author: By MERRICK, J:

text:
    RUSSELL et, Plaintiffs, v. LINTON, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 652281.
    Decided November 4, 1953.

      Robert Blue, Martin H. Wilkinson, Cleveland, for plaintiffs.
    Ralph W. Bell, Richard G. Bell, Robert R. Freda, Bedford, for defendants.
   OPINION

By MERRICK, J:

Some of the facts in this case must be set forth to portray a better understanding of the legal conclusions arrived at in this opinion. In May, 1953, the Solon village council re-zoned certain territory for industrial uses. Plaintiffs are owners of land within this territory. After the enactment of the ordinance, some steps were taken to secure a referendum. The petition for such referendum was found by the village clerk to be defective and the same was not certified to the board of elections, and this avenue of review was not further pursued. Subsequently a petition calling for an initiative election was filed with the village clerk. The ordinance proposed would re-zone the area to return it to the classification in which it rested prior to the council action. Upon the filing of the petition for the initiative election, the within action was brought against the clerk, seeking to enjoin a certification to the board of elections. Thereafter, the initiating committee, on its own motion, was' made a new party defendant and has contested the action as such. The village clerk has not filed an answer or made any other resistance in the action.

Plaintiffs contend that the initiating committee should not have been permitted to become a party.

An initiating committee is authorized by §731.34 R. C. which reads in part as follows:

“The petitioners may designate in any initiative or referendum petition-a committee of not less than three of their number, who shall be regarded as filing the petition * * *. If after a petition proposing an ordinance or other measure has been filed with such auditor or clerk, the proposed ordinance or other measure, or a substitute for the proposed ordinance or measure approved by such committee, is passed by the legislative authority of the municipal corporation, the majority of the committee shall notify the board of elections in writing and such proposed ordinance or measure shall not be submitted to a vote of the electors.”

It will be observed that by the language of the statute, the committee is authorized to make the decision as to whether or not the election becomes necessary upon the happening of certain things. While the statute does not make the naming of a committee necessary, it certainly recognizes the need for it and prescribes certain duties and rights for such committee. If the committee may do certain things necessary to withdraw, the initiating petition, why can it not take steps to carry the petition to the voters for decision? Upon a failure or refusal of the clerk of council to certify a referendum petition to the election authorities, the remedy of the petitioners is an action to compel such certification. Powelsland v. City of Toledo, 15 Oh Ap 198. In the instant case, those interested in preventing a certification have brought the action. They are not petitioners for a vote by the people, but are asking for an order of this Court to prevent such submission. In good logic, certainly, those who would have a right to demand a certification have an equal right to resist those who seek to prevent it. For this reason, the new defendants are proper parties in their individual rights and as a committee provided for by statute.

The proposed ordinance by its text refers to certain land and sets out such land by metes and bounds. Plaintiffs contend that it is thereby defective in that the land is not further identified by a map or plat. Much stress is laid by the argument that the statutes regulating the manner in which a council may zone or re-zone require many steps to be taken, one of which is the attaching to the proposed ordinance of maps and a further proviso for the affording of public examination thereof. Our consideration is of action under the initiative rights afforded by the Ohio Constitution and not of regulatory statutes applicable to the acts of a legislative body. Many steps are required before a council may pass zoning legislation. Does this imply that like steps must be taken before zoning legislation can be initiated by a vote of the people? Is not the initiating process a substitute for the legislative process?

In any discussion of the right to initiate legislation, a reference to the fundamental law of our state is always helpful. And it might not be amiss to review the rights granted to the people when it is decided to attempt the passage of some law without recourse to the usual procedure of legislative action. The basic power to make law by this process is found in Article I, Section 2, of the Ohio Constitution:

“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary * * *”

The right to initiate municipal legislation is granted by the Ohio Constitution in Article II, Section 1-f as follows:

“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.”

Here we find a delegation of power to provide how the initiative and referendum privileges that were reserved to the people of each municipality may be applied on such questions as they were then or might thereafter be authorized to control by legislative action. This is not an automatic or self-executing section of the Constitution. City of Youngstown v. Craver, 127 Oh St 195, 203.

Section 1-f, Article II is a comprehensive grant of power to the people of municipalities, and the legislation with reference to its exercise is obviously such legislation as is found in the provisions of §4227-1 et seq, GC. Cincinnati v. Hillenbrand, 103 Oh St 286, 298.

Sec, 4227-1 GC is now §731.28 R. C., which reads as follows:

“Ordinances and other measures providing for the exercise of any powers of government granted by the constitution or delegated to any municipal corporation, by the general assembly, may be proposed by initiative petition. Such initiative petition must contain the signatures of not less than ten per cent of the electors of such municipal corporation.
“When a petition is filed with the city auditor or village clerk, signed by the required number of electors proposing an ordinance or other measure, such auditor or clerk, shall, after ten days, certify the petition to the board of elections

Sees. 731.31 to 731.41 R. C. provide for the manner and form in which petitions are to be made up and other regulatory safeguards and limitations to be applied in initiating municipal legislation.

Counsel for plaintiffs contend that the right of initiative is further controlled by an ordinance of the village of Solon which provides that proposed ordinance amendments concerning zoning must first be referred to the Planning and Zoning Commission for report. Counsel cite Dillon v. City of Cleveland, 117 Oh St 258, in support of this argument. This case is not in point here for the reason that its reasoning applies to cities having adopted a charter and providing therein for procedure in initiating legislation. Sec. 731.41 R. C. specifically grants the right to charter cities to provide their own procedural steps and controls in initiating legislation and cannot be applicable in this case where we are considering the general laws of Ohio governing village governments.

It is obvious that the framers of the Ohio Constitution intended by the initiative process a by-passing of all other legislative stops and checks, providing the steps in the enabling statutes were complied with. Certainly, it was not contemplated that a village council could pass any ordinance to conflict with or contravene the Constitution or state laws enacted thereunder. This is so fundamental that it requires no citation or argument in support thereof. It follows therefore that any village ordinance requiring the attachment of a plat or map or submission to any board or committee would not be a condition precedent to the right to initiate zoning legislation in the village of Solon.

The initiated ordinance would repeal Ordinance 1953-10 and re-zone the area involved. Did the failure of the efforts to secure a referendum for the initiating of an ordinance to repeal that which would have been the subject of the referendum? Any doubt, therefore, existing on this question seems to have been clearly settled by the decision of the Supreme Court of Ohio in State ex rel. Sharpe v. Hitt, 155 Oh St 529. This decision overrules an earlier one found in State ex rel. Smith v. City of Fremont, 116 Oh St 469.

In the Sharpe case, supra, the third syllabus reads as follows:

“The electors of a municipality may by the initiative enact a measure conflicting with or repealing legislation previously passed by the municipal council, so long as the subject matter of such initiative ordinance is within the powers of the municipality to control by legislative procedure.”

Judge Zimmerman wrote the opinion and at page 536 is found this language:

“In adopting the initiative and referendum provisions of Section 1-f, Article II of the Constitution of Ohio, it was certainly not the intention of the people to leave the voters of a municipality powerless to override legislation which might be obnoxious to them. Even though the referendum is not available because an objectionable ordinance was passed as an emergency measure, perhaps arbitrarily, the initiative always remains as an authorized remedy. Otherwise, the people who «fleet the members of council and pay their salaries would occupy a place below the council in legislative power. Surely such was not the design and purpose of Section 1-f, Article II of the Constitution.”

This now brings us to the consideration of the objections that the proposed ordinance is ambiguous and misleading and contains multiple subjects in its title and text. The obvious conclusion would be, that if these handicaps existed in the ordinance, the voters could not intelligently determine upon what subject they were voting. A reading of the ordinance clearly indicates a plain intention to undo the act of the village council in rezoning certain lands and to place such lands back into a classification formerly controlling them. Certainly the voters would know the issue presented: — Vote “yes” to re-zone the area for single family residences: Vote “No” to retain the zoning for manufacturing purposes. It seems to be as simple as that.

