author: By McBride, j.

text:
    HAMMOND, Plaintiff, v. YOUNG et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 106581.
    Decided December 14, 1953.

      George J. Donson, Dayton, for plaintiff.
    Mathias H. Heck, Dayton, for Montgomery County Board of Elections.
    Herbert S. Beane, Dayton, for the City Commission of Dayton.
    Pierce Wood, Dayton, for defendants.
   OPINION

By McBride, j.

This case was submitted on a statement of facts pursuant to §2315.24 R. C., such additional facts as the court indicates herein are judicially recognized, the arguments and briefs.

The only pleading, designated as a submission of agreed case, reads as follows:

“1. Howard L. Hammond is a taxpayer, residing in the City of Dayton, Ohio.
“2. Howard C. Young, Fred L. Van Allen, Albert A. Horstman and Pierce Wood are the duly appointed, qualified and acting members of the Montgomery County Board of Elections.
“3. Louis W. Lohrey, Howard R. Malone, Merle P. Smith, John C. Csipkar and Henry S. Stout are the duly elected, qualified and acting members of the City Commission of Dayton, Ohio.
“4. Under Sections 48 and 49 of the General Ordinances of the City of Dayton, adopted in 1911, the City of Dayton is divided into twelve wards. .
“5. Due to shifts of population and annexation of new territory to the City, the area and population of said wards are unequal.
“6. Sec. 731.06 R. C. provides:
“ ‘The legislative authority of a city shall, after each recurring federal census, and within three months after the issuance of the proclamation by the secretary of state of the population of the city, and when there is annexed thereto any territory containing, according to the last federal census, such number of inhabitants as .will entitle the city to an additional member of the legislative authority, subdivide the city into wards, equal in number to the members of the legislative authority therein to be elected from wards. If the legislative authority fails to make such subdivision within the time required, on the application of its president, it shall be made by the director of public service. All wards shall be bounded, as far as practicable, by county lines, streets, alleys, corporation lines, center lines of platted streets, or railroads, and shall be composed of adjacent and compact territory, as nearly equal in population as practicable.’
“7. The Charter of the City of Dayton provides that the City shall have all those powers theretofore granted to it by the Legislature. The Charter is attached hereto and made a part hereof.
“8. The Board of Elections has been advised by the City Law Director that since the City Commission of Dayton no longer is elected on a ward basis, no reason exists for the City Commission further to concern itself with wards and ward boundaries.
“9. Sec. 3501.18 R. C. provides:
“ ‘The board of elections may divide a political subdivision, within its jurisdiction, into precincts or districts and may change the boundaries thereof. The election returns shall be compiled and reported by the board according to such precincts or districts.’
“10. Sec. 3501.11 (p) R. C. provides that the Board of Elections shall ‘perform such other duties as are prescribed by law or the rules of the Secretary of State.’
“11. Acting under said sections and under its general powers, the Board of Elections has made the necessary changes in creating new precincts and adding them to existing wards each time a tract has been annexed to the City of Dayton since 1911. However, no new wards were ever created by resolution or otherwise. Such action has not been protested by the taxpayer herein or by any other taxpayers.
“12. To equalize the size of the wards and to facilitate the establishment, re-arrangement and combination of election precincts, the Board of Elections of Montgomery County, Ohio, has passed a resolution increasing the number of wards from twelve to eighteen and re-drawing their boundaries.
“13. The taxpayer has challenged this action on the part of the Board of Elections claiming that it does not have the power and authority to create new wards and to re-draw ward boundaries.
“WHEREFORE, the partiees hereto unite in submitting the foregoing facts to the Court for its judgment upon the following questions:
“1. Is the resolution of the Board of Elections referred to in Paragraph 12 valid?
“2. If the answer to question 1 is in the negative, does the City Commission of Dayton, Ohio, have the power to create new wards and re-draw ward boundaries within the City of Dayton?
“3. If the answers to questions 1 and 2 are in the negative, what governmental body possesses the power to create new wards and re-draw ward boundaries within the City of Dayton?”

In the election code, a political subdivision is defined as a county, township, city, village or school district. Precinct is defined as “a district within a county established by the board of elections of such county within which all qualified electors having a voting residence therein may vote at the same polling place.” No definition is provided for “ward” or “district.”

“Ward” is of teutonic origin and has a variety of meanings all of which spring from the general idea of a military guard or protector. Thus a section of a hospital or prison is identified as a ward. Probably in this sense, the word was adopted to include one of the sections into which a town is divided “for election purposes” and as used here it has few legal implications. The person elected from such section is considered a protector of a geographical part as distinguished from the city as a whole. Ballentine’s Law Dictionary defines ward as “A person over whom or over whose property a guardian has been appointed; a municipal district; in English cities, a municipal district under the supervision of an alderman; the service of guarding a castle.” A ward is a local geographical subdivision of a city or village. State v. Gora, 195 Wis. 515, 218 N. W. 839. For convenience, municipal corporations are usually divided into boroughs or wards, and in larger cities into precincts, sanitary, police, sewer, park and other districts. Wards do not possess any power of local self government although districts frequently do. Wards exist exclusively for the purpose of securing local group representation in large city governments and in the last century, securing representation in political parties. Wards are merely convenient territorial divisions for that purpose. Establishing or changing wards is a legislative act and authority to perform it must be found in constitutions or statutes. McQuillin on Municipal Corporations, 3rd Ed., State v. Milwaukee, 150 Wis. 616, 138 N. W. 76.

“District” derives its meaning and significance from the latin, meaning jurisdiction. The word describes a special geographical area over which specific authority, executive, legislative or judicial is exercised by properly constituted officers. The word usually expresses this significant meaning in the statutes although it sometimes has a general meaning. Examples are found in judicial, school, sanitary, sewer, flood, park and other districts, the geographical area of which is determined by an enabling act or by vote of the people.

The board of elections has complete control over the establishment and regulation of precincts, the vital operating unit by which voting is conducted and reported. The board is thus able to adjust mechanics of reporting to ever changing lines of ward, city, village and districts within the county.

'For over a century, wards have been and still are the legal units recognized for the purpose of electing councilmen for the legislative bodies of Ohio cities. Political organizations were built upon this framework of local subdivisions. For example, §3517.03 R. C. provides that a county central committee shall consist of one member of each ward in the city. During all of these years, the right to change wards has remained with a legislative body as distifiguished from an administrative agency. It is significant that in early times the county commissioners had power to subdivide townships so that boundaries of precincts corresponded with those of wards of a city. Act of March 4, 1853 (2 S. & C. 1573), State v. Ward, 17 Oh St 544.

Election laws avoid reference to wards, other than accepting them as areas which exist within municipal corporations.

