author: By SKEEL, PJ. By HURD, J.

text:
    FORE, a Minor, Petition, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24536.
    Decided July 10, 1958.

      McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Maurice F. Hanning, J. King Rosendale, of Counsel, for relator.
    Charles C. Redmond, for respondent.
   OPINION

By SKEEL, PJ.

This is an action invoking the original jurisdiction of the court wherein a petition has been filed seeking a writ of Habeas Corpus for the immediate release of Donald Peter Fore to the custody of the relator. The facts are not in serious dispute. The relator is the paternal grandmother of Donald Peter Fore, a minor of three years of age. She is a resident of Winnsboro, Louisiana. She is seventy-seven years of age. The respondent is now, and has been since her marriage to William Toth in 1954. a resident of Cleveland. She is a citizen of Germany and has not yet petitioned for United States citizenship. Donald Peter Fore is the son of Donnie Ray Fore and Franziska Anna Fore, now deceased, both parents having died in a common accident in Ingrandes, France, September 7, 1957. The respondent is the sister of Franziska Anna Fore.

Donnie Ray Fore was born in Winnsboro, Louisiana, December 19, 1922. He enlisted in the Army of the United States on July 8, 1941, and was continuously in the Military Service from that time until his death. His last enlistment was on May 3, 1956. The place of this enlistment, as indicated by the military records, was Ingrandes, France, where he was then stationed. In this enlistment, as in all previous enlistments, he gave his home address as Winnsboro, Louisiana. Donnie Ray Fore during his military service, attained the rank of Master Sergeant and at the time of his death on September 7, 1957, was serving in the Quartermaster’s Depot, Ingrandes, France. Sergeant Donnie Ray Fore was married in Goeggingen, Germany, August 6, 1952. Donald Peter Fore was born in the Military Hospital at Fort Lee, Virginia, on October 10, 1954.

Immediately after the death of Sergeant Donnie Ray Fore and his wife, Donald Peter Fore was cared for by the family of Master Sergeant Gross until October 24, 1957, when the respondent, who had flown to Germany after receiving notice of her sister’s death on September 14, 1957 (notice having been received from Mrs. W. C. Lee, sister of Donnie Ray Fore, who lived in Louisville, Mississippi), took possession of the child from an army officer. The respondent was then at the home of her parents in Germany.

After the respondent obtained possession of the infant, Donald Peter Fore, from the army representative, she brought him to the United States on November 18, 1957. Upon arrival in New York, she was served with a petition seeking a writ of Habeas Corpus for the release of the infant. This proceeding was instituted there by Ida Fore Tillery, a resident of Mississippi and who was a paternal aunt of Donald Peter Fore. The record shows that the writ was denied on November 25, 1957.

The respondent then brought Donald Peter Fore to Cleveland, Ohio, where he has since been maintained in her household.

On December 2, 1957, the respondent filed an application for letters of guardianship, alleging that the parents of Donald Peter Fore, aged three, October 10, 1957, residing at 9006 Laisy Avenue, Cleveland, Ohio, were deceased, and naming the maternal grandparents in Germany and this relator, Ella Fore, paternal grandparent, residing in Louisiana, as next of-kin. The application shows that the applicant (respondent here) is the maternal aunt and that the minor’s property consists of government insurance on the life of the deceased father. This application was granted forthwith without notice to anyone and letters of guardianship issued upon posting a bond in the sum of $4,000. The probate file discloses a letter from a lawyer in Germany, employed by respondent to assist her in getting possession of the child, advising immediate action in securing an order of guardianship in the Probate Court of the respondent’s residence, which letter included a copy of the journal of the Supreme Court of New York, County of Queens, dismissing the application for a writ of Habeas Corpus.

On April 11, 1958, the relator filed a petition in the Fifth District Court, Parish of Franklin, Louisiana, seeking an order of “tutorship” of the person of Donald Peter Fore and the right to the effects of said minor under the Law of Louisiana. The petition sets out that Ella Vernon Fore (relator herein) is a resident of the Parish of Franklin, State of Louisiana; that she is the mother of Donald (Donnie) Ray Fore, the father of the minor here concerned; that the father and mother of said minor died in a common accident in France where the father was serving as a member of the Army of the United States; that he had been a member of the Armed Forces of the United States since 1941; that his home and domicile when he entered the Armed Services was the Parish of Franklin, Louisiana, where it has remained ever since and until his death, and that the domicile of the minor continued after the death of his parents in the Parish of Franklin and State of Louisiana.

Some reference in this petition is made to the fact that after being consulted by the Army concerning the child after the death of its parents, she consented to an application being made by Ida Fore Tillery, a sister of the deceased, Donald Ray Fore, to seek guardianship of such minor, which application was filed October 18, 1957, in the Fourth Chancery District Court of Mississippi, and decree entered by that court appointing Ida Fore Tillery Guardian. It is also set out in said petition that on October 25, 1957, the United States Army wrongfully delivered physical possession of Donald Peter Fore to the respondent who was then in Germany and that she brought said infant to Cleveland, Ohio, where she now has physical possession of such child and wrongfully refuses to deliver the child to the petitioner.

Upon hearing of the relator’s petition for “tutorship” on April 11. 1958, the court appointed Ella Vernon Fore, guardian of said minor, Donald Peter Fore, as is shown by the record of such proceedings introduced in evidence in this case.

From the evidence, there can be no question, but that the domicile of Donnie Ray Fore was Winnsboro, Parish of Franklin, Louisiana, during his entire life. This was his domicile when he enlisted in the United States Army and there is no evidence that he, at any time during his sixteen years of service prior to his death, ever signified an intent to change such domicile.

In Vol. 18, page 171, Sec. 17, O. Jur. 2d, under the title “Domicile.” it is said:

“* * * Absence from home for years, where at the time of leaving there was an intention to return, does not, unless in the meanwhile that intention was destroyed by some unequivocal act signifying a purpose to change the domicile, defeat one’s right to claim his former residence as if it had never been interrupted by his absence. On no other principle could there be secured to officers in the Army and Navy on duty, public officials abroad and travelers in foreign parts, the right to enjoy on their return the privilege of voting where they had always resided or to claim the protection of their property from unlawful seizure in their absence. * * *” : ; ■■ 1 a-Ávi^¡

In the case of Glassman v. Glassman, 75 Oh Ap 47, 60 N. E. 2d 716, the court said in the second paragraph of the syllabus:

“2. The domicile of a person entering the armed forces of the United States remains the same throughout service in such forces unless a new domicile is voluntarily selected by such person.”

On the facts of the case just cited, the rule set forth in paragraph four of the syllabus is not applicable here. The general rule is that where the husband has a fixed domicile, recognized as such, the wife’s domicile is that of her husband.

The facts are very clear that the respondent set out while still in Germany to keep Donald Peter Fore as her child regardless of the wishes of other members of the family, even as to those who under the law of the state of the child’s domicile would have a prior right to such protective custody. The child’s domicile was unquestionably in the Parish of Franklin, Louisiana, U. S. A., at the time of and since the death of his parents which occurred in a common accident while his father was in the Armed Services. This is true for two reasons, first because a minor’s domicile is that of his father and second because courts hold that an infant takes the domicile of his paternal grandparents upon the death of both parents. See Lehmer v. Hardy, et al., 294 Fed. 407.

The claim that the court is acting on behalf of the State of Ohio as “parens patriae” under which theory mere residence of the child within the state would suffice to give the judge jurisdiction to adjudicate what is for the best interests of the child is not applicable here. The respondent brought the child here seeking the protection of this state in her attempt to keep the exclusive custody of the child for her own purposes. There has been as yet no contest as to what is for the best interests of the child, nor could such question be litigated in this state on the undisputed facts here presented Does the respondent suggest that the state of the child’s domicile, Louisiana, is incapable of seeing to its welfare? Does the respondent seek, should disaster again strike, to burden this state with the continued care of the child or would she then attempt to surrender his custody to the sate of his domicile? The suggestion that the relator, being seventy-seven years of age, is incapable of caring for the child, is not supported by the record in this case. The facts are that Ella Pore has raised nine children and one grandchild, some of whom have had very acceptable army careers.

In 4 A. L. R. 2d, beginning at page 7, is an annotation to the case of Wicks v. Cox, 208 S. W. 2d 876. On page 14, in dealing directly with the question here presented, it is said:

“Another theory which guides the courts’ thinking is that a custody award affects the status of the child — a permanent relationship, jurisdiction over which is in the court of the state of the child’s domicil, and'in that court only. Courts for support of this theory often cite and quote 2 Beale, Conflict of Laws, para. 144.3, where it is said: ‘Since custody of a child by one parent carries with it domicil and a domestic status, jurisdiction to give the child to one parent or the other depends in principle on the domicil of the child; and a state which is the temporary residence of the child, not the domicil, cannot confer the right to custody. A fortiori a decree for custody rendered in a state where the child is neither resident nor domiciled is void for lack of jurisdiction.’ This view is supported in the American Law Institute, Restatement, Conflict of Laws, para. 117 and 145-148. Theoretically, it would seem that the court of the child’s domicil should have power to determine its custody, since that sovereign is especially interested in the child’s welfare. 24 Harv. L. Rev. 142.”

In the case here being considered, it must be remembered that the controversy is not between parents. As is indicated in the annotation just cited, many times in disputes between husband and wife or in protecting an abandoned child, residence is sufficient to vest a court with jurisdiction. The legal right to the custody or the responsibility for the support and care of Donald Peter Fore as between the remaining members of his family has never been the subject of an action before a court of competent jurisdiction. The respondent just took the child without legal right or authority and with total indifference to all others equally entitled or with prior right to be considered in a proper action to be adjudged the guardian of such minor child.