There is a serious question as to whether or not, under the issues raised in this case, this Court has jurisdiction to pass upon the validity of this proposed ordinance. So long as the steps provided by the statute are complied with, the submission should not be enjoined upon the complaint that after it is passed the ordinance might be invalid or unconstitutional. Cincinnati v. Hillenbrand, supra.

Reconciling the conclusions set forth herein, the petition of the plaintiffs is dismissed and a decree may be entered permitting the defendant to certify the petitions for an initiative election to the board of elections as provided in §731.38 R. C.

Counsel may prepare an entry accordingly. Costs are assessed against the plaintiffs.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    ADAMS et, Plaintiffs-Appellees, v. SNOUFFER and J. & L. SNOUFFER, Inc., Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4239.
    Decided June 5, 1951.
    Paul R. Gingher, Matthew L. Bigger, Columbus, for appellants.
    Bricker, Marburger, Evatt & Barton, Columbus, for appellees.
   OPINION

By THE COURT.

This matter has been submitted upon a motion of appellant to vacate, suspend or modify the order of permanent injunction heretofore entered in this cause. The motion has been submitted upon the oral statements of counsel supplemented by extended briefs.

On behalf of the appellees, counsel urge several questions of procedure as to which we make brief comment. We assume that this motion is not grounded upon any legal remedy but upon general equitable principles. The proceeding, in our judgment, should be instituted as a separate suit by petition, in the Court where the original injunction action was brought. 23 O. Jur. 1262, and numerous cases there cited. Dengenhart v. Harford, 59 Oh Ap 552.

We will not again set forth the facts and the law upon which the original judgment in this Court was predicated. The cause was carefully and capably presented and tried, the Court prepared an opinion, afterwards considered and passed upon an application for modification of the proposed terms of the injunctive order and granted the permanent injunction. Thereafter the Supreme Court refused to stay execution of the judgment and overruled a motion to certify.

This Court has no original jurisdiction in injunction. The issues of fact should they be drawn on an action to vacate or modify the injunction should be tried in the Common Pleas Court. Le Maistre, Admr.; Warner, Admx., v. Clark, 142 Oh St 1.

Res ad judicata should apply to a permanent injunction order as completely and effectively as it does to other judgments. Appellants should not, at this juncture, be heard to say that any matter at issue, or which could have been put in issue in the original appeal has not been properly determined.

Upon the claim of changed circumstances, we said in our original opinion, had it there appeared that the product of the quarry could not be produced at any other location or that there was a scarcity of such material, we should have a different question than was presented on the record as made. Neither of these factors is developed here to an extent that would indicate necessity of modifying the order. It is argued that the national emergency is such that the Court should relax the severity of the injunctive order. However, there is no showing in the affidavit offered by the defendants that there has been any requisition or demand of any Federal Agency for the particular product of the defendant company; that there is any scarcity of such material or that the emergency requires the use of the product of the particular quarry here involved. Nor is there any suggestion that any new or different methods of blasting or operation of the quarry could be employed should defendants resume their business, which would obviate the injuries which it has been adjudicated the plaintiffs have suffered. The burden of the case made for the motion is that the facts upon which the three courts acted do not support the judgments.

Upon the claims that this Court was without jurisdiction to enter the order of permanent injunction; that the petition does not state a cause of action; that the defendants were not properly in court on the supplemental petition; that we decided that the operation of the business of the defendants was a nuisance per se, we hold against the defendants.

The motion will be overruled.

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


author: By BARTLETT, J.

text:
    WITTING et, Plaintiffs, v. STERLING FINANCE COMPANY et, Defendants.
    Common Pleas Court, Franklin County.
    No. 186597.
    Decided April 1, 1953.
    Jenkins, Williams, Wendt, Murray & Deeg, Columbus, for plaintiffs.
    James W. Huffman, Columbus, for Colonial Finance Company.
   OPINION

By BARTLETT, J.

MOTION TO QUASH SERVICE OF SUMMONS ON DEFENDANT, COLONIAL ACCEPTANCE CORPORATION, IS OVERRULED.

The Sheriff’s return shows service on defendant, Colonial Acceptance Corporation, in accordance with §11290 GC, as a foreign corporation. The return states service was made “by serving Sally McNamara, District Supervisor, by personally handing her a true and certified copy of this writ with all the endorsements thereon,” etc.

The affidavits of the President and Vice President of the defendant company state that Sally McNamara on whom process was served is a travelling auditor employed by said company but has no managerial functions or authority.

Sec. 11290 GC, supra, provides:

“When the cause of action has accrued within this state the service may be upon any officer or employee of the foreign corporation * * *.”

The affidavits of the President and the Vice President of this company proceed to argue the meaning and constitutionality of this section of the Ohio Code, which is out of place in an affidavit and certainly lends no weight thereto.

The affidavits of the President and Vice President are in conflict with the petition, verified by the several plaintiffs in many respects, to-wit: the previous relationship existing between the parties, and the ultimate question of whether the cause of action has accrued within this state; all these questions involve not only matters of fact, but the application of pertinent legal principles to the facts.

It would seem apparent that such questions, of either fact or law, may not be determined by motion, but are issues that must be determined in a trial on their merit.

Williams, J., makes the following pertinent observations in the case of Trustees v. McClannahan, et al., 53 Oh St 403, 411:

“The hearing upon the motion is not the mode provided by law for the trial of the issues joined in the action, and neither party can be deprived of the lawful mode of trial by the decision on the motion, whatever it may be. A trial is defined to be a judicial examination of the issues in an action. Revised statutes, §5127 (now §11376 GC), and all issues of fact must be tried by the court or a jury, unless referred as provided for in certain cases. Revised statutes, §§5130, 5131 (now §§11379, 11380 GC), ‘a motion is an application for an order, addressed to the Court or a judge by a party to a suit, or one interested therein.’ Revised statutes, §5121 (now §11370 GO.”
“A hearing upon a motion was not designed to take the place of a trial. It may be had upon affidavits taken without opportunity for cross-examination, and is not in any proper sense a trial.” etc.

The motion to quash service of summons on the defendant company is overruled. Entry to be drawn accordingly with exceptions reserved by counsel for defendant, Colonial Acceptance Corporation.


text:
    FARAH et, Plaintiffs-Appellees, v. CALLEN, State Fire Marshal et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4565.
    Decided September 21, 1951.
    Russell G. Mock, Youngstown, for plaintiffs-appellees.
    C. William O’Neill, Atty. Genl., Thomas R. Lloyd, Asst. Atty. Genl., Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is an appeal on questions of law from a decree of the Common Pleas Court reversing an order of the State Fire Marshal directing the appellee to tear down and remove certain buildings from the premises of the appellees because said order was arbitrary, unreasonable and an abuse of discretion. The order further provided that the defendantsappellees in the Common Pleas Court, appellants here, grant to the plaintiffs-appellants, appellees here, a reasonable length of time to make repairs to the buildings in question in compliance with the defects found by the State Fire Marshal.

Three errors are assigned, all of which are based upon the claim that the order of the Common Pleas Court is not supported by the facts and the law, and that the court erred in holding that the Fire Marshal had abused his discretion in making the order from which the appeal was taken to the Common Pleas Court.

Upon an examination of the record it is our judgment that the Common Pleas Court acted within its authority in the light of the procedure set forth in Farrand v. State Medical Board, 151 Oh St 222, and that the errors assigned here are not established.

We affirm the judgment on the opinion of Judge Clifford in the Common Pleas Court.

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


author: By McNAMEE, District Judge.

text:
    NEW AMERICAN LIBRARY OF WORLD LITERATURE, INC. v. ALLEN et.
    United States District Court N. D. Ohio, E. D.
    Civ. No. 30167.
    Decided August 5, 1953.

