text:
    OHIO BELL TELEPHONE COMPANY, In re.
    Public Utilities Commission.
    No. 27400.
    Decided December 29, 1958.

      A. M. Van Duzer, Carlyle Tresise and Latham Murfey, Cleveland, for Applicant, The Ohio Bell Telephone Company.
    Ralph Locher, Andrew R. Sarisky, Law Director and Asst. Law Director, for City of Cleveland, Protestant.
    M. J. Gilbert, Trial Counsel, for City of Dayton, Protestant.
    Russell Leach, City Atty., William T. Gillie, Asst. City Atty., Ferd M. Pickens, Director of the Department of Public Utilities, for City of Columbus, Protestant.
    John H. Zerbe, Asst. Director of Law, William M. Wasick, Director of Public Utilities, for City of Akron, Protestant.
    Robert B. Konwin, Chief Counsel, for City of Toledo, Protestant.
    Felix S. Mika, Law Director, for City of Youngstown, Protestant.
    William Saxbe, Atty. Geni., By James F. DeLeone, Asst. Atty. Geni., for The Public Utilities Commission of Ohio.
   FINDING AND ORDER

The Commission coming now to consider the above entitled Application, the exhibits attached thereto and made a part thereof and the exhibits filed concurrently therewith, the matters contained in the Report of the Secretary filed, and issued under date of September 3, 1958, pursuant to the provisions of §4909.19 K. C., the testimony and exhibits introduced at public hearings held on October 21, 22, 23 and 24, 1958, and on December 8 and 9, 1958, and the Stipulation and Recommendation filed herein, and in compliance with §4903.09 R. C., hereby renders its Findings and Opinion.

Nature of the Proceeding:

The Applicant, The Ohio Bell Telephone Company, seeks to increase its rates and charges, to withdraw its Exchange Rate Tariff, P. U. C. O. No. l and to substitute therefor its proposed Exchange Rate Tariff, P. U. C. O. No. 2, to change its General Exchange Tariff, P. U. C. O., No. 3, its Message Toll Telephone Service Tariff, P. U. C. O. No. 6, its Private Line Tariff, P. U. C. O. No. 1, and its Mobile Telephone Service Tariff, P. ü. C. O. No. 1.

History of Proceedings:

On February 3, 1958, The Ohio Bell Telephone Company, Applicant herein, filed with this Commission its Application to increase the rates and charges for telephone service rendered by it within the State of Ohio and to change its above-designated tariffs. Attached to and made a part of said Application were the following three exhibits:

Exhibit A, consisting of 4 volumes, including such of the Company’s existing tariffs as the Company proposed to change;

Exhibit B, containing statements showing various of the existing and proposed rates and charges and amount of change therein; and

Exhibit C, consisting of 4 volumes, containing the Applicant’s proposed tariffs.

In accordance with alphabetically enumerated paragraph (A), (B) and (C) of §4909.18 R. C., Applicant filed with its Application exhibits purporting to represent the following:

Exhibit D, consisting of 2 volumes and containing a detailed inventory of all of the property of The Ohio Bell Telephone Company in Account 100.1 — Telephone Plant in Service, used and useful as of July 1, 1957, in rendering telephone service in the State of Ohio;

Exhibit E, consisting of 2 volumes and containing an appraisal of all of the property of The Ohio Bell Telephone Company in Account 100.1 — Telephone Plant in Service, used and useful as of July 1, 1957, in rendering telephone service in the State of Ohio;

Exhibit F, containing a complete operating statement of the Applicant Company’s last fiscal year, being the calendar year of 1957, showing its receipts, revenues and incomes from all sources, all of its operating costs and other expenditures;

Exhibit G, containing a statement showing Applicant’s intrastate revenues, expenses and income available for fixed charges resulting from telephone operations for the calendar yea? 1957 (December estimated), with adjustments to the base period to reflect the full annual effect of changes in revenues and expenses which were not in effect for the entire base period and adjusted so as to place said base period on a going level of operations;

Exhibit H, containing a statement showing the additional operating revenues anticipated under the Application resulting from the proposed rates and charges applied for therein; and

Exhibit I, containing a statement of the income and expense anticipated under the Application, with aforesaid Exhibit G modified to reflect the proposed increased rates and charges together with the increased expenses alleged to result therefrom.

On February 6, 1958, Applicant filed with the Commission a form of proposed legal notice and requested approval to publish said legal notice in accordance with the provisions of aforecited §4909.19 R. C.

Under date of February 7, 1958, the Commission issued its Order approving the form of legal notice submitted and authorized publication to be made.

Pursuant to the prescriptions of §4909.19 R. C., and the directives of this Commission, an investigation of the matters set forth in the Application, the exhibits attached thereto and the exhibits filed concurrently therewith, was caused to be made by the Secretary of the Commission. The Report thereof, containing the respective recommended findings of the Commission’s Engineering and Accounting Staffs, was filed on September 3, 1958, and served by certified mail, as provided by said §4909.19 R. C., upon the mayors of all municipalities in the State of Ohio, upon the Prosecuting Attorneys of the 88 Ohio Counties, and upon other interested parties.

Within 30 days following the filing of that Report, known as the “Secretary’s Report,” objections were filed thereto by the Cities of Akron, Ashtabula, Cleveland, Cuyahoga Falls, Dayton, Maumee, Perrysburg, Springfield, Struthers, Toledo, and Youngstown. Objections were also duly filed by Applicant.

This matter was assigned for public hearing upon its merits before the Commission on October 21, 1958, and continued on October 22nd, October 23rd, October 24th, and on December 8th and 9th, 1958. Stipulation and Recommendation:

On November 12, 1958, there was filed with this Commission a Stipulation and Recommendation which reads as follows:

“STIPULATION AND RECOMMENDATION
“Now come The Ohio Bell Telephone Company, the Applicant herein, and the Cities of Akron, Cleveland, Columbus, Cuyahoga Falls, Dayton, Maumee, Springfield, Struthers, Toledo and Youngstown, Protestants herein, and stipulate and agree as follows:
“1. This Stipulation and Recommendation shall be filed in the foregoing case and by its filing each of the parties hereto offers it in evidence. The parties recognize that the Commission is not bound by the stipulations, agreements or recommendations of the parties.
“2. This Stipulation and Recommendation is made for the purposes of this case only. By its execution each party agrees that facts so stipulated and agreed upon shall not be deemed to be admitted or agreed upon in any other case, under any other circumstances or for any other purposes.
“3. The parties stipulate and recommend that the Commission fix, determine, and approve rates and charges which will produce, at the station level of July 1, 1957, estimated additional annual revenue of $16,750,000 instead of $28,364,000 and order the Company to file Schedule Sheets which will accomplish this result.
“It is recommended that this Commission enter an order upon the law and the evidence embodying findings in accordance with the foregoing.
“It is further stipulated and agreed that no party hereto will appeal to the Supreme Court of Ohio from or directly or indirectly try to procure a review, rehearing or reconsideration of an order such as is recommended herein.
“IN WITNESS WHEREOF the parties have executed this Stipulation and Recommendation this 31 day of October, 1958.
The Ohio Bell Telephone Company
By /&/ L. T. PENDLETON
City of Akron
By /s/ JOHN H. ZERBE
City of Cleveland
By /s/ RALPH S. LOCHER
City of Columbus
By /s/ FERD M. PICKENS
City of Cuyahoga Falls
ELMER WOLF, Mayor
By /s/ JOHN H. ZERBE
City of Dayton
By /s/ MAURICE J. GILBERT
City of Maumee
S. C. KLEWER, City Clerk
By /s/ JOHN H. ZERBE
City of Springfield
R. E. WEHLER, City Solicitor
By /s/ JOHN H. ZERBE
City of Struthers
T. MACEJKO, City Solicitor
By ,/s/ JOHN H. ZERBE
City of Toledo
By /s/ ROBERT B. KONWIN
City of Youngstown
By /s/ FELIX S. MIKA”

In this connection it is to be noted that, while the number of telephones in those municipalities subscribing to said Stipulation comprise by far the largest part of Applicant’s total telephones in service and provide Applicant with the largest proportion of its revenues, the foregoing Agreement does not negate the Commission’s statutorily assigned duty in this proceeding and to make findings from the evidence recorded herein upon such fundamental subjects as may be required by law.

All findings in this opinion and order are for the purposes of this case only.

Commission Review and Discussion:

1. Rate Base

The Applicant, The Ohio Bell Telephone Company, submitted with its Application exhibits purporting to constitute a detailed inventory and appraisal of its property used and useful in the rendition of telephone service within Ohio as of July 1, 1957. The depreciated reproduction cost new thereof estimated by the Application may be summarized as follows:

Reproduction Cost New (Inter and Intrastate) ________$832,100,938
Less Existing Depreciation (14.19%) _____________________ 118,062,072
Reproduction Cost New Present Value (Inter and
Intrastate) ________________________________________$714,038,866
Statutory Rate Base Valuation as of July 1, 1957 _______$636,103,424
(89.09% of Total Valuation as being property used and useful for Intrastate service in Ohio)

The independent investigation of the Commission’s Engineering Staff disclosed that Applicant’s R. C. N. (Reproduction Cost New) valuation as of July 1, 1957, should be adjusted in the following recommended particulars:

Reductions
Buildings _____________________________________________$11,290,392
Central Office Equipment __________ 1,954,170
Station Apparatus _________________________________ 182,810
Sub-Total Reductions ----------------------------$13,427,372
Additions
Station Installations _________________________________ 147,645
Total Reductions of Applicant’s Proposed R. C. N.
Valuation____________________________________________$13,279,727

At the hearings, the Applicant introduced into evidence Conrad Exhibit No. 10 which set forth a revised estimated reproduction cost new present value of the property in Telephone Plant in Service, Account 100.1, as of July 1, 1957. This revised valuation gave effect to revisions in the reproduction cost new of Station Connections, the amount of depreciation claimed by Applicant to exist in Right of Way and in Furniture and Office Equipment, and applied revised intrastate property percents based upon the Company’s actual results for the year 1957, omitting the month of September. Said Exhibit No. 10 was submitted in lieu of and in addition to Exhibit E, filed with the Application, which had set forth an estimate of the intrastate property percents for the month of December, 1957, but, which likewise omitted the month of September, 1957, by reason of the abnormal operations experienced during that period due to temporary labor difficulties. This revised proposed valuation, resulting in an aggregate increased intrastate RCNLD valuation of $134,900.00, may be summarized as follows:

Revised Reproduction Cost New (Inter and Intrastate) __$832,248,583
Less Revised Existing Depreciation (14.18%) __________ 118,036,076
Revised Reproduction Cost New Present Value (Inter and Intrastate) ____________________________________$714,212,507
Revised Statutory Rate Base Valuation as of July 1, 1957 ____________________________ $636,238,324
(89.08% of Total Valuation as being property used and useful for intrastate service in Ohio)

Physical inspections of the Company’s property to determine depreciation due to existing mechanical deterioration were made by the Company by an inspection of samples of plant selected through the application by them of sampling plans prepared by Dr. W. Edwards Deming, a professor at New York University.

