author: Doyle, P. J.

text:
    The State, ex rel. Hanrahan et al., Appellees, v. Zupnik et al., Bd. of Trustees, et al., Appellants. The State, ex rel. Horn et al., Appellees, v. Bath et al., Bd. of Trustees, et al., Appellants. The State, ex rel. Barrett et al., Appellees, v. Zupnik et al., Bd. of Trustees, et al., Appellants. The State, ex rel. Anklam et al., Appellees, v. Bath et al., Bd. of Trustees, et al., Appellants.
    (Nos. 22630, 22631, 22632 and 22633
    Decided February 16, 1953.)

      Messrs. Green, Lausche é Wilmot, and Mr. A. F. Gallagher, for appellees.

      Mr. Joseph R. Crowley, director of law, Mr. James M. McSweeney and Mr. Burt J. Fulton, for appellants.
   Doyle, P. J.

The appeals in the four suits noted in the caption above are from judgments rendered in the Common Pleas Court of Cuyahoga County, where four separate actions in mandamus were consolidated for trial. The judgment in each case ordered a writ to issue. The many relators in each case instituted their respective suits not only for their own benefit, but for others similarly situated.

In the first (both in the Common Pleas Court and here) of the four actions, the relators were retired firemen, each of whom, by action of the Board of Trustees of the Firemen’s Relief and Pension Fund of the city of Cleveland, were, subsequent to the 26th day of May, 1937, duly approved and qualified to receive monthly pensions, and their names were placed upon the rolls for payment from the statutory fund.

In the second action in the Common Pleas Court (No. 22632 here), the relators were retired firemen who held the same status as those noted in the first action, except that they became pensioners prior to the 26th day of May, 1937.

In the third action in the Common Pleas Court (No. 22631 here), the relators were retired policemen who, prior to the 26th day of May, 1937, by action of the Board of Trustees of the Policemen’s Relief and Pension Fund, were qualified and approved to receive monthly pensions, and their names were placed upon the rolls for payment out of the statutory fund.

In the fourth action (both in the Common Pleas Court and here), the relators were retired policemen who held the same status as those noted in the third action, except they became pensioners subsequent to May 26, 1937.

The eases will be referred to herein according to the sequence in which they appeared in the Common Pleas Court.

The defendants in the first two eases were the Board of Trustees of the Firemen’s Relief and Pension Fund of Cleveland, and the city treasurer (the custodian of the funds); in the second two cases the defendants were the Board of Trustees of the Policemen’s Relief and Pension Fund of Cleveland, and the city treasurer (likewise the custodian of this fund).

In short, it was claimed that the several boards of trustees had “failed, neglected, and refused” to make payment to the relators of monies due them as monthly pensions falling due at a time when there were insufficient money in the funds to make payment, although at the time of filing the suits there was on hand and available, or in the process of collection, sufficient funds to pay all previous awards. The petitions sought an order for the payment of back monthly pensions which had become due, the payments of which had been refused.

The following is a chronological table of the pension payments made, and an approximate percentage of pensions falling due and not paid in the months noted:

Firemen’s Relief and Pension Fund
November, 1945 — No payment; payroll $50,096.31.
December, 1945 — No payment; payroll approximately $50,000.
December, 1946 — No payment; payroll $50,001.43.
Police Relief’and Pension Fund
December, 1940 — $9,019.97 paid; approximately 80% of payroll unpaid.
December, 1941 — $22,708.08 paid; approximately 50% of payroll unpaid.
December, 1942 — $17,707.22 paid; approximately 65% of payroll unpaid.
December, 1944 — $8,800 paid; approximately 83% of payroll unpaid.
November, 1945 — No payment; payroll $56,805.46.
December, 1945 — No payment; payroll approximately $57,000.
December, 1946 — No payment; payroll $59,815.81.

It was stipulated in each of the policemen’s cases that “the * * * Board of Trustees of said Police Relief Fund did not make payment to relators, and each of them, and to other beneficiaries of said fund, of the regular monthly pension payment, or other lawful benefit payment, as established by the rules and regulations of said Board of Trustees governing such payments, for the months of December of the respective years 1940, 1941, 1942, 1944, 1945 and 1946, and for the month of November, 1945, and made payment during such months of only the amounts, in each month, as is set forth in relators’ petition * * * and the balances thereof remain unpaid.” It was further stipulated that at regular meetings of said board in December, 1944, December, 1945, and December, 1946, the entire payroll was ordered paid “if and when money is available,” and that “in certain other months when funds were not available, payrolls were approved and payment ordered if and when funds were available and payment of such payrolls thereafter made from after-acquired funds.”

The following stipulation appears in the record in reference to the firemen:

“8. That the said Board of Trustees of said Firemen’s Relief and Pension Fund did not make payment to relators, and each of them, and to other beneficiaries of said fund, of the regular monthly pension payment, or other lawful benefit payment, as established by the rules and regulations of said Board of Trustees governing such payments, for the months of November, 1945, December, 1945, and December, 1946, and payrolls for such months remain unpaid.”

It was further stipulated that, at meetings of said firemen’s board in dealing with the payrolls of November, 1945, and December, 1946, such payrolls were each ordered paid “if and when money is available.”

It appears that in the several instances of fund deficiencies, the statutory three-tenths of a mill tax levy, plus other revenue, was not sufficient to maintain a proper balance in the funds, or else the maximum levy was not made by the authorities. It likewise appears that the city of Cleveland did not, at these times, contribute from its general fund to make up the deficit, although, at other times, it did contribute generously. See old and amended Sections 4605 and 4621, General Code.

In the year 1947, the Legislature of the state of Ohio seemingly took cognizance of the inadequate amount of money to pay all pensions in the police and fire pension funds throughout the state, and it undertook to supply to the several funds throughout the state additional revenue. The legislation, insofar as it refers to municipal corporations, is in the following terms (Section 4631-4, General Code):

“There is hereby created in the state treasury a fund which shall be designated as the ‘local police and firemen’s relief and pension fund.’ The treasurer of state shall be the custodian of the fund and the fund shall be distributed in the manner provided for in this section. The fiscal officer of each municipal corporation in which a police or firemen’s relief and pension fund has been established pursuant to the provisions of Sections 4600 or 4616 of the General Code shall, during the month of March, 1948, and each March thereafter, certify to the auditor of state the name of such fund or funds and the total value of the real and personal property as listed for taxation in the municipal corporation. * * *. The auditor of state shall, upon receipt of each certification provided for herein, issue a warrant on the treasurer of state, payable out of the ‘local police and firemen’s relief and pension fund,’ in favor of each police and firemen’s relief and pension fund in an amount equal to one-tenth of a mill on each dollar value of real and personal property as listed in the certification, provided, however, no distribution shall be made hereunder to any police or firemen’s relief and pension fund in any calendar year if the assets of said fund as of December 31st of the next preceding calendar year are in excess of an amount equal to the assets of said fund as of December 31, 1947, plus an amount equal to one thousand dollars multiplied by the number of members of said fund and, provided further, no distribution shall be made hereunder in the year 1948 or any year thereafter to a police or firemen’s relief and pension fund if the legislative body of the municipal corporation * * * in which the fund has been created fails to comply with the provisions of Sections 4605, 4615-6 or 4621 of the General Code. ’ ’

As a result of this legislation, both the police and firemen’s funds grew in sufficient amount to not only pay all back pensions, but to leave sufficient balances to presently pay the monthly pensions as they fall due. The 1949 and 1950 year-end balances were as follows:

Police Fund — 1949 ................$264,590.40
Police Fund — 1950 ................ 399,979.56
Firemen’s Fund — 1949 .............. 329,144.67
Firemen’s Fund — 1950 ............. 382,515.39

The trial court, as heretofore stated, issued writs of mandamus in each case. In the appeal to this court on questions of law, the appellants (defendants below) state in part their position in the following language:

“It is apparent that the relators have no right to the writ of mandamus erroneously granted by the trial court. The required elements are lacking; no right is shown to raid the pension fund created under the new laws of 1947 to satisfy pension claims created by the acts of trustees in unquestioned excess of authority; the pension laws of 1947 being silent on the matter can not be read as having a retrospective aspect so as to provide for the claimed past delinquencies; there is an adequate remedy in the ordinary course of law.

“There is no right and no duty and no occasion to invoke the writ of mandamus.

“The judgment of the trial court should be reversed and final judgment should be entered for the respondents dismissing the petitions herein.”

This court, after considering each of the eleven claimed errors of the appellants, will now proceed to state without extensive elaboration the reasons for an affirmance of the judgments of the Court of Common Pleas.

In the first place, it must be observed that, under the law and the rules and regulations of each of the boards, the unpaid pension of each relator became due and payable on a day certain, without change or modification, and for a specified amount. In some instances the boards actually met and approved the payrolls and ordered payment “if and when funds were available.” In other instances, the record does not reveal such action by the board. In all instances, however, the names were on the rolls for the payment of a certain specified amount theretofore set under the rules and regulations of the board.

Whether these pensioners were made pensioners and their names placed upon the rolls prior to or subsequent to the year 1937, is of no legal importance, because we declare the law to be that, when a particular payment under a pension has become due, the pensioner has a vested right to it, and, in the absence of conditions which would forfeit his right, the board has no discretion but to order its payment, whether the fund at the time is or is not sufficient for payment. This is so even though, prior to the year 1937, a pension granted by public authorities was not considered a contractual obligation, but was considered to be a gratuitous allowance, in the continuance of which the pensioner had no vested right. Mell, et al., Trustees, v. State, ex rel. Fritz, 130 Ohio St., 306, 199 N. E., 72. We recognize as the general rule (in the absence of statutes to the contrary) the following statement in 40 American Jurisprudence, Pensions, Section 24:

“The unquestioned general rule is that a pension granted by the public authorities is not a contractual obligation but a gratuitous allowance, in the continuance of which the pensioner has no vested right, and that a pension is accordingly terminable at the will of the grantor, either in whole or in part. * * * And it is a strongly supported rule that where any particular payment under a pension has become due, the pensioner has a vested right thereto.”