      Parker Fulton (Burgess, Fulton & Fullmer), Cleveland, Murray Gartner, New York City, for plaintiff.
    H. Herschel Hunt, Law Director, P. Richard Schumann, Asst. Law Director, Youngstown, for Chief Allen and other defendants.
   OPINION

By McNAMEE, District Judge.

In this action the plaintiff, the New American Library of World Literature, Inc., seeks recovery of damages and a permanent injunction against the defendant, Edward J. Allen, Jr., chief of police of the city of Youngstown, Ohio. Plaintiff’s claims for relief are grounded upon the alleged unlawful suppression of the distribution and sale of certain of plaintiff’s books in the city of Youngstown. This cause was assigned for hearing upon plaintiff’s motion for a preliminary injunction. However, by agreement of the parties and with the approval of the court, a final disposition of plaintiff’s claims for injunctive relief will be made upon the evidence adduced at the hearing and the briefs and arguments of counsel.

Plaintiff’s claims for damages are reserved for final determination on a trial by jury.

Plaintiff is a New York corporation and a publisher of paper-bound pocket-size editions of books, both fiction and nonfiction. As indicated, defendant Allen is chief of police of the city of Youngstown, Ohio. Inasmuch as the controversy is essentially one between plaintiff and Allen, identification of or further reference to the other defendants is unnecessary. Virtually all the plaintiff’s books are paper-bound pocket-size reprints of de luxe or “hard-cover” editions of books heretofore published by the leading publishing houses of the country. Plaintiff distributes these books nationally through Fawcett Publications of New York. The local distributor of Fawcett in Youngstown, Ohio is the Mahoning Valley Distributing Company, of which Bernard Bloch is the president. The ¡ocal distributor sells and delivers the books to retail outlets in Youngstown, Ohio. During the year 1952 plaintiff’s sales of pocket-size reprints in the country were in excess of forty-million copies.

Early this year the Mahoning Valley Distributing Company removed several of plaintiff’s books from the newsstands in Youngstown. Plaintiff alleges this was done by reason of the unlawful conduct of Allen in submitting to Bloch a list of 108 reprints, including eleven of plaintiff’s books which Allen considered to be obscene, and threatening Bloch with arrest if these books were not removed from the stands.

In its complaint plaintiff alleges that the ordinance under authority of which Allen purported to act is unconstitutional as being vague and indefinite; that Allen transcended his powers as chief of police, that he misapplied the ordinance in an unlawful and unconstitutional manner; and that plaintiff has been deprived of its property without due process of law; that it has been denied the equal protection of the laws and its rights of freedom of the press.

Notwithstanding the multiple claims seriously urged by plaintiff it will be sufficient for the purposes of this proceeding to determine, first, whether the ordinance is constitutional, and, second, if it is, whether Allen acted outside the scope of his powers as chief of police to the injury of plaintiff’s property rights and civil rights.

Although copies of the eleven books of plaintiff have been received in evidence, the parties have agreed that it is unnecessary for the court to determine whether these books are obscene or immoral in violation of the ordinance.

There is in effect in the city of Youngstown an ordinance which in substance defines the sale or distribution of obscene and immoral books as a misdemeanor and prescribes a fine and thirty days imprisonment for its violation.

Early in 1953 chief Allen inaugurated a campaign against the sale of lewd and indecent literature. On January 5 he wrote a letter to Bernard Bloch in which he commented upon the discussions between them since 1948 and Bloch’s expressed willingness to remove “objectionable literature and pictures.” Reference was also made in this letter-to Bloch’s agreement to “permit us to act as censors but only to a degree.” The letter, which is quite lengthy, contains additional matter, including the following:

“These books include almost all of the so-called paper backed ‘pocket-book’ type of magazines, which as a matter of policy, glorify and dwell upon immorality. Admittedly, there are some few which are not in this category, yet so few are they in number that their publication would seem to be a subterfuge designed to whitewash the great bulk of these publications.
“Such periodicals must be removed, and failure to act in this matter will result in arrest and prosecution, under the law, and final disposition by the court.”

This letter was released for publication in the Youngstown Vindicator. Although in the above-quoted portion of the letter reference is made to pocket-type magazines, Allen testified that by this language he meant “paper-backed books.” Immediately upon reading the letter, Bloch communicated with Allen and later made several visits to the office of the chief of police. The burden of the conversations between them was that Bloch considered Allen’s objection to be too general and that compliance with the directions in the letter would require the removal of practically all paper-backed books. Bloch requested Allen to specify the titles which the chief considered to be obscene. Thereupon the defendant, assisted by members of his vice squad, commenced an examination of the books. Only a few of the books were read in their entirety by the examiners. The defendant stated that in forming his opinion he was influenced by the illustrations on the covers of the books and by the content of the “advertising blurbs,” and that blasphemy and detailed description of sexual acts — and violation of the second Commandment of God — were among the standards employed by him to determine whether a book was within the proscription of the ordinance. Allen and the vice squad compiled a list of 108 books and 33 magazines. On January 15, 1953 he forwarded this list to Bloch together with a letter requesting that they be removed from the newsstands. Upon receipt of the letter Bloch suggested to Allen that the letter be made “stronger” so that the publishers would understand fully the position in which Bloch was placed. Accordingly, on January 16, 1953 Allen sent another letter to Bloch in which he stated that a failure to comply with the request to remove the books and magazines on the list on or before January 29, 1953, would result in arrest and prosecution of the distributor or any dealers who “display or sell their periodicals.” On several occasions between January 5 and January 15, 1953 Allen orally notified Bloch that he would be arrested unless all obscene books and magazines were removed. Bloch brought the letters of January 15 and 16, together with the list of 108 books, to the attention of the publishers in New York. On January 28, 1953 lawyers representing several of the publishing houses, including plaintiff, met with chief Allen at his office in Youngstown. Counsel for Bloch was also present at this meeting. These representatives denied that any of the books on the prescribed list were obscene .and attempted to persuade Allen to an acceptance of this view. Counsel for Bloch suggested that a test case be filed. To this Allen agreed. But because of the unwillingness of any distributor or dealer to submit to arrest, nothing came to this suggestion. The lawyers for the publishing houses also suggested “an area of compromise” which contemplated the withdrawal from sale of some of the books on the list. This suggestion was rejected by Allen. However, Allen did indicate that he would re-examine the list and give the publishers time in which to submit “materials” in support of their contention that the books were not obscene. Within a week after the meeting with counsel for the publishers Allen ’phoned Bloch and said that he was not going to permit the publishers to select a certain number of books, — “This sort of compromise thing that they talked about — and still leave some on that we felt were in violation.” Allen stated: “In other words, I wanted every book that we felt violated the law taken off.” Thereupon Bloch informed the publishers that he was removing the books from his dealers’ stands. The 108 books, including the eleven published by plaintiff, were thereupon withdrawn from sale. Since that time none of the 108 books have been sold in Youngstown.

At the time he wrote the letters of January 15 and January 16 Allen was not prepared to arrest and prosecute if his demand for the removal of the books was rejected. He stated that the “prosecution stage” had not been reached and that if and when it became necessary to prosecute, he would obtain the advice of the city prosecutor before proceeding. It should be noted that on several occasions before the books were removed, Bloch told Allen that only a court had the right to determine whether the books were obscene or immoral.

