author: By MERRICK, J.

text:
    CAMPBELL, Exr., Plaintiff, v. MUSART SOCIETY OF THE CLEVELAND MUSEUM OF ART et, Defendants.
    Probate Court, Cuyahoga County.
    No. 496719.
    Decided January 5,1956.

      Harold T. Clark, Edwin D. Williams, Vincent M. Arnold, Cleveland, for Musart Society and for The Cleveland Society for the Blind.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, William A. McAfee, Russell C. Grahame, of Counsel, for The Musical Arts Association of Cleveland.

      Baker, Hostetler & Patterson, Cleveland, Howard P. Burns, R. T. Sawyer, Jr., H. Stephen Madsen, of Counsel, for Western Reserve University.
    Merkle, Campbell, Dill & Clarke, Cleveland, for the Executor.
    Sickafoose & Creighton, Canton, for Belle Roseman et al.
    Burt, Carson, Vogelgessang & Burt, Canton, for George E. Miller, etc. et al.
    Clark & Arter, Jr., Marion, for Ohio Northern University.
    Payton T. Jordan, Tampa 2, Florida, for Mrs. C. E. Roseman.
    Van Aken, Whiting, Arnold & Nash, Cleveland, for Musart Society.
    W. T. Smith, Cleveland, for Central National Bank of Cleveland, Trustee.
    J. Melvin Andrews, Willoughby, for Maria Celeste Lloyd.
   OPINION

By MERRICK, J.

This is an action for construction of a will and for declaratory Judgment of rights thereunder. A recital of facts is necessary for a better undei’standing of the issues raised and the conclusions reached in this opinion.

Charles Edward Roseman, Sr. executed his last will and testament April 8, 1952. He executed a codicil December 31, 1952. He died February 23, 1953, within a year of the executions of both will and codicil. At the time of his death, the only living person related by blood to the testator was Maria Celeste Lloyd, a minor then of the age of one year and three months. She was the issue of the testator’s son, who had predeceased his father by eleven months. The will and codicil were both executed after the death of testator’s son which is referred to in the will.

The estate left by the testator is large and after some specific bequests, there will remain a very substantial residuum. According to the terms of the will, one-half of this is to be divided equally between five charitable institutions, parties to this action.

The question presented here is not a factual one as there is substantially no dispute as to the occurrence or sequence of events. A legal problem does arise and calls for an interpretation and application of two Ohio statutes in effect at the time of the death of the testator:— the statute of mortmain and the legal rights section of the adoption code.

One event gives rise to this entire controversy. Three months before the death of the testator, his granddaughter and only lineal descendant was adopted by her stepfather who had married the testator’s daughter-in-law after the death of the testator’s son.

The mortmain statute is found in §2107.06 R. C., and, so much of it as is important here, reads as follows:—

“Bequest to charitable purpose.

“If a testator dies leaving issue, or an adopted child, or the lineal descendants of either, and the will of such testator gives, devises or bequeaths such testator’s estate, or any part thereof, to a benevolent, religious, educational, or charitable purpose,.....such will as to such gift, devise, or bequest, shall be invalid unless it was executed at least one year prior to the death of the testator.”

It is conceded that if the grandchild is considered to be a lineal descendant of her natural father, even after her adoption, then the mortmain statute quoted above would invalidate the charitable bequests in question. This squarely presents the question: — In what manner, if any, did the adoption affect the line of descendancy to this child? The answer must be found in whatever construction and application is made of the legal rights section of the adoption statutes which is now §3107.13 K. C. The pertinent portions of such section read as follows:—

“Legal rights after final decree of adoption. Except in the case of a natural parent married to the adopting parent, the natural parents, if living, shall be divested of all legal rights and obligations due from them to the child or from the child to them...... For all purposes under the laws of this state, including without limitation all laws and wills governing inheritance of and succession to real or personal property and the taxation of such inheritance and succession, a legally adopted child shall have the same status and rights, and shall bear the same legal relationship to the adopting parents as if born to them in lawful wedlock and not born to the natural parents; provided: (A) Such adopted child shall not be capable of inheriting or succeeding to property expressly limited to heirs of the body of the adopting parents: (B) In case of adoption by a stepfather or stepmother, the rights and obligations of the natural parent who is the spouse of the adopting stepparent shall not in any way be affected by such adoption. ***** For the purpose of inheritance to, through and from a legally adopted child, such child shall be treated the same as if he were the natural child of his adopting parents, and shall cease to be treated as the child of his natural parents for the purposes of intestate succession.”

The statutes of descent and distribution are not to be construed and administered upon equitable principles, but by rules of law. Courts cannot, by reason of any real or imagined equities, qualify or annul rights granted by legislative enactment. In other words, the general assembly must be held to have intended to express its entire meaning by the import of the words used. The laws of descent are mere arbitrary rules for the transmission of property, enacted by the legislature, and cannot be modified by courts by reason of equitable considerations. 14 O. Jur., 104, McCammon v. Cooper, 69 Oh St 366.

A legislative enactment repealing or changing the course of descent and distribution of property and the right to inherit or transmit property, is not an unlawful interference with or deprivation of vested rights, and, unless expressly inhibited by constitutional provision, is to be deemed valid. Ostrander v. Preece, 129 Oh St 625.

The right to make a disposition of property by will is neither a natural, nor, in the United States, a constitutional right. It is solely the product of statutory enactment. The testamentary privilege, and its extent and limitation, depend wholly upon statute, not only as to their existence, but as to the mode in which it may legally be exercised. As the legislature confers the power, so the legislature may restrain its operation, confine it to particular classes of persons, or abolish it altogether, so far as the wills of the persons who die after the enactment of the statute are concerned. 1 Underhill on Wills, 23, Section 16.

Of course the General Assembly cannot perform the impossible by creating a child of one’s blood out of a stranger, but it possesses the power to fix the legal status of individuals and the manner in which they shall be treated with respect to the devolution of property. Flynn v. Bredbeck, 147 Oh St 57.

The mortmain statute is an exception to the right of testamentary disposition. It renders void that which but for its enactment would be vital. It is destructive in purpose and effect. It must consequently be given a strict construction. The purpose of the section is clear. It is to prevent a testator, under the fears incident to impending death, from disposing of his estate to the prejudice of his descendants. Zollmann on Charities, Section 506. Ruple v. Hiram College, 35 Oh Ap 11.

The Legislature has the power to declare the legal status of an adopted child and to make him capable of inheriting from the adopting parent. These provisions of the statutes creating the rights of inheritance between the parties to an adoption and the provisions of the law of descent and distribution of intestate estates are in pari materia and should, therefore, be construed together as one law. Cochrel v. Robinson, 113 Oh St 533.

The word “issue” has several meanings in the law of descent and distribution, and what its meaning may be in a given case depends upon the circumstances under which it is used, whether it be found in a will, a contract or statute. Its primary signification imports descendants and has to do with the blood of the ancestor, but by general use the word “issue” has often a wider signification and may include adopted children. A child, legally adopted under the laws of Ohio, is included within the meaning of the word “issue.” Miller v. Shepard, 29 Oh Ap 22, Rodgers v. Miller, 43 Oh Ap 198. Cochrel v. Robinson, supra.

Adoption statutes, being in derogation of the common law, which does not recognize adoption, should be strictly construed. In re Wedl, 65 Abs 231.

On June 14, 1953, the Supreme Court of Ohio decided the case of In re Estate of Friedman, 154 Oh St 1. In that case the court held that the inheritance tax statutes which place distributees in estates in certain categories are not in pari materia with the legal rights section of the adoption statutes. The court held that there was a difference in classification between an adopted child and a lineal descendant so far as the taxation statute was concerned and adhered to a strict construction holding that one did not include the other. The opinion of the court concludes with this observation: — “Of course, the General. Assembly could amend the succession tax statute so as to give an adopted child of a child of a decedent the same succession tax status as a child of the blood of the decedent, but upon full consideration of the statutes involved, as herein reviewed, this court is of the opinion that it has not done so.”

Whether inspired by this decision, or not, the next session of the Legislature amended the legal rights section of the adoption code and inserted these very important words:—

“Sec. 3107.13 R. C......For all purposes under the laws of this state, including without limitation all laws and wills governing inherits anee of and succession to real or personal property and the taxation of such inheritance and succession,' a legally adopted child shall have the same status and rights, and shall bear the same legal relationship to the adopting parents as if born to them in lawful wedlock and not born to the natural parents......”

This amendment to the statute was considered and interpreted by Judge Richmond of Geauga County, sitting in this court by assignment in the case of Frantz v. Florence, Probate Court No. 498130. In his decision under date of October 13, 1954 in that case, Judge Richmond found that this language of the code precludes a child who has been adopted into another family from inheriting from his natural kin, and that the child could have no interest as such in the estate of his grandfather. He further held that an adopted child ceases to be the child of his natural parents for the purpose of each and every, possibility of inheritance under the statute of Descent and Distribution; that the Blood line is completely severed and that the child, as such, is precluded from inheriting a share of his grandfather’s estate under the law.

