author: Thompson, J.

text:
    Maxey, Sr., Appellant, v. Gather et al., Appellees.
    (No. 4277
    Decided November 21, 1952.)

      Mr. Robert E. Lee Maxey, in propria persona.

      Mr. Alva J. Russell, for appellees.
   Thompson, J.

The present matter constitutes an appeal to this court on questions of law from a judgment of the Common Pleas Court of Summit County, sustaining various demurrers to plaintiff’s petition, granting motions to quash service of summons by other defendants, and dismissing plaintiff’s petition.

The petition of plaintiff comprises 25 pages, 83 numbered paragraphs, and three specified causes of action against 31 parties defendant. Paragraph three of the petition states' that plaintiff brings his action and complaint against the defendants “in order to recover compensation for all of the damages that the said defendants have done to him, by their false actions and forged indictment of twenty forged, false and trumped up charges of robbery, larceny and for his false conviction, false imprisonment and any and all other injuries that the said defendants have done to the plaintiff * * Further, in paragraph 20, the petition states that certain of the defendants caused the grand jury of Summit county in May and June 1942 to forge an indictment against him of 20 false and forged counts for the sale of unregistered stock.

.The petition alleges further in paragraph 30 that ‘ ‘ through trickery, larceny, scheming, lies and misrepresentations of the law and a prejudicial judge and a fixed petit jury, and an unfair and unjust trial, and an unfair and unjust court, ’ ’ plaintiff was convicted on two of the charges and sentenced to the Ohio Penitentiary, the sentence being for a period of five years as to each charge, the sentences to run concurrently. The petition then avers that plaintiff appealed his conviction to the Court of Appeals and that the latter court “did wilfully, maliciously, knowingly, intentionally, corruptly and illegally affirm the decision of the Common Pleas Court of Summit County.”

The petition recites further that plaintiff was thereafter taken into custody on February 10, 1945, held in the county jail in Akron for four days, then taken to the Ohio Penitentiary in Columbus, where he was confined for the full term of five years and released on February 13, 1950.

Plaintiff’s petition, filed on January 4, 1951, names as defendants the trial judge, the officers who arrested him, the then county prosecutor, the three judges comprising the Court of Appeals at the time, the three members then constituting the Ohio Pardon and Parole Commission, the warden of Ohio Penitentiary, the Director of Public Welfare for the state of Ohio and various surety companies on the bonds of certain of the public officials named as defendants.

Demurrers to the petition were filed by the former Director of Public Welfare, by the trial judge, by the individual judges of the Court of Appeals, by the county prosecutor and by various other defendants. The demurrers in each instance stressed one or more of the following grounds, namely, that the action was not brought within the time limited for the commencement of such actions, that the petition did not state facts setting forth a cause of action, or that there was a misjoinder of defendants. The court sustained the demurrers, dismissed the petition, and entered judgment against plaintiff for costs. Notice of appeal to this court was filed by plaintiff. No assignments of error and no bill of exceptions were filed in this court, but the case was argued and submitted here on briefs and oral argument, plaintiff acting as his own attorney.

The question before us is whether error was committed by the trial court. The transcript discloses that the petition in this case was filed on January 4, 1951, and the allegations of the petition recite that plaintiff was released from prison on February 13, 1950. The first praecipe was issued for defendants on February 14,1951. The facts, therefore, indicate that more than one year intervened between the release of plaintiff from prison and the issuance of summons upon the petition.

The pertinent section of the General Code relating to actions of the character of the present suit is Section 11225. This section provides, in part, as follows:

“An action for libel, slander, assault, battery, malicious prosecution, false imprisonment or malpractice, or upon a statute for a penalty or forfeiture, shall be brought within one year after the cause thereof accrued. * * *”

The foregoing section is to be read with the disability section, being Section 11229, which is as follows:

“Unless otherwise specially provided therein, if a person entitled to bring any action mentioned in this chapter, unless for penalty or forfeiture, is, at the time the cause of action accrues, within the age of minority, of unsound mind, or imprisoned, such person may bring it within the respective times limited by this chapter, after such disability is removed. When the interests of two or more parties are joint and inseparable, the disability of one shall inure to the benefit of all.”

Examination of the foregoing sections makes it clear that under the facts disclosed by the petition any cause of action on the part of plaintiff as result of the deeds complained of would terminate within one year after the cause of action arose, or, if plaintiff was then under disability, within one year after plaintiff’s disability was removed. In the instant case, any cause of action of plaintiff, therefore, terminated one year after his release from prison. This conclusion is inevitable in view of Section 11230, General Code, which provides that an action shall be deemed to be commenced within the meaning of Chapter 2, “Limitations of Actions,” at the date of service of summons upon one of several defendants. Since none of the defendants in this case was served prior to February 16, 1951, we have no hesitation in determining that plaintiff’s action is barred by the applicable statute of limitations.

What we have said is, to our minds, dispositive of the present action. We believe, however, that in view of the unusual and sensational charges by plaintiff in this case involving public officials and the functioning of the courts, and clearly libelous if not protected by the privilege accorded court pleadings, we should be doing a disservice to plaintiff, who throughout has acted as his own counsel, if we omitted to express our belief that, aside from technical difficulties, his petition fails in any event to set forth a cause of action. The trial court reached that determination. On that point, the allegations of the petition are conclusive for it is alleged that, after plaintiff’s conviction in the Common Pleas Court, he appealed to the Court of Appeals for Summit County. The petition not only states that the Court of Appeals affirmed the judgment, but that plaintiff thereupon served the sentence imposed, indicating he took no further steps to appeal from the judgment of affirmance of the Court of Appeals. It is apparent, in the absence of further appeal or reversal of the Court of Appeals by the Supreme Court, that the affirmance of the Court of Appeals of the conviction constituted a final adjudication of the guilt of plaintiff and, ipso facto, a finding that the defendants, as to their part therein, merely acted in the performance of their official duties. Plaintiff having failed to exhaust his remedies by appeal, he must be said to have acquiesced in the judgment against him and he cannot now question that judgment collaterally by the present proceedings.

In any respect, we know of no principle of law which would permit a guilty party to maintain an action for damages against arresting officials, judges who presided at the trial, the Ohio Pardon and Parole Board, which in its discretion failed to release him prior to the expiration of his sentence, or the Director of Public Welfare of Ohio. Both precedent and reason compel this conclusion.

An early case, in which a plaintiff who had been convicted subsequently brought suit against the judge who had sentenced him, is Hamond v. Howell (England, 1677), 2 Mod. Rep., 218, 86 Eng. Rep. R., 1035. It was therein declared:

“An action will not lie against a judge for what he doth judicially, though erroneously. ’ ’

Numerous other early cases in England reached a similar conclusion that where a judge acts judicially, no action will lie against him. See, for example, Gwinne v. Fool (1692), 2 Lutw., 935, 125 Eng. Rep. R., 522. The principle is so well accepted that English cases hold that a judge shall not be held civilly liable even for acts done maliciously and contrary to good faith but within his jurisdiction. In Anderson v. Gorrie (1895), 1 Queen’s Bench Div., 668, Lord Esher explained the reasoning of the cases as follows:

“The ground alleged from the earliest times as that on which this rule rests is that if such an action would lie the judges would lose their independence * * * and independence of the judges is necessary for the administration of justice. ’ ’

In this country, and in more recent times, the principle appears to be universally accepted that a judge shall not be civilly responsible for his official deeds while acting within his jurisdiction. For a discussion of the subject generally, see 30 American Jurisprudence, 755, “Judges,” Section 43. The rule is said to rest upon considerations of public policy, and “to insure that judges will act on their own free, unbiased convictions, uninfluenced by any apprehensions of consequences.”

A leading case in Ohio on the immunity of judges for their official acts is Brinkman v. Drolesbaugh, 97 Ohio St., 171, 119 N. E., 451, L. R. A. 1918F, 1132. That case likewise holds that the same public policy protects an administrative or executive officer, whether constable, policeman, game warden, sheriff, or other authorized officer of the state whose duty it is, under the law, to serve the process of the court, in the event of subsequent claims arising from an imprisonment by virtue of a process prima facie regular.

More recent decisions of our Supreme Court, recognizing the principle, are Stahl v. Currey, 135 Ohio St., 253, 20 N. E. (2d), 529; and Voll v. Steele, 141 Ohio St., 293, 47 N. E. (2d), 991.

