author: Miller, J.

text:
    Gochenour v. Herderick et al., Franklin County Rural Zoning Board of Appeals.
    (No. 5199
    Decided December 7, 1954.)

      Messrs. Powers, Griffith & Jones, for relator.

      Mr. Frank H. Kearns, prosecuting attorney, and Mr. Paul W. Martin, for respondents.
   Miller, J.

This is an action in prohibition originating in this court, in which the defendants have demurred on the ground that the petition does not state facts which show a cause of action. It, therefore, becomes necessary to look to the petition, which reads as follows:

“Now comes the plaintiff, David E. Gochenour, and says that he is now and has been since March, 1946, the owner and operator of a business known as ‘Ed’s Meats’ located at 1038 Harrisburg. Road, in Franklin Township, Franklin County, Ohio. One of the incidents of said business is the killing and slaughtering of animals and poultry. . Said business of killing and slaughtering animals and poultry was commenced prior to the adoption of the Franklin County Zoning Resolution which became effective on November 12, 1948, and the plaintiff has operated said business in compliance with the zoning laws as a nonconforming use since that date.

“Plaintiff further says that Edward Herderick, Lewis Lobb, H. W. Warner, Charles Roberts and F. E. Campbell are the duly appointed authorized and acting members of the Franklin County Rural Zoning Board of Appeals created by Section 303.13 of the Revised Code of Ohio.

“Plaintiff further says that in the latter part of 1948 or in the early part of 1949 the plaintiff filed with the Franklin County Building Department a certificate of occupancy showing that the premises at 1038 Harrisburg Road were used for slaughtering and killing purposes as a non-conforming user. Said certificate of occupancy was accepted and filed by the Franklin County Building Department and a duplicate copy of the certificate of occupancy was filed with the zoning commission. Plaintiff did everything required by law for him to do to protect his non-conforming use of the premises at 1038 Harrisburg Road.

“Plaintiff further says that on or about the 29th day of October, 1953, Richard W. Quelette and the Willson Heights Civic Association filed an action, Case No. 188585, in the Common Pleas Court of Franklin County to enjoin the plaintiff herein from continuing the business of slaughtering and killing animals and poultry on the premises known as 1038 Harrisburg Road. Said action is based upon three separate causes of action, one of which is a claim that the plaintiff herein has violated the Franklin County Zoning Regulation. The court has dismissed the Willson Heights Civic Association as a party in that suit and the issues are made up and that case is ready for trial.

“Plaintiff further says that by a letter dated March 25, 1954, the said Richard W. Quelette and John L. Quelette requested the chief of the Franklin County Building Department to determine whether or not the plaintiff herein was a valid non-conforming user. Said request was made for the purpose of putting this matter of a non-conforming use before the Board of Zoning Appeals long after any right of appeal had passed. At the request of the said Richard W. Quelette and the said John L. Quelette the chief of the Franklin County Building Department wrote a letter to the Quelettes in which he stated that the plaintiff herein had a valid non-conforming use. Shortly thereafter the said Richard W. Quelette and John L. Quelette filed a notice of appeal to appeal the matter to the Franklin County Zoning Board of Appeals. The Franklin County Rural Zoning Board of Appeals has set the hearing of said alleged appeal for the 18th day of October, 1954.

“Plaintiff further says that said Franklin County Rural Zoning Board of Appeals has no jurisdiction to hear alleged appeal for the following reasons:

“(1) The Franklin County Rural Zoning Board of Appeals has no jurisdiction to hear any matter concerning the existence of a non-conforming use since Section 303.19 of the Revised Code removes the non-conforming user from the application of the zoning laws and restricts the Board of County Commissioners from in any way regulating the lawful continuation of a non-conforming use.

“ (2) The time prescribed by statute for appeal has passed. The letter written by the chief of the Franklin County Building Department at the request of Richard W. Quelette and John L. Quelette was not a ‘determination’ such as the statute contemplates as a necessary predicate for an appeal.

“If any ‘determination’ is made concerning a non-conforming use it is the acceptance and filing of the certificate of occupancy and time for appeal will run from that date. The alleged appeal is a fictional appeal based solely upon an artifice and is an attempt to circumvent the statute.

“(3) The issues in this case are now before the Court of Common Pleas in case number 188585. The issues in that case are exactly the same as they are in the attempted appeal and further the parties represent the same interests. The Common Pleas Court thereby has gained exclusive jurisdiction of the matter in question and the Franklin County Rural Board of Zoning Appeals, a body inferior to the Court of Common Pleas may not exercise any jurisdiction that it may have had.

“Plaintiff further says that unless the Franklin County Board of Zoning Appeals is prohibited from hearing the said appeal the plaintiff herein will be injured in the following ways for which there is no adequate remedy at law or equity:

“(1) The plaintiff herein is forced to stand trial before a body which has no jurisdiction to hear the matter in question. This fictional appeal was filed for the purpose of gaining publicity for the appellants and injuring the plaintiff herein and the hearing of said. appeal by the Board of Zoning Appeals would result in irreparable injury to the plaintiff’s business.

“(2) There is no speedy or adequate appeal from a decision of the Board of Zoning Appeals in that an appeal may be taken on questions of law only.

. “ (3) The plaintiff is being forced to defend a multiplicity of suits in that all issues that could properly be raised before the Board of Zoning Appeals are before the court in the Common Pleas Court case and will be disposed of there.

“Wherefore, plaintiff prays for an alternative writ of prohibition against Edward Herderick, Lewis Lobb, H. W. Warner, Charles Roberts and F. E. Campbell, as members of the Franklin County Rural Zoning Board of Appeals, hearing and passing upon the appeal of Richard W. Quelette and John L. Quelette and that upon final hearing hereof such writ be made perpetual, and for his costs herein.”

The defendants concede in their brief that the jurisdictional questions raised constitute mixed questions of law and fact which may not be properly passed upon at this time. They do contend, however, that the demurrer should be sustained for th'e reason that the plaintiff has an adequate remedy at law, citing Section 303.15, Revised Code, the pertinent part of which provides:

“Any party adversely affected by a decision of a board of zoning appeals may appeal to the Court of Common Pleas of such county, on the ground that the decision was unreasonable or unlawful. The court may affirm, reverse, vacate, or modify the decision complained of in the appeal.”

The law seems to be well established that the writ of .prohibition is a high prerogative writ to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary and adequate remedy. State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, 112 N. E., 1029; State, ex rel. Harrison, v. Perry, 113 Ohio St., 641, 150 N. E., 78; State, ex rel. Geyer, v. Collopy, 152 Ohio St., 485, 90 N. E. (2d), 370.

The only question, therefore, presented is whether the statutory right to appeal from an order made by the Board of Zoning Appeals affords the plaintiff herein a complete and adequate remedy either in law or in equity. The plaintiff urges that the right of appeal is not adequate for the following reasons:

(1) The appeal to the board is purely fictional, being not seriously filed, but filed for “the purpose of gaining publicity for the appellants and injuring the plaintiff herein and the hearing of said appeal by the Board of Zoning Appeals would result in irreparable injury to the plaintiff’s business.”

(2) That the appeal from the board may be taken on questions of law only, which is not adequate.

We are of the opinion that the first reason advanced, by the plaintiff is adequate to support his contention. It is to be noted that the plaintiff is engaged in a retail business and that any publicity tending to create ill will towards him would be detrimental to his business, the amount of which injury could not be ascertained.

The second ground advanced by the plaintiff, we do not think is well taken for even though the appeal may be had on questions of law only, the decision may be reversed on appeal if it is found to be unlawful, which it would be if the board exceeded its jurisdictional powers.