An independent inspection of Applicant’s telephone plant to ascertain the depreciation therein due to existing mechanical deterioration and other observable causes of statutory depreciation (Par. E of §4909.05 R. C.), was likewise made by the Commission’s Engineering Staff through the medium of selected samples of plant comparable to those proposed by Dr. Deming for the Applicant and approved by Dr. Ramson Whitney of The Ohio State University.

The Public Utilities Commission is expressly authorized by §4901.21 R. C., to enter into arrangements with The Ohio State University for the services of engineers and experts in other professional fields associated with and on the staff of The Ohio State University. Accordingly, the Commission entered into a contract with the University for technical services to be rendered through the Engineering Experiment Station of the College of Engineering. Under the contract the proposed sampling plans were analyzed and reviewed, at the request of the Commission’s Chief Engineer by Dr. Whitney, a professor of mathematics. The formula and the selection procedure followed thereunder were found to be scientifically correct and technically appropriate for the purposes employed. The respective expert testimony of Drs. Deming and Whitney established that the results obtained from the inspections of appropriately selected samples of plant would, within very narrow limits, be the same as would be obtained from a 100% inspection by the same inspectors using on the 100% inspection the same definitions, methods of inspection and care as utilized on the inspection of the samples. This Commission recognizes that a properly conceived and applied inspection of less than all of a utility’s property will result in great savings of time, money and effort to ratepayers, utilities and the Commission and that such procedure accords with accepted modern technical and business practice.

The Commission finds, perforce, that the use of sampling plans shown to be scientifically designed is sound and proper for employment both in the verification of most primary property accounts and in the determination of the observable causes of depreciation for most of the depreciable property accounts.

The Engineering Staff’s recommended appraised valuation of Applicant’s telephone plant depreciated as of July 1, 1957, may be summarized as follows:

Reproduction Cost New (Inter and Intrastate) _________$818,793,789
Less Existing Depreciation (21.02%) ------------------- 172,069,806
Reproduction Cost New Less Depreciation (Inter and Intrastate)--------------------------------------------646,723,983
Statutory Rate Base Valuation as of July 1, 1957 _______$578,287,865
(89.42% of total Valuation as being property used and useful for intrastate service in Ohio)

The Commission finds, upon review of the entire record pertinent thereto, that the statutory intrastate rate base for the purposes of this proceeding is not less than that appraised valuation depreciated as recommended by the Commission’s Engineers in the amount of $578,-287,865 as of the date certain, July 1, 1957.

2. Rate of Return

The next subject to be considered by the Commission is the determination of the percentage that will constitute “a fair annual rate of return” to this Applicant upon the valuation of its property used and useful in rendering intrastate telephone services and will thereby represent a yearly “reasonable compensation for the service rendered.” See §4909.15 R. C.; City of Cleveland v. P. U. C. O., 154 Oh St 442, 443-446; City of Marietta v. P. U. C. O., 148 Oh St 173.

On the subject of a fair rate of return attributable to its statutory rate base valuation as of the date certain, July 1, 1957, Applicant offered three witnesses. First, Dr. Herbert B. Dorau, a professor of Economics of New York University, testified that on the basis of cost of capital studies, it was his opinion that the current cost of capital as of July 1, 1957, was not less than 7.0% and that the fair rate of return as of July 1, 1957, and applicable to a reasonable period thereafter, was not less than 7.25% on the Company’s statutorily determined rate base.

Dr. John K. Langum, an independent consultant associated with Indiana University, next testified that from a study of the rate of return earned by comparable unregulated industries on the current value of their properties, he was of the opinion that on a comparative basis the Applicant was entitled to earn about 7% on the current value of its property. He testified further that he had made cost of capital studies and that, in his opinion, the cost of capital to the Applicant as of July 1, 1957, was 6.95% applicable to its statutory rate base and that the fair rate of return to Applicant as of July 1, 1957, was about 7.0% on the present value of its property.

Applicant also offered the testimony of Mr. Everett D. Reese, Chairman of the Board of Directors of the Park National Bank of Newark, Ohio, who testified that it was his opinion that a fair rate of return to Applicant as of July 1, 1957, and for a reasonable period of time thereafter, would be at least 7.0% on the present value of its property.

William Wasick, Commissioner of Utilities for the City of Akron, also submitting extensive data by way of Akron Exhibit No. 1 relative to this Applicant utility’s cost of money and the rate of return to which, in his opinion, the Company is entitled as of the date certain. Commissioner Wasick’s opined testimony and supporting exhibitive data would evidence a somewhat lower rate of return than that to which company opinion witnesses testified.

The Company introduced in this connection Applicant’s Exhibit No. 21, entitled “Revised Statement of Income and Expense Anticipated— Year 1957,” which was prepared on the same basis as and to accord with the Commission Accounting Staff Report attached to the Secretary’s Report. This Exhibit gave effect to the additional income anticipated in accordance with the filed “Stipulation and Recommendation,” and recorded additional estimated annual gross revenue in the sum of $16,743,069 instead of the sum of $28,363,706 shown on page 2 of Schedule No. 1 of said Accounting Staff Report incorporated in the Secretary’s Report.

The Commission finds that the additional gross annual revenue of $16,743,069 set forth in Applicant’s Exhibit No. 21 to be appropriately computed in accordance with accounting procedures approved heretofore by this Commission and would appear to represent a reasonable estimate of the additional gross revenue to be produced by the revised rates and charges as prepared in Applicant’s Exhibit No. 19. It shows that when the income available for fixed charges, computed in the sum of $35,610,909 on the last line of Column (d) of that Exhibit, is related to the statutory rate valuation of $578,287,865 recommended by the Commission’s Engineers, the rate of return thereon is 6.16%, and that when related to the like valuation of $636,238,324 claimed by Applicant in Conrad Exhibit No. 10, the resulting rate of return thereon is 5.60%.

Evidence submitted by Applicant purports to show that the increased rates and charges proposed in Applicant’s Exhibit No. 19, consisting of schedule sheets containing the revised rates and charges which will produce as of July 1, 1957, the additional estimated revenue of $16,743,069, will not enable Applicant to earn either at the rate of 6.16% on the rate base recommended by the Commission’s Engineers or at the rate of 5.60% on the rate base claimed by the Company. Applicant’s exhibits show that between July 1, 1957 and July 1, 1958 the Company added to its Telephone Plant in Service, Account 100.1, over $53,000,000 worth of property; that the Company’s claimed rate base valuation in Conrad Exhibit No. 10, which valuation was projected twelve (12) months to July 1, 1958, by adding gross additions at book cost and deducting plant retirements at the Company’s proposed appraisal level, was $686,310,762 as of July 1, 1958; and, that the rate base valuation recommended by the Commission’s Engineers, likewise projected to July 1, 1958, by adding gross additions at book cost and deducting plant retired at the Commission Engineers’ recommended appraisal level, was $627,449,943 as of July 1, 1958.

The same company data also purports to evidence that Applicant’s intrastate telephone operations for the period July 1, 1957, to July 1, 1958, fixed at the station level as of July 1, 1958, and reflecting the additional annual gross revenues recommended by the parties in the “Stipulation and Recommendation” filed herein, would afford income available for fixed charges in the amount of $36,612,095. On the basis of the foregoing data, it is contended that the rate of return to be realized by the Company upon its projected rate base valuation claimed in Conrad Exhibit No. 10, brought forth to July 1, 1958, would be 5.33%, and, that the rate of return to be realized upon the rate base, valuation recommended by the Commission’s Engineers, likewise brought forth to July 1, 1958, would be 5.84%.

It is recognized that utility rates in Ohio are determined prospectively and become effective upon appropriate authorization of this Commission. East Ohio Gas Co. v. P. U. C. O., 133 Oh St 212. However, in view of the facts set forth upon the record herein relative to the test period, including the ascertainment of the income available for fixed charges in the amount of $35,610,909, it would not appear to serve any useful purpose to project either the estimated valuation of the company’s intrastate plant or the revenues and expenses of this Applicant beyond the test period initially authorized. Nonetheless, such data, which has already been submitted upon the record, may be applied to evaluate comparatively the efficacy and general reasonableness of the Commission’s ultimate findings in this proceeding.

In reply to questions from the Commission, Applicant’s witness on revenues testified that the rate of return to be realized by Applicant and the anticipated annual return accruing to Applicant therefrom, would be sufficient for the Company to render the same level and character of telephone service, to maintain its telephone properties, to meet its fixed charges, and to do all requisite things dictated by sound management. (R 598-601.) It may be concluded, therefore, and the Commission so finds, that an annual rate of return of 6.16% on the above-ascertained statutory intrastate rate base valuation of $578,287,965 is not unreasonable, insufficient, excessive or unlawful under the facts and circumstances of this proceeding.