Recognition of the development and importance of the wards will be observed by comparison of the Constitution of Ohio of 1802 with that of today:

“* * * but no person shall be entitled to vote, except in the County or district in which he shall actually reside at the time of the election.” now reads:
“Every citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections.” (Art. V, Sec. 1 as amended November 6, 1923.)

It will be observed that local residential requirements for voting are “county, township, or ward” and not precinct.

Adjustment of the size of wards has been a matter of municipal control for over a century. Laws governing municipal corporations were codified May 7, 1869 (66 Ohio Laws 149). Section 407 provided that annexed territory may be “organized into a new ward or wards, or attached to any existing ward or wards, as the council may deem proper.” This was reenacted in Section 1630 of the Revised Statutes of 1880. In 1893, a section was enacted which provided that “upon such annexation, the board of legislation shall, by ordinance, provide for the division of such annexed municipality .or municipalities into wards.” This was the condition of the statutes when the Court of Common Pleas of Hamilton County, State v. Cincinnati, 3 O. N. P. 127, sustained the method of establishing wards for villages annexed to Cincinnati and indicated that “representation by population is the settled policy of the State of Ohio, and under this policy there should be an approximate equality of voters in representative districts.”

Title VII, Chapter 731 of the Revised Code now provides that the legislative power of a city shall be vested in a legislative authority, composed of not less than seven members, four of whom shall be elected by wards and three of whom shall be elected by electors of the city at large. Sec. 731.02 (4206 GC) R. C. This section sets up a schedule by population for additional members. Since the federal census revealed a population of 243,872 in 1950, Dayton would be entitled to 23 councilmen, 19 of whom would be elected by wards and four at large. Schedule in Weinland’s Ellis’ Ohio Municipal Code, 8th Edition (1929); Zumstein v. Mullen, 67 Oh St 382.

Creation of additional wards required by annexation or increased population within a municipality has for many years been consolidated in §731.06 (4212 GC) R. C., which reads as follows:

“The legislative authority of a city shall, after each recurring federal census, and within three months after the issuance of the proclamation by the secretary of state of the population of the city, and when there is annexed thereto any territory containing, according to the last federal census, such number of inhabitants as will entitle the city to an additional member of the legislative authority, subdivide the city into wards, equal in number to the members of the legislative authority therein to be elected from wards. If the legislative authority fails to make such subdivision within the time required, on the application of its president, it shall be made by the director of public service. All wards shall be bounded, as far as practicable, by county lines, streets, alleys, avenues, public grounds, canals, watercourses, municipal corporation lines, center lines of platted streets, or railroads, and shall be composed of adjacent and compact territory, as nearly equal in population as practicable.”

Chapter 705 of the Revised Code which contains provisions for the various plans for the organization of municipal governments frequently refers to wards. Wherever councilmen are to be elected from representative areas of the city, the statute requires the council to divide the municipality into wards.

1.

The first question presented in this case is whether or not the resolution of the Board of Elections increasing the number of wards from twelve to eighteen and re-drawing their boundaries is a valid order. There is no express statute or direct authority granting such power. To sustain the action of the Board, we are asked to construe the word “district” in §3501.18 R. C. to include “ward,” despite the fact that §3501.01 R. C. defines precinct as a district. Because of recodification and an amendment, it is necéssary to consider both versions of §3501.18 R. C. The present version, effective until December 31, 1953, reads as follows:

“The board, when it deems it necessary for election administration purposes, may divide a political subdivision, within its jurisdiction, into precincts or districts and may change the boundaries thereof. The election returns shall be compiled and reported by the board both according to such precincts or districts.”

The first sentence means that the board may divide a political subdivision either into precincts or districts. Organization into one form eliminates use of the other.

The second version of §3501.18 R. C., effective January 1, 1954, eliminates the word “district,” and reads, in part, as follows:

“The board of elections may divide a political subdivision, within its jurisdiction, into precincts and establish, define, divide, rearrange, and combine the several election precincts within its jurisdiction and change the location of the polling place for each precinct as often as necessary * * *.”

The purpose of the amendment is clear. It increases the control of the board over precincts and removes the confusion arising from the use of an undefined word which encouraged the board to adopt the present resolution.

In the absence of a clear grant of authority, this section cannot defeat the power of a municipal corporation nor operate to increase that of the Board of Elections.

Our conclusion on the first question is that wards are legislative creatures of local, municipal convenience. The Board of Elections is an administrative agency and may not usurp legislative functions of a political subdivision. The board has no authority to establish or change boundaries of wards within a municipality and the resolution attempting to do so is void.

2.

The second question presented is whether the City Commission of Dayton, Ohio, has power to create new wards and re-draw ward boundaries within the City of Dayton. This question arises under the Charter because members of the Commission are elected at large and not from representative areas.

Prior to the Charter, Dayton exercised statutory control over wards, the last ordinance having been adopted March 13, 1911. Section 48 provided:

“That the City of Dayton, State of Ohio, be and it is hereby subdivided into twelve wards, which are equal in number to the members of Council, who are hereafter to be elected from wards according to law and said twelve wards are hereby created and established in this City, and the boundaries thereof shall be such as are hereinafter set forth, which boundaries are so fixed as that each ward shall contain as nearly as practicable an equal number of inhabitants.” Sec. 1: Ord. 8547.

Section 2 of that ordinance, now identified as Section 49 of the Code of General Ordinances of the City of Dayton, described the boundaries and fixed the geographical area of the twelve wards. This ancient and obsolete description of wards in Dayton has never been modified or repealed except as to such increases as resulted from formal annexations which were not formally incorporated into existing wards.

The “home rule” amendment to the Constitution of Ohio was adopted September 3, 1912, and pursuant to that amendment, Dayton adopted its City Charter on August 12, 1913.

When Sections 48 and 49 were adopted by the Council in 1911, it was a matter of public knowledge and law that the ordinance performed two functions: (1) the election of members to the City Council and (2) the election of ward committeemen for representation on committees of the two political parties. The first function ceased upon the adoption of the Charter in 1913.

Section 166 of the Charter, as originally adopted and still in effect, provides,

“AH ordinances and resolutions in force at the time of the taking effect of this charter, not inconsistent with its provisions, shall continue in force until amended or repealed.”

Many remarkable men, including experienced lawyers, participated in the preparation, adoption and early experiences under the Charter. City officials never removed Sections 48 and 49 as being inconsistent with the Charter. On the contrary, these sections have been included in every revision of the Code of General Ordinances of the City of Dayton, including the compilation and publication of the ordinances of a general and permanent nature in effect March 15, 1940. (Loose leaf edition.) This continued acceptance indicates an opinion of the framers of the Charter and city officials to date that the existence of the section creating twelve wards was performing a continuing useful function not inconsistent with the purpose of the Charter.

