author: By HORNBECK, PJ.:

text:
    HULL, Plaintiff-Appellee, v. HULL, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 525.
    Decided March 4, 1952.
    J. Carl Marshall, Xenia, for plaintiff-appellee.
    Schlafman & Elliott, Fairborn, for defendant-appellant.
   OPINION

By HORNBECK, PJ.:

This is an appeal which was noted as upon questions of law and fact but at the time of hearing, upon motion of appellee, was dismissed for the reason that the cause could not be heard upon the facets and, as a bill of exceptions had been settled and allowed in the trial court and filed in this court, the cause proceeded upon questions of law.

At all times, in the suit to quiet title and upon the application to vacate the judgment the issue between the parties related to the execution of a deed by the defendant to the plaintiff for a one-half interest in certain real estate described in the petition. The plaintiff, realizing that the defendant was making some claim to title to the premises, instituted her suit and the judgment sought to be vacated was entered in her behalf in that suit.

As we interpret the brief of the appellant, the errors assigned are that the finding and judgment of the trial court on the application to vacate was against the manifest weight of the evidence.

The application for vacation of judgment was predicated upon part of the third paragraph of §11631 GC, namely; irregularity in obtaining the judgment on behalf of the appellee. The irregularity set up in the amended answer and cross-petition of appellant, filed with his application to vacate, was that the defendant was not given an opportunity to testify; that the deed from defendant to plaintiff was without consideration, had been altered after it was executed and particularly, that the signing and execution Of the deed by the defendant was not his voluntary act.

When the matter of the application to vacate the judgment came on for consideration by the trial judge, he did not follow strictly the provision of §11636 GC, namely; that “The Court must try and decide upon the grounds to vacate * * * a judgment * * *, before trying or deciding upon the validity of the defense * * Canal Winchester Bank v. Exline, 61 Oh Ap 253, 28 Abs 327. Instead, he tried at the one hearing the preliminary question and the succeeding question; viz; whether the defendant had a valid defense to the petition to quiet title. Indeed the trial judge went further, and to all intents, tried the issue which ultimately would have been presented if the application to vacate had been decided in favor of the defendant.

At the hearing, the trial judge permitted counsel for the defendant to fully develop the defense which he had theretofore set up in his answer and cross-petition against plaintiff’s action to quiet title. The defendant testified, as did the Notary Public who took the acknowledgment to and witnessed the deed, her assistant, a second witness to the deed, defendant’s counsel in the suit to quiet title, the plaintiff and her counsel.

At the conclusion of the hearing the trial judge found that (1) there was no irregularity in the obtaining of the judgment and (2) the defendant had no valid defense to the action to quiet title. If the trial judge acted within the evidence in finding against the defendant upon either of these issues, the judgment must be affirmed.

The petition of plaintiff to quiet title and the answer and cross-petition thereto raised the identical issue which is sought to be raised by the amended answer and cross-petition tendered with the application to vacate the judgment. But, defendant insists that he did not have his day in Court, that the judgment entry quieting title in the plaintiff which recites that the issue was presented and determined upon the evidence was contrary to the fact in that the defendant did not appear in Court; did not testify and was given no opportunity to testify.

Manifestly, the formal recitation in the entry that the cause was determined upon the evidence may not be lightly set aside as it hears the import of validity and truth. The journal of a Court of general jurisdiction imports absolute verity. State ex rel Kriss v. Richards, 102 Oh St 455.

Independent, however, of the recitation in the entry which was signed by counsel for both parties, under the notation “Seen,” the trial judge had the right to find that, at the hearing on issues joined in the suit to quiet title the plaintiff, her counsel and the counsel for the defendant were in chambers with the trial judge: the defendant was in the courtroom proper which is adjacent to the office of the judge; as the hearing progressed, counsel for defendant who had filed his answer and cross-petition and who testified that he was acting for defendant at the hearing, conferred with his client in the courtroom. Evidently, the trial judge inquired of counsel for defendant who had the obligation to go forward with his proof of what it consisted. It developed that to support the claim that the defendant did not voluntarily sign the deed conveying the real estate to his wife, he proposed to show marital difficulty between the parties, bickering, quarrels and disputes. The trial judge indicated to counsel for the defendant that upon such testimony alone, he could not find for the defendant upon his cross-petition seeking to quiet title. One witness testified that his recollection is that there was a Court Reporter present at the hearing.

Although it is probable that no testimony was taken, experienced counsel in this case must recognize that statements to a trial judge made by authorized counsel, intended to be representative of the facts which they expect to develop, may be considered by the trial judge as the equivalent of evidence. This seems fairly to represent what occurred at the hearing.

The trial judge who heard and decided the application to vacate the judgment was the same judge who tried and determined the suit to quiet title. Manifestly, he was in a superior position to decide whether or not the findings in the judgment entry were correct. Upon the issue then, whether there had been any irregularity in the entering of the judgment in behalf of plaintiff, the trial judge in holding against the defendant acted well within his province.

But the Court did not stop there. He took all the testimony that was available on the questions that had once been decided in the original suit, viz: Was the signing of the deed by the defendant his voluntary act and deed, was the deed delivered to the plaintiff, was there consideration for the deed? He again resolved these issues against the defendant and in so doing was well within the permissible interpretation of the facts.

That part of the acknowledgment of the deed in question, which recites “to be his voluntary act and deed” was stricken. This was done because at the time of, or immediately after the signing of the deed upon query if the signing was his voluntary act and deed, the defendant answered, “No,” and added that he was signing to keep peace in the family, or words to that effect. Thereafter, the Notary Public, not knowing what to do under the circumstances, took the matter up with an attorney who struck out that part of the deed which we have quoted.

The stricken part of the acknowledgment is not required by the provisions of §8510 GC defining the requisites of execution and acknowledgment of a deed. Manifestly, with or without the quoted language, the question presented to and considered by the trial judge was, was the signing and execution of the deed defendant’s voluntary act. Giving full weight to all that defendant has stated in his testimony, it does not reach to the requisite degree of proof that he did not have full appreciation of what he was doing when he signed the instrument or that he was under such compulsion or duress as to overcome his volition. Indeed, the burden of his testimony is that he signed the deed because he thought it would create a better condition in his domestic affairs. It is probable that because the execution of the deed did not result as he had hoped, he believed he could thereafter assert that he should not be bound by his act in executing it.

Defendant also claimed in the original suit, and upon the application to vacate, that there had been no delivery of the deed to the plaintiff. The evidence upon this issue varied and, of course, the trial judge had a right, as was his obligation, to decide where the truth was to be found.

Upon the record as it comes to us it appears that the defendant has had two full and complete trials upon his defense to the plaintiff’s suit to quiet title to the premises involved. In both of them the trial judge has held against him, which he had the right to do.

The defendant, in the trial court has been accorded all and more protection of the law then is contemplated and full consideration of his claim on the appeal to this Court does not establish any reversible error in the judgment.

The judgment must be affirmed.

WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By MILLER, J. HORNBECK, PJ.

license: Public Domain

text:
    HARDIN, Plaintiff-Appellee, v. HARDIN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4702.
    Decided March 19, 1952.
    Thomas W. Applegate, Columbus, for plaintiff-appellee.
    Horace S. Kerr, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court, Division of Domestic Relations, entered on May 19, 1951, finding the defendant-appellant guilty of contempt of court for failing to obey an order commanding him to pay the sum of $12.50 a week as support' money.

The record reveals that the parties hereto were divorced on December 17, 1943, because of the aggressions of the husband: that the parties entered into an agreement with reference .to alimony and support money for their two minor children, and which was made a part of the decree. The pertinent part of this agreement provides:

“The said Joseph W. Hardin agrees to pay to Marie Hardin for support and maintenance of their two children, Robert and Flora Louise, the sum of Fifteen ($15.00) Dollars each week hereafter, said payments to continue until said Flora Louise shall become 21 years of age or until she becomes emancipated. The said Joseph W. Hardin by reason of the physical condition of Robert Hardin agrees to maintain him so long as is necessary.”

The record discloses that on March 15, 1946, upon application of the appellee the support money for the two minor children was increased to $17.50 per week; that upon the emancipation of the minor daughter an application was made by the appellant for a modification of the order of March 15, 1946, which was allowed, the same being reduced to $12.50 per week, being for the support of the remaining minor son. The record reveals that the appellant paid the $12.50 per week until the son became 21 years of age, when he reduced the payment to $7.50 per week and continued said payments until the son’s decease. The Court found this reduction to be in violation of its previous order and found him to be in contempt of court. The appellant urges that when the minor son, Robert Hardin, became 21 years of age his liability for support money terminated and the order commanding him to pay $12.50 per week became void as being contrary to law.