3. Dollar Annual Return

The “dollar annual return” of $35,610,909, as set forth on the last line of Column (d) of Applicant’s Exhibit No. 21, is found by the Commission to represent a reasonable estimate of the yearly net compensation to be realized from the intrastate telephone services proposed to' be rendered by this Applicant, after payment of operating expenses, including taxes and depreciation charges, which annual return would appear to be fair and reasonable under the circumstances of this proceeding.

4. Expenses

The Commission finds Applicant’s operating expenses, including taxes and depreciation charges, anticipated at the level of the revised rates and charges proposed in Applicant’s Exhibit No. 19 and reviewed hereinafter, to be in the aggregate amount of approximately $189,026,408 for the test period adopted for purposes of this proceeding.

5. Gross Annual Revenues

After considering the annual gross revenues and the annual return realized by this Company as of July 1, 1957, in light of its aforeascertained annual operating expenses, including taxes and depreciation, and its requirements for fixed charges, the Commission is of the opinion, and so finds herein, that the estimated annual gross revenue being realized by this utility from its existing level of rates and charges is insufficient under the facts of this proceeding to yield yearly reasonable compensation to this Applicant as of the date certain, July 1, 1957, for the intrastate telephone service which it proposes to render within this State.

The Commission finds further that the level of the revised proposed rates and charges submitted by the Company and filed with this Commission will yield the Company gross annual revenues of approximately $224,637,317, subject to certain adjustments in said rate schedule as ordered below, which estimated gross revenues would appear to be just and reasonable under the facts of this proceeding.

6. Authorized Eates and Charges

It is to be noted that the “Stipulation and Recommendation,” filed herein, pertained only to the aggregate of additional gross annual revenues to be realized by this Applicant, enumerated paragraph 3 thereof providing as follows:

“3. The parties stipulate and recommend that the Commission fix, determine, and approve rates and charges which will produce at the station level of July 1, 1957, estimated additional annual revenue of $16,750,000 instead of $28,364,000 and order the Company to file Schedule Sheets which will accomplish this result.”

At the public hearings, objections were entered by counsel for some of the municipalities, who were parties to the “Stipulation and Recommendation,” that certain of the revised rate schedules, proposed by the Company to produce the aggregate gross annual revenues agreed to in said Stipulation, were unreasonable. In general, counsels’ respective contentions were based on variations in the percentage increases in the Company’s proposed revised rates between specified residential and business service classifications, and that certain of the former classifications were raised percentage-wise more than the latter.

The Commission’s responsibility in rate proceedings encompasses the reasonableness of both the overall gross revenues and the rate schedules requisite to produce such revenues. In the instant proceeding the Commission has found that the overall revenues recommended by the Stipulation appear to be reasonable. Analysis of the proposed revised rate schedules show that the level of said rates and charges produces approximately the gross annual revenues heretofore authorized. Thus, the Commission is now faced with considering the efficacy of the revised rate schedules filed herein and the reasonableness of the relationship by and between the various revised rate classifications therein proposed.

The Commission recognizes the many complex and practicable factors involved in the promulgation of appropriate rate schedules, as well as the fact that the design of rate schedules is necessarily subject, in part, to the prerogatives of management. It has been the Commission’s policy, therefore, to afford utilities considerable latitude and discretion in the detailed design and formulation of the rate schedules required to produce the overall revenue found by the Commission to be reasonable. However, in those instances where it is ascertained that additional revenue is warranted but there exists an exceptionally wide deviation in percent increases in certain proposed rate schedules within a classification from the average percent increase in the other principal classifications, unless there is a showing that such deviation is reasonable, the .Commission may require appropriate adjustments to be made in said schedules.

From an analysis of the revised rate schedules filed in this proceeding, it would appear in some instances, particularly with respect to those rate schedules applicable to Applicant’s service areas falling within Band VI and Band VIII, that the Company proposes to raise certain residential rates by a substantially greater percentage than the business rates. However, review of the rate increases authorized for this Company since World War II indicate that the cumulative percent increases to business service classifications have been generally somewhat greater than the percent increases to residential service classifications for the same period. No precise computation of the increases in these respective classifications can be made due to the variable factors associated with measured rate service and equipment charges. It would appear, nevertheless, that for each of the eight rate bands, the Company’s proposed revised rates for business service reflect a larger percentage increase over 1948 rates than do the increases placed upon the residential service classification in those bands for the like period; and, that the revised rates proposed herein by the Company tend to narrow that percentage differential.

It is probable that the above observations do not hold in respect to every specific rate within a band as, for example, the residential measured rate in Band VIII. However, it appears that within each of the bands, including Band VIII, the rates for business service under the Company’s proposed schedules will reflect percentage-wise a somewhat larger increase during the post-war period than the rates for residential service.

In view of the foregoing, the Commission is of the opinion that no adjustments in the Company’s proposed business rate schedules are warranted and that any adjustments which may be ordered in the proposed residential rates should be made within the various residential rate schedules in the applicable band.

The type of an adjustment, as above discussed, would appear to be warranted in the revised measured rate for residential service in Band VIII as proposed by the Applicant. There are five residential rate classifications in this band, four being of the flat rate type and one being of the measured rate type. This latter type is applicable to about one-third of all residential service offered in this band. Since 1948, the measured rate has been increased percentage-wise substantially more than the flat rates, and the Company’s proposed revised rate schedules further widen substantially this differential. The Commission is of the opinion, accordingly, that some adjustment is warranted in this particular instance, and so finds herein.

Analysis of the schedules in question would seem to indicate that to achieve a reasonable allocation of the overall increased revenue requirements from residential service in the areas listed in Band VIII, comprising the Cleveland Metropolitan Area and the Willoughby Exchange Area, an adjustment is necessary to the Company’s proposed rates for residential service in four types of classifications: 1 Party, Trunk, 2 Party, and 2 Party Measured. The Company’s proposed revised rates would increase charges to 1 Party, Trunk, and 2 Party customers in the order of 15%, while 2 Party Measured customers’ charges would be increased in the range of from 21% to 52%, depending upon the number of unit messages, exceeding 40 per month, chargeable to customers within this class of service.

The Commission is of the opinion, therefore, and so finds herein, that a more equitable allocation of the revenue requirements would be obtained by adjusting the Company’s proposed revised rates through increasing the message allowance in the 2 Party Measured service from 40 to 50 messages, and by increasing the flat rates for 1 Party and for 2 Party by 10c per month, and by increasing the Trunk rate by 15c per month (there being only 35 Trunk customers'». These adjustments will result in the 1 Party, 2 Party, and Trunk customers having an increase of approximately 17% instead of 15%, while the 2 Party Measured customers will have an increase in the range of 21% to 37% instead of an increase in the range of 21% to 52%.

As the foregoing adjustments will produce additional overall revenues somewhat in excess of the amount of such revenues heretofore found to be proper, it is necessary to make one further downward adjustment of approximately $35,000 in the Company’s proposed revised rates. The Commission finds that elimination of the 5c Residence Additional Listing fate, together with the above adjustments, will produce additional overall revenues which will be substantially equivalent to the additional overall revenues heretofore found to be proper in this case.

7. Complaints of Ohltown and Chesteriand Subscribers

The Honorable Thomas Gilmartin, State Representative for Mahoning County, appeared at the hearings herein in behalf of telephone subscribers residing in what is generally referred to as the Ohltown area, a portion of Austintown Township in Mahoning County situated between the cities of Niles and Youngstown. Representative Gilmartin requested that subscribers within the Ohltown area either be transferred from the Niles Exchange area to the Youngstown Exchange area or, in the alternative, that the Niles Exchange area receive extended area service to the Youngstown Exchange area.

It is to be noted that there is presently pending before this Commission a formal complaint proceeding, being designated as Case No. 27,889 on the Commission’s docket, which pertains to the incorporation of the Ohltown area into the Youngstown Exchange area. Likewise, the Commission has previously considered, at least on an informal basis, the efficacy of extended area service between the Niles and Youngstown Exchange areas.

The Commission is of the opinion that proper disposition of the first question as to incorporation of Ohltown area into the Youngstown Exchange area can be effected more expeditiously in the presently pending complaint proceeding. However, with respect to the second question presented as to the furnishing extended area service between the Niles and Youngstown Exchange areas, the Commission is of the opinion that the Applicant, The Ohio Bell Telephone Company, should be required to reinstitute studies and subscriber-requirement analyses relative to the propriety of rendering such extended area service and, accordingly, report to this Commission the summarized results of their findings in this respect,

The Commission authorized representatives on behalf of the subscribers of Chesterland, an Exchange area situated between Cleveland and Chardon, to intervene in this proceeding and express their views relative to the limited local calling area established by this Applicant Company for the subscribers in the Chesterland Exchange area as well as their views relative to the present and proposed revised rates and charges applicable to the Chesterland subscribers.

The testimony and statements submitted in substantiation of this Complaint would appear to be insufficient to justify any determination thereon by this Commission at this time. The Commission, however, will retain jurisdiction of this matter and assign it for hearing in due course in a separate proceeding at which time all parties will be afforded opportunities to present full and complete evidence upon which the Commission may enter appropriate findings and Orders.

Nevertheless, the Commission is of the opinion, and so finds herein, that the Applicant Company should undertake an immediate study of subscriber calling requirements in the Chesterland Exchange area and file with this Commission the results of its findings in this respect.