Coming now to a correlation of the theories herein discussed, this court is of the opinion that considering the mortmain statute and legal rights section of the adoption statute in pari materia and strictly construing those sections as they existed at the time of the death of Charles E. Roseman, Sr., there can be but one conclusion: — that the testator died without issue or the lineal descendant of issue and that the charitable bequests are valid and effective as set out in the will and codicil. A decree may be prepared accordingly and the costs will be adjudged against the estate.


source: Caselaw Access Project

author: By STEVENS, J.

license: Public Domain

text:
    PICKERING, Appellant, v. CIRELL et, Appellees.
    Ohio Appeals, Ninth District, Lorain County.
    No. 1294.
    Decided December 30, 1953.

      Harrison, Spangenberg & Hull, Cleveland, for appellant.
    Davis & Young, Cleveland, for appellee Ann Cirell.
   OPINION

By STEVENS, J.

The action filed in the Court of Common Pleas sought the recovery of damages for injuries allegedly sustained by plaintiff in a collision between the automobile in which she was riding as a passenger, and the automobile driven by defendant Ann Cirell.

The defendant Ann Cirell, by her answer, admitted her negligence, but denied the nature and extent of the plaintiff’s injury.

The defendant Rudy J. Cirell was, at the request of plaintiff, dismissed from the case before trial.

The case was submitted to a jury, which returned a general verdict for said defendant Ann Cirell.

A motion for a new trial was filed, after judgment had been entered on the verdict, and said motion was thereafter overruled. This appeal on questions of law followed.

The only assignment of error presented is: The court erred when it refused to give plaintiff’s request to charge before argument No. 2. That request was as follows:

“Before plaintiff is entitled to recover a verdict in this case she is required to establish her claim, with respect to all of the material issues in this case by what is known as the preponderance or the greater weight of the evidence.

“This does not mean, however, that she is required to prove all or any of them beyond a reasonable doubt, or by clear and convincing evidence, or to a mathematical certainty, or by such a weight of evidence as removes all doubt from your mind.

“In civil cases of this kind, the law deals with probabilities rather than with certainties.

“If, therefore, you find that with respect to each of the issues in this case, it is more probable than not that the claim of the plaintiff is true, then and in such event your verdict must be in her favor, and against the defendant; and this would be true even though upon a consideration of all the evidence in the case, there remains some doubt in your mind upon some or all of such issues in the case.”

It is the mandatory duty of a trial court to give a written request to charge before argument, “provided the same be a correct statement-of the law, pertinent to one or more issues and applicable to evidence adduced in the case.”

Washington Fidelity National Ins. Co. v. Herbert, 125 Oh St 591.

See also, Bradley, etc., v. Mansfield Rapid Transit, Inc., 154 Oh St 154.

Was the requested written charge before argument No. 2 a correct statement of the law?

This was a civil action for damages, predicated upon the claimed negligence of defendant, which negligence was admitted by defendant.

The only issue made by the pleadings and evidence was as to the nature and extent of plaintiff’s injuries, if any.

To entitle plaintiff to recover, it was incumbent upon her to establish by a preponderance of the evidence that she sustained injuries because of the admitted negligence of the defendant, and the amount of her damages if she sustained injury.

There was no issue requiring mention of proof beyond a reasonable doubt, by clear and convincing evidence, to a mathematical certainty, or by such a weight of evidence as removed all doubt from the minds of the jury.

Under the caption “Necessity of Presenting Charge in Correct Form,” the following appears in 39 O. 5ur., Trial, Sec. 313, pg. 1031:

“* * * The trial judge is not required to give to the jury, before argument, any special requested instruction unless it literally states correctly the proposition of law which it is intended to express, — unless it is strictly accurate and correct. He must give it in the form presented by counsel, and if, as presented, a request is not in proper form, does not contain a sound proposition of law, invades the province of the jury, or under the circumstances of the case is misleading, — if it is defective in any respect — the requested charge should be refused. * * *” (Emphasis ours.)

The text is supported by numerous decided cases, cited in the footnotes. See also, 39 O. Jur., Trial, Secs. 265 and 318, pgs. 947, 1036, and cases cited thereunder.

The second paragraph of the requested charge is surplusage, had a tendency to mislead the jury, and is not in proper form because it dealt with what did not need to be established, and thus warranted the trial court in refusing to give the charge.

The third sentence of the requested charge stated: “In civil cases of this kind, the law deals with probabilities rather than with certainties.”

We have in this case an excellent example of the law dealing with certainties. Negligence which is usually an issue to be proved, was admitted by the defendant. That issue was thereby removed from the realm of proof, and became a certainty, which the jury, because of the admission, was bound to accept as true.

The statement was hence misleading, would have tended to confuse the jury, and furnished adequate basis for the refusal by the court to give the requested charge.

The fourth paragraph of the requested charge is not strictly accurate, because the jury was required to consider all the evidence admitted in 'the case, and that paragraph failed to so state.

We find no prejudicial error in 'the refusal to give the requested charge before argument, because the same did not comply with the accepted rules pertaining to charges before argument.

Judgment affirmed.

DOYLE, PJ, HUNSICKER, J, concur.


author: By JENNEY, J.

text:
    COMMONWEALTH LOAN COMPANY, Plaintiff, v. COLEMAN, Sr., Defendant.
    Barberton Municipal Court, Summit County.
    No. 16787.
    Decided November 18, 1955.

      Joseph Kahn, Akron, for plaintiff.
    J. Perry Teeple, Akron, for defendant.
   OPINION

By JENNEY, J.

This Court is considering this case on a motion for a new trial filed by the plaintiff.

Plaintiff claims in its amended petition that it was induced to loan the defendant $820.00 by virtue of a false and fraudulent financial statement.

The defendant answered denying that the plaintiff made said loan by virtue of a false and fraudulent financial statement and stated that the plaintiff had full knowledge of his financial status. The defendant also set up in his answer a discharge in bankruptcy as a bar to plaintiff’s claim.

Upon the completion of the trial, the Court carefully considered the evidence and the authorities offered by the parties and found that the plaintiff renewed the defendant’s previous loan; that the plaintiff did not rely upon the defendant’s incomplete creditor statement for the reason of ten previous loans from the plaintiff to the defendant from 1948 to 1954; that the plaintiff was not induced to renew said ioans by false representations. The Court therefore ordered that the defendant’s discharge in bankruptcy was a bar to the collection of the note described in plaintiff’s amended petition.

The plaintiff has filed a motion for a new trial.

The Court has again carefully considered the evidence and the authorities cited by the parties.

In view of the importance of this case, this Court has decided to make a separate finding of facts and law as applied to the issues in this case.

The Court finds from the evidence that the defendant had done business with the plaintiff company from 1949 until 1954 and had had ten previous loans with the plaintiff Company which loans had been renewed from time to time; that, on December 11, 1953, the defendant made application to the plaintiff for a loan of $1,000.00; that at the time of said application, the defendant was interviewed by a Mr. Leemaster, an agent of' the plaintiff Company who did not testify at the trial; that, during this interview, the defendant told Mr. Leemaster that he had several existing loans with other companies and that he had a number of store bills, doctor bills and hospital bills; that Mr. Leemaster told him that the company was only interested in his loans and was not interested in his other obligation. Accordingly the defendant only listed his loans on the financial statement attached to his application. The Court finds that there was no fraud connected with said financial statement.

The Court further finds that on January 4th, 1954, the defendant again returned to the plaintiff’s office and was again interviewed by Mr. Leemaster; that the plaintiff refused to make the $1000.00 loan applied for by the defendant on 12-11-53 but did renew the defendant’s existing loan for the sum of $820.00 the amount of the principal and interest of said previous loan; that the defendant came to the plaintiff’s office on 1-4-1954 broke and left broke; that no additional money was advanced to the defendant on January 4, 1954; that the transaction of January 4, 1954 was strictly a renewal of the defendant’s previous loan with the plaintiff company.

The Court finds that the defendant later went into bankruptcy and listed the claim of the plaintiff in his schedules in bankruptcy; that he was later granted a discharge in bankruptcy.

The Court now comes to a consideration of the rules of law governing this case.