The statute of Ohio authorizing the appointment of guardians is §2111.02 R. C. This section circumscribes the authority of the courts of this state in making such appointment to cases where the ward is “a resident of the county or has a legal settlement therein.” There is no claim here that Donald Peter Fore had a “legal settlement” in Cuyahoga County nor. do the facts justify a determination that he was, when the action was commenced, a resident of this state. The respondent had no authority to establish a residence here for such minor. In the case entitled In the Matter of the Petition for the Appointment of a General Guardian of Maude and Mabel Hubbard, Infants, 82 N. Y. 90, the court said in the headnotes:

“The Supreme Court has no jurisdiction to appoint a guardian for an infant where the infant is not within the jurisdiction, or domiciled there, and has no property therein.
“It seems, that if an infant is a resident within the jurisdiction, although not domiciled and having no property there, the court has power to appoint a guardian; so, also, property gives jurisdiction to appoint a guardian thereof, although the infant is out of the jurisdiction and a resident abroad.
“The bringing of an infant, however, into this State by stratagem for the purpose of giving jurisdiction, will not avail.
“On application for the appointment of a guardian for two infants, it appeared that the legal domicile of their father was in Rhode Island. One of them was, at the time of the application, in that State, and the other had been, a few days prior to that time, secretly taken without the knowledge of her father or her relatives from Rhode Island, and brought into this State for the purpose of bringing her within the jurisdiction of the court, and in aid of the proceedings. Neither of the infants had any property in this State. The Special Term appointed a guardian residing in this State; the General Term, on appeal, reversed the order and appointed a resident of Rhode Island as guardian. Held, that both appointments were erroneous; that the legal domicile of the infants was in Rhode Island, as the domicile of the father was the domicile of his infant children; and that the Supreme Court had no jurisdiction."

And in the case of Lehmer v. Hardy, et al., 294 Fed. 407, it is said in the headnotes:

“1. Where the maternal and the paternal grandparents of a minor, whose parents had been killed, resided in New York, a decree of the Supreme Court of the District of Columbia purporting,' under Code D. C. §150, to appoint a guardian of such minor’s person rendered in her absence without notice, held void, though the District of Columbia had been the domicile of her parents.
“2. Upon the death of a minor’s parents, the paternal grandfather becomes her natural guardian, and by virtue of the fact that he then stands in loco parentis he has the right to change or fix the minor’s domicile
“3. A minor, like any other person, is entitled to the protection of the laws of the state or territory in which he abides.”

and on page 411, the court said:

“3. Let that be as it may, however, we are quite convinced that the courts oí the District of Columbia have no authority to appoint guardians of the persons of infants who do not reside and are not domiciled within their territorial jurisdiction A minor, like any other person, is entitled to the protection of the laws of the state or territory in which he abides, and it seems to be well-settled that only the courts of the domicile have jurisdiction to appoint a guardian of the person of a minor. Wharton on Conflict of Laws, 259; Harding v. Weld, 128 Mass. 590, 591; In re Benton, 92 Iowa, 202, 60 N. W. 614, 54 Am. St. Rep. 546; In the Matter of Hubbard, 82 N. Y. 90; Lamar v. Micou, 112 U. S. 470, 5 Sup. Ct. 221. 28 L. Ed. 751.”

In the case of Shorter v. Williams, 74 Ga. 539, the syllabus provides:

“Where application was made for the guardianship of certain minors ip, the county where their father had lived and died, and where they were then domiciled, the court of ordinary thereby acquired jurisdiction to hear, determine and grant letters of guardianship for their persons and property; and this jurisdiction could not be divested or rendered nugatory by the removal of the minors to the state of Alabama by their sister, and the grant of letters of guardianship to another by the probate court of that state, pending the application in Georgia.”

See also Munday v. Baldwin, 79 Ky. 121.

The many cases on this subject, while not based on identical facts as are here presented, hold under similar circumstances that the domicile of an infant is that of its parents; that upon the death of both parents, the paternal grandfather, or if not living the paternal grandmother, becomes the natural guardian of a minor child; that such natural guardian has the power on thé death of both parents to change the domicile of a minor grandchild to that of his own, and a court of another jurisdiction has no power to oust the prior right of the court of the domicile of the infant thus situated from determining what is for the child’s best interest and appointing a fiduciary of the infant’s person and estate. Nor can the court of another jurisdiction take away the right of the paternal grandparent who, upon the death of both parents, stands in loco parentis to such child.

Here both parents were killed in a common accident in France only a very short time before the proceedings herein were commenced. The respondent got possession of the infant in Germany from an army officer. She is a maternal aunt. There are also two paternal aunts of equal standing in the United States, one being the relator in the unsuccessful proceeding in Habeas Corpus filed in New York when the child arrived in this country in the possession of the respondent, and who had an order of guardianship for the minor issued in a proceeding in the courts of Mississippi prior to the New York case. The dismissal of the petition for a writ of habeas corpus in the New York case (although the record is silent on the question) could have been for the same reason that the respondent should not prevail here. That is, the authority depended on as the basis for seeking custody was not from the state of the child’s domicile. The person nearest in consanguinity in the United States is the relator in this action. She is the paternal grandmother and a resident of, and holds a decree granting her the right of “Tutorship” of the child from the courts of the Parish and State of his domicile. Such court is the only judicial tribunal authorized to determine, under the facts in this case, the right of the custody of Donald Peter Fore.

From the foregoing facts, it is clear that the custodial order of the Probate Court of Cuyahoga County dependent on by the respondent was void when made for want of jurisdiction of the cause of action and of no legal effect and the writ here prayed for should issue.

KOVACHY, J, concurs.

HURD, J, dissents.

DISSENTING OPINION

By HURD, J.

I respectfully dissent from the judgment and opinion of my esteemed colleagues because, in my opinion, the judgment rendered deprives the Probate Court of its exclusive jurisdiction in the appointment of guardians.

The petition for a writ of habeas corpus should be dismissed because:

(If Petitioner is in the wrong forum, having an adequate remedy at law by the commencement of proper proceedings in Probate Court.

(21 This proceeding is a collateral attack upon the jurisdiction of the Probate Court.

(31 The appointment of the respondent, as guardian, was a proper exercise of jurisdiction by the Probate Court, there being no other guardianship proceedings outstanding in any other court of record, the respondent at the time of her appointment being a resident of this county and standing in the relationship of loco parentis, both factually and legally, to said minor child under an order of the Supreme Court of New York and by virtue of the statutes of Ohio.

(41 The order of guardianship having been lawfully made and the jurisdiction of Probate Court being plenary, exclusive and binding on all the world, the petitioner herein should seek her remedies in that court.

An examination of the soundness of the foregoing propositions requires a restatement of facts, some of which are not contained in the majority opinion, and an examination of the applicable principles of law.

Donald Peter Fore, the minor, was orphaned and made homeless by the tragic death of his parents, Master Sergeant Donnie Ray Fore, and his wife, Franziska Anna Fore, both of whom died as a result of an automobile accident. At the time of the accident Master Sergeant Fore, who was on duty with the United States Army, stationed at Ingrandes, France, was en route from his home to the United States Army Hospital in Chinon, France, where he was taking his wife for delivery of their second child. Sergeant Fore met death instantly but his wife, Franziska, survived him for a period of about five hours without regaining consciousness. The expected child was stillborn and both the mother and the child were buried at her parents’ home in Goeggingen, Germany.

The respondent, Mrs. Jacobine Toth, is a sister of the deceased, Franziska Fore, and the maternal aunt of the minor. Upon being notified of the death of the minor’s parents, the respondent made a trip by airplane to attend the funeral of her sister in Germany. After the funeral services, she sought the custody of the minor child and after some delay, while at her parents’ home in Germany, the child wfis delivered to her for return to the United States by order of the Department of the Army in France. This transfer was not accomplished until the Department of the Army had previously made an investigation of the conditions of the home of respondent in Cleveland, Ohio, by and through the American Red Cross which forwarded to its overseas field office a report favorable to the respondent in all respects.

The petitioner, the paternal grandmother of the minor, is a widow seventy-seven years of age who lives alone in her residence in Winnsboro, Louisiana, and who, according to testimony in the record, is suffering from rheumatism and high blood pressure.

The record shows that the respondent is a married woman, aged thirty-three, who lives with her husband, William Toth, .aged thirty-five, at 9006 Laisy Avenue, in the City of Cleveland, together with their minor child, aged twenty-two months, and Donald Peter Fore, now aged three and one-half years. After the child was delivered into her custody by the Department of the Army in France, the respondent embarked with the child by airplane for the United States. Upon arrival in New York on Sunday, the 19th of October, 1957, she was served with a summons for a writ of habeas corpus upon the petition of one, Ida Fore Tillery, aged approximately fifty years, an elder sister of Sergeant Donnie Ray Fore, who had been appointed guardian of the child on the 18th day of October, 1957, by the Court of Chancery of Amite County, Mississippi, with the consent and approval of the petitioner herein.

Upon hearing at a Special Term, Part One, of the Supreme Court of the State of New York, held in and for the County of Queens, at the Queens General Court House, the Honorable Nicholas Pette, Justice, ordered that the said writ be dismissed and made an entry as follows:

“Ordered that the custody of Donald Peter Fore, the child for whose production the said Writ was issued, be and hereby is granted to Jacobine Toth, * * * the maternal aunt of said infant.”

Thereafter, the respondent proceeded with the child to her home in Cleveland, Ohio, where she has cared for him continuously since that time. Thereafter, respondent made application to the Probate Court of Cuyahoga County for letters of guardianship, naming both the maternal grandparents residing in Germany and the paternal grandmother residing in Louisiana in said application, and upon appointment as guardian of the person and estate of said minor, December 2, 1957, qualified by giving bond in the sum of $4,000 as ordered by said court.

Thus the record clearly shows that the respondent has had actual custody of the child since October 24, 1957, first, through the order of the Department of the Army of the United States in France, secondly, through the order of the Supreme Court of the State of New York and thirdly, through the letters of guardianship issued by the Probate Court of this county.

