author: By WATTERS, J.

text:
    SAUDER, Plaintiff, v. AKRON (City) et, Defendants.
    Common Pleas Court, Summit County.
    No. 177408.
    Decided September 19, 1950.
    Clyde F. Berry, William J. Laub, Akron, for plaintiff.
    Roy Browne, Law Director, Akron, for City and Clerk.
    Alva Russell, Prosecutor, William A. Spencer, Asst. Prosecutor, Akron, for Board of Elections.
   OPINION

By WATTERS, J.

This is an action for permanent injunction whereby the plaintiff, a taxpayer, who made demand on the Law Director to bring this action, and was refused, seeks to enjoin a referendum vote by the electors of the City of Akron upon a resolution passed by the Akron City Council on July 5, 1950, and known as Resolution No. 500-1950. and approved by the Mayor, in which it was declared in substance that there no longer exists such a shortage in rental housing accommodations as to require rent control in the City of Akron, and declaring no further need for Federal rent control within the city.

In simple words, if the injunction is granted finally, the electors of Akron will not be given the right to approve or disapprove the action of Council, at the November general election. But if the injunction is finally refused, the' electors will have the opportunity to vote their approval or disapproval of the action of Council by referendum.

That is the only issue. The court is not called upon to decide the merits or demerits of rent control in Akron. Nor can the court decide whether rent control should be continued or abandoned. That issue will be up to the electors if allowed to vote on the question.

By an act of Congress known as the “Housing and Rent Act” of 1950, passed in June and effective July 1, 1950, it was provided in substance that the Housing Expediter shall terminate rent control in any incorporated city, town or village upon receipt of a resolution of its governing body adopted for that purpose in accordance, with applicable local law and based upon a finding by such governing body reached after a public hearing, that there no longer exists such a shortage in rental housing accommodations as to require rent control in such city, town or village.

Formerly it was provided that the governor of the state had also to approve, but this requirement was omitted from the present act of Congréss.

In pursuance to this act of Congress, on July 5, 1950, the City Council of Akron passed Resolution No. 500-1950, the substance of which has been referred to earlier herein, and which the court will not reproduce verbatim. The mayor approved it.

This resolution was not passed as an emergency measure as is obvious from the resolution.

Thereafter, on the 4th of August, 1950, there was filed with the defendant Butler, clerk of the Akron City Council, a petition asking and ordering that said resolution be submitted to the electors of said city for their approval or rejection.

The clerk, upon direction and resolution of council, passed July 25, 1950, checked said petition as to its sufficiency, and the clerk finding the petition to be sufficient, on the 14th day of August, 1950, submitted said petition to the council of said City of Akron, with his certificate that said petition was sufficient and complied in all respects with the provisions of the charter of the City of Akron.

The next step was the order of Council that said Resolution No. 500-1950 be submitted to the qualified electors of said City for their approval or rejection. There being no temporary injunction it is the court’s understanding that all the necessary steps have been followed with the exception that the Board of Elections has not as yet caused the ballots to be printed.

In 1912 the people of Ohio adopted an amendment to the Constitution providing for the power of Initiative and Referendum in the State and in each Municipality. Article II, Section 1, la to lg inclusive.

Section If provides:

“Municipal Questions. The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.” (Emphasis by this court.)

To carry this provision into effect the Legislature passed §§4227-1 to 4227-13 GC inclusive to cover the subject of initiative and referendum in Municipalities.

However §4227-12 GC provides as follows:

“The provisions of §§4227-1 to 4227-13 GC inclusive shall not apply to any municipality that has or may hereafter adopt its own charter which contains an initiative and referendum provision for its own ordinances and other legislative measures.” (Emphasis by this court.)

The people of the City of Akron, in November, 1918, adopted a charter form of government effective as of January 1, 1920, and are now operating under it. Said charter specifically provides for the initiative and referendum in Sections 17 to 26 inclusive. Therefore §§4227-1 to 13 GC (inclusive) should not apply generally, but may be looked to where the charter might not be specific.

See Dillon v. City of Cleveland, 117 Oh St, 258.

To the contrary though see James v. Ketterer, 125 Oh St, 165, where the court held that as the Columbus charter on initiative and referendum had failed to make “resolutions” subject thereto, the court could not look to the general statutes on initiative and referendum, as to municipalities, to supply the defect. (See bottom page 170)

In any event it is interesting to examine §4227-2 GC, which provides in part as follows:

“Sec. 4227-2 GC. Ordinances and measures subject to referendum. — Any ordinance or other measure passed by the council of any municipal corporation shall be subject to the referendum except as hereinafter provided. * * (Emphasis by this court.)

The exceptions are not important in our case.

The applicable charter provisions pleaded in the answer of the clerk and City and admitted by plaintiff’s demurrer to the answer, are as follows. (Where emphasis appears, it is done by this court.)

“Section 34. The Council shall act only by ordinance or resolution.”
“Section 20. Any ordinance or resolution passed by Council shall be subject to referendum except as hereinafter provided. Whenever the Council is by law required to pass more than one ordinance or resolution to complete the legislation necessary to make and pay for any public improvement, the provisions of Section 17 to 26, inclusive, in this Charter shall apply only to the first ordinance or resolution required to be passed and not to any subsequent ordinances or resolutions relating thereto.' Ordinances or resolutions providing for appropriations for the current expenses of the city, or for street improvements petitioned for by the owners of the majority of the feet front of the property benefited and to be specially assessed for the cost thereof, and emergency ordinances or resolutions necessary for the immediate preservation of the public peace, health or safety shall go into immediate effect, or at the time stated in the ordinance. Ouch emergency ordinances or resolutions must, upon a Yea and Nay vote, receive the vote of two-thirds of all the members elected to the Council, and the reasons for such necessity shall be set forth in one section of the ordinance or resolution. If, when submitted to a vote of the electors, an emergency measure be not approved by a majority of those voting thereon, it shall be considered repealed as regards any further action thereunder, and all rights and privileges conferred by it shall be null and void; provided, however, that such measure so repealed shall be deemed sufficient authority for any payment made or expense incurred in accordance with the measure previous to tfie referendum vote thereon. The provisions of Sections 17 to 26, inclusive, of this Charter shall apply to pending legislation provided for any public improvement.”
“Section 25. Referendum not to apply. The following ordinances and measures shall not be subject to the referendum but shall go into effect either immediately or at the time indicated therein, as council may determine:
“(a) Annual appropriation ordinances, (b) Ordinances or resolutions providing for the approval or disapproval of appointments or removals and appointments or removals made by council, (c) Actions by council on the approval of official bonds, (d) Ordinances or resolutions providing for the submission of any proposition to the vote of the electors, (e) Ordinances providing for street improvements petitioned for by owners of a majority of the feet front of the property benefited and to be specially assessed for the cost thereof.”
“Section 19. Referendum, How Ordered and When Held. When a petition signed by ten per centum of the electors of the city shall have been filed with the Clerk of Council within thirty days after an ordinance or resolution shall have been passed by the Council, ordering that such ordinance or resolution be submitted to the electors of the city for their approval or rejection, and said petition is found to be sufficient by the Clerk of the Council, as hereinafter provided, the election officer, officers or board having control of elections in the city shall cause such ordinance or resolution to be submitted to the electors of the city for their approval or rejection at the next succeeding regular or general election in any year occurring subsequent to thirty days after the Clerk of the Council finds such petition or amended petition to be sufficient as hereinafter provided; provided, however. that such ordinance or resolution may be submitted to the qualified electors of the city at a special election instead of a regular or general election, provided that thirty days’ notice is given by the Council and such election is regularly called by the Council in the manner provided by law. No such ordinance shall go into effect until and unless approved by the majority of those voting upon the same. Nothing in this article shall prevent the city, after the passage of any ordinance or resolution, from proceeding at once to give any notice or make any publication required by such ordinance or resolution.”
“Section 21. The petition — Requirements, Construction and Effect of Election. Any initiative or referendum petition may be presented in separate parts, but each part shall contain a full and correct copy of the title and text of the ordinance or resolution proposed or sought to be referred. Each signer of an initiative or referendum petition shall sign his name in ink or indelible pencil. Each signer of an intiative or referendum petition must be an elector of the city. With each signature shall be stated the place of residence of the signer, giving the street and number and ward and precinct. Each part of such petition shall contain the affidavit of the person soliciting the signatures to the same, which affidavit shall contain a statement of the number of signers of such part of such petition, and shall state that, to the best of his knowledge and belief, each of the signatures contained on such part is the genuine signature of the person whose name it purports to be, and believes that such persons are electors of the city, and that they signed such petition with the knowledge of the contents thereof. The petitions and signatures upon such petitions shall be prima facie presumed to be in all respects sufficient. No ordinance or resolution submitted to the electors of the City, and receiving an affirmative majority of the votes cast thereon, shall be held ineffective or void on account of the insufficiency of the petitions by which such submission of the same shall have been procured; nor shall the rejection by a majority of the votes cast thereon of any ordinance or resolution submitted to the electors of the City be held invalid for such insufficiency. The basis upon which the required number of petitioners in any case shall be determined shall be the total number of votes cast for the office of mayor at the last preceding election therefor.”
“Section 22. Duties of Clerk of Council. Within ten days after the filing of any initiative or referendum petition the clerk of the council shall determine the sufficiency of such petition and attach thereto a certificate showing the result of his examination. If the clerk shall certify that the petition is insufficient he shall set forth in the certificate the particulars in which the petition is defective and shall return a copy of the certificate to the person designated in such petition to receive it. Such initiative or referendum petition may be amended at any time within twenty days after the making of a certificate of insufficiency by the clerk, by filing a supplementary petition. Within ten days after such petition is amended by filing a supplementary petition, the clerk shall make like examination of the amended petition, and, if his certificate shall show the same to be still insufficient, he shall return it to the person designated in such petition to receive it without prejudice, however, to the filing of a new petition. If the clerk of the council shall determine that the petition or amended petition is sufficient, he shall at once submit the same with his certificate to the Council. The Council shall thereupon order that the ordinance or resolution proposed or sought to be referred be submitted to the qualified electors of the city for their approval or rejection at an election to be held as here prescribed. The clerk of council shall forthwith transmit a duly certified copy of such order to the deputy state supervisors of elections of Summit County, Ohio, or their successors. The election authorities shall cause publication of notice and all arrangements to be made for holding such election, and the same shall be conducted and the result thereof returned and declared in all respects as are the results of general municipal elections.”
“Section 23. Initiative and Referendum Ballots. The ballots used when voting upon any measure proposed by initiative petition or referred by referendum petition shall state the title of the ordinance or resolution and shall also contain a statement in clear and concise language descriptive of the substance of such ordinance or resolution, and below such statements the two .propositions, ‘For the Ordinance’ (or Resolution, as the case may be), and ‘Against the Ordinance’ (or Resolution, as the case may be). Immediately at the left of each proposition there shall be a square in which, by making a cross (X) the voter may vote for or against the proposed measure. If a majority of the electors voting on any such measure shall vote in favor thereof, it shall thereupon become an ordinance or resolution of the city. The statement descriptive of the substance of the ordinance or resolution to be placed on the ballot shall be drawn by the Director of Law and by him furnished to the election authorities having charge of the printing of the ballots.”