The appellee concedes that the Court was without jurisdiction to make such an order in the absence of an agreement of the parties, but urges that since they did enter into such an agreement and the same being made a part of the decree, that it became a valid order. Citing the case of Sedam v. Sedam, decided by this Court on March 31, 1948, and reported in 52 Abs 141. We adhere to our former ruling in the Sedam case, but are of opinion that we have a different factual situation in the case at bar. An examination of the agreement between these parties reveals that they only agreed that the payment of $15.00 per week should continue until the daughter became emancipated or 21 years of age. It is true that the agreement provided further that the appellant would maintain Robert Hardin because of his physical condition since it was necessary. It will be noted that the agreement of the appellant was indefinite and uncertain as to the amount to be paid after the son arrived at the age of majority. We are of the opinion that the Court did not have jurisdiction to determine the amount necessary for the son’s support. This would in effect be ordering the appellant to pay a sum not agreed upon.

In the case of Miller v. Miller, 154 Oh St, 530, the syllabi provide:

“1. In an action for divorce, alimony and support of minor children, the Court of Common Pleas does not possess general equity powers but can exercise only such power as the statutes expressly give and such as is necessary to make its orders and decrees effective. (Marleau v. Marleau, 95 Oh St, 162, approved and followed.)
“2. In a divorce action, where a child of the parties attains his majority, authority of the court over such child comes to an end, and the court is without power to provide for the support of or aid to such child or to continue a provision for his support. (Thiessen v. Moore, 105 Oh St, 401, approved and followed.)
“3. The parties to an action cannot by agreement clothe a court with jurisdiction of subject matter which it does not have.”

If authority for support of the son after his majority is to be found only in the decree it is too indefinite and uncertain to support a citation for contempt.

“A judgment should be sufficient in itself and not defer to the memory and recollection of one of the parties that which shall constitute compliance therewith. Inasmuch as the judgment and its enforcement are the end and aim of the whole litigation, to satisfy this purpose the judgment must so dispose of the matters at issue between the parties that they, and such other persons as may be affected, will be able to determine with reasonable certainty the extent to which their rights and obligations have been determined. Accordingly, the judgment should be certain and definite, and it is recognized that a judgment may be so. uncertain as to be null and void.” 23 O. Jur., Sec. 153, p. 621.

In State v. Hamilton, 27 O. C. D. 147, at page 151, the Court says:

“We think first that the order was too indefinite, as held: ‘In order that a commitment may issue under any circumstances, as already stated, the precise thing to be done by the party proceeded against, must be stated in the judgment or order.’ Ross v. Butler, 57 Hun. 110 (10 N. Y. Supp. 444); Pritett v. Pressley, 62 Ind. 491.”

The appellee cites the case of Tullis v. Tullis, 138 Oh St 187, wherein the general rule was stated to be:

“A decree in a divorce action, unconditionally fixing the amount and method of payment by the husband for the support of a minor child pursuant to and in accordance with a previous contract of separation between the husband and wife providing for complete property settlement and support to their minor child, which contract is specifically approved by the court and made a part of the decree, may not, in the absence of fraud or mistake, be subsequently modified by the court so as to lessen the amount of support for such minor child.”

It will be noted that here a definite amount was agreed upon, which is not the fact in the case at bar, the appellant agreeing only to support the son as long as necessary.

A decree that is indefinite and uncertain cannot be enforced by contempt proceedings. State v. Oppal, 49 Abs 492; State v. Hamilton, 27 O. C. D. 147; Magdwick v. Magdwick, 31 Abs 231.

The judgment is reversed and cause ordered remanded with instructions that the contempt proceeding be dismissed.

WISEMAN, J, concurs.

HORNBECK, PJ.

I concur in the judgment because the trial judge did not have jurisdiction to enforce the order for support required after the son attained his majority, but I do not concur in the holding that the agreement between the parties was indefinite.


author: By HORNBECK, PJ:

text:
    STATE, Plaintiff-Appellee, v. MUMPOWER, Defendant-Appellant, and DOBBS, Defendant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2202.
    Decided November 26, 1952.
    Mathias H. Heck, Pros. Atty., Fred M. Kerr, Herbert M. Jacobson, Asst. Pros. Attys., Dayton, for plaintiff-appellee.
    Paul M. Rion, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, PJ:

; Defendant-appellant, Charles J. Mumpower, was jointly indicted, tried by a Judge, jury waived, convicted and sentenced of'the offense of burglarizing an uninhabited building with intent to steal property of Mary E. Clark, the owner of the Foos-Clark Cafe which is at the south-east corner of east Third and Torrence Streets, Dayton, Ohio.

Mumpower prosecutes this appeal and assigns seven errors, six of which are grounded on the claim that the State did not make a case against the appellant. The seventh assignment, other errors apparent on the face of the record, is not urged.

Counsel for appellant in his brief says:

“There is not one bit of evidence to show Mr. Mumpower was at the scene of the crime, that he was in any way connected with the alleged breaking and entering, that he knowingly had in his possession any item similar to those allegedly taken from Foos-Clark Cafe, the automobile he was driving belonged to Thomas Ingram, various tools belonged to Thomas Ingram or at least in the car when loaned to Charles Mum-power and the alleged car at the scene of the crime was never identified.”

If the above statement “There is not one bit of evidence” be qualified by the word direct, it is true. The case of the State, as to some of the material elements of the offense charged, is based upon circumstantial evidence. Men differ as to the reliability and certainty of proof predicated upon circumstances but it is recognized in the law as competent and probative and, indeed, some argue that it is the most satisfying and convincing type of proof.

It is established by uncontradicted evidence, that there was a breaking and entering into the Foos-Clark Cafe in the night season of December 21, 1952 and that money of the owner was stolen from the cash register and several R. G. Dun Little Cigars, were taken from a box of cigars on the bar. Specific description of the money stolen is given. There were 26 one dollar bills, 5 five dollar bills, 10 half dollars, 10 quarters, 3 rolls of dimes of $5.00 each, 3 rolls of nickels of $2.00 each, with the name City Railway on the rolls of dimes and Air City Novelty Service Company on the rolls of nickels. The burglary was committed between 1:30 A. M., the time when the owner left the cafe and 6 A. M. the time when two detectives came on to the scene to investigate and were there when the manager came at about 6:15 A. M. and discovered the result of the robbery on the inside of the building.

At 10 A. M., the day of the burglary, a 1947 Aero body, two tone sedan Chevrolet was found in front of a house where appellant was staying and where he was then found asleep. The Chevrolet was registered in the name of Thomas Ingram about whom nothing appears in the record, but appellant had the keys to the car and admitted that he had been driving it. In the glove compartment of the Chevrolet was round a roll of dimes marked “City Railway Co.” On the same morning that the roll of dimes was found, the co-defendant Dobbs was located in a house in another part of the city. Upon search of the room in which he was sleeping there was found in an overcoat belonging to him 1 roll of nickels and 1 roll of dimes, the nickels marked “The Air City Novelty Company”; also in a pocket of a blue sweater “six Baby R. G. Dun cigars.” Later at the police station among the effects taken from the person of Dobbs were 18 one dollar bills, 7 quarters, 4 halves, 4 dimes, 1 nickel and 7 pennies.

Appellant and his co-defendant Dobbs were proven to have been together as late as 3 o’clock on the morning of the burglary.

When the foregoing evidence was produced the judge, as the trier of the facts, had full right to conclude that the property found on the appellant and his co-defendant was some of the property stolen from the Foos-Clark Cafe by the persons who entered by breaking the window of the building in which it was located. This evidence was of sufficient probative effect to put the defendants on explanation as to the source from which they came into possession of the property. Such explanation was not forthcoming. The situation thus created gave full application to the law as announced in the 3rd syllabus of Methard v. State, 19 Oh St 363:

“The facts that a building was burglariously entered, goods stolen, and the possession by the accused soon thereafter of the goods stolen, are competent evidence to go to the jury, and with other circumstances indicative of guilt, such as giving a false account, or refusing to give any account, of the manner in which, or the means by which, he came into possession of the stolen goods, may afford a strong presumption of fact of the guilt of the accused, and warrant the jury in finding him guilty of both the burglary and larceny; But the facts of burglary, of larceny, and of possession of the stolen goods thereafter by the accused, do not, alone, raise a presumption of law that he is guilty of both the burglary and larceny.” (Emphasis ours.)

There were other inculpatory circumstantial facts involving the defendants.

A Mr. John Edwards and his wife lived at 26 South Torrence Street in the third house to the south of the building which was burglarized by an entrance on the Torrence street side thereof. Edwards was a motorman and reported for work at 4:47 A. M. He arose at 3:45 A. M. on the day of the burglary and from his upstairs bed room heard the noise of an automobile having trouble to get started on the snowy, slippery road. When he first saw the car it was on the east side of the street headed north. Later, it was parked on the west side headed south. Mr. Edwards had trouble getting away from his home because of the icy street and saw the car parked near his home as late as 4:30 A. M. He described the car as a two tone, torpedo body, ’47 or ’48 Chevrolet and said that it was in the particulars he had described like the Chevrolet which was taken by the police from in front of the house where appellant was found on the morning of the burglary. Mrs. Edwards, who arose some later than her husband, observed the parked car, without lights, for some time and saw and heard it when it backed out of an alley across from her home, headed towards Third street, stopped for a few seconds and left. The police investigating the burglary at about 9 A. M. found the Chevrolet, heretofore mentioned as being in the possession of appellant, at about 10 A. M. On the front seat of the Chevrolet was a pair of gloves which Dobbs, in the presence of appellant said belonged to him; this appellant denied. On the floor in front of the back seat there was found a tire tool and a large screw driver, the blade of which, it was testified, fitted exactly indentations made in the window frame when it was pryed out of its setting so that an entrance could be made into the cafe.