The principle is hallowed by age and tested by experience. The courts under our Anglo-American system of jurisprudence are the final repository of the freedoms of the individual citizen, the last best hope for freemen everywhere. The courts cannot function freely and impartially in the preservation of men’s freedoms if, for personal consequences, they hesitate to declare the law as they find it, without fear or favor of the great or small. Where acting without jurisdiction or beyond their official duties, judges are, of course, accountable in the same manner as private citizens. They may likewise, for cause, be removed from public office by concurrent resolution of both houses of the General Assembly, if two-thirds of the members elected to each house concur therein, as provided by Section 17, Article IV of the Ohio Constitution. With this safeguard to the citizen, and within the limitations imposed by the Constitution and the laws of the land, courts need to be untrammeled in their decisions, not for the passing protection of the judge, but for the lasting protection of a free society. In the final analysis, the measure of freedom of a nation is its support of a free and independent judiciary, dedicated to uphold a government of laws, as distinguished from a government of men.

Since the arresting and prosecuting officers and the judicial authorities are not subject to account in the instant ease, it is apparent that the action fails also with respect to the other defendants, including the penitenitiary warden, the Director of Public Welfare, the members of the Pardon and Parole Commission, and the surety companies.

The judgment of the trial court is affirmed.

Judgment affirmed.

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

Skeel, P. J., Hurd and Thompson, JJ., of the Eighth Appellate District, sitting by designation in the Ninth Appellate District.


source: Caselaw Access Project

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

license: Public Domain

text:
    Rice, Appellee, v. Pigman, Appellant.
    (No. 1013
    Decided April 23, 1953.)

      Messrs. Fitton, Pierce & Black, for appellee.

      Mr. Harry T. Wilks, for appellant.
   Ross, J.

This is an appeal on questions of law from a declaratory judgment of the Court of Common Pleas of Butler County, in favor of the plaintiff, who is an attorney employed by Prank Pigman, one of the defendants in the action, to handle a claim under the Workmen’s Compensation Act against the defendant Fisher Body Division, General Motors Corporation, a self-insurer.

In the petition, it is alleged that the plaintiff and defendant Pigman entered into a written contract, wherein it was agreed that the plaintiff would handle the case of Pigman “before the Industrial Commission of Ohio, and in the courts if necessary” and receive as full compensation, “a sum equal to but not exceeding twenty per cent (20%) which sum shall include both fees and expenses, leaving the full amount of eighty (80%) net” to Pigman. The effect of such agreement is to relieve Pigman of all costs and expenses and fees not included in a contingent fee of 20% of the recovery.

Plaintiff stated further that, pursuant to the agreement, he did represent Pigman before the Industrial Commission, that an award was obtained for Pigman in the sum of $3,125, and that the plaintiff is entitled to the sum of $635 “for his fees and expenses incurred incident thereto. ’ ’

Plaintiff admitted receipt of $10, and stated that the award, with the exception of $615, has been paid to Pigman, and that such latter sum remains in the hands of the defendant Fisher Body Division, General Motors Corporation, Pigman’s employer.

Plaintiff stated further that Pigman made an assignment of such sum of $615 to him, but has since repudiated the same. It is alleged that the defendant Fisher Body Division of the General Motors Corporation is a self-insurer.

Plaintiff prayed for a declaration of his rights under such contract and assignment; that the funds in the hands of the corporation be impounded; that such contract and assignment be declared reasonable and binding upon the parties to the action; and that the sum of $615 in the hands of the corporation be ordered paid to him. The Industrial Commission was made a party to the action ‘ ‘ out of courtesy to it. ’ ’

Demurrers to the petition were overruled. The Industrial Commission tiled no pleading of any kind. The corporation answered, alleging it had $425 in its possession, a balance due Pigman out of a settlement made with him.

Pigman answered, stating that the contract had been “the subject of a finding of fact” by the Industrial Commission, wherein it was found that a dispute existed between the plaintiff and Pigman concerning the amount of attorney’s fees due plaintiff, that the services rendered by the plaintiff “were of a reasonable value of $150, $10 of which had been paid by Pig-man, leaving a balance of $140 due plaintiff. ’ ’ Pigman denied that plaintiff had ever represented him before the Industrial Commission.

Trial was had to the court without a jury. The court in its entry found that Pigman had employed the plaintiff “as alleged in the petition”; that an award was made after services rendered by plaintiff; that Pigman made an assignment as alleged in the petition; that the contract and assignment were valid; that the corporation holds $425 as a balance due Pigman out of a settlement made with him; that Pigman was legally obligated to pay the plaintiff $625 as compensation for his services; that Pigman has paid plaintiff $10; and that there is now due and owing plaintiff the sum of $615. An order was made directing the corporation to pay plaintiff the snm of $425.

From the evidence it appears that the instruments were executed as alleged by plaintiff; that Pigman employed plaintiff on June 28, 1949; that an award was made by the corporation of $3,125 on June 5, 1950; that the assignment was executed November 16, 1951; and that on December 5, 1951, plaintiff mailed a motion and letter to the industrial commission. It appears further that in this letter plaintiff stated “there is no dispute,” and further that “it may be that the employer will hang fire on this, unless as in the past, the commission approves the mutual arrangement which has been made between attorney and client.” (Emphasis added.)

The motion accompanying this letter was on a form of the Industrial Commission of Ohio. In it was stated the amount due plaintiff; that the assignment had been executed; that a copy was sent to the corporation ; and that the corporation-employer has failed to acknowledge receipt thereof. Copies of the agreement, assignment, power of attorney, and letters to the employer and Pigman were attached to the “motion” which concluded with: “Therefore said attorney moves the commission to enter an order herein, authorizing and directing said employer to comply with the request of the claimant set forth in the above mentioned paper, as per the terms thereof, it being a self-insuring employer.”

It will be noted (1) that plaintiff in his letter to the Industrial Commission seeks its approval of the arrangement with Pigman; (2) that Pigman invokes the power of the commission to require the employer to honor the assignment; and (3) that “in support of this motion” plaintiff submitted copies of the contract, assignment, and letters to Pigman and the employer corporation.

On December 8, 1951, Pigman filed a letter with the Industrial Commission. In this letter he stated his employment of plaintiff, that he had executed the contract, that he had only one other “contact” with plaintiff when he went to plaintiff to see if he should sign certain papers in connection with an award which he had been informed by his employer was being made. In this letter Pigman protested vigorously that the fees charged were excessive and stated he was willing to pay what is right. The plaintiff in his letter stated that there was no dispute. Certainly, it would not seem to require more than what here appears to justify the conclusion that a most serious “controversy in respect to fees” was here involved. It thus appears that both parties invoked the power of the Industrial Commission to act in respect to fees.

The plaintiff sought the approval of the commission of the instruments involved, which included the fixing of plaintiff’s compensation, and Pigman asked for the fixing of a reasonable fee.

It appears further from the evidence that the services rendered by the plaintiff were slight indeed. The plaintiff attended a hearing held by the Industrial Commission after notice to the parties, but withdrew when it was apparent the commission intended to inquire into the extent and character of the services rendered by plaintiff.

The Industrial Commission approved as reasonable a charge of $150, with a credit of $10 paid thereon by Pigman, and, under the circumstances, it would seem that it acted wholly within its powers in so doing under the provisions of Section 1465-111, General Code. Of course, the implication is that a fee in excess of $150 is unreasonable.

It will be noted that the trial court (1) made no finding on the reasonableness of the fee, (2) predicated its conclusions solely upon the binding character of the instruments signed by the plaintiff and Pigman, (3) found that the settlement by the employer was “made under authority of the defendant Industrial Commission of Ohio,” and (4) ignored the finding of reasonableness by the Industrial Commission, although the evidence of such finding was before it.

One other matter is to be considered. The Industrial Commission made no order as to fees. Its action is a finding of reasonableness and nothing more. It made no finding on the conclusiveness of the agreement and assignment.

If the trial court was correct in its conclusion that the agreement and assignment are valid and binding on Pigman, then its judgment must be affirmed.

In 10 American Jurisprudence, 557, “Champerty and Maintenance, ’ ’ Section 9, it is stated:

“A contract for a contingent fee by which an attorney agrees to save his client harmless from costs and expenses of proposed litigation is void.”

To the same effect is 7 Ohio Jurisprudence, 99, “Champerty and Maintenance,” Section 4.

To the same effect are the cases: Stewart v. Welch, 41 Ohio St., 483; Pennsylvania Co. v. Lombardo, 49 Ohio St., 1, 5, 29 N. E., 573, 14 L. R. A., 785; Reece v. Kyle, 49 Ohio St., 475, 484, 31 N. E., 747, 16 L. R. A., 723; and Brown v. Ginn, Trustee, 66 Ohio St., 316, 324, 64 N. E., 123.

These authorities require the conclusion that the agreement between the plaintiff and Pigman was champertous, against public policy, invalid, and, therefore, unenforceable; and the assignment predicated thereon must also be stamped with the same character of illegality.