In State ex rel. v. Otis, 98 Oh St, 83, at page 94, we find this statement:

“It is true, however, that where the language of a charter is plain, clear and unambiguous, it must be given its usual and ordinary meaning, and if such construction is not in accord with the intent and purpose of the electors, the remedy is by amendment to the charter.”

In 28 O. Jur., page 81, we find:

“Interpretation by Conduct.”
“The actions and conduct of the people of a municipality, operating under a Home Rule charter, may be given consideration in the interpretation of the provisions of the charter.”

In the Akron charter it is plain, clear and unambiguous that any resolution or ordinance is subject to referendum with a few specific exceptions. Also a large group of electors, the council, and the mayor, acting for the people, without doubt have assumed this resolution is subject to referendum, and have taken steps to provide for a referendum.

The action of the council in the passing of the resolution was approved in the usual way by the mayor. The resolution is clearly within Section 20 of the charter which provides in part that — “Any ordinance or resolution passed by council shall be subject to referendum.” The exceptions noted in the charter are not important here. The pertinent part of the Federal Rent Control Act already quoted in substance herein recognized the local law (the charter) when it provided “upon receipt of a resolution of its governing body adopted for that purpose in accordance with applicable local law.” The federal law also recognized the initiative and referendum in local jurisdictions in Section 204, Section (4) f (1) (A) which provides in substance that rent control in the area may be retained by popular local referendum declaring it essential.

In the court’s opinion council in the passage of the resolution (or resolutions) involved here were acting in a legislative capacity. It is true the legislation was founded upon certain findings of fact, but that could be said of practically all resolutions and ordinances.

Under Section (34) of the charter “the council can act only by ordinance or resolution.”

Congress has delegated to each locality the decision as to whether rent control should be retained. Congress in effect has said that we think rent control generally is needed still, but each local jurisdiction, under its applicable local law, can decide that for itself.

And even if it be held that council’s action in passing the resolution was not a legislative act, under the city charter the people should not be denied the right of referendum thereon.

“The power of initiative and referendum may be conferred by the sovereignty upon a municipality with respect to any matter, legislative or administrative, within the realm of local affairs; and often the power, as conferred, is extensive, including all ordinances and resolutions and practically all actions that might be taken by a municipal council.”

McQuillin on Municipal Corporations, Vol. 5 (3rd Edition) page 251.

Counsel for plaintiff cite Hawke v. Smith, 253 U. S. 221 and 231, where the United States Supreme Court held that there could be no referendum in Ohio to the action of the Ohio Legislature in adopting the Amendments to the United States Constitution as to Prohibition and Women Suffrage, which decision reversed all the Ohio courts which had held that a referendum could be had to the Ohio Legislature’s adoption of these amendments.

There the United States Supreme Court was dealing with the specific Article V of the Federal Constitution, which it held exclusively provides for the manner in' which amendments to the United States Constitution should be adopted. The court cited authority also to the effect that the submission of an amendment by Congress did not even require any action by the President. The court held that the action of the Ohio State Legislature was not a legislative act and held that any other view would lead to endless confusion in the manner of ratification of Federal amendments. The situation there was not at all analogous. Congress in our case has specifically delegated the question of rent control to the local governing body for its action in accordance with applicable local law, — in our case the local Home Rule City charter.

The Congress knew it was a highly controversial subject and wanted to give each locality the right to pass on it, and according to its own applicable local law.

Attention is called to the following Ohio decisions:

The State ex rel v. City Commission, etc., 140 Oh St 368.

(1) syllabus. “The provisions of the state Constitution authorizing and providing the manner of submission of municipal ordinances to a referendum vote should be so construed as to permit rather than preclude the exercise of the right conferred. The object clearly sought to be obtained by such provisions should be promoted rather than prevented or obstructed.”

The same applies as forcefully to the City Charter adopted by the people of Akron.

See State ex rel Snyder v. Board of Elections, 78 Oh Ap, 194.

Syllabus (2) “Provisions of a city charter which provide for a referendum on all ordinances, including one levying a tax passed as an emergency measure, do not violate Section 1-d of Article II of the Constitution of Ohio.”

This section of the Constitution provides that certain emergency laws are not subject to referendum. But the charter prevailed.

This matter comes before the court upon demurrer of the plaintiff to the second, defense of the defendants, the City of Akron and Claude Butler, Clerk of Council of said city. The second defense incorporates the first defense of said defendants which admits everything alleged in the petition except that in the first defense defendants deny plaintiff’s allegation that the matter is not subject to referendum, and denies plaintiff’s claim that he has no adequate remedy at law.

In other words, from the pleadings the facts are not in dispute, and the matter becomes solely a question of law.. The facts admitted by the demurrer to the answer of said defendants are a complete defense in law, and the court overrules plaintiff’s demurrer, with exceptions.

Counsel will prepare journal entry accordingly.

The other defendants, the members of the Board of Elections of Summit County, are nominal but necessary parties to the action. In their official capacity they will proceed to carry out their duties in relation to placing the matter upon the ballot according to law unless prevented by further order of court. Said defendants have answered, and said answer, I presume for the sake of brevity, is simply a general denial.

Needless to say this matter is a very controversial question. This court has given its judgment according to the law as the court interprets it. If the court is in error there will be ample opportunity to correct it. The court will cooperate fully with the attorneys to expedite a review of this decision.


source: Caselaw Access Project

author: By PHILLIPS, PJ.

license: Public Domain

text:
    SHAW et, Plaintiffs-Appellants, v. PERRY et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3283.
    Decided August 27, 1949.
    Ralph R. Miller, Youngstown, for plaintiffs-appellants.
    Harry T. Rapport, Youngstown, for defendants-appellees.
   OPINION

By PHILLIPS, PJ.

Plaintiffs appealed to us on questions of law and fact from the judgment of the court of common pleas entered upon a decision of a judge thereof adverse to them. In that action plaintiffs sought an order decreeing that defendants hold real estate “upon a constructive trust for the sole and exclusive benefits of the plaintiffs,” and an order of transfer of such property to them.

In their petition filed in the court of common pleas plaintiffs, brothers-in-law of defendant Grant Perry, alleged that on or about November 1, 1943, through a licensed real estate broker, they entered into a contract with defendant Grant Perry to purchase three houses situated on Youngstown City Lot No. 15602 and the east ten feet of City Lot No. 15603, which together front sixty feet on the north line of St. Louis Avenue, in the City of Youngstown, Ohio; that they arranged with defendant Grant Perry to borrow the sum of $2400.00 from him to complete such purchase, which was evidenced by their promissory note secured by a first mortgage upon such property; that in compliance with the request of defendant Grant Perry, and relying upon his promise to complete such transaction, they delivered to him the receipt of such real estate broker for $100.00, evidencing the payment of $100.00 earnest money to him, and the sum of $880.00 in cash; that instead of completing the above transaction, in accordance with such agreement,- defendant Grant Perry fraudulently, and without their knowledge, took title to such property jointly in his own name and in the name of his wife, the defendant Eddie L. Perry, who refused to “transfer or turn over such property to them.” Plaintiffs further alleged that they paid defendant Grant Perry the sum of $2108.38, and that he has collected $726.00 in rentals from such property. Plaintiffs concluded their petition with the prayer that the trial court find and order that defendants hold such property upon a constructive trust “for the sole and exclusive benefits of the plaintiffs”; and order that they execute such trust and transfer such property by deed; and do such other things as are necessary to enable plaintiffs to receive the benefits rightly theirs in such property; and for such other and further relief in the premises as plaintiffs are entitled.