Upon the foregoing evidence and more, which is in the record and which was not denied, the trial judge found the appellant and his co-defendant guilty as charged. We are satisfied that the verdict of the guilt of appellant was justified by the evidence and that all of the material elements of the offense charged were established by the requisite degree of proof.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By BOLI, J.

text:
    WARREN COUNTY LAW LIBRARY ASSN., Plaintiff, v. PARKER, Aud.; FRASER, Mayor, and ROSSMAN, Mayor, Defendants.
    Common Pleas Court, Warren County.
    No. 19563.
    Decided November 20, 1952.
    Fred E. Jones, Lebanon, Lloyd Ritz, Franklin, Paul Herdman, Morrow, for plaintiff.
    Marvin E. Young, Pros. Atty., Lebanon, for defendant.
   OPINION

By BOLI, J.

This is an action for declaratory judgment. Plaintiff alleges that the Bureau of Inspection and Supervision of Public Offices has made a finding against the Warren County Law Library Association in favor of Warren county, arising from examination of the official accounts of the Law Library Association of Warren County. That there is involved in said finding the construction of certain statutes which pertain to the legal rights of the parties.

The first question presented in plaintiff’s petition is: “Are moneys collected by mayor on a state case within the scope of the words ‘collected by a municipal corporation’ under §3056 GC?”

Since moneys collected by mayor for fines in a state case never become the property of a municipal corporation and, therefore, are never in the municipal or village treasury, it is our opinion that moneys so collected do not come within the scope of funds collected by a municipal corporation under §3056 GC.

The second question presented is: “Are moneys collected by a mayor on state cases under §3056 GC, and under §4536 GC, insofar as the Warren County Law Library Association is concerned, to be distributed in the same manner as moneys collected by a justice of the peace under §3056-1 GC?”

Sec. 3056-1 GC, provides:

“In each county of the state, 50% of all monies collected by justices of the peace of such county, accruing from fines, penalties, forfeited recognizances, and forfeited cash deposits, unless otherwise distributed by law, shall be paid to the trustee of the law library association of such county by the county treasurer thereof, upon the voucher of the auditor of such county within thirty days after such monies have been paid into the county treasury by such justice of the peace.”

Sec. 13423-3 GC, provides that fines collected by a justice of the peace shall be paid into the general fund of the county and §4536 GC, provides:

“He (mayor) shall have final jurisdiction to hear and determine any prosecution for a misdemeanor unless the accused is, by the constitution, entitled to a trial by jury. His jurisdiction in such cases shall be co-extensive with the county, and in keeping his dockets and files, making report to the county auditor, disposing of unclaimed monies, and in purchasing his criminal docket and blanks for state cases, shall be governed by the laws pertaining to justices of the peace.”

In our opinion, the provision in the above statute referring to the mayor in “making report to the county auditor, disposing of unclaimed monies,” is applicable to the funds coming into the hands of the mayor from fines in state cases.

The above section makes no provision for distribution of fines directly to a law library association by justices of the peace.

Therefore, we believe money collected by a mayor from fines on state cases should be distributed in the same manner as moneys collected by justices of the peace under §3056-1 GC.

The third question presented is: “Was $4,491.63 in funds paid into the Warren County Treasury by various village mayors, erroneously distributed to the trustees of the Law Library Association by the county auditor?”

Since the distribution of the above sum in question was made by the county auditor to the trustees of the law Library Association pursuant to the provisions of §3056-1 GC, it is our opinion that the above sum in question paid into the Warren County Treasury by the defendant mayors was correctly distributed to the trustees of the Law Library Association by the county auditor.


author: By THE COURT:

text:
    STATE, ex rel. McKAY, Plaintiffs-Relators, v. BOARD OF ELECTIONS OF MONTGOMERY COUNTY et, Defendants-Respondents. MONNIER, Plaintiff-Appellant, v. BOARD OF ELECTIONS OF MONTGOMERY COUNTY et, Defendants-Appellees. (Two cases) NORRIS, President et, Plaintiffs-Appellees, v. BOARD OF ELECTIONS OF MONTGOMERY COUNTY et, Defendants-Appellees, BOUCHER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    Nos. 2237, 2238, 2239 and 2240.
    Decided April 13, 1953.

      Hon. Mason Douglass, Dayton, for plaintiffs-relators in Case No. 2237.
    Mathias H. Heck, Pros. Atty., Albert J. Dwyer, of Counsel, Dayton, for defendants-respondents in Case No. 2237.
    Hon. Mason Douglass, Dayton, for plaintiff-appellant in Case Nos. 2238 and 2239.
    Mathias H. Heck, Pros. Atty., Albert J. Dwyer, of Counsel, Dayton, for defendants-appellees in Case Nos. 2238 and 2239.
    Pickrel, Shaeffer & Ebeling, Virgil Schaeffer, Iddings, Jeffrey & Weisman, Harry P. Jeffrey, Marshall & Smith, P. Eugene Smith, Cowden, Pfarrer & Crew, Charles P. Pfarrer, of Counsel, Dayton, for amicus curiae in Case Nos. 2238 and 2239.
    Jas. K. Hoefling, Jas. T. Cline, Jack W. Hutton, George L. Houck, Dayton, for plaintiffs-appellees in Case No. 2240.
    Mathias H. Heck, by Albert J. Dwyer, Dayton, for defendantsappellees in Case No. 2240.
    Pickrel, Schaeffer & Ebeling, Iddings, Jeffrey & Weisman, Marshall & Smith, Cowden, Pfarrer & Crew, Dayton, for defendant-appellant, Roy D. Boucher in Case No. 2240.
   OPINION

By THE COURT:

Case No. 2237 is an action in prohibition originating in this Court, upon which a writ was issued and thereafter modified. To this petition an answer has been filed, to which a demurrer has been interposed. Cases Nos. 2238, 2239 and 2240 are appeals on questions of law from judgments of the Common Pleas Court. Case No. 2240 was first presented separately from the other numbered cases. The other cases, including the action in prohibition, were argued together.

The arguments were extensive, and in the course thereof many cases were cited and discussed. In this opinion it is not our purpose to again consider in detail the subject matter which was the basis of Judge Crawford’s decisions in the Common Pleas Court, nor do we intend to comment on any considerable number of the many cases cited by counsel in briefs and oral argument. We do, however, want to give attention to the propositions that seem to be newly presented or especially emphasized in this Court, and others that have been urged by counsel for plaintiffs in the prohibition case, and in the cases in which plaintiff Monnier is the appellant.

We are in accord with the conclusions reached by Judge Crawford in the three cases upon which the appeals are prosecuted. We believe that he has correctly analyzed the sections of the statute and the provisions of the Constitution which control the questions presented.

In the declaratory judgment action, the plaintiff averred that the municipality of Kettering was a de facto city and should be so treated until it was a city de jure. Manifestly if this contention was supported by the judgment, the detachment proceedings, accomplished and prospective, would not have been effective. Those who opposed this contention nominally insisted that Kettering was a village and that the detachment proceedings, accomplished and prospective, were appropriate and authorized by statute. It may be that tnere was some suggestion of the unconstitutionality of the incorporation proceedings because the election approving the incorporation had as its effect the creation of a municipality which had a population in 1950, as determined by the Federal census of that year, of more than 22,000 persons.

It is singular that the trial judge did not, in his written opinion, devote any attention whatever to this contention, and is persuasive that it was not an issue. In the transcript of the proceedings it does appear that the court recognized that there were three questions to be determined, namely: Whether Kettering was a city, a village or a township, and it was also stipulated that the status of Kettering should be determined upon plaintiffs’ allegations of fact appearing in their petition.

It is well established that a constitutional question may not be raised for the first time in a reviewing court. To be reviewed the question must have been raised and determined by the trial court. Thatcher v. The Pennsylvania, Ohio and Detroit Railroad Company, 121 Oh St 205; Stephenson v. State, 119 Oh St 349; Cincinnati v. Lindsay, 88 Oh Ap 117. And by this Court in Kuhn v. Wood, 34 Abs 265, 268; State v. Miller, 28 Abs 571, 576. See Vol. 2, O. Jur., Part 1, Sections 150, 502, pages 299, 896. We are of the opinion that the constitutional question interposed in this Court was not specifically raised or determined in the trial court.