At the same time it must be conceded that the same parties failed to keep the sections up to date when territory was annexed.

The “home rule” amendment to the Constitution authorizes a municipality to adopt a charter for its government and to exercise ALL POWERS OF SELF GOVERNMENT. Article 18, Section 7.

It cannot be said that the Dayton Charter is lacking in enabling power. The Charter includes many worthy purposes, including “promoting the peace, good government and welfare of the city and for the performance of the functions thereof,” which could very well have been intended to include regulation of wards. Section Two of the Charter follows with the inclusion of “all other powers which, under the Constitution and laws of Ohio, it would be competent for this Charter specifically to enumerate.”

With respect to the statutory authority, it is significant that the Charter expressly enumerates such powers as “now are, or hereafter may be granted to municipalities by the * * * laws of Ohio.” It is a statute that gives every other city the power to regulate wards and in its Charter, the city unmistakably includes such statute.

As to wards established by Sections 48 and 49, it is the opinion of the court that they were not disturbed by the adoption of the City Charter. A somewhat similar condition existed in Cleveland when the people amended the charter to include the following:

“The division of the city into wards existing at the time of the adoption of this amendment, shall continue until changed by the council as provided herein * *

The court in Morrow v. Cleveland, 73 Oh Ap 460, 29 O. O. 136, said that the people expressed an intention to adopt and reestablish the ward boundaries as they were created under the Charter of 1914 even though such wards had not been used for the election of members of council. Judge Skeel wrote:

“But the charter of 1921 did not have the effect of disturbing the wards as previously defined, except that they no longer were the basis upon which membership in the city council was to be determined. It is a matter of common knowledge that ward organizations retained their identity and continued as integral parts of our major political parties as provided by law and that the wards as created under the authority of the charter of 1914, after the census of 1920, were used in the conduct of all elections, local, state and nation, except for that of councilmanic candidates.”

Morrow v. Cleveland is also authority to judicially recognize facts surrounding the adoption of a city charter as well as the fact that ward organizations retained their identity and continued to exist as a vital and integral part of our political government within a municipality. This court also recognizes that since 1911, wards in Dayton have changed disproportionately in population and in area so that there is no longer any semblance of equality.

In State v. Stewart, 52 Neb. 243, 71 N. W. 998, the court stated that

“Attention has been called to the repeal of Section ten of the old law, which provided for the dividing of the city into wards, and from the fact of such repeal it is argued that ward lines have been effectually destroyed and obliterated, and the authority to create others is taken away. * * * We are constrained to hold that while the repeal of said Section 10 de- - stroyed or took away the authority to create wards, it did not have the effect to abolish existing wards.”

The constitutional authority to charter cities to “exercise all powers of local self-government” includes the exercise, of all public or governmental powers and functions for the conduct of the affairs of the people within the city except for the limitation upon the power to levy taxes and incur debts. Because of this unlimited power of self government under the Charter and the legislative policy of Ohio fixing apportionment of wards as a municipal duty, the court is only required to decide if the City Charter deprived the City Commission of power to regulate wards. It was admitted in oral arguments that the Charter which determines the method of electing Commissioners is not inconsistent with the secondary function of the statute which authorizes cities to regulate ward lines.

Because the Charter and the statute involved do not have the same source, the Charter being supported directly by the people, some of the tests of construction of enactments of the same origin are not necessarily applicable. It is a duty of the court to harmonize, if possible, the provisions of the Charter with those of the General Code. In the absence of express language in the Charter, showing that it conflicts with the statute, the court must attribute an intention to the framers of the Charter to harmonize the Charter with the Code. State v. Kerr, 42 Oh Ap 19, affirmed in 126 Oh St 26. Difficulty in reconciliation does not necessarily call for repeal by implication. Except where an act covers the entire subject matter of earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, it does not by implication repeal an earlier act on the same subject, unless the two are so clearly inconsistent and repugnant that they cannot, by a fair and reasonable construction, be reconciled and effect be given to both. The repugnancy between the two statutes must be irreconcilable to constitute repeal by implication. Such repeals are not favored by the courts. 37 O. Jur., Section 136, et seq. p. 397.

True, §731.06 (4212 GC) R. C. expresses but one function, the election of councilmen, and generally a law may not be construed to embrace subjects other than those described. However, in construing a law of doubtful meaning or application, the policy which induced its enactment or which was designed to be promoted thereby (equal municipal representation) is a proper consideration. The court may take into consideration the settled legislative policy of the state in so far as it may throw light on the intent of the legislature, or of the people in the instance of a Charter. 37 O. Jur., page 675. Other general aids of construction and interpretation support the authority of the City Commission of Dayton, Ohio, to regulate wards under the Charter and the laws of Ohio for any necessary or lawful purpose.

As the court has indicated the statutes of Ohio and the historical development of parties, known to all, clearly indicate that the division of cities into wards is a legislative matter for local legislative authorities. In view of strong-evidence of an established and recognized practice, based upon the secondary function of §731.06 (4212 GC) R. C. the court finds that the people of Dayton did not intend to deprive the City Commission of the power to divide and regulate wards for any lawful, useful, or necessary purpose.

The serious nature of the question requires the court to discuss an additional phase of this generally misunderstood situation. The statement issued to the people of Dayton by the original Charter Commission, as appears in the Exhibit, recited that:

“Party politics are eliminated. No party designations will appear on the ballot. Ward lines are abolished. The city is considered a unit, insuring to all parts of the city equal representation.”

This statement resulted in confused thinking on partisan and ward subjects in Dayton. That the Charter did abolish political activities or that such activities are of such an unsavory nature that our Commission may not recognize that they do exist is unfortunately so prevalent an opinion that it has prevented any demand for legislative action on wards for over forty years.

Partisan politics have not been eliminated in Dayton. Ward lines were not abolished. They exist and are recognized by law. Charter or municipal acts abolishing wards or partisan activities for other than municipal purposes would be void as beyond the scope of the Charter. The moment the sphere of local self government ceases, the power of the city, even under home rule, also ceases.

The statement of the Charter Commission was intended to apply only to the municipal branch of - the government. It did not and could not have any affect upon the interest or rights of the people of Dayton in county, state and national affairs. Misconception of the Charter arising out of the statement of the Charter Commission has resulted in a false impression that the city does not have the established legal power given to local authorities to establish wards for lawful purposes other than municipal elections. The need for continued regulation of wards arises out of the right of the people of Dayton to participate in and enjoy good government in the affairs of the county, state and nation according to the established policy of Ohio that the local subdivisions determine the number and boundaries of the representative political units in every city. Citizens of Dayton do participate in politics, but the failure of the Commission to modernize wards prevents Daytonians from doing so according to the settled policy of Ohio of equality of representation in committee councils of the two political parties. That “no reason exists” under the Charter is an immaterial explanation based upon an inference that is false and ignores the usual, broad legislative test of general welfare.