Defendants denied by answer, filed in the court of common pleas, each and every fact stated, averment made and allegation set forth in plaintiff’s petition, and:—

“For a further defense, defendants aver the alleged claims of the plaintiffs involve interests in land and that said claims are not in writing and are in violation of the statute of frauds of the state of Ohio, and are therefore now void and of no effect whatsoever.
“Further answering defendants aver that on or about the 2nd day of December, 1943, the plaintiff, George Shaw, and Irene Shaw, who is the wife of the plaintiff, George Shaw, entered into a certain written land contract with these answering defendants, for the purchase of a part of Youngstown (Ohio) City Lot Number 15602, and that on or about the 22nd day of July, 1946, in completion of said land contract, these answering defendants, executed and delivered a deed of conveyance for the part of said Youngstown City Lot Number 15602, described in said land contract to the aforesaid George Shaw and Irene Shaw, in accordance with the provisions contained in said land contract.
“Further answering defendants aver that on or about the 8th day of December, 1943, one of the plaintiffs, Ulysses Graham, together with Leola Graham, who is the wife of the plaintiff, Ulysses Graham, entered into a written land contract, with these answering defendants, for the purchase of another part of Youngstown City Lot Number 15602, and that up to the date of the filing of this answer, the said Ulysses Graham and said Leola Graham, have not completed the payments required of said Ulysses Graham and said Leola Graham, to these answering defendants, under the terms and provisions of the said written land contract, executed on or about the 8th day of December, 1943, between said Ulysses Graham and said Leola Graham and these answering defendants.”

By agreement of counsel the case was submitted to us on a transcript of the testimony taken in the trial court.

Each party, in an attempt to support the allegations of their respective pleadings, introduced evidence not necessary to state here in order to understand their respective contentions other than that which disclosed that a five room house was situated on the westerly part of the land described in plaintiffs’ petition, and two smaller buildings on the easterly portion thereof; that all moneys paid by plaintiffs to the Perrys in the land contract transaction are fully and adequately accounted for; that the tax bills have been paid and the receipts therefor received by defendants Perry; that insurance policies, upon which Perrys paid the premium, are carried in the name of defendants Perry with the proper land contract endorsement provision thereon.

If the facts submitted to us create a constructive trust in favor of plaintiffs it is the province of this court, sitting as a court of equity, to establish such a trust. See 40 O. Jur., paragraph 116, page 310, paragraph 108, pages 294, 295, 296; and 16 O. Jur., paragraph 96, page 223, and paragraph 76, at page 186.

“Whenever one person is placed in a relation to another, by the act or consent of that other, or the act of a third person, or of the law, so that he becomes interested for him or with him in any subject of property or business, he will in equity be prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has been associated.” Perry on Trusts, paragraph 206, page 358.

“When the person who has orally agreed to purchase for another, uses the latter’s funds or other property in payment, all courts would raise a constructive trust, if the circumstances did not cause a trust to result.” Perry on Trusts, paragraph 206, page 364.

As the result of a careful reading and consideration of the transcript of the testimony taken and evidence introduced in the trial court, and applying the law applicable to this case, our conclusion is the same as that reached by the trial court that “the defendants, Grant Perry and Eddie L. Perry, do not hold the property described in plaintiffs’ petition upon any trust whatsoever, and the court further finds for the defendants, Grant L. Perry and Eddie L. Perry, and against the plaintiffs George Shaw and Ulysses Graham, and the prayer of plaintiffs’ petition is denied, and the petition of the plaintiffs is dismissed; and judgment is rendered against the plaintiffs for the costs of this action.”

An entry drawn in accordance with the docket entry of this court and this opinion may be presented.

NfCHOLS, J, BUCKLEY, J, concur in judgment.


author: PER CURIAM:

text:
    BOYLE, Treas., etc., Plaintiff-Appellant, v. WARFEL et, Defendants-Appellees. STATE ex rel CURTISS, Plaintiff-Appellant, v. ZANGERLE, Aud., etc., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 21644, 21637.
    Decided February 20, 1950.

      Frank T. Cullitan, Pros. Atty., John F. Smolka, Doris Brucker, Asst. Pros. Attys., Cleveland, for appellant in Case No. 21644 and for appellee in Case No. 21637.
    Leckle, McCreary, Schlitz & Hinslea (Ansel B. Curtiss of Counsel), Cleveland, for appellant in Case No. 21637 and for appellees in Case No. 21644.
    (GUERNSEY, PJ, of the Third District, HUNSICKER, J, DOYLE, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

PER CURIAM:

In determining the controversy before us on appeal from a judgment of the Court of Common Pleas of Cuyahoga County, we do not deem it necessary to set forth the facts which are, in all important details, agreed upon by the litigating parties and well known to them.

It is the judgment of the members of this court that the commencement of a delinquent tax foreclosure action does not terminate the right of a property owner to the benefits of §2573 GC, as amended, and that such rights may be asserted at any time prior to final judgment and sale.

The legislature imposed no time limitation, and, as the rights of the property owners here involved come within the words of the statute, certainly they must come within its operation. We find no other statute the language of which conflicts with the substantive right given in the statute under consideration.

Furthermore, the action in foreclosure is one in equity in which the court, in the absence of a statute authorizing such action on its part, had authority in the exercise of its equitable jurisdiction to make the order of .which complaint is made for good cause shown; -and, in the absence of a bill of exceptions, it is conclusively presumed that such good cause was shown.

For the reasons stated above, the judgment is affirmed in case No. 21644.

In consideration of the judgment of affirmance in the instant case, namely, case No. 21644, the cause of action pleaded in case No. 21637 has become moot and the judgment of the Common Pleas Court refusing the writ of mandamus is therefore affirmed.

Judgment affirmed. Exceptions noted. Order see journal.

GUERNSEY, PJ, HUNSICKER, j, and DOYLE, J, concur.


author: By WOODS, Referee.

text:
    BARNHART, Bankruptcy, In re.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
    No. 66856.
    Decided June 29, 1950.
    Wilfred H. Collins, Akron, Trustee.
    Wm. A. Slater, Akron, for Bankrupt.
    Evan J. Reed, Akron, for objecting creditor.
   MEMORANDUM

By WOODS, Referee.

Geraldine Jane Barnhart was adjudicated bankrupt on February 14, 1950 and Wilfred H. Collins is the Trustee in Bankruptcy.

Her discharge came on for hearing in the usual course, and the Commercial Credit Plan, Incorporated, filed Specifications of Objection to her discharge, which excluding the formal parts are as follows:

1. The said Geraldine Jane Barnhart did obtain money and credit, and did obtain an extension of credit from this creditor by making and publishing a materially false statement in writing respecting her financial condition. Said statement was made in writing on February 25, 1949 to Commercial Credit Plan, Incorporated, for the purpose of obtaining a loan from said corporation. Said corporation did on said date loan to said Geraldine Jane Barnhart and her husband, Ivan J. Barnhart, the sum of $553.25 of which the sum of $496.03 was used to pay off the principal of a prior note to said corporation executed by said Ivan J. Barnhart and Geraldine Jane Barthart, and the sum of $57.22 was paid to said corporation as the balance of interest due on said prior note, and a new note was executed in said sum of $553.25 which materially extended the time of payment and provided for monthly payments over a period of 18 months thereafter. Said Geraldine Jane Barnhart failed to list all of her creditors in said financial statement, a substantial number and amount in claims was omitted from her said financial statement though said bankrupt knew of the existence of said claims, and said statement purported to be a full and complete list of her claims. Said financial statement was materially false in that she listed a total of her liabilities in the amount of $837.50 whereas in trust and in fact the same were approximately $1800.00. Said creditor relied upon said financial statement in making said loan.

2. The said Geraldine Jane Barnhart did on various and sundry occasions prior to February 25, 1949 obtain money and credit and an extension or renewal of credit by making materially false financial statements to said Commercial Credit Plan, Incorporated, which were relied'upon by said corporation.

The relevant statute, Section 14-c of the Bankruptcy Act provides as follows:

c. The Court shall discharge the bankrupt, unless satisfied that the bankrupt has (3) obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing or causing to be made or published in any manner whatsoever, a materially false statement in writing respecting his financial condition;

Counsel for bankrupt filed a demurrer to specifications of objection, and at the hearing parties were advised that a ruling on the démurrer would be reserved and all matters disposed of upon the hearing of the evidence.

The bankrupt is employed as bookkeeper and food controller at the Mayflower Hotel, is the mother of two children, and the continued illness of her husband contributed to the bankruptcy.

The Trustee has already filed a no asset return and the estate has been administered, except as to the disposition of objections to her discharge.

The proof shows that bankrupt had six previous loans from the objecting creditor, beginning February 19, 1946 in the amount of $150.00, including a loan on August 13, 1947 for $600.00, and each of these was refinanced, and the last prior to the one here in controversy was given June 7, 1948, for $496.03, and this last was refinanced with the note and statement of February 25, 1949, Ex. 1.

The manager and witness for objector testified that he and the bankrupt had been classmates in school; that he had handled the last three previous loans of bankrupt, that this last loan was in default, and he asked that a new contract be made, so that the time for payment could be extended. After this solicitation, bankrupt and her husband signed the new note, received two checks, for principal $496.03 and for interest $57.22, as stated in the objections, which checks were immediately endorsed and turned over to objector upon the execution of the new note, and at the same time the statement of financial condition was signed.

The note for the previous loan was kept by the objector and is endorsed on the back — “Refinanced—hold.” It was produced by the objector as Ex. 19, although it was admitted that the note had been paid in taking the new obligation.