It is urged that Article XVIII, Section 1, of the Ohio Constitution precludes the incorporation of Kettering as a village, which we do not pass upon. The section provides:

“Municipal corporations are hereby classified into cities and villages. All such corporations having a population of five thousand or over shall be cities; all others shall be villages. The method of transition from one class to the other shall be regulated by law.”

Pursuant to this classification and authorization the legislature enacted §3497 GC, which must be considered:

“Municipal corporations, which, at the last federal census, had a population of five thousand or more, shall be cities. All other municipal corporations shall be villages. Cities which, at any future federal census, have a population of less than five thousand shall become villages. Villages which, at any future federal census, have a population of five thousand or more, shall become cities.”

In Murray v. The State, ex rel. Nestor, 91 Oh St 220, our Supreme Court held (1) that Section 1 of Article XVIII of the Constitution, relating to the classification of municipal corporations, adopted September 3, 1912, is not self-executing and (2) §§3497, 3498 and 3499 GC, regulate the method of transition of municipal corporations from one class to the other and are not inconsistent with that constitutional provision, and (3) a municipal corporation which had a population of less than five thousand at the last federal census did not advance to a city when it was made to appear by an official census taken by the municipal corporation subsequently thereto that it had a population of more than five thousand.

The authority which promulgates the result of the federal census as it relates to the transition of municipal corporations from villages to cities and vice versa is set up by §3498 GC. That is the only statutory provision defining the procedure to accomplish the transition contemplated by the Constitution.

In the act on incorporation of villages, §3516 to §3546 GC, inclusive, there are set up two methods of incorporation. The first, §3517 to §3525 GC, inclusive, being an application by petition to the county commissioners. Sec. 3519 GC provides what the petition shall include, among which is the requirement that it set forth “the supposed number of inhabitants residing in the proposed corporation,” and that at the hearing by the county commissioners provided for in the act, §3521 and §3522 GC, among the essentials to the order organizing a village is: “That there is the requisite population for the proposed corporation.”

The following sections in the chapter, §3526 GC, et seq., are those which were involved in the proceeding to incorporate Kettering. Sec. 3526 GC authorizes the petition to the township trustees for incorporation, and requires that the statement as to the population in the proposed municipality be made as in the petition under §3519 GC. But the procedure outlined in §3527 GC, and defining what the trustees shall determine respecting the petition, enjoins upon them the obligation only to find that the persons who signed the petition are electors, that they reside within the limits of the proposed incorporation, and that a majority of them are freeholders. Having so determined, they have no choice but to order a notice for the election by the qualified voters resident in the territory at the time fixed, to vote for or against the incorporation.

We conclude then, that there is no provision prior to election whereby determination can be properly made if the territory contemplated to be included in the proposed municipality may be incorporated as a village. If the question is to be reached it must be raised thereafter, as has been done in the instant case. The determinative factor, in our opinion, is found in the language of the statute, namely:

“Municipal corporations, which, at the last federal census, had a population of five thousand or more, shall be cities. All other municipal corporations shall be villages. Cities which, at any future federal census, have a population of less than five thousand shall become villages. Villages which, at any future federal census, have a population of five thousand or more, shall become cities.” (Emphasis ours.)

The territory incorporated by a vote of its citizens was not, in 1950 or prior thereto, a municipal corporation. Not having the status of a municipal corporation in the census of 1950, under the authority of Murray v. State ex rel. Nestor, supra, it could not be subject to the transition from one class of municipality to the other until the census of 1960.

It is urged that sufficient consideration has not been given to §3577-2 GC in connection with §3577-1 GC. Sec. 3577-2 GC provides in part that:

“When territory is so detached, an apportionment of the property, funds and indebtedness of said village, shall be made between said village and said detached territory upon the basis of the respective tax duplicates in said village after such detachment, and in said detached territory.”

Sec. 3577-1 GC expressly provides when the detachment from the village shall be complete, which is when the recorder has made a record of the proceedings incident to the election and certified and forwarded a transcript of such record to the Secretary of State. In the language of the section:

“The detachment of said territory from said village, shall thereupon be complete, * * *”

It is urged that the apportionment of property, funds and indebtedness, as provided under §3577-2 GC, will not be practicable, if at all possible, if the detachment proceedings are held to be valid. It is true, that as an essential to such apportionment there must be village officers, but it is obvious that without respect to the status of the village after detachment of territory, there will be a village of Kettering, and there will be elected officers who can carry out the mandate of §3577-2 GC. If the village as then constituted and the detached territory cannot come to an agreement the matter of apportionment of taxes, etc., is referred to the Probate Court. We do not believe that §3577-2 GC is of sufficient force to require the holding that territory may not be detached until officers are elected.

It is conceded by counsel for plaintiff, Monnier, that detachment proceedings may validly obtain after the election of officers for the village of Kettering. Sec. 3536 GC provides for the election of officers for corporations such as Kettering; that the election shall be a special election held at any time not exceeding six months after the incorporation, at a time to be fixed by the agent of the petitioners. Unless such special election is held, the first election of officers for such a corporation shall be at the first municipal election after its creation.

It is urged that there is an ambiguity created by conflict in this section and the sections pertaining to detachment, and that it should be resolved by the holding that the corporation is not so completed as to permit the institution of detachment proceedings until after the officers are elected and qualified.

Such an interpretation, if it could be indulged, would simplify and possibly be a salutary and helpful determination of the whole matter. But there is nothing in either of the acts involved, the incorporation statutes or the detachment statutes, which requires the conclusion that it was intended that there must be a deferment of the detachment proceedings until the officers of the village are elected and qualified.

A cursory examination of the latter part of §3536 GC would lend support to the contention that it is mandatory that there be an election not later than the first municipal election after the creation of the village. In one instance, in The Harbor Land Co. v. The Village of Fairport, et al., 7 O. O. 405, 33 Abs 44, the village was incorporated in 1836, the officers were not elected until 1889, and it was urged that there could be no acceptance of a street by the Village of Fairport until 1889. In the opinion, at page 409, it is said:

“We hold that the status of the village was established in 1836 at the time of the incorporation and not by the election of officers at a later period; and that the status of the public grounds, streets, alleys, and highways were also fixed at the time of incorporation. If such is the fact that officers were not elected under the incorporation of the village until 1889, such would in no way change the status of the village or the rights vested therein at the time of incorporation.”

In the action in prohibition and in support of it there is urged a proposition that had not heretofore been considered, namely; that the last proposed detachment proceeding, if effectuated, will bi-sect the village of Kettering near the central portion thereof. This fact may argue effectively against the approval by the electorate of any such proposal.

Supporting the claim of those who oppose the judgment in the Monnier case, No. 2239, and in support of the foregoing contention of plaintiff in the action in prohibition, Article II, Section 30, of the Ohio Constitution is cited. This provides:

“No new county shall contain less than four hundred square miles of territory, nor shall any county be reduced below that amount; and all laws creating new counties, changing county lines, or removing county seats, shall, before taking effect, be submitted to the electors of the several counties to be affected thereby, at the next general election after the passage thereof, and be adopted by a majority of all the electors voting at such election, in each of said counties; but any county now or hereafter containing one hundred thousand inhabitants, may be divided, whenever a majority of the voters residing in each of the proposed divisions shall approve of the law passed for that purpose; but no town or city within the same shall be divided, nor shall either of the divisions contain less than twenty thousand inhabitants.” (Emphasis ours.)

Manifestly this section does not relate to a village, but is confined to counties. If it has any application it is by inference, which could not be indulged against specific authorization of statute.

The requisite conditions to the submission of the question of detachment of territory are that the portion of the village to be detached shall be contiguous to an adjoining township, and comprise not less than one thousand five hundred acres of land. This seems to be the extent of the physical limitations in such proceeding. It will be noted that the requirement that any portion of the municipality to be detached must comprise not less than 1500 acres of land precludes a complete dissolution of the village.

It is our considered opinion that the legislation invoked and pertinent to the questions presented in the cases before this Court is entirely inadequate to meet the developments in communities and political sub-divisions of Ohio in recent years. It is incongruous and unfortunate that any territory, without limitation as to size or population, may be incorporated as a village.

It would also be more orderly and tend to stability of organization if the statutes would not permit detachment proceedings to be instituted until after the government of the village had been set up and was functioning. However, the facts here do not call upon us, nor are we permitted, to exercise any equitable jurisdiction. All questions must be determined upon interpretation of the applicable statutes.

We affirm the judgments of the Common Pleas Court in the appeals in Cases Nos. 2238, 2239 and 2240, and in Case No. 2237 overrule the demurrer to the answer to the petition, which answer we hold is a complete defense to plaintiff’s action. We assume that no further pleading is contemplated. If so, judgment could be entered dismissing plaintiff’s petition and dissolving the writ heretofore issued.

We will cooperate with counsel to get an early entry filed journalizing this opinion so that opportunity may be afforded to any party if he desires to prosecute an appeal to the Supreme Court.

