text:
    DEAN, Plaintiff, v. DEAN et, Defendants.
    Common Pleas Court, Fayette County.
    No. 21840.
    Decided January 4, 1955.

      Shoemaker, George & Hill, Columbus, for plaintiff.
    Robins, Metcalf & Alton, Columbus, for defendants.
   OPINION

By CASE, J.

On August 4, 1954, Plaintiff filed his petition herein which reads as follows:

“1. Plaintiff says that on or about the 15th day of March, 1946, that the plaintiff and the defendants herein, entered into an oral agreement to purchase the following described premises situated in the County of Franklin, State of Ohio, and in the City of Columbus:
“Being Lot Number Twenty-four (24) of H. W. Jaeger’s Subdivision, as the same is numbered and delineated upon the recorded plat thereof, of record in Plat Book No. 3, page 418, Recorder’s Office, Franklin County, Ohio.
“for the sum of Four Thousand Five Hundred Dollars ($4,500.00).
“2. Upon the request of the defendants herein the title to said premises was to be taken in the names of, the defendants herein, and they were to obtain and execute a purchase money mortgage for the full sum of $4,500.00.
“3. It was agreed by both the plaintiff and defendants that while the premises would be only in the names of the defendants herein until the plaintiff graduated from Ohio State University, that the plaintiff would own an undivided one-half interest and the defendants would own an undivided one-half interest and that both parties would pay one-half of the purchase money mortgage and when the plaintiff graduated from Ohio State University then the defendants agreed to convey by a good and sufficient Warrant Deed an undivided one-half interest in the above described premises.
“4. As per the agreement, heretofore set out, Arie C. Agan, Charles V. Agan and Perry O. Waite, unmarried conveyed by General Warranty Deed the above described premises which deed is recorded in Deed Book No. 1310, page 191, Recorder’s Office, Franklin County, Ohio.
“5. On the same date, April 29, 1946, George Rodney Dean and Louise Dean, his wife, conveyed by mortgage deed the premises heretofore described to Second National Bank of Circleville, Ohio, to secure a loan in the sum of $4,500.00, payable in monthly installments of $33.29.
“6. The plaintiff further says that the hereinbefore described premises was a Duplex building and that the plaintiff lived upstairs and the defendants lived downstairs and that each of them paid one-half of the mortgage payments, repairs, and water bills and any and all expenses resulting from ownership of said premises.
“7. The plaintiff herein graduated from Ohio State University on or about the 19th day of June, 1949, and from time to time in the summer and fall of the year 1949, plaintiff requested that defendants convey the undivided' one-half interest in said premises to the plaintiff as per agreement as heretofore set out. However, defendants refused and never conveyed said undivided one-half interest to the plaintiff.
“8. On December 7, 1951, the defendants, George Rodney Dean and Louise Dean, his wife conveyed said premises to Leslie Gordan, 169 Franklin Park West, Columbus, Ohio. This deed is recorded in D. B. 1653, page 447, Recorder’s Office, Franklin County, Ohio.
“9. Plaintiff says that the premises were sold without the knowledge or consent of the plaintiff and that the plaintiff is not familiar with the terms and conditions of said sale Plaintiff says that he has received no consideration for his undivided one-half interest.
“10. Plaintiff further says that the defendants used proceeds from the above noted sale to purchase the following described premises: Situated in the County of Fayette, State of Ohio, and Township of Union:
“Being Lot Number Two (2) in Brownell’s Washington Ave. Subdivision 1952, as shown on plat recorded in Plat Book ‘B’ Page 51 in the Recorder’s Office of Fayette County, Ohio.”
“11. Plaintiff further says that he has made a demand for an accounting on many occasions in the summer and fall of the.year 1951, but defendants have failed and neglected to render such account.
“12. That plaintiff is ignorant as to the amount of income proceeds and in administering said trust, and cannot obtain such information, all of which is within the exclusive knowledge of the defendant.
“13. WHEREFORE, plaintiff prays the court as follows:
“(a) That an accounting be made and distribution ordered as provided by law.
“ (b) That the court declare that the defendants were holding undivided one-half, interest in the hereinbefore described Franklin County property and that the proceeds were invested in the hereinbefore described Fayette County real estate and, therefore, the defendants are holding some interest in Fayette County property in trust for the plaintiff.
“(c) That partition of his interest be set off to plaintiff in severalty if such division can be made without manifest injustice, or if said property be sold, that out of the proceeds of said sale he be decreed his interest and the proceeds of said sale be divided as provided by law.
“(d) That the defendants George Rodney Dean and Louise Dean be required to set up any and all claim that they may have in and to said real estate situated in the County of Fayette or be forever barred.
“(e) And for such other equitable relief as may be just and proper.”

It should also be noted that the foregoing allegations were subscribed and sworn to and verified positively by the plaintiff.

On August 21, 1954, Defendants filed a demurrer to Plaintiff’s petition herein which reads as follows:

“Now come the defendants and demur to the petition of the plaintiff for the reason that the same fails to show a cause of action against the defendants.”

Said demurrer was supported by a memorandum filed the same date, and a memorandum contra thereto was filed by Plaintiff on September 7, 1954.

Defendants’ memorandum in support of their demurrer is bottomed upon the contention that Plaintiff’s petition involves a contract, not in writing, concerning real estate and therefore comes within certain provisions of §1335.05 R. C., known as the statute of frauds.

Defendants memorandum also urges that Plaintiff has been guilty of laches and that by reason thereof Defendants’ demurrer should be sustained and Plaintiff’s petition dismissed.

In opposing Defendants’ demurrer. Plaintiff contends said demurrer admits that an oral agreement to purchase said property was entered into by and between the parties, that Plaintiff had moved into possession of the upstairs portion of said duplex property, that Defendants occupied the downstairs portion, that Plaintiff and Defendants each paid one-half of the mortgage payments, repairs, water bills and all other expenses arising from the alleged ownership of said premises, as alleged in Plaintiff’s petition.

Plaintiff further contends that the allegations so admitted by Defendants’ demurrer therefore admit acts of such part performance as will take the case out of the operation of the statute of frauds in order to prevent fraud upon the Plaintiff. In other words, Plaintiff contends that his petition herein seeks to invoke the equity jurisdiction of this Court not upon the alleged verbal contract, but upon the fraud — actual or constructive — practiced by one party upon the other by inducing him to perform the contract to such an extent that by their refusal to complete it, Defendants have gained an unconscionable advantage over the Plaintiff’s performance thereof.

Plaintiff further contends that Defendants’ reliance upon the doctrine of laches is premature and inapplicable to the facts alleged in Plaintiff’s petition.

Upon due consideration of the respective arguments and authorities cited on behalf of the parties hereto, the Court is of the opinion that there is persuasive authority to support the equitable character and sufficiency of Plaintiff’s petition against the grounds stated in Defendants’ demurrer and argued in their supporting memorandum.

A most comprehensive review of the issues so raised is to be found in the case of Hughes v. Oberholtzer, 162 Oh St 330 (XXVII Ohio Bar No. 49, December 20, 1954), which was decided by the Supreme Court of Ohio on December 15, 1954.

There, as in the case at bar, the major issue raised by demurrer was whether the relief sought on an alleged oral agreement was barred by the statute of frauds.

In that case, the Court of Appeals had held that the amended petition therein filed pleaded facts showing a cause of action arising under a quasi contract due to unjust enrichment, and, therefore, that the statute of frauds did not apply.

At page 334, Judge Middleton stated in part as follows:

“It is manifest that the subject matter of the alleged oral agreement in its entirety is such as comes within the provisions of the statute of frauds unless removed therefrom by the circumstances pleaded.
“It is to be observed that this is an action for damages for breach of an alleged oral agreement, which damages are alleged in detail and specifically allocated-to alleged breaches of the respective provisions of the agreement pleaded. This is an action at law. It is not an action for specific performance. It is not an action for restitution. It is not an action to recover the value of property transferred.” (Emphasis added by Judge Middleton.)

In the instant case, it is also manifest that the subject matter of the alleged oral agreement in its entirety is such as comes within the provisions of the statute of frauds unless removed therefrom by the circumstances pleaded.

Also, it should be observed that the instant case is not an action for damages for breach of an alleged oral agreement, nor are any damages alleged in detail or specifically allocated to any alleged breaches of any respective provisions of the agreement pleaded. And, although it is not an action to recover the value of property transferred between the parties, it is clearly an action sounding in specific performance and seeking restitution.