The bankrupt says that while she knew of other debts, these were omitted from the statement, and that she talked with Roy P. Refiner, agent of objector, about them and he took the statement, as signed, as sufficient.

The schedule shows other debts and objector called witness from another loan company, showing an unpaid obligation, and an examination of this shows some 20 creditors, four for doctors and one a medical group.

The cases hold that to prevent a discharge, a statement must be false and fraudulent and must be a materially false statement, and that is intentionally untrue. It was said in Re: Venturella CO., 25 Fed. Sup. 332, 39 ABR ns 527 (D. C. Conn. 1938) affirmed 102 Fed. (2d) 1022—that a materially false financial statement, on the ground of which a bankrupt’s discharge may be denied must be one the falsity of which is known to the bankrupt and must be made in an attempt to deceive.

An early case is Re: Matthews, 47 ABR 39 (7 C. C. 1921), where Judge Evans said, pg. 39:

“From our examination of the evidence, we are unable to say this finding was erroneous. That a false property statement was made is conceded. But bankrupt says that he neither read the statement nor knew its contents. As an excuse for this negligent action, he says he was dealing with one who knew the state of his affairs fully as well as, or even better than, he knew them.”

The grounds for refusing a discharge to a bankrupt are statutory, and as to materially false statements, there are many cases: Judge Davis said in Tabac v. Morimura, Airi & Co. 21 Fed (2d) 161 (3 C. C. 1927) 10 ABR ns 538 that:

“Intent of the bankrupt is the touchstone by which his right to a discharge must be tested.”

This case was confirmed on review in Morimura, Airi & Co. v. Tabac, 297 U. S. 24 (1929) 13 ABR ns 277.

In this Circuit in Third National Bank v. Shatten, 81 Fed. (2d) 538 (1936) 31 ABR ns 10, Judge Hicks adopted such rule and the syllabus is, “A false statement in writing which is enough to warrant denial of discharge must be knowingly false or made recklessly without an honest belief in its truth and with a purpose to mislead or deceive.” In his opinion, Judge Hicks said, pg. 15:

“The right to the discharge was addressed to the discretion of the court (In re: Merritt [C. C. A., 9th Cir.], 13 Am. B. R. [N. S.] 47, 28 Fed. [2d] 679; Baash-Ross Tool Co. v. Stephens, supra); not to an arbitrary discretion, of course, but to its sound judicial discretion. We do not find that there was a gross abuse of the court’s function. The bankrupt had one purpose, common both to his business and his family; i. e., to make ends meet.”

To the same effect is the rule in the Fifth Circuit in Hartsfield Co. v. Smith, 61 Fed. (2d) 723, 22 ABR ns 51, where the court held that the statement must be intentionally untrue and not merely erroneously or mistaken to bar discharge under Sec. 14c (3) of the Bankruptcy Act.

Counsel for objector relies on Re: Levine 28 Fed. Sup. 819 (S. D. N. Y. 1939) 41 ABR ns 709, where it was held that false financial statements given on application for renewal of a loan, where the creditor relied upon the statement, that the discharge should be denied. However, in this Circuit bankrupt’s discharge was not denied on the ground that he obtained credit on false financial statement in writing, where it appeared from the undisputed evidence that the alleged false statement signed by bankrupt was prepared by an agent of the objecting creditor, and there was no proof that the creditor relied upon the false statement in extending credit. Opinion by Simons, Judge, in Crue v. Timmer 119 Fed (2d) 145 (6 C. C. 1941) 46 ABR ns 174.

From the facts which appeared in this case, that the objector had had a long course of dealing with the bankrupt, that the objector solicited the renewal of the note, and that he, an old friend and classmate of the bankrupt, made the request for a new obligation, it would appear that the bankrupt, knowing of her former dealings with the loan company, would not be reluctant to execute a new obligation, as requested.

On the refinancing, no proof was offered as to the computation by which the amount of $57.22 was added to $496.03 (the principal of the prior note) to make the total $533.25 in the new note. While this new contract may not be prohibited or condemned by the terms of the Ohio Small Loan Act §8624-50 GC et seq, attention is called to the provisions in that Act, §8624-62 b, GC that in refinancing — “It shall be permissible to incorporate in the principal amount of the new loan contract unpaid charges which have accrued within sixty days before the making of the new loan contract.” Apparently the purpose of the Small Loan Act is to protect small borrowers from harsh and oppressive charges in refinancing operations.

On the basis of the evidence offered here, it cannot be considered that the financial statement was seriously any part of the transaction, or that any reliance was placed on it by the objector in executing the new loan. In fact, the objector benefitted by the new obligation in that the past due interest became a part of the principal, and the old note was never returned to the bankrupt. ,

Proof fails to show any reliance of the objecting credit union, or its manager, on the false financial statements, it had received in the seven renewals of its loan to this bankrupt. If such reliance is claimed, it should be pointed out that the false financial, statement was procured by trick to secure a new loan, which cannot be countenanced in considering the rights of debtors in administering the Bankruptcy Law. Instances where such practice by the objecting loan company have not been held to prevent a discharge are to be found in the cases of In Re: Venturella, 25 Fed Sup. 332, 39 ABR ns 527 (D. C. Conn. 1938), affirmed 102 Fed (2d) 1022 (2 CC 1939), and In Re: Kenney 43 ABR ns 242, (1940), a case from this Referee, which was affirmed by the District Judge on review.

Procurement of a false financial statement from debtor by trick by a loan company, to be used later that it may object to the discharge of a bankrupt under Sec. 14c (3) of the Bankruptcy Act, so as to help in collecting its account, is a practice not to be favored. Congress- never intended that the Bankruptcy Court should be used as an adjunct to a collection agency.-

Having disposed of the objections to discharge on the merits, the demurrer will be sustained, the objections overruled, and discharge granted.


author: By WISEMAN, J.

text:
    MURPHY, Estate of, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4352.
    Decided March 1, 1950.

      Walter R. Snyder, Owen B. Sherwood, Columbus, for appellant.
    Fred W. Postle, H. E. Peters, Columbus, for the Estate of Dellot H. Murphy, Deceased.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Probate Court of Franklin County, Ohio. This matter was presented to a Judge of the Common Pleas Court acting as Probate Judge.

The decedent, Dellot H. Murphy, died testate in June, 1947. The widow, Gladys Murphy, was duly appointed executrix of said estate. In March, 1948, the executrix filed an account showing the payment of certain claims against the estate and resigned as such executrix. On March 31, 1948, Fred W. Postle was appointed as administrator de bonis non with the will annexed. The administrator immediately filed an action to sell the real estate to pay debts. In the inventory filed in the estate the real estate was appraised at $6000.00. In the land sale proceeding the original appraisement was not adopted and the Court ordered a new appraisement, the value returned being $4750.00. The widow purchased the real estate at private sale at the appraisement. The sale was confirmed and the proceeds distributed.

After the land sale proceeding was completed the administrator filed an application for an order declaring the estate to be insolvent. Apparently the application was drawn to conform to the provisions of former §10509-130 GC. This section was repealed August 22, 1941, for the reason that it served no useful purpose in the administration of an insolvent estate. On the same date §10509-127 GC, and other related sections were amended. This section in part provides:

“If it appears at any time that the estate is insolvent, the executor or administrator may report that fact to the court and apply for any order that he deems necessary in connection therewith.”

This provision is permissive and contemplates an ex parte hearing. At present there is no section in the Probate Code which provides for filing a proceeding to declare an estate insolvent. While the application filed in this case was for the purpose of securing an order declaring the estate insolvent, a procedure prescribed by former §10509-130 GC, nevertheless, it may be regarded as a report of insolvency and an application under the provisions of §10509-127 GC. It will be observed that under the latter section the executor or administrator simply reports the fact of insolvency and applies “for any order that he deems necessary in connection therewith.” The authority of the Probate Court under this provision is limited to giving instruction to the executor or administrator in the distribution of the proceeds of the estate in view of the insolvency. The executor or administrator is required to distribute the assets of the estate to creditors in the order of priority provided in §§10509-121 and 10509-122 GC. In view of the provisions of these two sections, in a hearing on the application which is ex parte in character, the court could inquire whether the report of insolvency was correct, and instruct the administrator in what manner and to whom the assets should be distributed, but was without authority to do more.

The appellant is a creditor whose claim was reduced to judgment and was served with notice of the pendency of the application. The appellant filed a motion to dismiss the application, raising certain issues which could not be determined in a hearing on such application or on the motion. The motion requested the trial court: First, to dismiss the representation of insolvency; second, for an order setting aside the confirmation of the land sale; third, for an order setting aside the appraisal in the land sale proceeding; fourth, for an order requiring the administrator to account for the former appraised value of the real estate made in the administration proceeding; fifth, for an order setting aside the homestead exemption and an allowance of dower in the distribution order in the land sale proceedings; sixth, for an order requiring the administrator to account for all of the assets in said estate; seventh, for an order requiring the administrator to reject the claim of Mildred Bagby; eighth, for an order requiring the administrator to pay all claims falling within the same class on a pro rata basis; and, ninth, for an order requiring the administrator to account for moneys held by the decedent and the widow in a joint and survivorship bank account.

The administrator de bonis non was served with a notice of the hearing on the motion. Neither the widow nor Mildred Bagby was served with a notice of the hearing on either the application or the motion.