Residents in annexed territory are entitled to vote on municipal rather than township questions and they are entitled under the Constitution and laws of Ohio to reside within a “ward” to become eligible to vote on all general issues and candidates, in addition to those of the municipality. Art. V, Sec. 1. In the past, the Board of Elections has exercised good judgment in recognizing ward changes without formal authority of an amendment to Section 49. It is, however, a dangerous policy for a self governing body to abandon formal or technical rights of government so as to leave the citizens at the discretion of others in their exercise of fundamental private rights.

In conclusion the court finds on the second question submitted, that the City Commission, as the legislative authority of the City of Dayton, has exclusive power to establish and change the number and boundaries of wards within the city even though all members of its legislative body are elected at large under the Charter.

The court has been informally advised that other charter cities in which members of councils or commissions are elected at large have continued to regulate wards. The situation is not one which requires legislation, however, establishment of representative political groups, particularly wards, is properly a subject for the election chapter of the Code. The question should not depend upon provisions of the statute adopted for other express purposes even though the geographical division should be the same for state as it is for municipal purposes.

An entry in. accordance with this finding was prepared and filed by the court.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    RICE, Plaintiff-Appellant, v. RINALDO, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2133.
    Decided April 18, 1951.

      A. K. Meck, Dayton, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing the first cause of action of plaintiff’s petition after the sustaining of a general demurrer thereto.

The petition avers that the plaintiff, who is a Negro, desired to have a tooth extracted and went to the office of the defendant, a practicing dentist who maintains a dental office for the extraction and repairing of teeth at 614 Troy Street, Dayton, Ohio, who was duly licensed by the State of Ohio to practice dentistry for the accommodation of the public; that the defendant refused to pull her tooth because of the fact that she is a Negro and thereby violated §12904 GC.

The question presented is whether the trial judge erred in holding that the petition did not state a cause of action for the violation of §12904 GC.

This section, insofar as germane to our question, reads:

“Whoever, being the proprietor or the employee, keeper or manager of an inn, restaurant, eating house, barber shop, public conveyance by air, land, or water, theater, store, or other place for the sale of merchandise, or any other place of public accommodation or amusement, denies to a citizen, except for reasons applicable alike to all citizens and regardless of color or race, the full enjoyment of the accommodations, advantages, facilities, or privileges thereof, * * * should be fined, etc.”

The narrow question presented is the meaning of “any other place of public accommodation” as employed in the statute. The appellant insists that the language is general, plain, and understandable and includes the office or place of business of the defendant, a dentist in the general practice of dentistry. The appellee, as did the trial judge, relies upon the rule of “ejusdem generis” and insists that the language under consideration does not include the office of the defendant.

The rule of “ejusdem generis” is one of construction and is widely recognized in the law. Sutherland Statutory Construetion, par. 268; Brown’s Legal Maxims 651; Sedgwick, Construction of Statutes 361. It is said in Gates and Son Co. v. Richmond (Va.), 49 S. E. 965, that:

“The rationale of the principle of ‘ejusdem generis’ seems to be that if the Legislature has intended the general words to apply, uninfluenced by the particular preceding words, and without restriction it would, in the first instance have employed a compendious word to express its purpose.”

The rule is succinctly set forth in Fry v. State, 55 Oh Ap 264, to be that general words following designation of particular subjects are ordinarily restricted by the particular designation to include only things of the same nature as those specifically enumerated.

The places particularly designated in the section of the Code under consideration may be classified: (1) — -restaurant, eating house, (2) — barbor shop, (3) — public conveyance by air, land, or water, (4) — theater, (5) — store or other place for sale of merchandise. No one of these descriptive words nor the classes into which they fall include a dentist’s office nor are they so like any of the places described as to come within any one of the specific classifications of the statute. We are of opinion that the trial judge did not err in holding that “any other place of public accommodation” did not include the office of the defendant.

Although the application of the rule which we have discussed seems to be appropriate in interpreting the meaning of §12940 GC and the particular words “any other place of public accommodation,” it is possible that giving the broadest possible interpretation to place of public accommodation it would not include the office of a dentist. A dentist may be classified as one of the learned professions like unto a physician or surgeon. An office of a physician or surgeon does not connote that it is a place of public accommodation.

“In the absence of statute, a physician or surgeon is under no legal obligation to render professional services to everyone who applies to him or seeks to engage him. Physicians are not public servants who are bound to serve all who seek them, as are inn-keepers, common carriers, and the like.”

41 Am. Jur. 135, citing Hurley v. Eddingfield, 156 Ind. 416, 59 N. E. 1058. The case of Limbaugh v. Watson, 12 Abs 150, is to like effect.

We could readily support an exception to the ethics of the dentist in this case, but we are considering the meaning and effect of the specific language of a penal statute and can not find that it is broad enough in its terms to include the office of a dentist such as was operated by the defendant in this cause.

The judgment will be affirmed.

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


author: By McCRYSTAL, J.

text:
    LA FACE v. INCORVIA.
    Common Pleas Court, Erie County.
    No. 27605.
    Decided November 16, 1952.
    Murray & Murray, Sandusky, for plaintiff.
    Flynn, Py, & Kruse, Sandusky, for defendant.
   OPINION

By McCRYSTAL, J.

This matter arises as a result of plaintiff’s motion to vacate an order of this Court, dated May 23, 1951, in which this Court ordered stayed all further proceedings during the period defendant is in the military service.

It was submitted on brief of both parties.

On May 23, 1951, the guardian ad litem of Lawrence Incorvia filed an affidavit stating that Lawrence Incorvia was in military service and upon application of the defendant, the Court ordered all proceedings stayed.

The Court, having given serious consideration to this motion and made rather extensive study of the Soldiers’ and Sailors’ Relief Act and of the cases arising thereunder, does not find sufficient ground for sustaining plaintiff’s motion.

In the Soldiers and Sailors Relief Act, Title 50 U. S. C. A. Appendix, § 521 is the controlling section which governs this case. It reads in part—

“At any stage thereof any action or proceeding in any court in which a person in military service is involved * * * shall, on application to it by * * * some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of * * * the defendant to conduct his defense is not materially affected by reason of his military service.”

The Court is of the opinion that upon the filing of the affidavit, a stay of proceedings becomes mandatory, unless a sufficient showing can be made by the adverse party that the ability of the party in military service to prosecute or defend his action is not materially affected by reason of his military service.