The defendants have also filed a motion to vacate and set aside the alternative writ of prohibition previously entered, citing Marsh v. Goldthorpe, Mayor, 123 Ohio St., 103, 174 N. E., 246. In that case the statement is made that the allowance of an alternative writ does not operate as a temporary injunction to restrain further action in the tribunal against which relief is sought. We do not have such a question here for this court on October 14, 1954, made the following order:

“It is ordered that defendant-respondents be, and are, restrained from hearing and deciding said appeal until final decision and disposition of this action.”

No bond was required and no facts have been presented showing the necessity for one. Prohibition differs from injunction in the fact that injunction is directed only to the parties litigant, while prohibition is directed to the court itself. State, ex rel. Firestone Tire & Rubber Co., v. Duffy, 114 Ohio St., 702, 152 N. E., 656. The laws relating to injunctive relief are, therefore, not applicable to this proceeding. The purpose of the order issued by this court was to preserve the existing status of this proceeding until it was determined whether a permanent writ should be granted. A writ may not be granted after the tribunal against which the relief is sought has acted. Marsh v. Goldthorpe, supra.

Both the motion and the demurrer will be overruled.

Motion and demurrer overruled.

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


source: Caselaw Access Project

author: Hornbeck, J.

license: Public Domain

text:
    Guitner, Admx., Appellant, v. McEowen, Appellee; Citizens Bank Co., et al., Appellants.
    (No. 714
    Decided March 27, 1954.)

      Messrs. Spidel, Staley & Role, for appellants.

      Messrs. Goubeaux & Goubeaux, for appellee.
   Hornbeck, J.

This is an appeal on questions of law and fact from a judgment of a three-judge court dismissing plaintiff’s petition and finding for defendant Sadie McEowen on her cross-petition.

The action involved the ownership and right to proceeds of an account with the defendant bank in the name of ‘ ‘ Harry Guitner or Sadie McEowen, or to the survivor of either.” The account was opened in September 1943 in the name of Harry Guitner only, and was so carried until March 9, 1953, when, under his instructions, the account was changed to a joint account with right of survivorship. At the time of the death of Harry Guitner there was $5,500 to the credit of the account.

The plaintiff claims the right to the proceeds of the account as the administratrix of Harry Guitner, who died on June 24, 1953, as the result of a self-inflicted injury. Plaintiff Ollie Guitner also asserted her prospective right to a share of the proceeds as the widow of decedent.

The claim of the plaintiff and the widow, is that the decedent was, at the time of the creation of the joint account, incompetent to effectuate the transaction, and that he was then subject to undue influence, neither of which claims is urged in this court. It is further claimed and insisted that decedent established the joint account with the right of survivorship -for the purpose of defeating the widow from receiving her distributive share of decedent’s estate, and that he retained control of the account. The claim of defendant McEowen is that Harry Guitner made a gift inter vivos of the account in its entirety to Sadie McEowen and that, independent of such gift, as a joint owner of the account with right of survivorship, she had full right of joint ownership during the lifetime of Harry Guitner and to full ownership thereof as survivor upon his death.

Harry Guitner and Ollie Guitner were married on June 10, 1910, and lived as husband and wife until his death on June 24, 1953. During the last several years of his life, Mr. Guitner suffered from cancer and, characteristically, it became progressively worse, and there is no doubt that he must have known that death by reason of the disease was inevitable. The record discloses that there were normal marital relations between the husband and wife, and that she fulfilled all her obligations as a dutiful consort. There is no claim that she owned any share of the money representative of the account, except as she might be entitled to an equitable interest by reason of her assistance to her husband in his business activities, whereby he acquired the money which went into the account.

The conditions under which the account was opened and the purposes which Mr. Guitner desired to accomplish appear from three witnesses whose testimony is substantially as follows :

Thelma Lanich, assistant cashier of defendant bank, said that on March 7, 1953, Mr. Guitner called at the bank preparatory to a change in his individual account, and returned on the ninth with his book. She testified:

“He asked me if I would put his sister’s name on his savings account. I said, ‘Who is your sister?’, and he said, ‘Sadie McEowen.’ That was all that was said.”

Thereupon, she took his book, put the name on it as directed, and stamped the further language, “or to the survivor of either.” The book with the endorsement was returned to Mr. Guitner, the transfer was made on the books of the bank in accordance with the change on the pass book. At the time of the transfer, Mr. Guitner made a withdrawal of $400 from the savings account and placed it to the credit of his checking account.

In what purports to be the bylaws, rules and regulations of the bank, appearing in the pass book, there is this language:

“In all cases in which the whole amount is withdrawn, the pass book must be given up to the bank.
“This pass book will be depositor’s voucher or evidence of his or her deposits in the bank.
“When money is withdrawn, either in person or on written order of the depositor, this pass book must be presented to the bank so that the amount of the withdrawal may be entered therein.”

There is no evidence that the rules and bylaws carried in the pass book were ever formally adopted by the defendant bank, and it fairly appears that deposits could be withdrawn without the presentation of the book upon receipt of a depositor. Mr. Detrick, president of the bank, so testified.

Elmer H. McEowen, husband of defendant Sadie McEowen, testified that on June 20, 1953, at the request of Mr. Guitner, he took certain papers to a place where the township trustees were meeting, Mr. Guitner being a member of the board, and on the same day the papers were returned to him; that when the papers were returned, Mr. Guitner handed the savings account book to Mr. McEowen and said, “Give this to Sadie,” which was done; and that Mr. Guitner said nothing else whatever.

He further testified that on a prior occasion, “He [Mr. Guitner] told me to tell Sadie that ‘I have put some money in the Ansonia Bank so that if anything happens to me that she can draw it,’ ” and was of the opinion that this conversation occurred some time in March.

Sadie McEowen testified that on the Saturday before Mr. Guitner died she received the pass book from her husband, who informed her that Mr. Guitner had said, “give this to Sadie,” and that she had theretofore discussed the matter with Mr. Guitner, who had sent her word, ‘ ‘ ‘.that he had put some money in my name in the Ansonia Bank for me to do as I seen fit and divide with my brothers and sisters; that he wanted his side of the house to have a little of what he had and he knowed if he did not fix it before he died that Ollie would not give us a dollar.’ That she, of course, was not to make the division until after he had died.”

He also said, “You or I, ary one, can draw that money.”

The rights of the parties may be determined upon the evidence which we have heretofore stated. In our opinion, it establishes that Mr. Guitner created a joint and survivorship account with the defendant bank; that, thereupon, the persons named in the designation, namely, Harry Guitner and Sadie McEowen, were joint owners of that account; that the survivor was entitled to any proceeds remaining upon the death of the other; that such status was then created by the contract between the bank and Harry Guitner (In re Estate of Hatch, 154 Ohio St., 149, 93 N. E. [2d], 585); and that it was for the benefit of another, Sadie McEowen (Rhorbacker, Exr., v. City Building Assn., 138 Ohio St., 273, 34 N. E. [2d], 751). Decedent retained no right of revocation; indeed his act was irrevocable. Flanders v. Blandy, 45 Ohio St., 108, 12 N. E., 321; O’Brien, Admx., v. O’Brien, 112 Ohio St., 202, 147 N. E., 4. The amount to the credit of the account at the time of the transfer had been deposited by Mr. Guitner, and his transfer to a joint account was a gift to Sadie McEowen of a joint ownership, and, as it was an undenied benefit to the donee, it will be presumed to be accepted by her. Rhorbacker, Exr., v. City Building Assn., supra. The establishment of the joint account having been completed, Sadie McEowen was thereby vested with the joint ownership, whether or not she had possession of the pass book. McElroy v. Albany Savings Bank, 8 App. Div., 46, 40 N. Y. Supp., 422, cited with approval in Cleveland Trust Co. v. Scobie, 114 Ohio St., 241, 151 N. E., 373, 48 A. L. R., 182. The president of defendant, bank testified that it would pay from the account upon Mrs. McEowen’s order.