ULTIMATE FINDINGS—

From the evidence, the Commission renders the following Ultimate Findings:

(1) That this Application is filed pursuant to, and this Commission has jurisdiction thereof under, the provisions of §§4909.17, 4909.18 and 4909.19 R. C.;

(2) That the Staff Investigation, required of the Commission by the provisions of aforesaid §4909.19 R. C., has been duly made, and the Report thereof has been filed and served as required by law;

(3) That the Applicant’s statutory intrastate rate base valuation is not less than the sum of $578,287,885 recommended by the Commission’s Staff Engineers, as of the date certain, July 1, 1957;

(4) That an annual rate of return of 6.16% on the above ascertained statutory intrastate rate base of $578,287,865, is not unreasonable, insufficient, excessive or unlawful under the facts and circumstances of this proceeding;

(5) That the dollar annual return of approximately $35,610,909, as of July 1, 1957, represents a reasonable estimate of the anticipated yearly net compensation to be realized by the Applicant herein from the intrastate telephone service proposed by it at the level of the revised rates and charges filed in this proceeding and authorized by this Commission subject to certain specified adjustments;

(6) That the dollar amount of the cost for Applicant to render its utility intrastate service, or its annual operating expenses, including all taxes and annual depreciation charges, is $189,026,408, as of July 1, 1957;

(7) That the allowable gross annual operating revenues, accruing to this Applicant from its intrastate telephone service as of July 1, 1957, are approximately $224,637,317, subject to certain specified adjustments designated herein;

(8) That the existing rates and charges now being charged and collected by said Applicant in the territory served by it for the intrastate services rendered by it are insufficient to provide it with an adequate annual return on its property used and useful in the furnishing of such services; and,

(91 That the revised rates and charges, as set forth in the proposed schedule sheets included in Applicant’s Exhibit No. 19, which the Applicant seeks to make part of its tariffs, are not unjust, unreasonable or excessive and will not provide the Applicant with an annual return in excess of that to which it is entitled upon the value of its property used and useful in the furnishing of intrastate telephone service in its service area, subject to the specific adjustments determined herein by the Commission with respect to 1 Party, Trunk, 2 Party, and 2 Party Measured Residential Service in Band -VIH and to the Residence Additional Listing rate.

It is, therefore

ORDERED. That Applicant be and hereby is authorized to file all the revised rate schedule sheets contained in Applicant’s Exhibit No. 19, subject to the specific adjustments found and ordered herein by the Commission, all of which revised rate schedules are hereby approved by the Commission upon the filing thereof with the afore-designated adjustments, said schedule sheets to contain a date upon which they shall become effective, which date shall be subsequent to the date of the filing of two complete printed copies of each of said schedule sheets with this Commission but shall not be earlier than the day following the date of this Order. It is further

ORDERED, That the within Order and all provisions thereof shall be effective forthwith.

THE PUBLIC UTILITIES COMMISSION OP OHIO

Entered in Journal Everett H. Krueger, Jr., Chairman

December 29, 1958 Ralph A. Winter

A True Copy: Edward J. Kenealy

W. E. Herron, Secretary Commissioners


source: Caselaw Access Project

author: By MATTHES, Circuit Judge.

license: Public Domain

text:
    HOWARD, Appellant, v. TARR, Appellee.
    United States Court of Appeals, Eighth Circuit.
    No. 16019.
    Decided December 3, 1958.

      Harry Howard, appellant, pro se.
    Robert M. Duboc, Kansas City, Mo. (Roy P. Swanson, Blackmar, Swanson, Midgley, Jones & Eager, Kansas City, Mo., on the brief), for appellee.
    Before JOHNSEN, VAN OOSTERHOUT and MATTHES, Circuit Judges.
   OPINION

By MATTHES, Circuit Judge.

This proceeding, an action for deficiency judgment after foreclosure of mortgage on a promissory note executed by appellant, is a diversity case in which we have jurisdiction because of the amount involved.,

Upon application of appellee, who was plaintiff below, the trial court entered summary judgment against appellant for $27,062.09 with interest from November 21, 1955, at the rate of 5% per annum. The correctness of the court’s action is challenged in this appeal. Under Rule 56, Federal Rules of Civil Procedure, 28 U. S. C. A., a summary judgment may be rendered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Kennedy v. Bennett, 8 Cir., 261 F. (2d), 20, and cases there cited.

The following undisputed facts appear from the pleadings, affidavits, the pretrial order, deposition, and pertinent parts of exhibits. Appelleeplaintiff and appellant-defendant entered into a written contract on April 23, 1953, prepared by defendant, who is a lawyer, under which plaintiff, as seller, agreed to sell and convey by warranty deed to defendant, as buyer, certain real estate in Sandusky County, Ohio, for the agreed price of $79,000. The contract provided that $5,000 of the purchase price was to be deposited with a title company on the day of its execution and $2,500 at the time the deed was executed and delivered to buyer, and the contract obligated the buyer to execute and deliver to the seller his promissory note for the balance of the purchase price of $71,500, payable within two years from date thereof, together with a first mortgage on the real estate, in conformity with the laws of the state of Ohio. Under the contract, defendant’s denomination and status as “Buyer” was qualified by the phrase “or his (defendant’s) nominee, being any person he may substitute for himself, to whom the title to the property hereinafter described may be transferred, and who may execute the note and mortgage as a part of the consideration herein expressed.” However, it appears that defendant did not exercise the power to nominate another and chose instead to take title to the property in his own name as Buyer, thereby becoming bound to execute the note and mortgage therefor.

In conformity with the contract, the sale of the real estate was consummated at Fremont, Ohio, on July 14, 1953, when plaintiff executed and delivered to defendant an Ohio Warranty Deed conveying fee simple title to the premises. At the same time, plaintiff received from one C. W. White a cashier’s check in the amount of $7,500; defendant executed the promissory note for the balance of the purchase price, together with an Ohio mortgage, and delivered both instruments to plaintiff. On the next day, July 15, 1953, defendant executed a warranty deed in blank and delivered same to C. W. White, whereby the same real estate was conveyed subject to encumbrances thereon.

After default was made in payment of the note, the real estate was sold under foreclosure proceedings on September 20, 1955, for the sum of $52,081.33; on November 21, 1955, personal property was sold under a chattel mortgage for $388.86. Credit was given for the sum of the amounts so received, leaving a balance due of $27,062.09.

The main thrust of defendant’s contention, as we understand it, is that inasmuch as he did not personally gain from the transaction, and received nothing from plaintiff in exchange for the note, there was no consideration for the instrument and the action must fail for that reason. It cannot be gainsaid that defendant is correct in asserting that, insofar as this record is concerned, he did not benefit or, in fact, receive anything of value from the transaction. But that factor alone is not dispositive of the question of whether there was sufficient legal consideration to support the validity of the instant promissory note. To begin with, under the Negotiable Instruments Law, “(e) every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.” Section 24, Beutel’s Brannan Negotiable Instruments Law, Seventh Ed.; Page’s Ohio Revised Code, Annotated (1953 Ed.) §1301.26 R. C. See also, Dalrymple v. Wyker, 60 Oh St 108, 53 N. E., 713. Sec. 1301.27 R. C., supra, provides further that “ (v) alue is any consideration sufficient to support a simple contract.” The Ohio courts recognize the rule which seems to have universality, to the effect that a valuable consideration may consist of a benefit to the promisor or a detriment to the promisee. In City Trust & Savings Bank v. Schwartz, 68 Oh Ap 80, 22 O. O. 176, 39 N. E. (2d), 548, 554, the court elaborated on the rule in this language:

“In 9 O. Jur., 297, Section 65, it is stated that a valuable consideration may consist either in a benefit to the promisor or a detriment to the promisee. Many cases are cited in support of the statement. It is further set forth in the section that the definition has been more elaborately stated as follows: ‘A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to the other party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.’”

See and compare Hucter v. Binduchowski, 94 Oh Ap 481, 52 O. O. 267, 116 N. E. (2d), 598, 600; Merchants’ Nat. Bank of Cincinnati v. Ryan, 67 Oh St 448, 66 N. E. 526; Judy v. Louderman, 48 Oh St 562, 29 N. E. 181. It stands undisputed that plaintiff parted with title to the land that was conveyed to defendant. This was a sufficient consideration for the note even though defendant was not the actual purchaser of the property and did not personally gain from the transaction. Further, and apart from any question of legal consideration, it is our view that the effect in law of the transaction between plaintiff, defendant, and White, bearing upon the relationship of the parties to each other was to make defendant an accommodation party for White. In Negotiable Instruments Law, an accommodation party is defined as “* * * one who has signed the instrument as maker, * * * without receiving value therefor, and for the purpose of lending his name to some other person.” Sec. 29 of Beutel’s Brannan Negotiable Instruments Law, Seventh Ed.; Page’s Ohio Revised Code, supra, §1301.31 R. C. Plaintiff, on the other hand, although having knowledge of the relationship between defendant and White, was nevertheless a holder for value of the note, and as to plaintiff, the defendant became, and is liable. §29 Beutel’s N. I. L., supra; Page’s Ohio Revised Code, supra, §1301.31 R. C. See also City Trust & Savings Bank v. Schwartz, supra, 68 Oh Ap 80, 22 O. O. 176, 39 N. E. (2d) 548, 555; Roof v. National Surety Corp., 92 Oh Ap 295, 49 O. O. 365, 110 N. E. (2d), 159, 161; 11 C. J. S. Bills and Notes §739 b; 8 Am. Jur. Bills and Notes, §§456 and 457.

While defendant’s unfortunate plight is sufficient to provoke sympathy, it can hardly be contended that it constitutes a legal defense to the action. And since it is obvious that the pleadings, admissions, and evidence before the court reveal no genuine issue as to any material fact, the court properly entered summary judgment.

Affirmed.