The petitioner commenced this action on April 21, 1958, based on letters of tutorship issued to her by the Fifth District Court of the Parish of Franklin, State of Louisiana, on the 11th day of April, 1958, something over four months after the letters of guardianship were issued by the Probate Court of this county.

The petition herein is predicated upon the technical legal fiction of the common law that because the father of the minor child was born in Winnsboro, Louisiana, and resided there until he entered the Army at the age of nineteen years, he was at the time of his death domiciled in the State of Louisiana; that, therefore, the child is domiciled in Louisiana and the paternal grandmother is now entitled, as a matter of right, to guardianship of the child.

There are many facts and circumstances shown in the evidence which negative the contention of the petitioner that Sergeant Fore was, at the time of his death, domiciled in Louisiana. One fact is that when Sergeant Fore was stationed at Camp Polk, he established a residence in Colonial Heights, Virginia, and lived there with his wife for a period of approximately three years until he was ordered overseas to join the Department of the Army in France. At the time of his departure, he stored his furniture and at the time this hearing was had, the furniture was still stored there. The evidence in the record shows that whenever the question of future residence was discussed. Sergeant Fore expressed the intention, upon his release from the Army, to make his home in Virginia. This intention he expressed a number of times. He was serving his fifth enlistment at the time of his death and during this period stated a number of times that he did not want to go back to Louisiana upon the termination of his military career because he did not like the life he had lived there, and definitely stated that he did not want to live in Louisiana. It is also a fact that the mother of the child survived the father by some five hours and that she was never actually domiciled in Louisiana and that the child, whose guardianship is sought by the petitioner, never resided in Louisiana. Thus, if it should be conceded, arguendo, that the domicile of the father would be a controlling factor, the evidence fails to demonstrate clearly that Louisiana was, in fact, the domicile of the father at the time of his death in France.

However, the principal question presented for determination is whether the Probate Court of this county had jurisdiction to appoint the respondent the guardian of the minor child when it issued letters of guardianship on December 2, 1957. For it must be conceded that if the Probate Court acted within its jurisdiction, its appointment of a guardian for the minor child “binds all the world,” and that this court is without jurisdiction to entertain this proceeding in habeas corpus or to grant the writ.

It appears from the record that the child is now and has been a resident of Cleveland, Ohio, in the home of the respondent guardian since leaving New York City after the Supreme Court of New York denied the writ of habeas corpus instituted by Ida Fore Tillery and granted respondent custody of the said child in November, 1957.

While the Department of the Army was without authority to determine questions of guardianship or permanent custody, it is certain that it took a proper course of action after extensive investigation through the American Red Cross when it placed the child in the temporary custody of the respondent, the only next of kin from the United States present at the time, for the purpose of transporting the child to the United States. Therefore, the action of the Department of the Army in so doing cannot be deemed unlawful. However, be that as it may, it is certain that the Supreme Court of New York, by its order denying the application for a writ of habeas corpus to Ida Fore Tillery in the action instituted by her and by granting the custody of the child to the respondent, placed the respondent, factually and legally, in loco parentis to the child. It was necessary that such an order be made because the child at that time was a dependent child of tender years within the jurisdiction of the Supreme Court of New York, who needed a home, plus care comfort and sustenance. Consequently, the order there made, with all proper parties before it, was within the orbit of its jurisdiction.

The law in respect to the jurisdiction of the Probate Court in the appointment of guardians has been well defined and delineated by many authoritative decisions, a number of which are directly applicable to the facts of the instant case.

In Shroyer v. Richmond, 16 Oh St 455, decided by the Supreme Court in the December Term of 1866, it was held that plenary and exclusive original jurisdiction is given to the Probate Courts of this state in the matter of the appointment of guardians; that such proceedings are not “inter partes” or adversary in character; that they are properly proceedings in rem; and the appointment made in the exercise of jurisdiction binds ah the world; that Probate Courts of this state are courts of record belonging to that class whose records import absolute verity and that they are competent to decide upon their own jurisdiction; that an order of a probate court appointing a guardian in the exercise of its jurisdiction cannot be collateraly attacked and that the record, showing nothing to the contrary, it will be conclusively presumed in all collateral proceedings that such order was made upon full proof of all the facts necessary to authorize it. (See paragraphs three, four, five and six of the syllabus.)

In the later case of In re Clendenning, 145 Oh St 82, 60 N. E 2d 676, April 11, 1945, the Supreme Court approved and followed the principles set forth in the Shroyer case. Thereafter, in Weigel v. Grosenickle, 100 Oh Ap 106, 135 N. E. 2d 894, decided May 22, 1954 a case factually analogous in many respects to the instant case, the Court of Appeals for the First District, sitting in Clermont County based its decision on the Clendenning case.

The court had before it for decision an appeal from a refusal by the Court of Common Pleas to grant a writ of habeas corpus. In that case, the children were completely orphaned by the death of their surviving parent. It was stipulated that a paternal grandmother, residing outside the State of Ohio, and two aunts, residents of Hamilton County, Ohio, one being the appellant therein, appeared before the Probate Court of Clermont County and asked for custody of the children and were refused, prior to the appointment of the co-guardians therein, it was contended there that upon the death of the surviving parent the domicile of the minors became that of the nearest blood relative willing to stand in loco parentis to the children so as to deprive the Probate Court of jurisdiction to appoint a guardian. In the alternative, it was contended by the appellant that if the court had jurisdiction to make the appointment as co-guardian, she was entitled to the custody of the children so that the invoking of the jurisdiction of the Court of Common Pleas in habeas corpus had for its object a change of custody originally fixed by the Probate Court. The Court of Appeals declared at page 107 that “in either event petitioner is in the wrong forum,” and held that the principles decisive of the appeal were those set forth in In Re Clendenning, supra. (Emphasis added.) The syllabus of the case provides:

“Once a Probate Court properly appoints a guardian for a minor, exclusive, continuing jurisdiction upon matters of custody remain in that court, even though the minor has his. domicile in some other county or state.” (Emphasis added.)

The ratio decidendi of the court, as set forth at page 107, et seq., has, we believe, equal application to the facts of the instant case. After citing and quoting §2111.02 R. C., concerning the appointment of a guardian of the person, the estate or both, of a minor, the court cited Langan v. Kessinger, 23 Abs 392 (Oh Ap), saying that it was there squarely held that “a guardian may be appointed in Ohio even though the minor has his domicile in some other county or state, under the provisions of §10507-2 GC (§2111.02 R. C.).” (Emphasis added.)

The court then proceeded in its discussions as follows:

“The principles decisive of this appeal are set forth, in part, in In re Clendenning, 145 Oh St 82, 60 N. E. 2d 676:
“ ‘Plenary and exclusive, original jurisdiction is given by law to the Probate Courts of this state in the matter of the appointment and removal of guardians. (Shroyer, Gdn. v. Richmond, 16 Oh St 455, approved and followed.)
“ ‘2. A guardianship proceeding is a proceeding in rem and the exercise of jurisdiction by a Probate Court binds all the world (Ibid.)
“ ‘3. An order appointing a guardian made by a Probate Court in the exercise of its jurisdiction cannot be impeached collaterally. (Ibid.)
“ ‘4. Where petitioner has an adequate remedy at law a writ of habeas corpus should be denied. (Ex parte Justes, 121 Oh St 628, approved and followed.)’
“And, in the opinion, at page 92, it is stated:
“ ‘As stated in 39 Corpus Juris Secundum, 14, Sec. 4:
“ ‘A guardian appointed by a court of competent jurisdiction is always under the court’s control and is subject to its directions and supervision. This is so even though the guardian was nominated by the ward. The jurisdiction of the court in this respect is exclusive and a continuing one.’
“ ‘In 25 American Jurisprudence, 7, Section 2, it is said:
“ ‘The court having jurisdiction of a guardianship matter is said to be the superior guardian, while the guardian himself is deemed to be an officer of the court.’ ”
“It, therefore, appears that exclusive, continuing jurisdiction upon matters of custody rested in the Probate- Court, and the appellant has an adequate remedy at law in that forum, so that the petition in habeas corpus was properly dismissed, and the judgment of the lower court is affirmed.” (Emphasis added.)

We think that the principles of law declared by the Supreme Court in the Shroyer and Clendenning cases, supra, and the rationale of the unanimous decision of the Court of Appeals of the First District in Weigel v. Grossnickle, supra, are decisive of the issues in this case and require this court to dismiss the habeas corpus proceeding because here, as in the Weigel case, the habeas corpus proceeding has for its object, change of custody originally fixed by Probate Court.

While it is not necessary to look outside of Ohio for authorities on the jurisdiction of a court of record to appoint a guardian of the person of a child resident in a state, it may be noted that in 4 A. L. R. 2d at page 16, there is the following pronouncement:

“Where there is no outstanding judicial award of custody by a foreign court the courts are nearly unanimous in holding that even though the children may be domiciled without the state, power in the court exists to make an award of custody of children present in the state in furtherance of the welfare of the children.” (Emphasis added.) (Citing numerous authoritative decisions of other jurisdictions.)

And on the same page, second column, it is stated:

“According to this view, technical legal domicil of a child within the state is not a sine qua non of child custody jurisdiction on the part of the court.” (Citing and discussing numerous cases of guardians.)

To the same effect, see also Finlay v. Finlay, 240 N. Y. 429, 148 N. E. 624. where it was held in an opinion by Cardozo, J., that:

“The jurisdiction of a State to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless. For this, the residence of the child suffices though the domicile be elsewhere.”

In the instant case, there was no outstanding judicial award of custody by a foreign court at the time the letters of guardianship were issued by the Probate Court of Cuyahoga County. The letters of guardianship issued to Ida Fore Tillery by the Probate Court of Amite County, Mississippi, were adjudicated in the habeas corpus proceeding instituted by said Ida Fore Tillery in the Supreme Court of New York and no appeal was prosecuted from the judgment of that court.