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


author: By EMMONS, J.

text:
    BALTIMORE & OHIO RAILROAD Co., Plaintiff, v. ACE RUBBER PRODUCTS, Inc., Defendant. BALTIMORE & OHIO RAILROAD Co., Plaintiff, v. TANNEY-COSTELLO Inc., Defendant. BALTIMORE & OHIO RAILROAD Co., Plaintiff, v. R. C. A. RUBBER Co., Defendant. AKRON, CANTON & YOUNGSTOWN RAILROAD CO., Plaintiff, v. TANNEY-COSTELLO, Inc., Defendant. AKRON, CANTON & YOUNGSTOWN RAILROAD Co., Plaintiff, v. ACE RUBBER PRODUCTS Co., Defendant. PENNSYLVANIA RAILROAD Co., Plaintiff, v. R. C. A. RUBBER Co., Defendant.
    Common Pleas Court, Summit County.
    Nos. 169595, 170106, 170107, 170384, 170385, 170663.
    Decided December 17, 1951.

      Wise, Roetzel, Maxon, Kelly & Andress, Akron, for plaintiffs in Case Nos. 169595 & 170663.
    Schnell & Belden, Akron, for defendants in Case Nos. 169595 & 170663.
    Wise, Roetzel, Maxon, Kelly & Andress, Akron, for plaintiffs in Case Nos. 170106 & 170107.
    Charles F. Schnee, Akron, for defendants in Case Nos. 176106 & 170107.
    Slabaugh, Guinther, Pflueger & Myers, Akron, for plaintiffs in Case Nos. 170384 & 170385.
    Schnee & Belden, Akron, for defendants in Case Nos. 170384 & 170385.
   OPINION

By EMMONS, J.

The issues in this case raised by the pleadings filed herein came on to be heard upon the Agreed Statement of Facts, the testimony of Michael Levin taken by the defendants on deposition and the exhibits introduced in the taking of the deposition, together with the admissions made by the various pleadings, and upon consideration of the same and also of the extensive briefs submitted by the able counsel herein, the Court finds that the Miami Rubber Processing Company, Inc., as consignor, delivered to the Seaboard Airline Railroad Company shipments of a certain commodity for the defendants in the respective cases above noted, and that the respective plaintiffs herein were the ultimate carriers of the commodity set forth in the petitions. It is stipulated that in all these cases the shipments were delivered to the respective defendant companies under and subjet to the provisions of the rules, regulations, orders, classifications and tariffs then in full force and effect. Further, the Miami Rubber Processing Company described the commodity shipped as “scrap rubber,” excepting in those commodity shipments in which the Baltimore & Ohio Railroad Company was the ultimate carrier, and therein the commodity was described as “scrap rubber for reclaiming purposes only.”

It is further stipulated that the defendants paid tariff to the respective plaintiffs in the sum of 83 cents per hundred pounds for the commodity shipped, which amount was the rate for scrap rubber, while the plaintiffs claim that the rate should have been $1.63 per hundred pounds, the rate for reclaimed rubber. It is agreed by the parties herein that if the commodity is properly classified as scrap rubber the petitions should be dismissed. But if the Court should determine the commodity was in fact reclaimed rubber then the respective plaintiffs should have a judgment for the various amounts set forth in their respective petitions.

It is further stipulated that the classifications of rubber articles under the then tariff rates were contained in Consolidated Freight Classifications No. 17, I. C. C., Ohio C. No. 61, pages 393 and 394, and that at the time of movement of said commodity there was an exception to the above referred to classifications for shipments originating in the Southern Railroad District.

The commodity so shipped by the plaintiffs to the various defendants was procured from the Miami Rubber Processing Company by the defendants for the'following reasons:

1. The Ace Rubber Products, Inc., purchased this commodity because it desired a product of rubber content containing fabric fibers, which was to be used by it in the manufacture of matting and shim stock for automobile anti-rattlers. It desired a commodity with fiber in it to give it greater strength.

2. The R. C. A. Rubber Company purchased this commodity because it desired a product of rubber content containing fabric fibers for mixing with other materials in connection with the manufacture of floor covering.

3. Tanney-Costello, Inc., is a broker, and its only interest in said commodity was for the purpose of resale to such manufacturers as the R. C. A. Rubber Company and Ace Rubber Products, Inc.

Both the R. C. A. Rubber Company and Ace Rubber Products, Inc., found the commodity unsatisfactory for the purpose intended, and some of the commodity was sent to a reclaiming plant to be refined.

It is further stipulated that the Miami Rubber Processing Company, in preparing the commodity for shipment, performed six of the fifteen steps set out in the digester process of reclaiming rubber, five of the eleven steps set forth in the heater process, and six of the twenty steps set forth in the acid process.

It is also agreed that the plaintiffs are claiming the commodity as being analogous to the classification in Consolidated Freight Classification No. 17 which includes: “Rubber, reclaimed, noibn (a term used to mean ‘not otherwise indexed by name’) loose or in packages.” While the defendants claim the proper classification of the commodity appears in Supplement 57 of the exceptions to the Southern Classification, which includes: rubber, scrap, noibn. Rubber scrap as referred to includes scrap tires or worn-out rubber boots, shoes, belting, clothing, clothes wringer rollers, tires, hose, mats, matting, packing or similar old worn-out rubber articles, or scraps or pieces of cloth coated or impregnated with rubber, having value only for reclamation of raw materials.

There is no argument as to where the burden of proof is in this type of case. The plaintiffs must prove affirmatively all material allegations of their respective petitions, and since they have alleged that the commodity was reclaimed rubber and are suing for the rate of reclaimed rubber, they must prove that fact by the greater weight of the evidence, nor is there any dispute with the rule: “Where the meaning is doubtful such provisions are to be construed in favor of the shipper.”

Classification No. 17, part 39685 and the Exceptions to the Southern Classification Supplement 57, hereinbefore set out, refers to various items, among them being tires and so forth, and it is urged by counsel for the plaintiffs that since these tires have been submitted to some processes, particularly “cracking,” they then do not conform to the items referred to in said classification or exceptions, and therefore they are reclaimed rubber.

There are certain steps and methods used to reclaim, as are set out in the stipulation filed herein, and all of these methods were partially used. However, in the final analysis, the commodity as shipped was a “mongrel compound.”

Counsel for the plaintiffs set out in their briefs the fact that the price of the commodity was sold for approximately $160.00 a ton to the defendants, whereas, scrap tires were selling for $15.00 to $35.00 per ton, and by reason of the difference in price the commodity could not be scrap, therefore it must be reclaimed rubber. However, there was the undisputed testimony of Levin to the effect that the selling price of this commodity in question — which they call “Rubcel” — was not comparable in price to reclaimed rubber, even though it differed in price with scrap rubber.

In Crancer v. Louden, 315 U. S. 631, it was held that the fact that the consignees intended to use the commodity for another purpose other than scrap rubber did not change the character of the commodity.

The test of the character of a commodity must be determined by its nature and content, and thereafter the purpose for which it was intended and the reasonableness of the classification.

C. P. Lytle Company v. Atchison, Topeka & Sante Fe Railroad Company, 273 L. C. C. 539:

“The use to which an article is put may be helpful in determining what the article is, but the nature of the article shipped rather than the use to which it is put, that is controlling in the determination of the applicable rate.”

Also see Sonken-Galamba Corp. v. Union Pacific Railroad Company, 145 Fed. (2nd) 808; August Plantz, Inc. v. Atlantic & East Carolina Railroad Company, I. C. C., case No. 30062.

In the instant case this commodity was processed to some extent. It was produced by cracking old scrap tires, which means grinding the rubber tread and the fabric together after the removal of the beads, thereafter 4 pounds of oil was added to each 65 pounds of the ground product, and then subjected to steam heat; after that 8 pounds of wax was added to every 80 pounds of the ground material, and finally clay was added to generate heat as the product went through a hot roll, and then came out in a continuous sheet.

United States v. Gulf Refining Company, 268 U. S. 542:

“Syllabus 1. Where a commodity shipped is included in more than one tariff designation, that which is more specific will be held applicable.
“Syllabus 2. Where two designations and tariffs, are equally appropriate, shippers are entitled to have applied the one specifying the lower rates.
“Syllabus 3. A lower rate properly may be applied to a product when in an unfinished condition than that applicable to it when finished.”

In Illinois Central Railroad Co. v. McCall, 147 Fed. 925, steel rails had been cut into smaller lengths than ordinary steel rails, and the consignee claimed that the steel rails cut in shorter lengths were not properly classified as steel rails. The Court held that notwithstanding they had been cut into shorter lengths the rails were still steel rails for the purposes of classification.

It is to be remembered that in the case cited supra the product started as a finished product and not scrap, while in this ease the product was scrap at the time the various processes were started, and the Court held that regardless of the work performed in cutting these rails into shorter lengths, they were still rails for classification purposes. So conversely, the work done in preparing the produce in the instant case by subjecting it to the various processes, does not in and of itself make reclaimed rubber out of the scrap tires.