See also: Gibbs v. Minneapolis Fire Dept. Relief Assn., 125 Minn., 174, 145 N. W., 1075, Ann. Cas. 1915C, 749; 54 A. L. R., 943; 98 A. L. R., 505; and 112 A. L. R., 1009; and cases therein cited.

Heretofore we have spoken of pensioners who became so, and their names placed on the rolls, prior to 1937. In the year 1937 the Legislature enacted Sections 4612-1 and 4628-1, General Code. These sections, with their subsequent amendments, created a vested right in both firemen and policemen to receive the amount fixed by their respective boards if their pensions were properly granted pursuant to the rules and regulations of the board. These pensioners, therefore, pursuant to statute, were given an immediate fixed right to a present enjoyment of their pensions when due, if funds were available, and a fixed right to future enjoyment when the funds became available; and, in addition thereto, the Supreme Court in State, ex rel. Cunat, v. Trustees of Cleveland Police Relief & Pension Fund, 149 Ohio St., 477, 482, 79 N. E. (2d), 316, made it a mandatory duty upon officials to pay a pension upon conditions fulfilled, on the theory that there was “a contractual obligation founded upon a valid consideration,, giving to the pensioner a vested right in his pension which cannot afterwards be impaired or revoked.” (Emphasis ours.)

It follows, we think, and we so hold, that to those pensioners who became so prior to the “vested rights” statutes, there was likewise a contractual obligation to pay those installments which became due, but remained unpaid, even though the trustees could, as to those falling in that class, “pass rules” altering for future payment the pensions previously granted. State, ex rel. Lemperle, v. McIntosh et al., Trustees, 145 Ohio St., 107, 60 N. E. (2d), 786. (We are speaking only of the rights of pensioners in the years in which the defaults in payment now in litigation occurred.)

It is claimed by the appellants that “The pension laws of 1947 are not retrospective, nor do they provide for any defaulted payments to pensioners in the past. The language of paragraph 9 of Sections 4612-4 and 4628 is clear and unequivocal, and admits of no strained construction. Article II, Section 28, of the Constitution of the State of Ohio, is as follows (Section 28, Retroactive Laws, etc.): ‘ The G-eneral Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts * * V”

All legislation cannot be judged by theoretical standards, but must be tested by the concrete conditions which induced it. There are many acts of the Legislature which may be properly called curative acts. They operate on conditions already existing and have both prospective and retrospective operations. They are not “retroactive” laws as that term is used in the Constitution.

In the legislation now under consideration (Section 4631-4, General Code, supra), we find it to be designed to provide additional funds over and beyond those funds acquired through other legislative means for the police and fire pension funds. Nothing in the act requires the funds to be used exclusively for future pension payments falling due. Rather the legislation was designed to not only help in the payment of pensions falling due in the future, but also to save the governmental agency from continuing to violate its contractual obligations — i. e., the obligation to make payment of pensions legally due. Certainly we cannot say that the pension legislation of this state was designed only to create an appearance of granting pensions, while at the same time withholding the benefits by providing inadequate funds.

When the monthly payments fell due for these pensioners, whether they became so before or after the legislation of 1937, there came into being a contract— on the part of the pensioners a completed act of service in the police or fire department, a fulfilled condition, and on the part of the pension boards a promise to pay. When full payment is made, the contract will be executed and until then the breach will continue.

It is further urged by the appellants (1) that the statute of limitations has run against some of the claims, and (2) that mandamus is not the proper remedy.

In answer to the first, we rule that, where payment is provided out of a particular fund or in a particular way, the' statute of limitations does not begin to run until the particular fund has been provided or the method pursued.

In answer to the second, we determine that there is an absolute obligation upon the respective boards to order payment of the defaulted pensions which are now due and owing, and that the relators have a clear legal right to demand “the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” (Section 12283, General Code.)

We have examined and considered each and every claimed error in addition to those heretofore discussed, and we find in the record no error which would justify a reversal of the judgments under review. The judgments therefore will be affirmed.

Judgments affirmed.

Stevens and Hunsicker, JJ., concur.

Doyle, P. J., Stevens and Hunsicker, JJ., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


source: Caselaw Access Project

author: Hornbeck, J.

license: Public Domain

text:
    Tasich et al., d. b. a. Big 3 Tavern, Appellants, v. Board of Liquor Control, Appellee. Siegel et al., d. b. a. Franklin Cafe, Appellants, v. Board of Liquor Control, Appellee.

      (Nos. 4930 and 4933
    Decided October 6, 1953.)

      Mr. Robert R. Shaw, for appellants.

      Mr. C. William O’Neill, attorney general, Mr. Ralph N. Mahaffey and Mr. Robert B. Rady, for appellee.
   Hornbeck, J.

These causes present the same question. They are appeals from judgments of the Common Pleas Court sustaining the action of the Board of Liquor Control in affirming orders of the Department of Liquor Control refusing to issue D-3a permits to appellants.

The factual situation is simple. Appellants are the holders of D-3 permits and made application to the department for the issuance to them of D-3a permits upon the representation that they desired to operate their places of business after 1 a. m., and to sell intoxicating liquor after that hour. The permits were denied because of regulation No. 64 of the Board of Liquor Control by which the number of permits to be issued is frozen.

It is the contention of appellants that regulation No. 64 is in contravention of Section 6064-15, General Code, and that they, as holders of permits D-3, are entitled as a matter of right to the issuance to them of D-3a permits.

The pertinent part of Section 6064-15, General Code, is, “The following classes of permits may be,issued”; then are listed permit A-l to A-4, inclusive; permit B-l to B-5, inclusive; permit C-l to C-2, inclusive; permit D-l to D-5, inclusive; and permits E, F, G, H and I.

The statutory provision for permit D-3 is as follows :

“A permit to the owner or operator of a hotel or restaurant licensed pursuant to Section 843-2 of the G-eneral Code, or a club, boat or vessel, to sell spirituous liquor and wine at retail, only by the individual drink in glass or from the container, for consumption on the premises where sold, only at tables where meals are sold. No sales of intoxicating liquor shall he made hy a holder of a D-3 permit after the hour of one a. m. The fee for this permit shall be four hundred dollars for each location, boat or vessel.” (Emphasis added.)

The provision for permit D-3a reads:

“In addition to all other fees herein provided, the holder of a D-3 permit shall pay an additional fee of four hundred dollars whenever his place of business is operated after the hour of one a. m. and spirituous liquor is sold or consumed after such hour. The holder of such permit may sell spirituous liquor during the same hours as the holders of class D-5 permits are allowed under the liquor control act or the regulations of the board of liquor control. ’ ’

The sections under consideration, in the main, were enacted December 23, 1933. Section D-3a was enacted June 5,1935.

It will be observed in an examination of the section that where permits authorize the sale of liquor they are defined as permits to sell spirituous liquor. Permit D-3a says nothing about such authorization. It is singular that in the subject matter of D-3 permit heretofore quoted and underscored, it is made an offense for a D-3 permit holder to sell intoxicating liquor after the hour of 1 a. m., but in the provision as to the D-3a permit, it is provided that if a sale is made after 1 a. m. the permittee shall pay an additional fee of $400. It would seem that this latter language authorizes the acceptance by the department of an additional fee of $400 for that which is a violation of a provision in permit D-3. It is unusual also that there is nothing in the subject matter under permit D-3a which directly sets out what the prerequisites are for an application of a D-3a permit. In the first sentence in the language defining permit D-3a the only mention of a permit is:

“* * * bbe bolder of a D-3 permit shall pay an additional fee of four hundred dollars whenever his place of business is operated after the hour of one a. m. and spirituous liquor is sold or consumed after such hour. ’ ’

Then follows in the next sentence this language:

“The holder of such permit may sell spirituous liquor during the same hours as the holders of class D-5 permits are allowed under the liquor control act or the regulations of the board of liquor control.” (Emphasis added.)

By all rules of grammatical construction the adjective, “such,” would modify D-3 permit. To give it the construction contended for by the appellee, it must be held that such permit refers to a D-3a permit. We believe that it may be so interpreted. The provision under consideration is poorly drawn.

Inasmuch as there seems to be some contradiction in the language defining permit D-3 and permit D-3a, it must be, if possible, reconciled. The language of permit D-3a permits the construction that when and if the holder of a D-3 permit sells spirituous liquor after 1 a. m,, he comes into the classification of a D-3a permittee, and it would follow that he should be granted such a permit. However, such construction would put the stamp of approval on that which is prevented by the language under permit D-3.

If the one word, “legally,” is inserted in the language defining permit D-3a it will give clearer meaning to the statute and bring it into harmony with that part of permit D-3 which prohibits the holder of such permit from selling spirituous liquor after 1 a. m. It would seem that such insertion is by implication read into every statute. The section so written would then read:

In addition to all other fees herein provided, the holder of a D-3 permit shall pay an additional fee of four hundred dollars whenver his place of business is legally operated after the hour of one a. m. and spirituous liquor is sold or consumed after such hour.

The holder of a class D-3a permit, as to the sale of liquor, has practically the same rights and privileges as the holder of a D-5 permit. The holder of a D-3a permit thereby acquires a right additional to his privileges under his D-3 permit, which, before being granted, should be subject to the same proceedings and the same surveillance of the department as are incident to the issuance of all other classes of permits. The fact that the $400 additional sum to be paid by the holder of a D-3a permit is characterized as a fee lends support to the theory that it is not a penalty but payment for such permit as contemplated in all other classes of permits.