It is important to note also that the petitioner in the instant case consented to the appointment of Ida Fore Tillery in the Mississippi Court and that the letters of guardianship issued in Mississippi were later abandoned -by reason of the application of the petitioner herein for letters of tutorship in Louisiana a considerable time after the judgment of the Probate Court here was entered appointing the respondent guardian.

Turning now to the statutory law of the State of Ohio in respect to the appointment of guardians, §2111.02 R. C., insofar as is applicable reads as follows:

“When found necessary, the Probate Court on its own motion or an application by any interested party shall appoint a guardian of the person, the estate, or both, of a minor.' * * * provided the person for whom the guardian is to be appointed is a resident of the county or has a legal settlement therein.”

Under this section, the court has jurisdiction to appoint a guardian provided the person for whom the appointment was made is a resident of the county or has legal settlement therein. We have heretofore stated that at the time of the application for appointment, the facts showed that the minor was a resident of this county, having a legal settlement therein, living with the respondent herein who was granted custody by the Supreme Court of New York.

Sec. 2151.06 R. C., reads as follows:

“Under §§2151.01 to 2151.54, inclusive, R. C., a child has the same residence or legal settlement as his parents, legal guardian of his person, or his custodian who stands in the relation of loco parentis.” (Emphasis added.)

This section has application to the facts of the instant case because under §2151.04 R. C., the child involved was a dependent child and the respondent herein, at the time of her appointment as guardian by the Probate Court, stood in the relation of loco parentis to said child, which relationship has continued up to the present time.

It is true that this provision of the Code forms part of what is known as the Juvenile Court Act. The petitioner raises objection on the ground that this section relates only to Juvenile Court and has no application in guardianship proceedings in Probate Court. This objection of the petitioner cannot be successfully maintained because, as has been heretofore pointed out, plenary and exclusive original jurisdiction is given to the Probate Courts of this state in the matter of the appointment of guardians. Shroyer v Richmond and In re Clendenning, supra. Obviously, the Juvenile Court is not vested with jurisdiction to appoint guardians. That jurisdiction resides exclusively with the Probate Court. It should be observed that §2111.02 R. C., in respect of the appointment of guardians, is general in character and is applicable to the appointment of guardians of all classes of persons, whereas §2151.06 R. C., a part of the Juvenile Court Act, has application to minors only and, consequently, has application to the appointment of a guardian for the dependent child in this case.

In the case at bar, the minor was made a dependent child by the tragic death of his parents. The definition of dependent child set forth in §2-151.04, sub-section A, R. C., is one “who is homeless or destitute or without proper care or support through no fault of his parents * * Here death of both parents wrote the final chapter and created an emergency which brought the child within the provisions of the statute. The legislature has determined by the provisions of §2151.06 R. C., that dependent children are entitled to guardianship and that the child has the same residence and legal settlement as his “custodian who stands in the relation of loco parentis.” (Emphasis added.) It follows perforce as a matter of fact and of law that the respondent stood in the position of loco parentis to said child at the time of her appointment as guardian by Probate Court, and that the child’s residence and legal settlement was at the time of the appointment, in Cuyahoga County, and that the Probate Court acted properly and within its jurisdiction in appointing a guardian for said child in this jurisdiction.

It must be concluded that the Probate Court, under the provisions of §§2111.02 and 2151.06 R. C., properly exercised its jurisdiction in its appointment of a guardian of the person and estate of the minor and, therefore, the Probate Court is the proper forum in which to present the issues in this habeas corpus proceeding.

From this we must conclude, as was concluded by the Court of Appeals of the First District in the Weigel case, supra, that exclusive, continuing jurisdiction on matters of custody resides in the Probate Court of this county and that the petitioner herein has an adequate remedy at law in Probate Court, so that the petition in habeas corpus, filed as an original action in this court, should be dismissed. In the Clendenning case, supra, the court held, as appears by paragraph five of the syllabus, as follows:

“5. Sec. 10507-61 GC (§3111.47 R. C.), provides an adequate remedy for the removal of a guardian and the exclusive method for the exercise of original jurisdiction in such a proceeding.”

Sec. 10507-61 GC, now §3111.47 R. C., applied to wards other than minors. The present statute applying to guardianship of minors is §3111.46 R. C., and in substance contains the same remedies for the removal of guardians as are contained in §2111.47 R. C., which applies to other than minors. Therefore, it follows that §2111.46 R. C., provides an adequate remedy to the petitioner and is the exclusive method afforded petitioner rather than by a proceeding in habeas corpus in this court.

For the foregoing reasons, the petition for habeas corpus, filed as an original action in this court, should be dismissed on the ground as heretofore stated — that the petitioner has an adequate remedy at law by the commencement of proper proceedings in the Probate Court of this county.


source: Caselaw Access Project

author: By McBRIDE, J.:

license: Public Domain

text:
    GARRISON, Plaintiff, v. CITY TRANSIT COMPANY, Defendant.
    Common Pleas Court, Montgomery County.
    No. 113511.
    Decided April 29, 1958.

      Sharts, Singer & Brown, for plaintiff.
    Landis, Ferguson, Bieser & Greer, for defendant.
   OPINION

By McBRIDE, J.:

(This copy was reduced to include only that portion relating to pleading municipal ordinances.)

1 Allegations in pleadings of municipal ordinances, which are the same as state regulations, have frequently disturbed the uniform application of other statutes governing the pleading and the trial of negligence cases. The instant motion to strike such allegations questions the propriety of this practice. The ordinances alleged are replete with conclusions .of law and standards of care which are considered prejudicial.

It is a fundamental rule of pleading that only the facts be alleged. The law may be set forth only when it is not judicially recognized and when such law is essential to the cause of action and the pleader relies thereon.

It is an anomaly in the development of code pleading that a plaintiff must plead city ordinances, but the defendant is not required to do so. Schulte v. Johnson, 106 Oh St 359, 140 N. E. 116: Knisely v. Community Traction Co., 125 Oh St 131, 180 N. E. 654; Hanna v. Stoll, 112 Oh St 344, 147 N. E. 339. And in certain circumstances it is error to reject an unpleaded ordinance, offered by the plaintiff. Meek v. Pennsylvania Co., 38 Oh St 632.

As was indicated many years ago public statutes “must be noticed by the court.” It is “unnecessary to aver and prove what is provided for by general statute, * * * it would be highly improper to do so, as the tendency would be too great prolixity and much additional expense.” State v. Perry (1834) Wright’s Ohio Supreme Court Reports. This rule was recognized when code pleading was adopted.

In recent years municipal corporations, motivated by a desire to retain fine money, incorporated state statutes controlling motor vehicles into local ordinances. Does the adoption by a municipality of such ordinances change the rules of pleading and open the door to the practice of alleging in haec verba the same general law which the court must judicially recognize?

Pleading such ordinances violates the uniform rules governing pleading. evidence and procedure, injects redundant issues and otherwise creates confusion in the trial. The action of the municipal corporation in effect has been construed by some to authorize in pleadings that which is prohibited by the general statutes.

This court is one of general jurisdiction and judicially recognizes the state statutes and instructs the jury thereon even though there may be a similar municipal ordinance. These statutes are before the court without pleading or proof. We do not believe that a municipal corporation may change this situation by the enactment of identical ordinances. Where there are two, identical legislative requirements, one of which was enacted by an inferior body, this court may properly refer only to that legislation which is superior and comparable with its own jurisdiction. Under such circumstances city ordinances are unnecessary surplusage.

A municipal ordinance must be pleaded if it is essential and necessary to the plaintiff’s cause of action, but where such ordinance is not actually necessary no reason exists for its presence in a pleading.

In considering this question one cannot escape observing that allegations of this character are also argumentative, legal conclusions, and prejudicial. Unnecessarily pleading city ordinances is designed solely to parade the law before the jury.

Allegations of fact are within the area of discretion of the trial judge. Municipal ordinances are paraded hei;e on the basis of right: that they are really facts. Since this court must recognize the same law from the state statutes, pleading an identical municipal ordinance constitutes repetition. In addition there can be no prejudice in striking allegations of fact containing municipal ordinances which are identical to the statutes. We therefore conclude in the interest of proper pleading under §2309.04 R. C., that it is necessary to exercise the discretion of the court by striking allegations of municipal law which are identical to the statutes of this state.


author: By THE COURT.

text:
    MULLINEAUX, Plaintiff-Appellee, v. GARY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5446.
    Decided April 23, 1956.

      E. S. Morton, Columbus, for plaintiff-appellee.
    Walter R. Hill, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

The record discloses that on September 9, 1955, the Court sustained the plaintiff's motion to distribute the appeal bond money which nad been deposited with the Clerk, the appeal having been dismissed. The Court decreed that “the sum of $1500.00 deposited with the Clerk by defendant as an appeal bond be awarded to the plaintiff as damages incurred” by reason of the appeal; that on September 20, 1955, a motion for a new trial was filed which was overruled on December 12, 1855. On December 28, 1955, notice of appeal was filed.

The appellee is now seeking an order dismissing the appeal, asserting that the same was not filed within twenty days after order was made and that the filing of the so-cailed motion for a new trial did not extend the time in-which a notice of appeai should have been filed.

See. 2321.17 R. C., provides that a new trial “is a re-examination, in the same Court, of the issues after a finai order, judgment, or decree by the Court.” In passing upon the motion, one of the issues was the extent of the plaintiff’s damages because of the appeal not being properly brought. This was a factual question, the determination of which we think was subject to re-examination upon a motion for a new trial being filed. We therefore conclude that the notice of appeal was seasonably filed. Sec. 2595.07 R. C.

