit driveways of the proposed temple. The nearest cutover to the west is at Edgewood Road some 300 feet to the west of the entrance driveway, and the next cutover is 500 or 600 feet east of the exit driveway. The police department of the village consists of five men, one of whom is designated as the chief of police, who is also the chief of the voluntary fire department. The equipment of the fire department consists of a secondhand pumper. The fire department is supported in case of emergencies by a contract with Shaker Heights to send its equipment if not in use at the time of such emergency.

An examination of the record shows conclusively that the basic reason for refusing relator’s application for a special permit to, build its temple in the village was the size of relator’s congregation and the fact that not more than twenty families belonging to such congregation reside in the village.

It must be observed that a village, which is contiguous to and a part of a great metropolitan area from which it derives its very existence, cannot arbitrarily refuse within reasonable limits to contribute its share to the general welfare of the community as a whole.

The membership of a religious institution is not confined within municipal boundaries. People seek out the church of their choice without concern as to the political subdivision in which it may be located. From the evidence as to the present facilities for religious services in the village, there can be no doubt that a great majority of the 1,800 residents of Beachwood attend devotional services outside its physical boundaries. The ground for refusing the permit, that the great majority of relator’s members live outside the village of Beachwood, is without substance in fact or law.

Another ground for refusing the permit, as stated in the resolution, was that it “would be detrimental to the public safety, welfare and convenience of the village.” This language is not found in section 17 of the ordinance (supra). The words used in the ordinance are affirmative in character. They are “* * * will substantially serve the public convenience and welfare * * What the council in passing the zoning ordinance had in mind in providing the conditions under which a special permit would be issued, was the kind or character of the service to be rendered or conducted in the building or on the property, and the word “public” referred to people generally and not just to the citizens of Beachwood. Public safety, in the sense of traffic control, is not mentioned in the ordinance. Yet ntuch consideration was given to street congestion although there is little or no credible evidence that congestion will result from the normal activities of the relator. Some concern is also presented with regard to the financial burden which will fall upon the village because of the building and operation of relator’s temple, particularly in the safety department, such financial burden being increased by the fact that the property involved will be removed from the tax duplicate. It has long been the public policy of the state of Ohio that property entirely devoted to religious, charitable or educational purposes shall be exempt from the ordinary burdens of taxation. This rulé of law, which is universally recognized, is a public recognition of the importance of these voluntary organizations to the well being of our community life. No municipal corporation can justly refuse a permit to build a church only- because the property will no longer be subject to taxation.

It is also said in the resolution that the templé of the relator will not serve the public welfare. How it is possible to hold that a religious institution which has for over 100 years been one of the outstanding centers of religious education in greater Cleveland, devoting its services not only to the devotional and religious needs of its members but in a broad sense contributing to the welfare of all the people of the community through its interdenominational activities, does not serve the public welfare is hard to understand. Every religious institution contributes to the common good or general welfare of the wholé community, even though it be attended by a particular group or is denominational in character. A democratic society, where every man must unselfishly devote some part of his energy in the interest of good government, cannot succeed without the moral and spiritual influence of the church.

The place of the church is to be found in that parfiof the community where the people live. It is to be associated with the home. Its influence is concerned with family life. It is an institution to which we look for leadership in furtherance of the brotherhood of man, in molding the moral progress of our children and sustaining and giving strength to purity of our family life. To hold that a church is detrimental to the welfare of the people is in direct contradiction of historical truths and evidences a failure to recognize basic fundamentals of a democratic society.

In the case of State, ex rel. Synod of Ohio of United Lutheran Church, v. Joseph, 139 Ohio St., 229, 39 N. E. (2d), 515, 138 A. L. R., 1274, paragraphs two, three and four of the syllabus provide:

“2. A municipal zoning ordinance which provides that ‘in class I districts, single family dwelling houses only * * * shall be permitted * * * provided that # * churches, schools, public libraries * * * may be erected and used within such district by special permit granted by the zoning commission and the village council’ permits churches to be erected in class I districts but subject to the imposition of reasonable restrictions.
‘ ‘ 3. When under such ordinance the village commissioners sit in joint session with the zoning commission to pass upon applications for special permits, they are acting in an administrative capacity only.
“4. Refusal of a special permit to erect a church in a residential district in pursuance of an administrative policy that no church shall be erected in such district while property in the business district is still available, bears no substantial relation to the public health, safety, morals or general welfare, and amounts to an unreasonable and arbitrary interference with the rights of private property guaranteed by Sections 1 and 19, Article I of the Ohio Constitution, and Section 1 of the Fourteenth Amendment to the federal Constitution.”

And on page 243 the court said:

“We have been unable to find any reported Ohio case, dealing directly with the exclusion of these humanitarian noncommercial uses from a residential district. In other jurisdictions such attempted exclusions by the zoning authorities have generally not survived court review.” (Then follows many supporting authorities.)

And on page 244 the court said:

“The infrequency of the attempts of municipal authorities to prevent the erection of churches in residential districts is attested to by the paucity of reported cases dealing with this precise question. We have found but three: Westminster Church v. Building Inspector of Omaha, 108 Neb., 859, 189 N. W., 617; State, ex rel. Howell, v. Meador, Mayor, 109 W. Va., 368, 154 S. E., 876; State, ex rel. Roman Catholic Bishop of Reno, v. Hill, 59 Nev., 231, 90 P. (2d), 217. In all of these the decision was in favor of the church.”

One other provision of section 17, supra, of the zoning ordinance is that the building must “not substantially and permanently injure the appropriate use of neighboring property.” The only credible evidence introduced on this part of the case was to the effect that neighboring property will not be injured by the building of relator’s temple.