Allen learned of the work being done by inspector Case of Detroit, Michigan in connection with the prevention of the sale of obscene literature in that city. On January 26, 1953 Allen wrote to Case asking for advice and assistance and for a copy of any “lists of magazines, comic books and pocket-size books that we could peruse.” In this letter Allen also made reference to the Youngstown list which he had prepared, and in connection therewith stated: “We have tentative list prepared which the vice squad has cited as obscene in their opinion. The list is not all-inclusive and indeed there may be some listed that do not warrant removal.” On February 3 inspector Case replied to Allen’s letter and submitted two lists of books, one of which was described as “a list of pocket-size books which the Wayne County prosecutor and the censor bureau considered to be a violation of the Michigan State statute a governing obscenity.” This list comprised about 140 books. The second list contained about 195 titles and was said by inspector Case to contain books “of an objectionable nature but which are not in the prosecutor’s opinion actually obscene within the meaning of the state law.” On February 16, 1953 Allen forwarded to Bloch a single list of 335 titles which contained all the publications appearing on the two lists which Allen had received from inspector Case. This second list included 28 titles published by plaintiff. The list was accompanied by a letter from defendant which contained a request that the publications on the list be removed from the newsstands of the city of Youngstown, Ohio. In the early part of February Allen was approached by representatives of the Federated Women’s Clubs of Youngstown, who made known their desire to assist him in his campaign against indecent literature. Allen suggested that these women form a committee to screen literature, and he appeared before the federation and spoke upon the proposed function of such a committee. Discussions looking to the organization of the committee were being had at the time Allen forwarded the second list of 335 books to Bloch, and it was the defendant’s purpose to enlist the aid of the committee in screening books, including those on the lists defendant had received from inspector Case. It also became known about this time that the plaintiff contemplated legal action against chief Allen. None of the books on the second list were removed from dealers’ stands in Youngstown.

The evidence discloses that none of the eleven books published by plaintiff which were on Allen’s first list were on the lists prepared by inspector Case of Detroit. It also appears that seven of the eleven books appearing on the first list are available in hard-cover editions in the Youngstown Public Library.

The defendant argues that plaintiff cannot maintain this action because the alleged unlawful conduct of defendant was directed against the local distributor and not against plaintiff. But it has been held that parties whose legal rights have been violated by unlawful public action may seek relief although such action made no direct demands upon them. Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123, 71 S. Ct. 624, 95 L. Ed. 817.

Is the ordinance constitutional?

The Youngstown ordinance provides:

“Obscene Books, Etc. Any person who shall distribute, sell or expose for sale, or give away any books, papers, pictures and periodicals or advertising matter of any obscene or immoral nature, shall be fined in any sum not exceeding one hundred dollars or imprisoned for not more than thirty days, or both. (Code 1925, No. 305.)”

The plaintiff’s first attack upon the validity of the ordinance is based upon the contention that the word “obscene” is unconstitutionally vague and uncertain. In support of this contention plaintiff relies chiefly upon dicta in the opinions of state courts of inferior jurisdiction. Plaintiff, however, cites no case, nor has one been found, where a court has held the word “obscene,” as used in a criminal statute, to be so vague in meaning as to offend against the constitutional requirements of certainty. It is true that in Bantam Books, Inc. v. Melko, 1953, 25 N. J. Super. 292, 96 A. 2d 47 and in Commonwealth v. Gordon, 66 Pa. Dist. & Co. R. 101 there are dicta expressing opinions on the supposed inherent vagueness of the word “obscene,” but in neither of the cited cases was it held that the applicable statute was unconstitutional. Plaintiff interprets expression of the Supreme Court in Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 72 S. Ct. 777, 96 L. Ed. 1098, as a repudiation of the court’s dicta in earlier cases that the meaning of the word “obscene” is sufficiently precise to meet constitutional standards. Plaintiff’s arguments are overborne by the impressive weight of statements of the opposite view in the opinions of the Supreme Court of the United States.

In Winters v. People of State of New York, 333 U. S. 507, 68 S. Ct. 665, 92 L. Ed. 840, the issue before the court was whether subsection 2 of section 1141 of the New York Penal Law, McK. Consol. Laws c. 40, prohibiting the sale and distribution of magazixxes principally made up of criminal news and police reports was so vague as to violate the Fourteenth Amendment by prohibiting acts withixi the protection of the constitutional guaraxxtees of free speech and free press. Subsection 1 of section 1141 of the New York law, which, among other things, proscribes the sale and distribution of obscene publications, was not in issue, but was quoted in full in note 2 of the opinion. After three separate arguments on the merits the court held that the subsection in issue was vague and uncertain, but, fearful lest its decision might be misinterpreted as implying the opinion that subsection 1 of the New York law, proscribing the circulation of obscene literature, also was vague and unconstitutional, the court said:

“To say that a state may not punish by such a vague statute carries no implication that it may not punish circulation of objectionable printed matter, assuming that it is not protected by the principles of the First Amendment, by the use of apt words to describe the prohibited publications. Section 1141, subsection 1, quoted in note 2, is an example. Neither the states nor Congress are prevented by the requirement of specificity from carrying out their duty of eliminating evils to which, in their judgment, such publications give rise.” 333 U. S. at page 520, 68 S. Ct. at page 672. (Emphasis supplied.)

It would be difficult to find a more definite disclaimer of intention to impute uncertainty and vagueness to the word obscene than is contained in the above declaration of the Supreme Court. In the Winters case the court also referred to the words obscene, lewd, lascivious, filthy, indecedent, or disgusting as “well understood through long use in the criminal law.” Again, 333 U. S. at page 510, 68 S. Ct. at page 668 in the Winters case, in referring to publications not protected by the guaranty of the freedom of the press, the court said: “They are equally subject to control if they are lewd, indecent, obscene or profane.” See also Ex parte Jackson, 96 U. S. 727-736, 24 L. Ed. 877; Chaplinsky v. State of New Hampshire, 315 U. S. 568, 62 S. Ct. 766, 86 L. Ed. 1031; Near v. State of Minnesota, 283 U. S. 697, 716, 51 S. Ct. 625, 75 L. Ed. 1357.

Plaintiff misinterprets the rationale and effect of Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 72 S. Ct. 777, 782, 96 L. Ed. 1098, in an attempt to demonstrate that there the Supreme Court repudiated — “its previous hasty dictum to the effect that the word ‘obscene’ is sufficiently definite for use in a criminal statute.” (Pl. Brief)

In the Burstyn case the Supreme Court pointed out that the state has no legitimate interest in protecting any religion from views distasteful to it and that “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, 'speeches, or motion pictures.” But indisputably it is the business of government to protect the public morals. This is the purpose sought to be subserved by the enactment of laws proscribing the sale of obscene publications or the showing of obscene films. And, as the Supreme Court recognized in the Burstyn case, this is an entirely different purpose than that of protecting a particular religious doctrine from “sacrilegious” attack. It thus appears that the trend of authoritative judicial thinking supports the view that the word “obscene” as used in a criminal statute or ordinance is sufficiently precise to meet the constitutional standards of certainty.

The ordinance here in question prohibits the sale of publications that are “obscene or immoral.” Plaintiff also contends that the word “immoral” is vague and indefinite. The argument submitted in support of this contention merits but brief comment. In Mutual Film Corp. v. Ohio Industrial Commission, 236 U. S. 230 at pages 245-246, 35 S. Ct. 387, at page 392, 59 L. Ed. 552, the Supreme Court declared that the words “educational, moral, amusing, or harmless * * * get precision from the sense and experience of men, and become certain and useful guides in reasoning and conduct.” While that part of the decision of Mutual Films that held motion pictures not to be included within the guarantees of free speech and free press was overruled in Burstyn v. Wilson, supra, there was no disapproval in the later case of the above quoted language from Mutual Films. In Superior Films, Inc. v. Department of Education, 159 Oh St 315, 50 O. O. 305, 112 N. E. 2d, 311, 319, the Ohio Supreme Court approved the statutory criterion for the censorship of films that required them to be of a “moral, educational, or amusing and harmless character,” §154-47b GC (§3305.04 R. C.), and characterized the definition of crimes in §§13035 and 13040 GC (§§2905.34, 2905.40 R. C.), wherein the word “immoral” appears, as being “sufficiently clear.” The meaning of the word “immoral” as used in the ordinance, placed as it is in juxtaposition to the word “obscene,” is not unconstitutionally vague or uncertain.