      . The note was in the principal amount of $71,500, and was payable to plaintiff on or before July 14, 1955, and provided for interest at the rate of 5% from date thereof.


author: Per CURIAM.

text:
    BUCKEYE UNION CASUALTY CO. et, Plaintiffs-Appellants, v. BIETE, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5701.
    Decided June 10, 1958.
    Shoemaker, George & Passmore, H. Keith Passmore, of Counsel, Columbus, for plaintiffs-appellants.
    R. Patrick West, Columbus, for defendant-appellee.
   OPINION

Per CURIAM.

This is an appeal on questions of law based upon two assignments of error, which are as follows:

1. Error in the trial court’s charge to the jury.

2. The verdict of the jury was contrary to law and against the weight of the evidence.

Concerning the first assignment of error, we wish to point out the following from the court’s charge, found in the Bill of Exceptions, Page 67, beginning at the last paragraph:

“Now, if you find from the evidence that Mr. Biete was approaching this intersection and he failed to yield the right of way to a vehicle approaching from his right he was negligent; that is, negligent providing the vehicle from the right is proceeding in a lawful manner. If the vehicle of the plaintiffs, which in this case was approaching from the defendant’s right, was not proceeding in a lawful manner then Mr. Biete was not guilty of negligence in failing to yield the right of way. I repeat, if you find by a preponderance of all the evidence that the defendant, Mr. Biete in this case, was negligent and that his negligence was the proximate cause of the damage to Mr. Bennett’s car, you will return a verdict in favor of the plaintiffs. If the plaintiffs have failed to sustain that burden by a preponderance of the evidence your verdict should be for the defendant.”

We also wish to point out the following from the court’s charge found in the Bill of Exceptions, Page 69, beginning at the last paragraph:

“I charge you further that the sole issue of negligence in this case is the negligence of Mr. Biete. Mr. Bennett was not operating his motor vehicle, and so any negligence on the part of his stepson, who was the operator, is not imputable to Mr. Bennett; so Mr. Bennett’s claim cannot be defeated by contributory negligence on the part of Mr. Oberer who was driving his motor vehicle.”

Note: Before correction by the judge, the third from last line read, “although Mr. Bennett’s claim can be defeated by * * (Emphasis ours.)

The case, as finally submitted to us, contains the charges as set forth above. We believe they are correct statements of the law relating to right of way and negligence when considered in connection with the evidence before the trial court and upon which the jury in that case had to pass. We are bound by the record as it comes to us, certified by the trial judge in this case, especially after an opportunity was given for the trial court to determine whether there should be any diminution or correction of the Bill of Exceptions. If one wfill read the last sentence above quoted from Pages 69 and 70, it would seem in all fairness to the trial judge that the portion of the sentence following the semicolon would have, in fact, been given as it now stands, else he would not have used the language found in the portion of the sentence before the semicolon. It makes sense as the judge certified it; in any event, as indicated above, we are bound by the record as it comes to us. Therefore, the first assignment of error is not well taken.

On the question of the weight of the evidence raised by the second assignment of error, we feel that a jury, considering all the evidence in the record, was warranted in reaching the conclusion that it did and finding on the issues joined for the defendant. Based upon this record, we do not feel that the verdict of the jury was contrary to the law and the weight of the evidence. We conclude that the second assignment of error is not well taken. The judgment of the trial court will, therefore, be affirmed.

Judgment affirmed.

PETREE, PJ. BRYANT and MILLER, JJ, concur.


author: By THE COURT.

text:
    CENTRAL OIL EMULSION CORPORATION, Plaintiff-Appellant, v. ROESCH et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5131.
    Decided January 19, 1955.
    Robert Dow Hamilton, Columbus, for plaintiff-appellant.
    J. Paul McNamara, Keith McNamara, Columbus, for defendantsappellees.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee, A. R. Roesch, seeking an order dismissing the appeal for the reason that the case “has stood on the docket for more than one full term and no action has been taken therein by paintiff-appellant.” The appellee is relying upon the following notice published in the Daily Reporter:

“All cases which have stood on the docket for one term or more will, unless good cause to the contrary is shown, be dismissed for want of prosecution or assigned for hearing.”

This notice does not require a dismissal of all cases coming within the classification enumerated therein, but leaves the same up to the discretion of the Court. This appeal is one on law and fact and counsel for appellant has shown good cause for the delay in that no agreement has been reached between counsel as to the manner in which the record shall be made. This constitutes good cause for the delay.

The motion will be overruled.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


author: Per CURIAM:

text:
    STATE, ex rel. BLAKE, Relator, v. COMMON PLEAS COURT OF CUYAHOGA COUNTY et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24827.
    Decided March 30, 1959.
    Henry W. Stark, for relator.
    Thompson, Hiñe & Flory, for intervening defendant, Cleveland Savings Society.
    A. H. Dudnik, for respondents.
   OPINION

Per CURIAM:

Demurrer to petition sustained for the reason that the relator fails to state facts sufficient to constitute a cause of action for the issuance of a writ of prohibition.

The claims of relator, as shown on the face of the petition, are based on his ownership of deposit, Deposit Book No. A-187081 of the Society for Savings of the City of Cleveland, a mutual savings bank, and of the assets represented by said book. In this respect, relator stands in the same relation as other depositors having a like interest.

The order complained of, issued by the Court of Common Pleas, provides, inter alia, as follows:

“Pending such preliminary hearing, all persons are enjoined from prosecuting any separate proceedings against Petitioner or involving any of its property.”

Item 2 of said order provides:

“All other persons having or claiming to have any debt, demand, action, cause of action, or other claim whatever, against Petitioner, whether arising out of tort, or contract ... is hereby required to file a written statement setting forth the amount and nature of such claim and the ground upon which the same is based . ..”

It is our opinion that the procedure which governs and provides for the jurisdiction of the Court of Common Pleas for the dissolution of the Society is provided for by Chapter 1702 R. C., and specifically by §1702.50 R. C., thereof. We hold that this provision of the code is a constitutional enactment in that it provides for the orderly presentation of claims and the proper disposition of the assets of the Society in the process of dissolution and, therefore, affords an adequate remedy at law to the relator. The court in making the order, part of which is above quoted, exercised the jurisdiction conferred upon it by law and the rights of all claimants are adequately protected by the provisions contained in the statute.


author: By THE COURT:

text:
    FEATHERINGHAM, Sr., Petitioner, v. ECKLE, Supt., Respondent.
    Ohio Appeals, Second District, Madison County.
    No. 243.
    Decided December 28, 1957.
    John W. Featheringham, Sr., in his own behalf.
    William Saxbe, Atty. Geni., William M. Vance, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT:

Submitted on motion of the respondent to require the petitioner to make his petition definite and certain by specifically stating wherein he is unlawfully restrained of his liberty without legal authority as alleged.

Petitioner specifically avers that “he is unlawfully restrained of his liberty without legal authority, by Superintendent R. B. Eckle, in the London Prison Farm, London, Ohio.” (Emphasis ours.)

The petition conforms in every particular with the requirements of §2725.04 R. C., except the inclusion of a copy of the commitment by v/hich he is held as a prisoner. It has become the practice in this district for the respondent to file the mittimus with his answer to the petition.

The motion will be overruled.

HORNBECK, PJ, WISEMAN and CRAWFORD, JJ, concur.


author: By HOTTLE, J.

text:
    SMITH, Plaintiff, v. SHOEMAKER et, Defendants.
    Common Pleas Court, Highland County.
    No. 18537.
    Decided July 29, 1959.
    Hapner & Hapner, Jon C. Hapner, of Counsel, Hillsboro, for plaintiff.
    Forrest F. Beery, Hillsboro, for defendants.
   OPINION

By HOTTLE, J.

Defendants’ Demurrer to the Petition having come on for hearing and having been argued by respective counsel for the parties; upon consideration thereof, the Court sustains the same as to Branch (1) but overrules as to Branch (2).

Defendants’ counsel also orally moved for permission to withdraw the Motion to dismiss the action heretofore filed by Defendants; which permission is granted.

Counsel for Defendant did not press the second branch of the demurrer, and the Co'urt will not comment on its ruling thereon.

The first branch raises an interesting question, and decisions concerning same seem to be scarce in Ohio.

Exhibit “A,” attached to and made a part of the Petition which pleads the short form of action,” . . . upon an instrument for the unconditional payment of money only . . .,” under authority of §2309.32 R. C., reads as follows:

“This is a note from Floyd and Letta Lee Shoemaker of Hillsboro, Ohio, to Dorothy P. Smith, for a loan of One Thousand Dollars without interest and payments only when possible. In event of my death, any amount still due on note shall be kept by them.
Mar. 11th, 1952 /s/ F. H. Shoemaker
/s/ Letta Lee Shoemaker”

The last sentence thereof goes further than those cases discussed in 94 A. L. R. 721-725; even those of the minority view.

The majority view is stated at page 721 and the minority at page 724 of said text: these views are quoted from the citation of 12 Am. Jur. 858, Section 303 in North Market Association Inc. v. Case et al., 99 Oh Ap 187 at 188 as follows:

“ ‘In a majority of the states in which the question has arisen and in Canada it is held that a promise to pay when the promisor “is able” (or a term of the same purport) is a conditional, and not an absolute, promise to pay, and that the promisee is not entitled to recover on such a promise unless the promisor is able to pay the debt. The minority view is that a promise to pay when the promisor is able is an absolute, and not a conditional, promise; it amounts to a promise to pay within a reasonable time.’”

In that case, the 2nd District Court of Appeals followed the majority view and held the promise to be conditional. The condition was, from the evidence, that the money was to be paid “ ‘if and when funds are available.’ ”

The word “if,” used in the instrument involved in the North Market Association case, means “on the condition that” (cf. Winston Dictionary); therefore, the cases are not on all fours as far as the language of the phrases are concerned.

In the instant case, the condition is: “payments only when possible.” The rule of paying within a reasonable time, as discussed in the A. L. R. annotation, might be applied if a difference could be distinguished between the above quoted statements.