The judgment of the trial court is reversed, and the judgment which the trial court should have rendered in favor of the defendant is here entered.

The matter of the reasonableness of the fee was not a matter which, under the circumstances here con-’ sidered, was or could have been submitted to the trial court. The action instituted by the plaintiff was not an appeal from the “finding” of the Industrial Commission.

Judgment reversed.

Hildebrant, J., concurs in syllabus, opinion and judgment.

Matthews, P. J.,

dissenting. In this action for a declaratory judgment, it is my view that if the court assumes jurisdiction at all, it should proceed to declare all the rights of the parties. It may very well be that the express contract and assignment between these parties are champertous and void. The court has so declared. The plaintiff, therefore, can predicate no claim upon them. The question remains as to whether he has any other lawful basis for a claim.

I am of the opinion that the plaintiff, having performed some service at the special instance and request of the defendant Pigman, contributing, at least to some extent in the allowance of his claim against General Motors Corporation, he was entitled to reasonable compensation therefor, the exact amount to be fixed by the Industrial Commission under the authority conferred upon it by Section 1465-111, General Code. I think our judgment should include this declaration. Its omission requires me to dissent.


author: Per Curiam.

text:
    Watkins, Appellant, v. Lederer et al., Appellees.
    (No. 7604
    Decided October 6, 1952.)

      Mr. Walter K. Sibbald, for appellant.

      Mr. William P. Hohmann, for appellee Ella Lederer.

      Mr. John E. Eeilker, for appellee Emma Rick.
   Per Curiam.

The basic facts of this case^have been before this court on two prior occasions. See Gallagher v. Lederer, 86 Ohio App., 181, 90 N. E. (2d), 412; and Gallagher v. Lederer, 60 Ohio Law Abs., 323, 102 N. E. (2d), 272.

As between the parties to those cases the issue was settled. By those decisions the defendants were adjudged to have a right or easement on and over “Gallagher Lane” under the grant to them by Walter Gallagher by duly executed deed dated October 25, 1947.

After this controversy had reached the apparent repose of a final judgment, Walter Gallagher (the plaintiff in the action and the grantor in the conveyance of October 25, 1947), discovered that in the partition of his father’s estate between himself and his brother, Ray Gallagher, the latter manifestly through mistake and contrary to their intent did not include in his deed to Walter Gallagher the strip over which this easement was granted to the defendants. After making this discovery and knowing that Ray Gallagher had intended to convey his one-half interest to Walter Gallagher thereby vesting in Walter Gallagher the complete fee simple legal title, Walter Gallagher asked his brother to correct the situation. Ray Gallagher, recognizing the mistake in the partition deed, readily agreed to make a conveyance to Walter Gallagher without any new consideration accruing to him. However, when the deed was presented it was disclosed that Walter Gallagher through his attorney made an arrangement with his stepson to accept the title. Ray Gallagher executed the deed conveying his one-half to the stepson who is the plaintiff in this action. The reason the grantee was changed was Walter Gallagher’s belief that if the conveyance was made to him he could not assert the title against these defendants to invalidate their easement.

Notwithstanding the partition deed did not include this tract, in view of the admitted intention of the parties that it should be included and their belief for years that it had been included, we are of the opinion that the equitable title to the undivided one-half interest inherited by Ray Gallagher was vested in Walter Gallagher so that at the time he granted the easement to Ella Lederer, defendant, he owned the legal title to an undivided one-half interest and the equitable title to the other one-half interest. The exchange of the partition deeds constituted sufficient consideration for the agreement. 35 Ohio Jurisprudence, 160 et seq. Walter Gallagher could have obtained a decree of reformation of the partition deed so as to make it embrace this strip. 35 Ohio Jurisprudence, 160 et seq., 45 American Jurisprudence, 594, Section 20.

We find that the plaintiff paid no consideration for this conveyance to him and knew of the circumstances of the title, and has no better title than his grantor had, which was subject to the right of Walter Gallagher to require a reformation of the partition deed and a quieting of title. By his deed, Walter Gallagher burdened his entire title — legal and equitable — with the easement.

And as Walter Gallagher has been in undisturbed possession during all the intervening years, laches would be no defense to such an action. 16 Ohio Jurisprudence, 270, Section 114.

For these reasons, we find equities in favor of the defendants, Ella Lederer and Emma Rick.

Judgment accordingly.

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


author: Wiseman, J.

text:
    American Cancer Society, Inc., et al., Appellees, v. City of Dayton, Appellant.
    (No. 2212
    Decided December 16, 1962.)

      Messrs. Taft, Stettinius <S> Hollister, for appellees.

      Mr. Herbert 8. Beane, city attorney, and Mr. M. J. Gilbert, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, which held to be invalid an ordinance of the city of Dayton, which was passed for the purpose of regulating solicitation of funds.

The American Cancer Society, Inc., instituted the action in the Common Pleas Court of Montgomery County to enjoin the enforcement of Sections 638-4 and 638-5 of the ordinances of the city of Dayton on the ground that such ordinance is in violation of the provisions of the Ohio Constitution and the United States Constitution.' After hearing, the court entered judgment that the ordinance in question was void, being contrary to the provisions of the Ohio Constitution and the United States Constitution, and enjoined the enforcement thereof. From that judgment, the city of Dayton took this appeal.

No bill of exceptions has been filed. The matter is presented to this court on the pleadings, a separate findings of fact and conclusions of law, and the judgment. The questions presented are properly exemplified by the record.

Omitting references to the record, the first seven assignments of error filed by the city of Dayton are that the court erred in holding:

“1. That the regulation of fund-raising campaigns is a proprietary function.

‘ ‘ 2. That ‘ the convenience of the public is subservient to the constitutional rights of citizens of the United States. ’

“3. That the ordinance is arbitrary and discriminatory.

“4. That the ordinance unlawfully delegates authority to the Solicitations Advisory Board.

“5. That sections 638-4 and 638-5 are ‘in no way related to public welfare.’

“6. That the refusal of the permit is an illegal denial of plaintiff’s corporate franchise right.

“7. * * * that sections 638-4 and 638-5 specifically, and therefore ordinance No. 15689 in its entirety, are' unconstitutional. ’ ’

The city also assigned as error that the court erred:

“8. In ignoring an additional and sufficient ground for the action of the city Commission.

“9. In voiding said ordinance and permanently enjoining its enforcement.”

Appellant, city of Dayton, contends that the court erred in finding that the regulation of fund-raising campaigns is a proprietary function. In conclusions of law Nos. 8 and 9, unfortunate language is used which seems to indicate that the court was of the opinión that the power to regulate ‘‘the solicitation of funds for charity is not a governmental function, but is a nongovernmental proprietary function,” and that, in the regulation of which, the city is unable to make use of the police power. With this conclusion we do not agree.

Clearly, this legislation lies in the field of the police power, and is not a proprietary function. 8 Ohio Jurisprudence, 333, Section 229. While the contention of the appellant is supported with regard to this assignment of error, it is not determinative of the question presented. If the judgment can be supported otherwise, it is our duty to do so.' In no sense whatever can it be said that conclusions of law Nos. 8 and 9 are prejudicial.

The words of the trial court complained of in assignment of error No. 2 are not found in the separate findings or judgment, but in the prior written opinion of the trial court, which is not a part of the record. We do not find this assignment well made.

Assignments of error Nos. 3 and 4 are considered together and raise the principal question for determination. The conclusions of law on which this contention is based are as follows :

“3. That the ordinance is unconstitutional in that it confers on the solicitations advisory board arbitrary and discriminatory right to reject a permit to any organization based upon the said board’s belief that an object, purpose or movement in a field is adequately covered or entirely covered, and if this fact is found after investigation, the power is given to discriminate as to who may solicit funds for any charitable group or organization.”

“5. That said ordinance is unconstitutional in that it unlawfully delegates authority to the solicitations advisory board in that the standards under which the said administrative board is to be guided are not reasonably related to public welfare, health, safety or protection of the public.”

“10. That the ordinance is discriminatory and arbitrary in that, by its terms, it may be used to discriminate against any other organization or individual without reasonable rules or regulations which would be equally applicable to all those who seek to engage in charitable work or in the solicitation of funds for their desired purpose.”