Finally, plaintiff argues that the ordinance, which prohibits the sale of books “of any obscene or immoral nature,” prescribes an unconstitutional test of obscenity in that it prohibits the sale of books which may contain but a single or isolated passage of obscenity. In support of this branch of its argument plaintiff relies upon State v. Lerner, 1948, 81 N. E. 2d 282, 285, decided by the Common Pleas Court of Hamilton County, Ohio. The Lerner case deals with the explicit terms of the 1943 amendment of §13035 GC (§2905.34 R. C.), which both in text and in its purpose, as judicially declared, is substantially different from the Youngstown ordinance. Sec. 13035 GC (§2905.34 R. C.) includes within the prohibited media “an obscene, lewd or lascivious book, magazine, pamphlet, paper, writing, advertisement, circular, print, picture, photograph, motion picture film.” By the amendment of 1943 there was added, “or book, pamphlet, paper, magazine not wholly obscene but containing lewd or lascivious articles, advertisements, photographs or drawing, representation, figure, image, cast, instrument or article of an indecedent or immoral nature." The Common Pleas Court held that by the language of the main part of the statute first above quoted, the Legislature adopted the modern test of obscenity that requires a consideration of the book as a whole to determine whether it is obscene, and that the sole purpose of the 1943 amendment was to “outlaw in [Ohio] the ‘wholly obscene’ test for ‘books, papers, pamphlets and magazines.’ ” It cannot be said, however, that the Youngstown ordinance sought to outlaw the wholly obscene test for books. The ordinance was adopted in 1925, which was eight years before the decision in United States v. One Book “Ulysses,” D. C., 5 F. Supp. 182, wherein Judge Woolsey laid down the modern test that obscenity is to be determined by the effect of a book read in its entirety upon a person with average sex instincts. The “Ulysses” case had been recognized as the keystone of the modern American rule that indictable obscenity must be “dirt for dirt’s sake.” Commonwealth v. Gordon, 66 Pa. Dist. & Co. R. 101, at page 128. When the Youngstown ordinance became effective the test of obscenity in this country and in England was Lord Cock-burn’s famous pronouncement in Regina v. Hicklin, L. R. 3, Q. B. 360 (1868):

“I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

In recent years Lord Cockburn’s test has been severely criticised by both federal and state judges in this country. It was said that, strictly applied, the test proscribed books containing obscene passages the tendency of which was to corrupt the minds of those most susceptible to immoral influences. It was observed that under this test not even the Great Books were exempt. But while Lord Cockburn’s test was criticised, it was not thought to be unconstitutional. As late as 1913 Judge Learned Hand applied Lord Cockburn’s test because “that test has been accepted by the lower federal courts until it would be no longer proper for me to disregard it.” United States v. Kennerley, D. C., 209 F. 119, at page 120.

The English rule was supplanted by the modern test in 1933 and is stated in United States v. One Book Entitled “Ulysses” by James Joyce, 2 Cir., 72 F. 2d 705, 707, where the Circuit Court of Appeals approved and elaborated Judge Woolsey’s pronouncement as follows:

“We think the same immunity should apply to literature as to science, where the presentation, when viewed objectively, is sincere, and the erotic matter is not introduced to promote lust and does not furnish the dominant note of the publication. The question in each case is whether a publication taken as a whole has a libidinous effect.”

It is true that the Youngstown ordinance may be construed in harmony with the older rather than the modern test of obscenity. The language “of any obscene or immoral nature” is susceptible of the interpretation that the prohibition is against the sale of books that merely contain some obscenity. But the ordinance may also be construed as referring to a book which, considered as a whole, has a libidinous effect. It is a well settled rule of construction that where there are two possible interpretations of a statute or ordinance, by one of which the law would be unconstitutional and by the other it would be valid, a court should adopt the construction that will uphold the law. 11 Am. Jur. 725-728. Among its other connotations the word “any” means “an.” The ordinance may be read as proscribing books of an “obscene or immoral nature.” Such a construction does not preclude the application of the modern test of obscenity or any other test which the courts of Ohio may deem to be controlling. This interpretation of the language of the ordinance is in harmony with the provisions of §3663 GC (§715.54 R. C.) which confers powers upon municipalities to prohibit the sale of obscene literature. Indeed, as thus construed, the descriptive terms of the ordinance are identical with those of §3663 GC (§715.54 R. C.), which reads in part:

“To restrain and prohibit the distribution, sale and exposure for sale of books * * "■ of an obscene or immoral nature.”

I am of the opinion that on its face the ordinance is constitutional and valid. Did the defendant Allen transcend his powers and violate the property rights and civil rights of the plaintiff?

It is the settled policy of courts of equity not to restrain the enforcement of a criminal statute or ordinance even though the legislation be unconstitutional because such invalidity may be interposed as a complete defense in a criminal action. 28 Am. Jur. 372, Sec. 183; 43 C. J. S., Injunctions, §156, page 768. Equity will deviate from this general policy only in those exceptional circumstances where restraint of the enforcement of an invalid statute or ordinance is necessary to effectively protect the property rights or civil rights of the complaining party. More compelling reasons underlie the policy that precludes equity from restraining the .enforcement of a valid statute or ordinance. But this rule likewise is not absolute. Where public officers charged with the enforcement of a valid criminal law exceed their lawful powers and by arbitrary action cause or threaten to cause irreparable injury to property rights or civil rights of the complainant, equity will intervene. 28 Am. Jur. 373, Sec. 185; id. 421, Sec. 238; 43 C. J. S., Injunctions, §111, page 634.

The enforcement of an ordinance that prohibits the distribution and sale of obscene or immoral publications presents difficulties seldom encountered in the enforcement of criminal law. Ordinarily local distributors and dealers are respected citizens engaged in reputable businesses. The distributor who handles thousands of books cannot be expected to read them. Nor can the retail dealers who customarily sell pocket-size books as a sideline be expected to know their contents. The publishers, however, read every book that is offered for sale. So when an obscene publication is displayed on the bookstands, it is the publisher, acting with guilty knowledge, who is the real offender. The publisher, however, is usually resident elsewhere and not subject to prosecution in the local courts. Local distributors and dealers are poorly equipped to defend against a criminal charge. Moreover, they are anxious to avoid the odium and embarrassment of an accusation that implies a disregard for the primary considerations of public decency and morality. Consequently they are quick to yield to the demands of a police officer that allegedly lewd and obscene publications be withdrawn from sale. This was the situation in Youngstown. Experience demonstrates that similar factors control wherever local prosecutions are threatened for violation of laws against selling obscene publications. See Bantam Books, Inc. v. Melko, 25 N. J. Super, 292, 96 A. 2d 47; American Mercury, Inc. v. Chase, D. C., 13 F. 2d 224, 225. In the last cited case the court enjoined the Watch and Ward Society of Massachusetts from threatening to prosecute dealers in magazines and books if the publications in question were not withdrawn from sale. The court held that an unofficial organization was without power to impose its views upon the dealers through threats of prosecution. The rationale of the decision appears in the following:

“The injury to the persons affected does not flow from any judgment of a court or public body; it is caused by the defendants’ notice, which rests on the defendants’ judgment. The result on the other person is the same, whether that judgment be right or wrong; i. e., the sale of his magazine or book is seriously interfered with. New dealers in any trade will buy goods after notice that they will be prosecuted if they resell them. Reputable dealers do not care to take such a risk, even when they believe that prosecution would prove unfounded. The defendants know this and trade upon it. They secure their influence, not by voluntary acquiescence in their opinions by the trade in question, but by the coercion and intimidation of that trade, through the fear of prosecution if the defendants’ views are disregarded.”

While the above-cited case involved no action for a public official, it sheds light on the issue here presented for determination. Where public officers exceed their lawful powers they no longer act as duly authorized agents of government. In such cases they act with no greater legal authority than private persons or private organizations. The defendant Allen possessed no lawful power to suppress publications under threat of prosecution.