The trial court overruled the first, second, third, fourth, fifth, sixth and ninth branches of said motion and sustained the seventh and eighth branches. The seven assignments of error are directed to the order of the court overruling the several branches of the motion.

The court very properly overruled the first branch of the motion. The application was properly filed as a report of insolvency and if the court found the estate to be insolvent the court could make an order which it deemed proper under the provisions, of §10509-127 GC.

The second, third, fourth and fifth branches of the motion relate to orders made in the land sale proceeding. The regularity and validity of the land sale proceeding could not be challenged in a hearing on such application. However, the record submitted to this Court shows no authority for allowance of dower in the distribution order in the land sale proceeding, as vested dower has been abolished in Ohio, with certain exceptions which are not shown to exist in this case. If the appellant takes the appropriate steps in the land sale proceeding these matters may be determined by the Probate Court. The Court properly overruled the second, third, fourth and fifth branches of the motion.

On the sixth branch of the motion the Court took testimony to determine the ownership of office furniture and accounts receivable which were listed in the inventory and appraised at $100.00 and $583.00, respectively. The Court found that the office furniture and accounts receivable were not owned by the decedent but belonged to the widow, and overruled the motion of appellant to require the administrator to account for said assets. The inventory was approved by the Court, no objections being filed thereto. .The accounts receivable were set off to the widow under §10509-54 GC. Later the widow elected to take the office furniture at the appraised value under §10509-89 GC. This proceeding does not challenge the correctness or validity of the inventory, or the Court’s approval thereof, nor the order made on the election of the widow to take the office furniture at the appraised value. So long as the office furniture and accounts receivable remained in the inventory as assets of said estate the administrator should be required to account therefor. There is evidence tending to prove that the office furniture and the accounts receivable did not belong to the decedent and were owned by the widow, but an adjudication as to the ownership of such property cannot be made in this proceeding. This question can be raised in an appropriate proceeding brought for that purpose. On the record as it now stands the motion of the appellant to require the administrator to account for the office furniture as estate assets should have been sustained. The administrator is not required to account for property selected under §10509-54 GC.

On the issue raised by the seventh branch of the motion the Court took testimony to determine whether the claim of Mildred Bagby was a valid claim against the estate. The Court disallowed the claim and sustained the seventh branch of the motion. The Court was without authority in this proceeding to hear and determine the validity of the claim. No notice was served on Mildred Bagby, and the judgment of the Court was not binding on her for still another reason. The claim had been presented to the fiduciary and had been allowed and was so listed on the schedule of debts. After a claim has been allowed by the executor or administrator and a creditor or an heir desires to have the claim disallowed it may be done by requisition under §§10509-135 and 10509-136 GC. The appellant being upheld on this branch of the motion has assigned no error in respect thereto, and the administrator has not filed a cross-appeal. However, the action of the Court on this matter is a nullity and may be corrected by taking the appropriate action in the trial court.

The Court very properly sustained the eighth branch of the motion requiring the administrator to pay all claims falling within the same class on a pro rata basis. This order conforms to the provisions of §10509-122 GC.

On the ninth branch of the motion the Court took testimony to determine the ownership of joint and survivorship bank accounts held in the name of the decedent and his wife. The Court found that the bank accounts, upon the death of the decedent, passed to the widow by virtue of the joint and survivorship contract. While we find no fault with the conclusion of the trial court in holding that the bank accounts belonged to the widow, nevertheless, the Court was without authority to determine the question of ownership in this proceeding. This branch of the motion was properly overruled but the finding of the Court did not amount to an adjudication on the question of ownership. Evidence as to the ownership of such property was properly admitted in determining whether the estate was solvent or insolvent, but for no other purpose. The action of the Court in so far as it attempts to adjudicate the question of ownership of said bank accounts is a nullity and may be corrected by the Probate Court if the appropriate proceedings are instituted for that purpose.

We hold that the Court was without authority to pass on certain issues raised by the motion. While it is true that under §10501-53 GC, the Probate Court has “plenary power at law and in equity fully to dispose of any matter properly before the court,” etc., it will be observed that a necessary prerequisite to the exercise of such plenary power is that the matter at issue be properly before the Court. Neither the ownership of the office furniture, accounts receivable and the bank accounts, nor the allowance or disallowance of the claim of Mildred Bagby, were matters properly before the Court.

Since all the assignments of error are directed to the judgment of the trial court in overruling the first, second, third, fourth, fifth, sixth and ninth branches of the motion, we find no assignment of error well made, except as to the sixth branch of the motion.

The judgment entry of this Court should show: That the judgment of the trial court in overruling the first branch of the motion is affirmed; that the judgment of the trial court in overruling the second, third, fourth and fifth branches of the motion is affirmed on the ground that the Court in this proceeding was without authority to adjudicate the issues raised therein with respect to the land sale proceeding and the affirmance in no manner shall be considered as an adjudication of such issues; that the judgment of the trial court in overruling the sixth branch of the motion is reversed, as the administrator should be required to account for the office furniture as assets of said estate so long as such- property remains in the inventory; that the judgment of the trial court in sustaining the seventh branch of the motion is dis-affirmed, but in the absence of a cross-appeal we cannot reverse, and that the finding of the trial court in disallowing the claim of Mildred Bagby is a nullity; that the judgment of the trial court in sustaining the eighth branch of the motion is affirmed; that the judgment of the trial court in overruling the ninth branch of the motion is affirmed, but the affirmance is not to be considered as an adjudication of the matters raised on the ground that the Court was without authority in this proceeding to determine the question of ownership of the bank accounts and that the action of the Court in attempting to adjudicate this question is a nullity.

So ordered.

MILLER, PJ, and HORNBECK, J, concur.


author: By LOVE, J:

text:
    DEEDS, Exr., Plaintiff, v. DEEDS et, Defendants.
    Probate Court, Montgomery County.
    No. 115205.
    Decided March 16, 1950.
    Landis, Ferguson, Bieser & Greer, Dayton, for plaintiff.
    Snyder, Seagrave, Roudebush & Adrion, Cleveland, for Denison University.
   OPINION

By LOVE, J:

Edith W. Deeds died testate on February 9, 1949. Her last will and testament executed March 1, 1945 and a codicil executed December 6, 1948 were duly admitted to probate on February 19, 1949.

Item Fourth of the will provides:

“ALL THE REST, RESIDUE AND REMAINDER of my property, real and personal,, of every kind whatsoever and wheresoever situated, I give, devise and bequeath to my husband, Edward A. Deeds, or in case he shall not survive me, to my son, Charles Walton Deeds.”

Item First of the subsequently-executed codicil provides:

“I give and devise to DENISON UNIVERSITY, an aducational corporation, located in Granville, Ohio, for its general uses and purposes, all of the real property owned by me in Montgomery County, Ohio, at the time of my death, including all buildings and other improvements and fixtures thereon and appurtenances thereto, subject to the use and enjoyment of certain property given in the next succeeding paragraphs.
“I give and devise to each of my faithful employees, GEORGE GETTER, HENRY HURLEY and EUGENE JACKSON, who may be residing on my land in Montgomery County, Ohio, at the time of my death and wish to continue to live thereon, the use and enjoyment of a house, together with the use and enjoyment of certain surrounding land and furniture and furnishings therein as follows:”

A description of each of the gifts to the named employees follows, after which the instrument directs:

“The term of such use and enjoyment shall be ten years after my death or the lifetime of the employee concerned or the period of his occupation of such house, whichever shall be shorter. * * *”

Item Second provides:

“In all respects, except as herein modified by this Codicil, I hereby ratify and confirm the provisions of my said Last Will and Testament dated March 1, 1945.”

A petition for a declaratory judgment was filed September 16, 1949 by the executor praying for the direction of the Court as to the rights and interests of the parties; and the matter was submitted on the pleadings, briefs of counsel, and the evidence.

The sole question to be determined may be stated as follows: Does the real estate pass to Denison University, an educational institution, under the codicil which was executed within one year of the death, of testatrix?

Sec. 10504-5 GC, the so-called “Statute of Mortmain,” provides as follows:

“If a testator dies leaving issue of his body, or an adopted child, living, or the lineal descendants of either, and the will of such testator gives, devises or bequeaths the estate of such testator, or any part thereof, to a benevolent, religious, educational or charitable purpose, or to this state or to any other state or country, or to a county, city, village or other corporation, or association in this or any other state or country, or to a person in trust for such purposes, or municipalities, corporations or associations, whether such trust appears on the face of the instrument making such gift, devise or bequest or not; such will as to such gift, devise or bequest, shall be invalid unless it was executed according to law, at least one year prior to the death of the testator.”

The English Statutes of Mortmain were never supposed to have been meant to extend to her colonies and were never in force in those colonies of America which became independent states, except by legislative adoption. The English Statutes of Mortmain, if they were ever considered to be in force in the State of Ohio, were repealed by the Act of 1806. See Perin v. Carey, 24 How. (U. S.) 465, 16 L. ed 701; 2 Bogert, Trusts and Trustees (1935), Ch. 17, Section 325, page 1036.

In the United States statutes limiting the powers of one who desires to give to charity are of two distinct types, namely: (1) those concerned with the time of the charitable gift and (2) those involving the amount of such gift. Sec. 10504-5 GC, falls within the first category.