A brief recitation of the factual situation which developed, as disclosed in the findings of fact, is necessary for a full appreciation of the questions presented. The essential facts may be stated as follows:

The American Cancer Society, Inc., is a membership corporation, not for profit, incorporated under the laws of the state of New York, and the Ohio Division, American Cancer Society, Inc., is a corporation, not for profit, organized under the laws of the state of Ohio. The city of Dayton has a commission-manager form of municipal government. The Ohio division of the society had been functioning in Ohio several years prior to 1950, and it has an organized unit in Montgomery county, operating in the city of Dayton and Montgomery county; that through the local units the general program of the state and national organizations is implemented; that the local unit functions as such under the direction of a local executive committee, maintaining a local office under the direction of a salaried executive secretary. The corporate franchise of the Ohio division of the society provides:

“Collect and disseminate information concerning the symptoms, diagnosis, treatment and prevention of cancer; to investigate the conditions under which cancer is found and to compile statistics in regard thereto; to co-operate with and promote the work of the American Cancer Society, Inc., to solicit, collect, receive, hold, invest, reinvest, distribute and disburse donations, subscriptions, gifts, bequests and other funds for the purposes of this corporation; to aid, in co-operation with state and local medical societies, departments of health, cancer commissions, and other approved and interested health organizations, in the promotion of cancer programs and projects; to establish, maintain and administer units, branches, committees, field armies, and carry on any other activities, within the state of Ohio, to effect and carry out the purposes of this corporation; and the doing of any and all things necessary or incident thereto.”

The franchise of the parent organization issued by the state of New York contains similar powers. For several years prior to 1950, the local unit had been conducting in Dayton and Montgomery county, an annual, combined educational membership and funds solicitation campaign in the month of April, simultaneously with like campaigns throughout the nation; that since 1946, such local campaigns have been conducted under a permit issued to the local unit by the city of Dayton under the ordinance in question; that in 1950, the local membership of said society consisted of approximately four thousand members; that the funds collected and retained for local use were placed in a local bank; that the accounts have been audited; that at no time during its operation has there been any complaint charging it with fraudulent acts or mishandling of funds; that the funds collected were allocated and distributed according to a definite plan and policy, a certain percentage being retained by the local unit, a portion being distributed to the state organization, and a portion to the national organization; that on February 2, 1950, an application was made by the society for a permit to conduct its annual funds campaign, which was duly prepared,- filed and acted upon by the solicitations advisory board, which on February 17, 1950, passed a resolution rejecting said application on the ground that the permit granted to it for 1949 was conditioned upon the society becoming a member of the Dayton community chest organization, and that the Dayton community chest had collected $25,000, which was available for use in a campaign against cancer; that from this ruling an appeal was taken to the city commission, as provided in said ordinance, which passed a resolution as follows:

“Whereas, the Montgomery county unit of the American Cancer Society, Inc., heretofore appealed, under the city ordinance granting such appeals, from the recommendation of the solicitations advisory board against the issuance of a permit to conduct a public campaign in the city of Dayton between April 15 and April 30, 1950; and

“Whereas, the commission having heard the various claims made on behalf of the said society in support of its application, finds that there has been allocated from funds publicly solicited in this community and is presently available to the society for the year 1950, the sum of twenty-five thousand dollars ($25,000), and that, prior to the said application, a permit had been issued for a campaign in behalf of the Miami Valley Hospital in this city to be conducted within the same period; and

“Whereas, the commission therefore does not and cannot find that the object of the proposed cancer drive is not already adequately covered or that it will not be an unwarranted burden upon the persons to be solicited, or that it will not hinder the activity of any other organization to whom a permit has already been granted, or that such solicitation would not be incompatible with the public welfare; now, therefore,

“Be it resolved by the commission of the city of Dayton:

“Section 1. That, though the commission fully recognizes the constructive nature of the work of the said organization and is in sympathy with it, the application of the said Montgomery county unit of the American Cancer Society, Inc., referred to above, be and the same hereby is denied.”

The court found that during the year 1950 the solicitations advisory board approved thirty-seven applications for permits for the solicitation of funds in the city of Dayton, by various organizations. The court further found that at the time the application for permit was refused, the plaintiff-organization was the sole organization in the city of Dayton devoting its time exclusively to combating cancer and maintaining an office and organization for such purpose; that there was at said time no organization in the Dayton community chest or any organization allied with the Dayton community chest engaged in such work. The court further found that the society could not have used the funds indicated as being in the community chest without becoming a member thereof, and that the administration of such funds by the society would have been under the supervision of the community chest. The court found that the program and work of the society was for the public benefit, public welfare and health, and that the said program was not injurious to the public in the city of Dayton; and that the solicitation of funds was not attended by fraud or injury to the public of said city.

We now set forth the several applicable sections of the ordinance which were in full force and effect at the time the application for permit was made and refused. Section 638 provides as follows:

“No person, organization, society, association or corporation, and no agent, member, or representative thereof, shall solicit money, donations, property, or financial assistance of any kind, sell or offer to sell any article, service, publication, advertisement, ticket or subscription, on the direct or implied plea that such solicitation or sale is for charitable, educational, civic, patriotic, religious, or philanthropic purposes, on the streets, in office or business buildings, by house to house canvass, in any public place, by telephone or by mail, or in any other way in the city of Dayton, unless the organization making the solicitation, sale, or offer shall possess a permit issued under the regulations as in this ordinance set forth.”

By related sections, certain transactions and promotion plans are exempted from the provisions of the ordinance, which are not material here.

Sections 638-3, 638-4 and 638-5 provide as follows:

“Section 638-3. Solicitations advisory board. There is hereby created a solicitations advisory board which shall be composed of such number of members as may be appointed by the city commission. The members of such board shall be appointed for a term of two years, shall serve without remuneration for their services as such members and need not be residents of the city of Dayton.

“Section 638-4. Consideration of applications. All applications received by the director of public welfare as aforesaid shall be turned over to the solicitations advisory board, which shall take into consideration the following: As to whether or not it believes that the applicant is proposing to serve an object, purpose, or movement in a field not already covered, or, if so, not adequately covered, representing a public charity or a charitable, philanthropic, or educational organization or enterprise, or other educational purpose, and that same will be beneficial to the people of the city of Dayton, and will not be an undue or unwarranted burden upon the class of persons who will be solicited to contribute thereto, and will not interfere with or hinder or prevent the activity of any person, persons, or organization to whom permit hereunder has already been granted; that the cause for which the solicitation is to be made is in fact charitable, educational, civic, patriotic, religious, or philanthropic; that at least seventy-five per cent of the gross proceeds of such sales promotion or solicitation will be used for such purpose; that such solicitation or sales promotion is not promoted or conducted primarily for the private profit of its promoters; and that it is not incompatible with the public welfare. After investigation, said board shall make recommendation to the city manager as to whether or not a permit should be issued. ’ ’

“Section 638-5. Issuance of permit. Upon receipt of such application with recommendation that a permit be granted, together with bond as required by this ordinance, the city manager shall issue a permit therefor. Such permit shall not be issued for a period longer than thirty days, and shall become null and void upon conviction of the applicant or any officer, agent, or representative thereof of the violation of any provision of this ordinance. Such permit shall specify the method of solicitation, or raising of funds, the purpose thereof, the method of distribution, and the number of solicitors or representatives to be engaged in the actual field work or solicitation thereof, and it shall be unlawful for any person to act as such solicitor or representative without having on his person a certified copy of such permit or such modification thereof as the city manager may adopt, but same must be under the signature of the city manager or his secretary. ’ ’

Section 641 provides the penalty for a violation of the provisions of the ordinance.

The trial court found that the ordinance was arbitrary, discriminatory, and that it unlawfully delegates authority; and that, therefore, the ordinance was unconstitutional and unenforcible.

Is the ordinance arbitrary or discriminatory and, therefore, unconstitutional? It is well established that every reasonable presumption must be indulged in favor of its constitutionality. The presumption of constitutionality continues until the invalidity of the ordinance clearly appears. Every reasonable intendment is to be made in favor of the legislative body which enacted the ordinance. 8 Ohio Jurisprudence, 154, 166, Sections 58 and 64.

A close analysis of the provisions of the ordinance is required. All applications for permits are turned over to the solicitations advisory board, which must i take into consideration “as to whether or not it believes that the applicant is proposing to serve an object, purpose, or movement in a field not already covered,” etc. Herein is found broad discretionary power in determining the objective and purpose of the solicitation, and in determining whether the field is already covered. But the ordinance does not stop at this point. It gives even more power to the solicitations advisory board by providing that it may consider whether the field is or is not “adequately cov-i ered.” These provisions do not attempt to regulate the time, place and manner of conducting a campaign for funds which may serve a worthy purpose. The power conferred permits the solicitations advisory board to prohibit the solicitation for a worthy cause, which is the factual situation in the instant case. Again, the ordinance requires the board to consider whether the solicitation “will be beneficial to the people of the city of Dayton and will not be an undue or unwarranted burden upon the class of persons who will be solicited to contribute thereto.”