In this case, after a review of all the pleadings and briefs, the Court does not find that a sufficient showing has been made at this time on the part of the plaintiff to warrant a vacating of the order of May 23, 1951.

The motion will be overruled with exception saved to the plaintiff.


author: By IMFELD, J.

text:
    STATE, Plaintiff, v. LANGDON, Defendant.
    Municipal Court, City of Hamilton.
    No. 52868.
    Decided January 15, 1954.

      Persson & Black, Hamilton, for the State.
    Kautz & Holbrock, Hamilton, for defendant.
   OPINION

By IMFELD, J.

The undisputed evidence in the case before the Court clearly reveals the fact that Miles Langdon did, on the tenth day of. July 1953, sell to Calvin Bekemeier a Fifth of P. M. Whiskey and that said Miles Langdon does not hold a liquor license permitting him to sell whiskey by the bottle. If this was all the Court had to consider it would be no problem to decide the matter. The Court must however give consideration to all the circumstances surrounding the sale to determine whether or not defendant was urged on in some way to violate the law, and if so, were the circumstances surrounding this urgency strong enough to constitute entrapment as claimed by counsel for the defendant.

In reviewing the laws on entrapment, 15 American Jurisprudence, page 24 states,

“It is not ordinarily permissible for one person, in order to secure the conviction of another on a criminal charge, to procure him to do the act. But there is a very clear distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of criminal designs of his own conception. It may therefore be stated as a general rule that where the doing of a particular act is a crime regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that an opportunity is furnished or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor constitutes no defense. To the argument that the act is done at the instigation or solicitation of an agent of the government, the courts have responded that the purpose of the detective is not to solicit the commission of the offense, but to ascertain if the defendant is engaged in an unlawful business. It is no defense that a person, acting as a decoy furnished an opportunity for the commission of the offense.”

In Volume 12, O. Jur., page 80, Section 38, the general rule on entrapment reads:

“Where the doing of a particular act is a crime, regardless of the consent of anyone, Courts are agreed that if the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that an opportunity is furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense. Where the criminal intent originates in the mind of the entrapping person, and the accused is lured into the commission of the offense charged in order to prosecute him therefor, it is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent.”

In applying'this rule:

In 66 A. L. R. page 488, The annotations of Robinson v. United States the Court says,

“It appears to be a general rule that where a government officer or one acting for him has reasonable grounds to believe that the prohibitory liquor laws are being violated by a certain person, the fact that he merely offers to purchase a quantity of whiskey from that person, even though for the sole purpose of prosecuting the seller, is not a bar to a conviction for the illegal sale. However, there must be no undue inducement or encouragement made in such a case. And as is stated in the general rule, if the criminal intent originates in the mind of the entrapping person, there is an unlawful entrapment, which bars a conviction.”

And further at page 494, the court says,

“As stated in the general rule, there must not be any undue inducement such as urgent appeals to the sympathy of the accused. What constitutes an undue inducement depends on the facts and circumstances surrounding each’ case; and there appears to be no definite line drawn as to what is and what is not an unlawful inducement.”

In 66 A. L. R. 498, State v. Jarvis, the court says,

“When the only inducement offered by an officer in order to promote a sale of liquor was a willingness to buy, there was not an unlawful entrapment. In order that the defendant may invoke successfully the doctrine of entrapment, according to the courts, it must appear that the criminal intent was conceived by the entrapping person, and that the accused, without prior intention to commit the crime, was inveigled into its commission by the entrapper.”

In 85 Oh Ap 378, State v. Miller, the Court says,

“The rule in this state seems to be that when the doing of a particular act is a crime, regardless of the consent of anyone, if the criminal intent originates in the mind of the accused, and the criminal offense is completed the fact that an opportunity is furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense. On the other hand, the defense is available to one who is induced or lured by an officer of the law or other person for the purpose of prosecution into the commission of a crime which he otherwise had no intention of committing.”

Getting back again to the determining factor in this case “was this defendant urged on by the State agent to commit the crime, and if so, were the circumstances of this urging strong enough to shift the origination of the crime from the mind of the defendant to that of the agent, and for this, we must carefully review the testimony. State Agent W. H. Harshbarger on the night of July 10, 1953, secured the assistance of Calvin Bekemeier and instructed him to use a marked five dollar bill to purchase a fifth of whiskey from the defendant Miles Langdon, the testimony states that Calvin Bekemeier had known miles Langdon for 4 or 5 years, that they were pretty good friends, that he cashed Bekemeier’s checks, that Mr. Bekemeier at one time lived in a room above a brother of Miles Langdon. That Bekemeier went into Langdon’s place of business, bought a glass of beer, drank a couple of drinks out of it and asked for a fifth of whiskey. Langdon said that he did not like to do that, whereupon Bekemeier then stated that it was all right, that he was leaving that night on a fishing trip, and he neglected to go to the liquor store, that day, and wanted to take the liquor along on the fishing trip.

The court does not believe that Mr. Harshbarger the state agent told his decoy to say he was going on a fishing trip, but Bekemeier was acting for Harshbarger and by placing Bekemeier in the situation, Harshbarger must naturally be responsible for the words and actions of his assistant. It was Bekemeier’s job to buy the fifth of whiskey from the defendant and when Langdon did not readily sell him the whiskey, then Bekemeier used the story about the fishing trip to get the defendant to sell him the whiskey.

The people of our land are not inclined to suspect and doubt their friends on all occasions. They are more inclined to believe a person whom they have known for many years. There is a certain feeling of satisfaction we all get when we see our friends enjoy themselves and this feeling of satisfaction is increased when we are of some help to them. Always the courts refuse their aid in civil cases to the perpetration and consummation of an illegal scheme. Invariably they hold a civil action must be abated if its basis is violation of the decencies of life, disregard of the rules of public policy which formulate the ethics of men and their relations to each other. Neither courts of equity nor those administering legal remedies tolerate the use of their process to consummate ,a wrong. The doctrine of entrapment in criminal law is the analogue of the same rule applied in civil proceedings. This is the real basis of the courts approving the defense of entrapment.

The Court believes that when Bekemeier asked for a fifth of whiskey and by Bekemeier’s own testimony Langdon said he did not want to do that, and when Bekemeier came back with the fishing trip story it was at that point that the free agency of Langdon ceased to exist and by Bekemeier’s urging, the criminal intent shifted to the mind of the state agent and the defense of entrapment is therefore available to the defendant.

The demurrer of the defendant will be sustained and the defendant dismissed.


text:
    SCHWEIBOLD et, Plaintiff-Appellee, v. SCHWEIBOLD et, Defendants-Appellees; BLOCK, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 521.
    Decided April 23, 1951.