We find that upon a complete analysis of the evidence, and in the light of the surrounding circumstances, the action of the council in refusing a special permit constituted an abuse of its discretion with respect to an administrative act and the court was therefore required to order the respondent to issue a special permit to enable relator to build its temple.

We therefore affirm the judgment of the trial court.

Judgment affirmed.

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


author: Hunsicker, J.

text:
    Mills, Appellee, v. City of Cleveland, Appellant.
    (No. 22969
    Decided February 15, 1954.)

      Messrs. Woodle ds Wachtel, for appellee.
    ■ Mr. Robert F. Mooney and Mr. Patrich F. Boyle, for appellant.
   Hunsicker, J.

This is an appeal on questions of law from the Municipal Court of Cleveland, Ohio.

On June 15,1950, Anna H. Mills, the plaintiff below, appellee herein, was a passenger on a bus operated by the city of Cleveland, the defendant below, appellant herein. Mrs. Mills indicated that she wished to leave the bus near the intersection of Ontario Street and Prospect Avenue, a place where such bus regularly discharged passengers. The bus driver stopped the bus on Ontario Street, several feet from the east or right-hand curb. As Mrs. Mills stepped from the bus, she fell and sustained certain bodily injuries.

In an amended petition, filed by Mrs. Mills, she claimed that the city was guilty of negligence in the following respects :

“1. In failing to provide for the plaintiff a safe place at which to alight from said vehicle.
“2. In failing to bring the bus to a stop at the curb at the place provided for that purpose by the defendant.
“3. In causing and permitting the bus to stop near the middle of Ontario Street, a distance of several feet from the easterly curb of said thoroughfare.
“4. In failing to warn the plaintiff and to caution her with reference to the unusual height from the lowest step of the bus to the street level.
“5. In causing said bus to move or jerk at the time the plaintiff was alighting from the same.
“6. In failing to maintain said bus stationary at a time when the doors had been opened for passengers to alight, and when plaintiff was alighting from the same. ’ ’

The trial court withdrew from the consideration of the jury specification number 2, and submitted the other specifications of negligence to the jury.

The trial court gave to the jury, at the request of the plaintiff, the following instructions before argument:

Plaintiff’s request No. 1:

“Section 2403-14 of the Municipal Code of Cleveland, in effect on June 15, 1950, provided:
“ ‘No person shall stand or park a vehicle or trackless trolley in a roadway other than parallel with the edge of the roadway headed in the direction of traffic, and with the right wheels of the vehicle not more than one foot from the curb or the edge of the roadway, unless it is impossible to approach so close to the curb, and in such case the stop shall be as close to the curb as possible and only for the time necessary to discharge and receive passengers, or to load or unload merchandise, except upon those streets which have been marked or signed for angle parking, vehicles shall be parked at an angle to the curb indicated by such mark or sign.’ ”

Plaintiff’s request No. 3:

“If you find from a preponderance of the evidence in the case that the bus, upon which the plaintiff was a passenger, stopped to discharge passengers at the intersection of Ontario Street and Prospect Avenue at a distance of more than one foot from the easterly curb of Ontario Street, and if you further find that it was not impossible for the bus to stop in the loading and unloading zone provided therefor on Ontario Street immediately north of Prospect Avenue, then and in that event you must find that the operator of the bus was guilty of negligence as a matter of law in so doing.”

Plaintiff’s request No. 4:

“If you find that the operator of the bus, upon which the plaintiff was a passenger, brought the same to a stop at a distance of more than one foot from the easterly curb of Ontario Street, and if you further find that it was not impossible for the bus to stop in the loading and unloading zone provided therefor on Ontario Street immediately north of Prospect Avenue, and if you further find by a preponderance of the evidence that the location at which the bus was brought to a stop caused or contributed to cause the injury suf-. fered by the plaintiff, then your verdict must be for the plaintiff.”

In the course of the general charge to the jury, the trial court said:

“Now there are various ordinances that have been in effect and we read them to you before. You will have them in your jury room and if it applies to this case, you apply it. 1 say to you that the violation of any of these ordinances or statutes constitutes a prima facie case of negligence. If you find by a preponderance of the evidence that the defendant violated such statutes or ordinances and that such violation was the proximate cause of the accident, then you are to find for the plaintiff.”

The city of Cleveland, after the instructions by the court, submitted to the jury two special interrogatories, as follows:

“1. Do you find from the evidence in this ease that the defendant was negligent?”
The jury answered this interrogatory in the affirmative.
“2. If your answer to interrogatory No. 1 be in the affirmative, please state below in what respect or respects you find that the defendant was negligent.”

The jury answered this interrogatory as follows:

“We the jury deciding this verdict feel the company was negligent for failing to place said bus at curb as required in paragraph No. 3 (No. A17673 in amended petition).” (sic)

The jury returned a verdict for Mrs. Mills in the sum of $2,500. The city of Cleveland then moved for judgment notwithstanding the verdict, or for judgment in accord with the special finding of the jury. This motion was overruled and judgment entered on the verdict.

The city of Cleveland thereafter perfected an appeal to this court from the judgment so entered, alleging: “Error of the trial court prejudicial to the rights of the defendant in overruling the defendant’s motion for judgment in its favor and in entering judgment on the verdict of the jury in favor of the plaintiff.”