One of the most marked characteristics of the modern age is the growth and support of many and varied charitable and philanthropic organizations and movements. Certain of these movements may not serve the people of the city of Dayton, although many of its citizens may believe the organization worthy of support. Whether a cause is beneficial to the people of? the city of Dayton is certainly an improper test. People differ as to the worthiness of many such organizations, and the members of the board likewise may differ as to such matters and may take a position adverse to the opinion of a considerable number of the people they serve. How can the board determine the extent of the burden to be borne by the contributor? Who can measure the' heart throbs and the spiritual benefit derived by the giver who voluntarily contributes to some worthy charitable, philanthropic or religious cause? Who can measure the burden, if indeed it was a burden, borne by the woman who gave the “widow’s mite”? These provisions of the ordinance confer upon the board arbitrary power.

In the instant case, the board, in the exercise of the powers conferred, refused the permit on the ground that the permit granted to the society the prior year was conditioned upon the society becoming a member of the community chest, and that the community chest had collected $25,000 which was available for use in a campaign against cancer. This action of the board reveals the defect in the ordinance. The board concluded that since $25,000 was available through the community chest, solicitation by the society should not be granted, although all other requirements were met by the society, and the objective concededly to be most worthy. On appeal, ,;the action of the city commission in refusing the permit was based partly on the fact that the community chest had available the sum of $25,000. Several additional reasons are assigned by the commission for the refusal of the permit. First, that a permit had been issued to the Miami Valley Hospital to conduct a financial campaign during the same period of time. One purpose of the ordinance, which is a worthy objective, is to avoid conflict in time with regard to solicitations by major organizations. It does not appear, and we cannot say, that the permit would have been rejected on this ground alone. Second, the city commission could not find that the field was not already adequately covered and that it would not be an unwarranted burden upon the persons to be solicited. This general finding by the city commission evidently refers .to the fact that the community chest had conducted its campaign and had available $25,000 for the fight against cancer; that by reason thereof, the field was covered; and that to allow solicitation by the society, as it had done annually, would have been an unwarranted burden on the contributors. In all such solicitations, there is no compulsory giving; all such giving is wholly voluntary. For the city commission to determine that the field was adequately covered, and that such solicitation' would be an unwarranted burden, was an exercise of arbitrary power and a discrimination against the society. If such action is held to be valid, the board or the city commission, in the exercise of the same power conferred, may some day decide that a permit to conduct a city-wide financial campaign by the church federation should be refused on the ground that the local church congregations had adequately covered the field, and that an additional campaign would be an unwarranted burden on the religious-minded persons in the city of Dayton.

The trial court held that the provisions of the ordinance violated provisions of the Ohio and Federal Constitutions. Section 1 of the Fourteenth Amendment to the United States Constitution, in part, provides :

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In the Ohio Constitution, Section 1, Article I, protects the liberty of the individual; Section 2, Article I, guarantees equal protection; Section 11, Article I, guarantees freedom of speech and the press; and Section 3, Article XVIII, confers on municipalities all powers of local self-government.

We find no reported case in Ohio touching this precise question. However, in 128 A. L. R., 1361, there is found this annotation:

‘ ‘ While there is a conflict among the state court decisions as to the validity under the Fourteenth Amendment to the Federal Constitution of statutes or ordinances regulating the solicitation of contributions for charitable, religious, or individual purposes by prohibiting such solicitation without a license and providing that the licensing officer or body shall issue such a license only where he deems the applicant a worthy person and his cause a worthy or bona fide cause, it is now settled by decisions of the Supreme Court of the United States that such a statute or ordinance is void, since it authorizes a previous restraint upon the free exercise of the freedoms guaranteed by the Fourteenth Amendment by a licensing officer or body having no fixed standard for determining whether a license must be issued.”

The case referred to in the annotation just quoted is Cantwell v. Connecticut (1940), 310 U. S., 296, 84 L. Ed., 1213, 60 S. Ct., 900. The court in that case announced certain fundamental principles which are applicable in the instant case. While the purpose of solicitation in the Cantwell case was religious, whereas in the instant case it is charitable, the same fundamental principles apply. In that case the fourth paragraph of the syllabus is as follows:

“A state statute which forbids any person to solicit money or valuables for any alleged religious cause, unless a certificate therefor shall first have been procured from a designated official, who is required to determine whether such cause is a religious one and who may withold his approval if he determines that it is not, is a previous restraint upon the free exercise of religion and a deprivation of liberty without due process of law in violation of the Fourteenth Amendment. P. 304.

‘ ‘ So held as it was applied to persons engaged in distributing literature purporting to be religious, and soliciting contributions to be used for the publication of such literature.

“A state constitutionally may by general and nondiscriminatory legislation regulate the time, place and manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard, the peace, good order and comfort of the community. The statute here, however, is not such a regulation! If a certificate is issued, solicitation is permitted without other restriction; but if a certificate is denied, solicitation is altogether prohibited.”

The statute of the state of Connecticut, quoted on page 301, ibid., which was found to be invalid, provided :

“ ‘No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council. Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect. Such certificate may be revoked at any time. Any person violating any provision of this section shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both.’ ”

On page 303, ibid., the court said:

“We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment.”

On page 304, ibid., the court said:

‘ ‘ In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. * * * It is equally clear that a state may by general and nondiscriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The appellants are right in their insistence that the act in question is not such a regulation. If a certificate is procured, solicitation is permitted without restraint but, in the absence of a certificate, solicitation is altogether prohibited.”

In commenting on the power conferred on the licensing agency of the state, the court, on page 305, ibid., said:

“It will be noted, however, that the act requires an application to the secretary of the public welfare council of the state; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withold his approval if he determines that the cause is not a religious one. . Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.”

On pages 306 and 307, ibid., the court said:

“Without doubt a state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The state is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution. ’ ’

In a later decision, the Supreme Court in Jones v. Opelika, 316 D. S., 584, 86 L. Ed., 1691, 62 S. Ct., 1231, in commenting on its ruling in the Cantwell case, on page 595, said:

“In the Cantwell case, the secretary of the public welfare council was to determine whether the object of charitable solicitation was worthy, p. 302. We held the requirement bad. ’ ’

The ordinance under construction in the instant case bears a striking similarity to the statute under construction in the Cantwell case, and contains similar invalid provisions. For later decisions by the Supreme Court, see Martin v. City of Struthers (1943), 319 U. S., 141, 87 L. Ed., 1313, 63 S. Ct., 862; Breard v. Alexandria (1951), 341 U. S., 622, 95 L. Ed., 1233, 71 S. Ct., 920.

With respect to the delegation of powers, the rule is concisely stated in the third paragraph of the syllabus in Belden v. Union Central Life Ins. Co., 143 Ohio St., 329, 55 N. E. (2d), 629, as follows:

“It is no violation of the constitutional inhibition against the delegation of legislative power for the General Assembly to establish a policy and fix standards for the guidance of administrative agencies of government while leaving to such agencies the making of subordinate rules within those fixed standards and the determination of facts to which the legislative policy applies.”

In our opinion, the ordinance does not meet the required test. A policy has not been established and standards have not been fixed for the guidance of the solicitations advisory board and the city commission.

The following words of Justice Roberts in the Cant-well case are appropriate and applicable here:

“He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves apprisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship * * * is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth. ’ ’

The ordinance delegates to the board and the city commission absolute power, without the benefit of an established policy or fixed standards for guidance, to issue or refuse a permit for solicitation by any organization however worthy the cause may be. Under the ordinance, permits are not granted as a matter of course. The decision of the board or city commission to issue or refuse a permit involves apprisal of facts, the exercise of judgment, and the formation of an opinion. The board, and the city commission under the provisions of the ordinance, are authorized to refuse a permit if they determine that the purpose of the solicitation does not fall within one of the categories mentioned, or that the field has been adequately covered, or that the purpose of the solicitation would not be beneficial to the people of Dayton, or that the solicitation would be an undue or unwarranted burden on the contributors. That the provisions of this ordinance have been wisely administered by the board from the date of its passage is not questioned. The question before the court is not whether it has or has not been wisely administered, but, rather, whether the ordinance confers on the board arbitrary and discriminatory power if it chooses to exercise it.

In Hoyt Brothers, Inc., v. City of Grand Rapids, 260 Mich., 447, 245 N. W., 509, a similar question was presented. The syllabus is as follows:

“In determining validity of ordinance vesting in city manager power to grant license for soliciting funds, selling goods, etc., for charitable purposes, court will not indulge presumption that he will or will not act reasonably, but decision is controlled by legal proposition that it is requisite to validity of ordinance that it state standard for guidance of official who passes on application for license.