Some of the aids to the construction we adopt are found throughout the Liquor Control Act in its entirety. It contemplates that the department shall “grant or refuse permits for the manufacture, distribution, transportation and sale of beer and intoxicating liquor. ’ ’ Section 6064-8, General Code. Pursuant to this authority the Board of Liquor Control, exercising its right under Section 6064-3, General Code, has provided rules and regulations with reference to applications for and the issuance of permits as provided in the act.

Interpretation of the act including the section under immediate consideration here has been that there should be a formal application for a permit and an acting upon it by the department.

“In interpreting a statute, it is a well-settled rule that a resort may, under proper circumstances, be had to the construction given thereto by those charged with its execution and application, especially where it has long prevailed. ’ ’ 37 Ohio Jurisprudence, 698, Section 387, and many cases cited supporting the text.

Section 6064-14, General Code, specifically provides:

“No person shall directly or indirectly * * * manufacture, manufacture for sale, offer, keep or possess for sale, furnish or sell, or solicit the purchase or sale of any beer or intoxicating liquor in this state * * * unless such person shall have fully complied with the provisions of the Liquor Control Act or shall be the holder of a permit issued by the Department of Liquor Control and in force at the time. ’ ’

This implies that no sale shall be made by a permit-tee without a permit regularly issued by authority of the act. In Section 6064-17, General Code, defining restrictions and limitations on the issuance of permits, class D-3a is included among the classes affected and in Section 6064-18, General Code, requiring bond from permittees as a prerequisite to the issuance of permits, there is included D-3a permit.

Upon a fair consideration of Section 6064-15, General Code, and particularly the classification of D-3a as a permit, we are of the opinion that, inasmuch as all permits are subject to regulations of the Board of Liquor Control, it, too, should be subject to the regulation No. 64, and that the director did not exceed his authority in denying this permit by reason of the regulation. The board did not err in affirming his order, and the Common Pleas Court did not err in affirming the order of the board.

The judgment is affirmed.

Judgment affirmed.

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


author: Wiseman, P. J.

text:
    Lunsford, Appellant, v. Stewart, Appellees.
    (No. 4864
    Decided September 25, 1953.)

      Messrs. Landis ds Runyan, for appellant.

      Messrs. McFadyen & Swisher, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law and fact from the Common Pleas Court of Franklin County. That court rendered judgment in favor of the defendants in an action in which plaintiff sought an injunction and damages because of the defendants having filled their lot with dirt up to grade and thus having prevented the surface water draining off plaintiff’s adjoining lot. Both of such lots are located in the city of Columbus. The record taken below is presented to this court by stipulation.

With respect to rural areas, Ohio has adopted the civil-law rule, i. e., that the dominant estate has a natural easement or servitude in the lower or subservient estate for drainage of water flowing in its natural course. Butler v. Peck, 16 Ohio St., 334, 343, 88 Am. Dec., 452; Tootle v. Clifton, 22 Ohio St., 247, 10 Am. Rep., 732; Blue v. Wentz, 54 Ohio St., 247, 43 N. E., 493; Mason v. Commrs. of Fulton Co., 80 Ohio St., 151, 88 N. E., 401, 131 Am. St. Rep., 689, 24 L. R. A. (N. S.), 903.

Plaintiff contends that the above rule has application to the factual situation developed in this case, whereas defendant contends that this rule has no application to urban areas and that in urban areas the common-law rule, sometimes designated the “common-enemy” doctrine, prevails. It must be observed that we are not dealing here with a natural watercourse, but with surface water.

In Springfield v. Spence, 39 Ohio St., 665, the court, on page 671, said:

“ * * * Surface water is a common enemy in a city.

“The owner of private lots can raise the same to grade if he so desires, and can thus keep out all surface water * * *.”

See, also, Brown v. Krody, 19 Ohio Law Reporter, 506.

In Strohm v. Molter, 30 Ohio Law Abs., 330, the court refused to apply the civil-law rule to urban lots, and applied the doctrine of “reasonable use.” See, also, a dictum in Mason v. Commissioners, supra, at page 180.

It cannot be claimed that defendant violated the “reasonable-use” rule.

We hold that the owner of a city lot which receives the natural flow of surface water from an adjoining lot, may fill said lot and erect structures thereon, diverting the natural flow of the surface water, and, if done in a reasonable manner, no liability arises in favor of the adjoining lot owner.

Judgment for defendant.

Miller and Hornbeck, JJ., concur.


text:
    The State, ex rel. Cutright, v. Akron Civil Service Commission et al. The State, ex rel. May, v. Akron Civil Service Commission et al.
    (Nos. 4403 and 4404
    Decided November 25, 1953.)

      Mr. Paul G. Laybourne, for relator in each case.

      Mr. Roy E. Browne, director of law, Mr. Nathan

      Koplin and Mr. Theodore R. Price, for respondents Civil Service Commission, Harlan Schwab, Fleet Perrine, Fred Renkert, and Russell M. Bird, Mayor.

      Mr. Hollis Allen, for respondent Boyd Burk.
   Doyle, P. J.

Two petitions, each seeking a writ of mandamus, were filed originally in this court. In view of the fact that the questions involved in each case are in all essential respects the same, the cases have been consolidated for trial.

In each case the relator is a police officer in the city of Akron (Carroll Cutright in one and George May in the other); the defendants are the Akron Civil Service Commission and the members thereof; the mayor, who was also ex officio safety director of the city; and a fellow police officer named Boyd Burk.

The amended petitions state, and the claims in trial are, in substance that:

(1) The Civil Service Commission of the city, on May 8, 1953, conducted an examination to create an eligible list for the appointment of police captains, two vacancies then existing.

(2) Five of those who submitted themselves for examination passed the 75 per cent minimum grade and were placed on the eligible list in the order of their grades — i. e., Lieutenant Harry Whidden (87.65 per cent), Lieutenant Boyd Burk (defendant, 83.95 per cent), Lieutenant Carroll Cutright (relator, 83.45 per cent), Lieutenant George May (relator, 80.00 per cent) and Lieutenant William Willoughby (79.50 per cent).

(3) Lieutenant Burk was not legally entitled to take the examination, because he was absent from the department for a continuous period of more than two years, was never legally reinstated, and was, at the time he took the examination, “illegally holding the position of lieutenant in said department.”

(4) The merit rating, which constituted 20 per cent of the entire grade, was not fairly employed, because, whereas for all officers except Lieutenant Burk, the merit grades given in the years 1952 and 1953 were used, in Burk’s case his merit rating in the years 1950 and 1953 were taken, and the standard of rating for all members of the department was substantially higher in the year 1950 than in the years 1952 and 1953. (Burk’s 1950 rating was taken because in the years 1952 and 1953 he was absent while in the service of the Federal Bureau of Investigation.)

(5) Credit for continuous service was wrongfully given to Lieutenant Burk, which, under the classification of seniority, gave a higher final grade than he would have had if he had not been given credit for “two years and four days” during which he was absent from the department..

(6) “* * * the action of the Civil Service Commission in permitting an unqualified person to take the promotional examination, and as a result of unfair credit given others taking the examination, for length of service and merit rating, and as. a result of the commission failing to give examinations in accordance with the laws of Ohio, he (the relator in each case) was deprived of his proper standing upon an eligible list * * *; that the said Boyd Burk was certified ahead of him and was appointed to the position of captain of police in the Akron City Police Department * * *, and that said Boyd Burk is now holding said position illegally * *

In addition to again pleading unlawful conduct on the part of the defendants, and that “Boyd Burk is occupying said position without authority of law and contrary to law,” each plaintiff “prays for an order vacating the eligible list certified by the Civil Service Commission of the city of Akron, Ohio; vacating the appointment of said Boyd Burk as captain in the Akron Police Department, and for an order requiring the Civil Service Commission to make up and certify an eligible list for captain excepting the so-called performance and service records which had previously been considered by the commission as part of the examination, or make up said list and make the appointment therefrom on the basis of the previous examination, eliminating the credits given under the so-called performance records section of the previous examination. ’ ’

Essential facts now before us to which we must apply the law are in substance as follows:

Lieutenant Boyd Burk, of the Akron Police Department, was assigned by the chief of police of Akron to temporary duty with the Federal Bureau of Investigation on October 16, 1950, pursuant to request by the federal agency for assistance in its investigation of subversive activities. The police officer was, as of that date, given a leave of absence by the Civil Service Commission; was removed from the city payroll, and received pay for his services from the federal government. He continued in federal service until his resignation therefrom effective October 17, 1952, and returned to active duty in the Akron Police Department effective October 20, 1952. By local official action he was reinstated to the police department payroll as of October 20.

In determining the question of whether the officer’s absence from the Akron Police Department, for a period of more than two years, entitled him to reinstatement and with time or seniority credit for the time of his absence, we must now turn to the law.

Section 486-16, General Code, in part provided:

“Any person holding an office or position under the classified service who has been separated from the service without delinquency or misconduct on his part may, with the consent of the commission, be reinstated within one year from the date of such separation to a vacancy in the same or similar office or position in the same department.”

As we interpret this section of the Code, it does not apply to a police officer in the classified service who has been given a leave of absence. It applies rather to one who has resigned or who has otherwise been separated from the service. See, for instance, the comment on its application in State, ex rel. Simmons, v. Wieber et al., Bd. of Trustees, 145 Ohio St., 121, at p. 126, 60 N. E. (2d), 687.

A leave of absence from the service is not a separation from the service. Apart from any extrinsic consideration, the natural meaning of the phrase “leave of absence ’ ’ is not that the one on leave -is no longer a member of the police department, or, in other words, is separated from the department, but rather that such one, while still a member of the department, is temporarily excused from performing his active duties as a policeman in the department, during which time remuneration is suspended. As indicative of legislative thinking in the Code section cited above, the Legislature, in enacting Section 486-16&, General Code, specifically referred to a resignation. This section in part provided: “Any person holding an office or position under the classified service in a fire department or a police department, who resigns therefrom, may be reinstated to the rank of fireman or policeman, as the case may be, upon the filing of a written application for reinstatement * * *, said application for reinstatement shall be filed within one year from the date of resignation.” (Emphasis ours.)