Aside from the stipulation the Court has only the uncontroverted testimony of Levin, who the Court finds is qualified as an expert, and in his deposition he definitely states that in his opinion the product his company manufactured was not reclaimed rubber. However, without this opinion the Court -finds that the commodity in question is a nondescript one consisting of 30 per cent rubber, 25 per cent cellulose and the remaining 45 per cent filler substance, which commodity Levin testified was definitely scrap.

It is true that a tree cut into boards is no longer a tree, as one attorney set out in his brief, yet the identity and nature of the material is not lost by reason of the change — the substance is still wood. So also is it true that a scrap rubber tire ground up into small particles loses its identify as a scrap tire but, excepting for the bead that has been removed, the content is a mixture of the same composition, nor would the addition of wax, heat, oil and clay change this substance to reclaimed rubber.

The Saalfield Publishing Co. v. Public Utilities Commission of Ohio, 149 Oh St 113:

“Where the meaning of the provisions of the rate schedule is doubtful and ambiguous they are to be construed favorably to the shipper. If a commodity shipped is included in more than one description in a rate schedule, that which is more specific will be held applicable, and where two tariff rate items are equally applicable and appropriate to a commodity the shipper is entitled to that specifying the lower rate.”

Rule 17 of the Consolidated Freight Classification provides:

“When articles not specifically provided for nor embraced in the classification as articles noibn are offered for transportation, carriers will apply the classification provided for articles which in their judgment are analogous.”

The commodity shipped in the instant case does not fit any classification, as did the slipper fit Cinderella’s foot, however, it is certainly more analogous to scrap rubber than to reclaimed, but assuming the two tariff rates were equally applicable, then under the law the defendants would be entitled to the classification specifying the lower rate, which in this instance is scrap rubber.

It is clear to the Court that there should be an added classification to include such items as the product noibn. However, since such has not been done, under the law the Court finds the commodity falls within the classification of scrap rubber, that being more applicable than the category of reclaimed rubber, and therefore, the issues raised by the pleadings are resolved in the defendants’ favor, and the respective petitions should be dismissed.

Journal entry- to be prepared to conform to the Court’s finding, saving exceptions to the plaintiffs.


author: By THOMSON, J.

text:
    OSBORN, Estate of, In re.
    Probate Court, Lorain County.
    No. 28723.
    Decided October 23, 1951.
    J. M. Burtch, Jr., Asst, Atty. Genl., Columbus, for Tax Commission.
    Hyman & Hyman, Elyria, for National Holiness Missionary Society.
   OPINION

By THOMSON, J.

This cause came on to be heard on the exceptions of the National Holiness Missionary Society to the assessment of the Inheritance Tax in the sum of eight thousand four hundred seventeen dollars and thirty-one cents ($8,417.31) as a residuary legatee under the will of Helen S. Osborn, deceased. The exceptor claims the succession is exempt from tax.

A hearing was held on the 25th day of July, 1951, at which time testimony was introduced and the matter submitted to the Court. Extensive briefs were also filed on behalf of the National Holiness Missionary Society as well as on the behalf of the Department of Taxation. The authority under which said National Holiness Missionary Society claims exemption from inheritance tax is found in §5334 GC, the part thereof which is applicable is as follows:

“Property passing to state, etc., not subject to tax. — The succession to any property passing to or for the use of the state of Ohio, or to or for the use of a municipal corporation or other political subdivision thereof for exclusively public purposes, or public institutions of learning within this state, or institution of learning within any state of the United States which state does not impose an inheritance, estate or transfer tax on property given, devised or bequeathed by a resident thereof to an institution of learning within this state, or to or for the use of an institution for purposes only of public charity, carried on in whole or in substantial part within this state, shall not be subject to the provisions of the preceding sections of this subdivision of this chapter.”

The exceptor, National Holiness Missionary Society, claims to be an institution of learning within the meaning of said section: whereas, the Department of Taxation claims said exceptor is not an institution of learning within the meaning of said section. Said exceptor, National Holiness Missionary Society, relies largely upon the case of Bettman, ex Tax Commissioner, v. The American Missionary Association, 12 Abs, 13, a decision rendered in 1932 by the Court of Appeals for Lake County. The Department of Taxation, on the other hand, relies largely on the Supreme Court Case, In re Estate of Taylor, 139 Oh St, 417, decided by said cotírt in 1942.

In the case of Bettman, ex Tax Commissioner, v. The American Missionary Association, supra, the court found the American Missionary Association to be an institution of learning under the Ohio exemption statute. In the other case, In re Estate of Taylor, supra, the court found the American Bible Society was not an institution of learning under the Ohio exemption statute. Thus, despite the holding in these two cases, the interpretation of an “institution of learning” under the Ohio exemption statute is still highly debatable.

It is interesting to note that the New York statute on exemptions as cited in the American Missionary Association case, supra, this language is used: “* * * or to any religious, educational, charitable, missionary, benevolent, hospital or infirmary, corporation wherever incorporated, * * The Illinois statute on exemptions as cited in exceptor’s brief likewise uses the following language: “* * * and hospital, religious, educational, bible, missionary, tract, scientific, benevolent or charitable purpose, * *

In both New York and Illinois the language is clear, and the exceptions to an inheritance tax are many. On the other hand, the Ohio statute has limited its exceptions to inheritance tax to a few. This court must, therefore, take the view that the legislature intended to exempt only institutions of learning as such and cannot be interpreted to exempt those institutions where the educational purpose is secondary or related to the primary purpose for which the organization was formed.

In determining whether a gift to a corporation is entitled to exemption, it is a fundamental rule that the charter of the corporation is the proper source of information as to its character. The purpose clause of the articles of corporation of the National Holiness Missionary Society provides as follows:

(1) “The object for which it is formed is and shall continue to be to spread Scriptural holiness to the uttermost parts of the earth by establishing, maintaining and conducting Missions and Missionary work of every kind and character in foreign lands, and all other forms of Christian service as the development of the work may require, in harmony with doctrinal, ethical and spiritual standards of the National Association for the Promotion of Holiness.”

The constitution of said objector further reads as follows:

(2) “The object of this organization shall be to establish, maintain, and conduct inter-denominational missions and missionary work at home and in foreign lands, to spread scriptural holiness largely through a properly qualified national ministry. To this end departments of evangelistic, medical, educational, industrial, and such other forms of service as required may be developed, making all other forms subservient to the evangelistic emphasis.”

In the opinion of the Court, the National Holiness Missionary Society is not an institution of learning within the meaning of the Ohio statute. The principal object of the organization is that of supporting missions. All other objectives are secondary; or as the constitution sets forth, “subservient to the evangelistic emphasis.”

The right to exemption from taxation must not depend upon doubtful construction of the language used in the statute. There is no presumption of exemption from taxation because the institution claims to be an institution of learning. Clearly in this case, the National Holiness Missionary Society was formed for the purpose of spreading scriptural holiness to the uttermost parts of the earth. As a part of that work, it did carry on educational and other related work. The National Holiness Missionary Society is, in this Court’s opinion, a religious organization and does not qualify for exemption from inheritance tax as an institution of learning. The exceptions must, therefore, be overruled. An entry may be drawn accordingly.


author: By MERRICK, J:

text:
    FORTUNE, In re.
    Common Pleas Court, Cuyahoga County.
    No. 454264.
    Decided October 8, 1951.

      Miller, Daus and Schwenger, Cleveland, for appellant.
    Geo E. Hartshorn, Roger A. Zucker, Cleveland, for appellee.
   OPINION

By MERRICK, J:

This is an appeal from the decision of the Civil Service Commission of the City of Cleveland Heights. The appellant Herbert Fortune was a patrolman member of the police department of that city and was dismissed from the 'force by the City Manager who was likewise the director of public safety. Fortune was charged with being on duty in a drunken condition. The Civil Service Commission affirmed the finding and action of the administrative officer. This case has oeen in court for more than 15 years, some of such delay being occasioned by a review on a jurisdictional question. In re:— Fortune, 138 Oh St 385.

Several questions are presented in the pleadings and urged in oral arguments and briefs. This Court feels that some elaboration on these questions might be helpful because of the fact that recent enactments of the Legislature provide that a policeman or fireman in the classified service who is reduced in rank, laid off or suspended may appeal to the courts if he is not satisfied with the treatment accorded him by the reviewing Civil Service Commission. Sidell v. Cole, 147 Oh St, 203. It is anticipated that this recent change in the statutes will mean a sharp increase in the number of appeals taken in matters which were heretofore subjects of departmental discipline and not subject to review by the courts.

Appellant complains that there were irregularities ■ in the proceedings of the Civil Service Commission in that certain papers were transferred from the departmental files of the police department to the civil service commission and may have been considered by it in arriving at its decision. One of these was an affidavit given by a witness who later appeared in person and gave testimony and was cross-examined by counsel. In hearings of this type, there is not always present the atmosphere of a trial court room and the members of the Civil Service Commission are frequently persons not schooled in the law. The procedure necessary to present the questions involved is plainly outlined in the statutes.