The word “when” is used in regard to the time that payments are possible; the word “possible” is used in the sense of “capable of being done” (cf. Bouvier Law Dictionary, Rawle’s 3rd Revision Vol. 2); “that may or may not occur,” “within or up to the limits of ones ability or capacity as determined by nature, authority, circumstances, etc.” (cf. Webster’s New International Dictionary, 2nd. ed.)

Therefore, Defendants have promised to pay a certain sum of money at the time they are capable of doing so. The Court does not consider such a promise an absolute one.

Bouvier Law Dictionary, ibid, defines a promissory note, “A written promise to pay a certain sum of money, at a future time, unconditionally.”, quoted in Burke v. State, 104 Oh St 220 at 222.

This Court is also disposed to follow and apply the majority rule as was done in the North Market v. Case, ibid, and rules that Exhibit “A” is conditional by its terms.

Therefore, since the within Petition does not state facts showing an action founded upon an instrument for the unconditional payment of money only, the Demurrer to the Petition is valid, §2309.08 (J) R. C. The text of 94 A. L„ R. 721 completing the statement of the majority view reads: “. . . and that therefore the promisee, in order that he may recover on such a promise [is able] must allege and prove ability of the promisor to pay the debt.” (Emphasis added.)

The Court has no difficulty in distinguishing the cases of Shemonia v. Verda, 24 Oh Ap 246, Ring & Rice v. Foster, 6 Ohio 279, Mitchell v. McCabe, 10 Ohio 406.

Counsel for Defendants will draw proper Entry per rule, reserving exceptions to the parties as adversely affected, granting leave to Plaintiff to plead further within twenty days.


author: By HUNSICKER, J.

text:
    STATE, ex rel. TITLER, Plaintiff, v. BROTHERHOOD OF RAILROAD TRAINMEN et, Defendants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24880.
    Decided July 27, 1959.
    William H. Corrigan, for plaintiff.
    Ray T. Miller, Wayland K. Sullivan, for defendants Brotherhood of Railroad Trainmen et al.
    Ben C. Green, Dan W. Duffy, for defendant Brotherhood of Railroad Trainmen Insurance Dept., Inc.
    Wm. A. Welty, for defendant W. J. Weil.
    (Judges of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.

Clyde Marshall Titler, a member of the Brotherhood of Railroad Trainmen, herein called “Brotherhood,” and a holder of policies of insurance in the Brotherhood of Railroad Trainmen Insurance Department, Inc., herein called “Insurance Department,” filed this original action in mandamus against the Brotherhood and the Insurance Department, and others, to compel the defendants “to call and hold a convention * * * for the election of officers * * *.”

Mr. Titler alleges: that the Brotherhood and the Insurance Department, under the terms of its constitution and the laws of Ohio, are required to hold a convention for the election of officers, and the transaction of other business, every four years; that the last convention of these bodies was held at Miami Beach, Florida, on August 30 to October 8, 1954; and that, by means of a referendum vote of the membership, the 1958 convention was, by the president and board of directors, unlawfully postponed until 1962.

On June 14, 1956, the Board of Directors of the Brotherhood adopted a proposal to conduct a referendum of the membership and of the subordinate lodges, to determine whether they desired to hold a convention. The result of the vote showed an overwhelming number of both members and lodges casting their ballots to postpone the convention of 1958 until the year 1962.

On October 18, 1956, after a meeting of the Board of Directors of the Brotherhood, a circular (the official publication of the Brotherhood) was sent to all members, including Mr. Titler, which read, in part, as follows:

“The following for your information and instruction:
“Brotherhood members vote to postpone 1958 convention.
* *
“Thus the instructions of the Board of Directors issued at meeting held on June 14, 1956, to spread a referendum ballot have been carried out, and the membership has decreed that the 1958 convention of the Brotherhood of Railroad Trainmen and the Brotherhood of Railroad Trainmen Insurance Department, Inc., shall be postponed for a period of four years, and it is hereby so declared.”

On January 28, 1957, Mr. Titler wrote a letter to W. J. Weil, General Secretary and Treasurer of the Brotherhood, and a defendant herein, protesting the postponement of the convention, and stating that it was his desire to appeal to the Board of Directors of the Brotherhood from the decision of the president announcing the postponement of the convention.

Thereafter, on January 31, 1957, W. P. Kennedy, as president of the Brotherhood, sent the following letter to Mr. Titler:

“Dear Sir and Brother:
“This will acknowledge your letter of January 28 to Brother W. J. Weil advising that it is your desire to appeal to the Board of Directors from the decision of the President announcing the postponement of the convention which was scheduled to be held in 1958. “It was not by decision of the undersigned that the convention has been postponed. As I am sure you must know, it was by action of the Board of Directors that the proposal to postpone was referred to a referendum of the membership of the Brotherhood. In so far as your lodge is concerned, a vote of fifty-one to nine in favor of postponement was returned. In referring the question to our members, the Board gave full consideration to all of the provisions of our law which might be involved, and an appeal such as submitted by you would, in effect, be an appeal from the action of the Board of Directors to the same board, which obviously would not be in order.
“Under the circumstances, it would avail nothing to appeal and your appeal cannot be recognized.
“Fraternally yours,
“(signed) W. P. Kennedy
“President.”

In January, 1958, a circular was sent to all members of the Brotherhood, which said that, in view of the overwhelming approval by the membership, as reported in the circular of instructions for October, 1956, Mr. Kennedy, as president of the Brotherhood, had announced on January 7, 1958, the postponement of the 1958 convention.

No protest was made by any member after the January, 1958, circular was published.

Thereafter, on April 8, 1959, this action in mandamus was filed.

The problem, as concerns the Brotherhood, is whether, under its constitution, there can be a postponement of the convention, and, if not, whether an action in mandamus lies to compel the calling of such convention.

The problem, with reference to the Insurance Department, is somewhat different. The Insurance Department is a fraternal benefit society, organized and existing under the insurance laws of the state of Ohio. It was organized solely for the. mutual benefit of the members of the Brotherhood and certain of their dependents.

Under Rule 39 of the Insurance Department, all of the provisions of the constitution of the Brotherhood, not inconsistent with the insurance rules, shall apply to and govern the rights of the holders of certificates of insurance. The Insurance Department is in all respects a division of the Brotherhood. If the holder of an insurance certificate ceases to be a member of the Brotherhood, his insurance coverage expires, except that one who is expelled under charges may retain his insurance.

In the constitution of the Brotherhood is a Section 4, which says:

“The Grand Lodge shall meet quadrenially in the city to be selected by the Board of Directors, and which in the judgment of that Board shall be most practical and economical for the holding of such meeting.”

In Chapter 3921 R. C., concerning fraternal benefit societies, §3921.03 R. C., says, in part, that any society operating on the lodge system has a representative form of government when “the meetings of the supreme or governing body and the election of officers, representatives, or delegates are held at least once in four years.”

Thus it would seem, at first blush, that the Brotherhood was required to hold a quadrenial convention in order to comply with its constitution and with the law of Ohio. The penalty which may be imposed by the state of Ohio for failure to hold its quadrenial convention is loss of authority to conduct its insurance division. This is a present threat to the Insurance Department herein. There is, however, one other section in Chapter 3921 R. C., which may relieve this society from complying with §3921.03 R. C. The section to which we refer is §3921.40 R. C., which says in its pertinent part:

“Secs. 3921.01 to 3921.45, inclusive, R. C., do not apply to any of the following:
<<$ Sic SjS
“(D) Grand or subordinant lodges of societies which limit their membership to any one hazardous occupation;
“No society, which is exempted under this section from §§3921.01 to 3921. 45, inclusive, R. C., shall give or allow, or promise to give or allow, to any person any compensation for procuring new members.”

We do not believe that the portion of the above statute which prohibits a fraternal benefit society from paying compensation for procuring new members is important in the decision of the controversy herein. It is an admitted fact that the Brotherhood pays some compensation to agents who sell their certificates of insurance, but, by the terms of the statutes governing fraternal benefit societies, a penalty for such acts, if any, is not imposed by removing the exemption set out in paragraph “(D)” of §3921.40 R. C. If any action is to be taken for the admitted act of paying solicitors to procure new members, such action lies in the licensing authority of the state of Ohio.

We then come to the question posed by paragraph D, supra. Is the membership of the Brotherhood limited to one hazardous occupation?

While it may be true that pushers of buttons and pullers of levers belong to the society as well as others in equally sedentary work, nevertheless, they are all occupied, or, according to the testimony, were originally occupied, in conducting the business of operating a railroad.

There are not many decided cases involving this direct question, but the courts in many jurisdictions have defined “hazardous business” and “hazardous occupation” within the meaning of workmen’s compensation laws. Thus, in McCabe v. Brooklyn Heights Rd. Co., 162 N. Y. S. 741, at page 742, a street surface railroad is said to be engaged in a “hazardous business;” while a claim adjuster of a railroad was not engaged in “hazardous employment.” In re Brown, 159 N. Y. S. 1047. The opinions of jurisdictions outside of Ohio are in such great conflict that no general rule can be stated.

The Ohio case cited to us by counsel, State, ex rel. Sheets, Atty. Genl., v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co., 68 Oh St 9, says, at page 41:

“The most of the work of an employe of a railroad company is hazardous, and frequent injuries are sustained * *

In the case of Lake Shore & Michigan Southern Ry. Co. v. Benson, Admr., 85 Oh St 215, at page 221, the court said:

“Railroading at its best is necessarily a dangerous and hazardous employment * * *.”

We, too, think that railroading is a hazardous employment. We therefore determine that the Brotherhood herein is not bound by the terms of §3921.03 R. C., by reason of the exemption contained in §3921.40(D) R. C.

We shall pass now to a discussion of the problem presented by the constitution of the Brotherhood, and the question whether the action of mandamus is an appropriate remedy in this case.