It is argued that Rule XXIII of the Akron Civil Service Commission, which authorized the granting of leave of absence for work in the Federal Bureau of Investigation, is in conflict with general laws, and, as a result thereof, cannot control the officer’s reinstatement to active duty and to seniority privileges.

Rule XXIII is as follows:

“Section 1. Leave of Absence Without Pay: With the consent of the Civil Service Commission, an appointing officer may grant a leave of absence to an employee for a definite period of not to exceed one year, unless such leave is granted for military duty or service with the Federal Bureau of Investigation. A leave of absence granted for military duty or Federal Bureau of Investigation service, shall be granted for the duration of such service. ‘Leaves of absence may be granted for good cause among which the following shall be deemed proper: Military Service; service with the Federal Bureau of Investigation; physical disability; study or training of value in connection with the municipal service. All leaves of absence shall be promptly referred to the Commission for approval or disapproval, as the case may be, in order that the civil service status of such absentee may be protected. ’ ’ ’

This amendment of the civil service rules became effective on October 13, 1950. As noted above, Lieutenant Burk discontinued active duty with the police department on October 16, 1950. It thus appears that, if the rule is effective and enacted within the power of the municipal commission, it governs the right of Lieutenant Burk to reinstatement to active duty at the conclusion of his services with the Federal Bureau of Investigation, even though he was absent from active duty with the Akron Police Department for a period of over two years.

In an examination of the many statutes cited, and in fact of the entire field of legislation bearing upon the question involved, we find no general laws of the state which are in conflict with the rule under investigation. If Section 486-16, General Code, supra, may be said to be a “ general law, ’ ’ we have heretofore determined that it applies only to one who is “separated” from the service and not one who is on leave of absence. It seems obvious to this court that Rule XXIII controlled the status of Lieutenant Burk when he was reinstated to active duty, and, in so holding, we are giving, as we must, full force and effect to the powers granted municipalities by Article XVIII, Section 3, of the state Constitution. The powers granted are :

‘ ‘ Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

See: State, ex rel. Lentz et al., Civil Service Commission, v. Edwards, 90 Ohio St., 305, 107 N. E., 768; State, ex rel. Arey, v. Sherrill, City Mgr., 142 Ohio St., 574, 53 N. E. (2d), 501; Harsney v. Allen, Jr., Chief of Police, 160 Ohio St., 36, 113 N. E. (2d), 86.

Before terminating this phase of our analysis, reference should be made to the petitioners’ claim that Section 486-.7a, Q-eneral Code, must be considered as controlling the instant ease. They quote as follows from the section:

“The words, ‘continuously employed,’ for the purpose of this adjustment, shall mean employment with the state of Ohio with no break in pay except for:

“(a) leave of absence with subsequent reinstatement within one year;

í Í * * *

“(d) military service leave as authorized by Ohio statutes.”

It is claimed that, in this section of the Code, no provision was made for service in the Federal Bureau of Investigation. It is true, as claimed, that no specific provision in this legislation was made for service in the federal bureau, but the section of the Code had no application to police officers of a municipality. In fact, it applied only to persons occupying positions in the state government, as distinguished from the municipal government.

In view of our conclusions on the status of Lieutenant Burk when he was reinstated to. active duty, it logically follows that he was entitled to take a promotional examination from his legally-held position as lieutenant of police, and further that he was entitled to a seniority rating which would include the time spent with the Federal Bureau of Investigation, as the latter detached work did not interrupt his membership in the police department, nor his “years of service” as that term may be determined to mean within the purview of Section 486-10, General Code.

2. In considering the claim that “the merit rating * * * was not fairly employed,” we do not find the argument tenable.

The rule of the Akron Civil Service Commission (Rule VII, Section 2, paragraph h), which cannot be successfully challenged, provides:

“Efficiency. This subject shall be used in promotional examinations only and shall consist of the average of the two previous efficiency ratings of the employee concerned or of his last rating in case he has not been in service long enough to receive two.”

The facts are that the “two previous efficiency ratings” of Lieutenant Burk were actually taken, and, even though they were not in consecutive years, the ratings which were taken were those which the rule required.

3. In the light of our analysis of the facts before us, we conclude that the petitioners have neither proved a clear legal right to the relief sought, nor that there has been a plain dereliction of duty established against the municipal officials. The writs will be denied for the reasons stated above.

4. While we have preferred to base our conclusions on the grounds and for the reasons heretofore stated, we observe in passing that a case against the granting of the writs might be persuasively argued on the authority of Kluth v. Andrus, Dir. of Public Safety, 157 Ohio St., 279, 105 N. E. (2d), 579, the first paragraph of the syllabus of which is as follows:

“1. Where the promotional civil service examination given for a position did not fully comply with the civil service laws and where the members of the civil service commission fraudulently raised the grade of the candidate whom it certified and lowered the grade of another candidate, so as to make it appear that the candidate certified to the appointing authority as having attained the highest rating did receive the highest grade, but it does not appear that the candidate so certified either sponsored, participated in or had anything to do with such illegal and improper actions, and where such candidate was thereafter appointed to that position, pursuant to Section 486-13, General Code, and rendered satisfactory service in that position for more than three months, his removal from that position is thereafter governed by the provisions of Section 486-17a, General Code.”

The writs will be denied.

Writs denied.

Stevens, J., and Hunsicker, J., concur.


author: Matthews, P. J.

text:
    Orth, Appellee, v. Lauther et al., Appellants.
    (No. 7773
    Decided October 19, 1953.)

      Mr. Hawley Todd and Mr. Charles A. Brigham, Jr., for appellee.

      Messrs. Cowell é Fletcher and Mr. Lee J. Hereth, for appellants.
   Matthews, P. J.

This is an appeal on questions of law from a judgment for the plaintiff in an action to recover a commission under a written contract of employment of the plaintiff by the defendants as their agent to effect a sale of certain real estate owned by them.

In making their contract, the parties used a form prepared by The Cincinnati Real Estate Board, in which is found the following printed provision:

“In consideration of your efforts to procure a purchaser I/we agree to pay you the rate of commission as established by The Cincinnati Real Estate Board.”

On the reverse side, there is this printed endorsement: “Rates of commission! adopted by The Cincinnati Real Estate Board — Private sales — Improved property 5%.”

It was proven at the trial that The Cincinnati Real Estate Board was composed of about 700 real estate agents, duly licensed by tbe state of Ohio, of which the plaintiff was one; that The Cincinnati Real Estate Board was affiliated with The Ohio Real Estate Board and The National Association of Real Estate Boards; that they had identical constitutions, bylaws, and codes of ethics; and that all three fixed standard rates of commissions and required their members to agree to adhere to the rates thus established.

The defendants, appellants herein, made this prologue to their argument on the law:

“The sole question to be decided on this appeal is whether a contract for real estate broker’s commission shown by adherence to a schedule of standard rates of commission fixing the uniform or minimum rates is illegal in Ohio as being violative of the Sherman Antitrust Act or of the Ohio Valentine Anti-trust Law.”

It is thus seen that the defendants concede that the plaintiff is entitled to the commission according to the express terms of the contract. The issue is, therefore, reduced to the single question as to the validity of the contract and particularly the validity of the terms fixing the rate of commissions. The defendants challenge their validity. It is argued that The Cincinnati Real Estate Board, The Ohio Real Estate Board, and The National Association of Real Estate Boards, separately and collectively are combinations in restraint of trade; and that it has been so decided as to the last named organization in the case of United States v. National Association of Real Estate Boards, 339 U. S., 485, 94 L. Ed., 1007, 70 S. Ct., 711.

It is not claimed that the defendants were subjected to duress or that undue influence was exerted. It is conceded that they signed the contract of their own free will. It is not claimed that they were parties to any combination in restraint of trade, unless it can be said that their adherence to this contract would have that effect. It is defendants’ contention that the plaintiff’s adherence to the terms of The Cincinnati Real Estate Board, a contract to which defendants are not parties, renders the contract, with them illegal and unenforceable. In other words, they assert that their contract with the plaintiff is infected with the illegality of the contract the plaintiff has with the other members of The Cincinnati Real Estate Board.

If we should assume that The Cincinnati Real Estate Board, composed of brokers, is a combination in restraint of trade, still we find no basis for holding it to be violative of the Sherman Anti-trust Act. There is no showing that any of its activities other than its affiliation with The National Association of Real Estate Boards transcends state boundaries. And this transaction between the plaintiff and defendants is entirely intrastate. The real estate is located in Ohio, the contract was made and to be performed in Ohio, and was between citizens and residents of Ohio. Certainly, there is no basis for any claim that it is either interstate commerce or that it affects interstate commerce.

If The Cincinnati Real Estate Board is to be denounced as a combination in restraint of trade, it must be because it violates rules of the common law or the terms of the Ohio Valentine Anti-trust Act. Section 6390 et seq., General Code.

Counsel rely on United States v. National Association of Real Estate Boards, supra, in support of their position, but that case simply holds that the contract between the members of the association violated the Sherman Anti-trust Act. It does not involve a contract between a member and a nonmember for a commission for making a sale.

Counsel also rely on List v. Burley Tobacco Growers' Co-operative Assn., 114 Ohio St., 361, 151 N. E., 471. That case, likewise, involves a contract between members of an association and not a contract between a member and a nonmember. While the Valentine Anti-trust Act was relied on to invalidate the contract, the court held that as the association was operating in accordance with the terms of a special statute, it could not be said to be an unlawful combination. In other words, the provisions of a special statute prevailed over a general statute.