(1) The Court finds as a matter of law that plaintiff’s claim is based on section 17-a-2 of the Bankruptcy Act which reads as follows

Section 17-a-2 Bankruptcy Act

“A discharge in Bankruptcy shall release a bankrupt from all of his provable debts whether allowable in whole or in part except such as are

(2) Liabilities for obtaining money or property by false pretenses or false representations”

(2) The Court finds as a matter of law that, in view of the well known purposes of the Bankruptcy Act, exceptions to the operation of a discharge thereunder should be confined to those plainly expressed therein. This rule of law requiring a strict construction of section 17-a-2 of the bankruptcy Act was laid down by Mr. Justice McReynolds of the Supreme Court of United States in the famous case of Gleason v. Harry K. Thaw reported in Volume 236 United States Reports, page 558.

(3) This Court finds as a matter of law that the introduction in evidence of a certified copy of an order of discharge makes out a prima facie defense and the burden of proof rests upon the plaintiff to show that because of the nature of its claim, the debt sued on was excepted by law from the operation of said discharge.

Volume 1 Collier on Bankruptcy, Page 1669

(4) This Court holds as a matter of law that, in order to defeat a bankrupt’s application for a discharge on the ground that he obtained credit on a materially false financial statement, it must be shown (1) that the bankrupt obtained money or property on Credit (2) that he did so on a statement of his financial condition (3) relied on by the creditor (4) that said statement was in writing (5) that it was materially false (6) that it was made to the creditor or his representative (7) for the purpose of obtaining credit from said creditor (8) and that money or property was obtained from the creditor by the bankrupt in reliance on said statement.

Vol. 1, Collier on Bankruptcy, Pages 1598 to 1608; Vol. 19 O. Jur., Page 835 et seq.

“All of these ingredients must be found to exist and the absence of any one of them is fatal to recovery.”

Ohio Finance Company v. Greathouse, 110 NE 2nd 805, See page 807 opinion.

(5) This Court finds as a matter of law that the acceptance of a note or similar written instrument in payment of property previously obtained by the bankrupt, even if induced by false pretenses or false representations, is not obtaining money or property within the meaning of the bankruptcy act.

Volume 1 Collier on Bankruptcy, Page 1600, Note 9.

(6) This Court finds as a matter of law that the obtaining of an extension or renewal of an existing loan by false pretenses or false representations where no additional money or property was obtained by the bankrupt is not within the exceptions contained in Section 17-a-2 of the Bankruptcy Act. This Court cannot legislate the words “Extensions or Renewals” into the context of Section 17-a-2 of the Bankruptcy Act by construction. That would be within the province of the Congress.

The Court now comes to consider the following cases cited by counsel for the plaintiff. The Court finds that these cases can clearly be distinguished from the case at bar.

Ohio Finance Company v. Greathouse, 110 NE 2nd 805.

In this case an original loan was made to Greathouse by the Ohio Finance Company in reliance on a false Financial statement. In this case there had been no previous dealings between Greathouse and the Company. Actual cash money passed to Greathouse from the Company in reliance on the financial statement.

Public Loan Corporation v. Hood, 125 NE 2nd 770.

In this case, in addition to renewing a previous loan, Public Loan Corporation were induced to loan Mr. Hood an additional $100.00 in reliance on the false financial statement.

In the case at Bar, the transaction of 1-4-1954 was strictly a renewal of the principal and interest due on ten previous loans made by the plaintiff to Mr. Coleman from 1949 to 1954. No new money passed to Mr. Coleman as a part of this transaction. He came to the Plaintiff’s office broke on 1-4-1954 and left broke. The transaction was strictly a renewal. In fact the plaintiff refused to loan the defendant the $1000.00 requested in his application of 12-11-1953. It merely renewed his previous loan. He received no money or property as a result of the transaction of 1-4-1954.

The Court finds from the evidence of this case that the plaintiff has failed to sustain the burden of proof of the follpwing essential elements necessary to bring its claim within the exceptions contained in section 17-a-2.

(1) The plaintiff failed to establish that any money or property passed to the defendant by reason of the incomplete financial statement.

(2) The plaintiff failed to establish that the statement of 12-11-1953 was intended by the defendant to be false and fraudulent.

(3) The plaintiff failed to establish that it relied on said financial statement in renewing the defendant’s loan.

It is therefore ordered that the plaintiff’s motion for a new trial be overruled and that plaintiff’s amended petition be dismissed.


author: By SKEEL, J:

text:
    McCLOUD, Plaintiff-Appellant, v. WOODMANSEE, Building Commissioner et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23426.
    Decided March 30, 1955.
    William P. Clyne, Cleveland, for plaintiff-appellant.
    Paul H. Torbet, Director of Law, Squire, Sanders & Dempsey, Cleveland, for defendants-appellees.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law and fact from a •judgment entered for the defendants in the Court of Common Pleas of Cuyahoga County. The action seeks to enjoin the defendant, Clyde Woodmansee, Building Commissioner of the City of Euclid, from issuing a building permit to Theodore P. Herrick, to build a one-story medical center building, together with a parking lot on a two-acre parcel of land having a frontage of 190 feet on the south side of Lake Shore Boulevard located at East 262nd Street. The depth of the parcel is 500 feet.' The frontage on Lake Shore Boulevard to á depth of 150 feet is zoned for U3 Uses and the remaining 350 feet is in a U1 Use District. The U3 Use District is defined by the zoning ordinance as follows:

“1. Apartment House.

“2. Community center building, private club, excepting a club the chief activity of which is a service customarily carried on as a business.

. “3. Hotel, church, library, museum, school, private playground.

“4. Philanthropic or eleemosynary use or institution other than a penal or correctional institution, hospital or sanitarium other than for mental disease or the insane or feeble-minded.”

U1 Uses are:

“1. Public park (not including an amusement park operated for profit).

“2. Single family dwelling.”

The evidence shows a plan of the proposed building to be a one-story ranch type structure 40 x 40 on the foundation, with a parking lot sufficiently large to accommodate fourteen automobiles extending fifty feet into the U1 District to the rear of the building.

Section 11 of the zoning ordinance of'the City of Euclid in part provides:

“(1) The City Planning and Zoning Commission may in the event of property being allotted which is undeveloped, and in other specific cases, after public notice and hearing and subject to such conditions and safeguards as the City Planning and Zoning Commission may establish, determine and interpret the application of the use district regulations herein established, which permission shall be confirmed by resolution of the Council before becoming effective, as follows:

“(a) Permit the extension of a building or use into a more restricted district immediately adjacent thereto but not more than fifty (50) feet beyond the boundary line of the district in which such building or use is authorized.

“(b) Permit the extension of a non-conforming use. or building existing upon the lot occupied by such use or building at the time of the passage of this ordinance

“(c) Permit in a use district any use deemed by the City Planning and Zoning Commission in general keeping with the uses authorized in such district.

“(d) Permit the location in any use district of any use provided such use in such location will not, in the judgment of the City Planning and Zoning Commission substantially and permanently injure the appropriate use of neighboring property, provided the petitioning applicant for such permit files the consents, duly acknowledged, of the owners of eighty (80) percent of the area of the land deemed by the City Planning and Zoning Commission to be immediately affected by the proposed use.”

The defendant, Dr. Theodore P. Herrick, filed application with the city council for leave to build a doctors’ office building on that part of the two acre tract above described, which is zoned for Class U3 uses, with the parking lot extending fifty feet into the U1 District to the south. The city council referred the request to the Planning and Zoning Commission for their consideration. The Commission, after giving public notice, held a public hearing on Dr. Herrick’s request. Following the meeting and after due consideration, the Commission passed a resolution granting the application. This resolution was then referred back to the city council. The city council, by resolution duly passed, affirmed the recommendation of the commission granting the application, expressly finding as did the commission, that the proposed office building was “in general keeping with the uses authorized in such district.”

It is the claim of the plaintiff that the zoning commission was without power to grant the use exception, and that the city council and the zoning commission abused their discretion in approving this use exception.

The question here to be considered might be stated a little more directly. Is the property which the defendant, Dr. Herrick, desires to have rezoned for use as a doctors’ office, which use is not included within the U3 use classification, so situated that as to it the requested use change is in keeping with permitted uses in the particular district or neighborhood in a way distinctly more favorable as a reason for granting such change and in keeping with the surrounding development to a greater degree, than would be true as to at least a greater part of the property in the city zoned within the U3 classification so that the same change would not necessarily be required to be granted if application were made under like circumstances in any other place where the zoning classification is for U3 Uses? If the reasons for granting the requested change would apply as well to all property in the U3 classification in the City of Euclid, as is claimed for the property here involved, then the granting of this request would in legal effect constitute an attempt to amend the zoning ordinance in an unauthorized way and would constitute spot zoning. If, however, as to the property here involved there be a substantially recognizable difference from other property in the city, classified under the U3 use, that would, upon fair consideration, require the granting of the application after public hearing, because the change would be in general keeping with the authorized use under the surrounding circumstances of this property, different than would be true as to all other property under the U3 classification, then the administrative and legislative judgment fairly exercised after public hearing granting such exception must be held to be a valid exercise of the administrative and quasi-judicial powers of the city council and the city planning and zoning commission. Under the uncontradicted evidence in this case, when considering the neighborhood, if a doctors’ office is permitted as here requested, like applications would have to be granted when requested in any other U3 zone and therefore the granting of this request constitutes spot zoning.