In Dearborn Pub. Co. v. Fitzgerald, D. C., 271 F. 479, 482, the mayor and chief of police of Cleveland, acting under color of an ordinance proscribing the sale of obscene and scandalous literature, threatened agents of a publishing company with arrest if future editions of the newspaper were sold on the streets of Cleveland. In enjoining the city officials from continuing such threats, judge Westenhaver of this court said:

“The publication complained of cannot by any stretch of the imagination be classified as indecent, obscene, or scandalous; but if it were, the limit of the city’s power would be to conduct a prosecution for the specific offense thus committed, and not the establishment of a censorship in advance of future publications, and prohibition generally of the sale thereof upon the streets, in the same manner as other publications may be sold.”

The Youngstown ordinance confers no greater powers upon the chief of police than did the Cleveland ordinance under review in Dearborn Pub. Co. v. Fitzgerald, supra. Judge Westenhaver’s views in the cited case that censorship of an obscene newspaper in advance of publication would be unlawful and that the city’s power was limited to prosecution for specific offenses, are pertinent here.

Freedom of the press is not limited to freedom to publish, but includes the liberty to circulate publications, which the Supreme Court has said “is as essential to that freedom of liberty of publishing.” Lovell v. City of Griffin, 303 U. S. 444, 58 S. Ct. 666, 669, 82 L. Ed. 949. In the Lovell case the court again stressed the importance of protecting freedom of the press “from every sort of infringement.” See also Near v. State

of Minnesota, 283 U. S. 697, 51 S. Ct. 625, 75 L. Ed. 1357; Grosjean v. American Press Co., 297 U. S. 233, 56 S. Ct. 444, 80 L. Ed. 660; De Jonge v. State of Oregon, 299 U. S. 353, 57 S. Ct. 255, 81 L. Ed. 278. Freedom of the press, together with freedom of speech and freedom of religion, occupy a “preferred position” among our constitutional guaranties. Marsh v. State of Alabama, 1946, 326 U. S. 501, 509, 66 S. Ct. 276, 90 L. Ed. 265; Jones v. City of Opelika, 1943, 319 U. S. 103, 63 S. Ct. 890, 87 L. Ed. 1290; Murdock v. Com. of Pennsylvania, 1943, 319 U. S. 105, 63 S. Ct. 870, 87 L. Ed. 1292; Martin v. City of Struthers, 1943, 319 U. S. 141, 63 S. Ct. 862, 87 L. Ed. 1313. That preferred position gives these guaranties “a sanctity and a sanction not permitting dubious intrusions.” Thomas v. Collins, 323 U. S. 516, at page 530, 65 S. Ct. 315, 89 L. Ed. 430. Freedom of the press is also guaranteed by the Constitution of the state of Ohio. Censorship in any form is an assault upon freedom of the press. A censorship that suppresses books in circulation is an infringement of that freedom.

In Bantam Books, Inc. v. Melko, 25 N. J. Super. 292, 96 A. 2d 47, it was held that the prosecutor of Middlesex county was without power to order a local distributor to discontinue the sale of books which the Middlesex county committee found “to be of such nature that they should be withdrawn from circulation.” The list of publications accompanying the proser cutor’s letter to the distributor ccontained 36 titles, five of which were books published by the plaintiff, Bantam Books, Inc. Although there was no demand by the prosecutor that the books be withdrawn from sale, and the letter contained no threat of prosecution, the distributor considered it to be a “mandate” and removed all of the books on the list from the dealers’ stands. Thereafter representatives of the plaintiff conferred with the prosecutor and the committee. As a result of these conferences and a re-examination of the books, four of plaintiff’s titles were stricken from the list. As to the fifth book, the prosecutor wrote to counsel for the plaintiff expressing his concurrence in the committee’s view that the book ought not to be sold in Middlesex county. In holding the action of the prosecutor to be illegal the court did not base its decision on the fact that an unofficial committee acted as a censor of the publications. The court held that the opinions of the committee were adopted by the prosecuting attorney. In this connection the court said:

“It cannot be argued that the censorship exercised here was not that of the prosecutor, but rather of the Middlesex County Committee on Objectionable Literature. The committee may have advised; the defendant acted. No statutory authority exists for what was done. The Legislature has not yet clothed the county prosecutors or the attorney general, with the power to censor books and so there is no occasion to consider the possible constitutionality of such legislation.”

The New Jersey court held that the letters of the prosecutor contained implied threats of prosecution and granted plaintiff’s prayer for injunctive relief. In many respects the Melko case is analogous. But here there was no such careful examination of the books as was made by the committee in Melko. On the contrary, the record discloses a hasty application of subjective standards that raises serious questions as to the correctness of the examiners’ findings. Even the defendant conceded that there may have been some books on the first list that might well have been omitted. Yet two days after he made this concession to inspector Case he refused to consider the suggestion of counsel for the publishers that some books be withdrawn from the list. As he later told Bloch, his purpose was to suppress the sale of all books that he felt violated the ordinance. The defendant’s demand for the removal of the books was made before he obtained the legal advice necessary to assure him that probable cause for prosecution existed. These circumstances, together with the inclusion in the second list of 195 titles which in the Wayne county prosecutor’s opinion were not in violation of the Michigan statute, constitute fair warning that, unless restrained, the defendant will continue his unlawful exercise of the powers of censorship.

The defendant was without authority to censor books. Such a drastic power can be vested in a police officer only by a valid express legislative grant. As chief of police it was defendant’s duty to examine the suspected publications to determine whether there was probable cause for prosecution. He was without authority to determine with finality whether the books were obscene or immoral in violation of the ordinance. In the event prosecutions were undertaken, the burden would rest upon the city officials to establish by proof beyond a reasonable doubt every element of the offense, including the obscene or immoral nature of the books. Until a court of competent jurisdiction adjudged a book to be obscene or immoral, there would exist no warrant in law for its suppression.

Not only did the defendant exceed his lawful powers in suppressing the publications, but the methods he employed in censoring the books were arbitrary and unreasonable. This is not to impugn the defendant’s sincerity of purpose or his praise-worthy ambition to suppress lewd and indecedent literature. But a chief of police, like all other public officials, must act within the scope of his express and implied powers under the law. So important is the principle it expresses that it never becomes trite to say “Ours is a government of laws and not of men.” It is the duty of courts to protect the integrity of this principle. The judicial office has no higher function to serve than the restraint of official arbitrariness. Arbitrary power inspired by good motives, no less than that animated by evil intent, is an attack upon the supremacy of the law. It is of the utmost importance to prevent the distribution of all forms of lewd and indecent literature with its demoralizing effect upon the young. It is vital in the interest of public morality that the laws against obscenity be vigorously enforced. But if a free society is to endure, its primary obligation is to protect its “government of laws” from all intrusions of arbitrary power.

Defendant seeks to justify his censorship of books by claiming that this was done pursuant to an agreement with Bloch. I find no evidence of such an agreement. Bloch acted under duress, and he repeatedly told Allen that only a court could determine whether a book was obscene or immoral. Nor is there any merit to the argument that plaintiff is estopped. On the only occasion when representatives of the publishers dealt with the defendant they protested his action as being illegal. There is no basis for the claim of estoppel.

Plaintiff has been deprived of a property right without due process of law. It has suffered loss incapable of accurate measurement in an action at law. In that sense plaintiff has sustained irreparable injury and is threatened with further loss of serious dimensions.

For the reasons assigned, it is held that defendant’s conduct in ordering the suppression of plaintiff’s books under threat of arrest and prosecution of the dealers and the distributor was in excess of his lawful powers under the ordinance. A decree may be drawn restraining the defendant from engaging in such unauthorized conduct.

No restraint is imposed upon defendant’s power to enforce the ordinance by arrest and prosecution, or by other means within the scope of his lawful powers. Plaintiff’s other requests for injunctive relief are denied.