It is apparent that List v. Burley Tobacco Growers’ Co-operative Assn. has no application to the facts of this'case.

Nor does Continental Wall Paper Co. v. Voight & Sons Co., 212 U. S., 227, 53 L. Ed., 486, 29 S. Ct., 280. The action there was to recover for wallpaper sold, it is true, to a nonmember, but the contract between the nonmember and the combination contained illegal provisions, that is, the nonmember agreed to join the combination in maintaining prices. It was that illegal provision in the contract of purchase that precluded the plaintiff from recovery. This is shown by the fact that the court expressly approved Connolly v. Union Sewer Pipe Co., 184 U. S., 540, 46 L. Ed., 679, 22 S. Ct., 431, saying, at page 260:

“The present case is plainly distinguishable from the Connolly case. In that case the defendant, who sought to avoid payment for the goods purchased by him under contract, had no connection with the general business or operations of the alleged illegal corporation that sold the goods. He had nothing whatever to do with the formation of that corporation, and could not participate in the profits of its business. His contract was to take certain goods at an agreed price, nothing more, and was not in itself illegal, nor part of nor in execution of any general plan or scheme that the law condemned. The contract of purchase was wholly collateral to and independent of the agreement under which the combination had been previously formed by others in Ohio. It was the case simply of a corporation that dealt with an entire stranger to its management and operations and sold goods that it owned to one who wished to buy them. ’ ’

That could be said with equal propriety about the contract between the plaintiff and defendants in this case.

There are many cases making this distinction between an action to enforce the contract between the members of the combination and a contract itself containing no illegal provisions by a member with a nonmember.

In Jackson v. Akron Brick Assn., 53 Ohio St., 303, 41 N. E., 257, 53 Am. St. Rep., 638, 35 L. R. A., 287, the brick association sought to recover for bricks sold and delivered. Two defenses were alleged, one that the plaintiff was not a juristic person, but nothing more than a name used to designate a monopolistic association of brick manufacturers, maintaining a central office or agency through which all purchases of brick had to be made, and through which all sales of brick were made, and that the purpose was to control the price of brick and to stifle competition, contrary to sound public policy. The trial court submitted the issues to the jury, which found for the plaintiff. The Supreme Court reversed the judgment and remanded the cause for further proceedings on the ground that the plaintiff had no legal capacity to sue. However, the court, at page 304, took occasion to approve the following portion of the trial court’s charge to the jury as an abstract statement of the law:

“ ‘In our jurisprudence it is no defense to say that the contract was made with a bad man, or with persons engaged in prosecuting acts contrary to law, or the policy of the state, unless the contract grows immediately out of and in connection with an illegal or immoral act. A clear distinction exists in law, as well as ethics, between a contract entered into to do an unlawful or immoral act, or to promote a course of conduct contrary to the policy of. the state, and a contract entered into for a legitimate purpose, though made with persons who commit unlawful and immoral acts or promote schemes contrary to good policy. ’ ’ ’

We are of the opinion that the correct rule to govern this case is stated in 36 American Jurisprudence, 656, Section 198, and is as follows:

“It is well settled at common law that the contracts of an unlawful combination or its members which are collateral to and independent of the unlawful contract by which the trust or monopoly was created and which are not in furtherance of its unlawful purpose, are valid and enforceable. It is generally agreed that the mere fact that the plaintiff is a member of a trust or combination, created with the intent and purposes of restraining trade or establishing a monopoly, will not disable or prevent it in law from selling goods or services within or affected by the provisions of such trust or combination, and recovering their price or value, either at common law or under statutes making unlawful contracts in restraint of trade or commerce.”

See, also, 58 Corpus Juris Secundum, 1109, Section 92.

Defendants’ counsel seek to draw a distinction between an action for the contract price based on a schedule promulgated by the unlawful combination and an action for the reasonable value of the services. They argue that reference to the schedule prevents the contract from being collateral to or independent of the contract in restraint of trade among the members of The Cincinnati Beal Estate Board. We find no such distinction made in the cases. While the contract rate was taken from the established schedule, the defendants were under no compulsion to agree. We repeat that no duress or undue influence is charged. The defendants agreed of their own free will. In doing so, they were contracting for the plaintiff’s services as a licensed real estate broker, and not contracting to promote the stifling of competition.

Furthermore, the defendants having voluntarily agreed to the rate of compensation must be taken to have admitted its reasonableness. There is no evidence in the record to contradict that admission. If necessary to support the judgment of the trial court, we would be required to hold that the defendants’ agreement to the rate was sufficient evidence to uphold the trial court’s finding that the services were reasonably worth that amount.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


author: Collier, J.

text:
    Austin, Appellant, v. River et al., Partners d. b. a. River Oil Co., Appellees.

      (No. 429
    Decided May 15, 1953.)

      Mr. William W. Stanhope, for appellant.

      Mr. David L. Barrett, for appellees.
   Collier, J.

This is an action originating in the Common Pleas Court of Ross County, in which the Central Motor Lines, Inc., and Clyde E. Austin joined as plaintiffs to recover damages to a tractor and trailer which plaintiffs claim were caused by a collision with a motor vehicle owned by the defendants and operated by their agent. The petition sets forth that the plaintiff Central Motor Lines, Inc., is the owner of the trailer, and that plaintiff Austin is the owner of the tractor. The question of proper joinder of parties plaintiff is not presented to this court and will not be considered in this opinion.

A trial by jury was waived and, after a hearing, the trial court rendered judgment in favor of the plaintiff Central Motor Lines, Inc., in the sum of $1,491.20, for damages to its trailer, but denied recovery to the plaintiff Austin. The judgment entry, as it pertains to Austin, reads as follows:

“There can be no recovery for the damages to the motor truck or tractor owned by Clyde Austin and leased by the Central Motor Lines for the reason that ownership of the tractor was not proven as required by Section 6290-4 of the Ohio General Code, commonly known as the Ohio Title Act and the court denies recovery for failure to prove - title under the Ohio law (Sec. 6290-4).”

A motion for a new trial filed by plaintiff Austin was overruled. The plaintiff Central Motor Lines, Inc., did not file a motion for a new trial and is not concerned with this appeal.

The assignments of error are:

1. Error of law consisting of denial of recovery to plaintiff Austin for failure to prove title under the Ohio Certificate of Title Act, Section 6290-4, General Code.

2. Error of law in failing to grant a motion for a new trial filed by the plaintiff Clyde E. Austin.

3. Error of law in the application of Section 6290-4, General Code, to a person engaged in interstate commerce and who is asserting a claim for damages in an Ohio court. The terms of this statute exclude persons who are not eligible for a certificate of title under the Ohio act.

The evidence shows that both plaintiffs are residents of the state of North Carolina; that at the time of the accident on May 4, 1948, they were engaged in interstate commerce; and that the plaintiff Austin, with his driver, was operating the tractor and passing through Ohio on his way to Chicago when the collision occurred.

Did the trial court commit error in denying recovery to plaintiff Austin for failure to prove title under the Ohio Certificate of Title Act, as claimed by Austin in his first and third assignments of error? Stated another way, does the statute apply to a nonresident of Ohio who is asserting a claim for property damages to a motor vehicle in an Ohio court? Counsel do not cite any Ohio decisions, and we are unable to find any directly in point. However, we are referred to the following indirect statement by Judge Middleton in the opinion in the case of Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N. E. (2d), 665: “In the instant case the plaintiff, if a citizen and resident of Ohio, would be subject to the provisions of Section 6290-4, General Code, * * V’ Reading this statement out of context, it may indicate that the statute applies only to residents of Ohio. But when it is read in conjunction with the whole opinion, the meaning is clear that the statute applies alike to all persons whether residents or nonresidents of Ohio. In that case and several other cases, including the case of Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342, the policy and the law of Ohio is definitely established that title to a motor vehicle may be proved only by a certificate of title. It is said in the Mielke case: “However, the language of Section 6290-4, General Code, is not only sweeping but is unrestricted and unlimited. ’ ’

Whether the plaintiff in the instant case has title to the tractor involved must be determined by the substantive law of North Carolina, and depends on whether the plaintiff has complied with the law of the state of his domicile in respect to registration of motor vehicles — lex loci actus — the rule of the place of the act to be proved, but the principle of procedure, the method of proof, is governed by the rules of the forum —lex fori.

The law of evidence is a part of the law of procedure. Wigmore on Evidence (3 Ed.), 159, Section 5; Endfield, Admr., v. Butler, 221 Iowa, 615, 264 N. W., 546; Greaf v. Breitenstein, 97 Ind. App., 525, 187 N. E., 347; Pilgrim v. MacGibbon, 313 Mass., 290, 47 N. E. (2d), 299. In the absence of any proof that the plaintiff is the holder of a certificate of title to the tractor under the law of the state of his residence, the trial'court was correct in denying recovery of damages.

Should the trial court have granted plaintiff’s motion for a new trial as contended by plaintiff in his' second assignment of error? The record in this case presents a situation very similar to that in the Mielke v. Leeberson case, supra. In both cases there was some evidence of ownership of the motor vehicle, and in each case the plaintiff was in possession thereof at the time of the accident. The plaintiff Austin in the instant case was asked this question and gave this answer:

Q. “Who owned the truck in which you were riding? A. I did.”

There are several other references in the record, including the judgment entry, where Austin is recognized as the owner of the tractor. In the Mielke case, where the proof of ownership is almost identical, our Supreme Court held that the action of the Court of Appeals in rendering final judgment of dismissal was wrong, and remanded the cause to the Common Pleas Court for a new trial. The concluding paragraphs of the opinion by Judge Stewart read, in part, as follows :

“In our view of the case, since there was evidence of plaintiff’s ownership, although such evidence can never be sufficient without the production of a certificate of title, the proper procedure is a reversal and a remanding for a new trial.