Coming now to the second question as to whether or not Plaintiff’s petition states such facts of part performance as will remove the alleged oral contract from the operation of the statute of frauds, we again quote from Judge Middleton in the Hughes case, supra, beginning at page 337:

“Early in the history of the statute of frauds, courts of equity, to prevent the statute being used as a shield by a wrongdoer, evolved the doctrine of part performance to remove a contract from the statute. The doctrine, like that of quasi contract, is based on equity and is applied in cases where it would be patently inequitable to refuse relief to the plaintiff.
“The doctrine of part performance which will take a case out of the operation of the statute of frauds is based upon acts of the parties which are such that it is clearly evident that such acts would not have been done in the absence of a contract and that there is no other explanation for the performance of such acts except a contract containing the provisions contended for by the plaintiff.
“In other words, the acts done must not only indicate a contract, but a contract containing the provisions insisted upon by the plaintiff.”

It clearly appears from the allegations contained in Plaintiff’s petition that the acts therein alleged, and admitted for the purpose of Defendants’ demurrer herein, would not have been done in the absence of a contract and that there is no other explanation for the performance of such acts except a contract containing the provisions contended for by the Plaintiff.

Therefore, it must be concluded that the allegations of Plaintiff’s petition concerning the acts and conduct of the respective parties constitute such alleged facts of part performance as will remove the alleged oral contract from the operation of the statute of frauds.

In coming to consider Defendants’ final argument and contention that Plaintiff has been guilty of laches, this Court is of the opinion that the doctrine of laches cannot be applied under the provisions of §2309.08 (J) R. C., as the specific cause of demurrer stated herein. And, although it is true that laches is a defense which is peculiar to the courts of equity, where there is no statute of limitation which applies, however, the doctrine of laches does not generally apply where the situation of the parties has not been altered by the delay, as in the case at bar.

Therefore, in the light of all of the foregoing discussion of law and facts applicable to the issues raised by Defendant’s demurrer herein, the Court finds that said demurrer is not well made and should be overruled for the reasons above set forth.

Counsel for Plaintiff may prepare an entry accordingly which will include therein appropriate exceptions on behalf of Defendants to the aforesaid findings, decision and entry, and thereupon submit same to Counsel for Defendants and to this court for approval within ten (10) days from the date of this decision.


source: Caselaw Access Project

author: By CASE, J.

license: Public Domain

text:
    DEAN, Plaintiff, v. DEAN et, Defendants.
    Common Pleas Court, Fayette County.
    No. 21840.
    Decided March 9, 1955.

      Shoemaker, George & Hill, Columbus, for plaintiff.
    Robins, Metcalf & Alton, Columbus, for defendants.
   OPINION

By CASE, J.

On August 4, 1954, Plaintiff filed his petition herein for an accounting and to impose a trust arising out of proceeds of sale of realty, which had been in the name of Defendants, but in which Plaintiff claimed an undivided one-half interest, and for partition of realty subsequently purchased by Defendants from said proceeds of sale of said realty.

On August 21, 1954, Defendants demurred to said petition on the ground that it failed to show a cause of action against the Defendants.

On January 4, 1955, the court overruled said demurrer and thereby held that said petition was sufficient to state a cause of action.

On January 26, 1955, Defendants filed their motion herein which reads:

“Now come the defendants and move the Court for an order requiring the plaintiff to strike from his petition, the following words, allegations and phrases:
“1. On Page 3 of the plaintiff’s Petition, Paragraph 13, Sub-section (b)
“2. On Page 3 of the plaintiff’s Petition, Paragraph 13, Sub-section (c)
“3. On Page 3 of the plaintiff’s Petition, Paragraph 13, Sub-section (d)
“4. On Page 3 of the plaintiff’s Petition, Paragraph 13, Sub-section (e)”

In support of said motion, Defendants filed the following memorandum:

“Each of the above paragraphs are mutually inconsistent, and should be stricken. In particular, Sub-section (d) of Paragraph 13, prays that the defendants be required to set up any claim they have in the real estate of which they are the Title owners. Certainly the plaintiff cannot require an owner of property to set up any claim he has in the property since the records themselves indicate that the defendants own this property. The plaintiff cannot try to impress a trust on real estate as for a Petition and ask that the real owners of the property be barred from any claim therein in the same Petition. We think all of these items should be stricken from the plaintiff’s Petition.”

On January 31, 1955, Plaintiff filed his memorandum contra said motion which reads:

“The objections of the defendant to the prayer of the petition are not well founded because the plaintiff cannot intelligently say that d (for example! is not well founded because the plaintiff does not know the conditions and terms of the purchase of the Fayette County property described in the petition herein.
“Certainly the plaintiff can require an owner of property which has been alleged has been purchased as a result of fraud practiced upon plaintiff by the defendants to set forth their claims, if any, they might have as a result of such practices.”

It is clearly evident and undisputed that Defendants’ motion is directed entirely and exclusively to Paragraph 13 of Plaintiff’s petition; that said paragraph and its related subsections state only Plaintiff’s concept of the legal relief desired; and that all of the statements therein contained constitute the prayer for relief to which the Plaintiff claims to be entitled. In other words, Defendants’ motion is directed solely to the prayer of Plaintiff’s petition.

It is a general rule in Ohio that a motion is the proper method to reach an indefinite or defective statement in a pleading, or to raise objections to the form of the allegation in a pleading. (27 O. Jur., Motions, No. 3, page 762.)

In 31 O. Jur., Pleading, No. 79, beginning at page 626, it is stated in part as follows:

“A petition which is properly drawn should conclude with a demand or prayer for the relief to which the plaintiff claims to be entitled — a statement of the legal consequences which plaintiff believes attach to his statement of facts. * * *
“The prayer is not part of the cause of action, or of the allegations of the petition, but merely indicates the object thereof, remedy sought, or legal consequences of the facts stated. It is a mere incident to the petition. The facts constituting the cause of action must be embodied in the pleading independent of the prayer.”

and, beginning at page 629, No. 80, it is further stated in part as follows:

“The prayer does not fix the character of the action, nor determine the nature of the relief to which the plaintiff is entitled. It is the statement of facts, not the prayer, which gives character to the action as being legal or equitable in its nature. The prayer constitutes no part of the statement of facts constituting the cause of action, but merely indicates what the pleader supposes is the object of the action, or the remedy sought, or the legal consequences of the facts stated. The prayer may frequently be resorted to, in order to determine the character of the action, but cannot restrict the nature of the relief which the facts set forth in the petition authorize. The nature of the relief must be determined from the allegations of the petition; even though the pleader is mistaken in the relief which he asks, yet. if the facts stated show him to be entitled to relief, the court will give such relief as the case may require. Under a prayer for general relief, the court may decree such relief, other than that specifically prayed for, as the facts alleged in the petition and proved on the trial may justify. Thus, the fact that the plaintiff prays only for partial relief will not prevent the court from granting entire relief. So, if the petition clearly states a case for payment of money only, the pleader cannot by his prayer therein make the case one for the interposition of a court of equity. Likewise, if a party states and proves a cause of action, but asks for relief which the law does not give, the court is not restrained by the prayer in the petition, but is authorized and required to administer such relief as the law provides for such cause of action.
“The prayer will not sustain a petition which is otherwise demurrable; nor will a change in the prayer of a petition, without change in the averment of the body of the petition, remedy a petition which has been held not to be good.”

In Norris v. Norris, 40 Abs 293, 57 N. E. 2d 254, the Court of Appeals, 2nd District of Ohio, which is also the Court of Appeals for Fayette County, held in part as follows:

“2. The legal relief desired is to be determined by the theory adopted in pleadings, the nature of the relief sought and the proof in respect thereof, no matter what the plaintiff’s concept of the legal relief desired may be.
“3. It is not necessary that an intention to create a trust relationship be expressed in terms; an acceptance by conduct by a person of the terms themselves propose that a trust relationship be set up, is all sufficient.
“4. An express trust may be created even though the parties do not understand what a trust is, and whether or not so created may be determined from all the circumstances surrounding the transactions between them.”

In Suburban Home Mortgage Co. v. Hopwood, 83 Oh Ap 115, 51 Abs 490, 38 O. O. 206, 81 N. E. 2d 387, our Court of Appeals, 2nd District of Ohio, held in part as follows:

“8. The prayer is no part of the cause of action alleged and cannot restrict the nature of relief which facts alleged authorize.
“9. Under a prayer for general equitable relief, the court may grant any relief that is consistent with the pleadings and the evidence.”

' Therefore, it must be concluded and the court finds, where Defendants’ motion to strike does not seek to reach and rectify any defective statement of operative facts or raise any objection to the form of such facts as alleged in Plaintiff’s petition and is directed solely to the prayer of said petition, there is no statutory or case law of Ohio which warrants the granting of such motion.

The court finds upon due consideration of said motion, in the light of the authorities above cited and for the reasons hereinbefore set forth, that Defendants’ motion is not well made and should be overruled.