In Masters v. New York Central Rd. Co., 147 Ohio St., 293, 70 N. E., 898 (certiorari denied, 331 U. S., 836, 67 S. Ct., 1519, 91 L. Ed., 1848, rehearing denied, 332 U. S., 786, 68 S. Ct., 33, 92 L. Ed., 369), the court said in paragraph two of the syllabus :

“2. An interrogatory requiring the jury in a per-, sonal injury action, in the event the jury finds the defendant guilty of negligence, to specify the act or acts of negligence is a proper inquiry; and the failure or inability of the jury to find the existence of a claimed act of negligence, in answer to interrogatories so submitted, is equivalent to a finding on such claim of negligence against the party having the burden to establish it.” See, also: Miljak v. Boyle, 93 Ohio App., 169, 112 N. E. (2d), 340.

The jury thus determined, notwithstanding the apparent inconsistency of the charge of the court (not, however, unfavorable to the plaintiff), that the only act of negligence on the part of the city was “In causing and permitting the bus to stop near the middle of Ontario Street, a distance of several feet from the easterly curb of said thoroughfare. ’ ’

The jury so found, because the trial judge told the jury that the city had a duty to discharge Mrs. Mills at a point not more than-one foot from the curb, unless it was impossible for the bus to get that close to the curb. If this was the duty the city owed Mrs. Mills, it became a duty only because the ordinance placed that requirement upon the city, for otherwise the general law on that subject defines the duty which the city transit system owed to her, which is to use the highest degree of care to provide Mrs. Mills a reasonably safe place to get off the bus. Baier v. Cleveland Ry. Co., 132 Ohio St., 388, 8 N. E. (2d), 1; Reining, Admx., v. Northern Ohio Traction & Light Co., 107 Ohio St., 528, 140 N. E., 84; Mahoning & Shenango Ry. & Light Co. v. Leedy, 104 Ohio St., 487,136 N. E., 198.

In the case of Baier v. Cleveland Ry. Co., supra, at p. 391, the court said:

“To establish actionable negligence it is fundamental that the one seeking recovery must show the existence of a duty on the part of the one sued not to subject the former to the injury complained of, a failure to observe such duty, and an injury resulting proximately therefrom. ”

It is well established that the “violation of a positive, specific and affirmative duty enjoined by statute or ordinance is negligence per se * * Patton, Admx., v. Pennsylvania Rd. Co., 136 Ohio St., 159, 24 N. E. (2d), 597.

However, where the negligence complained of is the violation of a duty enjoined by statute or ordinance, the plaintiff must show a causal connection between the injury received and the violation of the statute or ordinance. Claypool v. Mohawk Motor, Inc., 155 Ohio St., 8, at p. 11, 97 N. E. (2d), 32.

Ohio thus follows the general rule that, where the act of negligence relied upon in an action to recover for claimed injuries consists of a violation of a statute or ordinance, such negligence is without legal consequence unless it is the proximate cause of the injury. Kelly v. Hathaway Bakeries, 312 Mass., 297, 44 N. E. (2d), 654; Richards v. Chicago, Rock Island & Pacific Ry. Co., 157 Kan., 378, 139 P. (2d), 427; Baecher v. McFarland, 183 Va., 1, 31 S. E. (2d), 279; 1 Shearman & Redfield on Negligence (Rev. Ed.), Section 17, at p. 39, and authorities there cited.

Was the violation of the ordinance in the instant case the proximate cause of the injury which Mrs. Mills claimed she received when she got off the bus Í

The ordinance herein is, among other things, designed for the purpose of preventing traffic congestion and to provide for the free and safe flow of traffic upOxi the streets of the city of Cleveland. The ordinance was not enacted for the purpose of providing a passenger the right to step onto the curb when leaving the bus, since, by its terms, it permits a 'discharge of passengers at a point more than one foot from the curb when it is impossible to get that close, and, too, it also permits angle parking upon certain streets.

It is thus seen that, under the ordinance, a bus may discharge passengers at other points than one foot from the curb. The duty, then, which the city transit „ system owed to Mrs. Mills, remained that of exercising the highest degree of care to provide her a reasonably safe place to get off the bus, whether it was one foot or more or less from the curb.

In the case of Rainey v. Cincinnati St. Ry. Co., 93 Ohio App., 376, 113 N. E. (2d), 665, a case very similar to the one now before us, the court, at pp. 385, 386, said:

“ It is urged that the failure to stop within 12 inches of the curb was a violation of the ordinance and that that constituted negligence. We fail to see where that had anything to do with the plaintiff’s injuries or that it constituted a violation of any duty owing to her by the defendant.”

It must be remembered that the jury, in the instant case, found that the city of Cleveland was not guilty of the claimed acts of negligence set out in the specifications of negligence numbered 1, 4, 5 and 6. Number 1 of such specifications claimed that the city was guilty of negligence “In failing to provide for the plaintiff a safe place at which to alight from said vehicle. ’ ’

Where, then, under the reply by the jury to the interrogatory, is the proximate cause of the injury which Mrs. Mills sustained, since the jury in effect found that she was provided a safe place to alight from the bus.

It is true that Mrs. Mills claimed that the distance from the lowest bus step to the street level was excessive, but the jury found adversely to her on this specification of negligence also, and, consequently, such complaint cannot be asserted as an act of negligence herein.

All of the credible evidence in the instant case tended to show that, at the place where the bus stopped to discharge Mrs. Mills, the street was level, it was at noon on a bright summer day, and the bus did not move or jerk as she got off.

Generally, what constitutes the proximate cause of an injury is a question for the jury; but where the facts, as found by the jury in the instant case, are not in dispute, it becomes a question of law for the court. Cobb, Jr., Admr., v. Bushey, 152 Ohio St., 336, 89 N. E. (2d), 466.