(( # # #

“In our view, the Court of Appeals properly reversed the judgment of the Court of Common Pleas, but the case should have been remanded to the Court of Common Pleas for a new trial.”

If, in a parallel case which has reached the Supreme Court, that court took the view that the justice of the case demanded another trial, certainly the trial court, confronted with the same situation, in its discretion, should have granted a new trial to allow the plaintiff Austin the right to establish his title to the tractor by sufficient proof, especially since his failure to do so is the only reason given in the judgment entry for denial of recovery of damages. A new trial of this cause may be limited to the single issue of ownership of the tractor. Whitmire v. Douglas G. High, Inc., 82 Ohio App., 389, 81 N. E. (2d), 647.

Following the doctrine of precedents, we feel bound by the disposition made in the case of Mielke v. Leeberson, supra.

In 11 Ohio Jurisprudence, 778, Courts, Section 131, it is said:

“It is the duty of the lower courts to determine what the decisions of the higher courts are, and then defer to their authority. ’ ’

It is interesting to note that the Mielke case, as reported in 7 A. L. R. (2d), 1342, carries the following headnote:

“Upon reversal of judgment for plaintiff in action to recover for damage to automobile on ground of insufficiency of the evidence to sustain the verdict, in that a certificate of title is not in evidence as required by statute, where there is some evidence of plaintiff’s title, consisting of Ms testimony of ownersMp and the fact of his possession, the proper procedure is not a final judgment of dismissal but a reversal and remanding for a new trial.”

On the authorities above cited and under the circumstances as disclosed by the evidence, the trial court abused its discretion in not sustaining plaintiff’s motion for a new trial, and this cause is remanded to the Common Pleas Court with instructions to sustain said motion and grant to the plaintiff a new trial.

For additional authorities on this subject see 30 Ohio Jurisprudence, 35, Section 6; Merchants’ & Manufacturers’ Ins. Co. v. Shillito, 15 Ohio St., 559, 86 Am. Dec., 491; 3 American Jurisprudence, 707, Section 1204.

Judgment accordingly.

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


author: Conn, J.

text:
    VanStone et al., Appellants, v. VanStone et al., Appellees.

      (No. 4612
    Decided February 18, 1952.)

      Messrs. Brady, Whitehead <& Simmons, for appellants.

      Messrs. Williams & Eversman, for appellees.
   Conn, J.

This is an appeal by plaintiffs from a judgment entered by the Common Pleas Court on the motion of defendant Beatrice VanStone to strike from the files the petition of plaintiffs and entering judgment for defendants upon the ground that the court did not have jurisdiction of the subject matter of the action. From that judgment, plaintiffs appealed to this court on questions of law.

The petition contains two causes of action, and the relief sought is that a trust be imposed on certain personal and real property described therein by virtue of the terms and provisions of the wills of the grandparents of plaintiffs, Thomas VanStone and Ella Van-Stone.

In the introductory allegations of plaintiffs ’ petition, which are incorporated in the first and second causes of action, it is averred that Thomas VanStone died testate on January 11, 1918, leaving surviving his widow, Ella VanStone, and five children; that Ella VanStone died testate on June 28, 1925; that the wills of such decedents were duly admitted to probate and record in the Probate Court of Lucas County, Ohio; and that the estate of each was administered in that court and closed.

It is alleged further that plaintiffs are the only surviving children and next of kin, respectively, of Fred YanStone and George YanStone, who were children of Thomas and Ella YanStone and who passed away prior to the death of their mother Ella VanStone.

The wills of Thomas YanStone and Ella VanStone, and also the will of their daughter, Ethel D. VanStone (who died on July 7, 1940), were each incorporated in plaintiffs’ petition, and it is alleged that by virtue of the testamentary provisions therein, the property devised and bequeathed was impressed with a trust, and that plaintiffs are the beneficiaries of the trusts so created.

In determining the question of the trial court’s jurisdiction of the subject matter of the action, a detailed recital of the allegations in the petition appears to be unnecessary. We call attention to the statute (Section 11309, General Code) which expressly provides that the issue of jurisdiction of the subject matter be raised by demurrer. However, without approving the practice “of making a motion to strike from the files subserve the purpose of a general demurrer” (Robinson v. Fitch, 26 Ohio St., 659, 662), no good purpose would be served in remanding the case on the ground of this procedural irregularity, if on the face of the pleading, the jurisdiction or want of jurisdiction of the trial court is clearly manifest.

It is apparent from an examination of the wills of Thomas and Ella VanStone that no testamentary trusts were provided for in express terms. Under such circumstances, before the devised or bequeathed property could be impressed with a trust, it must appear from the language employed that the testator so intended. It follows that it would be necessary to construe the wills and ascertain the intention of the testator before a trust could be imposed.

Does the Common Pleas Court, pursuant to the Constitution and statutes, have jurisdiction to construe wills?

The Constitution (Section 4, Article IV), does not confer jurisdiction on the Common Pleas Court directly and in specific terms. It contains the general provision that “the jurisdiction of the Courts of Common Pleas, and the judges thereof, shall be fixed by law.” “It is given a capacity to receive jurisdiction * * * but it can exercise none, until ‘fixed by law.’ ” (Stevens v. State, 3 Ohio St., 453.)

Section 11215, General Code, as uniformly construed by the courts, confers general jurisdiction on the Courts of Common Pleas in both law and equity. Over a period of many years, the Common Pleas Court was the only court competent to construe wills; but, in 1932, pursuant to the provisions of Section 8, Article IV of the Constitution, the Legislature, in the enactment of the Probate Code, conferred jurisdiction upon the Probate Court in 13 specific matters (Section 10501-53, General Code), including the construction of wills. This section concludes with the general provision :

“Such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law.

“The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

The explicit language found in this statute clearly reveals that the Legislature intended to give to the Probate Court exclusive jurisdiction in the several matters enumerated in the statute, including the construction of wills, “unless otherwise provided by law. ’ ’.

The general jurisdiction of the Common Pleas Court conferred by Section 11215, General Code, is modified or limited by the provisions of Section 10501-53, General Code, with respect to the specific provisions incorporated therein, including its jurisdiction to eonstrue wills, in which respect the statute is repealed by implication, it being a general statute and such section being a later enactment. Unger v. Wolfe, 134 Ohio St., 69, 74, 15 N. E. (2d), 955.

However, statutes conferring specific jurisdiction on the Common Pleas Court were not repealed by implication by the enactment of the Probate Code, for the reason that such statutes are within the statutory exceptions “unless otherwise provided by law.” Nahas, Admx., v. George, 153 Ohio St., 574, 93 N. E. (2d), 5; State, ex rel. Ehmann, v. Schneider, Judge, 78 Ohio App., 27, 67 N. E. (2d), 117.

Plaintiffs contend, however, that the jurisdiction conferred in express terms on the Probate Court to render declaratory judgments by Section 10501-53, General Code, is not exclusive, and that under the Declaratory Judgments Act (Sections 12102-1 to 12102-16, inclusive, General Code), enacted subsequent to the Probate Code, such jurisdiction is also conferred upon the Common Pleas Court.

In relation to this contention, plaintiffs obtained leave in the trial court to amend their petition by striking from the prayer those paragraphs wherein plaintiffs prayed specifically that a trustee be appointed by the court to take possession of the trust assets, etc.; and at the same time they obtained leave to amend the first paragraph of the prayer by adding thereto the words: “Under the provisions of Sections 12102-1 to 12102-16, inclusive, of the General Code of Ohio.”

Leave to make these amendments having been granted (however, no amended petition was filed), it is now urged that the petition, as amended, states a .cause of action under the Declaratory Judgments Act. As already pointed out, these amendments are related exclusively to the prayer. It appears to be uniformly recognized that the sufficiency of a pleading is determined on the basis of the facts alleged in the body of the pleading and that the prayer forms no part of the cause of action or defense. 31 Ohio Jurisprudence, 629, Section 80; Borchard on Declaratory Judgments (2 Ed.), 425.

When a litigant asserts a right conferred by statute, the allegations in his pleading must be sufficient in substance to embrace the right conferred. It is said to be ‘ ‘ an elementary principle in pleading that if a statute, upon certain conditions, confers a right, or gives a remedy, unknown to the common law, the party asserting the right, or availing himself of the remedy, must in his pleading bring himself clearly within the statute.” 31 Ohio Jurisprudence, 573, Section 36; Borchard on Declaratory Judgments (2 Ed.), 208.

The Uniform Declaratory Judgments Act expressly provides that it "is to be liberally construed and administered” (Section 12102-12, General Code) in those cases which are properly within the act. Coshocton Real Estate Co. v. Smith, 147 Ohio St., 45, 67 N. E. (2d), 904; Schaefer v. First National Bank of Findlay, 134 Ohio St., 511, 18 N. E. (2d), 263.

It may be noted further that in Ohio it now appears to be well settled that an action for declaratory judgment may be alternative to other remedies in those cases in which the court, in the exercise of sound discretion, finds that the action is within the spirit of the Uniform Declaratory Judgments Act.

However, before the question of the jurisdiction of the Common Pleas Court to enter a declaratory judgment in a given case can be determined, a petition with appropriate allegations within the letter and spirit of the act must be presented to that court. 41 American Jurisprudence, 355, Section 92.

In the instant case, it is our opinion that the two causes of action set forth in plaintiffs’ petition, when liberally construed, present a claim for relief grounded on equitable principles, as heretofore amenable to the general jurisdiction of a court of equity. To be more specific, the plaintiffs assert the claim that it was the intention of their grandfather and grandmother in making testamentary disposition of their real and personal property to impress it with a trust and that plaintiffs are among the beneficiaries of such trust. It is apparent from the petition, as amended, that before imposing a trust upon such property, it is necessary to construe the wills of such testator and testatrix. 41 Ohio Jurisprudence, 820, Section 684.