The court further finds that counsel for Plaintiff should prepare an entry accordingly with appropriate notation therein of exceptions on behalf of Defendants and granting leave to answer by on or before April 11, 1955, and that said entry be' submitted to counsel for Defendants and to this court for approval within ten days.


author: By BARTLETT, J.

text:
    GILLIGAN, Plaintiff, v. PRUDENTIAL LIFE INSURANCE COMPANY, Defendant.
    Common Pleas Court, Franklin County
    No. 190289
    Decided December 17, 1954.
    Wright, Harlor, Purpus, Morris & Arnold, Columbus, for Fourth-Naghten Co.

      Carl H. Valentine, Columbus, for defendant, The Prudential Insurance Co. of America.
    Donald S. McNamara, Columbus, for plaintiff.
   OPINION

By BARTLETT, J.

1. Misnomer is not fatal to the jurisdiction of the Court over the person of the defendant whose name is in issue, and such mistake in the name becomes a mere irregularity when the real party sought to be sued, answers to the merits at issue in the case.

. 2. A plea in abatement because of misnomer is a personal defense of the party whose name is in issue, and may be waived by such party; and is not available as a defense to other parties not affected by such mistake in the name.

3. The purpose of pleadings is to define the issues to be determined in a given case and to keep such case within due bounds, and the pleading of collateral matters should not be permitted, since such matters tend to draw away the minds of the jurors from the point in issue and thus mislead them. Each case must be tried upon its own merits, and be determined by the circumstances connected with it.

4. Claims of liability of a contingent nature against another person depending on the outcome of the controversy already before the Court on the pleadings, does not constitute the proper subject of a “counterclaim” as that term is used in §2309.16 R. C.

5. The persons who are made defendant under §2307.19 and 2307.26 R. C., muse be those whose presence is essential to the determination of the controversy before the Court, and where the defendant in the original controversy seeks to have another person made a defendant and to inject new issues into the action by way of cross-petition against such other party, in an effort to litigate matters wholly between themselves and which cannot affect the right of the plaintiff to recover on his petition, the application of such original defendant should be denied where he requests such other person be made a defendant with leave to file such a cross-petition against him.

6. The motion of the Fourth-Naghten Company is sustained, and the previous order of the Court is vacated, wherein the Fourth-Naghten Company was made a party defendant with leave to The Prudential Insurance Company of America, to file its amended answer and its cross-petition against said Fourth-Naghten Company.

7. The Court, sua sponte. orders stricken from the files' the amended answer and cross petition of said insurance company.

This action was begun by the plaintiff filing his petition claiming damages against The Prudential Life Insurance Company (emphasis oursj, in the sum of $50,000.00 for personal injuries alleged to have been suffered by the plaintiff resulting from her falling on the floor in the office of said company, where she went as a policy holder of the company, to pay a premium owed by her to the company.

Plaintiff claims her fall was due to the negligence of said company in waxing and polishing the floor of its office resulting in slippery spots, etc. on said floor.

Service of summons was made on the defendant in the foregoing name of said company, by serving Sherman Babcock, Manager and agent of Prudential Life Insurance Company (emphasis ours), personally, with a certified copy of the petition.

Interrogatories were annexed to the petition, the first of which requested the name of the person in charge of defendant’s office at 22 Yo'ung Street on the date of plaintiff’s injury. The Prudential Insurance Company of America answered: “Sherman Babcock.”

The petition states defendant’s fall was at the company’s office located at said 22 South Young Street.

The Prudential Insurance Company of America filed its answer to the petition setting up as a first defense the service of summons on it in the name of “The Prudential Life Insurance Company” (emphasis ours), then stated there was an Ohio corporation by this name, but that “this answering defendant is not such corporation,” and asserted its correct name to be, “The Prudential Insurance Company of America.” As a second defense to the petition, the answer averred a general denial.

Later the “Defendant, The Prudential Insurance Company of America,” filed its motion requesting the Court to make the Fourth-Naghten Company a new party defendant herein and to grant leave to this defendant to file its amended answer herein containing a first defense and a second defense of the same allegations as in its answer heretofore filed herein and, as a part of said amended answer, to file its cross-petition against said Fo.urth-Naghten Company, setting up its counterclaim against said Fourth-Naghten Company, arising out of its contract of lease with said Fourth-Naghten Company under authority of which it occupies the premises described in the petition, and to require said Fourth-Naghten Company by a summons, to answer said counterclaim.

Plaintiff’s counsel filed no memorandum opposing said motion, although served with a copy of an affidavit in support of said motion: and this branch of the Court sustained said motion, and its order was journalized.

The Prudential Insurance Company of America filed its amended answer containing the same two defenses asserted in its original answer, and also a cross-petition against the defendant said Fourth-Naghten Company, based upon its lease with said last named company for the premises where plaintiff was injured, being its office. The cross-petition claimed the FourthNaghten Company in said lease reserved to itself janitor service, and that “the floor of which plaintiff complains in her petition was maintained and cared for by said Fourth-Naghten Company, and that whatever treatment, care, repairs and janitor service may have been given to said floor were given, made and furnished by said Fourth-Naghten Company and that said The Prudential Company of America at no time performed or caused to be performed any service or act whatever, having to do with said floor, with a prayer that “in the event a judgment be rendered against it herein in favor of the plaintiff, it be given judgment against defendant FourthNaghten Company for the amount thereof” etc.

Summons on the cross-petition was issued and served on the FourthNaghten Company; and thereupon counsel for the Fourth-Naghten Company filed a motion for an order “vacating and setting aside the order making Fourth-Naghten Company a new party defendant herein and granting leave to the Prudential Company of America to file its amended answer setting up its alleged claim against Fourth-Naghten Company.”

The request to set aside the previous order of the Court is based on two grounds, first that the Prudential Life Insurance Company was the only party defendant in this ease, and The Prudential Insurance Company of America, not being a party defendant in this case, has no standing to have others made parties. To simplify, it was claimed A sues B, and C, without being sued, files a motion to make D a party. Let us examine this proposition.

“An answer raising an objection to the merits of the cause of action enters the general appearance of the defendant, though one which merely objects to the jurisdiction of the Court does not.” 31 O. Jur. Pleading, Sec. 178, p. 745.
“Entering a plea constitutes a general appearance where the objection is to its merits.” 3 O. Jur. Appearance, Sec. 9, p. 19.
“1. Where a corporation whose name is composed of several words is sued by a name in which a word in the corporate name is omitted, such omission or misnomer, unless pleaded in abatement, will be disregarded by the court.” State, ex rel. Telegraph Co. v. Bell Telephone Co., 36 Oh St 296.

In the foregoing case McIlvaine, C. J., on p. 308 states:

“It has been suggested that jurisdiction has not been obtained over the American Bell Telephone Company. There is no doubt that the relators intended to prosecute the American Bell Telephone Company, but through ignorance of the true name have designated it by the name of ‘The Bell Telephone Company.’ It is true, advantage of the mistake might have been taken by plea in abatement, but as the company, by its silence, has shown itself to be content with the name by which it has been sued, the court will regard the objection that otherwise might have been made on the ground of misnomer to have been waived. 2 Estee’s Pleadings, 449, note; 2 Cowen, 770; 1 Den. 451; Kyd on Corp. 227; Green’s Brice’s Ultra Vires, 3, note; 13 Johns. 58; 1 Potter on Corp. Sec. 12.

In the case of Boehmke v. The Northern Ohio Traction Co., 88 Oh St 156, it was held:

“1. Where one knows himself to be the wrongdoer sought to be made liable in an action of damages for the wrong, and voluntarily appears by his attorney and answers in the name of and ostensibly as another person who was by the plaintiff named as defendant, and served with process in the mistaken belief that the latter person did the wrong, the former person thereby submits himself to the jurisdiction of the court and may be substituted as the real defendant in place of the nominal defendant sued by mistake; and the substituted defendant will be bound by the verdict and judgment rendered against him in the case.”

On p. 164 of the foregoing case Wilkin, J., says:

“But that mistake became a mere irregularity in the judicial formulary of the suit when the real party came to the defense wearing the mask of the formal party. A court of law is a dangerous place for masquerade, for the law looks beneath the apparent and beholds the real.”
“* * * Counsel’s mistake was in thinking their client could enjoy the privilege of defending a law suit and dodge the responsibility that goes with it.
“Assenting to the plaintiff’s mistake, the defendant accepted the suit and thus cured the irregularity.”

To the same effect as the case of Boehmke v. Northern Ohio Traction Co., supra, see Box Board Co. v. Hinton, 100 Oh St 505.