At the time of the transfer of the account, the wife of Harry Guitner was not in the status of his creditor, and he had full right to make the gift during his lifetime. Hayes, Admx., v. Lindquist, 22 Ohio App., 58, 153 N. E., 269. The rights of Sadie McEowen in the account having been fixed during the lifetime of decedent, his expressed desire as to how she should divide the proceeds upon his death did not affect her interest therein. If the status of Sadie McEowen was that of a trustee, which seems to be her construction of her interest, she took legal title and the beneficiaries equitable title at the time the account was created.

The status of a holder of a joint account with right of survivorship is no longer an, open question in Ohio. Cleveland Trust Co. v. Scobie, supra. In the first paragraph of the syllabus in Oleff, Admr., v. Hodapp, Gdn., 129 Ohio St., 432, 195 N. E., 838, 98 A. L. R., 764, it is said:

“A joint and survivorship account entered into by and between.two parties as provided by Section 9648, General Code, is a contract inter vivos, carrying a present, vested interest, and can in no wise be affected by the laws of descent and distribution.”

In the first and third paragraphs of the syllabus of Sage, Ext., v. Flueck, 132 Ohio St., 377, 7 N. E. (2d), 802, it is held:

“1. Where a joint bank account is, by the creator thereof, made ‘payable to either or the survivor,’ the right of survivor-ship vests in the joint depositors by virtue of contract.”
“3. Upon the death of the creator of a joint and survivor-ship bank account, the surviving joint depositors have a right to the balance remaining in the account to the exclusion of the personal representative of such decedent.”

We have examined the eases cited by counsel for appellants, wherein it is held that a husband may not by a devise, still retaining title, dispose of his personal property with intent to bar his wife of her distributive share in his estate. Here the creator of the account retained only his joint interest during life, according to its terms. The evidence does not support the contention of the appellant that the creation of the account was an attempt to make testamentary disposition of the subject matter thereof.

We briefly consider some of the cases cited by appellant. In In re Estate of Copeland, 74 Ohio App., 164, 58 N. E. (2d), 64, the money, the subject of the claimed gift, was in a lock box rented by the depositor, the key to which (although left with the bank) was never beyond access to and control of the depositor. No relationship of debtor and creditor was established between the bank and the depositor. In Union Properties, Inc., v. Cleveland Trust Co., 152 Ohio St., 430, 89 N. E. (2d), 638, wherein it was held that the “realities of ownership” in an account joint in form may be shown, Judge Zimmerman points out that no question of survivorship was presented, but the court is “concerned wholly with a subsisting deposit intact and the rights, intention and attitude of the depositors with respect thereto during their joint lives.” In re Estate of Fulk, 136 Ohio St., 233, 24 N. E. (2d), 1020, determined the intent of the depositors to be that each had the right of survivorship, although the formal terms of the deposit did not so provide. In Hayes, Admx., v. Lindquist, supra, the court found that the alleged transfer by the husband of the stock, subject of the controversy, was in fraud of his wife’s rights, and that he did not part with absolute dominion over the stock. The court held that the rule that the husband may dispose of his personal property during Ms lifetime without fraud on the wife’s rights applies only to absolute transfers. In Bolles v. Toledo Trust Co., Exr., 144 Ohio St., 195, 58 N. E. (2d), 381, 157 A. L. R., 1164, the husband attempted to bar his wife of the distributive share which she would have enjoyed at Ms death, but he retained the right of disposition and control, of the property up to the time of-his death. The same situation obtained in Rose v. Rose, 34 Ohio App., 89, 170 N. E., 181.

Although we determine this case de novo, we have examined the findings of fact in the trial court and are in accord therewith.- We are not satisfied that the record supports the conclusion that there was a gift inter vivos of decedent’s share of the account to defendant McEowen. Decedent’s statement to Mrs. McEowen that “ary one can draw that money” disclosed his full appreciation of the right of both parties to the account. At all times after the account was opened defendant McEowen had an equal right with decedent to the possession of the pass book. Its surrender with the direction only “give this to Sadie,” without moré, did not clearly disclose his intention to then make an outright gift of Ms share. Polley & Hicks, Admrs., v. Hicks, 58 Ohio St., 218, 50 N. E., 809, 41 L. R. A., 858. Nor was there anything that he had theretofore said respecting the account or his purpose in setting up joint ownership sufficient to establish a present intent to divest himself of all right in the account. However, the delivery of the pass book was further evidence, if any were needed, that decedent did not retain any control or interest in the account at variance with the terms under which it was opened. A gift inter vivos was not necessary to defendant McEowen’s full ownership as survivor of- decedent of the proceeds of the joint account.

The judgment here will be the same as in the Common Pleas Court.

Judgment accordingly.

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


author: Hurd, P. J.

text:
    In re Koenigshoff.
    (No. 23128
    Decided May 19, 1954.)

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul S. Danaceau, for appellee.

      Mr. Oiven C. Neff, for appellant.
   Hurd, P. J.

This is an appeal on questions of law from a judgment of the Probate Court, overruling a motion to strike and expunge from the files all proceedings relating to the appointment of a guardian of Dr. John A. Koenigshoff, a physician and surgeon, who had been adjudicated an incompetent, and from a judgment denying the application of the guardian to terminate the guardianship.

On August 21, 1953, Kathleen Koenigshoff, the wife of Dr. Koenigshoff, filed the original application in Probate Court, alleging that her husband was an incompetent and that by reason thereof she requested appointment as guardian of his person and estate. At the same time, an application was filed to have Dr. Koenigshoff adjudged a person mentally ill. Both matters were set for hearing and were heard on August 28, 1953, on which date, on the basis of the application, a letter from a Dr. Ferrari, and a hearing before a court deputy, Dr. Koenigshoff was adjudged an incompetent person, and his wife Kathleen Koenigshoff was appointed guardian by the court. The files at that time showed that Dr. Koenigshoff had been personally served by a deputy sheriff of Cuyahoga County on August 24, 1953, within three days prior to the hearing of the application, at which time Dr. Koenigshoff was at Marymount Hospital, having been admitted to that hospital on August 10, 1953, under the care of Dr.- Ferrari, where he voluntarily submitted to psychiatric treatment. His condition was then diagnosed as a nervous breakdown due to overwork. Previous to and at the time of admission to the hospital he had been taking certain drugs and sedatives. After about a week Dr. Koenigshoff began to talk about leaving the hospital. It appears that Dr. Ferrari believed further treatment would be required, and, believing that it would be impossible to keep Dr. Koenigshoff in the hospital without his consent, he advised his wife to go to Probate Court, where she made the application above described. Dr. Koenigshoff was discharged from Mary-mount. Hospital in about tivo weeks and thereafter was transferred to a private rest home where he remained another two weeks, after which he learned of the guardianship proceedings. Thereafter, in .his own name, he filed a motion to strike from the record and expunge from the files all the proceedings above described, on the ground that he had not been personally served with summons and that the proceedings were void ab initio. His wife, Kathleen, also filed an application to terminate the guardianship on the ground that “the said John A. Koenigshoff is now and always has been a person competent to care for his person, manage and control his estate and provide for his family.” Attached to her application is an affidavit which, in part, reads as follows:

“Kathleen Koenigshoff, being first duly sworn according to law, deposes and says that on or about the 28th day of August, 1953, she applied for and received letters of guardianship over the person and estate of her husband, John A. Koenigshoff; that at the presentation of said application she did not have the advice and assistance of counsel; that said application was presented under the mistaken belief that a guardianship was necessary, when in fact it was not; that no sufficient reason existed for said guardianship; that although she signed the application she was not aware of its significance nor did she fully realize the import of said guardianship.