“Ordinance vesting city manager with power to grant license for soliciting funds, selling goods, etc., for charitable purposes whenever it shall appear that charity is worthy one and persons making application are fit and responsible, is invalid as attempt to vest him with arbitrary power, where ordinance contains no rule by which to determine whether charity is ‘worthy’ or applicant is ‘fit and responsible.’ ”

In our opinion, the requirement of the ordinance operates as a censorship of the society, is a denial of liberty without due process of law, and is a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution; and, also, is a violation of the Ohio Constitution, in that it deprives the society of its liberty and equal protection of the laws guaranteed in Sections 1 and 2 of Article I, and is a violation of the right of freedom of speech and the press guaranteed in Section 11, Article I, and is in violation of the powers of local self-government conferred on municipalities in Section 3, Article XVIII.

We have no difficulty in holding with the appellant city, with respect to the fifth assignment of error, that the ordinance is reasonably related to the public welfare. The right to solicit funds may be reasonably regulated, such legislation being within the police power of the municipality. In the instant case, the purpose of the ordinance is meritorious. The ordinance serves to prevent fraudulent solicitation and to protect the people of the city of Dayton against such unwarranted practices, and it provides for the regulation of bona fide solicitation for worthy causes. True, the police power is not a fixed quantity; it is elastic and capable of development, and must be adapted to the social, industrial and commercial conditions of the times. It is as expansive as the public needs, which are constantly fluctuating. 8 Ohio Jurisprudence, 338, Section 232. However, “the police power is subject to the limitations imposed by the federal and state Constitutions upon every power of government, and it will not be suffered to invade or impair the fundamental liberties of the citizen.” 8 Ohio Jurisprudence, 379, Section 264.

In Leonard, Jr., v. State, 100 Ohio St., 456, 127 N. E., 464, the first paragraph of the syllabus states the rule concisely as follows:

“The measure of police power available to the government is the measure of public need, whether it apply to health, safety, protection or general welfare, except as qualified by state and federal constitution.'” (Emphasis ours.)

In the exercise of its police power, the city of Dayton may provide for reasonable regulation of solicitations for funds. Reasonable regulation does not include the power to determine which of two equally worthy organizations shall be permitted to solicit in a particular field, or whether the field is adequately covered, or whether the object to be served would be beneficial to the people of Dayton, or whether the solicitation would be an undue and unwarranted burden on the contributors.

We hold against the appellant with respect to the sixth assignment of error, wherein it is contended that the trial court erred in holding that the refusal of the permit is an illegal denial of plaintiff’s corporate franchise right. The record shows that the trial court held that if the regulation is reasonable and within the police power of the municipality, such regulation is paramount to the franchise right, but if the regulation is unreasonable, such regulation cannot operate to deny the right of the organization to exercise its corporate franchise right. We agree with the judgment of the trial court.

In assignment of error No. 7, the appellant contends that the court erred in ruling that the entire ordinance was void. We agree with the judgment of the trial court. The illegal provisions of the ordinance are so related to other provisions of the ordinance, that the invalid provisions void the entire ordinance.

We do not find assignment of error No. 8 well made, in which it is claimed that one of the grounds for the refusal of the permit was the fact that at the time the application for a permit was filed by the society, a permit had already been granted to the Miami Valley Hospital to conduct a campaign during the same period of time. The point is made by the appellant that this is a reasonable regulation, and that, therefore, if one of the grounds assigned for the refusal of the permit is based on a reasonable regulation, the refusal was in order and the ordinance should not be held to be void. It does not necessarily follow that if one ground for refusal be based upon a reasonable regulation the ordinance would be valid. Conceding, without deciding, that one of the regulations is valid, on which the refusal to grant the permit was partly grounded, it does not follow that the ordinance should be declared valid, if other regulations are found to be invalid and the refusal to grant the permit was partly based on such invalid regulations. We have heretofore discussed the effect of the refusal to grant the permit on this ground. The question is not presented, and we do not decide, whether the city commission would have been justified in refusing the permit on the sole ground of conflict in time with the campaign conducted by the Miami Valley Hospital. This ground for rejection of the permit, if no other question was raised, would now present a moot question.

We do not find assignment of error No. 9 well made, which involves the principal issue in this case, and which has already been discussed.

While we disagree with certain conclusions of law made by the trial court, such conclusions with which we disagree are not determinative of the issue presented, except the conclusion of law which is carried into the judgment to the effect that the provisions of the ordinance have no substantial relationship to the public welfare. However, on the principal issue for determination, this court agrees with the judgment of the trial court that the provisions of the ordinance are unreasonable, arbitrary, discriminatory, and contrary to the provisions of the Ohio Constitution and the Constitution of the United States. Further, we hold the ordinance to be an unlawful delegation of powers, which was contained in the conclusions of law, but which was not carried into the judgment.

With the modifications herein stated, the judgment is affirmed.

Judgment accordingly.

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


author:
Griffith, J.
      Nichols, P. J.,

text:
    Glass, Appellee, v. McCullough Transfer Co. et al.; Tolley, Appellant.
    (No. 3473
    Decided January 11, 1952.)

      Mr. John Ruff alo, for appellee.

      Mr. Oscar A. Stephens, for appellant.
   Griffith, J.

Lucille Glass, plaintiff, commenced her action against Ortrud Tolley, of Newark, Licking county, Ohio; the McCullough Transfer Company of Youngstown, Ohio; Miaño Masi of Youngstown, Ohio, and Howard Umphrey, of Brooklyn village, Cuyahoga county, Ohio.

The automobile collision involved in this case occurred on state route No. 42, between Lodi and Medina, which route is a heavy traveled highway extending in a northeasterly and southwesterly direction. At a point about five miles southwest of Medina, there is an ascending grade, which descends sharply toward the northeast. At 10 p. m. on April 26, 1947, the plaintiff was riding in a Pontiac autómobile being operated in a northeasterly direction by the defendant Tolley. At the same time, the defendants McCullough Transfer Company and Howard Umphrey had stopped their respective vehicles on the highway.

Defendant McCullough Transfer Company had stopped a large tractor-trailer outfit on the right half part of the highway and Umphrey, who was driving a school bus, had also stopped or parked on the right side of the highway. The bus and tractor-trailer outfit were headed in a northeasterly direction, the tractor-trailer outfit being to the rear of the bus. The automobile in which plaintiff was riding collided with the rear of the tractor-trailer outfit.

The descending grade toward Cleveland is more than a quarter of a mile in length. When the driver of the school bus reached a point about a quarter of a mile from the crest of the descending grade, he was compelled to stop because the bus lights failed to work. He stopped as far to the right as possible, close to the ditch, with about one-half of the left side of the bus remaining upon the traveled portion of the highway.

Immediately thereupon, pot flares were put out, one of which was placed about 33 paces, or 80 feet, ahead of the bus; one beside the bus near the center line of the road; and another about 33 paces behind the bus. One of the school boys who had been riding in the bus was standing about 30 paces behind it with a flash light, guiding and warning traffic, while Umphrey, the operator of the bus, was engaged in repairing the lights on the bus.

The bus had been standing there about 25 minutes before anything happened. One-way traffic had passed in both directions during this period of time. The McCullough Transfer Company outfit pulled up from the south and stopped about 50 feet to the rear of the bus with its lights all burning and clearly visible from the crest of the hill. It had been standing there only a brief time, perhaps one minute, when the collision occurred.

Lucille Glass, the plaintiff, stated that they left Mansfield about 9 o ’clock that evening. She was seated directly back of the driver. Mr. Tolley drove as far as Lodi at a normal rate of speed and then “gave the wheel to his wife. ’ ’

When Mrs. Tolley took charge of the car, she drove much faster than Mr. Tolley had been driving. She was driving at least 60 miles per hour. The plaintiff remarked to Mrs. Tolley: “Don’t you think we are going a little fast; that we are in no hurry, we aren’t going any place in particular,” whereupon, Mrs. Tolley said: “Oh, don’t worry, I know how to drive.”

As they were going over the brow of the hill she was going “the same rate of speed, fast, it was all fast.” As the car went over the brow of the hill, both Mrs. Tolley, the driver, and Lucille Glass, the plaintiff, saw the truck down the hill with lights on it. She did not slow up and when she was about 200 feet back of the tractor-trailer outfit, she started pulling to the left to pass the truck, but because “there were lights, a light flagging me down, I immediately assumed that the traffic was stopped, it was blocked, and I pulled back to my right into the lane of traffic, and applied my brake and my foot slipped off the brake. ’ ’

The front end of the Pontiac struck the tractor-trailer outfit. At the conclusion of plaintiff’s testimony, motions were made by each of the defendants to direct a verdict in their favor and, ultimately, the trial court directed a verdict for all defendants except Tolley. When that transpired, the defendant Tolley moved the court to dismiss the action as to her as the court had lost its jurisdiction over her person. This motion was overruled.