Sec. 2309.58 R. C. (§11363 GC) provides:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or by a mistake in any other respect,
“Our statute of amendments (§11363 GC) is very liberal.” Boehmke v. Traction Co., supra, p. 163; Bonding Co. v. Bank, 22 C. C. (N. S.) 177, 180.
“Two defenses are set forth in the answer of the company; one a plea in abatement because of the misnomer of the company; the other was an answer to the merits, the company entered its appearance, and it was not error to permit the petition and summons to be corrected by inserting the true name of the defendant below. Sec. 5114 R. S. (§11363 GC); Elliott v. Lawhead, 43 Oh St 172.” Cleveland, Lorain and Wheeling R. R. Co. v. Fredenbur, 3 C. C. 23, 27,
“the second defense was to the merits, being substantially a general denial.” p. 24, foregoing case, which was affirmed by the Supreme Court without opinion. 23 Bull. 434.

The Fredenbur case, supra, would appear to be identical with the instant case, since The Prudential Insurance Company of America has seen fit, not only to enter a plea in abatement because of misnomer of the company as a defense, but also a general denial as to facts as a second defense; and consequently, has entered its appearance as the real defendant in the case.

It is apparent from a review of the cases that a misnomer is not fatal to the jurisdiction of the Court over the person of the defendant whose name is involved, and such mistake becomes a mere irregularity when the real party sought to be sued, answers on the merits at issue in the case.

It also is well settled by the cases cited that the plea of abatement because of misnomer is a personal defense of the party whose name is in issue, and may be waived .by such party; but that such plea is not available to other parties not affected by such mistake.

Consequently, the misnomer in the instant case, affords no reason for setting aside the previous order of the court.

The second ground advanced by counsel on behalf of the FourthNaghten Company as to why the previous order of the Court should be set aside, is the fact that the original defendant had no authority under the laws of Ohio to have another person made a party defendant who may be liable to the original defendant in the event the plaintiff secures a .judgment against such original defendant. This would appear to be a much more valid reason for setting aside the previous order.

In the case of Mayer v. Klug et al., 10 Oh Ap 303, it was held:

“The owner of an automobile who has been joined with a traction company as defendant in an action for damages for injuries received by a street car passenger as the result of a collision, can not under §11317 GC (now §2309.16 R. C.) file a counterclaim against the traction company and thus litigate his rights as against the traction company in such action.”

The ruling in the Mayer case, supra, was cited with approval in Price v. Kobacker Furniture Co., 4 Abs 68.

In the case of Moeser, Trustee, v. Republic Distributing Co.. 10 Oh Ap 356, it was held:

“1. Persons who are made defendant under §§11255 and 11262 GC (now §2307.19 and 2307.26 R. C.), must be those whose presence is essential to the determination of the controversy before the court, and a defendant can not by cross-petition bring in new parties in order to litigate matters wholly between themselves and which can not affect the right of the plaintiff to recover on his petition.”

In the case of Commercial Credit Co. v. Ramsey, 11 Abs 573, it was held:

“Persons who are made defendant under §§11255 and 11262 GC (now §§2307.19 and 2307.26 R. C.), must be those whose presence is essential to the determination of the controversy before the court, and where an entire stranger to the original controversy seeks to inject new issues into the action, the issues which it seeks to raise being in no manner essential to the determination of the original controversy, its application must be denied.”

In the case of Johnson v. Avondale Motor Car Co., 64 Abs 355, it was held:

“1. In order to bring one in as a party under §11255 GC (now §2307.19 R. C.), his presence must be essential to the determination of the controversy before the court.”

The most pertinent reason in law for not permitting defendants to litigate matters wholly between themselves, but to confine the issue to the controversy already before the Court, has been stated by Cushing, J., in the Mayer case, supra, on p. 306, as follows:

“In this case the counterclaim in no way tends to affect the plaintiff’s right of recovery. Its purpose is to shift responsibility from the automobile owner to the traction company, and for the recovery of a judgment, by Mayer, against that company. Under pleadings, Klug did not owe Mayer any duty. The duty that Mayer and the company owed Klug was different from that owing to each other.
“The complexities that would arise in a trial into which were injected several controversies involving different standards of care, and different measures of damages, with evidence introduced that was admissible against some but not against all parties, might well merit the characterization of ‘extraordinary intermingling of causes, of action,’ used by the Court in City of Cleveland v. The Standard Contracting Co. et al., 21 C. C., N. S., 604, 605.”

This same salient principle of avoiding complexities in a trial by the injection of other controversies, is well recognized as a fundamental rule of evidence.

“In all cases evidence should be excluded which tends only to prove a collateral fact. * * * Each case must be tried upon its own merits, and be determined by the circumstances connected with it. * * *
“The reason for the rule excluding testimony of collateral facts is ‘that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice, and mislead them;’” 12 O. Jur. pp. 334 and 335; Greenleaf on Evidence, Vol. 1, Sec. 52.

The rule of evidence excluding testimony of collateral facts, is based on a sound principle, so as to avoid a tendency to draw away the minds of jurors from the real point in issue, and thus mislead them; and such principle is all the more applicable to law of Pleading, since the very purpose of pleadings in all cases is to define the issues to be determined and to keep all such law suits within due bounds.

In the instant case the alleged counterclaim asserted by the defendant Insurance Company against the Fourth-Naghten Company in no way tends to affect the plaintiff’s right of action against said Insurance Company, which is the real issue in this case; furthermore this alleged claim is of a contingent nature depending upon the outcome of plaintiff’s claim against said Insurance Company and, therefore, does not come within the definition of a “counterclaim” as that term is used in §2309.16 E. C. (formerly §11317 GO.

The cross-petition seeks to inject a new issue into the real controversy in this ease, the subject matter of which is entirely collateral to the subject of the action already in litigation in the instant case, which is the right of plaintiff to recover a judgment against said Insurance Company. The subject of the cross petition being of a contingent nature depending on the liability of said Insurance Company to the plaintiff, should be postponed until such liability of said Insurance Company is determined, and thereafter, if it becomes necessary to decide the merits of said Insurance Company’s claim asserted against the Fourth-Naghten Company, it should be the subject of an original action for that purpose.

Sec. 2307.19 R. C. (§11266 GC) provides:

“Joinder of defendants. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.”

The alleged issue asserted in the cross petition is not adverse to the plaintiff, and a decision on that issue is in no sense essential to the determination of the merits of the original controversy, which is plaintiff’s right of recovery against said Insurance Company.

It is, therefore, the holding of this Court that the persons who are made defendant under §§2307.19 and 2307.26 R. C., must be those whose presence is essential to the determination of the controversy before the Court, and where the defendant in the original controversy seeks to have another person made a defendant and to inject new issues into the action by way of cross petition against such other party, in an effort to litigate matters wholly between themselves and which cannot affect the right of the plaintiff to recover on his petition, the application of such original defendant should be denied where he requests such other person be made a defendant with leave to file such a cross-petition against him.

The Court, therefore, sustains the motion of the Fourth-Naghten Company, and hereby vacates its previous order making said Fourth-Naghten Company a party defendant, with leave to The Prudential Insurance Company of America to file its amended answer and its cross-petition against said Fourth-Naghten Company.

Furthermore, the Court, sua sponte, orders stricken from the files the amended answer and cross-petition of said Insurance Company.

Entry accordingly with exceptions to counsel for defendant insurance company.


author: By KOVACHY, J: By SKEEL, J.

text:
    HEIDTMAN et, Plaintiffs-Appellants-Appellees, v. SHAKER HEIGHTS (City) et, Defendants-Appellees-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23068.
    Decided May 12, 1954.

      Smoot & Riemer. Cleveland, for plaintiff appellants-appellees.
    Ralph W. Jones, Shaker Heights, for defendants appellees-appellants.
    .John W. King, Columbus, for Amicus Curiae (Association of Ohio Fire Fighters).
   OPINION

By KOVACHY, J:

This cause is before us on questions of law on appeal by plaintiffs appellants-appellees, and a cross-appeal by defendants appellees-appellants, from a judgment rendered by the Court of Common Pleas of Cuyahoga County in a declaratory judgment action in which the court was asked to determine:

“Whether an initiative petition seeking enactment of an ordinance to establish the three-platoon system in the Fire Department and filed in accordance with the general laws of Ohio and the Charter Provisions of the Defendant, City of Shaker Heights, properly may be rejected as defective by the officials and council of the Defendant City on the ground that circulation of the initiative petition and parts thereof by members of its Fire Department constitutes political activity in violation of §486-23 GC (§143.41 R. C.).

The plaintiffs appellants-appellees are:

Alvin E. Heidtman, Frank J. Schieferstein, and John J. Rafter, and Shaker Heights Fire Fighters Association, Local No. 516, International Association of Fire Fighters A. F. L.