The failure of the operator of the bus in this case to comply with the ordinance was not the proximate cause of the injuries sustained by Mrs. Mills. In other words, no legal consequence followed in this case from such violation of the ordinance.

Since the jury found that the only act of negligence was in stopping the bus “near the middle of Ontario Street, a distance of several feet from the easterly curb,” and such place was not unsafe, the trial judge should have granted the motion of the city of Cleveland for judgment notwithstanding the verdict of the jury.

The judgment should be reversed, and final judgment awarded the city of Cleveland.

Judgment reversed.

Doyle, P. J., and G-rieeith, J., concur.

Doyle, P. J., and Htjnsicker, J., of the Ninth Appellate District, and Grieeith, J., of the Seventh Appellate District, sitting by designation in the Eighth Appellate District.


author: Griffith, P. J.

text:
    The State of Ohio, Appellee, v. Smith et al., Appellants.

      (No. 535
    Decided April 21, 1954.)

      Mr. Oliver R. Marshall, prosecuting attorney, for appellee.

      Mr. E. K. Giblin and Mr. J. M. Parks, for appellants.
   Griffith, P. J.

The 30 defendants who were convicted in this case all stand in the same position as Woodrow Smith, so, for the purpose of this opinion, we shall use the name, Woodrow Smith, as representing the composite body of all.

The charge comprised in the affidavit contains two counts.

“1. That Smith and other persons, being more than three in number, assembled; did unlawfully and riotously trespass upon the private property of the Industrial Rayon Corporation and interfere with the personal and private rights of said company contrary to Section 12809, General Code.
“2. That Woodrow Smith being one of more than three persons assembled together to do an unlawful act with force and violence did, unlawfully after proclamation was made, continue together with said other persons contrary to Section 12809, General Code. ’ ’

Section 12809, General Code, reads, in part, as follows :

“Whoever, being one of three or more persons who assemble together to do an unlawful act with force and violence, or, who being assembled, do such unlawful-act or agree with each other so to do and make preparation or movement therefor, or continue together after proclamation is made as provided in section twelve thousand eight hundred and eleven, or is prevented from so being made by rioters, is guilty of riot * # *

The above section defines riot. 6 Ohio Jurisprudence, 38, Section 2, states that rioting is an act constituting a breach of the peace.

To lay the foundation for the issuance of a proclamation, as provided in Section 12811, General Code, the following requisite must be present: That three or more persons be unlawfully or riotously assembled.

As the sheriff and his deputies arrived at the scene of the assemblage, were these defendants unlawfully or riotously assembled? What were they doing in violation of law? They were in violation of a Common Pleas Court injunction which had been issued the day before, but that is an offense entirely separate and distinct from the crime of rioting.

The record does not disclose that they assembled there that morning with the intent and for the purpose of doing an unlawful act or, after being assembled, that they agreed to do any unlawful act with force and violence, or make any preparation or movement for so doing.

After deputy sheriff Evans issued the proclamation, they continued together and were then arrested.

The record discloses that sheriff Cage said that there was a court order, and they went there to enforce it, and that he stated further:

I don’t know what they were arrested for. I didn’t make any arrests. My deputies had instructions that if they failed to leave or interfere with anyone wishing to enter or leave that plant or they returned after they once left, I want them placed under — and I presume that is what happened. ’ ’
“Q. Well you went down there to make these arrests in that fashion this morning didn’t you? A. I certainly did.”
It is disclosed further by the record that Cage testified: “I told them that we were there to enforce a court injunction.”

Mr. Palmer testified that he wanted the road open so people could go to work; and that he did not see any uproarious conduct, slogans, or hear any shouting, profanity or anything of that sort.

Deputy sheriff Evans testified: “I told what they were doing; that an assembly like that constituted a riot and violation of a court injunction that had been issued on a previous day. ‘Disperse and go home,’ that’s about all I said at the time.”

The state contends that the fact these defendants were arrested at the place of the barricade is evidence against them; that when the state proved the presence of these defendants at the scene, it made a complete prima facie case against them and, thereupon, the defendants were privileged to show that their presence was for a purpose other than participating therein; that the burden was then upon the defendants to explain the prima facie case against them; and that, in the absence of an explanation, the prima facie case stands, and the verdict of guilty is proper.

We believe there was no foundation for the issuance of a proclamation. And there being no foundation for such proclamation in law, no proclamation was ever uttered and, therefore, arresting them for not dispersing in accordance with the proclamation was not justified.

The fact that the sheriff could have arrested them for contempt does not destroy the right to arrest them for a riot if such an offense has been made out. They could be guilty of both. A conviction on an indictment will not purge a contempt, nor will a conviction for a contempt bar an indictment. Yates v. Lansing, 9 Johnson (N. Y.), 395, 417.

The state contends:

“It is not necessary by the laws of this country to show who committed the unlawful act. The courts of this country have held that people unlawfully assembled and assembled while unlawful acts are committed are responsible each one for the unlawful act so committed.”

The record is barren of any evidence that these defendants assembled together to do any unlawful act with force and violence or, being assembled, agreed with each other so to do. They did continue together after the proclamation was issued.

The trial court stated in its holding:

“That the several overt acts of violence and property destruction earlier this week had been committed by these people around the barricade, or their sympathizers and confederates, might reasonably be inferred, and a repetition reasonably expected from the existing circumstances. The barricade, fires, strewn glass and nails, were they not unlawful acts? Was not the assembly in itself a brazen violation of the law in view of an injunction against it?”

Again the court stated :

“The fact that these defendants were arrested at the scene of the crime in itself is evidence against them. If they were there other than participants having nothing to conceal they, like Cunneen, were free to testify and explain this presence.”