      Miller & Finney, Xenia, for plaintiff-appellee.
    Wead & Aultman, Xenia, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of Appellee to affirm the judgment for the reason that the error assigned is not exemplified by the record.

The appeal has been perfected. More than 50 days has elapsed since the filing of the notice of appeal. There has been filed in this court what has been designated “PARTIAL TRANSCRIPT OF HEARING ON DECEMBER 5, 1951.” It bears the caption of the case and carries what purports to be the testimony of Kathrina S. Block on direct examination.

The transcript does not conform to §11571 GC. It is not a bill of "exceptions signed and allowed by the trial judge nor is it an agreement of the parties that it is a true bill of exceptions.

The error assigned requires consideration of the evidence heard and considered at the trial of the cause. It is not claimed that any determinative fact is admitted in the pleadings nor does any journal or special finding of fact or law set forth any basis upon which the issue may be resolved.

Appellant cites Hoffman Candy Co. v. Department of Liquor Control, 56 Abs 257 and Cleveland Building Laborers Union v. Board of Liquor Control, 59 Abs 161. In both of these cases the error complained of was disclosed by the pleadings or transcript of docket and journal entries. Here it is necessary to resort to the evidence which is not properly brought into the record to reach the error of which complaint is made.

Upon the state of the record the motion must be sustained and the judgment affirmed. Tenesy v. City of Cleveland, 133 Oh St 251, 2nd syl.

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


author: By McBRIDE, J:

text:
    SORRELS, Plaintiff, v. PUGLIESI et. Defendants.
    Common Pleas Court, Montgomery County.
    No. 106309.
    Decided October 30, 1953.

      Otterbein Creager, Dayton, for plaintiff.
    Morris M. Gitman, Dayton, for defendant, August Pugliesi.
   OPINION

By McBRIDE, J:

This matter was submitted to the Court on the motion of defendant to dissolve the temporary order heretofore issued restraining the defendant and a judge of the Dayton Municipal Court from proceeding in an action in forcible entry and detainer, being Case No. C-32645 in the Dayton Municipal Court.

The petitioner alleges that the action in forcible entry and detainer was wrongfully and illegaly brought in the Dayton Municipal Court.

It was stipulated at the hearing that the land contract contained the following provision:

“Upon termination of this agreement, the seller shall have the right to re-enter upon said premises and take possession thereof and the sellers and those claiming under him shall proceed to recover possession of said premises under laws regulating proceedings in forcible entry and detainer in' any court having jurisdiction over the property described herein.”

It is well established that such a provision authorizes forcible entry and detainer in the municipal court. Huddleston v. Ward, 33 O. O. 489, 46 Abs 225, 68 N. E. 2d 580. Adair v. Crepps, 81 Oh Ap 136, 36 O. O. 446. Consequently, the petitioner here has failed to establish that the action in forcible entry and detainer was wrongfully filed in the Dayton Municipal Court.

It is true that “Where a court of law and a court of equity have concurrent jurisdiction over the same subject, it frequently happens that the former tribunal, because of inadequate or limited powers, is unable to afford that relief which a party has the right to demand and which a court of equity is fully competent to give. In such case, a court of equity is clothed with complete jurisdiction, and, if necessary, to the full protection of the rights of a party, will enjoin further proceedings in the action at law. In so doing, it but exercises that jurisdiction very commonly and properly resorted to in cases where there is no specific, adequate, and complete remedy at law.” 21 O. Jur. 213.

Therefore, the question is — does the municipal court have power to afford the defendant complete relief in the forcible entry and detainer action?

The equitable provisions for municipal courts of Ohio under the former separate acts were surprisingly similar. The Dayton act provided for reformation and cancellation in a cause “arising out of contract.” Sec. 1579-51 GC. The acts for Cleveland and Columbus were substantially the same except for the inclusion of accounting. Secs. 1558-51 and 1579-6 GC. Other acts used the expression “founded on contract.” Sec. 1579-237 GC. Cleveland was a noteworthy exception because of the grant in actions at law of jurisdiction “of which the courts of common pleas of the County of Cuyahoga have * *• * jurisdiction.” Sec. 1579-6(2) GC.

In Commonwealth Oil Company v. Turk, 118 Oh St 273, the court sustained the right of appeal from a municipal court directly to the court of appeals under the Constitution of Ohio even though the Legislature had failed to provide a remedy for the exercise of such appellate jurisdiction. In so holding in an action in which the plaintiff sought to set aside a deed, the court made the following comment upon the jurisdiction of the Municipal Court of Cleveland:

“The municipal court act of Cleveland confers upon the nisi prius judges of that court fairly wide jurisdiction in law and chancery and in civil and criminal cases, being confined in its civil jurisdiction to the limits of that municipality. In that respect its jurisdiction is somewhat analogous to that formerly conferred upon the superior court of Cincinnati.”

Chief Justice Marshall, who with Judge Kinkade, dissented, stated:

“It is not doubted that this was a chancery case in the Municipal Court of Cleveland. It is not doubted that the Legislature had conferred jurisdiction upon the Municipal Court of Cleveland to hear and determine certain classes of chancery suits. It is not doubted that the Legislature had a right to confer such jurisdiction.”

In sustaining the limited equitable jurisdiction of the Municipal Court of Dayton, Judge Wiseman in 1928 made the following comment in Marshall v. Neff, 27 O. N. P. (N. S.) 125:

“The court, in considering this question, has come to the conclusion that the equity powers of the Municipal Court of Dayton under this section (§1579-51 GC) are much broader than the judges of this court and the members of the bar have heretofore believed.”

The foregoing, former provisions are extended by paragraph three of Section 1901.18 (1594) of the Municipal Court Act of 1951.

“In any action at law based on contract, THE COURT SHALL HAVE JURISDICTION TO DETERMINE, PRESERVE, AND ENFORCE ALL RIGHTS, LEGAL AND EQUITABLE, INVOLVED THEREIN, and to decree an accounting, reformation, or cancellation of the contract, AND TO HEAR AND DETERMINE ALL LEGAL AND EQUITABLE REMEDIES NECESSARY OR PROPER FOR A COMPLETE DETERMINATION OF THE RIGHTS OF THE PARTIES THERETO;” (Emphasis ours.)

The language used by the Legislature is so broad that it must be construed as granting full, adequate and complete powers in equity in any action “at law based on contract.” The repetition of the expression all legal and equitable rights and all legal and equitable remedies is unqualified.

* * $ *

The action in forcible entry and detainer herein is based upon the termination of a written contract. Where the action involves a termination of a land contract, the plaintiff must establish that he has a contract and that this contract contains a provision authorizing repossession or other provision which would permit the use of forcible entry and detainer. Under such circumstances, the right to possession is based on contract and the action in forcible entry is one at law.