It is next urged that the case is not appealable on questions of law and fact and an order is sought seeking a dismissal of the appeal for this reason. The action was one in forcible entry and detainer which is not so appealable under §2501.02 R. C. The motion is well taken but under Rule VII of this Court the appellant would be permitted to perfect an appeal on questions of law in accord with said rule provided the questions presented have not become moot. This question is also raised in the motion asserting that the judgment has been fully executed. We have no proof of this fact other than the appellee’s statement in the brief. Since this statement of fact is not denied by the appellant, we assume it is correct, and, if so, the appeal should be dismissed for this reason. See 3 O. Jur. 2d, 539.

This branch of the motion is sustained.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By GESSAMAN, J.

text:
    DAVID DAVIES, INC., Plaintiff, v. SENSENBRENNER et, Defendants.
    Common Pleas Court, Franklin County.
    No. 190446.
    Decided January 25, 1957.
    Russell Leach, City Atty., Alba L. Whiteside, Asst. City Atty., for defendant.
    John L. Davies, for plaintiff.
   OPINION

By GESSAMAN, J.

The petition in this case was filed against the defendant, Maynard E. Sensenbrenner and five other individuals as members of the Board of Health of the Columbus Ohio City Health District and the City of Columbus.

On November 7, 1956, all of the defendants, except the City of Columbus, Ohio, were dismissed by mutual agreement.

The substance of the petition is that during the period between May l, 1947 and October 31, 1953. the plaintiff paid to the defendant, City of Columbus, the sum of $145,785.95, as inspection fees for the inspection of meat and meat products, all of which fees were assessed against plaintiff by virtue of the provisions of Regulation 70-2 and the amendments thereto, adopted by the Board of Health of the Columbus City Health District on and subsequent to November 30, 1947. The plaintiff prays judgment against the defendant, City of Columbus, in the amount above indicated.

The answer of the defendants sets up five defenses, the first one of which is a general denial. The second one alleges that there was sufficient authority for the establishment of meat inspection and the fees charged therefor. The third defense alleges that these inspection services were accepted by the plaintiff; that such inspections were a necessary adjunct of the plaintiff’s business; that the inspection services were reasonably worth the sum paid by the plaintiff and that by reason of these facts, the plaintiff is estopped to deny the validity of the assessments. The fourth defense is that the plaintiff is guilty of laches and the fifth defense sets up the defense of the Statute of Limitations.

It is conceded that this law suit was inspired by the decision of the Court of Appeals of this district in the case of Brunner, d. b. a. etc. v. Rhodes, Mayor et al, 95 Oh Ap 259; 53 O. O. 193. A motion to certify the record in that case was overruled by the Supreme Court on October 21, 1953. In that case the Court of Appeals held that a city board of health was without authority to prescribe a regulation requiring the payment of inspection fees by meat packers. The plaintiff, it is alleged and admitted, operates a meat packing plant. The fees involved in that case are the same type and were levied and assessed under authority of the same regulation as those in the case at bar.

In the last paragraph of the opinion in the Brunner case, we find the following language:

“It may be that because of our findings, plaintiffs, as a matter of law, are entitled to an order requiring the defendants to return the money paid to them as inspection fees under the ordinances. We are disposed to exercise whatever discretion we have in refusing to make such an order as to all sums paid under protest, first, because it would be futile, and, second, because it would not be equitable. The plaintiffs have received full value for the funds paid for inspections. * * *”

Considering the fact that the Brunner case was an action for a declaratory judgment, it would seem, at first blush, that the language of the Court of Appeals would be authority for a recovery of the fees paid, in an action at law. It is true that the Court of Appeals held that the inspection fees, which had been paid by the plaintiffs in the Brunner case, were paid under protest and were therefore involuntary payments. Since the payments made by the plaintiff in the case at bar were made with substantially the same type of protest, we conclude that they likewise were involuntary payment. We consider it quite essential, however, that this Court carefully weigh the language of the Court of Appeals in the Brunner case, to the effect that it would not be equitable to order the return of the money paid to the plaintiffs as inspection fees for the reason that the plaintiffs “have received full value for the funds paid for the Inspections.” The same finding must be made in the case at bar. We base that conclusion not upon the finding of the Court of Appeals in the Brunner case alone, but also upon paragraph 14 of the Agreed Statement of Facts which discloses that 85% of the meat and meat products sold by David Davies, Inc. were sold in cities and communities where the inspection of meat was required either by regulation or ordinance, ox by the stores to which the meat and meat products were sold. The Agreed Statement of Facts further substantiates that the meat inspection service was rendered in full during the period in question.

These facts, in our opinion, give rise to the application of a principle which was enunciated by the Supreme Court of Ohio in the case of State, ex rel. Hunt, Prosecuting Attorney, v. Fronizer et al, 77 Oh St 7, at page 16 of the opinion:

“This court is of opinion that such recovery is not authorized. The principle applicable to the situation is the equitable one that where one has acquired possession of the property of another through an unauthorized and void contract, and has paid for the same, there can be no recovery back of the money paid without putting, or showing readiness to put, the other party in statu quo, and that rule controls this case unless such recovery is plainly authorized by the statute. The rule rests upon that principle of common honesty that imposes an obligation to do justice upon all persons, natural as well as artificial, and is recognized in many cases. Chapman v. County of Douglas, 107 U. S. 348; Lee v. Board of Commissioners, 52 C. C. A., 376; Bridge Co. v. Utica, 17 Fed. Rep., 316.”

It is true that in the Fronizer case, the Prosecuting Attorney was attempting to recover for the county, money which had been spent under a void contract. That is the reverse of the situation involved in the case at bar. The principle, however, in our opinion, is the same, and applies equally to the case at bar. The plaintiff, David Davies, Inc., acquired possession of something of value which had been performed by the Board of Health of the City of Columbus under a regulation which later was declared to be void. It is impossible for the plaintiff to put the Board of Health in status quo. Therefore, under the principle announced in the Fronizer case, there should be no recovery. As the Supreme Court said: “The rule rests upon the principle of common honesty that imposes an obligation to do justice upon all persons, natural as well as artificial, and is. recognized in many cases.” This rule was followed in the case of Herzig et al, v. Hunkin Conkey Construction Company. 60 Abs 313. In the latter case Judge Carter makes the following observation in his concurring opinion on page 316:

“The rule that the plaintiffs must place, or show readiness to place the other party in statu quo, applies to actions based on fraud, as well as violations of the statutes or ordinances by public officials in the entering into the same. To this effect see Donnelly on Public Contracts, paragraph 248, page 360, where the author states that the prevailing rule is to this effect.”

In view of the fact that the plaintiff has received full value for the funds paid for inspections and in view of the further fact that it is obviously impossible for the plaintiff to put the defendant, Board of Health, in status quo, it is our opinion that the rule of the Fronizer case should be applied and that the plaintiff should be denied the right to recover the money paid for inspection.

There is a further reason why the plaintiff may not recover in the case at bar. In the case of State, ex rel. Mowrer v. Underwood et al, 137 Oh St 1, we find the following syllabus:

“When the state, by legislative enactment, withdraws from cities the health powers previously granted to them and transfers them to newly created city health districts, such health districts become agencies of the state government, and their employees are governed by state law.”

The opinion of the Supreme Court as to status of City Health Districts is declared with no uncertainty in the following language found on page 5 of the opinion:

“This, in our opinion, evidences a legislative intent to withdraw from municipalities the powers of local health administration previously granted to them, and to create in each city a health district which is to be a separate political subdivision of the state, independent of the city with which it is coterminus, and to delegate to it all the health powers thus withdrawn from municipalities. As such, the city health district becomes an agency of the state and is governed by the laws of the state.”

The Court of Appeals of this district in the case of Brunner v. Rhodes, supra, recognized this same fact in the use of the following language found at page 272 of the opinion:

“Especially is this true inasmuch as the Hughes and Griswold Acts made the health districts which they created agencies of the state government. State, ex rel. Mowrer, v. Underwood et al, Civil Service Commission of the City of Akron, 137 Oh St 1, 27 N. E. (2d), 773.”

As early as 1921 the Supreme Court considered the health laws in question in the case of State, ex rel. City of West Park v. Zangerle, Auditor, 103 Oh St 566. In this case the City of West Park by an action in mandamus was seeking a writ commanding the Auditor to turn over to it, the City of West Park, certain monies collected by him. At page 584 of the opinion, the Court held as follows:

“If it should be conceded that this contention is sound, then we think it is clear that under the statute the health district would be entitled to the money, and not the municipality.”

The fact that the fees involved in the case at bar were paid by the plaintiff to the Treasurer of the City of Columbus is of no importance for by virtue of the provisions of §1261-38 GC. “The treasurer of a city which constitutes a health district shall be the custodian of the health fund of such city health district.” The Treasurer of the City of Columbus, therefore, in accepting and receiving the fees from David Davies, Inc., was accepting and holding them as custodian of the health fund of the “City Health District.” He did not receive or hold them for the City of Columbus.

In addition to providing that the Treasurer shall act as custodian of the funds of the Health District, the General Assembly also provided in §1261-38 GC, that the auditor of a city which constitutes the City Health District, shall act as the auditor of the City Health District It provided further in the same section that the expenses of a board of health or health department of a city health district, shall be paid on the warrant of the auditor of the city issued on vouchers approved by the Board of Health or the Health Department of the City Health District and signed by the City Health Commissioner. Furthermore, in §4418 GC. the Legislature provided in part that “all fines collected under this chapter shall be paid to the treasurer of a municipality and credited to the Sanitary Fund of the Board of Health instituting the prosecution.”

It is true that §4451 GC, provided that “When expenses are incurred by the board of health under the provisions of this chapter, upon application and certificate from such board, the council shall pass the necessary appropriation ordinances to pay the expenses so incurred and certified.” The duty thus imposed upon the council of a city does riot, in our opinion, alter the independent status of a city board of health. Sec. 4451 GC, was in effect when all of the decisions above referred to were handed down.