The prosecution has the burden of proving every essential element of the crime of riot beyond a reasonable doubt. Consequently, the averment of unlawful assemblage, where this is a constituent part of the offense of riot, as well as that of subsequent riotous acts, must be proved before the defendants can be convicted of riot.

We conclude that the evidence in this case is insufficient to hold the defendants on either of the two counts embraced in the affidavit. Judgment reversed and defendants discharged.

Judgment reversed.

Phillips and Nichols, JJ., concur.


text:
    The State, ex rel. Haffner, v. Green et al. The State, ex rel. Hinkle, v. Green et al.
    (Nos. 22983 and 22984
    Decided September 21, 1953.)

      Messrs. Berger, Kirschenbaum, Friedman & Haffner, for relators.

      Mr. C. William O’Neill, attorney general, and Mr. Joseph 8. Gill, for respondents.
   Per Curiam.

These cases in mandamus are filed as original actions in this court, seeking orders to compel the election board of this county to place the names of the respective relators on the primary ballot as candidates for council in their respective wards.

There is no dispute about the facts. The final day for filing nominating petitions for the office of councilman was August 20, 1953, which was the 40th day before the day of the primary elections which is to be the 29th day of September 1953. It is admitted that such nominating petitions were filed on August 20, 1953, but the time they were offered, received and marked “filed” by the election board was after 6,:30 p. m. of that day.

It is the claim of respondents that by reason of Section 4785-92, General Code, effective January 1, 1952, the board of elections is without authority to receive said petitions of determine the sufficiency of the number of electors signing same, and, if sufficient, to order the candidates ’ names printed on the ballot, since the petitions were not filed until after 6:30 p. m., on the 40th day prior to the primary election. It is the claim of relators that, under section 8 of the Cleveland charter, which fixes the date for filing primary petitions as 40 days from the date of the primary election without specifying an hour by which filing must be made, their right to file said petitions is continuous until midnight of such date.

The Constitution of Ohio, Section 7 of Article XVIII reads:

‘ ‘ Section 7. Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.”

The city of Cleveland is a charter city, as provided by the Constitution. Its charter, in Section 8, in part, provides:

‘ ‘ All separate papers comprising a nominating petition shall be assembled and filed with the election authorities as one instrument at least forty days prior to the date of the primary election * * *.”

In the case of State, ex rel. Stanley, v. Bernon et al., Bd. of Elections of Cuyahoga County, 127 Ohio St., 204, 187 N. E., 733, paragraph three of the syllabus provides:

“Under sections 3 and 7 of Article XVIII of the Constitution of Ohio, municipalities have authority to provide by charter for the nomination of their elective officers.”

See, also, State, ex rel. Hubbell, v. Zaller et al., Bd. of Election of Cuyahoga County, 136 Ohio St., 19, at page 24, 22 N. E. (2d), 993.

Since the charter of the city of Cleveland does not fix the time of day of the fortieth day before which, or by the time of which nominating petitions must be filed, a candidate has until midnight of such day within which to file nominating petitions under the charter.

The Supreme Court of Ohio, in the case of State, ex rel. Jones, v. Board of Deputy State Supervisors and Inspectors of Elections of Montgomery County, 93 Ohio St., 14, 112 N. E., 136, in paragraph one of syllabus held :

“Under the provisions of Section 5004, General Code, the period for filing nominating petitions does not expire until the end of the sixtieth day previous to the day of election, and it is the duty of the board of deputy state supervisors of elections to provide opportunity for the presentation of such petitions up to midnight of that da;-.”

That case was concerned with the interpretation or construction of Section 5004, General Code, as it read prior to 1931, wherein no time of day was specified within which nominating petitions were to be filed and which, at that time, was the same as the Cleveland charter is now on this subject.

The rules of construction of a city charter are identical with those applicable to state statutes.

. In State, ex rel. Mihlbaugh, v. Bogart, 73 Ohio App., 47, 53 N. E. (2d), 75, paragraph one of syllabus, provides :

“The identical rules of law applicable to the construction of statutes are applicable to the construction of municipal charters.”

For the foregoing reasons, we are constrained to hold that relators are entitled to writs as prayed for.

Writs allowed.

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


text:
    Roderick et al., Exrs., Appellees, v. Fisher et al., Appellees; Ready et al., Appellants.
    (No. 5021
    Decided March 9, 1954.)

      Mr. A. Glenn McClelland, for appellees Sam W. Roderick and R. Lee Asbury, executors.

      Mr. John Benson, for appellee Rose M. Fisher. Messrs. Connor & Connor, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law from the judgment of the Probate Court of Franklin County entered in an action to construe the will of decedent, Herbert H. Fisher, and for a declaratory judgment.

The essential findings of fact by the trial court are as follows:

The decedent, Herbert H. Fisher, executed his will on January 17,1950, and died on October 26,1952. His will was admitted to probate on November 14, 1952, and on the same day letters testamentary were issued by the Probate Court of Franklin County to Sam W. Roderick and R. Lee Asbury as coexecutors of such will. Rose M. Fisher is the surviving spouse and the sole heir at law of the testator. Item II of the will provides as follows:

“I give and devise my undivided one-half interest in our home property located at 71 Woodland Avenue, Columbus, Ohio, to my wife, Rose M. Fisher, to be hers absolutely and in fee simple.”