If the defendant has published any libel of plaintiff’s books, an issue that is not here considered or decided, plaintiff has an adequate remedy at law.


author: Per CURIAM.

text:
    MURPHY et v. PORTER et.
    Ohio Appeals, Fourth District, Highland County.
    Decided June 2, 1953.
    Wilson & Wilson, Hillsboro, for plaintiffs-appellees.
    Charles H. Wilson, West Union, for defendants-appellants.
   OPINION

Per CURIAM.

This case originated in the Court of Common Pleas of Highland County and is an action for specific performance and an accounting for rents and profit. After the plaintiffs had introduced their evidence and rested, the defendants demurred to the evidence and moved for judgment in their behalf. The defendants relied upon their demurrer and motion and offered no evidence by way of defense.

The decision of the trial Court was adverse to the defendants and an appeal on questions of law and facts was perfected to this Court. On motion by the plaintiffs-appellees to dismiss the appeal on law and facts and to retain the case as an appeal on questions of law alone, said motion was sustained on the authority of Le Maistre, Adm’r v. Clark, 142 Oh St 1, 50 N. E. 2d 331. We, therefore, consider this case as an appeal on questions of law only.

The Trial Court, Kirk, J., sitting by assignment, rendered an extended and very well considered opinion which is reported in Ohio Com. Pl., 114 N. E. 2d 89. We have examined this decision, and find that all questions of law presented by the record and complained of by the appellants have been given proper consideration and we agree with the conclusions reached by the trial court and And no error prejudicial to the appellants. Any further discussion on the evidence or analysis of the legal and equitable principles would result in mere repetition. Under the undisputed facts and circumstances as disclosed by the evidence, the plaintiffs-appellees are clearly entitled to the relief sought in their fourth amended petition, and therefore the judgment is affirmed.

Judgment affirmed.

GILLEN, PJ, McCURDY and COLLIER, JJ, concur.


text:
    ROACH (BROWN), Plaintiff, v. ROACH, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 474696.
    Decided December 1, 1953.
    Jack B. Dworken, Morton R. Dworken, Cleveland, for plaintiff.
    Donald M. Marshman, Cleveland, Howard Everett, Lima, for defendant.
   OPINION

By MERRICK, J:

This matter is before the Court on motion to strike certain executions issued out of this court, one of which resulted in a land levy by the sheriff of Allen County, Ohio. This motion raises one important question: — Where, in a decree for divorce, certain weekly payments are ordered for the support of a child, may an execution issue upon the praecipe of counsel who has computed the amount which his client claims is past due and inserts such ascertained amount as damages upon which amount the clerk orders execution?

There is no longer any doubt but what an order to pay installments, coupled with a decree for divorce is a judgment within the definition of our statute. Sec. 2323.01 R. C. Armstrong v. Armstrong, 117 Oh St, 558, McPherson v. McPherson, 153 Oh St 82. But whether it is a judgment upon which an execution may issue is the question presented. The authority for issuance of a writ of execution is found in §2329.09 R. C. The last sentence of this section reads as follows:— “The exact amount of the debt, damages, and costs, for which the judgment is entered, shall be indorsed on the execution.”

In the instant case was it necessary to first reduce the order or judgment to a lump sum, by the process of a motion to modify or a petition for a money judgment in a fixed amount before an execution could issue? There is some conflict of thinking in Ohio cases on the subject. Counsel have not cited, and the Court has been unable to find a Supreme Court case which is decisive of this exact question.

In Bush v. Bush, 82 Oh Ap, 255, the Court of Appeals for Franklin County had this question for decision and we find the syllabus of that case in the following language: — “A divorce decree, incorporating a separation agreement of the parties, which agreement provides for the payment of weekly support money for their children until they reach the age of eighteen years, constitutes such a judgment that execution may be levied thereon for past due installments without first carrying into separate formal legal judgment the total amount of the installments then due under the terms of the decree.” This would seem to be decisive of the question. But by a careful reading of the per curiam opinion at page 256, we find this statement of the facts in the case: — “At various times subsequent to the support order, the defendant was cited for contempt in failing to observe the order and particularly in July, 1944, and again on July 6, 1946, he was found to be in contempt of court, as charged. In the entry of July 6, 1946, it was provided as a condition to defendant’s purging himself of his contempt that he pay $10.00 a month to apply on the arrearage in addition to the regular payments set by the order of October 24, 1942. In the order of July, 1944, a somewhat similar order was made, “but different amounts and dates when they should be paid were fixed.” (Emphasis ours.)

In further support of the conclusion, the opinion cites four cases in support of the reasoning therein contained. A careful reading of these cases discloses the following facts: — The case of Sweigert v. Sweigert, 33 Abs 250, is a decision by the same court and involves an order for' installment payments contained in a divorce decree. However, in the decree being discussed therein, there was an order to pay a certain lump sum which had accrud on temporary orders, plus a weekly sum in addition thereto and the arrearage was reduced to an exact amount in 'the decree. Likewise, the action was one under the declaratory judgment statute, brought to assert statutory exemptions against the judgment. In the case of Piatt v. Piatt, 9 Ohio Reports, 37, there was a clause in the decree: — “Execution issue therefor as on a judgment at law.” In Embshoff v. Embshoff, 12 O. C. C. (N. S.) 236, we do not have the precise question presented which is pointed up in the following language in the opinion: — “The husband is not complaining, and the installments due are in legal effect a judgment, the collection of which may be enforced by an action upon the appeal bond, without first obtaining the consent •of the court rendering the decree.” In the case of Breen v. Breen, 14 O. N. P. (N. S.) 219, the pronouncement was made in an action brought to secure an equitable lien on an interest in an estate being administered and ready for distribution under terms of a will.

The Bush case, supra, was cited by the same court in the per curiam opinion in McPherson v. McPherson, 87 Oh Ap 243. But in that case, the question was whether or not a decree for divorce which provided for installment payments could be reduced to judgment in a foreign state, without first securing a modification to a lump sum. The law of Ohio is quite well settled on this phase, but still does not answer the specific question herein presented. Armstrong v. Armstrong, 117 Oh St 558, McPherson v. McPherson, supra, 157 A. L. R., 175, Sistare v. Sistare, 218 U. S., 1.

In the opinion in the Sweigert case, supra, there are two cases cited that do not seem to be exactly in point. Conrad v. Everich, 50 Oh St 476, was decided in 1893. A reading of that case discloses that there was a decree for alimony in a gross amount with a further order providing that if not paid within 5 days, an execution should issue. In Coffman v. Finney, 65 Oh St 61 (1901) there was likewise a lump sum alimony award and an execution thereon ordered.

We now come to consider the strongest case cited in support of the contention of the defendant herein. In 1947, the Court of Appeals for Wayne County decided the case of Collins v. Collins, 79 Oh Ap 329. A careful reading of the case will show the facts were the same as the one at bar. There was a divorce decree and an order for installment payments for the support of children, until further order of court. Seventeen years later, without service or other notice to the adverse party, the court entered in form a decree finding there was due and owing on said decree $7,467.60 and costs and further decreed, “defendant to have a certificate of judgment issued in the amount of $7,467.60 and costs.” The syllabi of the case define the facts and apply the law in such plain language that an exact quotation will suffice to explain the logic of the conclusions, viz: — “1. An order Sor support of minor children, payable in installments, and over which the court retains a continuing jurisdiction, either expressly or by implication, is in the same category as an order for alimony, payable in installments, over which the court expressly or impliedly reserves the right of modification. 2. Before such an order for support may be reduced to a money judgment after term, the order must be modified so as to reduce it to an order for the payment of a lump sum. 3. Such modification may be accomplished either through the medium of a motion filed in the same cause in the same court, or, in a proper case, by a petition for that purpose filed in a separate action in the same court. 4. Under either procedure, proper summons on or notice to the adversary party, or its equivalent, is essential to invest the court with jurisdiction to determine the question presented. 5. A judgment rendered for the sum of the accumulated installments, without notice or its equivalent to the party sought to be charged, and without modifying the installment order, is void.”