The purpose of §10504-5 GC, is to prevent improvident testamentary dispositions to the exclusion of the persons named in the statute. In Davis v. Davis, 62 Oh St 411, 419, 57 N. E. 317 (1900), the court states:

“The statute evidently was enacted for the special protection of the children or adopted child of the testator, and their representatives, in the cases provided for, though, as held in Patton v. Patton, 39 Oh St, 596, it inures also to> the benefit of the collateral heir when the lineal heir survives the testator and then dies.”

Also see Ruple v. Hiram College, 35 Oh Ap 8, 11, 171 N. E. 417 (Cuyahoga County, 1928).

In speaking of the California statute (one which limited the proscribed bequests to one-third of the estate when testator left heirs), the court said in Re Estate of Dwyer, 159 Cal. 680, 687, 115 Pac. 242 (1911), in words apropos to the Ohio statute, §10504-5 GC:

“The theory of section 1313 is not to prevent charities from receiving testamentary gifts of property. It is not a mortmain statute; not an expression of a policy of the state against the accumulation of vast properties or the centralization of wealth in mortu mami. It was not designed to operate upon the capacity of corporations or institutions or individuals to take charitable testamentary gifts but solely as a limitation on the power of a testator to make them when he had legal heirs. The purpose of the section was remedial; to prevent what was deemed a wrong and injustice to those who should naturally be the recipients of the bounty of a testator — his heirs at law. It was not enacted for the public good or as a matter of state polity, but for the benefit exclusively of those named in it — the heirs at law — and as a protection against hasty and improvident gifts to charity by a testator of his entire estate to the exclusion of those who in the judgment of the legislature had a better claim to his bounty.”

The defendant, Charles W. Deeds, son of the testatrix, on September 16, 1949 filed a waiver' and disclaimer of all rights given by virtue of §10504-5 GC, as follows:

“The undersigned, CHARLES W. DEEDS, being first duly sworn, says he is the only son and surviving issue of the body of Edith W. Deeds, deceased, that he is of full legal age and fully competent, and that he hereby irrevocably waives and disclaims any and all rights by virtue of §10504-5 GC, with respect to the Will and Codicil of Edith W. Deeds admitted to probate herein on February 19, 1949.”

The waiver and disclaimer of Charles W. Deeds directly raises the .question for determination as to whether the persons intended to be benefited by the statute: i. e., issue may waive the protection of the statute. The answer to this question depends upon the answer to the following question: Does the statute make the prohibited charitable bequest void or voidable? If such bequest is merely voidable, then the persons intended to be benefited may waive its benefits and thus validate the charitable bequest. If the bequest is void, on the other hand, no act by the persons intended to be benefited will validate it.

Sec. 10504-5 GC, describes the gift to an educational institution within one year of the death of the testatrix as “invalid.” Whether the word “invalid,” as used in the statute, shall be construed as void or voidable has not been decided in Ohio. In cases decided by the Supreme Court, the law of "the case is found in the syllabus. Various Supreme Court ■cases have stated in their respective syllabi and in dicta that §16504-5 GC renders the gift void, but in none of the ■cases examined was it necessary to determine the precise point as to whether the gift was void or voidable under the statute. Consequently, these decisions would not set a precedent which would bind this Court. See Patton v. Patton, 39 Oh St 590 (1883); Davis v. Davis, supra, 413; Cleveland Trust Co. v. White, 134 Oh St 1, 11 O. O. 377, 380 (1938); Ruple v. Hiram College, supra. Also see Harrison v. Hillegas, 13 O. O. 523, 526 (Probate Court of Tuscarawas County, 1939).

In Thomas v. The Trustees of Ohio State University, 70 Oh St 92, 70 N. E. 896 (1904), the testator left the residue of his estate to Ohio State University by a will executed within 'One year of his death and provided for a gift over if the residuary bequest should fail or be held void. By a codicil the testator authorized and empowered his daughter to ratify .and confirm the residuary bequest to Ohio State and specified that, if the daughter should ratify in accordance with his desires, the gift over should be revoked. The daughter ■executed an instrument by which she confirmed the will and codicil and conveyed the residuary estate to the University. Isabel Page, the daughter, died after executing the instrument.

In speaking of the instrument executed by the daughter, •the Court say at page 111:

“It may be construed as an execution of the power granted in the will or as an original conveyance or both, and it is ■operative to invest the Board of Trustees of the Ohio State University with a full and perfect title to the property therein •described.”

The Court held that the recipients of the gift over, the children of the testator’s brothers, took nothing under the provisions of the will because the devise over to them was defeated upon the happening of a condition: i. e., the ratification of the devise to the University by the daughter.

The Thomas case does not squarely decide whether the ■gift was void or voidable; however, a careful analysis of the syllabi and the supporting opinion indicates that in effect "the Supreme Court held that the gift was voidable only and mot void.

Whether this Court is right or wrong in the analysis of the Thomas case as to the gift to the University being void' or voidable, suffice to say (1) that the case does stand for the-proposition that a power of appointment, such as executed by the daughter in said case, validated the gift to the University and (2) that the Supreme Court gave consideration to the purpose of Ohio’s so-called “Mortmain Statute” and concluded that the statute could be waived and relinquished by those for whom the statute was designed to protect, for at pages 107 and 108 the Court say:

“It is obvious that this statute does not make the act of giving, devising or bequeathing property an illegal act; for the same gift, devise or bequest which is declared to be invalid if the testator shall die within one year from the execution of his will, may become valid if the testator shall live one year or more after making the will. In other words, the devise or bequest may be valid or invalid according to-the lapse of time. It is therefore apparent that this statute is intended to operate merely as a limitation upon the testator’s power of disposition, for the protection of the heir against improvident wills or wills made under undue influence. Being such a limitation the statute is to be strictly construed. Theobald et al. v. Fugman et al., per Spear, Jr., 64 Oh St, 473, 481; McGlade’s Appeal, 99 Pa. St., 339 343; and being such a limitation and no contrary principle of right or of public policy being involved, the person for whose benefit it is made may waive or relinquish it.” (Emphasis ours.)

The court in the case of First National Bank of Atlanta et al, Executors, 36 B. T. A. 491 (1937), affirmed 102 Fed. (2d) 129 (1939), involving a deficiency determination in an estate tax, held that the respondent commissioner had erred in disallowing the deduction from the decedent’s gross estate of certain charitable bequests. The decedent, a resident of Georgia, executed his will eighty-nine days prior to his-death. Section 3851 of the Georgia Code of 1926 provided:

“No person leaving a wife or child or descendants of child, shall, by will, devise more than one-third of his estate to any charitable, religious, educational, or civil institution, to the exclusion of such wife or child; and in all cases the will containing such devise must be executed at least 90 days before the death of the testator, or such devise shall be void.”

The widow and daughter of the decedent renounced any and all interests in charitable bequests made by the testator’s ■will and executed a written instrument assenting to the validity of same and empowering and directing the executors ■and trustees to carry out the terms of the will with respect thereto. Noting that the Fulton County, Georgia Supreme Court had held the charitable bequests valid and that the Board was bound thereby, the deduction was approved.

Estate of Dudley S. Blossom, 45 B. T. A. 691 (1941) involved the same question as the preceding case. The decedent- was an Ohio resident and was survived by his wife and two children. The decedent made specific cash bequests to his wife and two children, followed by cash bequests aggregating five hundred thousand dollars ($500,000.00) to be placed in perpetual trust for various charitable institutions. The will then provided:

“In the event of my death within a year from the date of the execution of my will, I hereby authorize and empower my son, Dudley S. Blossom, Jr., and my daughter, Mary Blossom Gale, or the survivor of them, to ratify and confirm each and every bequest hereinabove made to * * *” (the institutions) “and I desire and request that my said children, or the survivor of them, ratify and confirm each such bequest.
“In the event my said son and daughter, or.the survivor of them, shall fail to ratify any or all such bequests, and in the further event that such bequests shall be invalid because of my death within one year * * * I give all such invalid legaci.es to my wife, Elizabeth B. Blossom, to be hers absolutely.”

The testator having died within a year of the date of execution of the will, the children executed an instrument ratifying and confirming the bequests. The Probate Court of Cuyahoga County, in a will construction, held that the ratification and confirmation nullified §10504-5 GC and the gifts were valid. Bound by this, the Board held the Commissioner erred in disallowing the deductions.

The Tax Court, speaking in Estate of William A. Carey, 9 T. C. 1047, 1054 and 1055 (1947), said:

"The statutes of Georgia and Ohio which were involved in the cases of First National Bank of Atlanta v. Commissioner, 102 Fed. (2d) 129, and Estate of Dudley S. Blossom, 45 B. T. A. 691, have been construed by the courts of those states, respectively, to make charitable bequests under a will which comes within the provisions of the particular statutes as voidable rather than void.”