Where a vendor of a land contract brings a forcible entry action in municipal court, the defendant-purchaser has an adequate remedy and forum in which to assert his equitable defenses and initiate such affirmative action, legal or equitable, as may be required.

The petitioner in this case requests only such relief as is expressly within the jurisdiction of the municipal court. The provision authorizing equitable jurisdiction in the municipal court act is specific, adequate and complete in the present situation.

As between courts of concurrent jurisdiction, the one whose power is first invoked acquires the right to adjudicate the controversy to the exclusion of other tribunals. Where express jurisdiction of the municipal court is specific and adequate to afford full relief in a particular case, its jurisdiction is concurrent with that of the common pleas court even though the municipal court is otherwise one of limited jurisdiction.

The motion to dissolve the restraining order is sustained. Moraldo v. Hendricks, 90 Oh Ap 436, 48 O. O. 109.

An entry may be prepared accordingly.


author: By WISEMAN, PJ. By THE COURT.

text:
    SOCOTCH, Petitioner-Appellee, v. KREBS et, Respondents-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4934.
    Decided November 2, 1953.

      Isadore Topper, R. Brooke Alloway, Columbus, William J. Kraus, Cleveland, for petitioner-appellee.
    C. William O’Neill, Atty. Genl., Robert E. Leach, Special Counsel, Ralph N. Mahaffey, Asst. Atty. Genl., Columbus, for respondents-appellants.
   OPINION

By WISEMAN, PJ.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County in which the members of the Board of Liquor Control of the State of Ohio were found to be in contempt of court for failure to obey the former order of the court dated April 14, 1952.

A recitation of the facts is essential for a proper appreciation of the issues involved. On November 21, 1950, Socotch filed an application to transfer a Class D-5 permit. Certificate No. 35959, from Clark Avenue to Detroit Avenue, Cleveland, Ohio. The permit which Socotch sought to transfer terminated on October 21, 1951. On January 29, 1951, the Department of Liquor Control rejected the application for transfer, and on appeal to the Board of Liquor Control the action of the Department was affirmed, on August 17, 1951. Socotch then appealed to the Common Pleas Court of Franklin County, which reversed the order of the Board of Liquor Control, on April 14, 1952. The judgment of the court was to the effect that:

“* * * the Board of Liquor Control be, and it hereby is, directed to make and issue an order allowing the appeal filed with the Board of Liquor Control by the appellant and directing the Department of Liquor Control and the Director of Liquor Control to transfer the D-5 permit of the appellant from 5801 Clark Avenue to 5801 Detroit Avenue, Cleveland, Ohio, pursuant to the application heretofore filed by the appellant with the Department of Liquor Control.” (Emphasis ours.)

From this order an appeal was taken to this Court where the appeal was dismissed on September 22, 1952 for failure to comply with Rule VII. Motion to certify was denied by the Supreme Court on November 19, 1952. Hence the judgment of the Common Pleas Court entered on April 14, 1952 became the final order.

During the progress of this litigation the lease held by Socotch on the Clark Avenue premises expired in July,' 1951, and she was compelled to vacate the premises. Thereupon, under Regulation No. 16 of the Board of Liquor Control, Socotch delivered her permit to the Department for safekeeping. In accordance with Regulation No. 16 the permit was renewed in escrow on October 21,1951, and Certificate No. 21509 was issued to her with no place of business designated therein except Cleveland, Cuyahoga County, for the reason that she then had no place to operate her business. The new permit was held by the Department for safekeeping under Regulation No. 16. On or about April 16, 1952, Socotch acquired a new lease for the premises which she had formerly occupied on Clark Avenue. Thereupon, she requested the Department to return to her the permit then held by it for safekeeping. The Department refused to comply with the request. Socotch then filed a mandamus action in the Supreme Court against the Director of Liquor Control to require him to return to her the Class D-5 permit. The case'is reported under the caption of State, ex rel. Socotch v. Bryant, Director, et al., 158 Oh St 249. The court held that Regulation No. 16, which provided for a renewal of a permit at no designated location, held in escrow, was in conflict with §6064-20 GC, which provides that a permit may be issued to a person to carry on the business at a designated place. The court held that under the facts the Director was without power to renew the permit and Certificate No. 21509 was null and void.

In light of the above facts, and the opinion of the Supreme Court, the Board of Liquor Control on December 3, 1952 entered an order, the pertinent part of which is as follows:

“Whereas this Board of Liquor Control on the 17th day of August, 1951, affirmed the action of the Director of Liquor Control rejecting the application of Anna J. Y. Socotch to transfer D-5 permit, Certificate No. 35959, from 5801 Clark Avenue, Cleveland, Ohio, to 5801 Detroit Avenue, Cleveland, Ohio, and,
“Whereas the unreversed order of the Court of Common Pleas of Franklin County in Case No. 183600 on the matter of the appeal of this Board’s ruling of August 17, 1951, ordered that the finding, ruling, and order of this Board be reversed, vacated and set aside, and further ordered that this Board be directed to make and issue an order allowing the appeal and directing the Department of Liquor Control and the Director of Liquor Control to transfer said D-5 permit Certificate from 5801 Clark Avenue, Cleveland, Ohio, to 5801 Detroit Avenue, Cleveland, Ohio, pursuant to the application theretofore filed by Anna J. Y. Socotch on November 21, 1950, and,
“Whereas said Permit Certificate No. 35959 had been issued to Anna J. Y. Socotch on October 21, 1950, and expired on October 21, 1951, and,
“Whereas, the Supreme Court of Ohio in the case of State ex rel. Socotch v. Bryant, 158 Oh St 249, held that Anna J. Y. Socotch has had no valid permit since the expiration of said permit Certificate No. 35959 on October 21, 1951, and that a purported permit Certificate No. 21509 expiring on October 21, 1952, was null and void and of no force or effect,
“Therefore, the Department of Liquor Control and the Director of Liquor Control are hereby ordered to transfer D-5 permit Certificate No. 35959 from 5801 Clark Avenue, Cleveland, Ohio, to 5801 Detroit Avenue, Cleveland, Ohio, effective as of the date of the rejection of the application of said transfer by the Director of Liquor Control, to wit: January 29, 1951, and to continue until the expiration of said permit Certificate No. 35959 on October 21, 1951.” (Emphasis ours.)