The case went to the jury on the allegations of negligence and wanton misconduct. The jury returned a verdict in favor of plaintiff and against the remaining defendant Tolley for $17,500. The defendant moved for judgment notwithstanding the verdict, which motion was overruled. The defendant then moved for a new trial, and that motion was overruled.

Defendant is now before this court upon 14 assigned errors, the seventh of which reads as follows:

“The court erred in overruling the motion of defendant-appellant, Ortrud Tolley, to dismiss the case as against her after verdicts had been returned and judgments entered thereon for all other defendants for lack of jurisdiction of the court over the person of defendant-appellant, Ortrud Tolley, duly excepted to.”

She is before this court on an appeal on questions of law, seeking a reversal of the judgment of the Common Pleas Court and for final judgment in this court.

Coming directly to assigned error No. 7, the rule is:

Where damage is caused by the joint or concurrent wrongful action of two or more persons, they may be sued therefor jointly or severally. Here is a rider who, without fault on her part, suffered very serious injuries, and she may seek redress from one, from two, from three, or from all four defendants in this ease. She elected to sue all four and lost in her action against three of them but prevailed as against the fourth. She charged three of the defendants with negligence, and the fourth with negligence and wanton misconduct.

On page four of her petition, she alleged:

“Through the unlawful and wanton misconduct of the defendant, Ortrud Tolley, and the negligence and unlawful conduct of the other defendants, as herein specifically set forth, said automobile was caused to forcibly and violently collide with some rear portion of the tractor and semi-trailer aforesaid, and plaintiff was seriously and permanently injured.”

And again, in her petition, plaintiff said:

‘ ‘ That solely by reason of the negligence of the defendants herein proximately operating she was injured as aforesaid.”

The defendant Tolley could not demur to this petition on the ground that the court had no jurisdiction of the person of the defendant because of Section 11282, General Code. Consequently, she filed an answer. Her answer denies generally facts set out in the petition, excepting numerous admissions. It amounts to a general denial. It alleges no new facts and sets up no new matter requiring a reply. The petition, on its face, shows the defendant Tolley to be properly joined with the resident defendants and, therefore, the question of jurisdiction must be raised by answer.

The petition charges that all four of the defendants owed a common duty to the plaintiff. If there was a common neglect of that duty and she was injured, there is a joint tort with joint and several liability. City of Mansfield v. Bristor, 76 Ohio St., 270, 81 N. E. 631, 118 Am. St. Rep., 852, 10 L. R. A. (N. S.), 806.

If an injury is the result of a neglect to perforin a common duty resting on two or more persons, although there may be no concert of action between them, a person injured may elect to sue all parties owing the common duty, or each separately, depending on whether he treats the liability as joint or separate. Board of County Commrs. of Warren County v. Shurts, Admx., 10 Ohio App., 219.

The “common duty” referred to in this rule must not be misunderstood. It may be merely the duty of two or more persons to exercise due care, and if they fail in such duty and their negligent acts concur in producing the injury, there is a joint liability. 39 Ohio Jurisprudence, 237, Section 28.

In the case at bar, all four defendants were charged with neglecting to perform a common duty owed to the plaintiff. There is only one cause of action. There can be no joint action unless there is a joint liability. All four were joined in this action. Her petition alleged joint liability.

In the case of Gorey v. Black, 100 Ohio St., 73, 125 N. E., 126, we find in the fourth paragraph of the syllabus the following:

“In order to give the court jurisdiction over joint defendants who are nonresidents of the county where suit is brought and for whom summons has been issued to another county, the averments of the petition and the proof on the trial must show that the plaintiff has a valid joint cause of action against the defendants on whom- valid service is had as well as against the nonresident defendants.”

“[What Torts Considered Joint]. The principal controversy revolves around the problem of what constitutes a joint tort, and on this there is much conflict of opinion. In some cases, it has been stated that where separate acts are committed by separate persons, although a single injury is inflicted, the parties cannot be held jointly liable to the person injured, but such a rule does not appear to be sanctioned by any Ohio decisions. Stated broadly, the rule in Ohio is that if an injury is the result of neglect to perforin a common duty resting on two or more persons, the injured party may, at his election, sue all of the parties owing the common duty jointly, or sue each separately, although there may have been no concert of action between them.” 30 Ohio Jurisprudence, 768, Section 46.

Also, in the case of Bucurenciu v. Ramba, 117 Ohio St., 546, 159 N. E., 565, in paragraphs one and two of the syllabus, we find:

‘ ‘ Where the question of the jurisdiction of the court over the person of the defendant is one of fact, not appearing upon the face of the record, objection made thereto by answer of the objecting defendant as his first act in the case is objection at the first opportunity and saves an exception to the jurisdiction.

“Where the jurisdiction of the court to acquire jurisdiction over the person of the defendant by service of summons in a foreign county appears only by the allegations of the petition, a general denial filed by such defendant challenges such jurisdiction, and under such general denial such defendant may at the same time and throughout the trial question both the jurisdiction and the merits of the cause.”

The plaintiff contends that in her petition she clearly set forth separate and distinct acts of negligence of each and every defendant without in any manner expressing combined or joint tort-feasors. If such contention is tenable, her action against defendant Tolley is not “rightly brought,” in Mahoning county under Section 11282, General Code, and no summons should have issued against her in Licking county. However, the summons was issued against her and she came into court and filed her answer, which reads as follows:

“Now comes one of the defendants, Ortrud Tolley, and for her separate answer to the petition herein filed by plaintiff, admits that she is a resident of the city of Newark, Licking county, Ohio; that at all times complained of by plaintiff in her petition, defendant operated a certain Pontiac sedan automobile; that route No. 42 is a duly dedicated public highway and extends substantially as alleged by plaintiff in her petition; that at the time of the accident complained of by plaintiff in her petition it was night season; that defendant’s co-defendants operated certain motor vehicles upon said highway and at the time of the accident complained of by plaintiff in her petition said co-defendants ’ vehicles were stopped; that on the 26th day of April, 1947, and in the evening thereof plaintiff was riding as a guest passenger in the Pontiac sedan automobile driven and operated by this answering defendant; that a collision occurred between the automobile operated by this answering defendant and a certain motor vehicle outfit, but defendant expressly denies that the accident occurred in the manner as alleged by plaintiff in her petition.

“Further answering, defendant admits that by reason of said collision plaintiff suffered certain injuries but being uninformed as to the nature or extent of same and for the purpose of requiring strict proof thereof, denies same.

“Further answering defendant denies each and every other allegation contained in plaintiff’s petition not hereinbefore expressly admitted to be true.

“Wherefore, this answering defendant, Ortrud Tolley, having answered plaintiff’s petition in full prays that same be dismissed and that she be permitted to go hence with her costs.”

She not only filed this answer, but she came into court and actively participated throughout the trial. Query: Did she waive the matter of jurisdiction by so doing?

We believe the case of Bucurenciu v. Ramba, supra, answers this on page 550, where the court stated:

“The petition of the plaintiff charged a joint tort. But for that allegation, the defect of jurisdiction over the person of the nonresident defendant would have appeared upon the face of the record and would have been subject to a motion. The general denial put in issue every essential averment of the petition. The averment that the tort was committed jointly with Ramba was essential to give the court jurisdiction to hale Cohen into court in Ramba’s county. ’ ’

The petition on its face alleges joint liability and in order to have joint liability there must of necessity be a joint tort. The answer which defendant Tolley filed was a general denial. A general denial puts in issue every material allegation of the petition except those admitted'.. The pleading was no admission of the court’s jurisdiction.

The general denial is coupled with eight specific admissions. The union of these admissions with “further answering, defendant denies each and every other allegation contained in plaintiff’s petition not herein-before expressly admitted to be true,” is sufficient for a valid general denial, since defendant clearly indicated the allegations that it admitted and plainly denied all other matters. This answer was definite and positive and did not require any court to construe it because of its being indefinite or uncertain.

The first opportunity presented to the defendant Tolley to specifically object to the jurisdiction was when the local defendants were discharged, and she promptly took advantage of this opportunity.

When the trial court dismissed both local defendants, it thereby lost all jurisdiction over the nonresident defendant Tolley. When the trial court directed the jury to return a verdict in favor of the local defendants, that was a determination that the two local defendants were not jointly liable. Until both local defendants were discharged by these verdicts, the nonresident defendant Tolley could not object to the jurisdiction of the Mahoning County Common Pleas Court. As soon as this transpired, she did object by addressing a motion to the court’s jurisdiction, which motion was overruled.