Sea. 486-2 et seq GC. The Commission is an administrative body given certain quasi-judicial powers by express authority of statute, but such powers do not constitute it a court though it has some of the attributes of a court. In re: Sidell, 51 Abs, 105, 80 N. E., 2nd, 203 (Ohio C. of A.)

It may be of interest to note that the statute does not provide that an appeal may be taken from a decision of a civil service commission on questions of law or on questions of.law and fact. The appeal sought to be perfected in this case is grounded upon §486-17a GC. This section does no more than to say, “An appeal may be had from the decision of the municipal commission to the Court of Common Pleas .... to determine the sufficiency of the cause of removal.” This brings us to the question of whether the word “appeal” as used in the statute connotes a hearing de novo. If it does, then whatever error of commission or omission may have been committed by the Civil Service Commission would be inconsequential in that the Common Pleas Court could conduct a hearing as if on review on questions of fact and law and could permit testimony and any other attribute of a full dress trial under all judicial rules of law and evidence.

In the case of In re Fennell, (Common Pleas) 6 Ohio Supp. 145, it was held that procedure under §486-17a GC, relating to a specific matter in civil service, is an exception to the general class of appeals governed by statute.

In its present form §12223-3 GC reads as follows:

“Every . . . final order of . . . any administration . . . commission may be reviewed as hereinafter provided, unless otherwise provided by law . . .”

In the opinion in the Pennell case, supra, the trial court pointed out that a case within the provisions of §486-17a GC was restricted to the confines of that statute and could not be appealed under §12223-3 GC and refused to review a case brought in appeal from the Civil Service because it did not fall within the enveloping construction of §486-17 GC.

The most enlightening case on this subject is Kearns v. Sherrill, 63 Oh Ap 533, and the further review of the same case found in 137 Oh St, 468.

In reversing the Common Pleas Court, the Court of Appeals opinion used this language:—

“It is clear that the Common Pleas Court could not have been vested with power in an original action to exercise the executive or administrative discretion of determining whether under all the circumstances the patrolman should be retained in office, after it is determined that good and sufficient cause for his removal had been found to exist and tested by that rule, it is equally clear that it cannot be vested with such jurisdiction on appeal from an administrative tribunal . . In the light of this constitutional limitation upon the power of the Common Pleas Court to receive jurisdiction, we hold that the language of §486-17a GC, must be construed to confer upon that court jurisdiction to review the proceedings of the Civil Service Commission to determine whether it had exercised the authority conferred upon it in accordance with the statutes, and whether due process of law and other constitutional safeguards had been observed, thereby excluding from the review the administrative discretion exercised, by the appointing officer and the Civil Service Commission. That the Legislature was conscious of the limitation upon its power to confer jurisdiction upon the Common Pleas Court is indicated by the provision that upon the review the court should either affirm or reverse the ruling of the commission. Had the Legislature intended the court to determine the issue as though exercising original jurisdiction, certainly the power to modify the Commission’s ruling would have been conferred, as well as the power to affirm or reverse.”

In the syllabi of this case the Court of Appeals held as follows:—

“On appeal from the civil service commission the case should be determined on the record made before the commission.
“Where the court heard the appeal as though it invoked original jurisdiction but the record shows that the evidence heard was the same as that heard by the commission, no prejudice resulted from the method of hearing the appeal.”

In affirming the Court of Appeals in the Kearns case, supra, the opinion of Judge Matthias contains this very pertinent passage:—

“Had it been intended by the law making branch of the government that the Common Pleas Court should act as if ‘sitting as the entire civil service commission and also as the city manager,’ as apparently was assumed by the common pleas judge hearing the appeal, the Legislature undoubtedly would have found it possible to employ language conferring such broad power.” (Emphasis ours.)

In the case of In re Watkins, 88 Oh Ap, 251, the Court of Appeals opinion notes that the Common Pleas Court tried the case de novo. No further comment is found on that theory of the case in the opinion.

The Supreme Court in the case of Hawkins v. Steubenville, 134 Oh St, 468, seemed to summarize the various conflicting theories theretofore existing by this syllabus:—

“Upon appeal by a police officer of a municipality, from a decision of a municipal civil service commission affirming an order of a director of public safety removing such police officer the power of the Court of Common Pleas is confined by §486-17a GC, to the rendition of a judgment of affirmance or disaffirmance in toto, and the court is without authority to modify the same.”

The Civil Service Commission decision could not be appealed by the appointing authority as it is considered that both are branches of the same governing body. State, ex rel Dudley v. Kromer, 73 Oh Ap, 241. It is apparent therefore that the general appellate statute does not apply. Hamaker v. Olson, 23 Abs 513.

Following the reasoning in the cases cited above, this Court is of the opinion that, inasmuch as the judicial review is restricted to a determination of one question only and not a review of the entire matter, that the case should be tried on the record taken before the Commission and that but one judgment may be rendered, viz: — an affirmance or disaffirmance in toto. This Court has no jurisdiction to modify or reverse on the ground that removal was too severe a punishment. Armbruster v. Middletown, 74 Oh Ap, 321. Hawkins v. Steubenville, supra, Kearns v. Sherill, supra, Stewart v. Reed, 68 N. E., 2nd, 353, 45 Abs 545.

It is the contention of the appellant that he had three drinks of whiskey on the day in question, but that he was not in a state of drunkenness and had full control of his faculties. The record discloses that several witnesses described his condition factually and also gave their opinions that he was intoxicated. Counsel has argued that the record lacks evidence to show him intoxicated or drunk to the extent contemplated by the criminal statutes and ordinances.

The law does not comprehend that public employees shall be found guilty of having committed some violation of the criminal laws before a cause for removal arises. Many of the grounds for removal would not be violations of any law or ordinance. Sec. 486-17a GC. The statement of the reasons for removal need not be as specific and particular as an indictment nor drawn with the formal exactness of pleadings in a court of justice. 7 O. Jur., 596.

We must contemplate that the rules of conduct for public employees imply a full comprehension of the circumstances under which they must be interpreted and applied. A public employee of a certain classification might be drunk under some conditions and it might not be cause for removal, while an employee of another classification under the same conditions might be justifiably removed.

It is not a question as to whether or not this man could be convicted in a court of law. It is a question of whether or not a man who would do that sort of thing is a proper man to be on the police department. Is not he, by doing these things, subject to the penalties that his superiors can invoke against him, even to the extreme penalty of dismissal from his position? Cermak v. Barry, 29 Abs 413.

An examination of the record discloses that there was ample evidence to establish the sufficiency of the cause of removal. Whether, under the circumstances, leniency should have been extended is not a proper question for this Court.

Counsel may prepare a formal decree of dismissal of the appeal at appellant’s costs in accordance with this opinion.


author: By SKEEL, PJ.

text:
    BARSAN, Plaintiff-Appellee, v. MICKLOS, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22381.
    Decided March 17, 1952.
    A. L. Kearns, Cleveland, A. R. Roman, Rocky River, for plaintiff-appellee.
    B. B. Murad, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment entered for the plaintiff on a promissory note in the Municipal Court of the City of Cleveland.

The note was given as a part of the purchase price of a tavern which plaintiff’s father-in-law sold to the defendant. The plaintiff acted in the transaction as the sales broker on behalf of the seller. He was fully advised as to every step taken by the parties and as to the issues here presented, was not an innocent purchaser for value of the note upon which this action was founded. The only issue presented by the pleadings and evidence is that of payment.

The defendant purchased the tavern by purchase agreement dated November 8, 1949, for the sum of $16,000.00. $750.00 was paid upon the execution of the agreement. $5000.00 was to be paid in cash and the plaintiff was to arrange for a mortgage on defendant’s property known as 14305 Tuland Avenue for the balance. The agreement provided for the sale of “Chattels” as follows:

“Governing liquors D3 No. 62664, D2 118275, C2 63058. All equipment and fixtures located at 2218 Broadview Road. Separate Inventory attached.”

The bill of sale dated April 10, 1950, in addition to setting forth the inventory of fixtures, provided in part:

“As further consideration for said purchase price there shall be included in this sale, transfer and conveyance said seller’s D2, D3, C2, 1:00 P. M. State of Ohio Liquor Night Club Tavern License; that said seller will proceed immediately to revoke said license in said seller’s name and completely carry out all procedure necessary to transfer all of said seller’s rights, privileges, ownership, enjoyment, etc., to said purchaser’s immediate ownership, possession and enjoyment of said license.”