On March 28, 1953 the lower court found the order of the Board of Liquor Control did not comply with its former order, and ordered the members of the Board committed to the county jail until such time as they had purged themselves of such contempt:

“by the issuance of an order to the duly constituted and acting Director of the Department of Liquor Control of the State of Ohio to hold an immediate hearing on the application of petitioner, Anna J. Y. Socotch, for a renewal of her D-5 permit for her premises at 5801 Detroit Avenue, Cleveland, Ohio, which application was filed with the Department of Liquor Control of the State of Ohio on December 15, 1952, which order shall further direct the said Director of the Department of Liquor Control to renew the D-5 liquor permit of Anna J. Y. Socotch for her premises at 5801 Detroit Avenue, Cleveland, Ohio, unless it affirmatively appears that causes have intervened which were not involved or presented and could not have been involved or presented in these proceedings heretofore, and further indicate affirmatively that such permit should not be renewed.” (Emphasis ours.)

In the assignments of error appellants use the term “issuance of a current D-5 permit.” The record does not show that the court ordered the issuance of a permit, but rather shows in the first instance an order for the transfer of the permit and, later, an order for the renewal of the permit. In view of the confusion of terms the Court will discuss the issues principally from the standpoint of the issuance of an order to transfer or to renew the permit.

The appellants claim that the lower court in its entry dated April 14, 1952, did not order appellants to take any action with regard to the'matter of the issuance (renewal) of a current D-5 permit. This contention is supported by the specific words of the order which directed the transfer of the permit rather than an issuance or renewal of a permit. In the issuance of a current permit-there must be a showing of a compliance with the provisions of §6064-16 GC. State, ex rel. Socotch v. Bryant, Director, supra, pages 254, 255. The issuance or renewal of a permit is something entirely different from the transfer of a permit. See §6064-16 and §6064-20 GC.

Appellants claim that the court lacked jurisdiction on April 14, 1952 to order appellants to take any action in regard to the matter of the issuance (renewal) of a current D-5 permit. We agree. The matter of the issuance or renewal of a permit was not before the court. The question presented involved a transfer of the permit.

Appellants also claim that they lacked jurisdiction to order the Director of Liquor Control to take any action with regard to the matter of the issuance (renewal) of a current D-5 permit. The Board of Liquor Control is without power to order the Director to issue or renew a current permit. The application for the issuance, or renewal, of a permit in the first instance is made to the Department, and the Director is required to act thereon. Scaravilli v. Board of Liquor Control, 61 Abs 514. The Board of Liquor Control has no authority in the matter except on appeal.

Appellants also contend that the lower court lacked jurisdiction on March 28, 1953 to order appellants to take any action with regard to the matter of the issuance (renewal) of a current D-5 permit, as requested in the application for the renewal of such D-5 permit filed with the Director on December 15, 1952. We agree with appellants for the same reason as stated above, and further for the reason that the application for the renewal of such D-5 permit filed with the Director on December 15,1952. We agree with appellant for the same reason as we did above, and further for the reason that the application dated December 15,1952 was not pending in the Common Pleas Court in March, 1953, and therefore the Common Pleas Court lacked jurisdiction to order any action in regard thereto.

The court in its order under date of April 14, 1952 ordered a transfer of the permit. The Board complied with this order. The fact that permittee lost her lease and that the permit which was placed in escrow could not be legally renewed without a designated place of business, was not the fault of the Department, but the fault of the permittee. The permit held by the permittee therefore was not a continuing permit, but an expired permit which the Supreme Court said was not subject to renewal.

The Board of Liquor Control was without power to direct the Director of the Department of Liquor Control to renew the permit. Action must first be taken by the Director on the application. The Board does not act except on appeal. The Director has no authority to renew a permit unless there is an existing legal permit subject to renewal. The members of the Board of Liquor Control were not in contempt for failure to obey the order of the Common Pleas Court to order the Director to renew the permit. A renewal of the permit would be a nullity. The court committed prejudicial error in ordering an act to be performed which would be a nullity.

The order of the Common Pleas Court dated March 28, 1953, is a clear departure from the order dated April 14, 1952 and, in effect, holds the appellants guilty of contempt by reason of their failure to take action, not as ordered on April 14, 1952 to transfer a permit, but as ordered on March 28, 1953, which attempted to impose a new duty on appellants to renew the permit.

We are not unmindful that the permittee, during the progress of this litigation, on three occasions deposited with the Department of Liquor Control the sum of one thousand and fifty dollars for the renewal of her D-5 permit. This fact did not confer upon the court jurisdiction which it did not have, nor confer upon the Board of Liquor Control, or the Director of Liquor Control, powers which they did not possess. This fact did not influence the Supreme Court in State, ex rel. Socotch v. Bryant, Director, supra, as the statement of facts in that case shows that the permittee had made the required deposit.

The appellee contends that the permit under which she was operating at the time when the application was made for transfer should be regarded as a continuing permit, and should be extended for the required time after the date of the final order; that to effectuate the purpose of the Legislature in the enactment of the Administrative Procedure Act, the permit must be considered as a continuing permit, and that an order for a renewal lies within the power of the court under the provisions of §154-73 GC of the Administrative Procedure Act. The pertinent part of this section of the statute is as follows:

“The court shall certify its judgment to such agency or take such other action in connection therewith as may be required to give its judgment effect.”

Appellee contends that the judgment of the court in ordering a renewal constituted “such other action in connection therewith as may be required to give its judgment effect.” A complete answer to this contention is that the original judgment was that permittee was entitled to a transfer of the permit, after which the court substituted a new judgment and ordered a renewal of the permit.

Appellee contends that the final order entitled her to a transfer of the permit from the Clark Avenue to the Detroit Avenue location; that the necessary delays inherent in our judicial system, and appellate proceedings instituted prevented a final determination until December 3, 1952; that under §6064-20 GC no liquor permit is issued by the Department for a longer period than one year; that the order of the Common Pleas Court confers substantial rights on the permittee; that no delay, occasioned unavoidably or without fault of the permittee, can work a forfeiture of such rights; that if these rights are not duly preserved, the institution of an appeal from an administrative order is vain and useless. The proposition urged would have application but for the fact that permittee lost her lease and had to vacate the premises. Permittee no longer operated a place of business, and consequently lost her permit and her right to a renewal. State, ex rel Socotch v. Bryant, Director, supra. Cases cited by appellee have no application to the factual development in the instant case.

Decided November 12, 1953.

Isadore Topper, R. Brooke Alloway, Columbus, William J. Kraus, Cleveland, for petitioner-appellee.

C. William O’Neill, Atty Genl., Robert E. Leach, Chief Counsel, Robert B. Rady, Asst. Atty. Genl., Columbus, for respondents-appellants.

Finding error in the record prejudicial to the rights of the appellants, the judgment is reversed and the cause remanded for further proceedings according to law.

MILLER and HORNBECK, JJ, concur.

ON APPLICATION FOR REHEARING

No. 4934.

OPINION

By THE COURT.

Application for rehearing is denied.

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