It is our opinion, therefore, that all of the monies paid by David Davies, Inc., as meat inspection fees during the period in question were paid to the Treasurer of the City of Columbus as custodian for the Columbus City Health District and that the latter was a political entity separate and apart from the City of Columbus.

In Par. 16 of the Agreed Statement of Facts, it is stipulated that “all of the fees collected from meat inspection were dispersed in payment of the expenses of the Meat Inspection .Division of the Board of Health in the same manner as were all disbursements made by the City of Columbus and the deficit was paid by additional appropriation from the General Fund of the City of Columbus.” Granting that we may assume that because of the receipt of fees by the Board of Health, the defendant, City of Columbus, received smaller demands for appropriations under the provisions of §4451 GC, and thereby received some indirect benefit from the fees that were paid by David Davies, Inc., we are of the opinion that such indirect benefit, if any, cannot be the basis of a judgment against the City of Columbus for the amount of the fees paid by the plaintiff. A judgment against the City of Columbus could not be based upon such an indirect benefit.

Counsel for the plaintiff have contended that the meat inspection service was a city operation because of, among other things, three ordinances passed by the council of the City of Columbus as set forth in Exhibits E, F and G, which are attached to the Agreed Statement of Facts. Exhibit E is Ordinance No. 204-47 “to establish a meat inspection fund.” The substance of this ordinance is that all meat inspection charges paid to the City Treasurer shall be credited to the Meat Inspection Fund and that the City Auditor be authorized to establish such fund. Exhibit F is Ordinance No. 286-47 “to make appropriations for the seven months period beginning June 1, 1947, and ending December 31, 1947, for the Meat Inspection Fund.” This ordinance appropriated monies from the Meat Inspection Fund to certain operating purposes specified in the ordinance and provided the methods by which the money would be withdrawn from the funds. In view of the status of the City Health District, it is questionable as to whether or not this ordinance was essential. It does not however, alter the independent status of the City Board of Health. The same observation may be made of Exhibit G which is Ordinance No. 2-48 “to establish certain divisions in the Department of Health and Sanitation and provide for appropriations thereto.” None of these acts of City Council could change the status of the City Board of Health.

It is our opinion, therefore, that the defendant, City of Columbus, is not and cannot be held liable for the monies paid by the plaintiff to the City Treasurer as custodian for the City Board of Health.

For the reasons given, it is our opinion that the plaintiff may not recover in this action. In view of the fact that a jury has been waived and the case has been submitted to the Court upon the pleadings and the Agreed Statement of Facts, the Court finds in favor of the remaining defendant, the City of Columbus. An entry may be drawn accordingly and exceptions noted.


author: By GRIFFITH, J.

text:
    GRONBACH, Plaintiff-Appellee, v. MILLAR, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23076.
    Decided July 16, 1957.

      Sheldon Clark, Sheldon Portman, for plaintiff-appellee.
    Merkel, Campbell, Dill & Clarke, for defendant-appellant.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District; GRIFFITH. J, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

By GRIFFITH, J.

The appeal to this Court is on questions of law and fact, and the case was submitted upon a transcript of the evidence taken in the Court below.

A detailed recital of the facts is unnecessary. Only such facts as are essential to our decision will be included in this opinion.

The plaintiff and the defendant are immediate neighbors, each deriving title to their respective parcels of land from a common owner, Jean G. Brainard. Mrs. Brainard owned a large tract of land and sold 25 acres of the tract to the plaintiff, and 7 acres to the defendant, the deeds to the same having been executed on the same day, to wit, November 11, 1945.

Prior to the execution of these deeds, numerous discussions, conferences, and meetings between the parties to this action, as well as their respective attorneys, regarding roads, property lines, tool house, water pump, etc., had been held.

This action rests upon an easement which was reserved by Mrs. Brainard in her deed to the defendant, Millar, for the benefit of the plaintiff. Plaintiff claims that the defendant has failed to comply with this covenant of easement.

The defendant filed a counter claim raising issues as to alleged torts by the plaintiff unrelated to the road easement involved in this case. The torts alleged cannot be made the basis of a counter claim as they do not grow out of the contract upon which suit has been brought. Evidence of such torts, at most, would be limited to the matter of damages or mitigation of damages.

The following provisions were inserted in the deed from Brainard to the defendant. Millar:

“The grantor reserves to John H'. Gronbach, his heirs, successors and assigns, a right of ingress and egress over the roadway extending easterly from Falls Road to the easterly line of the property herein conveyed which is the westerly line of property conveyed this day by the grantor to John H. Gronbach.
“Should the grantee, his heirs, successors and assigns, change the location of the present roadway, the easement herein above reserved with respect to the present roadway shall be released and discharged upon the condition that the grantee, his heirs, successors and assigns shall grant to the owner of the dominant easement a similar right of ingress and egress over the said new roadway. “The grantee herein furthermore covenants by the acceptance of this deed that the present roadway or any new roadway subject to the aforesaid easement shall be maintained in a good and passable condition by the grantee, his heirs, successors and assigns.”

This covenant has proven to be the breeding place for suspicion and discord between these two parties ever since, or even before, it was drafted. It required the defendant to maintain the existing roadway leading in from Falls Road over defendant’s 7-acre parcel of land to plaintiff’s land or, if defendant changed the location of the roadway, said new roadway was subject to the easement and “shall be maintained in good and passable condition by grantee.”

In 1948, the defendant saw fit to change the location of the road and constructed a new roadway, barricaded the old one, and notified plaintiff to use the new way. The old road leading in from Falls Road was over level ground and straight. The new road the defendant constructed was over a steep hill and on a curve.

Plaintiff complains that the new roadway did not, and does not, comply with the terms of the above covenant in that, at times, it is unsafe and impassable due largely to (1) poor surface, (2) steep grade, and (3) sharp curves.

The defendant, Millar, was given the absolute right to relocate the easement over his land. In so doing, however, he was required to provide “a similar right of ingress and egress over the said new roadway, and the new roadway shall be maintained in a good and passable condition."

The question is whether the new roadway complies with the covenant in Millar’s deed. This new road leads from the private drive of the plaintiff to the north a distance of about 137 feet from the drive to the plaintiff’s barn; it has an overall average grade of 13.6%; it has a drop of 19 feet from the main driveway down to the level of the road in the stable area; at one point it has a maximum of 17% grade, and the unfortunate part of it is that the steepest grade is to be found at the sharpest curve, and at this point also is to be found extremely steep slopes from the roadsides down, the slopes being 1 to 1, when they should be a minimum of 1 to 2, according to good engineering practice

In support of plaintiff’s contention, he offered 5 witnesses, while the defendant, in support of his answer and cross-petition, presented 6 witnesses. One of the witnesses called by the plaintiff was his caretaker, Richard Mann. In reference to this new road, he said, “It was kind of steep, and the worst feature was a pretty bad bend as you come to almost the top about two-thirds of the way up.”

One of the witnesses called by the defendant was Mr. Bayard T. Wright, a civil engineer of long standing, who made a profile of the new road for the defendant, and said, in reference to the new road, “I would say it is safe with caution.”

This Court had a view of the premises, thereby enabling it to better understand the testimony and the numerous exhibits. There is testimony both ways on the question of whether the new roadway is in a good and passable condition. The issue is essentially a factual issue.

A reading of the record leaves no doubt in the minds of this Court as to the action that should be taken. The terms of this easement seem to be clear. Any intelligent man, whether he be lawyer, engineer, business man. or farmer, should know what a good and passable roadway is and should understand the language of the covenant in defendant’s deed.

We hold that the new road is not in good and passable condition; that the grade thereof is excessively great, the curve too sharp, and the slope insufficient; that defendant should reconstruct the new road in such a manner that the grade at no point shall exceed 12%; that the curve at no place shall fall short of a radius of 200 feet, and that the slope therefrom shall be at least one foot down to two feet laterally and surfaced or resurfaced in such fashion as to render it a good and passable road, or in the alternative, to open and maintain the old road in accordance with the deed covenant.

Two incidental questions may be touched upon in passing, to wit, damages, as prayed for by each party against the other; we hold that neither is entitled to damages as against the other. There may be a decree for plaintiff in accordance with the findings of this Court. Counsel for plaintiff may prepare an entry in accordance with this conclusion. Motion for a new trial, if filed, will be overruled. Decree for appellee.

HUNSICKER, PJ, DOYLE, J, concur.


author: By LEACH, J.

text:
    LAKEWOOD (City), Plaintiff, v. THORMYER, Director of Highways, Defendant.
    Common Pleas Court, Franklin County.
    No. 197298.
    Decided April 1, 1957.

      Ashley M. Van Duzer, Cleveland, George E. Feder, Director of law, Lakewood, Raymond H. Treffinger, Columbus, for plaintiff.
    William Saxbe, Atty. Genl., Hugh E. Kirkwood, Jr., Asst. Atty. Genl., for defendant.
   OPINION

By LEACH, J.

Plaintiff, City of Lakewood, seeks a permanent injunction to prevent defendant as acting Director of Highways, from conducting a hearing upon his proposal for the relocation, establishment of limited access and abandonment of parts of State Route No. 2 and State Route U. S. No. 6, in the cities of Lakewood and Rocky River, Cuyahoga County, Ohio, under the purported authority of Chapter 5511 R. C.

At a hearing on February 15, 1957, we granted a temporary injunction, ana at the same time this cause was submitted to the Court on defendant’s motion for judgment on the pleadings. It was agreed and understood at that time by respective counsel that in ruling on such motion, the Court should consider not only the petition but also the five exhibits introduced into evidence by the plaintiff, such exhibits being merely supplementary to the allegations of the petition.

The petition originally named as defendant Samuel O. Linzell, but it appearing that Mr. Linzell had resigned as .of February 7, 1857, his successor in office was substituted by agreement as the party defendant.