On page 333 of the opinion of Judge Stevens is found this very pertinent language: — “From the foregoing it seems apparent that an order for support, payable in installments, over which the court reserves the right of modification, does not, as said by the trial court, without modification, operate as a judgment lien for the support of the minor children, and is not a continuing and subsisting lien against the plaintiff, nor may it be enforced by execution at any time; and it is not true that no notice to the plaintiff was necessary to give the court jurisdiction to make the summation. The rule is that an order for support, payable in installments, over which the court reserves a continuing jurisdiction, must first be modified by proper proceedings, so as to reduce the installment order to a lump sum award, before a judgment may be entered thereon.”

The same state of facts was presented to the Lucas County Court of Appeals in the case of Meister v. Day, 20 Oh Ap 224, and from page 226 of the opinion of Judge Williams we quote:— “The judgment sued on was for the payment of $5.00 per week until the further order of the court. By providing that the weekly payments should run until the further order of the court, the court making the order impliedly reserved the power in itself to modify the order. In other words, the court might at any time in the exercise of a sound discretion, order the payments to cease and convert the order into a judgment for a gross sum of money.” Continuing on page 228 the opinion further states: — “A petition for modification would constitute an appeal to the discretion of the court, as the determination of the amount of alimony did in the first instance, and in the exercise of a sound discretion the court would have a right to grant or refuse modification. The plaintiff had no absolute right to a judgment for any specific sum.”

A very recent case decided by the Court of Appeals for Hancock County is found in DeCamp v. Beard, 94 Oh Ap 367, Ohio Bar, November 9, 1953. An effort was being made to enforce a support order against the estate of a divorced father to recover a judgment for arrearages accumulated at the time of his death. The defense was asserted that this was in the nature of a money judgment and had become dormant and that the cause of action was barred by the statute of limitations. In overruling a demurrer to the petition, the court uses this explanation found at page 370 in the opinion of Judge Younger: — “While the judgment upon which the instant case is predicated is not a ‘judgment for the recovery of money’ in the sense in which that phrase is used as applying to an ordinary judgment, and while it differs from an ordinary judgment in that it is payable in installments, is subject to modification as to unaccrued installments, and is essentially a judgment for the enforcement of a duty, it still constitutes a judgment within the meaning of the Constitution of the United States and the laws of this state so far as the collection of accrued installments thereof is concerned.”

In the case of Ellis v. Ellis, 94 Oh Ap 339, 52 O. O. 14, we find this comment in the opinion of Judge Fess:—

“Although no authorities directly in point have come to our attention, it would seem to follow that where a divorce judgment contains provisions with respect to property rights in futuro or of an executory nature, the court entering the judgment would likewise have continuing jurisdiction, impliedly reserved, to enforce or implement the rights secured by such provisions. Since the defendant has appeared in the present proceeding, the question of jurisdiction of the person is not presented. Although the jurisdictional question is not free from doubt, we reach the conclusion that upon an appropriate application and evidence in support thereof, a court which at a prior term has entered a divorce judgment has jurisdiction to enter a judgment ancillary in nature to enforce compliance with the terms of the original judgment.”

Within the last 90 days, a very interesting decision touching upon the question involved has been handed down by our own Court of Appeals for Cuyahoga County, Knight v. Knight, 114 N. E., (2nd) 616. On page 618 of the per curiam opinion is found the following excerpt: — “However, the trial court found that the judgment providing that the first party agrees that he will turn over to second party sixty per cent of his earnings monthly is not sufficiently certain in amount. We think that this was error prejudicial to the rights of plaintiff herein. In our opinion the provision is sufficiently certain in amount in view of the stipulation of the defendant’s earnings during the period in question. All that is required is a mathematical computation to arrive at the amount due.” This reasoning is carried into the first syllabus found in the citation, viz:— “Accrued installments under support and maintenance provision of divorce decree may be reduced to judgment in jurisdiction foreign to that granting divorce where nothing is required beyond proof of a final order for the payment of money, plus a mathematical calculation of the amount due.”

The state of New York has clarified this entire question in Section 1171-b of the Civil Practice Act, which provides as follows: — “Where the husband, in an action for divorce, separation, annulment, or declaration of nullity of a void marriage, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the court may make an order directing the entry of judgment for the amount of such arrears, together with ten dollars costs and disbursements. The application for such order shall be upon such notice to the husband as the court may direct. Such judgment may be enforced by execution or in any other manner provided by law'for the collection of money judgments. The relief herein provided for is in addition to any and every other remedy to which the wife may be entitled under the law.”

Coordinating the theories hereinabove cited and set forth, it is the judgment of this Court that the executions issued in the instant case were void and of no effect. An entry may be presented accordingly.


author: By WISEMAN, J:

text:
    MAXWELL FINANCE COMPANY, Plaintiff-Appellee, v. JONES, Defendant-Appellee, and ALEXANDER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2147.
    Decided November 16, 1951.
    Joseph L. Lair, Dayton, for plaintiff-appellee.
    Herbert M. Eikenbary, Dayton, for defendant-appellant.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the Common Pleas Court of Montgomery County affirming a judgment of the Municipal Court of Dayton, rendered in favor of the plaintiff in an action on a note and for the foreclosure of a chattel mortgage.

The facts are briefly stated as follows: Ralph Alexander, the defendant-appellant, was the owner of a grocery store which Charles D. Jones, defendant-appellee, desired to purchase; Jones did not have sufficient cash money to make the down payment; Jones proceeded to secure a loan from the plaintiff; Alexander was present at the grocery store when the agent of the plaintiff appeared at the store to list and appraise the chattels in the store; Alexander knew Jones was placing a loan on said chattels; on April 6, 1949 Jones executed his note for $500.00 and a chattel mortgage on the chattels in the store in favor of the plaintiff; and at that time received from the plaintiff a check in the sum of $500.00 to cover the amount of the loan; the check was made payable not only to Jones but, also, to Alexander in order to protect Alexander’s interest; on the same day Jones Went to the grocery store and endorsed the check and turnéd the check over to Alexander who stated that the bill of sale would be executed the following day; on the following day, to-wit: April 7, 1949, Alexander executed the bill of sale to Jones covering the chattels embraced in the chattel mortgage and on the same day Alexander and Jones entered into a contract of sale with respect to the sale of the store and the chattels involved, which provided for the payment of additional purchase price. The contract of sale provided that in the event Jones failed to make payment according to the contract the property would revert to Alexander. The evidence shows that Jones failed to make payments as agreed and Alexander took back the grocery store. The plaintiff demanded payment of the $500.00 note and upon refusal of payment brought suit against Jones on the note and for foreclosure of the chattel mortgage. In this suit Alexander was made a party-defendant on the ground that he claimed an interest in the property. The trial court rendered judgment in favor of the plaintiff on the note and ordered foreclosure of the chattel mortgage.

The defendant-appellant, Alexander, claims the judgment is contrary to law. The point is made that the chattel mortgage was executed one day before Jones became the owner of the chattels under the bill of sale, and that, therefore, Alexander who did not sign the note and mortgage should not be made to suffer the loss of the chattels.

In equity the chattel mortgage became an effectual lien on the chattels as between the parties to the transaction when Jones became the owner and possessor of the chattels on April 7, 1949. Francisco et al v. Ryan, 54 Oh St 307, 316. Under the circumstances an equitable estoppel will work to defeat the interest of Alexander as against the claim of the mortgagee. 16 O. Jur. Page 619, Sec. 58. When Alexander gave Jones a bill of sale, Alexander estopped himself from asserting his own title or right in the property as against the mortgagee. Alexander accepted the benefits derived from the transaction between Jones and the plaintiff. Alexander received the check given for the loan and now cannot be heard to question the legality of the transaction.

Judgment affirmed.

HORNBECK, PJ, MILLER, J, concur.