“Affiant further says that John A. Koenigshoff is now and always has been a person fully competent to manage and control his person and his property and to provide for his family.”

Both the motion of Dr. Koenigshoff and the application of his wife-were set for hearing in Probate Court, at which time a complete record was taken as shown by a bill of exceptions filed in this appeal.

The Probate Court denied the motion on the ground that the movant had received actual notice and on the further ground that he had entered a general appearance by filing the motion, which, in the opinion of the court, related back to the time of the original order and judgment and that, thereby, he waived personal service of notice on the original hearing of August 28, 1953.

The application of Kathleen Koenigshoff was denied on the ground that Dr. Koenigshoff, at the time of the hearing, was an incompetent person. Motions for new trial were filed and overruled.

The sheriff’s return on the application for letters of guardianship was signed by deputy sheriff Lewis V. Shram, who, when called as a witness by the movant, testified that he had never personally served notice of summons on Dr. Koenigshoff. Thereafter, Prank LoSehiavo, a deputy sheriff in charge of the district in which Marymouht Hospital is located, was called as a witness and also testified that he had never served notice of summons on Dr. Koenigshoff. Dr. Koenigshoff testified further in great detail, as did his wife, Kathleen Koenigshoff, who gave testimony directly substantiating the affidavit attached to her application to terminate the guardianship heretofore set forth. She testified further that when the application was presented, she .at no time appeared before the probate judge; that the only appearance made was before a deputy clerk, and lasted only a few minutes; and that she had been advised by a Dr. Hunter to bring her husband home, he having fully recovered.

Error is.assigned as follows:

“1. The court erred in holding that the movant had actual notice of the hearing within three days of August 28, 1953.
“2. The court erred in holding that actual notice is equivalent to personal sendee as required by the statute.
“3. The court erred in failing to strike the letter of Dr. Ferrari as incompetent and privileged.
“4. The court erred in failing to sustain the motion to quash service and in failing to grant the motion to strike from the files and expunge from the record.
“5. The court erred in holding that the movant had made a general appearance by filing the motion and application and that this general appearance related back to August 28, 1953, and gave the court jurisdiction over the.person of John A. Koenigshoff, thereby waiving the requirement of personal service.
“6. The court erred in failing to grant the application to terminate the guardianship.
“7. The order of the. court is clearly against the manifest weight of the evidence.
“8. Other errors apparent on the face of the record.”

In our opinion, the principal questions may be stated as follows:

(1) Where, upon an application filed with the Probate Court alleging a person to be mentally ill and incompetent, a hearing is had before a deputy clerk inquiring into the status of such person’s incompetency, and the Probate Court adjudges such person incompetent and, thereafter, it is conclusively shown that no notice was personally served upon such person informing him of the application and the hearing, and no opportunity was given him to be heard, is the judgment of the Probate Court, declaring such person incompetent, void for lack of due process?

(2) Where a person having been adjudged incompetent under the facts and circumstances herein delineated files a motion to vacate such entry of incompetence, does such action constitute an entry of appearance relating back to the time of notice of the original adjudication and in effect give the court jurisdiction over the person of the alleged incompetent, thereby waiving the requirement of personal service of notice required by statute ?

We shall consider these questions in the order named.

The record of the hearing in this case to terminate the guardianship and to vacate the judgment of incompetency clearly shows by uncontradicted evidence that personal service of notice was never had or made upon the person of the alleged incompetent, nor is there any record that consent was given in writing by the alleged incompetent.

Section 10507-4, General Code, then in force (comparable Section 2111.04, Revised Code), so far as pertinent, reads as folio ws:

“No guardian of the person, or of the estate, or both, shall be appointed until at least three days after the Probate Court has caused written notice, setting forth the time and place of the hearing, to be served upon the following persons:
Í (
“(b) In the appointment of the guardian of an incompetent * * *.
“1. Personal service of such written notice upon the person for whom such appointment is sought.” (Emphasis supplied.)
Section 2111.04, Revised Code, is to the same effect, providing, in part:
“Upon the person for whom such appointment is sought by personal service.”

A somewhat analogous question to that presented here was under consideration in the case of In re Guardianship of Irvine, 72 Ohio App., 405, 52 N. E. (2d), 536, wherein the court held, as indicated by the syllabus, as follows:

“1. Rule 27 of the Uniform Rules of Practice in the Probate Courts of Ohio, adopted pursuant to Section 10501-13, General Code, and providing that ‘in applications for the appointment of guardians for * * * incompetents, * * * the notice to the proposed ward must be served by the sheriff or some other disinterested person,' is reasonable and salutary, supplements Section 10507-4, General Code, and does not contravene Section 10501-21, General Code.
“2. The spirit and purpose of the provision of Section 10507-2, General Code, ‘that if the incompetency’ of an incompetent ‘be due to physical disability or infirmity the consent of the incompetent’ to the appointment of a guardian ‘must first be obtained/ require that ‘the consent’ should be in writing or made in open court by the proposed ward who is mentally competent.
“3. Where a guardian, the next of kin of the ward, was appointed by the Probate Court after hearing of an application of the guardian reciting that the named ward ‘is incompetent by reason of advanced age and physical disability,’ notice of which hearing has been given the ward by such guardian only, the guardian, upon application of the ward must be removed and the ward restored to full control of her undiminished estate.”

The opinion concludes:

“It follows that the order and judgment of the Probate Court are reversed and the cause is remanded with instruction to the Probate Court to remove the guardian and to restore the appellant to full custody and control of her undiminished estate. It is further adjudged that appellee shall pay all costs of suit and all costs and charges of administering the purported guardianship including her own attorney fees.”

In the recent case of In re Wertz, decided by the Court of Appeals of this Appellate District, March 10, 1954, 118 N. E. (2d), 188, it was held that the Probate Court erred in overruling appellant’s petition to vacate its order adjudging applicant mentally ill, where statutory requirements in respect to service of notice had not been complied with. While the original proceedings to secure a judgment of mental illness were instituted under Sections 1890-23 to 1890-27, General Code (now Sections 5123.18 to 5123.23, Revised Code), the same principles of law therein set forth are applicable here. This court held that service of such notice was an essential element of such proceedings, and that the commitment made without such notice was illegal and void. In the course of the opinion, Hunsicker J., of the Ninth Appellate District, sitting by designation, speaking for a unanimous court, cited the case of State, ex rel. Parsons, v. Bushong, Supt., 92 Ohio App., 101, 109 N. E. (2d), 692, and stated that the court was in agreement with the reasoning and conclusions of that case. In the latter case it was held, as appears by paragraphs four and five of the syllabus, as follows :

“4. In a proceeding instituted in the Probate Court pursuant to Section 1890-23, General Code, for the detention of a person thought to be mentally ill, such court exercises purely statutory jurisdiction and its record must show affirmatively the observance of all requisites to the exercise of such jurisdiction.

“5. In such proceeding, where the record fails to show compliance with the provisions of subdivision 1 of Section 1890-25, General Code, requiring the giving of notice, the Probate Court is without jurisdiction.”