The defendants appellees-appellants are:

City of Shaker Heights, a municipal corporation, John W. Barkley, Mayor of the City of Shaker Heights, Robert D. Templeman. Wilson G. Stapleton, John H. Lansdale, Jr., R. Scott Mueller, Joseph R. Fawcett, Robert B. Dennison; and Wm. R. Van Aken, Councilmen of the City of Shaker Heights; Ralph W. Jones, Director of Law of Shaker Heights; Thos. E. Cook, Director of Finance of Shaker Heights, Ohio.

The Agreed Statement of Facts read:

(1) Plaintiffs, Heidtman, Schieferstein and Rafter are employees of the City of Shaker Heights, Ohio, employed in the classified service of said city as firemen in its Fire Department and constituted a committee of petitioners who, as residents, registered voters and taxpayers of the City of Shaker Heights caused to be circulated an initiative petition seeking enactment by ordinance of the three-platoon system for firemen. Shaker Heights Fire Fighters Association Local No. 516, International Association of Fire Fighters, American Federation of Labor is an unincorporated association with which the individual plaintiffs are affiliated as members.

(2) The defendant, City of Shaker Heights, is a municipal corporation and the individual defendants are the councilmen and officers of the City of Shaker Heights.

(3) The Charter of the City of Shaker Heights contains the following provisions respecting initiative:

ARTICLE III.

Section 1. Initiative. The electors of the City shall have power to propose any ordinance or resolution, except an ordinance for the appropriation of money or an ordinance making a tax levy, and to adopt or reject the same at the polls, such power being known as the initiative. An initiated ordinance or resolution may be submitted to the Council by petition signed by at least five (5%) percent of the registered electors of the City. When so submitted, the Council shall forthwith determine the sufficiency of the petition and if found sufficient, shall at once have the proposed ordinance or resolution read and referred to an appropriate committee which may be a committee of the whole. Provision shall be made for public hearings on the proposed ordinance or resolution not later than thirty days after the date on which such ordinance or resolution was submitted to the Council.

The Council shall within forty days after such ordinance or resolution is submitted, take final action thereon, either enacting or rejecting the proposed ordinance or resolution. If the Council fails or refuses to pass such proposed ordinance or resolution or passes it in some form different from that set forth in the petition thereof, the committee of the petitioners may require that it be submitted to a vote of the electors either in its original form or in the amended form, by filing with the Council an additional petition signed by at least two percent (2%) of the registered electors of the City, and if said additional petition is signed by at least five percent (5%) of such registered electors, the date of the election may be fixed therein, not less than 60 days from the time of filing such additional petition. Such additional petition shall be filed within 10 days after the final action on such ordinance or resolution by the Council. The Council shall thereupon provide for submitting such ordinance or resolution to the vote of the electors at the date so fixed, or at the- next general election occurring more than 60 days from the filing of such additional petition, if no date be so fixed therein.

Section 3. Petitions. An initiative or referendum petition may be circulated in separate parts; but each part shall contain a full and correct copy of the title and text of the proposed or referred ordinance or resolution, and the separate parts shall be bound together and presented as one instrument. Each signer shall be a registered elector of this City, and shall sign his name in ink or indelible pencil, and shall place on the petition his name, his place of residence by street and number, and the date of signing the petition. The form of affidavit provided for nominating petitions by general law, and the other requirements of general law regulating nominating, initiative and referendum petitions shall apply in the case of initiative and referendum in this City.

(4) . Plaintiffs, Heidtman, Schieferstein and Rafter, constituting the committee of petitioners did, on January 17, 1953, file with Thomas E. Cook, Director of the Finance Department, and the City Auditor of said City of Shaker Heights, a duly verified copy of the title and text of a proposed ordinance, a true copy of which was attached to the original petition on file in this cause, and thereafter an initiative petition was distributed and circulated as parts thereof by firemen, members of the plaintiff Association, all employees in the classified service of the Fire Department of the City of Shaker Heights, Ohio.

(5) On January 26, 1953, plaintiffs Heidtman, Schieferstein and Rafter, constituting the committee of petitioners, filed with Thomas E. Cook, an initiative petition in 50 parts, in accordance with the provisions of Article III, Sections 1 and 3 of the aforesaid Charter of the City of Shaker Heights, each part containing a full and correct copy of the title and text of the proposed ordinance. A true copy of the initiative petition as circulated was attached to the original petition on file in this cause.

(6) Plaintiffs, Heidtman, Schieferstein and Rafter on Jan. 29, 1953. filed with Thomas E. Cook, in accordance with the provisions of §4227-9 GC (§731.35 R. C.) their sworn statement as circulators.

(7) The Board of Elections of Cuyahoga County, State of Ohio, having nad referred to it by defendants, the initiative petition to determine the sufficiency of the signatures thereon, reported thereafter to the defendants that the petitions contained 2132 signatures which could be certified as being genuine signatures of registered electors of the City of Shaker Heights. As of February 2, 1953, there were 19,107 registered electors in the City of Shaker Heights, and 2132 valid signatures fulfilled the requirements respecting the number of valid signatures, in accordance with Art. Ill, Sec. I of the Charter of the City of Shaker Heights.

(8) On February 2, 1953, at a meeting of the Council of the City of Shaker Heights, it was reported that, although there were sufficient valid signatures under the provisions of the Charter, the ordinance was not properly proposed by the circulators thereof, for the reason that the separate part petitions were submitted by members of the Fire Department .of the City of Shaker Heights and that in doing so the circulators of the petition had violated §486-23 GC (§143.41 R. C.) which reads in part as follows:

“* * * nor shall any officer or employee in the classified service of the state, the several counties, cities and city school districts thereof, be an officer in any political organization or take part in politics other than to vote as he pleases and to express freely his political opinions.”

and that in circulating the part petitions, members of the plaintiff Association, including the individual plaintiffs, had engaged in politics and that petitions having been circulated in violation of law, it was recommended by Ralph W. Jones, the Director of Law, that the Council of the City of Shaker Heights had neither the duty nor the right to proceed further with the petition and the City Council of Shaker Heights by an affirmative majority vote rejected the petition.

The judgment of the Court, as appears in the journal entry was as follows:

(1) That an actual controversey does exist between plaintiffs, Heidtman, Schieferstein and Rafter and the defendants, and the court has jurisdiction for the purpose of rendering a declaratory judgment as between them and the defendants.

(2) That no actual controversey exists between the plaintiff Association and the defendants, and the court lacks jurisdiction for the purpose of rendering a declaratory judgment as between it and the defendants, and that the plaintiff Association is dismissed as a party plaintiff in this cause;

(3) That the action and conduct of the plaintiffs, Heidtman, Schieferstein and Rafter, and 54 other firemen, all members of the Fire Department m the classified civil service of the defendant, City of Shaker Heights, in preparing, circulating and filing an initiative petition to secure enactment of an ordinance to establish the three-platoon system in its fire department and filed in accordance with the general laws of the State of Ohio and the charter provision of the defendant, City of Shaker Heights, constituted a taking part in politics in violation in civil service law; particularly §143.41 R. C. (§486-23 GC); and

(4) That neither the initiative petition nor the proposed ordinance were rendered illegal or void by the action and conduct of the plaintiffs, Heidtman, Schieferstein and Rafter, and other members of the fire department in the classified civil service of the City of Shaker Heights and the defendants could not refuse to’recognize the validity of the initiative petitions and therefore improperly failed to process and continue proceedings on the petitions in violation of the Charter provisions of the defendant, City of Shaker Heights.

In their first Assignment of Error, plaintiffs appellants-appellees say:

“The preparation, circulation and filing of an initiative petition, by employees in the classified cervice of the City of Shaker Heights, in the Fire Department, does not constitute that kind of activity prohibited by the Civil Service Laws of the State of Ohio, and it was therefore error on the part of the trial court to hold that such conduct and activity was a violation of Civil Service Law.”

Sec. 486-23 GC (§143.41 R. C.) reads thus:

Political Activity Prohibited

“No officer or employee in the classified service of the state, the several counties, cities and city school districts thereof, shall directly or indirectly, orally or by letter, solicit or receive, or be in any manner concerned in soliciting or receiving any assessment, subscription, or contribution for any political party or for any candidate for public office, nor shall any person solicit directly or indirectly, orally or by letter, or be in any manner concerned in soliciting any such assessment, contribution, or payment from any officer or employee in the classified service of the state and the several counties, cities or city school districts thereof; nor shall any officer or employee in the classified service of the state, the several counties, cities and city school districts thereof, be an officer in any political organization or take part in politics other than to vote as he pleases and to express freely his political opinions.”

The part of the statute vital to our consideration in this case is “* * * nor shall any officer or employee in the classified service take part in politics * * *” for the reason that the trial judge found that the conduct of the individual plaintiffs in preparing, circulating and filing an initiative petition constituted a taking part in politics in violation of §486-23 GC (§143.41 R. C.) and thereby concluded that the word “politics” as used therein con-notated political activity of a general and broad nature.