In item IY of said will the testator devised the rest, residue and remainder of his property, real, personal or of a mixed nature, in trust for the support and maintenance of his wife for life, and at her death to be distributed to certain named residuary legatees. During his lifetime Herbert H. Fisher and Rose M. Fisher each owned an undivided one-half interest in the real property known and referred to as 71 Woodland Avenue, Columbus, Ohio. On August 28, 1951, the Probate Court of Franklin County appointed R. Lee Asbury as guardian for Herbert H. Fisher, on the ground of physical incompetency, to which Fisher gave his written consent. The guardi- a filed an action in the Probate Court of Franklin County to sell the real estate known as 71 Woodland Avenue, joining as defendants Rose M. Fisher and Herbert H. Fisher. Rose M. Fisher waived service of summons and entered her appearance and consented to and joined in the sale of such property. Herbert H. Fisher was duly served with summons and was properly before the court, and in fact was consulted and agreed to the sale of the property. On May 19, 1952, the guardian sold the property under order of court and received the proceeds thereof. The guardian distributed one-half of the net proceeds to Rose M. Fisher and retained the other one-half of the proceeds as an asset of the guardianship. A small portion of the net proceeds in the guardianship was used for the support of the ward, and, at his death, the balance of said proceeds amounting to $7,271.80 was turned over to the executors and as such is readily identifiable as the proceeds of the sale of the real property. Rose M. Fisher, as surviving spouse, elected to take under the will.

Under the facts found, the widow, Rose M. Fisher, contends that the $7,271.80 turned over to the executors by the guardian, and being readily identifiable as the remaining proceeds of the sale of the real property, passed to her under item II of the will, to the exclusion of the provisions in item IV. The residuary legatees contend that there was a revocation or ademption of item II, by virtue of the sale of the real property, and that, therefore, the $7,271.80 becomes a part of the residuary estate under item IV.

The Probate Court found that the sale of the decedent’s interest in the property known as 71 Woodland Avenue did not operate as an ademption and did not result in a revocation of item II of the will.

The only assignment of error is that the court below erred in the aforesaid finding.

The factual situation is unusual and the legal question presented is one of first impression in Ohio. Counsel have filed excellent briefs and the authorities cited from other jurisdictions are helpful in determining the question presented.

The courts in the main have adopted either the “identity theory” or the “intention theory.” The “identity theory” is defined in 28 R. C. L., 345, Section 341, as follows:

“If the identical thing is not in existence, or has been disposed of so that it does not form a part of testator’s estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee’s rights are gone. The rule is universal that in order to make a specific legacy effective the property bequeathed must be in existence and owned by the testator at the time of his death, and the nonexistence of the property at the time of the death of testator which has been specifically bequeathed by will is the familiar and almost typical form of ademption.”

A good explanation of the “intention theory” is given by the court in Wibnerton v. Wibnerton, 176 F., 896, as follows:

‘ ‘ The real question is whether, all things considered, the testator’s testamentary disposition did, or did not, remain, with reference to the particular thing embodied in the specific bequest or its proceeds, the same as it was the last moment that he was able to exercise a testamentary disposition. In that way, and in that way only, we think, can the right of a man to dispose of his property according to his own wishes, exempt from interference, caprice or interest of others, be fully carried out. In that way only can his intention, as embodied in his will, be truly administered.”

We question whether it is necessary in the instant case to adopt and apply either theory to the exclusion of the other. The case law in Ohio does not indicate that the courts of the state have favored one theory over another. Under a given factual situation the intention of the testator may be the controlling factor, and under another state of facts the application of the identity theory may be favored and sufficient for a determination without striving to ascertain the intention of the testator. It is interesting to note also that in 4 Page on Wills (Lifetime Ed.), 382, Section 1527, the author in discussing the modern theory states:

“For these reasons, it is now held that the sale, destruction, or collection, of the bequest or devise, adeems it without regard to the actual intention of the testator. This is justified, in part, because of the confusion which would arise in attempting to determine the intention of the testator; and in part, because, with the sale, collection, and the like of the bequest, there is nothing in existence which conforms to the gift in the will. ’ ’

In Ohio, without question, when a testator wholly divests himself of the property devised in a will, revocation of the devise takes place. Section 10504-51, General Code (Section 2107.36, Revised Code); Lewis, Admr., v. Thompson, 142 Ohio St., 338, 52 N. E. (2d), 331. If the testator in the instant case had not been under guardianship and had sold the property, such sale would have operated as a revocation of the devise, since at his death the identical property was not owned by the testator.

We do not find that there was a revocation under the statute. There is no statutory provision covering this situation.

Was there an ademption of the devise? The terms, “revocation” and “ademption,” are sometimes used interchangeably, but there is a distinction. 4 Page on Wills (Lifetime Ed.), 359, Section 1514.

In 41 Ohio Jurisprudence, 954, Section 836, it is stated:

“Ademption is the extinction or withholding of a legacy in consequence of some act of the testator.
“There are two classes of ademption: (1) Ademption by the loss or destruction of the subject-matter of the legacy or devise; and (2) ademption by satisfaction of the bequest. Prom the very nature of the first class, it can apply only to specific legacies or devises, while the second applies only to general legacies. * * *
‘ ‘ Ademption by satisfaction is sometimes spoken of as satisfaction of legacies. Whether there is an ademption rests wholly upon the intention of the testator.”

Also, Section 837, ibid., states:

“Ademption is sometimes spoken of by the courts as if it were a form of revocation. * * *
“But there is a distinction between the two terms. Ademption by satisfaction resembles revocation in that the testator intends such satisfaction to terminate the interest of the legatee under the will. Revocation, however, is made only in accordance with statute, while ademption is not. ’ ’

in Section 838, ibid., the general rule is stated:

“It may be stated as a general rule that the disposal, loss, distribution, or extinction of the subject matter of a specific legacy, adeems the legacy.”