It must be noted that the procedure adopted here in seeking “District Exception” by the order of the city council approving the recommendation of the planning and zoning commission was under the provisions of Section 11 of the Zoning ordinance and not under Section 25A dealing with amendments where procedure quite different is provided. The power of the council and commission under Section 11 is to “interpret” the application of use district regulations therein established. It is difficult to understand how it is possible by means of “interpretation” to decide that a use which is provided for under U4 classification is to be, by that process, lifted bodily out of U4 classification and put into a U3 classification where it is not included in the text of that part of the ordinance and where it is not claimed to be an accessory use as provided by Section 7 of the zoning ordinance.

Section 7 in part provides:

♦ * *

“A store, trade or business shall not be permitted as an accessory use except that the office of a physician, surgeon, dentist or musician may be located in the dwelling or apartment used by such physician, surgeon, dentist or musician as his private residence and except that any person carrying on a customary home occupation, may do so in a dwelling or apartment used by him as his private residence, provided no persons other than members of his own household are employed in such occupation and no window display or signboard is used to advertise such occupation.” * * *

The zoning ordinance provides for offices for use of doctors and other professional people under two separate use classifications, one in subsection Class U4 of Section 3, providing generally for offices and second, by providing for accessory uses under U1 classification as limited by Section 7, supra, where a doctor may have his medical office in his home. It would seem under these circumstances there is no ground to seek by “interpretation” to add to the uses provided for under U3, a use clearly provided for elsewhere, except under circumstances where the evidence would clearly justify a finding that because of the surrounding circumstances in which the vacant land is situated and the development around it, such additional use would be in general keeping with uses authorized in the district. The uncontraverted evidence in this case shows that in spite of the fact that the land fronting on Lake Shore Boulevard for a depth of 150 feet is zoned in Class U3, the uses to which such property has been devoted with two or three exceptions, is for the construction of single family dwellings in keeping with the zoning under Class U1 uses to the north and south of such 150 foot strips. For two or three blocks in each direction, from the subject property, the neighborhood, except as above noted, is built up with single homes of substantial value with a very few vacant lots yet remaining. An office building, no matter how constructed, would be completely out of harmony in such a neighborhood. To hold otherwise would constitute an abuse of discretion.

The appellee depends for the most part, in supporting the claimed right to build an office building in a Class U3 district, on the claim that a doctor’s office is, for purpose of complying with zoning regulations, a hospital. It is claimed that since a hospital is provided for in the Class U3 district, that of necessity a doctors’ office would, for zoning purposes, come within that category. The courts have not been in agreement when called upon to consider this question.

In the case of Parker v. Rash, 236 S. W. 2d 687 (Court of Appeals of Kentucky, 1951) the exact question was considered and an injunction allowed to prevent the construction of a doctors’ office building, in violation of the zoning ordinances of Owensboro, Kentucky. Headnotes 1, 2, 3 and 4 provide:

“1. A doctors’ office building, including space and facilities for four doctors and in addition, treatment rooms, nurses’ workroom, recovery room and X-ray room, would be office building and not ‘hospital’ within the purview of zoning ordinance permitting erection of hospital in semi-residential zone.

“2. Fact that proposed use may be permissible under zoning ordinance because it has character of two proper uses, does not authorize erection of structure which in part conforms to permissible use but otherwise is prohibited.

“3. Amendment to city zoning ordinance reclassifying lot so as to permit erection and construction thereon of modern well equipped doctors' office building constituted ‘spot zoning’ since it simply selected one' lot owned by one person, and created for it a particular zoning classification different from that of surrounding property.

“4. Spot zoning to permit erection of doctors’ office building would not be justified by city’s rapid growth, crowded conditions in doctors’ offices in city, downtown traffic conditions, and fact that zone in which affected property stood already had mixed residential and commercial usage.”

We are in full agreement with the principle of the Parker case, and hold, that a doctors’ office is not a hospital and therefore is not a permissible use under Class U3 as above quoted.

For the foregoing reasons, the prayer of plaintiff’s petition is granted. Decree for Plaintiff.' Order see journal. Exceptions noted.

KOVACHY, PJ, HURD, J, concur.


author: By THE COURT.

text:
    STATE, Plaintiff-Appellee, v. GIVENS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4774.
    Decided February 20, 1953.

      Frank H. Kearns, Pros. Atty., Joseph J. Poorman, Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    Lawrence R. Curtis, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court finding the defendant guilty of stealing and operating a motor vehicle without the owner’s consent. The indictment sets forth that,

“Orie Givens, late of said County, on or about the. 22nd day of December, in the year of our Lord one thousand nine hundred and fifty-one, within the County of Franklin aforesaid, unlawfully did steal, take and drive away one certain 1948 Dodge panel truck of the value of One Thousand Dollars, the personal property of Nick Cannell, doing business as the Quality Bakery.

“And the jurors of the Grand Jury aforesaid, at the term aforesaid, upon their oaths as aforesaid, in the name and by the authority of the State of Ohio aforesaid, do further find and present that the said Orie Givens, on or about the 22nd day of December, 1951, within the County of Franklin aforesaid, unlawfully and purposely did then and there take, drive and operate a certain motor vehicle, to wit, a 1948 Dodge panel truck of the value of One Thousand Dollars, upon a public highway in said County of Franklin and State of Ohio aforesaid, without then and there having the consent of Nick Cannell, doing business as the Quality Bakery, then and there the owner of said automobile, contrary to the Statute in such cases made and provided, and against the peace and dignity of the State of Ohio.”

The appellant first urges that the State failed to prove all of the allegations contained in the indictment which it was required to do, to wit:

1. There was no proof that,the motor vehicle was driven upon a public highway.

2. There was no proof as to the value of the truck as alleged in the indictment.

We are referred to 21 O. Jur., 833, Section 140, which reads as follows:

“Proof Generally. — It is a clear principle of law that a person cannot be indicted for one crime and convicted of an entirely different offense. Consequently, it is necessary that the allegations of a criminal charge and the proof thereof correspond. Every material averment must be proven, and as a general proposition descriptive averments must be proven as laid. Although an allegation in an indictment is not necessary thereto, yet, if it is descriptive of material facts, the prosecutor is bound to prove it as laid. Allegations descriptive of the identity of that which is legally essential to the charge can never be rejected. For instance, if a person is charged with stealing a black horse, it is not permissible to prove that he stole a white horse, notwithstanding the fact that it was unnecessary to allege the color of the horse. Likewise, if averments descriptive of the locus of an offense are unnecessarily inserted, they must be proved as averred. * * *”

This seems to be in accord with the old common law rule, but which has been modified by §13437-25 GC.

We have examined the bill of exceptions and find that officer C. C. Johnson testified that when he first saw the truck it was coming into the parking lot from the alley. If this was not positive proof, certainly the inference could be drawn from all of the evidence produced by the State that the truck had been operated by the defendant upon a public highway, if this proof was necessary in order to sustain a conviction.

The record reveals that no evidence was offered to establish the value of the truck. This was not a material allegation under §12619 GC and was therefore surplusage, the proof of which was not required. Holtz v. The State, 30 Oh St 486.

It is next urged that the evidence was insufficient to warrant a finding of guilty of operating a motor vehicle without the owner’s consent. The record reveals that no proof was offered as to ownership of the truck; consequently, the lack of consent of the owner was not shown. These are material allegations, properly made in the indictment, but the proof of which is entirely absent from the record. It will be noted the indictment charges two offenses, to wit: (1) Auto stealing; (2) operating a motor vehicle without the owner’s consent. A general finding of guiity is a finding of guilty on each count. The record does not support the finding on the charge of operating a motor vehicle without the owner’s consent.

As to this finding the judgment is ordered reversed, but the judgment will be affirmed, finding the defendant guilty of auto stealing. The cause will be remanded to the trial court with instructions that the judgment entry be vacated and the defendant re-sentenced.

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


text:
    HUMPHRYS et, Plaintiffs-Appellants, v. WINOUS COMPANY et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23285.
    Decided March 16, 1955.

      Thompson, Hiñe & Flory, Cleveland, for plaintiffs-appellants.
    Horace Andrews, Cleveland, for defendants-appellees.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from a judgment entered in the Common Pleas Court of Cuyahoga County wherein the plaintiff prayed for a declaratory judgment.