Plaintiffs urge that the word “politics” as used in this Section of the General Code has a limited and restrained meaning and refers to politics of a partisan nature usually indulged in by political parties in the nomination and election of candidates for public office. They say that the fundamental purpose for establishing Civil Service in government was to create a system by which appointments to public service were to be based on fitness and merit rather than on consideration of one’s political activity in behalf of candidates and that consequentlly the object was to eliminate the evils of the so-called “spoils system” in which appointment to or removal from public service was determined by the consideration of whether the person concerned was a protagonist for the victorious or the defeated party.

Defendants contend for a broader interpretation of the word “politics” and draw to our attention a definition this Court promulgated in the case of Green v. Cleveland, 33 Abs 72 at page 76:

“It is the conclusion of the majority of the court that any election in which the voters are asked to pass judgment on candidates for office, or on issues, is political in its purpose and result. * * * *

They say the unlawful aspect of the conduct of the individual plaintiffs was that it was political in nature and that this court’s definition of the word “political” in the Green case, supra, is inescapably fatal to plaintiffs’ theory and contention.

The trial court determined the conduct of the individual plaintiffs to be in violation of the Civil Service law on the authority of the Green case.

We may find differences between the facts of the Green case and the case here under consideration. The Green case had to do with the interpretation of a section of a Charter of the City of Cleveland that had been adopted by vote of the people to regulate the conduct of persons in the service of the City, both classified and unclassified, in political matters and was comprehensive in scope. Its principal object was to control the political activities of the city employees in conformance with local concepts and local conditions then and there existing. For instance, the Charter provided for the election of officials on a non-partisan ballot and the Charter did not recognize party organizations whatever. In the case here before us, we are concerned with a penal statute, having state-wide application, enacted by the General Assembly to prohibit the political activities of officers and employees in the classified service of the State, the several counties, cities and city school districts thereof, in certain specified respects. Being a penal statute, it must be strictly construed. 37 O. Jur., 744, Sec. 420. Moreover the decision in the Green case turned upon the meaning of the expression, “a political campaign,” as related to the conduct of city employees in the classified service immediately preceding an election. Here, we are concerned with the meaning of the expression, “take part in politics” as regards the conduct of employees in the classified service in preparing, circulating and filing an initiative petition with respect to their own conditions of employment, with no election designated or in immediate prospect. Obviously, the Green case is not analogous to this case, and an analysis of the statute involved becomes necessary for a proper disposal of the questions involved.

The Supreme Court of Ohio stated in the 4th paragraph of the syllabus of Cochrel v. Robinson, 113 Oh St 526, that:

“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 sub-served, 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.” '

What was the paramount object of the legislature in enacting this statute? Prior to Civil Service, the “spoils system” of politics predominated in administrations of the state, cities, counties and city school districts. The political party victorious at the polls saw to it that only a person politically active in its behalf during the campaign be appointed to office. Fitness and competence was of secondary importance and lacking more often than not in the individual named under that system. Under. Civil Service, however, a person is appointed to office on the basis of merit and fitness after competitive examination. So, it seems to us, the legislature in §486-23 GC (143.41 R. C.) prohibited political activity on the part of a person in the classified service, to make him independent of any political party control for appointment to and continuance in office and to enable him to pursue his duties unaffected by such party’s fortune in the political arena. The efficiency and discipline of the public service was thereby greatly enhanced and the tenure in office of the public servant stabilized and protected.

Sec. 486-23 GC (143.41 R. C.) prohibits a person in the classified service (1) from being in any way involved in seeking assessments, subscriptions or contributions for a political party or candidate; (also no person is allowed to seek the same from anyone in the classified service.)

(2) (a) From being an officer in any political organization (b) From taking part in politics, other than to vote * * and to express * * * one’s political opinions.

The word political is used three times in the body of the statute and once in its heading. The word politics is used but once. The first time the word political is used, it is joined with the word party. The ordinary and usual meaning of a political party is well known. It is an organization seeking or exercising power in the government or public affairs of a state, municipality or the like. (See the New Century Dictionary). The word political, in this connection, is clearly used in its narrow sense, meaning partisan politics. The second time the word political is combined with the word organization. A political organization in its usual and ordinary sense means one connected with and serving the purposes of a political party, yet it may be one to further a political cause not partisan in nature, such as a charter amendment, bond issue, special tax levy. etc. Which did the legislature intend here? In the first provision of the statute, a person in the classified service is prohibited from soliciting or receiving assessments, subscriptions or contributions on behalf of a political party or a candidate for a public office. Since political party and candidate for office are the only categories mentioned, the legislature patently intended to restrict such political activity to partisan politics alone. Consequently a person in the classified service is free to obtain funds for political organizations non-partisan in nature and not be in violation of this statute.

Now, if a person in the classified service may engage in the solicitation and receiving of funds for political organizations serving nonpartisan political causes, it would be highly inconsistent for the legislature to say to the same person that he cannot serve as an officer of such political organization. It seems to us, therefore, that the legislature, in prohibiting a person in the classified service from acting as an officer in any political organization, used the word political in its narrow sense and intended that it have a limited and restrained meaning in the expression, political organization. In this sense it connotes a body serving partisan politics.

Inasmuch as the word political in the mentioned instances has a narrow and restrained, rather than a broad and general sense, the legislature manifestly intended that the word politics have a similar connotation Black on Interpretation of Law (2nd Ed.) says at page 196:

“It is a familiar rule of statutory - construction that general terms or provisions in a statute may be restrained and limited by specific terms or provisions with which they are associated.”

Chief Justice Bartley of the Supreme Court of Ohio in Teaff v. Hewitt, 1 Oh St 511 at page 544, stated that:

“A statute must be construed in reference to the subject matter of it, and its real object and true intent.”

and in Rhodes v. Weldy, 46 Oh St 234, parag. two of the syllabus the Supreme Court stated as follows:

“Where the same word or phrase is used more than once in the same act in relation to the same subject-matter, and looking to the same general purpose, if in one connection its meaning is clear and in another it is otherwise doubtful or obscure, it is in the latter ease to receive the same construction as in the former, unless there is something in the connection in which it is employed, plainly calling for a different construction.”

Moreover, if the legislature intended the expression “take part in politics” to have the all-inclusive and comprehensive meaning claimed by the defendants, there would be no purpose in including the particular provisions of the statute preceding it. In fact they would amount to mere surplusage.

Officers and employees in the classified service have families and are homeowners, taxpayers and civic-minded citizens of the community in which they live. They have the same interests in its welfare, and are just as public-spirited in contributing their efforts toward its development and growth as the citizens otherwise occupied. The legislature could have no purpose in curtailing the normal participation in community affairs of public servants beyond what was necessary to promote the efficiency, integrity and discipline of the public service.

The majority of this court therefore holds that the preparation, circulation and filing of an initiative petition by the individual plaintiffs in this case was not in violation of §486-23 GC (143.41 R. C.) and that the judgment of the Common Pleas Court with respect thereto should be and is reversed.

Plaintiffs in their second Assignment of Error say:

“The plaintiff Association is a necessary and proper party plaintiff together with the individual plaintiffs because all have a common interest in the subject of the action and when declaratory relief is sought all persons shall be made parties who have or claim any interest which would be affected by the declaration. Hence it was error for the trial court to dismiss the plaintiff association as a party because of its common interest which was affected by the declaration of the court.”

We believe the action of the trial court in this regard was not erroneous. The action in this case was brought by the individual plaintiffs “on behalf of themselves and others who are so numerous that it is impractical to bring them all before the court.” Clearly a class suit including all persons directly involved in the preparation, circulation and filing of the initiative petition The trial court found no actual controversy between the plaintiff Association and the defendants. It is plain there was none.

Defendants-appellees-appellants say in their cross appeal that the trial court erred in holding that the initiative petition and the proposed ordinance were not rendered void by the activities of the individual plaintiffs and that it erred in failing to hold that the Shaker Heights Council’s determination of the insufficiency of the petition was conclusive of the matter

In view of our holding that the preparation, circulation and filing of the petition by the individual plaintiffs herein was not in violation of State Law, the trial court’s judgment that neither the initiative petition nor the proposed ordinance were illegal or void must be and is affirmed. The question as to the conclusiveness of the action of the Shaker Heights Council in respect thereto requires further consideration on our part.

Defendants point out in their brief that “the Shaker Heights Charter provides that upon the filing of the preliminary petition looking toward the adoption of an initiative ordinance, ‘the council shall forthwith determine the sufficiency of the petition’ (Art. Ill, Sec. 1) and that it is stated in the petition and has never been controverted that the petition in the present instance was presented to the Council on January 26. 1953. was then referred to the Director of Law and the Clerk of Council ‘to determine its sufficiency,” that these officers reported to Council at a Special Meeting held on February 2, 1953 that the Director of Law reported the petition to be insufficient, giving his reasons and that the Council, upon the Law Director's recommendation, rejected the petition and in so doing, the Council discharged a duty which was committed to it by the Charter of the City.”