As already pointed out, the.Probate Court now has exclusive jurisdiction to construe wills. It follows that plaintiffs’ action, as pleaded, can not be maintained in the Common Pleas Court.

In view of the conclusion we have reached that plaintiffs’ action, as pleaded, is not within the Uniform Declaratory Judgments Act, the questions whether such action could be brought in the Common Pleas Court under this Act and the issues adjudicated therein are not. presently before us in the opinion of a majority of the court.

Judgment affirmed at plaintiffs’ costs.

Judgment affirmed.

Fess and Savord, JJ., concur.

Fess, J., concurs on the additional ground that, although to be liberally construed, the Declaratory Judgments Act does not add to the substantive jurisdiction of either the .Probate Court or the Common Pleas Court.


text:
    Shuman, Admr., Appellee, v. Schick et al., Appellants.
    (No. 181
    Decided July 15, 1953.)

      Mr. James J. O’Brien, Mr. John D. Holschuh and Mr. J. Paul McNamara, for appellants.

      Mr. Manning D. Webster, Mr. Cedric W. Clark and Mr. Henry W. Cherrington, for appellees.
   Collier, J.

This is an appeal on questions of law from a judgment of the Probate Court of Meigs County in an action for a declaratory judgment to determine the rights and interests of the parties in the proceeds of a joint and survivorship account with a loan and savings association.

The undisputed facts in the case are substantially as follows: Some time prior to March 1935 John Sponagel, George Victor Sponagel and Lucinda Sponagel Precher opened account No. 24158 in The American Loan & Savings Association of Dayton, Ohio, in the approximate sum of $4,000. John Sponagel was the father of George Victor Sponagel, referred to in the record as Victor, and Lucinda Sponagel Precher, referred to in the record as Lucinda.

In March 1935 John Sponagel, the father, died, leaving the son and daughter, Victor and Lucinda, co-owners of the account. On October 3, 1935, Victor shot Lucinda with a revolver, thereby wrongfully causing her death. Victor was arrested for the wrongful killing of his sister and placed in the county jail of Meigs county, where the shooting occurred. On October 7, 1935, Victor committed suicide in the county jail by hanging himself with a bed sheet.

After the death of Victor, the administrator of his estate received the balance of the account, $4,132.61, from the state of Ohio in the liquidation of The American Loan & Savings Association.

After a hearing in the Probate Court of Meigs County on the petition of the administrator of Victor’s estate to determine the proper disposition of the funds represented by such joint and survivorship account, that court found in favor of the administrator of the estate of Victor, and from that judgment the cause is appealed to this court.

Appellants contend that under the doctrine that a man should not be permitted to profit by his own wrongdoing, a constructive trust should be imposed on the fund in favor of the estate of Lucinda and that to do otherwise is unconscionable, inequitable, unjust, and contrary to this equitable doctrine.

This question has been decided in a number of jurisdictions, including Ohio, with conflicting results. Some courts follow the equitable doctrine above stated and as contended by the appellants, while others take the position that a vested interest is created in the joint ownership of such an account which cannot be divested on the ground of public policy, in the absence of a statute to that effect; that property rights are too sacred to be subjected to the danger of public policy; and that courts of law have no right to attaint the wrongdoer. The Supreme Court of Ohio has followed the second line of cases on this question.

The only statute in Ohio relating to this question is Section 10503-17, General Code, which provides that no person finally adjudged guilty of murder in the first or second degree shall be entitled to inherit or take any part of the real or personal estate of the person killed. Since there was no criminal prosecution in this ease this statute has no application.

In the case of Oleff, Admr., v. Hodapp, Gdn., 129 Ohio St., 432, 195 N. E., 838, 98 A. L. R., 764, our Supreme Court held in a case where the factual situation is parallel:

“4. The fact that one of the parties to such contract [a joint and survivor account] murders the other does not divest the murderer of his right thereto, in the absence of a statute to that effect.

“5. A public policy, however sound, cannot take away from the individual his vested rights.”

These pronouncements of our Supreme Court are not obiter dicta, but constitute a statement of legal conclusions which were necessary to the decision of the case under consideration. In the Oleff case the account was held jointly by an uncle and nephew. The nephew conspired with another to murder the uncle and was convicted of the crime. We are unable to make any legal distinction between that case and the instant case.

We quote from 11 Ohio Jurisprudence, 785, Section 137:

“The decisions of courts of other jurisdictions, especially when the Supreme Court of Ohio has clearly spoken, are altogether beside the question.”

In Section 138, ibid., we find this statement:

“The doctrine of stare decisis requires an approval or aequiesence in the question which is the subject of investigation.”

Adherence to this rule is necessary to preserve the certainty, the stability and the symmetry of our jurisprudence.

It is held in Thompson v. Moore, 72 Ohio App., 539, 53 N. E. (2d), 666:

“The Courts of Appeals of Ohio are conclusively bound by the decisions of the Supreme Court of Ohio.

“It is immaterial whether the reasoning advanced in support of the decision is well or ill-founded. ’ ’

This is true whether the decision is reached by a divided court or otherwise. Durbin v. Humphrey Co., 38 Ohio Law Abs., 207, 49 N. E. (2d), 589. See, also, Gottesman, Admr., v. City of Cleveland, 46 Ohio Law Abs., 474, 70 N. E. (2d), 149.

The decisions of other jurisdictions cited by appellants, especially the cases of Vesey v. Vesey, 54 N. W. (2d), 385, and In Re Estate of Santourian, 125 Misc., 668, 212 N. Y. Supp., 116, are very persuasive but when our Supreme Court has definitely established a precedent as has been done on the question presented by these facts, it would be presumptious for this court to refuse to approve or acquiesce in such decision. For this reason, the judgment of the Probate Court must be affirmed.

Judgment affirmed.

Gtllen, P. J., and McCurdy, J., concur.


author: Gillen, P. J.

text:
    Mittendorf et al., Appellants, v. City of Ironton, Appellee.
    (No. 850
    Decided April 15, 1953.)

      Mr. A. J. Layne, for appellant.

      Mr. Homer Edwards, city solicitor, for appellee.
   Gillen, P. J.

Plaintiff instituted this action in the Court of Common Pleas of Lawrence County, to enjoin the city of Ironton from collecting a special assessment levied against her property for the improvement of a street. She claims that certain irregularities in the proceedings render the assessment void.

Section 3814, General Code, provides that when it is deemed necessary to make a public improvement to be paid for in whole or in part by special assessments, council shall declare the necessity thereof by resolution. Section 3815, General Code, sets forth the various matters to be contained in the resolution of necessity. Section 3816, General Code, requires that at the time of the passage of the resolution of necessity, council shall have on file plans, specifications, estimates and profiles of the proposed improvement, open to the inspection of all persons interested.

On December 21, 1950, the Ironton city council adopted resolution No. 4177, which is a resolution of necessity for the improvement of certain streets. Section 3 of that resolution recites that the plans, specifications, estimates and profiles of the proposed improvement, prepared by the city engineer and now on file in the office of the city manager of the city of Ironton, be, and the same are hereby approved. Section 4 provides that the whole cost of the improvement, less two per cent and the cost of intersections, which shall be borne by the city, shall be assessed in proportion to benefits which may result from the improvement upon all the lots and lands bounding and abutting upon the proposed improvement, all which lots and lands were thereby determined to be specially benefited by such improvement. The resolution meets all the requirements of Section 3815, General Code. The plans and specifications on file at the time of the adoption of the resolution show that the lots and lands within an area 132 feet in depth on each side of the street were to be assessed. All property owners, including plaintiff, were duly notified of the proposed improvement in compliance with the provisions of Section 3818, General Code. No complaint or protest was filed by plaintiff until after the completion of the improvement. Her lot does not abut on the improved street, but is within the area of 132 feet in depth as shown by the plans and specifications. It is urged that the resolution of necessity describing the property to be assessed as the lots and lands bounding and abutting upon the proposed improvement was not sufficient to include her lot. It is claimed also that the estimate of the cost of the improvement was increased from $206,922.60 to $255,535.12 after the adoption of the resolution of necessity.

The purpose of having an estimate on file is merely to advise the property owners of the probable cost of the improvement. It is not a guaranty that the actual cost will be limited to such estimate. There is no provision of law requiring the municipality to keep the actual cost of the improvement within the preliminary estimate. With the rapid increase in cost of both materials and labor it is extremely difficult to make an accurate estimate of the cost of an improvement where the contract is to be let at some future date. In the absence of fraud or bad faith, and in the instant case no such claim is made, we find no difficulty in holding that it was proper to make a correction in the estimated cost. It was not the result of a change of the plans or specifications, but merely an error of judgment by the engineer.

It is not claimed that plaintiff’s property was not benefited by the improvement or that the assessment levied against her property was in excess and out of proportion to the benefit received. The sole claim of plaintiff is that her land did not abound and abut on the street improved. An examination of section four of the resolution of necessity shows clearly that" connoil intended to assess property in proportion to the benefit received. Section three of the resolution makes specific reference to the plans and specifications on file, and adopts such plans and specifications as a part of the improvement program. The plans, specifications, estimates and profiles on file at the time included plaintiff’s property. Certainly, under such circumstances, the notice she received was sufficient to put her on guard concerning the matter. She made no complaint until after her property received the full benefit of the improvement. The defect or irregularity in the proceedings was not sufficient to render the resolution of necessity void.

Section 3902, General Code, provides:

“When it appears to the council that a special assessment is invalid, by reason of informality or irregularity in the proceedings, or when an assessment is adjudged to be illegal, by a court of competent jurisdiction, the council may order a re-assessment, whether the improvement has been made or not. ’ ’

Under the provisions of this statute, the council of the city of Ironton would have full authority to correct the irregularity appearing in the proceedings by ordering a reassessment. Since there is no claim, however, that the assessment already levied is out of proportion to the benefit received, there is no necessity for a reassessment.