It is our conclusion, therefore, in the instant case, that the alleged incompetent not having been personally served with notice, as provided by law, and such fact appearing on the application to terminate the guardianship and on the motion to vacate the entry of incompetency, the Probate Court erred prejudicially to the rights of the appellant in refusing to grant the motion and application.

We come now to consider the second question posed above, namely, the argument that the appellant entered his general appearance in Probate Court on' November 4, 1953, by filing therein his motion to strike from the files and expunge from the record all proceedings; and whether such .appearance related back to the time of original hearing. We think this argument assumes a false premise and is, therefore, untenable. It assumes that the court having, without knowledge of failure of due process, adjudged a person as incompetent, that such person, although incompetent in the judgment of the court, waived a right peculiarly personal to him under the law in seeking, by the only means available, to vacate such adjudication.

In the case of In re Guardianship of Irvine, supra, it was held, inter alia, that, upon such an application to vacate an entry of incompetency for want of jurisdiction due to failure of due process in compliance with statute, the applicant was not thereby attempting to relitigate the issue made and decided in the original application to appoint a guardian. This accords with sound reason and good logic.

Whichever horn of the dilemma is considered, the court is without jurisdiction to relate the issues to the original hearing. Either the person is competent, or he is incompetent. If he is, in fact, competent the court may not proceed to declare him incompetent. If he is incompetent, it is fundamental that he is not so sui juris, and the court may not then adjudicate his rights personal to him on the theory that he is competent to waive such rights. Certainly, nothing could be done which would clothe the court with jurisdiction to re-adjudicate the original issue and declare such person incompetent without due process.

The judgment having been void ab initio, nothing done thereafter can cure the initial defect, except the commencement of new proceedings.

It is fundamental that in a proceeding such as here under consideration, statutory requirements must be strictly adhered to and, in the important matter of service of process, compliance therewith is mandatory before the court acquires jurisdiction.

In the case of Shaman v. Roberts, 87 Ohio App., 328, 94 N. E. (2d), 630, the Court of Appeals for Franklin County held:

“1. A judgment obtained without service of process on the defendant is void ab initio.
“2. The provisions of Sections 11631 to 11643, inclusive, G-eneral Code, apply to voidable judgments only and have no application to void judgments.”

To the same effect see, also, Snyder v. Clough, 71 Ohio App., 440, 50 N. E. (2d), 384; Levy v. Foley, 75 Ohio App., 220, 61 N. E. (2d), 615.

For authorities of other jurisdictions which uphold the principle that notice is an essential element in such proceedings as are now before us, see, also, Simon v. Craft, 182 U. S., 427, 45 L. Ed., 1165, 21 S. Ct., 836; Barry v. Ball, 98 F. (2d), 222: In re Masters, 216 Minn., 553, 13 N. W. (2d), 487, 158 A. L. R., 1210; In re Application of Wellman, 3 Kan. App., 100, 45 P., 726.

In view of our decision on these questions, we think it unnecessary to consider other grounds of error assigned. Nevertheless, we are of the opinion that whatever may have been the condition of the appellant at the time of the original hearing, the finding that he was incompetent at the time of hearing to vacate and terminate the guardianship is, in our opinion, clearly against the manifest weight of the evidence.

For the reasons stated, the rulings and judgment of the Probate Court are reversed and the cause is remanded with instructions to grant the motions to terminate the guardianship and to restore the appellant to full custody and control of his estate, in conformity with this opinion.

Judgment accordingly.

Kovachy and Skeel, JJ., concur.


author: Per Curiam.

text:
    Mann, Appellee, v. Sexton, Appellant.
    (No. 2323
    Decided February 16, 1955.)

      Mr. Gregory C. Karas, for appellee.

      Messrs. Scharrer, Scharrer & Hanaghan, for appellant.
   Per Curiam.

This cause is submitted on a motion to dismiss the appeal on the ground that, the order appealed from is not a final order and on a motion to require appellant to give a supersedeas bond. The appeal is on questions of law.

The plaintiff, appellee herein, filed in the Municipal Court of Dayton her petition praying in her first cause of action for possession of certain real property and in her second cause of action for judgment for rents which had accrued.

The defendant, appellant herein, filed an answer and, also, a counterclaim consisting of two causes of action: First, reformation of the lease and, second, a claim for damages in which the amount prayed for exceeded the jurisdictional limit of the Municipal Court. Thereafter, the Municipal Court certified the entire proceeding to the Court of Common Pleas for adjudication. Section 1901.22 (e), Revised Code. The Common Pleas Court sustained a motion to remand the cause of action for adjudication to the Municipal Court on the ground that the Common Pleas Court was without jurisdiction to hear an action for forcible entry and detainer. Unquestionably, sole jurisdiction in the eviction action is conferred on the Municipal Court. However, the entire proceedings were remanded. Inasmuch as the original certification was invalid, we think the Common Pleas Court very properly remanded the entire proceedings. No cause of action was dismissed; all causes are still pending. When the Municipal Court exhausts its jurisdiction the matter .may be certified again.

Was the order of remand a final order within the provisions of Section 2505.02, Revised Code? The pertinent part of such section is as follows:

“An order affecting a substantial right-in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial. ’ ’

In our opinion a substantial right of the appellant was not affected. The appellant has his day in court. No substantial right has been adjudicated. In 2 Ohio Jurisprudence (2d), 600, Section 33, it is stated that “a final order or judgment is one disposing of the whole case or some separate and distinct branch thereof.” See cases cited therein.

The motion to dismiss is hereby sustained.

The motion to require the appellant to file a supersedeas bond is overruled.

In the event the appellant takes an appeal from the order of this court, the court will entertain an application to fix bond.

Judgment accordingly.

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


author: Wiseman, P. J.

text:
    Howell et al., Appellants, v. Bryant et al., Appellees.
    (No. 4936
    Decided March 15, 1954.)

      Messrs. Hartman, Wynn & Carter and Messrs. Coughlin, Ogier & Lloyd, for appellants.

      Mr. C. William O’Neill, attorney general, and Mr. Larry H. Snyder, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, sustaining a demurrer to the petition of plaintiffs.

The plaintiffs, appellants herein, assign as error the order sustaining the demurrer, dissolving the temporary injunction, and dismissing the petition. The claims of plaintiffs are set forth in their petition, from which we quote at length:

“The plaintiffs, Walter Howell and Helen Howell, hereinafter referred to as permittees, say that they are partners owning and operating a tavern authorized to sell intoxicating beverages at McDonald, Ohio, and known as.the Silver Fox Tavern, hereinafter referred to as premises, under permit No. 15493, class D-5 issued by the Ohio Liquor Control Board; that they are citizens of the United States of America and the state of Ohio; that on said premises covered by said permit No. 15493, class D-5, which permit is owned by them jointly, duly issued and authorized by the Liquor Control Board of the state of Ohio, these said permittees in addition to being engaged in the lawful business of selling intoxicating liquors as authorized by said permit are engaged in other lawful retail sales of other articles or commodities on the premises; that the permittees on said premises are engaged in the lawful business of selling, at retail, rubber or latex prophylactics, hereinafter referred to as prophylactics, by and through the medium of a coin operated vending machine, which said vending machine is lo.cated in the men’s wash or restroom on said premises; that prophylactics dispensed by said vending machine are encased in an original unbroken cellophane wrapped package containing two prophylactics as prepared by the manufacturer thereof, and are dispensed by said vending machine in said original packages to customers upon the deposit by the customer, or purchaser, of twenty-five cents for each package in the vending machine; that legibly printed on the exterior of the vending machine and on each individual package of prophylactics is the language “Sold for the prevention of disease only”; that said permittees sell said prophylactics with intent that the said customers or purchasers use them only for the prevention of venereal disease and for no other purpose.