The statute concerned in Taylor v. Payne, 154 Fla. 359, 17 So. (2d) 615 (Supreme Court of Florida, En Banc, 1944), Section 20 of the Probate Act of 1933, c. 16103, provided that, if the testator dies leaving issue of his body, or an adopted' child, or the lineal descendants of either, or a spouse, and the-will bequeaths property to a religious institution, such) will as to such bequest shall be invalid unless executed at least six months prior to his death. The testator bequeathed to his widow, for life, any proceeds derived from a certain contract and mortgage, with directions that at her death any-balances should become the property of the trustees- of a, certain church. Judgment dismissing the petition of the-trustees, in an action to require the administratrix c. t. a. d. b. n. to turn over the proceeds, was affirmed on the ground the-pleading was insufficient in that it failed to allege that the-person for whose benefit the statute operates (the surviving spouse) had waived or relinquished its protection; but the court said at page 365:

“* 1 * it is our view that the fact of the existence- of issue-of the body of the testator, or adopted children, or lineal descendants of either, or a spouse, does not render a testamentary bequest made to a benevolent, charitable-, educational, or religious institution within six months of the death of the testator ipso facto void but voidable only, at the election of the spouse, or children, blood or adopted, or their lineal descendants. The prohibition of the statute not being made in the public interest but only for the prevention of that which the Legislature has regarded as a private wrong, and no contrary principles of right or public policy being involved, those for whose benefit the statute was enacted' may waive or relinquish the protection afforded thereby, if they are of the mind to do so, and ratify or confirm a bequest which but for the mere absence of a sufficient period of time between the execution of the will and the death of the testator would be absolutely valid. Page on Wills 2nd Ed. Sec. 31; Folsom, et al., v. Board of Trustees Ohio State University, 210 Ill. 404, 71 N. E. 384; Thomas v. Board Trustees, 70 Oh St 92, 70 N. E. 896; Trustees of Amherst College v. Ritch, 151 N. Y. 282, 335, 45 N. E. 876, 891, 37 L. R. A. 305; Re Hills’ Estate, 264 N. Y. 349, 191 N. E. 12, 93 A. L. R. 1380; Karolusson v. Paonessa, 207 Iowa 127, 222 N. W. 431.”

37 O. Jur., Statutes, Section 464, page 791, reads as follows:

“Persons may expressly or impliedly waive statutory provisions intended for their benefit, but provisions may not be waived where they are intended for the benefit of others, ■or where public policy or public right requires their observance.”

56 Am. Jur., Waiver, Section 4, page 105, discusses the problem as follows:

“The doctrine of waiver, from its nature, applies ordinarily to all rights or privileges to which a person is legally entitled, .provided such rights or privileges belong to the individual and ■are intended solely for his benefit. A waiver is not, however, .allowed to operate so as to infringe upon the rights of others, ■or to transgress public policy or morals.”

Section 7 of the same work states:

“While one cannot waive a public obligation created by statute, he may waive a statutory requirement the purpose ■of which is to confer a private right or benefit, such as, by way -of illustration, the right of an innkeeper under a statute limiting his liability for loss of the effects of his guests, the right ■of a creditor to written notice from the surety to sue the •principal in order to discharge the surety, creditors’ right of recourse to the liability of stockholders for payment of the ■corporate debts, and the right of stockholders to notice of •corporate meetings. Statutory rights may be waived or .surrendered, in whole or in part, by the party to whom or for whose benefit they are given, if he does not thereby destroy 'the rights and benefits conferred upon or flowing to another in or from such statute or other legal or equitable source. * * * .'Even when a statute in so many words declares a transaction ‘void’ for want of certain forms, the party for whose protection ‘the requirement is made often may waive it, ‘void’ being held ‘to mean only voidable at the party’s choice.”

Cited: United States v. New York & P. R. S. S. Co., 239 U. S. 88, 60 L. ed. 161, 36 S. Ct. 41; Black Diamond Coal Min. Co. v. Rankin, 170 Tenn. 651, 98 S. W. (2d) 311, citing R. C. L.

In Re Hills’ Will, 264 N. Y. 349, 191 N. E. 12, 93 A. L. R. 1380 (1934), the court, after declaring that under New York law ‘the persons who had a right to contest the will of a testator, ‘by which more than the statutory portion was given to charity, ■might waive or retain that right at their election, explained the ■existence of such right on the broad principle that, where-■ever a right is given for the protection of particular individuals only and not for the protection of the general public, the individual upon whom the right has been conferred, be it by law or by contract, has the choice to assert such right or to-waive it according to his free will. The court also cited Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L. R. A. 305 (1897).

The court in Folsom v. Board of Trustees of Ohio State University, 210 Ill. 404, 71 N. E. 384 (1904), held that the privileged persons within the Ohio statute may waive the protection' of the statute and ratify and confirm a devise or bequest which,, but for such waiver, would be invalid.

This Court is of the opinion, therefore, that the waiver of the benefited person’s right may take the form of a testamentarily-conferred power of appointment (as in the Thomas case), or it may be in the form of a quit-claim deed, or ini any other manner which the benefited person may choose to. relinquish his statutorily-given right. Charles Deeds having waived protection of the statute, the gift to Denison University is valid.

This case may be decided on another ground as if Charles; Deeds had not executed a waiver or disclaimer. The Court, is of the opinion that the purpose of §10504-5 GC, is to protect those near relatives of a testator who are naturally dependent upon him for their support. That is, it is intended: that the property composing the invalidated gift will go. to the persons named in the statute who are disappointed by the will or codicil. This is the benefit conferred by the statute. . But no benefit can be conferred by the statute-unless there is a residuary clause in favor of the class named, in the statute or unless the class named can take by intestacy; for, otherwise, the purpose in invalidating the gift, is not served. If the property passes under Item Fourth of' the will as residuary property to Colonel Deeds, the purpose of §10504-5 GC in invalidating a gift to charity — to prevent-imposition upon the donor and to protect her child against unwise generosity — is not served for the' son does not benefit, by virtue of the invalidation of the charitable gift.

In Ruple v. Hiram College, supra, the will of the testator-set up a trust fund of the residue for the testator’s wife and daughter for life with the remainder over to charity plus a ten thousand dollar ($10,000.00) gift to a legatee. A codicil' subsequently revoked the ten thousand dollar ($10,000.00) bequest. In holding that the codicil, which was executed within one year of the testator’s death and which revoked the bequest and thereby increased the residue which went to the-charities, was not void under the statute, the court said at. pages 12 and 13:

“The codicil which plaintiff claims tjie right to avoid in this case, while made within one year prior to the death of 'the testator, and while made by a testator who died leaving issue of his body, did not in any way affect the interest of ¡any descendant of the testator. If the original will had stood without the codicil, the $10,000 in controversy would have rgone to Mr. Ruple,” (the plaintiff) “who is not of the issue of the testator. With the codicil operating, the $10,000 would pass with the residuum to the two defendants herein.” (the «charities) “The interest of the testator’s descendants was unaffected one way or the other by the codicil. It follows that the purpose for which §10504 GC was enacted would not be served by holding that the codicil fails because it was made within a year of the testator’s death. Not only does the spirit of the section referred to fail to condemn the «codicil, but the letter of the statute likewise fails so to do.” (Emphasis ours.)

And, since §10504-5 GC is not a mortmain statute: i. e., a prohibition against the holding of property by charitable -corporations, there is no reason to invoke the protection of the statute when the statutory benefit is impossible of con.ferment. Only the persons named in the statute can invoke its protection, and such a statute is not invoked unless the declared purpose of the statute will be served.

In St. John v. Andrews Institute, 191 N. Y. 254, 83 N. E. 981 (1908), 14 Ann. Cas. 708, writ of error dismissed in 214 U. S. 19, 53 L. ed. 892, 29 S. Ct. 601, it was held that the statute does not become operative on a will until the date of the death of the testator and consequently if, at the time of his -death, none of the protected persons survive him, the gift created is valid although the will was executed within the prescribed period of time. See also Ruple v. Hiram College, supra, page 11.

The statute then is not operative unless persons therein named survive the testator. Again, the statute is not operative unless the declared purpose of the statute is served. When the person named in the statute is not benefited by the invalidation of the proscribed gift, the effect is the • same as if there had been no statute in the first place and the gift to the benevolent, religious, educational, or charitable institution is valid. Therefore, in the case at bar, it was not necessary for Charles Deeds to waive or relinquish the benefits -of the statute because he had nothing to relinquish.

The Court therefore finds that the facts alleged in the ^petition are true; that the codicil of said decedent is not invalidated by §1050^-5 GC; that said codicil should be given.-, full legal effect according to its terms; that under and by-virtue of the terms of said codicil the decedent’s real estate-located in Montgomery County, Ohio passes to the defendant Denison University, subject only to the rights of use and! enjoyment therein devised to defendants George Getter, Henry Hurley, and Eugene Jackson; and the executor is directed to-proceed accordingly.

Entry in accordance with this opinion.

Costs to the estate of Edith W. Deeds.


text:
    HUMPHREY, Plaintiff-Appellant, v. HENDERSON et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3338.
    Decided March 30, 1950.
    Joseph L. Heffernan, Henry C. Church, Youngstown, Herschel Kriger, Canton, for plaintiff-appellant.
    H. H. Hunt, Law Director, I. Freeman and P. Richard Schumann, Asst. Law Directors, Youngstown, for defendants-appellees.
   OPINION

By PHILLIPS, PJ.

Acting in accordance with the provisions of §4314 GC, plaintiff filed a taxpayer’s suit in the court of common pleas. In that action he sought to enjoin the City of Youngstown, a municipal corporation operating under a home rule charter-of its own adoption, its mayor and finance director permanently from enforcing and collecting an income tax levied under its ordinance 49349, allegedly passed as an emergency measure by its council.