There is a footnote to the last quotation, as follows:

“As to ademption of specific devise or bequest by guardian or conservator of incompetent testator, see annotation in 30 A. L. R., 676.”

An ademption is largely a matter of intention. Ellard, Exr., v. Ferris, Exr., 91 Ohio St., 339, 348, 110 N. E., 476, L. R. A. 1916C, 613.

What effect does the guardianship have on the determination of this question? The law applicable to an act of a testator who is competent to act is in some respects helpful but not controlling in a situation where the testator was incompetent and the act was done by the guardian of the testator. In the instant case the guardian was appointed on the ground of physical disability or infirmity of the ward with the consent of the ward as provided in Section 10507-2, General Code (Section 2111.02, Revised Code).

The term, “incompetent,” is used with respect to the ward, but it is clear that, in this ease, it does not connote mental incompetency. In other words, the presumption obtains that the ward was mentally competent to the date of his death. A guardian of a physical incompetent has the same powers and duties as a guardian of a mental incompetent. The sale of the real estate by the guardian was made in accordance with the statutory provisions and under the orders of the Probate Court.

The ward was made a party to the suit as the statute requires and he answered by guardian ad litem. The power of the guardian to convert real property into money is limited by statute. Section 10510-6, General Code (Section 2127.05, Revised Code). In the case at bar the greater portion of the proceeds derived from the sale remained unused at the time of the death of the ward. The power of the guardian terminated upon the death of the ward. The guardian was required to and did turn the money over to the executors. Should this money be regarded as real property or personalty? In 25 American Jurisprudence, 89, Section 144, the general rule with respect to infants and lunatics is stated that the proceeds of the sale remain realty. See, also, 19 American Jurisprudence, 19, Section 23. In 18 Corpus Juris Secundum, 70, Section 34, it is stated as the general rule that the proceeds of the sale of a lunatic’s real estate are real estate. In 18 Corpus Juris Secundum, 74, Section 40, the general rule is stated:

‘ ‘ Ordinarily conversion of realty into personalty or personalty into realty results in intestate distribution of the property in its converted form, although in the case of infants or insane persons the property usually passes in its original, and not in its converted form. ’ ’

In 30 A. L. R., 673, is reported the case of In re Estate of Cooper, 95 N. J. Eq., 210, 123 A., 45, which held:

‘ ‘ A committee of a lunatic is a mere conservator of his ward’s estate, and his possession of that estate vests him with no power, either intentionally or unintentionally, to change his ward’s duly expressed purposes respecting the distribution of his estate after his death.”

At the end of the opinion as reported in 30 A. L. R. on page 676, there appears an extended annotation on the subject, “Ademption of specific devise or bequest by guardian or conservator of incompetent testator.” The author calls attention to the conflict of authority due to the fact some courts apply the “intention theory” and other courts the “identity theory.” Numerous cases are cited supporting both theories. It must be observed that the more recent cases apply the “intention theory.” In 90 A. L. R., 891, is reported the ease of McCoy v. Ferguson, 249 Ky., 334, 60 S. W. (2d), 931, with the following A. L. R. headnote:

“For the purposes of descent and distribution, such part of the proceeds of the condemnation of the lands of an infant as at the time of the infant’s death before attaining majority have not been expended by the guardian for his benefit are regarded as real estate.”

At the end of the opinion, as reported in 90 A. L. R. at page 897, there appeárs an annotation on the subject as it relates to infants.

Counsel for appellee cites the case of Lewis v. Hill, Exr., 387 Ill., 542, 56 N. E. (2d), 619, claiming that the facts in that case and in the instant case are strikingly parallel. But in that case a conservator was appointed for an insane person. The court applied the general rule, holding that proceeds derived from the sale of the ward’s real estate passed under the devise of the real estate.

The state of New York has enacted a statute (Section 1399 of the Civil Practice Act) which provides that in sales of property of incompetents the proceeds are deemed property of the same nature as the estate sold until the incompetency is removed. See In re Hubbard’s Estate, 196 Misc., 224, 92 N. Y. Supp. (2d), 73. Prior to the enactment of that section, New York courts took the opposite view. In In re Ireland (1931), 257 N. Y., 155, 177 N. E., 405, where the testator was of unsound mind, the court held:

“1. A change in the nature of property works an ademption of a specific bequest thereof.
“2. In the absentee of statutory authority, there is no power in the courts to change a specific into a general legacy or to turn over the balance of the proceeds derived from the sale of the specific property to the legatee in place of the particular things intended to be given. ’ ’

The court, in the Ireland case, applied what may be considered the minority rule.

Numerous cases from other jurisdictions are referred to in American Jurisprudence, American Law Reports, and Corpus Juris Secundum; and many of these cases are cited and discussed in the briefs of counsel. It will serve no useful purpose to cite or discuss them here. It is sufficient to state that the majority rule is as expressed in the Cooper, McCoy, and Lewis cases.

It must be observed, however, that thus far the discussion and the general rule controlling relate solely to a situation where a sale is made by a guardian of a mentally incompetent ward. In the instant case, the ward was physically incompetent, not mentally incompetent. Counsel for appellants very ably argue that this fact clearly distinguishes the case at bar from the other-cases cited and that this factual difference requires the application of a different principle of law. Counsel for appellants point out that the ward and testator in the case at bar was at all times competent to make a will and, therefore, competent to change his will with the change of circumstance, if he desired to do so. It is pointed out that the rationale of the decisions cited is that the testator, being incompetent, could not execute a new will, and that the act of the guardian should not operate as a change in testamentary disposition. This process of reasoning is evident in most of the cases. We recognize the persuasiveness of the argument of counsel for the appellants and are inclined to follow it, since there áre no precedents to the contrary.