“In this action the permittees, Walter Howell and Helen Howell, doing business as Silver Fox Tavern, sue on their own behalf and as representatives of others similarly engaged and' situated who operate taverns or premises and are affected as are permittees by the directives and/or orders of the Ohio Liquor Control Board here in issue and more fully hereinafter set out.

“That said permittees, have for a long period of time immediately prior to and including September 5, 1951, at all times since said last mentioned date and now, have operated said premises and said retail sale of prophylactics in and on said premises, as herein set out, and now so do; that said lawful business of so selling prophylactics on the premises is conducted for monetary profit and is a profitable business.
“That the said Walter Howell, in his individual capacity hereinafter referred to as vendor, for a long period of time immediately prior to September 5, 1951, on that date, at all times since, at all times mentioned herein and now, did and does operate a lawful business commonly known as the vending machine business, and hereinafter referred to as vending machine business; that in said vending machine business, the vendor does own numerous vending machines designed and adapted for the specific purpose of vending through the medium thereof, prophylactics of the kind and nature and by the mechanics as described hereinbefore, which vending machines are not and cannot be adapted for any other purpose.
“That the said vendor in his said vending machine business owns and uses and locates, and now has located and at all times mentioned herein had located such vending machines for the purpose aforesaid of vending prophylactics at the places of business owned and operated by those who sell and dispense intoxicating liquors or beverages under permits or licenses issued by and required by the Ohio Liquor Control Department; said vendor has placed, and has now in operation in numerous said liquor permit premises throughout the state of Ohio said types of vending machines under contracts with the holders of such liquor licenses or permits issued by the Ohio Liquor Control Department, by virtue of which there is a division of receipts made between said vendor, and the permit holder on or in whose premises the vending machine is operated, or located; that the vendor has an investment of approximately $5,000 in said vending machines and prophylactics, and said vending machines and prophylactics are reasonably worth $5,000; for the promotion of vendor’s said vending machine business, it has been necessary for him to, and he did, spend considerable time, effort and money in establishing same; that said vending machines are of special design and kind, and adapted and useful only for the dispensing of prophylactics, as aforesaid, and are incapable of any other practical use; and the said vendor sues on his own behalf and as representative of others similarly engaged and situated in the vending machine business and affected by the orders or directives of the Ohio Liquor Control Board as is vendor, as will be more fully hereinafter set out.”

Plaintiffs allege further that in the operation of their business they have complied with the laws of the state of Ohio, including the rules and regulations of the Department of Liquor Control; that they have not participated directly or indirectly in the proceeds or profits from the sale of any article intended for the prevention of conception, as described in the directives hereinafter set forth; and that each of the defendants threaten to and will attempt to enforce the provisions of the directives hereinafter set forth against the lawful businesses of the plaintiffs, permittees and vendors, and all others similarly situated, unless restrained from so doing.

Plaintiffs allege that on September 5, 1951, the chief of the enforcement division of the Board of Liquor Control, acting with the knowledge of the Director of the Department of Liquor Control and the other defendants named herein, issued a directive to the investigators in charge and field inspection supervisors on the subject, “contraceptive machines,” as follows:

“The central enforcement office has received information that a number of' permit premises are exhibiting machines which sell ‘contraceptives.’
“As a matter of general public policy, and in the interest of maintaining decency and good order on permit premises, it shall be the policy of the enforcement division to order such machines out of permit premises and a report of such order submitted to the central enforcement office.
“In those cases in which the permit holder refuses to cooperate with the enforcement division in removing contraceptive machines from his premises, a citation should be filed under the charge 'other sufficient cause’ to wit, 'failure to maintain decency and good order on permit premises.’ ”

■Plaintiffs allege further that on November 14, 1951, the chief of the enforcement division of the Board of Liquor Control issued a further directive to the investigators in charge and field inspection supervisors on the subject, “contraceptive vending machines, ’ ’ as follows:

“The determination of the legality of the order issued in bulletin Nó. 16 on September 5, 1951, has been determined.
“It is hereby ordered that bulletin No. 16, relative to the immediate removal of contraceptive vending machines from permit premises, be put into effect.
“The refusal or neglect of a permit holder to remove the contraceptive vending machines immediately is grounds for a citation. The citation should include the charge of 'other sufficient causes’ and a charge under G. C. 13035,” which mates it a penal offense to sell an article “intended for the prevention of conception.”

Plaintiffs allege further that the prophylactics are sold only for the prevention of venereal disease and are not contraceptives or contraceptive devices, and are not sold with the intention that they be used as contraceptive devices; that defendants arbitrarily, capriciously and without right or sanction of law, claim that such prophylactics are contraceptives per se, without regard to plaintiffs’ intent; and that acting upon such interpretation, the defendants construe the word, “contraceptive, ’ ’ as used in the above directives and in Section 13035, General Code, to include prophylactics as lawfully dispensed in vending machines of plaintiffs.

Plaintiffs allege further that the threatened action of defendants is unlawful, unconstitutional, and void, and such action of defendants will result in irreparable injury to plaintiffs, for which they have no adequate remedy at law. Plaintiffs allege that no rules or regulations have been promulgated by the Board of Liquor Control, as contemplated by the Liquor Control Act (Section 6064-3, General Code), to classify the prophylactics sold by the plaintiffs as contraceptives or indecent, and that there are no laws construing the sale of such prophylactics as contraceptives or indecent articles, or in violation of the public policy of the state of Ohio; that the directives were issued by the chief enforcement officer in violation of the provision of the Administrative Procedure Act (Section 154-63, General Code) and the Liquor Control Act (Section 6064-3, General Code); that such directives are illegal in that they constitute class legislation and do not have uniform operation, prohibiting the sale only through vending machines, and do not prohibit sale on permit premises by other means, sources or methods, and therefore constitute a violation of Section 1, Article I of the Constitution of Ohio, in that they deny plaintiffs the right to enjoy, acquire and possess lawful property, and Section 26, Article II of the Constitution of Ohio, in that they are not general in nature and do not have a uniform operation throughout the state, and Section 1 of the Fourteenth Amendment to the United States Constitution, in that they deny plaintiffs due process of law.

We have quoted at length from the petition, which in itself states clearly the multitudinous legal questions raised by the appellants. It will be observed that the appellant Walter Howell petitions the court not only as a holder of a class D-5 (night club) permit, but also as the owner of the vending machines. We fail to find a good cause of action stated by the appellant Walter Howell as owner of the vending machines. On this phase of the case the contention of Walter Howell seems to be that if the department suspends or revokes the permit of the permittee he, as owner of the vending machines, would lose one outlet for the conduct of such business and would be required to search for another. The permit may be suspended or revoked for any one of a number of reasons, with the same consequence resulting to the owner of the vending machines. If this set of facts is sufficient to require the court to act, any person or corporation whose liquor is sold on the premises, any food manufacturer whose food products are served to patrons, any employee of the permittee, and others, would have an equal standing in court. The business of dispensing prophylactics by the use of vending machines bears no relation whatever to the conduct of the night club business as authorized by a class D-5 permit. The exclusion of the vending machines will not affect the conduct of a night club as contemplated by the license issued. No legal grounds exist for the exercise of the equitable jurisdiction of the court in favor of the owner of the vending machines.