The following payments are admitted:

Down payment Nov. 8, 1949 $ 750.00
Check Nov. 10, 1949 3800.00
Funds from loan Feb. 7, 1950 6300.00
Check Aug. 10, 1950 2500.00
Check Aug. 17, 1950 1900.00
15,450.00
Purchase Price $16,000.00
Admitted payments 15,450.00
Bal remaining $ 550.00

It should be noted that on the check dated August 17, 1950, there is written before the endorsement:

“Balance payment re: Broadview Tavern — Joseph Micklas, as per agreement.”

On June 5, 1950, B. Bill Murad, attorney for the defendant, gave a check for Five Hundred and Fifty Dollars ($550.00) to the plaintiff and his lawyer, the check being made payable to the “Department of Liquor Control” of the State of Ohio.

The evidence is clear that the plaintiff deposited this check with the Liquor Department in carrying out the obligation of the seller to transfer the licenses to the defendant purchaser,, the plaintiff himself going to Columbus, Ohio, to see about the seller’s “Sales Tax.”

The court was in error in sustaining plaintiff’s objections to the evidence about the use of the check for Five Hundred and Fifty Dollars ($550.00) by plaintiff. The tender of proof was admissible under the law of the state of that subject.

The evidence is uncontradicted and counsel for plaintiff admitted in court on this appeal, that plaintiff made no claim for the unexpired pro rata share of the license fee paid for the licenses transferred to the defendant as a part of the sale of the tavern.

With the undisputed facts, therefore, that the check by which the last payment to the plaintiff by the seller in the sum of $1900.00 had noted thereon that such payment constituted the final balance due and was therefore payment in full, and that including the check for $550.00 the defendant did pay the plaintiff and his father-in-law seller (whom he, plaintiff, represented as broker) $16,000.00, the full amount of the purchase price. From these facts there can be no doubt but that defendant maintained, by the undisputed evidence, his burden of establishing by the greater weight of the evidence, payment of the obligation upon which plaintiff’s claim is founded.

For the foregoing reasons the judgment in favor of plaintiff is reversed and final judgment is rendered for the defendant appellant. Exc. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By HORNBECK, PJ.

text:
    HILL, Plaintiff-Appellant, v. HILL, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4850.
    Decided February 5, 1953.

      Horace S. Kerr, R. W. Kilbourne, Columbus, for plaintiff-appellant.
    John J. Chester, Columbus, for defendant-appellee.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from an order of the Common Pleas Court, Division of Domestic Relations, awarding to plaintiff alimony and support money for the children of the parties.

Plaintiff’s petition was for alimony only. The error assigned is that the order of the trial court is manifestly against the weight of the evidence and that the Court abused its discretion in entering the decree.

It is the claim of the appellant that the award is entirely inequitable in that it fails to give proper consideration to the financial worth of defendant.

The decree awards $500.00 per month in full of all obligations of support and maintenance of the plaintiff and the minor children of the parties including the maintenance of the property, taxes and insurance thereon, food and clothing and shelter for herself and said minor children. The property referred to is 2171 Arlington Avenue, Upper Arlington, which is in the name of the plaintiff and in which she and the children reside. The order further provides that the $500.00 monthly payment shall be in full for medical and dental expenses and all other incidental expenses necessary for the maintenance and welfare of said minor children.

There are three children, Marilyn, age 17; Robert, 15; and Charles, Jr., 8.

The order further provides that the defendant pay any extraordinary expenses necessary on behalf of the minor children of the parties and that he maintain insurance that he now has in effect for the benefit of the family.

The controlling section of the Code now, §8003-19 GC differs from the section which it supercedes, §11998 GC. The section now provides that alimony may be allowed in real or personal property or by decreeing a sum of money payable either in gross or installments as the Court deems equitable.

The ultimate question presented here is whether or not upon the record the order of the trial judge is so manifestly against the weight of the evidence and so inequitable as to require a reversal and remand.

The holdings of the defendant are 990 of 1000 shares of the Hill Distributing Company. .The dividend on these shares in the last year that it appears was $990.00. The net earnings from these shares to the company does not appear but the total earnings of the defendant for income tax purposes in 1950 was $43,000.00; in 1951, $24,000.00; and estimated for 1952, $22,000.00.

The defendant owes $100,000.00 and his shares in the corporation are held as collateral for this loan. We cannot determine from the record before us what the fair market value of these shares of the corporation is and, therefore, cannot fix the equity of the defendant therein. Defendant also owns a business block in the City of Mansfield, Ohio, for which he paid $70,000.00, $20,000.00 of which was in cash and the balance secured by mortgage. The value of this property can be determined only from the testimony of the defendant from which it appears that his equity in this real estate is not to exceed $15,000.00 and he is having much difficulty in realizing a return in this or a lesser sum on a sale. The income from this property is inadequate to take care of the carrying charges against it, and it does not appear that an award to the plaintiff against this real estate would be of any substantial value to her under the present status of the holdings.

It also appears that the corporation in 1951 purchased a race horse for which it paid $3200.00; that the horse has earned any return or has any earning power does not appear.

In addition to the $100,000.00 indebtedness against the stock and $50,000.00 indebtedness on the Mansfield realty, defendant also owes a personal debt in the amount of $40,000.00.

Upon the whole, we cannot find that the Court abused its discretion in failing to award some part of the stock and some interest in the Mansfield real estate to the plaintiff. Indeed, such award would be of doubtful value as support for her and the children. It may only be considered as it tends to assure the ability of the defendant to meet the monthly payment and other expenses incident to the alimony decree.

Upon the first consideration of the income of the defendant, $24,000.00 together with a drawing account with his corporation of $7000.00, it would seem that $500.00 a month would be disproportionate to the rights of the wife and the children. However, it does not appear that any part of this $7000.00 is avail-, able for the essentially personal expenses of the defendant although manifestly in such expenditure some of his personal expenses, such as meals, lodging and travel, might be included.

Breaking down the allocation of the assured income of the defendant in connection with his immediate obligations under the Court decree, it appears as follows:

Total income, salary, $24,000.00
Dividend on stock, 990.00
$24,990.00
$6000.00 Award of alimony per year Insurance required to be paid,
2160.00 decree
8400.00 Taxes, Social Security, etc.
Interest on $40,000 personal
2000.00 18,560.00 debt,
Balance per year, 6,430.00
Balance per month, $ 535.89

When the total obligation which is mandatory on defendant to observe is taken from his total income there is not such disparity between the amount decreed plaintiff and the children and the amount that defendant will have available for expenditure as to indicate that the order is inequitable, except as hereinafter indicated. It is conceivable that there are values in the holdings of the defendant, particularly the Hill Distributing Company stock, which are not clearly developed but we cannot indulge in speculation as to this but must take the proof as it is found in the record.

The plaintiff owns the real property in which she and her children live and apparently it is an adequate and satisfactory home for them. It was acquired by the parties during their coverture and is a substantial holding by the plaintiff and must be considered in weighing the equities between the parties. Plaintiff insists that the property is badly in need of paint and repairs which will cost about $2000.00. If this sum is expended it will enhance the value of the property to that extent and benefit the plaintiff. If the means of the defendant would permit it would be highly appropriate to require him to pay for these expenditures inasmuch as it is to provide a home for his wife ahd his children at least during their minority, but we cannot say that the trial judge erred in refusing to make this concession to the wife.

It should be borne in mind that the order here is not a division of property holdings of the defendant and an award of them to the plaintiff as might have been made had a decree of divorce been granted to her. Indeed such a division would not have been proper. Durham v. Durham, 104 Oh St 11; Materazzo v. Materazzo, 139 Oh St 36; Stuart v. Stuart, 144 Oh St 291; Mark v. Mark, et al., 9 Syl., 145 Oh St 302; Daily v. Dailey, 48 Oh Ap 83. This action is for separate maintenance and support and the property and money of the defendant may only be sequestered by the Court to the extent that it is so required. The station of life of the parties and their accustomed manner of living are pertinent but the financial ability of the defendant to provide the means of maintaining the wife and the children in the way to which they are accustomed or which would be most desirable, must, in the last analysis, control the award to be made by the Court.

The order makes provision for payment by the defendant for extraordinary necessary medical expenses on behalf of the minor children but does not so provide for the wife. It is the obligation of the defendant to provide all needed medical or surgical attention for his wife. It appears that the plaintiff is now in need of two surgical operations. Manifestly, she should not be required to assume the payment for these extraordinary services out of the $500.00 monthly allowance and there should be some specific provision in the entry obligating the defendant to meet this extraordinary expense, if incurred.

Subject only to the failure to provide for the payment of extraordinary medical and surgical expenses that might be necessary for the plaintiff, we cannot hold that the order is so manifestly against the weight of the evidence as to require its reversal, nor can we make the order, as a matter of law. Henry v. Henry, 157 Oh St 319.

If the defendant will consent to a modification of the order as above indicated the order will be affirmed as modified. Otherwise, the order will be reversed as against the manifest weight of the evidence and the cause remanded.

Appellant has moved for an order in this Court for expenses of her appeal. It will be granted in the sum of $400.00.

Judgment accordingly.

WISEMAN and MILLER, JJ, concur.