The logic of the cited cases involving testators who were mentally incompetent, and therefore lacked testamentary capacity, loses its force and has no application, as we see it, in a situation where the testator is physically disabled but whose testamentary capacity remains unimpaired. While it is true that the change of circumstances, the conversion of real property into money, was the act of the guardian, nevertheless, no act of the guardian, the court, or the law of the state deprived the testator of the full and complete exercise of his faculties with respect to the execution of a will. The appointment of the guardian for a physically disabled person, in the first instance, unlike the appointment of a guardian of a mentally incompetent person, is done with the full knowledge and the consent of the ward. In such cases, as in this case, the testator was an active participant in the guardianship proceedings. In the instant case, the findings of fact show that in selling the real estate the ward “was consulted and did agree to the sale of the property.” Again, the testator was an active participant in the transaction. True, the statute did not require the ward’s consent, but the fact that the ward was consulted and gave consent shows full and complete knowledge on his part, and is of significance in determining the legal effect of the sale with respect to his intention as disclosed in his will. Had he not been under guardianship there would be an ademption. The fact of guardianship was no handicap to him in doing what he willed to do with respect to the disposition of his property by will. 41 Ohio Jurisprudence, 312, Section 78.

Under the facts in this case, if the “identity theory” is applied, there is an ademption. Likewise, as we see it, if the “intention theory” is applied, there is an ademption. In the cases where a guardian is appointed for a person of unsound mind the “intention theory” is applied to prevent an ademption by concluding that the intention of the testator expressed in his will should be preserved, and a sale of the property by the guardian should not operate to change the will or the effect of the disposition as it existed at the time of its execution. In the case at bar, the “intention theory” would be applied differently. In the instant case, the right of the testator was not cut off at any time; the testator could express his intention up until his death in like manner as a normal person. The testator possessed a continuing right to express his intention, while in the cited cases this right did not exist. He was presumed to know the full legal effect of the sale of the real property which had been specifically devised to his wife. He made no effort to change his will, although he had power to do so.

In the cited cases involving the guardianship of a mentally incompetent person, it appears that the controlling factor is the act of the guardian in converting the property where the testator is powerless to act. In a case as the one at bar, where the testator is in full possession of his faculties and has full testamentary capacity, the controlling factor is the act or the failure to act on the part of the testator, after having knowledge of the sale and consenting thereto. The testamentary capacity of the ward, or lack of testamentary capacity, if controlling in one situation should be equally controlling in the other, although with an opposite result. As counsel for appellants aptly put it, to hold otherwise would have the effect of permitting the guardian to thwart the purpose of the testator.

We find no analogy between the situation here presented and a sale of real estate by an executor or administrator. We agree that certain courts in cases involving sales by guardians of mentally incompetent persons have held that such sales are analogous to sales by executors or administrators, where it is held, usually under a statute, that the proceeds remain real estate and pass as such. It should be pointed out that in case of sales by executors or administrators, the testator is dead, and the rights of all parties in interest in his estate are fixed as of the date of his death, and in case of a sale by a guardian of a mentally incompetent, such incompetent is legally dead. The reason for the rule is the same in both instances; not so in the instant case, where the reason for the rule fails, and therefore the rule itself fails. The disposition of the proceeds of sale of real estate by an executor, administrator or guardian, in Ohio, is controlled by Section 2127.38, Revised Code, which in part provides:

“The sale price of real estate sold following an action by an executor, administrator, or guardian shall be applied and distributed as follows:
i < # # #
“(C) In the case of an executor or administrator, the remaining proceeds of sale shall be applied as follows:
( i # # #
“Whether such executor or administrator was appointed in this state or elsewhere, the surplus of the proceeds of sale must be considered as real estate and be disposed of accordingly.
“ (D).In the case of a guardian, the remaining proceeds of sale shall be applied in the manner and upon the terms approved by the court where he was appointed.”

Section 10510-46, General Code, which was in effect at the time the sale was made, and at the death of the testator, contained a similar provision. The Probate Court complied with the provisions of that section in ordering the guardian to turn the proceeds of the sale over to the executors. Counsel for appellees claim that the rule applicable to the proceeds of sale by an executor or administrator should apply to the proceeds of sale by a guardian. The statute itself makes a distinction, and, in our opinion, this is significant. Apparently it is the expressed policy of the Legislature that the same rule should not apply. If the Legislature intended the same rule to apply it could easily have included sales by guardians in the provision controlling sales by executors or administrators. The fact that the Legislature did not indicates a declared intention not to do so. If the maxim, expressio unius est exclusio alterius, were applied to the provision of the statute applicable to sales by executors and administrators, we would be required to conclude that it was the intention of the Legislature that the proceeds derived from the sale of real estate by a guardian should not be considered real estate. The statutory provision with respect to guardians supports this conclusion, as it impliedly recognizes a revocation or ademption of the devise by the application of the ‘ ‘ identity theory. ’ ’ This statutory distinction supports the contention of the appellants, rather than the appellee. To hold otherwise would have the effect of writing into Section 10510-46, General Code (Section 2127.38, Revised Code), by judicial decree a provision applicable to sales by guardians which the Legislature expressly provided should be applicable only to sales by executors and administrators.

We find that there was an ademption of the devise in item II. The $7,271.80 passes under item IV. We conclude by stating that we are not free from doubt as to the proper judgment in this matter, and trust that the final judgment will be rendered by the Supreme Court.

Judgment reversed.

Miller and Hornbeck, JJ., concur.