The testimony of Mr. Kennedy, president of the Brotherhood, was in great part an effort to rationalize the postponement of the 1958 convention. The bases of the claimed right to such postponement was precedent, cost of the convention, and the referendum vote of the lodges and members.

The answer of the Brotherhood says, among other things, that:

(1) Mr. Titler is not a proper party to these proceedings; his petition does not state a cause of action;

(2) He has not exhausted his remedies within the Brotherhood;

(3) He has not properly perfected his appeal as provided by the laws of the Brotherhood;

(4) He is guilty of laches by allowing more than two years to elapse after the referendum vote before filing suit; and

(5) He comes into court with unclean hands.

The balance of the answer, and,the portion marked “third defense,” is an attempt to rationalize the postponement of the 1958 convention.

There is no provision or method set out in this constitution whereby a convention may be postponed. There are methods set out in the constitution of the Brotherhood whereby a special convention may be convened. There is no way set out in this constitution to end a convention except by the transaction of the business of the Brotherhood.

We began our discussion of this phase of the case with the premise that the 1958 convention, under the authority of the constitution of the Brotherhood, was required to be held. Should this court, under this petition, the defense, the evidence before it, and the law of the state of Ohio, order the convening of a convention?

The action of mandamus is defined in §2731.01 R. C., as follows:

“Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” (Emphasis ours.)

We have emphasized the words “commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” We believe that the disposition of this case depends upon the meaning of that part of the statutory definition of mandamus.

Before mandamus was given a statutory meaning, Wright, Judge, said, in the case of the Universal Church v. Trustees of Section Twenty-nine, etc., 6 Ohio 446, at page 447:

“The object of the remedy by mandamus is to compel public officers and private individuals in matters relating to the public, to perform their public duties.”

Inasmuch as we have heretofore determined that the Insurance Department is exempt from the operation of the law which requires its supreme governing body to meet every four years, what matter relating to the general public is specifically enjoined by the law upon the Brotherhood?

We think there is no matter specifically enjoined by the law with reference to a convention of a voluntary unincorporated association. The text writer in 35 O. Jur. 2d, Mandamus, Sec. 53, at page 304, without the citation of any Ohio authority, states the general rule, with respect to mandamus, as a remedy in cases such as we have herein, when he says: “Ordinarily, mandamus will not lie to regulate the interned affairs of unincorporated associations * * *.” See also: 34 Am. Jur., Mandamus, Sec. 93, and 55 C. J. S., Mandamus, Sec. 238, and authorities cited in each text.

With respect to corporations for profit, the courts of Ohio have said that mandamus is not the proper proceeding by which to require the secretary of a corporation to call a meeting of its stockholders. State, ex rel. Ferencz, v. Unida Gold Mining Company, et al., 13 O. C. C. (N. S.) 100. But see annotation in 48 A. L. R. 2d 615, et seq.

Mandamus is not the proper remedy to compel a private corporation to issue a certificate of stock. State, ex rel. v. Carpenter, et al., 51 Oh St 83.

We do not find any Ohio case directly in point on the specific issue herein, and so we must search in other states for a solution of our problem.

The use of mandamus against voluntary associations has frequently been before the courts of other jurisdictions, usually in an attempt to compel the association to admit a person to membership.

In Ross v. Ebert, as Business Agent, etc., 275 Wis. 523, 82 N. W. 2d 315, the court refused mandamus to compel a union to accept a colored man as a member, saying that the labor union has a legal right to determine eligibility of those seeking membership. The decision therein was based upon an interpretation of the fair employment law of Wisconsin.

In Thorman v. International Alliance, etc., 320 P. 2d 494, the Supreme Court of California reached a contrary conclusion, but this decision was based upon a closed shop agreement which the union had with the employer; the court saying that the union could not maintain a closed union and a closed shop at the same time.

A case of considerable interest, because it sets out the majority rule, is Bailey v. Coleman (W. Va.), 16 S. E. 2d 918. The court there said:

“1. The writ of mandamus does not lie against an officer of an unincorporated voluntary association, where no statutory duty is sought to be enforced, and no public interest is involved.”

See also: State, ex rel. Smith et al., v. Miers et al., 206 N. W. 236: Daniels v. Daniels, 160 N. Y. S. 2d 133. See also, the annotation on this subject in 137 A. L. R. 311, et seq.

The rule set out in the Bailey v. Coleman case, supra, is stated in Ferris, “Extraordinary Legal Remedies,” at chapter XVII, Sec. 259, at page 319, as follows:

“It is well settled that, in the absence of any statutory duty, mandamus will not lie against a voluntary unincorporated association or society.”

It is therefore the conclusion of this court that, since the statutory law of Ohio does not require the supreme governing body of the Insurance Department, the Brotherhood, to hold a convention every four years, there is thus no law specifically enjoining a duty upon such Brotherhood to call its convention. The remedy by way of mandamus herein therefore does not lie, and the writ is denied.

DOYLE, PJ, STEVENS, J, concur.


author: By WEICK, District Judge.

text:
    NICE, Extrx., Plaintiff, v. PENNSYLVANIA RAILROAD COMPANY, a Corporation, Defendant.
    United States District Court N. D. Ohio, E. D.
    Civ. A. No. 33141.
    Decided January 2, 1959.

      Raymond J. Finley, Akron, for plaintiff.
    Charles F. Clark, Jr., of Squire, Sanders & Dempsey, Cleveland, for defendant.
   OPINION

By WEICK, District Judge.

This case involves a crossing accident.

Plaintiff’s decedent was driving his truck loaded with eggs on a country road over a railroad crossing when he was struck and killed by a passenger train.

The accident happened shortly after 9:00 o’clock in the morning on a cold, clear, dry day in broad daylight.

The railroad tracks crossed the highway at grade and at an angle of 32% degrees.

The right of way of the railroad was 125 feet wide and contained four sets of tracks. It was straight and then was a clear and unobstructed view in the direction from which the train was approaching for more than a mile from a distance on the road as far as 110 feet from the nearest rail.

There were trees to the north of the highway located about 875 feet west of the right of way, but they did not obstruct vision after passing them on the road.

The decedent had crossed over the first set of tracks and was almost over the second when he was struck by the train which was travelling from 70 to 73 miles an hour.

At the conclusion of plaintiff’s evidence and at the close of all the evidence, defendant moved for a directed verdict or in the alternative for judgment, ruling on which was reserved by the court.

The jury returned a general verdict in favor of plaintiff in the amount of $18,000.

The jury answered special interrogatories as follows:

1. Do you find that the defendant, The Pennsylvania Railroad Company, was negligent? If so, of what did it consist?

In part — They are partially negligent — Due to the traffic at this crossing the railroad could have provided more protection.

2. If your answer to Interrogatory No. 1 is “yes,” then do you find that such negligence was a proximate cause of the injury to and death ■ of Mr. Nice?

A proximate cause could have been the negligence of the defendant in not supplying automatic signal devices or watchman at the crossing.

3. Do you find that the plaintiff’s decedent, Mr. Nice, was negligent? If so, of what did it consist?

Yes — in part — He was partially negligent — Mr. Nice should have exercised more caution.

4. If your answer to Interrogatory No. 3 is “yes,” then do you find . that such negligence contributed in any degree to cause the injury to and death of Mr. Nice?

The contributory negligence was due to Mr. Nice not exercising enough caution at the crossing.

Defendant has moved for judgment notwithstanding the verdict or in the alternative for a new trial.

The following specifications of negligence were submitted to the jury:

(1) Failing to sound a warning whistle and ring a warning bell in violation of Ohio law;

(2) Failing and neglecting to keep and maintain the crossing in a safe condition by the use of automatic signal devices or the stationing of a watchman when defendant knew said crossing to be of an unusually dangerous nature.

(3) Failing and neglecting to maintain and keep a lookout ahead to ascertain in time the approach and presence of plaintiff’s decedent and

(4) Operating the train at an unreasonable and excessive rate of speed.

The court also submitted to the jury the issue of contributory negligence.

In its answer to Interrogatories Nos. 1 and 2, the jury found that the railroad was negligent only in failing to provide more protection at the crossing and in not supplying automatic signal devices or watchman and that such negligence was a proximate cause of the accident.

This negligence was charged in Specification of Negligence No. 2.

Since the jury did not find any additional particulars of negligence, this operated as a finding in favor of defendant that it was not negligent in any of the respects charged in Specifications of Negligence Nos. 1, 3 and 4. Masters v. New York Central R. Co., 147 Oh St 293, 34 O. O. 223, 70 N. E. (2d), 898.

The railroad was not bound to provide automatic signal devices or watchman at a crossing in the absence of an order from the Public Utilities Commission, if a driver exercising ordinary care should be able to avoid a collision with a train being operated over the crossing in accordance with statutory requirements. Hood v. New York, Chicago & St. Louis Railroad Co., 166 Oh St 529, 3 O. O. (2d), 12, 144 N. E. (2d), 104.

This issue was properly submitted to the jury and it found that the defendant was negligent. The finding is supported by abundant evidence.

The more serious question in the case relates to contributory negligence of the decedent.

Under Ohio law there can be no recovery if he was negligent which contributed in any degree to cause the accident. 29 O. Jur., 501.

The jury found, in substance, in answer to Interrogatory No. 3 that plaintiff was negligent in that he should have exercised more caution oleare for his own safety.

In answer to Interrogatory No. 4 relating to proximate cause the jury found:

The contributory negligence was due to Mr. Nice not exercising enough caution at the crossing.

Plaintiff contends that the jury did not answer this interrogatory “yes” and, therefore, there is no finding on the issue of proximate cause.

It must be remembered that jurors are laymen and their answers to interrogatories are not to be strictly construed but on the contrary should be given a liberal construction. Elio v. Akron Transportation Co., 147 Oh St 363, 34 O. O. 301, 71 N. E. (2d), 707; Flush v. Erie R. Co., D. C. N. J. 1953, 110 F. Supp., 118.