In his amended petition plaintiff alleged that the passage and enforcement of that ordinance was an abuse of the corporate powers of that city, unconstitutional and void for the following reasons:—

“1. Said tax ordinance is illegal for the reason that the constitution of the State of Ohio grants the State of Ohio the exclusive right to levy an income tax and said tax ordinance is an unlawful invasion of the sovereign power of the State of Ohio.
“2. Said tax ordinance is illegal because it is discriminatory as between wage earners employed in Youngstown and other taxpayers. Wage earners employed in Youngstown are deprived of their tax payments on each payday whereas other taxpayers pay said tax quarterly and have the use of said funds during the intervening periods..
"3. Said income tax ordinance illegally creates a new division or office in the government of said city, to wit: The Board of Review as provided by Section 12 of said ordinance without the same having been approved by the electors of the said city at a referendum election in contravention of Section 88 of said Charter.
"4. Said income tax ordinance illegally delegates to the City Council the appointment of an administrative official, to-wit: The one member of the Board of Review established in Section 12 of said ordinance in violation of Section 5 of said Charter and illegally delegates to two members of said Board of Review the appointment of a third member of said Board of Review. The appointment of said members of said Board of Review being properly an administrative duty of the Mayor or the Director of Finance pursuant to said Charter and the laws of the State of Ohio.
“5. Said income tax ordinance illegally delegates to the said Board of Review the duties of the City Council to fix the rate of tax to be assessed and the Director of Finance to collect such tax in that it permits the said Board of Review to reverse or modify the decisions of the Director of Finance in regard thereto and thus in effect allow said Board of Review to be the final arbiter of the rate and collection of such tax in those circumstances when complaint is made to it."

The trial judge found, as stated in the following entry spread upon the journal of that court:—

“This cause came on to be heard on the pleadings, evidence and briefs and the court upon due consideration thereof finds on the issues joined in favor of defendants.
“The court further finds that Ordinance No. 49349, passed by Council of the City of Youngstown on June 7, 1948, enacting ¡a city income tax, does not unlawfully invade the sovereign power of the State of Ohio and is not in conflict with Article XII, Secs. 8 and 9, of the Constitution of Ohio, in that the State of Ohio has not enacted an income tax and, therefore, has not pre-empted said field of taxation.
“That said tax is not discriminatory as between wage earners employed in Youngstown and other tax payers.
“That said ordinance does not create a new division or office in the Government of the City of Youngstown in contravention of Sec. 88 of the Charter of the City of Youngstown, requiring the approval of the electors of the City of Youngstown, in that the Board of Review is merely ancillary to the Director of Finance and was created for the purpose of assisting the Director of Finance in the handling of the detail incident to the assembling of information and date necessary to the collection of the tax.
“That said ordinance does not illegally delegate to City Council the appointment of an administrative official, in that the Board of Review is merely an agency created for the principal purpose of assisting the Director of Finance in the collection of the tax.
“That said ordinance does not illegally delegate to the Board •of Review the duties of City Council to fix the rate of tax, in that the Board of Review has no authority to fix the rate of tax, but merely assists the Director of Finance in determining the correct amount of the tax.
“The Court further finds that said Ordinance No. 49349, passed by Council of the City of Youngstown on June 7, 1948, is valid in all respects and that the City of Youngstown ’has the legal right to collect and use the income tax provided in said ordinance in the manner provided therein.
“It is, therefore, ordered, adjudged and decreed that plaintiff’s petition be and hereby is dismissed, and that judgment is hereby awarded to the defendants and against plaintiff for ■the costs taxed herein.
“Exceptions are allowed to the plaintiff.”

In the interest of accuracy in reporting his contention we quote from plaintiff’s brief “the questions of law raised on appeal by the assignments of error and to be decided by this 'court are as follows:—

“(a) Has the City of Youngstown power to levy a municipal income tax?
“(b) Is the method of tax collection provided by the ordinance discriminatory as between wage-earners employed within the City of Youngstown and other taxpayers?
“(c) Can the City of Youngstown establish by ordinance the Board of Review provided by Section 12 of the Ordinance, and proceed to collect the tax without approval of the ordinance by referendum of the electors of the City of Youngstown?
“(d) Does the method of appointment of two members of the Board of Review provided by Section 12 of the ordinance comply with requirements for appointment of administrative officials as set forth in the Charter of the City of Youngstown?
“(e) Do the provisions of Section 2 and Section 12 of the ordinance, whereby the Board of Review is authorized to establish the taxation formula and to reverse or modify decisions of the Director of Finance in regard to the income tax, constitute an unlawful delegation of the duties of the City Council to fix the rate to be assessed, and of the Director of Finance to collect such tax, as required by statute and by the Charter of the City of Youngstown?”

As admitted by plaintiff’s counsel by brief “the facts in the case are undisputed, and have been stipulated by the parties to the action. Both the ordinance and the charter of the City of Youngstown are part of the record.” Accordingly no separate statement of facts will be made as they will be referred to as disposition is made of the questions presented..

As applicable in this appeal Article XII, Sections 8 and 9, of the Constitution of Ohio provides respectively:—

■ “Laws may be passed providing for the taxation of incomes, and such taxation may be either uniform or graduated, and may be applied to such incomes as may be designated by law
“Not less than fifty per centum of the income and inheritance taxes that may be collected by the state shall be returned to the county, school district, city, village, or township in which said income or inheritance tax originates * * *.”

Article XVIII, Section 13, of the Constitution of Ohio provides in part:—

“Laws may be passed to limit the power of municipalities to levy taxes * *

In the exercise of its sovereign power the state could have provided, but did not provide, by law for the levy and collection of income taxes even without specific quoted constitutional authority, and until it does it has not pre-empted that field of taxation; and the City of Youngstown has power to enact such a tax, if not, and we find it was not, contrary to the provisions of its charter. The failure of the State of Ohio to pre-empt that field does not bar the right of the city from entering that field.

“The power of a municipality to adopt an excise exists so long as the state has not invaded or pre-empted this particular field by passing a law providing for the same kind of excise.” State v. Sherrill, 142 Oh St 574 at 588.

Also see State v. Carrell, 99 Oh St 220; Globe Security and Loan Co. v. Carrel, 106 Oh St 43; Cincinnati Oil Works v. City of Cincinnati, 40 Oh Ap 8, affirmed in 123 Oh St 448; City of Cleveland v. Ruple, 130 Oh St 465; 6 McQuillin Municipal Corporations, section 2532; Marion Foundry v. Landes, 122 Oh St 166; and Angell, Appellant, v. City of Toledo, et al, Appellees, 153 Oh St 179.

Assuming that the ordinance distinguishes between different classes of taxpayers in the collection of the tax imposed unless such distinction is unreasonable it does not become an arbitrary one. The evidence discloses no discrimination between táxpayers of the same class, but discloses that the principle applied in the ordinance essentially is no different than that approved in federal legislation relating to imposition and collection of income taxes.

As shown by the evidence the board of review in no sense is “a new department, division nor office” within the meaning ■of Section 88 of the Charter of the City of Youngstown; Accordingly its creation does not require the approval of a referendum vote. As found by the trial court it was created for the purpose of assisting the director of finance in the •disposition of the details incident to assembling information and data essential to the collection of such taxes. ■Such board is merely his agent for that purpose. It vdoes not fix the rate, levy nor collect such taxes; which disposes of errors three, four and five. In our opinion the provisions of Sections 2 and 12 of the ordinance do not constitute an unlawful delegation to any administrative official of the duties of the Council of the City of Youngstown and Director of Finance in the respects claimed by plaintiff. See Ohio Tax Cases, 232 U. S. 576; State ex rel Struble v. Davis, 132 Oh St 555, 8 Ohio Opinions 552; Board of Tax Commissioners of Indiana v. Jackson, 283 U. S. 527, 75 L. Ed. 1248.

Careful consideration of the facts submitted to us for review, and the law applicable thereto, compels us to conclude that Youngstown City Ordinance Number 49349 is a valid ordinance; and that defendant, City of Youngstown, has the legal right to collect and use the income tax provided in such ordinance in the manner provided therein.

We have given the challenging and important questions presented by plaintiff’s appeal careful consideration, and conclude that the evidence was of such a nature as to warrant the trial judge in dismissing plaintiff’s petition and overruling his motions “for judgment non obstante veredicto” and for a new trial.

We are impressed by the conclusion reached by counsel for defendant as stated in its brief, which we quote:—

“The State has passed no law pursuant to its power under the Constitution providing for the taxation of incomes. The income tax imposed by the ordinance is in accordance with the principle repeatedly stated and restated by the Supreme Court, that a municipality has the inherent power of taxation as an incident of sovereignty and local self-government in a field not preempted by the State. The judgment of the lower court is founded on this principle.
“As to the fairness and reasonableness of the tax, we quote from the Chief Justice of Massachusetts, followed by the Hamilton County Court of Appeals in Rowe v. Braden, 44 Oh Ap 397 at 401 and by the U. S. Supreme Court in Maguire v. Trefry, 253 U. S. 12, 64 L. Ed. 739 at 750:
“ ‘The income tax is measured by reference to the riches of the person taxed actually made available to him for valuable use during a given period. It establishes a basis of taxation directly proportioned to ability to bear the burden. It is founded upon the protection afforded to the recipient of the income by the government of the commonwealth or his residence in his person, in his right to receive the income, and in his enjoyment of the income when in his possession. The government provides for him all the advantages of living in safety and of freedom, and of being protected by law. It gives security to life, liberty and the other privileges of dwelling in a civilized community. It exacts in return a contribution to the support of that government, measured by and based upon the income, in the fruition of which it defends him from unjust interference.’ ”

We cannot close this opinion without respectfully calling the attention of counsel to the most recent decision of the supreme court made in the case of Angell v. City of Toledo, reported in 153 Oh St 179.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, concurs in judgment.