The law with respect to a legal body determining the sufficiency of a petition was laid down by the Supreme Court of Ohio in the case of State, Ex Rel. Gongwer, v. Graves, 90 Oh St 311, 107 N. E. 1018 syllabus 3:

“The secretary of state, when acting as state supervisor of elections, has the authority to hear and determine the sufficiency and validity of all petitions filed with him under the provisions of Section 1c of Article II of the Constitution of this state, and his decision thereon is final, unless such decision has been fraudulently or corruptly made or procured, or unless he has been guilty of an abuse of discretion.”

Under the facts of this case, there cannot be nor as a matter of fact are there any claims of fraud or corruption on the part of the Council of the City of Shaker Heights in its vote to reject the petition. The initiative petition was filed in fifty parts with the City Auditor as required by §4227-8 GC (731.34 R. C.). Each part contained a full and correct copy of the title and text of the proposed ordinance as required by Article III, Section I and 3 of the Charter of the City of Shaker Heights. Plaintiffs Heidtman, Schieferstein and Rafter filed their sworn statement as Circulators in accordance with the provisions of §4227-9 GC (731.35 R. C.). The Board of Elections of Cuyahoga County reported sufficient genuine signatures of registered electors of the City of Shaker Heights to comply with the requirements of its Charter.

It, therefore, appears that the individual plaintiffs had complied with all applicable provisions of the Charter of the City of Shaker Heights and the Laws of the State of Ohio. Under such circumstances the Council of the City of Shaker Heights had the clear duty to declare this petition sufficient and at once have the proposed ordinance read and referred to an applicable committee which may be a committee of the whole as provided for in Art. 3 Section 1 of the Charter.

We consequently hold that the judgment of the Common Pleas Court that “the defendants could not refuse to recognize the validity of the initiative petition and. therefore, improperly failed to process and continue proceedings on the petition in violation of the Charter provisions of the defendant City of Shaker Heights” was not in error and should be and herewith is affirmed. To hold the petition insufficient under these circumstances would amount to an abuse of discretion.

Judgment reversed in part and affirmed in part as indicated in this opinion. Exceptions. O. S. J.

HURD, PJ, concurs.

SKEEL, J, dissents.

DISSENTING OPINION

No. 23068.

Decided May 12, 1954

OPINION

By SKEEL, J.

I dissent for the reason that the prohibition against civil service personnel engaging in politics under the provisions of §143.41 R. C., was violated by the plaintiffs in circulating initiative petitions among the electors of the City of Shaker Heights and seeking to induce such electors to sign the same, and for that reason the City Council did not abuse its discretion in holding that the petitions were not sufficient under the provisions of the Charter of the City of Shaker Heights.


author: By HARTER, J.

text:
    GANSON, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 185706.
    Decided February 25, 1953.
    Cedric Vogel, Cincinnati, for appellant.
    C. William O’Neill, Atty. Geni., Ralph Mahaffey, Asst. Atty. Geni., Columbus. for appellee.
   OPINION

By HARTER, J.

ORDER OF BOARD OF LIQUOR CONTROL (REVOKING C-l AND C-2— CARRY OUT PERMITS)---AFFIRMED.

By this appeal under §154-73 GC, appellant seeks to reverse an order of the Board of Liquor Control which revoked his C-l and C-2 (Carry out) Permits of his Super-market in Cincinnati, Ohio.

The record shows that on May 24, 1952, an inspector for the Department of Liquor Control entered appellant’s store (which was operated on appellant’s behalf by a son, Norman Ganson) and told a 14 year old ooy who was working there that he, the inspector, was in a hurry and asked the boy to hand him a carton of beer from one of the shelves. The boy did so. Thereupon, the permit holder was cited for violation of Regulation No 56, of the Ohio Board of Liquor Control. That Regulation, so far as material, is:

“No person under the age of twenty-one years shall .be employed for or permitted by any permit holder to participate in any manner whatsoever in the handling * * * of malt liquor * * *: nor shall any person under the age of eighteen years be * * "• permitted by any permit holder to participate in any manner whatsoever in the handling * * * of beer.”

Through a misunderstanding and illness, no one appeared on appellant’s behalf at the hearing before the Board of Liquor Control. The order of the Board at the hearing was complete revocation, not mere suspension, of the carry-out permits.

On this record, we feel we are justified in observing that the order of complete revocation seems unduly harsh and a most severe penalty. However, this Court is, we believe, wholly without power to modify the penalty; rather it is our clear duty to affirm the Liquor Board’s order because, quite obviously, there is, in this record, “reliable, probative and substantial evidence” to support the order. The quoted language is from §154-73 GC, as amended in 1951. Under the language of that statute, as added in the 1951 amendment, it is only when the reviewing court does not find such supporting evidence that the Court has power to consider reversal or modification of the order appealed from. As we see it, “abuse of discretion” is no longer a test on judicial review of an agency’s order under the Administrative Procedure Act.

Sorry as we are (In that “revocation,” rather than “suspension,” is the penalty here) we must affirm the order here.


author: By MILLER, J.:

text:
    STATE, ex rel CUTSHAW, Plaintiff-Appellant, v. SMITH, Sheriff, Defendant-Appellee. STATE, ex rel. HOKE, Plaintiff-Appellant, v. SMITH, Sheriff, Defendant-Appellee.
    Ohio Appeals, Second District. Montgomery County.
    Nos. 2226, 2227.
    Decided April 16, 1953.

      Alfred W. Rothenberg, Dayton, for plaintiff-appellant, William K. Cutshaw.
    Curtner, Brenton & O’Hara, Mr. Lloyd H. O’Hara, of Counsel, Dayton, for plaintiff-appellant Donald Hoke.
    Mathias H. Heck, Prosecuting Attorney, by Mr. Fred M. Kerr, 1st Asst. Prosecuting Attorney, Dayton, for defendant-appellee.
   OPINION

By MILLER, J.:

These are law appeals from the judgments of the Common Pleas Court dismissing the relators’ petitions for writs of habeas corpus. These allege that the plaintiffs are unlawfully imprisoned by virtue of warrants signed by the Governor of the State of Ohio.

The record reveals that requisitions were issued to the Governor of Ohio by the Governor of the State of Georgia for the extradition of these petitioners who were charged with being fugitives from justice, alleging the crimes of burglary as appear by copies of the indictments duly authenticated and attached to the requisitions; that in response to said requisitions a writ was isssued by the Honorable Frank J. Lausche, Governor, commanding the Sheriff of Mongomery County to arrest each of the petitioners and comply with a certain stated procedure before delivering them into the custody of the authorities from the State of Georgia. The plaintiffs are now in the custody of the respondent, Sheriff of Montgomery County.

The first question presented is the sufficiency of the petition filed with the Governor of Georgia, it appearing that the same was not verified by affidavit. Such a verification is required under Ohio law by §109-23 GC, and it is agreed that Georgia has a similar statute. Does such an irregularity void the extradition issued by the Governor of Ohio? The extradition of fugitives from justice is controlled by the Constitution of the United States and the enabling statutes passed by Congress. Section 2, Article IV of the Federal Constitution, in part, provides as follows:

“A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.”

The Congress, upon the authority of Section 2, Article IV, passed Title 18, Section 662, U. S. Code, to provide the procedure for carrying into effect such constitutional provisions. Title 18, Section 662, U. S. Code reads as follows:

“Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state, or the territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.”

In addition to the Federal enactment thirty-one of the states have enacted a “Uniform Extradition Act” which is found in the §109-1 GC et seq. It will be noted that 109-2 GC recognizes that in case of a conflict with Ohio laws the Federal enactment shall control. This section provides:

“Subject to the provisions of this act, the provisions of the constitution of the United States controlling, and any and all acts of Congress, enacted m pursuance thereof, it is the duty of the governor of this state to nave arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.”

In Ex parte Sheldon, 34 Oh St 319, the Court held that when the Federal and state laws are not the same, the law of this state would have to give way. In examining the requirements set forth in Title 18, Section 662, U. S. Code, it appears that all essential elements have been set forth in the requisition issued by the Governor'of Georgia, to wit:

(1) A demand is made for the petitioners who were charged with being fugitives from justice.

(2) Certified copies of the indictments are produced charging felonies.

(3) The same are certified as being authentic by the Governor of Georgia.

It therefore became the duty of the Governor of Ohio under the facts presented to honor the requisitions and cause the arrests to be made.