The action seeks to determine the rights of the plaintiff as minority stockholder, at an annual meeting of the stockholders, with respect to a resolution amending the code of regulations to provide three-year terms for directors instead of one-year terms as was provided by the code of regulations when the meeting was called and providing that such terms should be staggered so that one director will be elected at each annual meeting thereafter, under the provisions of §1701.64 R. C., thus preventing the plaintiff by the use of cumulative voting, under the provisions of §1701.58 R. C., as a minority stockholder, owning and representing in excess of forty percent of the issued and outstanding stock of said company, from having representation on the board of directors.

The case was tried on stipulations of fact. These stipulations withdraw from plaintiff’s petition all allegations of fact beginning with the second full paragraph on the second page, through and including page seven. The remaining allegations of the petition are that plaintiffs, together, own or have the voting rights to 536 shares of The Winous Company, equal to more than forty percent of the issued and outstanding stock of said company.

That the purpose of the corporation is the ownership and management of The Winous Building and the Point Building known as 1258 and 1270 Euclid Avenue, respectively, in the City of Cleveland, and that the plaintiff, Julian Humphrys, has been a director since the reorganization of the corporation in 1945.

The annual meeting of the stockholders was held January 18, 19154, attended by Julian Humphrys, in person, and the other plaintiffs, by proxy, — The code of regulations providing that there shall be three directors elected annually for a term of one year. Written notice of the annual meeting was properly sent to the shareholders stating that the business of the meeting would be the election of directors and such other business as could properly come before the meeting but the notice did not contain a statement that it would be proposed that the code of regulations be amended to provide for classification of directors and fixing their respective terms to be three years, although the law of Ohio and the code of regulations require such notice, if consideration is to be given to amendments of the regulations at the annual meeting.

At the meeting of the stockholders at 10 A. M. January 18, 1954, an election of directors was held and Mildred A. Putnam, Horace Andrews and Stewart Anthony were elected to the board. The meeting was then recessed ’until 2:30 P. M., of that day'at which time the code of regulations was amended by resolution adopted by the vote of the stockholders other than the plaintiffs, who refused to vote and who at that time protested the consideration of the resolution. The resolution as adopted provides:

“Resolved, that Article I, Section 1 of the Code of regulations of The Winous Company be amended so as to provide that the directors of the company shall be three in number; that each director after those elected at this meeting, shall hold office for a period of three years; that said three directorships respectively be designated by classes, “class A” “class B,” and “Class C;” that in order to implement said continuity the first Class A director shall hold office for a term of one year from January 18, 1954, and thereafter, the Class A director shall hold office for the customary three year term above established; that the first Class B director shall hold office for a term of two years from January 18, 1954, and thereafter the Class B director shall hold office for the customary three year term above established, and that the first Class C director shall hold office for three years from January 18, 1954 and thereafter the Class C. director shall hold office for the customary three year term above established; provided that anything above stated to the contrary notwithstanding, each person who is or shall hereafter becomes a director the The Winous Company shall hold office until his successor to such class of directorship shall have been duly elected and qualified.”

Thereafter, a resolution was passed by the shareholders in which the plaintiffs did not participate and entered their protest rescinding the election previously held and elected the defendants, Stewart Anthony, Horace Andrews and Mildred A. Putnam to one, two and three year terms respectively.

The plaintiffs then allege that the election which took place in the morning, having been duly set aside, and that the alleged or purported election in the afternoon being contrary to law, the old directors continue in office until their successors are elected and qualified.

The plaintiffs pray that the resolution amending the code of regulations be determined to be invalid, the purported election of directors upon the authority of its provisions be declared contrary to law, and that the court order a special meeting of the shareholders to elect directors until the next annual meeting and such further equitable relief that may be proper.

The defendants filed an answer admitting some of the plaintiff’s allegations of fact and denying others. There are, however, no questions of fact in dispute because of the stipulation of facts agreed to by the parties and filed with the papers in the case.

It is agreed that the annual meeting was called for January 18, 1954, the notice being as follows:

“Notice is hereby given that the annual meeting of the'shareholders of The Winous Company will be held on Monday, January 18, 1954 at 10 o’clock A. M., at the office of the company 1258 Euclid Avenue, Cleveland, Ohio, for the purpose of the election of directors of the company and for the transaction of such other business as may come before the meeting.”

It is also agreed that Article I of the code of regulations provided, at the time the meeting was called on January 18, 1954, for three directors whose terms should be one year and that such directors could serve only so long as they were stockholders. Article III provides for the calling of meetings of the stockholders the annual meeting to be held on the third Monday in January of each year. The Code of regulations provided for the notices to be given and under what circumstances a special meeting ■ could be called providing further that when a special meeting is called, the purpose or business to be transacted shall be stated and that no other business shall be transacted at such special meeting without the consent of all stockholders. No such provision is found in the code of regulations as to the business to be transacted at the annual meeting.

Article VIH of the regulations dealing with amendments to the articles as shown by the stipulation, provides:

“The code of regulations may be amended or repealed at any annual meeting of the stockholders or at a special meeting called for that purpose by a vote of the holders of at least a majority of the capital stock.”

The minutes of the meeting, which are a part of the stipulations of fact, show that after nominations for directors, the plaintiffs having failed to give notice for the right to cumulate their votes, 766 votes, or more than a majority of the votes as shown by the issued and outstanding stock, were case for Mrs. John B. Putnam, Horace Andrews and Stewart Anthony — Julian Humphrys receiving 536 votes, whereby Mrs. Putnam, Mr. Andrews and Mr. Anthony were declared elected.

After the election of directors, the meeting was adjourned until 2:30 P. M. at Mr. Humphry’s request, because the financial statement was not then available. At the afternoon session, the stockholders passed the resolution hereinbefore set forth providing for classification of directors. The plaintiffs did not vote on this resoluton. Upon the passage of such proposal by a vote of 766 votes a further resolution was passed by the same number of votes which provides:

“Resolved, that of the directors heretofore earlier in this meeting already elected, Mr. Stewart Anthony be designated and appointed the first Class A director; Horace Andrews be designated and appointed the first Class B director, and Mildred A. Putnam be designated and appointed the first Class C director.”

It is clear from the foregoing facts that by the code of regulations the stockholders were empowered to amend the code of regulations at any annual meeting and that it was unnecessary to state such purpose in the notice of the meeting. The action of the trial court in holding the resolution for classification of directors and the appointment of the newly elected directors into the various classifications for naught, because of the failure to give notice of such proposal in the notice cálling the meeting, although erroneous, when placed upon that ground, has not been presented to this court by cross-appeal and therefore we will not pass on the question.

The only question presented by this appeal is whether or not the stockholders by amending the code of regulations may adopt an amendment classifying the directors as to their terms of office under §1701.64 R. C. (where the number of directors provided for by the code of regulations is three), so that the right to vote cumulatively under the provisions of §1701.58 ■ R. C'. is completely nullified. The history of these sections must, therefore, be examined. In 1927 the legislature of Ohio recodified the corporation code, the general provisions of the act being designated as §§8623-1 to 8623-138 inclusive, GC. The sections of this code dealing with cumulative voting and classification of directors were §§8623-50 and 8623-55 GC. Prior to 1927 the section dealing with cumulative voting was §8636 GC which provided:

“Conduct of Election: Voting: At the time and place appointed, directors shall be chosen by ballot, by the stockholders who attend either in person or by lawful proxies. At such and all other elections of directors, each stockholder shall have the right to vote in person or by proxy the number of shares ownéd by him for as many persons as there are directors .to be elected, or to cumulate his shares and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock equals, or to distribute them on the same principle among as many candidates as he thinks fit. Such directors shall not be elected in any other manner. A majority of the number of shares shall be necessary for a choice, but no person shall vote on a share on which an installment is due and unpaid.”

Prior to 1927, there was no provision in the corporation code for classification of terms of directors, nor was there a provision prohibiting a corporation from restricting or qualifying the right to cumulative voting by by-law or code regulation. As contained in the corporation code of 1927, §8623-50 GC, in dealing with cumulative voting, provided:

“* * *If notice in writing shall be given by any shareholder to the president or a vice-president of a corporation not less than twenty-four hours before the time fixed for holding a meeting for the election of directors, that he intends to cumulate his votes at such election, and if an announcemnt of the giving of such notice is made upon the convening of the meeting, each shareholder shall have the right to cumulate his shares and to give one candidate as many votes as the number of directors multiplied by the number of his-shares equals, or to distribute them on the same principle among as many candidates as he sees fit. Such right to vote cumulatively shall not be further restricted or qualified by any provisions in the articles or regulations.” (Emphasis added.)

This is the first time that the part of the section emphasized came into the statute of Ohio. In the same act (Senate Bill No. 11) §8623-55 GC in part provided:

“* * * The articles or regulations may provide that directors be divided into two or more classes whose terms of office shall expire at different times but no term shall continue longer than three years * * *.”