We find no error of the court as to its rulings as set forth in assigned errors Nos. 1, 2, 3, 4, 5 and 6. Errors assigned as Nos. 7, 8 and 9 pertain to jurisdiction. Error No. 13 pertains to the question of the capacity in which Lucille Glass was riding, i. e., whether she was a guest or a passenger at the time of the collision. Error No. 15, challenges the presence of wanton misconduct in this case. We believe the record discloses that Lucille Glass was riding that evening as a social guest and not as a paid passenger, and that under the present law of Ohio, there was not substantial evidence tending to prove wanton misconduct on the part of defendant Tolley.

We believe the trial court erred in overruling defendant Tolley’s motion to dismiss the case as against her, after verdicts had been returned and judgments entered thereon for all other defendants, for lack of jurisdiction of the court over the person of the defendant Tolley. For the reasons above enumerated, the judgment of the Common Pleas Court is reversed and final judgment is entered for the defendant Tolley.

Judgment accordingly.

Phillips, J., concurs.

Nichols, P. J.,

dissenting. Prom my examination of the petition, I am satisfied there is no joint canse of action stated against the several defendants, and that a demurrer on the ground of misjoinder of causes of action would have been properly sustained, if filed.

I am satisfied further that such misjoinder, having appeared upon the face of the petition, a motion to dismiss on the ground of lack of jurisdiction of defendant Tolley would have been properly sustained.

My position in both these respects is that a cause of action is stated by the operative facts and not by the conclusions appended thereto by the pleader. There are no acts of negligence pleaded against any of these defendants which are applicable to the wanton misconduct of defendant Tolley.

It seems very clear to me that the only liability of defendant Tolley to her guest, Mrs. Glass, is based upon wanton misconduct of defendant Tolley. No allegation in the petition of mere negligence upon the part of a separate defendant would make defendant Tolley liable.

Clearly, the petition states a separate and distinct cause of action against defendant Tolley, and that appears on the face of the petition. It follows that the lack of jurisdiction of defendant Tolley should have been raised at the outset of this case and, not having been so raised, was waived.

There is one other propositon which has caused me to hold that the trial court would not have been in error in failing to dismiss the action against defendant Tolley on jurisdictional grounds. If it could be said that the alleged negligence of the defendant McCullough Transfer Company in stopping upon the travelled portion of the highway a short time before the collision and at a time when the outfit of the McCullough Transfer Company was not disabled in any manner presented to the jury a question of that defendant ’s negligence, then it is clear that the defendant McCullough Transfer Company violated the provisions of Section 6307-64, General Code. Whether such negligence was a proximate cause or a proximate contributing cause of the injuries to Lucille Glass was for the jury, and the motion of such defendant for final judgment in its favor should not, in my opinion, have been sustained.

It is interesting to note that the appellant herein has filed the following assignment of error as one of the grounds for reversal of the judgment in this case:

“5. The court erred in directing the jury to return a verdict for defendant, McCullough Transfer Company, and entering judgment thereon, duly excepted to by Defendant-Appellant Ortrud Tolley.”

The defendant McCullough Transfer Company is a resident of Mahoning county, where the action was brought. '

However, there is a more serious matter involved in this case in relation to the liability of defendant Tolley, and that is whether defendant Tolley was guilty of wanton misconduct which caused the injury to her guest. As stated above, any and all negligence of the other defendants in this action could not have created any cause of action against defendant Tolley. The question then is whether reasonable minds could differ upon the issue of wanton misconduct of the defendant against whom judgment was rendered in this case.

I conclude that reasonable minds could differ upon that issue, and that the cause was properly submitted to the jury as against the defendant Tolley and with great regret I am forced to dissent from the decision of my colleagues.


author: Collier, J.

text:
    The State of Ohio, Appellant, v. McCoy, Appellee.
    (No. 606
    Decided April 2, 1953.)

      Mr. William H. Harsha, prosecuting attorney, and Mr. J. B. Marshall, for appellant.

      Mr. Edgar Hale, for appellee.
   Collier, J.

This is an appeal on questions of law from an order of the Common Pleas Court of Scioto County, releasing from custody the petitioner in a habeas corpus proceeding. The case was submitted to the trial court upon an agreed statement of facts, which, briefly, are as follows:

The petitioner, William McCoy, was charged by affidavit in the Municipal Court of Portsmouth on June 11, 1952, with a violation of Section 630'7-20, General Code, upon the highways of Scioto county, but outside the city limits of Portsmouth. The petitioner objected to the jurisdiction of the Municipal Court over the subject matter for the reason that the alleged crime was not committed within the territorial limits of such court.

The objection was overruled and the petitioner was tried, convicted, fined $50, and assessed the costs. In default of payment of the fine and costs, he was committed to the Scioto county jail. Thereupon he filed a petition for a writ of habeas corpus in the Common Pleas Court of Scioto County, which was allowed, and the petitioner was released from custody.

The state claims that the Municipal Court of Portsmouth has county-wide jurisdiction over violations of the Uniform Traffic Act, of which Section 6307-20, General Code, is a part. The petitioner contends that said court has no such jurisdiction, and, therefore, that the proper disposition of this case turns entirely on this one legal question.

Jurisdiction is defined as the authority to hear and determine a cause. If the Municipal Court has no such power, then the petitioner was unlawfully detained, and was properly released from custody under the writ of habeas corpus; if the Municipal Court possesses such power, the petitioner should have been remanded to custody.

The Municipal Court is a creature of statute, and, therefore, has only such powers as are conferred on it by the Legislature; it is a court of limited jurisdiction. Our Supreme Court, in the case of State, ex rel. Talaba, v. Moreland, Judge, 132 Ohio St., 71, 5 N. E. (2d), 159, held, as disclosed by the third paragraph of the syllabus:

“In the state of Ohio the jurisdiction of Municipal Courts is statutory.”

The Municipal Court Act (Section 1598,' General Code), expressly defines the county-wide criminal jurisdiction of the Portsmouth Municipal Court in this language:

“The court shall also have jurisdiction within the limits of the county or counties in which its territory is situated of those crimes and offenses which are now or may hereafter be within the county-wide jurisdiction of justices of the peace.”

Since the Municipal Court has the same county-wide jurisdiction of crimes as justices of the peace, the question then arises, when does a justice of the peace have county-wide jurisdiction? The only statute granting-such power of which we are aware is Section 13422-2, General Code, which reads, in part, as follows:

“A justice of the peace shall be a conservator of the peace and have jurisdiction in criminal cases throughout the township in which he is elected, and where he resides, and county-wide jurisdiction in all criminal matters only upon affidavit or complaint filed by the prosecuting attorney or upon affidavit or complaint made by the sheriff, the party injured or any authorized representative of a state or federal department, in the event there is no other court of concurrent jurisdiction other than the Common Pleas Court, police court or mayor’s court, and on view or on sworn complaint, to cause a person, charged as aforesaid, with the commission of a felony or misdemeanor, to be arrested and brought before himself * *

It will be observed that this statute grants only conditional powers to justices of the peace in county-wide matters. State, ex rel. Micheel, v. Vamos, 144 Ohio St., 628, 60 N. E. (2d), 305. In addition to granting these conditional powers, Section 13422-2, General Code, sets forth also 18 classes of offenses as to which a justice of the peace has special county-wide jurisdiction, but violations of the Uniform Traffic Act are not included; and the stipulated facts in this case are neither sufficient nor broad enough to come within the provisions of this statute granting conditional countywide jurisdiction. There is no stipulation in the record that the complaint was filed by any of the persons designated in this statute.

Sections 6296-1 to 6296-37, inclusive, General Code, known as the driver’s license act, are separate statutes on a different subject and do not, as claimed by the respondent, apply to the facts in this case.

The apparent purpose of recent amendments of the statutes conferring jurisdiction on magistrate courts is to limit their powers in criminal cases. If the Legislature has gone too far in that respect, the remedy is in that body and not in the courts by judicial legislation.

Our conclusions are that the Municipal Court of Portsmouth has only such jurisdiction as is granted it by statute; that there is no statute in Ohio conferring county-wide jurisdiction on such court over violations of the Uniform Traffic Act, except under the conditions set forth in Section 13422-2, General Code; that no such conditions are shown to exist in the agreed statement of facts in this case; that such court was without jurisdiction in the criminal case and had no authority to hear and determine said cause, that, therefore, the petitioner was unlawfully committed to the county jail of Scioto county; and that the order and judgment of the trial court granting his release from custody is correct and should be affirmed.

Judgment affirmed.

Gillen, P. J., and McCurdy, J., concur.