Plaintiff, having received the full benefit of the improvement and having raised no complaint about the irregularity until after the completion of the improvement, is not entitled to the relief sought.

We have examined all the authorities cited by counsel and find that in each instance the factual situation differs from the factual situation in the case at bar. Furthermore, we have read the written decision of the trial judge in this cause and are in full accord with Ms conclusions. The relief sought by plaintiff is denied, and judgment is rendered for defendant.

Judgment for defendant.

McCurdy, J., concurs.

Collier, J., not participating.


author: Per Curiam.

text:
    Nussbaum, Appellant, v. Wooster Baptist Temple, Appellee.
    (No. 1125
    Decided June 24, 1953.)

      Messrs. Critchfield, Critchfield, Critchfield & Johnston, for appellant.

      Messrs. Funk & Funk, for appellee.
   Per Curiam.

Millen Nussbaum instituted this action in the Court of Common Pleas of Wayne County against the Wooster Baptist Temple, seeldng damages for breach of contract.

In the first count in the petition he alleged that the defendant ‘ ‘ entered into an oral contract by the terms of wMch plaintiff was to furnish certain labor and materials for the construction of a temple upon land of the defendant * * *, and that the defendant was to pay to plaintiff the cost of labor and materials employed in said construction by plaintiff plus ten per cent thereof. ’ ’ The pleader continued by alleging that, pursuant to the contract, he furnished labor and materials and constructed the temple, which was “then and thereafter used and occupied by the defendant and its members.” The count in the petition then alleged that the “total cost of labor and material furnished * * * in performance of the agreement plus the ten per cent commission was $32,131.80; that defendant has paid thereon the sum of $21,070.01; and that the balance remaining unpaid is $11,061.79.”

From the statements shown thus far, it is obvious that this count in the petition pleaded a suit on an express contract.

In a second count in the petition, the pleader sought recovery for the same amount on an implied contract. He stated, among other things, that “he furnished certain labor, materials and services * * * according to plans, specifications, orders, changes and extras as he was from time to time requested * * that the temple was substantially completed and thereafter was “accepted, used and occupied” by the congregation and its officers. The count continued by saying that the “material, labor and services so furnished * * * were of the reasonable value of $32,131.80; that defendant has paid * * * $21,070.01”; and that the balance due of $11,061.79 constitutes plaintiff’s damages.

Pursuant to service of summons, the defendant moved that the plaintiff be compelled to elect upon which count in the petition he would proceed. The court sustained the motion; and, upon the plaintiff’s refusal to elect, the petition was dismissed. An appeal to this court from the order of dismissal brings here the propriety of the order of election.

From a reading of some Ohio cases, it may possibly be inferred that the practice in bygone years in this state, under our system of Code pleading, required an election in actions of this character, on the theory that there cannot be an express and an implied contract for the same thing existing at the same time, and therefore a petition which pleads both, directed toward the same subject matter, creates an inconsistency in the allegations and is bad pleading. See: 9 Ohio Jurisprudence, Contracts, Section 361; Creighton v. City of Toledo, 18 Ohio St., 447; 12 American Jurisprudence, Contracts, Section 7, and cases cited.

In our examination of the cases, however, we do not find any in which the Supreme Court of this state has ever directly made such a declaration, and it is the thought of the members of this court that the rules hereinafter stated, which reflect the overwhelming weight of authority in this country, should be declared the law of the state. The general rule is declared in 41 American Jurisprudence, Pleading, Section 106, as follows:

* * when the plaintiff has two or more distinct reasons for obtaining the relief sought, or when there is more or less uncertainty as to the grounds of recovery or as to the exigencies of proof, the petition may set forth a single claim in more than one count. The pleader may state his case in as many ways as he sees fit in separate counts in order to meet any possible phase of the evidence, and he will not be required to elect on which count he will proceed. ’ ’

See also, 71 Corpus Juris Secundum, Pleading, Section 88 c (2).

In the case of State, for Use of Sauers, v. C. J. Montag Co., 132 Ore., 587, at p. 591, 286 P., 995, at p. 996, it was stated:

“* * * Our code provides that a plaintiff may unite several causes of action in the same complaint when they all arise out of contract, express or implied. [The Ohio Code contains an identical provision: Section 11306 (3), General Code.]

(c # # *

“Had plaintiff desired to do so, lie c©uld properly have, alleged in the complaint an express contract stipulating the price and an implied contract for the reasonable value of the lumber by stating the same separately and, if the same had been stated separately, he could not have been compelled to elect whether to proceed upon one or the other. ’ ’

See also: Jeffs v. Stephenson, 9 Wash. (2d), 335, 114 P. (2d), 987; Clark v. Dulion Steel Products, Inc., 54 Cal. App. (2d), 92, 128 P. (2d), 608; Wilson v. Milner Hotels, Inc., 116 Mont., 424, 154 P. (2d), 265, at p. 268; Ondrasek v. Ondrasek, 172 Kan., 100, 238 P. (2d), 535; Graham v. Hoke, Admx., 219 N. C., 755, 14 S. E. (2d), 790; Fraser v. Collier Construction Co., 305 Mich., 1, 8 N. W. (2d), 889; Maasdam v. Maasdam’s Estate, 237 Iowa, 877, 24 N. W. (2d), 316, at p. 320; Geistert v. Scheffler, 316 Mich., 325, 25 N. W. (2d), 241; Wilson v. Place (Texas), 293 S. W, 322.

We therefore specifically declare th.e rule applicable to the case here under consideration to be:

“A count on implied contract and a count on express contract on the same liability are join able; or if only one is counted on, the other may be added by amendment, on the principle that it should be allowed to meet possible states of proof.”

Bates Pleading, Practice, Parties & Forms (4 Ed.), Section 1181a.

See also: Price v. Cleveland Trust Co., 45 Ohio Law Abs., 606, 68 N. E. (2d), 133.

The judgment will be reversed and the cause remanded.

Judgment reversed.

Doyle, P. J., Stevens and Hunsicker, JJ., concur.


text:
    In re Kell.
    (No. 538
    Decided October 29, 1953.)

      Mr. Robert K. Shoecraft, for petitioner.

      Mr. J. A. Finney, for respondent.
   Hornbeck, J.

Petitioner seeks release from the Greene County jail by a proceeding in habeas corpus. The cause is submitted on an agreed statement of facts. The facts essential to an appreciation of the question presented are as follows: The petitioner was charged in the mayor’s court of Cedarville, Ohio, with driving a motor vehicle while intoxicated. He entered a plea of guilty and was sentenced to pay a fine and to be imprisoned. The eharge to which the. petitioner pleaded guilty was committed in Xenia township, Greene county, but not within the corporate limits of the city of Xenia. There is a Municipal Court in the city of Xenia which serves not only the city but Xenia township as well.

In July 1953 petitioner with others instituted a proceeding in habeas corpus in the Common Pleas Court of Greene County, seeking his release from imprisonment while awaiting his trial on the charge against him in the mayor’s court of Cedarville. The case was tried to Judge Johnson who prepared a written opinion with which we have been favored. We find that although the judge mentions Section 1584, General Code, his attention was principally focused on Section 13422-2, General Code, as, no doubt, was that of counsel. Judge Johnson properly held that Section 13422-2, General Code, related only to justices of the peace. He cited and commented also on Sections 4527 and 4528, General Code. Section 4527, General Code, clothes the mayor with jurisdiction to determine prosecutions for violations of ordinances within the corporation which he serves. Section 4528, General Code, provides:

“He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the constitution, entitled to a trial by jury, and his jurisdiction in such cases shall be coextensive with the county, * * (Emphasis ours.)

A later section vests the mayor with jurisdiction in the cases encompassed by Section 4528, General Code, although the accused may be entitled to a trial by jury, if the accused waives a jury before trial.

Such a waiver was signed by petitioner in his case.

The question is whether the Municipal Court Act establishing the Xenia Municipal Court and defining its territorial jurisdiction limits the general county-wide jurisdiction of the mayor of Cedarville in misdemeanors, as provided by Section 4528, General Code. By the stipulation it appears that the place where the offense was committed by petitioner was within the territory allotted to the Municipal Court of Xenia.

Section 1584, General Code, which we analyze by sentences, provides:

“Upon the institution of a Municipal Court, the jurisdiction of the mayor and the police justice in all civil and criminal causes shall terminate within the municipality in which such Municipal Court is located.”

“Mayor and the police justice,” singular in form, refers only to such officers “within the municipality in which such Municipal Court is located. ’ ’ In this case the city of Xenia. ■

“All other mayors within the territory may retain such jurisdiction as now provided in all criminal causes involving violation of ordinances of their respective municipalities to be exercised concurrently with the Municipal Court.”

All other mayors, plural in form, includes mayors other than the mayor in the city where the Municipal Court is located. The jurisdiction vested in this sentence is of no interest in this case because it relates to ordinances only.

“Upon the institution of a Municipal Court, the jurisdiction of justices of the peace and police justices in all civil and criminal causes shall terminate in any township or municipality which is entirely within the territory. Upon the institution of a Municipal Court, the jurisdiction of justices of the peace in all civil and criminal causes shall terminate in that part of any township which is included within the territory.”

These sentences relate, the first, to justices of the peace and police justices, the second, to justices of the peace only. Neither affects the jurisdiction of mayors.

The mayor of Cedarville does not serve in the territory allotted by statute to the Municipal Court of the city of Xenia. There is nothing in the language of Section 1584, General Code, which modifies, affects or limits the county-wide jurisdiction accorded to the mayor of Cedarville in misdemeanors by Section 4528, General Code. He, therefore, had jurisdiction to pronounee the sentence and judgment against petitioner on which he is now imprisoned in the Greene county jail.

Petitioner remanded to custody.

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