This is the first time the right to classify directors as to terms became a part of the corporation code of Ohio.

Sec. 8623-55 GC was amended in 1929 so that the part above quoted provided:

“* * * The articles or regulations may provide that the directors be divided into two or more classes whose terms of office shall expire at different times and may fix the terms of office of the directors or any class of directors at not more than three yéars from date of election and until the election and qualification of their successors.

“Unless the articles or regulations otherwise, provide, the directors of a corporation shall hold office for one year and until their successors are chosen and qualified, subject however, to the provisions of this act as to the creation of vacancies.”

This part of §8623-55 GC by amendment in 1949 became §8623-55a GC and provides:

“Unless the articles or regulations otherwise provide, the directors of a corporation shall hold office for one year and until their successors are' elected, subject, however, to the provisions of this act as to vacancies in the board of directors.

“The articles or regulations may provide for the term of office of all of the directors, or, if classified upon the basis of the expiration of the terms of office of the directors, of each class thereof, provided, however, that no term shall be fixed for a period of more than three years from the date of election and until the election of successors.”

In the 1949 amendment of the corporation code, that part of §8623-50 GC above quoted became §8623-50a GC and provided:

* *

“If notice in writing is given by any shareholder to the president or a vice-president or the secretary, not less than twenty-four hours before the time fixed for holding a meeting for the election of directors, that he desires that the voting at such election shall be cumulative, and if an announcement of the giving of such notice is made upon the convening of the meeting by the chairman or secretary or by or on behalf of the shareholder giving such notice, each shareholder shall have the right to cumulate such voting power as he possesses and to give one candidate as many votes as the number of directors to be elected, multiplied by the number of his votes equals or to distribute his votes on the same principle among two or more candidates, as he sees fit. Such right to vote cumulatively shall not be restricted or qualified by any provisions in the articles or regulations.”

From the history of these actions, it is to be noted that the prohibition against enacting code regulations restricting cumulative votes and the section providing for classification of directors were brought into the corporation code of Ohio in the same act, and with the exception of minor changes in phraseology by subsequent amendments have continued together in the statutes dealing with corporate organization and management for over 28 years. They are now §§1701.58 and 1701.64 respectively, R. C.

A case somewhat similar but not directly in point has just been decided by the circuit court of Illinois. In the case of Wolfson v. Avery, decided Feb. 1, 1955, the history of cumulative voting in Illinois and the reason such right was written into the Constitution of the State is considered. The case is not in point here because the right of stockholders to exercise cumulative voting is provided for by Article XI, Section 3 of the Constitution of Illinois, while classification of directors is provided for in Section 35 of the Illinois Business Corporation Act. The court said in part:

“That the convention’s fears were prophetic was demonstrated at the very first session of the Assembly following the adoption of the Constitution. The measure which was adopted, if valid, would have effectively defeated the constitutional guarantee. It authorized staggered terms and the reduction of the governing board to three directors, thus making it possible for the majority to elect all three by the simple process of choosing only one at a time. Of course, this was unconstitutional and the argument of counsel for defendants that this legislative interpretation was acquiesced in for 82 years is no answer to it. * * * The argument that the constitutional provision is satisfied when a minority of a minority is accorded some representation on the board is fallacious. The most reasonable construction of Section 3 of Article XI is that the first portion of it in no way relates to the manner of holding elections. It simply guarantees to every stockholder the right to vote (a) for the number of shares of stock (common or preferred) owned by him, (b) in person or by proxy, and (c) for as many persons as there are directors or managers to be elected. The words ‘to be elected’ are employed merely to identify the ‘persons’ in respect of whom the voting rights are assured. State constitutions are limitations and not grants of power, therefore this part of the section does not take from the legislature the right to authorize or require staggered elections. The second part of the section — that which follows the words ‘to be elected’— relates to the manner of electing directors. It guarantees to-each stockholder the choice between straight and cumulative voting as well as the enjoyment of maximum voting strength proportionate to his share holding.

“ ‘Classification of directors and their election for staggered terms defeats that guarantee.’ ”

The question before us is one of statutory construction. Under the undisputed facts in this case, if the section providing for classification of directors is construed without limitation, its provisions would completely nullify the right of cumulative voting if there are to be but three directors holding three year terms, such terms beginning in successive years, and if the cumulative voting section is given its full meaning, then the code regulations classifying directors could not be enforced where in doing so the advantages of cumulative voting by minority stockholders would be nullified.

When the sections to be construed with relation to each other are in the same act, it is the duty of the court to look to the entire act to determine the legislative intent. If by reasonable construction the provisions of an act can be harmonized so that all parts of the act can be given the effect intended by the legislature, it is the duty of the court to give such construction to the seemingly inconsistent provisions of the act. Where the provisions to be construed are in the same act, the court cannot apply the theory of repeal by implication which is applicable when the provisions of an act subsequent in time of passage cannot be harmonized with other then existing statutory provisions.

In 37 O. Jur., page 606, dealing with statutory construction, paragraph 334 provides:

“An act under consideration should be construed in its entirety. That is to say, the entire act sliould be examined and considered as a whole. No provision or part thereof can properly be disregarded in the construction of the statute. To the contrary, every part of the statute should be regarded in connection with the act of which it forms a part, so that all parts should be read together. The sense in which particular words, phrases, or clauses are used is to be ascertained from a view of the whole statute, rather than from isolated passages, except, perhaps, when such passages reach the entire subject matter of the controversy.”

In the case of Cochrel v. Robinson, 113 Oh St 526, the fourth paragraph of the syllabus states the rule as follows:

“4. In the construction of a statute the primary duty of the court is to give effect to the intention of the legislature enacting it. Such intention is to be sought in the language employed and the apparent purpose to be subserved, and such a construction adopted which permits the statute and its various parts to be construed as a whole and give effect to the paramount object to be attained.”

The right of a shareholder in an Ohio corporation to cumulate his vote has been provided by statute in this state for more than fifty years. The legislature in adopting the revision of the statute dealing with corporate organizaton in 1927, showed clearly that it intended to strengthen the cumulative voting provision by adding to existing law the provision that a corporation cannot restrict cumulative voting by its articles or code of regulations. And when in the same act the legislature, for the first time provides that there may be classification of directors when provided for by its code of regulations, it could not have been intended that the exercise of such right could be so used as to nullify the right of cumulative voting. When the minimum number of three directors is provided for, and their terms of office are for three years, one to be elected each year, the right to cumulative voting is, - in such case, completely nullified. Such a “Code of Regulation” provision under the agreed facts in this case, is in direct conflict with §1701.58 R. C. and is therefore, as to the Winous Company as organized under its present code of regulations, invalid.

Where there are two provisions of a statute in seeming conflict, one of a general nature and the other a specific provision, the specific provision will be held to modify, insofar as necessary, the general provisions to give the full effect intended by the specific provision. Elliott Co. v. Connor, 123 Oh St 310; Distributing Co. v. Galsworthy, 148 Oh St 567. Here the provision as to classification of directors is general in character while that part of §1701.58 R. C. prohibiting the attempt to restrict cumulative voting by code regulation is specific in character and therefore restricts or modifies the applicability of the provisions of §1701.64 R. C.

The judgment of the trial court is therefore reversed and final judgment entered for appellant, as should have been the entry in the trial court on the undisputed facts, declaring that the resolution, attempting to classify the directors of the Winous Company under a by-law or code regulation, is invalid as in conflict with §1701.58 R. C. Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By STEVENS, PJ.:

text:
    STATE ex KANGESSER COMPANY, Plaintiff-Appellee, v. BEACHWOOD VILLAGE et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23374.
    Decided July 29, 1955.
    Davies, Eshner, Johnson & Miller, Cleveland, for plaintiff-appellee.
    Wilmot, Baskin, Lausche & Kelley, Cleveland, for defendants-appellants.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District sitting by designation in the Eighth Appellate District.)
   OPINION

By STEVENS, PJ.:

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County, ordering the issuance of a writ of mandamus requiring the defendants to issue a building permit to relator for the construction of a one-story, two-unit commercial building, on premises owned by relator.

The trial court predicated its allowance of a writ of mandamus, solely upon its conclusion that the amendment (1951-35) to the comprehensive zoning ordinance of the Village of Beachwood constituted spot zoning and hence was invalid.

This appeal challenges the propriety of that conclusion and the judgment carrying it into effect.

The record herein discloses that, prior to 1951 (the exact time not appearing), the Village of Beachwood duly adopted a comprehensive zoning ordinance, under which eight parcels, mostly “L” shaped, were zoned for “U4,” or commercial, use.

This case concerns only the parcel at the northeast corner of Green Road and Fairmont Boulevard, extending 600 feet along Green Road and 600 feet along Fairmont Boulevard, with a depth of 150 feet.