The petition reads in part as follows:

“Now comes plaintiff and says it is a municipal corporation duly organized under the laws of Ohio, and situated in Cuyahoga County, adjacent to and west of Cleveland; that it brings this action to protect its sovereign and governmental rights and powers; that defendant is the duly appointed and acting Director of Highways of Ohio; that State Route No. 2 and State Route U. S. No. 6 are duly dedicated public highways which proceed together through the Cities of Lakewood and Rocky River in Cuyahoga County, Ohio; that the City of Rocky River, Ohio, is adjacent to and west of Lakewood; and that the boundary between said municipalities is the center line of the Rocky River.
“Over a period of years there have been discussions among the defendant, including his predecessors in office, the County Commissioners of Cuyahoga County, and the Cities of Rocky River and Lakewood concerning the question whether and, if so, what steps should be taken to facilitate the movement of traffic across Rocky River.
“On or about March 24, 1952, the Board of County Commissioners of Cuyahoga County and the defendant’s predecessor in office entered into a contract providing for the employment of engineers, who, in April of 1953 recommended that a new bridge and approaches thereto across Rocky River be constructed in a new location within the City of Lakewood, different from the location of the present bridge and approaches thereto and different from the location of any existing route, highway, street or road within the City of Lakewood.
“Plaintiff thereafter immediately notified defendant that it did not consent to the construction of said bridge and approaches and, on November 30, 1954, plaintiff’s City Council adopted a resolution setting forth its opposition thereto and the reasons therefor, a copy of which was promptly furnished defendant.
“Plaintiff says that on December 2, 1954, pursuant to a request of its County Engineer, the Board of County Commissioners of Cuyahoga County called upon the defendant to proceed with the construction of the proposed bridge and approaches without the consent of plaintiff; that on October 27, 1955, the County and the defendant entered into a contract in which defendant stated his intention to use his powers under §5521.01 R. C., and to construct said bridge and approaches, and covenanted and agreed that public necessity required its construction in the location recommended as aforesaid; that on August 15, 1956, plaintiff received from defendant notice of a hearing to be held in Cleveland on August. 31, 1956 for the purpose of hearing arguments on the proposáis therein set forth, which were that when the provisions of Chapter 5511 R. C., had been met and a proper entry made on the defendant’s Journal, the new bridge and approaches would be constructed in the exact location recommended by said engineers; that plaintiff filed a petition for writ of prohibition on August 24, 1956 in the Supreme Court of Ohio against the defendant from holding such a hearing; that the Supreme Court forthwith issued an alternative writ restraining the defendant from holding said hearing; but on December 26, 1956 dismissed the petition on the ground that prohibition was not the proper remedy; that as soon as said dismissal became final, the defendant issued another notice, identical in form with the prior notice, of a hearing to be held in Cleveland on February 19, 1957 for the purpose of hearing arguments on the same proposals, which were that when the provisions of Chapter 5511 R. C., had been met - and a proper entry made on the defendant’s Journal, the new bridge and approaches would be constructed in the exact location recommended by said engineers and that stated portions of State Route No. 2 and U. S. Route No. 6 would be relocated and established as a limited access highway and other portions abandoned when the proposed relocation was accepted.”

It perhaps should be noted that the acts alleged to have been done by “defendant’s predecessor in office” were done by T. J. Kauer, Mr. Linzell’s predecessor in office, and those alleged to have been done by “defendant” had reference to- Mr. Linzell.

The petition continues with the contentions (which obviously are conclusions of law and in no way binding on this Court in its ruling on the instant motion) that no statute other than §5511.01 R. C., authorizes the Director to conduct any hearing with respect to a highway with a municipal corporation and that this statute with respect to highways within a municipal corporation provides for a hearing only for the purpose of considering a change in route from one to another existing highway; that if construed to authorize the Director to conduct such hearing, and to make use of such hearing in aid of the construction of said bridge and approaches over Lakewood’s objection, such statute is unconstitutional as contravening the provisions of Article XVIII, Section 3, Ohio Constitution, which confers on municipalities all powers of local self-government; and that plaintiff is without an adequate remedy at law.

We have examined not only the briefs filed by respective counsel in this case but also the briefs filed in the Supreme Court in the case of State, ex rel. City of Lakewood v. Linzell, 166 Oh St 98. The instant case diflers from that case only in that (1) there Lakewood sought (a) not only to prevent an identical hearing purportedly under §5511.01 R. C., but also (b) to prevent the Director from proceeding under §5531.01 R. C., with the construction of such bridge without the consent of the city, while here the city does not directly pray for the latter relief and (2) there relief was sought by prohibition and here by injunction.

In its brief in the Supreme Court, Lakewood contended that injunction was not available in that injunction is for the protection of property rights while Lakewood in seeking to protect not a property right, but a governmental right, citing as authority several cases including the case of Link v. Karb, 89 Oh St 326. Basically, the claim, of Linzell was that Lakewood had a plain and adequate remedy in the ordinary course of law by virtue of the provisions for appeal contained' in §5531.01 R. C.

The Supreme Court, in a Per Curiam decision, stated:

“Section 2, Article IV, Ohio Constitution, confers on this court original jurisdiction in prohibition. This court has refused to issue the high prerogative writ of prohibition, however, in instances where there exists a plain and adequate remedy in the ordinary course of law. State, ex rel. Nolan, v. ClenDening, 93 Oh St 264, 112 N. E., 1029; State, ex rel. Harrison, a Taxpayer, v. Perry, Coroner, 113 Oh St 641, 150 N. E. 78; State, ex rel. Heine, v. Busher, Chief Justice, 164 Oh St 519, 132 N. E. (2d), 459.
“Relator contends the remedy of injunction is not available to it because the right it sues to protect is neither a property right nor a private right but is a governmental right, and that equity jurisdiction does not extend to such rights. Relator cites Link v. Karb, Mayor, 89 Oh St 326, 164 N. E., 632, in support of its position. The basis of the decision in the Link case seems to be that, since the control of elections is a political matter rather than judicial, a petition alleging illegalities in the conduct of an election, at which a proposition to issue bonds was submitted to the electors of a city, presents no case authorizing a court of equity to interfere by injunction to prevent the issue of such bonds, on the theory that the contest of the election is merely incidental to the suit. I ¡I,
“The view we take here, however, makes it unnecessary to' decide whether the rights of relator can be amply protected by an action for injunction. ; |
“Sec. 5511.01 R. C., provides that the Director of Highways shall make no change in the route of any highway through a municipal corporation except after notice and hearing. Relator’s petition alleges that notice was received by it from the director of a hearing to consider certain proposals with regard to the construction of the new bridge and approaches There is no claim by relator of a defect in form of the notice, but only a claim of the director’s lack- of jurisdiction to proceed with the hearing. !
“Reiaror alleges also that the director has contracted with the commissioners of Cuyahoga County to use his powers under §5521.01 R. C., to proceed with the construction of the bridge.
“Sec. 5521.81 R. C., provides in part:
“ ‘The Director of Highways * * * may establish, construct, reconstruct, improve, widen, maintain, or repair any section of state highway within the limits of a city * * * but in all cases he shall first obtain the consent of the legislative authority of such municipal corporation.
“ '* * * If the legislative authority fails to act or refuses consent, the director may upon consideration of the reasons for rejection make a resolution declaring the necessity of said improvement which shall be spread upon his journal and then proceed in the same manner as if consent had been given. A certified copy of said resolution shall be served upon the municipal legislative authority which may, within 20 days from the date of said service, appeal to the Court of Common Pleas of the county in which such municipal corporation is situated, upon the reasonableness and necessity of the action provided for in the resolution.’
“Assuming that the Director of Highways, following the hearing which nas been set under §5511.01 R. C., does not reach a conclusion in accord with the desire of relator but instead decides to proceed, in accordance with his contract, with the new construction, and assuming that the relator refuses its consent when requested, the question arises as to whether the relator can adequately protect its rights under the appeal provided for in §5521.01 R. C.
“Relator contends that the appeal provided for is inadequate because the Common Pleas Court may pass only upon the reasonableness and necessity of the proposed improvement and not on its legality. With this contention we cannot agree. The appeal provided for here is not to a board of experts which will pass upon the engineering feasibility of the proposal but to a court, the function of which is to rule on matters of law. To say that the question of the constitutionality of a statute can not be raised in determining the reasonableness of an act done pursuant to that statute would be to deny a concept that has been deeply engrained into our system of jurisdiction. We are not prepared to say that reason has so departed the law that it can exist without its basis m legality.
“We do not believe we should depart from the policy of refusing the prerogative writ of prohibition where there is an adequate remedy by way of appeal, even though resort to the writ is more expeditious than the comparatively extended appellate procedure.”

Thereafter, Lakewood filed an application for rehearing, contending in effect that even if it had an adequate remedy at law from any proceeding by the Director under §5521.01 R. C., by virtue of the appeal provided by that statute, its petition had also sought relief to prevent the Director from conducting a hearing under §5511.01 R. C., and that the latter section provided for no appeal from such a hearing. The Supreme Court denied the application for rehearing.

We believe it clear therefore that the Supreme Court necessarily held that the appeal provided by §5521.01 R. C., was an adequate remedy at law by which the rights of Lakewood could be protected not only as to any proceeding under §5521.01 R. C., but also as to any hearing under §5511.01 R. C. In fact, we believe that the Supreme Court so held in clear and unambiguous language when they stated:

“Assuming that the Director of Highways, following the hearing which has been set under §5511.01 R. C., does not reach a conclusion in accord with the desire of relator but instead decides to proceed, in accordance with his contract, with the new construction, and assuming that the relator refuses its consent when requested, the question arises as to whether the relator can adequately protect its rights under the appeal provided for in §5521.01 R. C.”