With respect to the permittee a different situation exists. The issue here must be resolved on the basis of the authority of the Department of Liquor Control and the Board of Liquor Control. As we view it, the question presented may be stated as follows: May a permit holder permanently enjoin the Department of Liquor Control, the Board of Liquor Control, and the chief of the enforcement division, from issuing a citation against the permittee to show cause why his permit should not be suspended or revoked on the ground that the permittee is conducting on the premises, independently and without specific permission, a business or engaging in any acts which the Department of Liquor Control considers “a failure to maintain decency and good order on the permit premises,” and “other sufficient cause” for suspension or revocation of the permit?

It is stated in the directive that the citation should include the charge of “other sufficient causes,” and a charge under Section 13035, General Code. The directive, which incidentally is only an inter-department written instruction to investigators and field inspection supervisors, states such acts are grounds for a citation. There is no allegation in the petition that the defendants, jointly or either of them, have notified the Howells or any other permittees to remove the vending machines, or have informed the Howells or any other permittees that if such machines were not removed, a citation will be issued against them. Unless there is a showing of a reasonable apprehension of injury, the occurrence of which is imminent, equity will not interfere. 16 Ohio Jurisprudence, 47, Section 18. On this ground alone we question whether the equity powers of the court may be invoked.

Whether the Howells, as holders of a class D-5 permit, may be entitled to relief must be approached from the viewpoint of the authority and powers of the Department of Liquor Control and the Board of Liquor Control. Under paragraph 1 (c) of Section 6064-3, General Code, the Board of Liquor Control is granted the power to promulgate:

“Buies, regulations, and orders providing in detail for the conduct of any retail business authorized under permits issued pursuant to the Liquor Control Act and amendments thereof, with a view to insuring compliance with the provisions of said act and amendments thereof and laws relative thereto, and the maintenance of public decency, sobriety, and good order in any place licensed under such permits.”

It is conceded that the Board of Liquor Control has not promulgated any “rules, regulations, and orders providing in detail for the conduct” of any retail business with respect to the dispensing of prophylactics. In paragraph 1 (k) of Section 6064-3, General Code, it is provided:

“The Board of Liquor Control shall be governed by the provisions of the Administrative Procedure Act (Sections 154-61 to 154-74, General Code) in adopting, repealing, amending or rescinding rules, regulations and orders relating to the issuance, suspension, revocation and cancellation of permits and to the conduct of hearings and reviews thereon.”

The appellants contend that under this section the department is not permitted to issue a citation against the permittees on the grounds alleged unless there has first been a rule, regulation or an order adopted by the board in conformity to the provisions of the Liquor Control Act and the Administrative Procedure Act. We do not agree. The provisions of the section quoted above refer to the procedure to be followed in adopting rules, regulations and orders, and do not require the Board of Liquor Control to set out in detail a list of crimes, offenses or acts of misconduct of a permittee, the violation of which would furnish grounds for suspension or revocation. There is no provision in the Administrative Procedure Act (Section 154-61 to Section 154-74, General Code; Section 119.01 to Section 119.13, Bevised Code), or the Liquor Control Act (Section 6064-1 et seq., General Code; Section 4301.01 et seq., Bevised Code) which requires the Department of Liquor Control or the Board of Liquor Control to anticipate in advance and list by way of rules, regulations or orders the manifold reasons which may give rise to the issuance of a citation to show cause why the permit should not be suspended or revoked. The impracticability of such a measure is a sufficient reason why there is no such requirement. The statute controlling the matter of suspension or revocation confers a wide discretion upon the Board of Liquor Control (Section 6064-25, General Code; Section 4301.25, Revised Code) in suspending or revoking a permit. This section, in part, provides:

“The Board of Liquor Control may suspend or revoke any permit issued pursuant to the Liquor Control Act for the violation of any of the applicable restrictions of this act or of any lawful rule or regulation of the board or other sufficient cause, and for the following causes: * * *.” (The specific causes set out are not applicable to the issues presented.)

Section 6064-26, General Code (Section 4301.27, Revised Code), provides:

“The Board of Liquor Control may act in the revocation or cancellation of any permit on its own initiative or on complaint of the department or of any person, after a hearing at which the holder shall be given an opportunity to be heard in such manner and upon such notice as may be prescribed by the rules and regulations of the Board of Liquor Control.”

In the instant case it is alleged that the department has . issued the directive, and will initiate the complaint. The procedural steps thus far taken, and which the plaintiffs allege the department will take, are authorized by this statute. If a citation is issued against any permittee by the Department of Liquor Control, a hearing is accorded the permittee as provided by the rules and regulations of the Board of Liquor Control. From any action of the Board of Liquor Control suspending or revoking the permit an appeal may be taken to the Common Pleas Court of Franklin County (Section 154-73, General Code; Section 119.12, Revised Code), and its judgment may be reviewed by this court. At the hearing the plaintiffs are assured the opportunity to present evidence in support of their contention that the article dispensed in such vending machines is “sold for the prevention of disease only.” Likewise, the department may present evidence to support its contention that the primary purpose of the machines is to sell “contraceptives.” At this hearing “realism” will prevail over “theory” or “good .intentions.” At this hearing, and upon the evidence adduced, the question posed will be whether the permit premises are being used as a base of operation for the sale of an article which is calculated to have a demoralizing effect on the youth, or any person who may frequent the permit premises and make such purchases; whether the article is not purposely designed and adapted so that it may or can be used as a contraceptive; or whether, as claimed by plaintiffs, it is designed and sold and intended to be primarily a preventive of venereal disease.

Counsel for plaintiffs contend that the intention of the vendor controls; that the intention of the vendor in the instant case is to dispense the article solely for the purpose of the prevention of venereal disease; and that the plaintiffs are engaged solely in an effort to support the health authorities in the prevention of disease. The plaintiffs contend that the intentions of the vendor control, and that if the intention of the vendor is lawful in that the sale is intended to be made only for worthy and beneficial purposes, the control of the situation lies beyond the authority of the Department of Liquor Control.

In support of this contention counsel cite Davis v. United States (C. C. A. 6, 1933), 62 F. (2d), 473. In that case Davis and others were jointly convicted under each of two separate indictments, one charging the deposit in the mails of nonmailable matter, and the other charging the deposit with an express company for carriage in interstate commerce of matter adapted and intended for the prevention of conception. Federal Criminal Code Section 211 (Title 18, Section 334, U. S. Code), provides in part that every article or thing ‘ ‘ designed, adapted, or intended for preventing conception * * * is hereby declared to be nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office or by any letter carrier.” The court, as disclosed by the headnotes, held:

“3. Intent of person mailing circular conveying information for preventing conception that article should be used for condemned purposes held necessary to conviction.
i C # * #
“5. Excluding evidence showing absence of intent that article or thing described in circular deposited in mails should be used for unlawful purposes to prevent conception held error.”

The Davis case was a criminal case, and the unlawful intent of the defendants, the vendors or senders, was an element in the crime charged. On this issue, the intent of the vendee was immaterial and of no consequence. The court in that case applied a well-established principle of criminal law. That case has no application to the issue presented here.

We revert to a consideration of the authority of the Department of Liquor Control and the Board of Liquor Control. Section 6064-25, General Code (Section 4301.25, Revised Code), provides:

“The Board of Liquor Control may suspend or revoke any permit * * * for the violation of any of the applicable restrictions of this act or of any lawful rule or regulation of the board or other sufficient cause * * *.”

It will be noted that the grounds for suspension or revocation fall in three categories: First, restrictions of the act; second, lawful rules or regulations; third, other sufficient cause. The claim of the plaintiffs that there must first be a rule or regulation, promulgated by the board, before the board may suspend or revoke a permit, has no. merit. It may suspend or revoke for “other sufficient cause.” Wittenberg v. Board of Liquor Control, 52 Ohio Law Abs., 65, 73; Khoury v. Board of Liquor Control, 52 Ohio Law Abs., 434, 438. Whether the conduct of the plaintiffs shows “other sufficient cause” remains for future determination of the board, and perhaps for the courts.