On May 21, 1951, ordinance No. 1951-35 of the Village of Beachwood was introduced, providing for the rezoning of the strips 150 feet deep along Green Road and Fairmont Boulevard, from U4, or commercial, use, to single-family residential use.

Public hearing on the proposed ordinance was set for June 25, 1951, and notice in conformity to law was given.

On June 12, 1951, the Kangesser Company filed its application for a building permit to construct a commercial building at the corner of Green Road and Fairmont Boulevard, together with its plans for said building, and paid the required fee therefor.

The evidence does not warrant the conclusion that the June 12, 1951, application was a modification or renewal of a previous application for a building permit filed by said Company. The plans for said building were referred to the Board of Architectural Review, which reviewed them on June 26, 1951.

On June 25, 1951, ordinance No. 1951-35 was duly passed by the council of the Village of Beachwood, after lengthy consideration by council. The Kangesser Company’s application for a building permit was denied by the building inspector for the reason that its property in question was zoned for residence purposes only at the time its application came on for consideration.

Appeal was then duly taken to the Board of Zoning Appeals, which likewise denied said application.

This mandamus action followed.

Sec. 713.10 R. C., in part, provides:

“The legislative authority of such municipal corporation may amend or change the number, shape, area, or regulations of or within any district * *

It must be understood that the four areas, consisting of eight parcels zoned for commercial or U4 use in the Village of Beachwood, are widely scattered throughout the village, and the attempted amendment here under consideration dealt with only one parcel. There was no other nearby parcel in the village zoned for commercial purposes.

One of the best considered and most exhaustively annotated cases upon zoning to appear in the legal' publications in recent years is Cleveland Trust Co. v. Village of Brooklyn, 92 Oh Ap 351, written by Hurd, J., of the Eighth District Court of Appeals. The syllabus of that case states the general rules applicable in a consideration of the validity of zoning legislation. The first three paragraphs of the syllabus are as follows:

“1. All zoning laws and regulations must find their justification in some aspect of the police power asserted for the public welfare. Such laws and regulations must be considered as a valid exercise of police power if substantially related to public health, safety, morals or welfare.

“2. The power of a municipality to establish zones and to classify property accordingly, is purely a legislative function which will not be interfered with by the courts, unless such power is exercised in an arbitrary, confiscatory and unreasonable manner in violation of constitutional guarantees.

“3. The presumption of validity which attaches to legislative acts in general applies with equal force to zoning ordinances and regulations and the facts to justify interference by courts with the legislative function must clearly appear from the evidence. If the legislative classification for zoning purposes is fairly debatable the legislative judgment must be allowed to control.”

On the subject of spot zoning, 62 C. J. S., Municipal Corporations, Sec. 226(6)e, states the following:

“It has generally been held that spot zoning, or zoning of small individual pieces of property in a manner different from that of surrounding property, is improper, and that one or two building lots may not be marked off into a separate district or zone and benefited by peculiar advantages or subjected to peculiar burdens not applicable to adjoining similar lands.”

How stands the present case when judged by the foregoing rules?

The legislative body of the Village of Beachwood determined, after lengthy and due considerations, that the public health, safety, morals and welfare of the community would best be served by rezoning, from TJ4, or commercial, use, to single-family use, the premises at the intersection of Green Road and Fairmont Boulevard. Sec. 713.10 R. C., above quoted, vested in the council the authority to amend existing zoning legislation.

The courts have repeatedly stated that the power to establish zones and to classify property accordingly is a purely legislative function, and that courts will not inferiere with the exercise of this function by the legislative body, “unless such power is exercised in an arbitrary, confiscatory and unreasonable manner in violation of constitutional guarantees.”

This court is unanimously of the opinion that the council of the Village of Beachwood, in its determination to rezone the premises in question, acted within its statutory authority, and was not shown, by the record before us, to have acted in an arbitrary or unreasonable manner.

We are further of the opinion that the evidence does not indicate that the rezoning of the premises in question constituted “spot zoning,” as held by the trial court. Quite the contrary does appear, for the amendment of the zoning ordinance brings all of the property in this immediate area under a similar use classification, without prejudice to, or preference of, the property rezoned.

The case of Shepard v. Village of Skaneatelas, 300 N. Y. 115, decided by the Court of Appeals of the state of New York in 1949, most closely factually approximates the case under consideration of any which have been called to our attention. It is authority, together with the other authorities cited, which, in our judgment, requires a reversal of the judgment under review; and, there being no basis, from the evidence produced, for a declaration of the invalidity of the amendment under consideration, this court will, as a matter of law, enter the judgment which the trial court should have entered — namely, the dismissal of the petition of plaintiff, at the costs of relator.

HUNSICKER, J, DOYLE, J, concur.


author: By PHILLIPS, J.

text:
    BUCILA, Sr., Plaintiff-Appellant, v. STUPHAR, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3627.
    Decided June 2, 1954.
    Modarelli & Moderelli, C. J. Hoyt, Youngstown, for plaintiff-appellant.
    Ralph B. Shwartz, Youngstown, for defendants-appellees.
   OPINION

By PHILLIPS, J.

Plaintiff appealed to this court on questions of law and fact from a judgment of the court of common pleas entered for defendant in his action filed in that court to compel specific performance of “an agreement for dissolution of partnership and a contract for purchase of retiring partner’s interest” in the Shamrock Grill and Dairy Store in Youngstown (referred to hereinafter as the partnership business). The partnership relationship resulted from a contract entered into by the partners on August 26, 1950.

The case was submitted to this court upon the record made in the trial court, which included a transcript of the testimony and evidence introduced there, and upon testimony taken before a referee appointed by this court.

On October 18, 1950, George Franken transferred the liquor licenses used in such business to plaintiff, Gregory Bucila, and defendant, Barbara Stuphar, then Barbara Urs, and referred to hereinafter as such, and the parties took possession of the business which the parties purchased from George Franken for $25,000.00 under the terms of the agreement dated August 26, 1950.

Plaintiff operated the partnership business until. December 1950, when defendant took over operation thereof.

In December 1950 after defendant Urs married Joseph Stuphar the parties discussed the disposition by Bucila of his interest to defendant Urs and her husband, Joseph Stuphar.

While the parties arrived at no conclusion with reference to the disposition of the partnership business yet on December 26, 1950, Joseph Stuphar delivered a cashier’s check for $1500.00 to Gregory Bucila, Sr. for which he in turn executed his note in like amount to Joseph Stuphar.

The parties recognized each other as partnership owners of the partnership business until May 22, 1951, when plaintiff filed his petition in the court of common pleas against Barbara M. Stuphar (Urs).

In his petition plaintiff alleged that the parties were partners in accordance with the partnership agreement of August 26, 1950; that due to unpleasantness and disagreement which had arisen that it was to the best interests of plaintiff that a receiver be appointed to operate the partnership business, and on that date filed a motion for appointment of receiver. A receiver was not appointed as the result of such motion, but on December 21,1951, the court of common pleas appointed a receiver to operate the partnership business.

On August 30, 1951, the parties entered into an “agreement for dissolution of partnership and contract for purchase of retiring partner’s interest.” On that date the defendant escrowed with the Dollar Savings and Trust Company of Youngstown, Ohio, (1) bill of sale for undivided one-half interest in Shamrock Grill and Dairy; (2) note of Bucila to Joseph Stuphar for $1500.00; (3) check of Mahoning Bank to Joseph Stuphar for $1500.00; (4) warranty deed from Stuphar to Gregory Bucila for lot 2974 — West Woodland Avenue, Youngstown, Ohio; and (5) will of Gregory Bucila. The escrow agent still holds the papers deposited with it.

Defendant Urs is the mother and duly appointed guardian of Edward M. Urs, a minor, who held a one-fourth interest in the escrowed warranty deed from Stuphar to Gregory Bucila for lot 2974 — West Woodland Avenue. Acting under court order in March 1952 defendant Urs executed her guardian’s deed to plaintiff Bucila for the undivided one-fourth interest of her son in the Woodland Avenue property, which was delivered to and held in trust by the receiver and not escrowed with the Dollar Savings and Trust Company.

The contract of dissolution and sale provided that defendant Urs should execute a note secured by chattel mortgage on the furnishings of the Grill and Dairy Store to Gregory Bucila in an amount to be determined, which note was payable at the rate of $50.00 per month with interest at 4%. Defendant Urs never executed such a note nor chattel mortgage.

On December 27, 1951. plaintiff filed a second application in the court of common pleas for appointment of a receiver, and plaintiff prosecuted his action in the court of common pleas to August 27, 1952, the date of sale for $15,900.00 of assets of the partnership business by the receiver, and sought the processes of that court from August 30, 1951.