We perhaps should state that independently of the conclusion of the Supreme Court in this regard, we are of such opinion. The basic relief sought by Lakewood, both in the Supreme Court and here, is to prevent the Highway Department from constructing a new highway bridge between Lakewood and Rocky River and the construction of a new'highway within the corporate limits of Lakewood. Regardless of any action which the Director might take after a hearing under §5511.01 R. C., such bridge and new highway cannot be constructed unless and until the Director proceeds further in accordance with the provisions of §5521.01 R. C., at which time, if the parties are still in dispute, the entire controversy may be determined in an appeal to the Common Pleas Court' of Cuyahoga County as there provided.

The decision of the Supreme Court was based on the principle that prohibition should not issue in instances where there exists a plain and adequate remedy in the ordinary course of the law. The same is true as to injunction. Injunction, too, should not issue where there is a plain and adequate remedy in the ordinary course of the law. 21 O. Jur., page 1012. On this basis alone and independently of the other issues presented herein, therefore, we must conclude that Lakewood is not entitled to the injunctive relief sought. Defendant’s motion for judgment on the pleadings therefore is sustained.

We do not desire to predicate our decision herein solely on such basis however. We also are of the opinion that the hearing, as scheduled by the Director, is authorized by the provisions of §5511.01 R. C.

Lakewood asserts that §5511.01 R. C., as tó highways within municipalities. permits a hearing only to consider a change in route from one existing highway to another. The statute contains no such specific provision Lakewood arrives at such a conclusion, however, on the basis that the seventh paragraph thereof provides that “No change in the route of any highway through a municipal corporation shall be made except after notice and hearing.” Lakewood contends that there is a basic distinction between the establishment of a highway or a change in a highway and a change in the “route of any highway,” and that the only change permitted by the language of this particular paragraph is a change in route; that a change in route of necessity must be a change from one existing highway to another.

The second paragraph of this same statute, however, authorizes the Director to “establish and designate additional state highways or change existing highways after notice and hearing,” and the third paragraph provides that before “establishing any additional highways” or “making any change in existing highways” of the state highway system, the Director shall hold a hearing which shall be open to the public after notice of the time and place of such hearing which “notice shall state the l’oute of the proposed highway or the change proposed to be made in an existing highway of the system.” Such language, of course, must be read in pari materia with the provisions of §5501.02 R. C., paragraph (A), which authorizes the Director to “establish state highways on existing roads, streets, and new locations” and the provisions of §5501.11 R. C., which authorizes the Director, among other things, to relocate and establish any road or highway “on the state highway system.” Especially when so read, we believe it clear that the language of the second and third paragraphs of §5511.01 R. C., not only authorizes but requires a hearing prior to the establishment of a state highway not only on an existing road or street but also on a “new location.”

But, contends Lakewood, in effect, the second and third paragraphs of §5511.01 R. C., have no application to state highways within municipal corporations and we must look only to the provisions of the seventh paragraph as to the powers of the Director with respect thereto. We cannot so conclude. We find no language in the statute which, by its terms, would make the provisions of these two paragraphs inapplicable to highways in municipal corporations. We must determine “legislative intent” in such respect by the language actually employed. Furthermore, to so conclude would mean that there would be no requirement at all of a hearing “open to the public” in the event of the establishment of a state highway in a new location within a municipal corporation with the consent of such municipality, since the third paragraph of §5511.01 R. C., is the only statute containing such -a requirement. We cannot conclude, in the face of the language actually employed, that the General Assembly, as to the establishment of a new highway in a municipality, intended that public notice and hearing be dispensed with and that such be permitted merely by the consent of the legislative authority of the municipality and the action of the Director. In our opinion the language actually employed permits the public generally to be heard at the public hearing so provided and such public hearing is required as a condition precedent to any action of the Director in establishing any additional highways or making any changes- in existing state highways within and without municipal corporations and with or without the consent of the municipal corporation if otherwise allowed by statute.

Here the Director gave notice of a hearing on a proposal for (1) “the relocation and establishment of a limited access highway for State Route No 2 and U. S. Route No. 6 situated in the cities of Rocky Riyer and Lakewood, Cuyahoga County, Ohio;” (2) “the extension of State Route No. 254 as a ramp connection with relocated State Route No. 2 and U. S. Route No. 6, situated in the City of Rocky River, Cuyahoga County. Ohio:” (3) “the abandonment of existing State Route No 2 and U S. Route No. 6 situated in the cities of Rocky River and Lakewood, Cuyahoga County, Ohio, same to revert to the Rocky River and Lakewood street systems at such time that the corresponding new section of the above mentioned proposed relocation is accepted and opened to traffic”; and (4) “the extension of State Routes Nos. 254, 113 and 237 situated in the cities of Rocky River and Lakewood, Cuyahoga County, Ohio,” each of such proposals being described therein in detail.

It must be borne in mind, we believe, that the authority of the Director to construct a highway within a municipal corporation, even with the consent of the municipality, is limited to construction of “any section of state highway within the limits of a city.” Thus the area of construction must be legally designated as a part of the state highway system before any construction .is authorized. This obviously is the purpose and the sole purpose of the hearing as proposed under §5511.06 R. C. Within the area of Lakewood such designation, in and of itself, will not permit the Director to proceed with construction. He must then obtain the consent of Lakewood, or failing to obtain that, determine to proceed in accordance with the “federal and primary highway provisions” of the second paragraph of that statute. If such be done. Lakewood is eiven the right to appeal to the Common Pleas Court of Cuyahoga County.

To enjoin the Director from proceeding with one of the procedural steps required by law as a condition precedent to actual construction would mean that the Director would be precluded from even attempting to exercise the statutory authority given to him by §5521.01 R. C., or from following the procedure set forth therein. Sec. 5531.02 R. C., limits the expenditure of federal funds to “the highways comprisng the state highway system, or upon the extension of such highways into and through municipal corporations.” Sec. 5521.01 R. C., as heretofore noted, authorizes the Director, even with the consent of the municipality, to construct only within “any section of a state highway.”

Before 1947, the Director had no power in any event to construct a state highway within a municipal corporation without consent of the legislative authority of the municipal corporation. By the amendment of,§1178-42 GC (§5521.01 R. C.), 122 Ohio Laws 416, effective September 18, 1947, the General Assembly authorized the Director to relocate a state highway within a municipal corporation under certain conditions there stated, without local consent, but subject to appeal by the municipality to the Common Pleas Court of such county. To accept the contentions of Lakewood made herein, such amendment and the further amendment of such provision in 126 Ohio Laws 203, effective September 30, 1955, as a matter of legislative intent was meaningless in view of the failure of the General Assembly to grant any authority to the Director for the relocation of a state highway within a municipal corporation, such authority being allegedly limited to the authority granted in the seventh paragraph of §5511.01 R. C., to a “change of route” to an already existing highway. As heretofore stated, the language actually employed does not support such contention and surely a court should not interpret such language to arrive at such an incongruous result in the absence of clear and unambiguous language compelling such an interpretation.

Lakewood also asserts that to construe §5511.01 R. C., as permitting a hearing as a step which might ultimately authorize highway construction in a municipality, without the consent of the municipality, would be in contravention of the “home rule” powers under Article XVIII, Sec. 3, Ohio Constitution. Here, of course, we have not a question of legislative policy, which policy is expressed by clear and unambiguous language in the second paragraph of §5521.01 R. C., but the specific question as to the constitutionality of the 1947 amendment of §1178-42 GC, as later again amended by the 1955 amendment of §5521.01 R. C. As to this claim it is clear from the decision of the Supreme Court, that Lakewood has an adequate remedy in the ordinary course of the law by way of the appeal provided by §5521.01 R. C. In any event, we can see no basic difference between the constitutional authority of the General Assembly to provide for the construction of a highway in the nature of a toll road or turnpike through a municipal corporation without consent of local authority and the constitutional authority to provide for such construction of a state highway. In that connection we quote from the opinion in State, ex rel. Allen, v. Ohio Turnpike Commission, 158 Oh St 168 at page 174:

“The respondent complains that the relator commission has not obtained the consent of the municipalities and other political subdivisions through which the turnpike will pass and that this is in violation of the right of municipal home rule conferred by Sections 3 and 7, Article XVIII, Ohio Constitution. However, those powers relate to ‘local self-government.’ The construction of a turnpike across the state hardly can be considered a matter of local self-government.”

As stated in State, ex rel. Kauer, v. Defenbacher, 153 Oh St 268, expenditures for the study of a turnpike project are part of the “state’s share of the cost of constructing * * * the state highways of this state.” In our opinion, therefore, the decision of the Supreme Court in the Allen case is dispositive as to the constitutional “home-rule” claim of Lakewood since both the type of highway here involved and the turnpike are but parts of the “state highways of the state.”

For the reasons heretofore stated, we conclude that plaintiff is not entitled to the injunctive relief sought. The temporary injunction heretofore issued, therefore, is dissolved, the motion of defendant for judgment on the pleadings is sustained, and final judgment is rendered for the defendant at the costs of the plaintiff. Entry may be prepared accordingly, reserving exceptions to the plaintiff.


text:
    LAKEWOOD (City), Plaintiff-Appellant, v. THORMYER, Director of Highways, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5683.
    Decided October 2, 1957.
    Arter, Hadden, Wykoff & Van Duzer, Ashley M. Van Duzer, Special Counsel, William R. Hapner, Jr., of Counsel, Cleveland, George E. Fedor, Director of Law, Lakewood, Porter, Stanley, Treffinger & Platt, Raymond H. Treffinger, of Counsel, Columbus, for plaintiff-appellant.
    William Saxbe, Atty. Genl., Hugh E. Kirkwood, Jr., I. Charles Rhoads, Asst. Atty. Genl., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

The court has carefully considered the assignments of error, the briefs and oral arguments of counsel and is of the opinion that none of the. assigned errors is well taken, the sixth, which raised the question of the constitutionality of §5511.01 R. C., having been withdrawn. Judge Leach in a lengthy, well-considered opinion, discussed all of the legal questions presented and which we feel requires no further elaboration or explanation, as no useful purpose would be served.

The court is in full accord with the same and the judgment is ordered affirmed.

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