The permit holder operates under a license. In Abraham v. Fioramonte, 158 Ohio St., 213, 107 N. E. (2d), 321, 33 A. L. R. (2d), 1267, the court in the syllabus held:

“Permits issued by the Department of Liquor Control * * * are personal licenses and are not property.”

As a licensee the permit holder is amenable to the provisions of the Liquor Control Act and must exhaust the remedies therein provided.

The court may not substitute its judgment for that of the department or the board. Farrand v. State Medical Board, 151 Ohio St., 222, 85 N. E. (2d), 113; State v. Tancer, 62 Ohio Law Abs., 360. If a permanent injunction were granted on the grounds alleged, the effect would be to permanently deprive the department and the board from exercising a discretion in a field in which the statute confers on the department and the board full power and authority to act in the first instance.

We find no acts alleged which constitute an abuse of discretion by the department or the board.

The plaintiffs have an adequate remedy at law. The claim that the action of the department violates the constitutional rights of the plaintiffs is without merit.

A court will not invoke its extraordinary powers by issuing a permanent injunction unless the right to such extraordinary remedy is clear. We find no basis for granting the injunction, and the judgment of the Common Pleas Court in refusing the injunction was correct.

Judgment affirmed.

Miller and Iíornbeck, JJ., concur.


text:
    Miami Cigar & Tobacco Co., Appellant, v. Peck, Tax Commr., et al., Appellees.
    (No. 2271
    Decided December 7, 1954.)

      Mr. Ralph A. Skilken, for appellant.

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

This is an appeal from a decision of the Board of Tax Appeals, hereinafter referred to as the board, affirming an order of the Tax Commissioner, hereinafter referred to as the commissioner, fixing the value for taxation for the year 1952 of certain cigarette vending machines of appellant.

The board decreased the annual depreciation rate from the 20 per cent applied by appellant in its return to 10 per cent and held that such rate was the correct basis for determination of the true value of the machines.

This is the first case submitted since this court was given jurisdiction to review decisions of the board, and we are impressed with our limited knowledge of the subject. However, we have been helped by the opinion of the attorney examiner on the appeal to the board and with the briefs of counsel.

The attorney examiner in his opinion succinctly states the question presented for determination, namely: What is the period of actual usefulness of the machines, whether five years, as claimed by the appellant, or ten years as found by the commissioner?

The section of the statute which is the basis for determination of true value of the personal property involved is Section 5389, General Code:

“In the case of personal property used in business, the book value thereof, if any, less book depreciation, at such time or times, shall be listed and such depreciated book value shall be taken to be the true value of such property, unless the assessor shall find that such depreciated book value is greater or less than the then true value of such property in money.”

This language makes the book value of the property, less book depreciation at listing time, prima facie evidence of the true value of the property in money. Appellant, in listing its property, conformed to this statute. The Tax Commissioner, using what is known as Computation Directive No. 302, held that the annual depreciation rate of 20 per cent applied by appellant was too high and fixed the depreciation rate at 10 per cent. In so doing, insofar as we can determine, the commissioner relied wholly on the above directive. It is insisted by appellant that the board on appeal did likewise, and failed to give proper consideration to the other facts which justified the valuation appearing in the return of appellant.

The hearing before the Board of Tax Appeals on an appeal from an order of the Tax Commissioner is a trial de novo.

“In an appeal from an assessment based on an alleged erroneous valuation of intangible personal property by the Tax Commissioner, the Board of Tax Appeals is required to consider the entire evidence anew and arrive at its own valuation based on the evidence before it.” Clark v. Glander, Tax Commr., 151 Ohio St., 229, 85 N. E. (2d), 291, paragraph one of the syllabus.

The appeal was so heard and the respective claims were fully developed. In the written opinion of the attorney examiner of the board, many of the factors were considered which appellant contended supported its return.

W. L. Harper Co. v. Peck, Tax Commr., and Richter Transfer Co. v. Peck, Tax Commr., 161 Ohio St., 300, 118 N. E. (2d), 643, and Willard Storage Battery Co. v. Peck, Tax Commr., 161 Ohio St., 197, 118 N. E. (2d), 514, all hold that although directives, one of which was applied in this case, are properly used and do in general reflect the true value of personal property, they may not be rigidly adhered to, and full consideration must be given to all the circumstances and facts pertinent to the issue.

It is our considered judgment that, although the board through its attorney examiner, discussed the facts developed by appellant, it gave major consideration to its directive. We believe that the actual transactions of the appellant in the handling and disposal of about half of the total number of machines that it had in operation and the prices received for them should weigh more heavily in fixing their true value than any rule, however well recognized.

Special consideration must be given to the high rate of obsolescence peculiar to these cigarette vending machines. There was no general market for them. They were of value only to a small and restricted number of dealers. It is testified, and not denied, that in comparatively recent years the machines have rapidly changed in many particulars. They were originally operated manually, changed to electrical operation, and at present the approved operation is manual. The variation in the cost of cigarettes required mechanical alteration in the machines, as did the later development of what is known as king-size cigarettes, necessitating the placing of additional stacks to accommodate the greater variety of packs. It develops that there was an ever-present urge to induce the installation of new machines with improved appearance and enhanced public- appeal. It further appeared that heavy usage of the machines in certain locations necessitated frequent investigation and repairs, so that after a certain time in use it became more profitable to discard the old or change them to a less active location and to install new ones.

From 1947 to 1951 the appellant company had a record of sales of its vending machines, the total amount of which conformed approximately to the book value which it set up as a basis of the value of the machines listed for taxation in 1952. Upon a depreciation rate of 20 per cent as to most of the machines, and 30 per cent as to some of the very old ones, the return to the company produced a profit average of $2.71 per machine. In this compilation value received included not only cash sale price but also the amounts allowed in trade-in on new machines. It is common observation that, in general, trade-in allowances are in excess of true market value. Had the machines been valued upon a 10 per cent depreciation rate the loss in the sale would have been almost $8,000.

It is urged that the date of acquisition of the machines does not appear, and that this was an element which must be considered in fixing their value. It appears to us, inasmuch as the annual rate of depreciation used by the company is agreed, that the date of acquisition could easily have been determined. It is also asserted that upon appellant’s own testimony it appears that the machines had a useful life expectancy in excess of five years. Even so, they were then taxable at the minimum valuation fixed by statute. The evidence does show that some of the machines were used for more than five years, but we cannot find in any instance where they were used as long as ten years. The president of appellant company testified that the normal useful life of the machine was not more than five years. There is quite a spread between a 20 per cent and 10 per cent depreciation rate which might, upon further development of the facts, be applicable to the appraisal here.

We recognize the limitation upon our authority to hold that the decision of the board is unreasonable, and that we may not substitute our judgment for that of the board; Fair Store Co. v. Board of Revision, 145 Ohio St., 231, 61 N. E. (2d), 209. However, we cannot avoid the conclusion that the board relied too implicitly on its directive and did not accord proper weight to the facts and circumstances developed by the appellant tending to prove that the return as made by it was proper.

The board had access to valuation of machines like these under consideration, and wide experience in such cases, but none of this appears in the record. Nor was there any attempt on the part of counsel for the board to elicit the information upon which the board rested its decision in part, namely, the date of acquisition of the machines which were sold.

In our judgment the decision of the board was unreasonable. It will be and hereby is reversed and the cause remanded for further consideration according to law.

Judgment reversed.

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