The jury was instructed:

“Contributory negligence is such an act or omission on the part of the deceased amounting to a want of ordinary care as occurring or cooperating with some negligence of the defendant as a proximate cause of the accident.” (Emphasis added.)

The jury’s use of the term “contributory negligence” conformed with the instructions of the court and necessarily involved a finding of proximate cause. In effect, the jury’s answer was that decedent was guilty of contributory negligence in not exercising sufficient care for his own safety at the crossing. It was equivalent to a “yes” answer.

The jury’s answers to Interrogatories Nos. 3 and 4 are inconsistent with the general verdict and it is, therefore, the duty of the court under Rule 49(b) of the Federal Rules of Civil Procedure, 28 U. S. C. A. to enter judgment in accordance with the answers to said interrogatories.

But defendant is also entitled to judgment on another ground.

Under the undisputed evidence of this case plaintiff had a clear and unobstructed view of more than a mile as he approached the crossing and at the time he drove over the first set of tracks.

Had he looked to his left he could have seen the approaching train in time to have avoided the accident which took place on the second set of tracks. It was his duty to look and listen for trains at a place which was effective. The fact that the tracks crossed the highway at an angle which would require decedent to turn his head sharply to the left and almost look backward in order to see the approaching train did not excuse him any the less from the duty to look. Price v. New York Central System, D. C., 91 F. Supp., 898.

The decedent was guilty of contributory negligence as a matter of law and there can be no recovery in this case. Detroit, Toledo & Ironton R. Co. v. Rohrs, 114 Oh St 493, 151 N. E., 714; Patton v. Pennsylvania R. Co., 136 Oh St 159, 16 O. O.114, 24 N. E. (2d), 597; Woodworth v. New York Central R. Co., 149 Oh St 543, 37 O. O. 263, 80 N. E. (2d), 142; Detroit, Toledo & Ironton R. Co. v. Yeley, 6 Cir., 165 F. (2d), 375.

Under the law the defendant was entitled to have judgment entered in its favor irrespective of the answers to the interrogatories under which it is entitled to judgment.

The verdict and judgment in favor of plaintiff are vacated and judgment may be entered in favor of defendant dismissing the complaint.


author: By GRIFFITH, J.

text:
    STATE, ex rel. BRIZES, Relator, v. DePLEDGE, Building Inspector, City of Eastlake, Respondent.
    Ohio Appeals, Seventh District, Lake County.
    No. 588.
    Decided June 19, 1958.
    Wayne E. Davis, Willoughby, for relator.
    Richard L. McNelly, Director of Law, City of Eastlake, for respondent.
   OPINION

By GRIFFITH, J.

This action in mandamus was submitted to us on the pleadings, seven exhibits, the following agreed statement of facts and briefs and arguments of counsel:—

“1. On December 18, 1950, the Relator purchased from one Peter G. Bills, for a purchase price of $1500.00, a four room cottage on East River Drive in Eastlake, Ohio, said cottage being located on the property of one Alfred E. Meinke on the East bank of the Chagrin River, in the City of Eastlake, Ohio.
“2. Until January 19, 1957, the relator paid Mr. Meinke a rental of $50.00 per year for use of the grounds upon which said cottage was located.
“3. On January 19, 1957, the relator and Mr. Meinke entered a five year lease for the rental of space for said cottage at a rental of $60.00 per year.
“4. In May of 1951, the City of Eastlake, Ohio, enacted a Zoning Ordinance by the provisions of which non-conforming uses were and are permitted uses in the districts in which located at the time and since the enactment of said ordinance. Said ordinance further provides for and establishes certain flood plain districts and relator’s cottage is located in a flood plain district.
“5. Relator’s cottage was located in the East River Drive area prior to, at the time of, and since the enactment of said Zoning Ordinance.
“6. In the summer of 1954, Relator’s cottage was damaged as the result of a flood of the Chagrin River.
“7. In October, 1954, the house was moved approximately 600 feet to its present location and remained on mover’s equipment until March, 1955, at which time said cottage was located at a place indicated by Mr. Meinke, owner of the property; said house was moved without the relator or the mover having first obtained a permit therefor from the City of Eastlake.
“8. On July 18, 1956, the State Fire Marshal for the State of Ohio issued Order No. 94898 requiring the relator to make the repairs as recited in the petition.
“9. The City of Eastlake would cite relator for a building and zoning violation if relator proceeded to build or remodel without first obtaining a permit therefor.
“10. On July 25, 1956, relator requested the Building Inspector of the City of Eastlake to furnish him with a permit in order that relator might comply with the order of the State Fire Marshal.
“11. No application in writing was made to the Building Inspector or other oflicial of the City of Eastlake in respect to the building or remodeling or other permit in order to permit relator to comply with the order of the State Fire Marshal.
“It is further agreed that had relator made application for a permit to remodel or repair said cottage, said permit would have been refused by the Building Inspector.
“12. On August 4, 1956, respondent referred relator to Mayor Barrett of the City of Eastlake relative to the question of obtaining a permit.
“13. On August 4, 1956, Mayor Barrett refused to entertain relator’s request for a permit.
“14. Relator has at all times been ready, willing and able to comply with the order of the State Fire Marshal.
“15. The following listed exhibits are exact copies of original documents and may be admitted into evidence as follows:
“Respondent’s Exhibit ‘A’ — Bill of Sale for subject cottage.
“Respondent’s Exhibit ‘B’ — Photograph of relator’s house as appeared in the Spring of 1957.
“Respondent’s Exhibit ‘C’ — Photograph of relator’s house as appeared in the Spring of 1957.
“Respondent’s Exhibit ‘D’ — Photograph of relator’s house as appeared in the Spring of 1957.
“Respondent’s Exhibit ‘E’ — Photograph of relator’s house as appeared in the Spring of 1957.
“Respondent’s Exhibit ‘F’ — Lease for property upon which relator’s cottage is located.
“Respondent’s Exhibit ‘G’ — Copy of order of State Fire Marshal duly served on the relator.
“16. Relator does not reside in said house and has never done so, but uses such cottage for rental purposes.
“17. The cottage is on blocks and may be moved if the situation requires it.
“18. No appeal in reference to relator’s cottage was ever filed with the Zoning Board of Appeals or other commission of the City of East-lake.
“19. Said cottage was vacant and not occupied from the summer of 1954 to June of the year 1956.
“20. The work and repairs as ordered to be done by the State Fire Marshal have never been done.
“21. No appeal has been perfected in respect to the order of the State Fire Marshal.
“22. The cottage in question has a bathroom without running water and is .without inside toilet facilities; but has chemical outhouse toilet facilities.
“23. The general area in which the cottage is located is subject to periodic floods from the Chagrin River on an average of twice per year, and such flooding conditions were present during the years 1954, 1955, 1956, and 1957.
“24. A copy of Ordinance No. 1951-40 entitled ‘Eastlake Zoning Ordinances’ and the Zone Map as filed with the Respondent’s answer is a true and correct copy of such ordinance and map of the City of Eastlake and was in full force and effect at all times mentioned in relator’s petition.
“25. The copy of Ordinance No. 1955-85 as filed with respondent’s answer is a true and correct copy of the dwelling house code of the City of Eastlake and was in full force and effect at all times mentioned in the relator’s petition.
“26. On January 21, 1957, relator filed his petition in mandamus for an order requiring respondent to issue a zoning permit in order to comply with the order of the State Fire Marshal.
“27. On the 7th day of February, 1957, this court issued an alternative writ in mandamus requiring respondent to issue relator a zoning permit or show cause by April 24, 1957, why he has failed to do so.”

We find that the zoning ordinance as adopted is constitutional in all respects.

Council of the city of Eastlake provided in Section 1191.01 of the ordinance as follows:—

“(c) Restoration of Damaged Buildings. A nonconforming building or structure which is not more than fifty percent damaged or partially destroyed by whatever cause including acts of God but not including acts of malicious mischief or vandalism, may be restored and the occupancy or use of such building, which existed at the time of the partial destruction, may be contined or resumed, provided the restoration does not exceed the size of the original building and that the restoration is started within a period of one year and is diligently prosecuted to completion. In the event the damage or destruction exceeds fifty percent of the nonconforming building, no repairs or reconstruction shall be made unless every portion of the building is made to conform to all regulations for new buildings in the district in which it is located.
“(d) Abandonment of Buildings, A nonconforming building which is or hereafter becomes vacant and remains unoccupied for a continuous period of one year, shall not thereafter be occupied except by a use which conforms to the use regulations of the district in which it is located.”

This court will not substitute its judgment for the judgment of the legislative body in these respects since council in so enacting the ordinance exercised reasonable judgment and was not guilty of arbitrary nor confiscatory conduct. Cleveland Trust Company v. Brooklyn, 92 Oh Ap 351; City of Euclid v. Lakeshore Co., 102 Oh Ap 96.

In syllabus 16 of East Fairfield Coal Company v. Miller, Zoning Inspector, 71 Abs 490, it is said:—

“Courts cannot pass upon the wisdom of a zoning ordinance, and the court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question.”

The relator has clearly violated the two quoted sections of the zoning ordinance by his laches and by his failure to obtain a permit to move the cottage.

In sub-section (b) of Section 1191.01 of the Codified Ordinances of the City of Eastlake as to Planning and Zoning, passed May 21, 1951, it is stated:—

“(b) Moving. A nonconforming building shall not be moved in whole or in part to any other location on the lot or other premises unless every portion of the building or structure which is moved is made to conform to all the regulations of the district in which it is to be located.”

For the foregoing reasons the relator’s petition is dismissed and the writ prayed for is denied.

NICHOLS, PJ, PHILLIPS, J, concur.