It is clear neither of the parties recognized any rights, duties nor obligations imposed nor granted by the contract of August 30, 1951, but relied, and intended to rely, upon the agreement of August 26, 1950; that on September 20, 1952, plaintiff first raised the question of his rights under the agreement of dissolution and sale of August 30, 1951, the terms of which both parties rescinded.

Likewise it is clear that plaintiff ignored and waived the provisions of the contract of August 30, 1951, and elected the remedy of receivership under the averment that the parties were still partners.

In his report the referee said, in which statement we concur:—

“From August 30, 1951, he (Bucila) contended in cause No. 135208 that he was an owner as partner in the partnership assets but after said sale by the receiver on August 27, 1952, he then contended that Barbara Stuphar had been the owner of the assets of said business after August 30, 1951; and in effect, brings action in the instant case for the purchase price.

“It is well recognized both in law and in equity that when a plaintiff elects to pursue a certain remedy for redress of his wrongs, he is estopped from pursuing a different remedy thereafter, particularly if such a switch of remedies would harm the other party.

“For the Law on Election of Remedies, see 15 O. Jur. paragraphs 1 on page 226 to paragraph 82 on page 295.”

We follow the suggestion of the referee in his report that:—

“It would be contrary to the principles and rules of equity for the plaintiff-appellant to proceed to enforce his remedies in case No. 135208, and after the receiver had sold all assets of the partnership at the instances of plaintiff-appellant in cause No. 135208 to abandon his claim of a partnership and revert to a claim of rights and obligations under the contract of August 30, 1951 as attempted by plaintiff-appellant in the instant case. The plaintiff-appellant having at all times after August 30, 1951 and to and after the sale of the assets by the receiver elected to maintain his action under cause No; 135208 is now barred from maintaining action No. 139083.”

Likewise we concur in the reasoning of the trial judge as shown by the referee’s report that:—

“It would be contrary to the rules and principles of equity to decree specific performance of the contract (plaintiff’s Exhibit No. 2) herein for the reason plaintiff (appellant) is unable to perform his obligations hereunder to sell a one-half partnership interest to the defendant Barbara Stuphar, said interest having been sold by the receiver before this action was commenced in an action for dissolution of the partnership brought by plaintiff (appellant) who acquiesced in said sale.”

After careful consideration of this case our finding is the same as that of the court of common pleas that:—

“It is, therefore, ordered, adjudged and decreed that judgment be rendered for the defendant; that the papers held by The Dollar Savings & Trust Company in escrow be turned over to the defendants, Barbara M. Stuphar and Joseph Stuphar, upon payment of the sum of Sixty ($60.00) Dollars to said The Dollar Savings & Trust Company.

“It is the further order of this court that costs be assessed against the plaintiff, including one-half of the sum paid to The Dollar Savings <& Trust Company, escrow agent.”

Finding and decree for defendants.

GRIFFITH, PJ, NICHOLS, J, concur in decree.


text:
    GRIFFITHS, Plaintiff-Appellee, v. SCHAEFERS et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3634.
    Decided April 2, 1954.
    Ralph R. Thombs, Youngstown, for defendant-appellant.
    Manchester, Bennett, Powders & Ullman, Youngstown, for plaintiffappellee.
   OPINION

By PHILLIPS, J.

Defendants appealed to this court on questions of law from a judgment of the court of common pleas perpetually enjoining them from interferring with plaintiff’s use of a driveway situated between plaintiff’s lot numbered 6688 and defendants’ lot numbered 6689, which are situated on Kenmore Avenue in the City of Youngstown.

Part of such driveway belongs to the plaintiff and part to defendants, both of whom, or their tenants, used such driveway in its entirety for upwards of half a century, each without objection or hindrance from the other, during all of which time plaintiff, or her tenants, maintained it.

By brief defendant states:—

“The theory upon which this appeal is based is that the plaintiff was required to establish her claim of an easement by prescription by the preponderating weight of the evidence and thus make out a prima facie case before it became the duty of the defendants to produce proof that she did not have an easement by prescription. We do not question the fact that she had open use of the driveway longer than twenty-one (21) years, and so far as we know it was uninterrupted use. We claim, however, that by the plaintiff’s own testimony her use of the driveway originated by consent and permission; that before the plaintiff could establish a prima facie case she had to produce evidence to meet the presumption of continuity of permission and consent raised by her own testimony; that adverse use could not begin until mutuality of use by consent and permission ended. The originating consent and permission grew out of a mere neighborly accommodation and until that consent and permission and neighborly accommodation was shown by the plaintiff to have ended and adverse possession on her part began, no right by prescription could ever accrue to her.”

By formal assignments of error defendants contend that the trial judge erred to their prejudice in the admission of evidence, which they say by brief they do not press, and upon which assignment accordingly we will not pass, and in the rejection of evidence. Further defendants argue by assignments of error that the judgment of the trial court is not “supported by sufficient evidence, is against the manifest weight of the evidence, and is contrary to law.”

Without further discussion of the evidence in our opinion it establishes that the use of such driveway by plaintiff was open, notorious, adverse under claim of right, and continued for more than twenty-one years, and accordingly plaintiff acquired an easement by prescription in that portion of the driveway situated on defendants’ land.

Finding no error prejudicial to defendants in any of the respects urged by them in assignment of errors, oral argument or briefs the judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, NICHOLS, J, concur in judgment.


author: By HUNSICKER, PJ.

text:
    NORTHERN SAVINGS & LOAN CO., Appellant, v. FILLO, Appellee.
    Ohio Appeals, Ninth District, Lorain County.
    No. 1267.
    Decided July 9, 1952.
    A. H. West, Elyria, for appellant.
    Wilcox & Wilcox, Elyria, for appellee.
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Lorain County, discharging an attachment.

The appellant, The Northern Savings and Loan Company, herein called Company, commenced an action for money only against the appellee, Mrs. Filio, and by proper proceedings secured an attachment of her automobile. The affidavit of attachment said that Mrs. Filio “is about to remove her automobile out of the jurisdiction of the court with the intent to defraud her creditors and that she is about to convert this automobile into money for the purpose of placing it beyond the reach of her creditors.”

A hearing was had in the trial court, under the provisions of §11862 GC, on a motion to dismiss the attachment. At the conclusion of such hearing, the trial court entered a judgment discharging the attachment. It is such judgment that is now before us for review.

We have examined the briefs, the record, and the testimony submitted at the hearing in the court below. From our study of this case, there is but one question that merits discussion herein. That question is, Did the trial court improperly limit the introduction of evidence by the appellant Company?

Only two persons testified, Mrs. Filio and the president of appellant Company. The burden of proof to sustain the attachment devolved upon the Company — it was the Company which sought the attachment at the commencement of the action. Heald, Jr., v. Goebel et al, 89 Oh Ap 12, p. 20.

The trial court refused counsel for the Company the right to inquire into the disposition of a sum of money which Mrs. Filio had withdrawn from the Company some days prior to the commencement of this action. The action which formed the basis of the attachment was a claim by the Company that Mrs. Filio had withdrawn from the Company $2100 more than she whs entitled to withdraw.

Counsel for the Company sought to find, on the cross-examination of Mrs. Filio, the location and disposition of this money.

It is to be noted that no part of such money was used to purchase the automobile; such motor vehicle was owned by her two or three years before the withdrawal of these funds. Mrs. Filio also had been a resident of Lorain County for thirty years, and, according to her testimony, neither she, her husband nor her children were contemplating moving from such county. She also testified that she had not intention of disposing of her automobile or of moving it from the county. Appellant did not offer any testimony that Mrs. Filio sought to sell her automobile or to move it from the county.

The only question, then, is as to the right to inquire, not about the automobile or the intention to move it or herself from the county, but concerning her disposition of the claimed overpayment made to her by the bank. Mrs. Filio stated she did not now have the money she withdrew from the Company.

Of course, a wide latitude is permitted in the cross-examination of a party to the action, and especially so in the type of action herein, but the matter before the court concerned the attachment of an automobile. Inquiry as to the money, its whereabouts or disposition, was sought for the purpose of tracing the claimed improper withdrawal, and possibly for impeachment. There was no general claim in the affidavit of attachment that Mrs. Filio had made a fraudulent transfer of her property. The claim in the affidavit of attachment was limited to the automobile, and the attempt on the part of Mrs. Filio to sell or conceal it.

Under the circumstances of the case as disclosed by the testimony, the trial judge did not commit error prejudicial to the substantial rights of the Company in the limits which he placed upon the cross-examination of Mrs. Filio.

The Company did not seek to introduce any additional testimony other than that of the president of the Company and the examination of Mrs. Filio.

We have examined all of the claimed errors, and find none prejudicial to the rights of the appellant.

Judgment affirmed.

DOYLE, J, STEVENS, J, concur.