An additional question is presented in the case of William K. Cutshaw, it appearing that he was under indictment in this state on two felony charges at the time of the filing of the requisition with the Governor It is urged that under §109-19 GC, the Governor had a discretion to exercise, either to surrender him to Georgia or hold him for trial in this state. The cited Code section provides:

“If a criminal prosecution has been instituted against such person under the laws of this state and is still pending the governor in his discretion either may surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state.”

We have no record of the proceedings before the Governor, hence the record is silent as to what knowledge he might have had concerning the indictment pending against the petitioner. In the absence of such showing clearly no duty could have been imposed upon him. The statute was not enacted for the benefit of the fugitive from justice but for the State of Ohio, and he should not be permitted to complain if the Governor had no such knowledge. Should the plaintiff be of opinion the Governor would have acted differently if he had had this information, he has had ample time to so inform him and the same still may be done. As long as the fugitive is in custody of the Ohio authorities the Governor may recall his warrant of arrest or issue another one as he deems proper Sec. 109-1 GC. Therefore if any error has been committed because of the failure to exercise discretion, and we find none has, the same could not be prejudicial.

Finding no error in the record, both judgments will be affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


author: By THE COURT.

text:
    STATE, ex rel HOWE CONSTRUCTION COMPANY, Relator, v. MOYER, Dir. of Dept. of Public Works, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4944.
    Decided September 25, 1953.

      Nelson Hovey, Akron, Dominic A. Olivo, Cuyahoga Falls, for relator.
    Hon C. William O’Neill, Attorney General, Hugh A. Sherer, George C. McConnaughey, Jr., Assistant Attorneys General, Columbus, for respondent.
   OPINION

By THE COURT.

Submitted on motion of the respondent seeking an order dismissing the petition and rendering a judgment in it's favor on the pleadings. The action is one in mandamus wherein relator seeks an order demanding the respondent to prepare and furnish an order on the Auditor of the State of Ohio for the payment of $2688.20 in its favor

The petition after setting forth the capacity of the parties, alleges that on or about the 29th day of November, 1949, relator entered into a written contract with the respondent for the construction of four certain buildings for the sum of $54,316.00; that said construction has been completed and that there is a balance due of $2688.20 for which the respondent has failed, neglected and refused to place an order with the Auditor of the State of Ohio for the payment of said sum.

To the petition an answer has been filed in which the respondent admits the contract as pleaded and the refusal to place an order with the Auditor of State for the payment of same.

Four separate defenses are then set up in which the respondent denies all the allegations in the petition not specifically admitted to be true; alleges that the relator failed to complete certain buildings in accordance with the plans and specifications in certain respects; alleges that by reason of relator’s failure and refusal to complete the said construction the State of Ohio suffered damages in certain respects; alleges that the claim, is uncertain and indefinite in amount and for such reason the extraordinary remedy of mandamus does not lie.

It is apparent from the pleadings that relator’s claim is not liquidated and that its very existence is in dispute. Sec. 12283 GC, defines mandamus. It reads:

“Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

It is well established that mandamus may be resorted to only when the right to the relief sought is clear. 25 O. Jur. 997, and cases cited. The duty must be actually ministerial at the time the application seeking its performance is made. Summit County Board of Education v. State, 115 Oh St 333. The respondent herein is vested with the discretionary power of determining whether or not the relator has complied with all of its contractual obligations The contract rights may not be determined in mandamus but can only be settled in actions at law. City of Mount Vernon v. State, ex rel Berry, 71 Oh St 428.

The principle that an unliquidated claim will not be adjudicated in a mandamus proceeding is clearly set forth in 34 Amer. Jur. 943:

“The general rule that mandamus will not lie to enforce contract rights is held to be ground for denying a writ of mandamus to enforce a claim against a public corporation growing out of contract, where the performance of the contract by the relator and the amount and vitality of the claim are disputed.”

Also, in 55 Corpus Juris Secundum, 85, the text provides:

“The primary purpose or function of a writ of mandamus is to enforce an established right, and to enforce a corresponding imperative duty created or imposed by law. It is designed to promote justice; and, for the furthance of justice, it is subject to certain well-defined qualifications. Its principal function is to command and execute, and not to inquire and adjudicate, and, therefore, it is not the purpose of the writ to establish a legal right, but to enforce one which has already been established.

See, also, State, ex rel Wilcox, v. Woldman, Dir. 157 Oh St 264, and Williams, Dir., v. State, ex rel Gibben, 127 Oh St 398, wherein the same legal principles are sustained.

The motion will be sustained and judgment rendered in favor of the respondent.

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


author: By BIRRELL, J.

text:
    MIGLIOZZI et, Plaintiffs, v. GIRARD (City) et, Defendants
    Common Pleas Court, Trumbull County.
    No. 63078.
    Decided April 1, 1954.

      Clarence H. Klinger and Joseph A. Luarde, Warren, on behalf of plaintiffs.
    Reed S. Battin, Warren, City Solicitor of Girard, on behalf of defendants.
   OPINION

By BIRRELL, J.

The only question presented to the Court in this case is the claim of the Plaintiffs that the meeting of June 29th, 1953 was not a properly called meeting and that therefore the action of the Council in passing Ordinance No. 2176 for the issuance of one million dollar mortgage revenue bonds of the City of Girard, Ohio was not properly passed upon by the City Council, and is, therefore, not in force nor effect. No question is raised regarding the content of the Ordinance nor is there any claim that the persons who attended the meeting were not the duly elected, qualified and acting officers of the City of Girard, nor is there any dispute that these officers did meet together, and that six of the Councilmen, were present, together with the President of Council and the Mayor and others, and that upon proper motions five of the six voted both to take the Ordinance from the table, to give it its third reading, and to pass the Ordinance at this meeting of June 29th.

In claiming that the meeting was irregular the Plaintiffs cite §4239 and §4273 GC, which were in force and effect at the time complained of, and which read as follows:

“Sec. 4239, GC. Regular meetings. The Council shall not be required to hold more than one regular meeting in each week, and the meetings may be held at such time and place as is prescribed by ordinance and shall, at all times, be open to the public. The mayor, or any three members may call special meetings upon at least twelve hours’ notice to each member, served personally or left at his usual place of residence.”
“Sec. 4273 GC. Acting Mayor. When the mayor is absent from the city, or is unable for any cause to perform his duties, the president of the Council shall be the acting mayor. While the president of the City Council is acting as Mayor, he shall not serve as president of Council.”

The evidence in this case is that the City of Girard, after some extensive urging by the State of Ohio, had gone forward with legislation for the construction of a sewage disposal plant but at this time bad not provided any money for its construction. The Ordinance No. 2176 providing for the issuance of Bonds to raise the money had been prepared and introduced into Council, a.nd given its first reading at the regular meeting of May 25th, 1953. It was given its second reading at the regular meeting of June 8th, 1953, and would have been given its third reading at the regular meeting of June 22nd had not some of the citizens appeared and protested whereupon the Ordinance was laid on the table at this meeting. The City of Girard received notice from the Attorney General of Ohio that their permit to empty sewage into the Mahoning River would expire on July 1st unless further action was taken toward the construction of the sewage disposal plant. Councilman Fynes, chairman of the Sewer Committee believing that action should be taken upon the Bond Ordinance before the first of July in order to qualify the City for an extention of the Permit, called the members of his committee who decided that a special meeting should be called for Monday evening, June 29th. On Friday June 26th Councilman Fynes attempted to secure the mayor to call a special meeting, but found that the Mayor was out of town. (It appears that he was in Columbus). He then secured the Safety Director, Mr. Reese, to take him to Youngstown where Mr. Clinton, President of the Council was working, and where he explained the situation to Mr. Clinton. Mr. Clinton thereupon called the Clerk of Council, Mr. Morse, in Girard, and directed him to issue a written call for the meeting of June 29th. which written notice was served by the Police Department upon the members of Council.

The first objection of the Plaintiff is that the President of Council had no authority to call this special meeting. §4273 GC above mentioned states that “when the Mayor is absent from the City the President of Council shall be the Acting Mayor”. Since Mayor Catone was in Columbus which is substantially one hundred and seventy miles from the City of Girard, and was absent from the City,-this Statute appears to make the President of Council the Acting Mayor. It should be noticed that the Statute is positive, and uses the words “shall be.” That the President of Council becomes vested with all the powers of the Mayor in the absence of the Mayor has been determined in the following cases:

State of Ohio v. Lauser, 111 Oh St 23 and Ambos v. Campbell, 40 Oh Ap 346.

The evidence given by Mr. Clinton at the hearing indicated that he did not know that the Mayor Catone was out of town, although the evidence of Mr. Fyne and Mr. Reese was positive that they had told him of the May- or’s absence. It would seem that Mr. Clinton would hardly have ventured to slap his Mayor in the face by issuing a call for the meeting had he not known that the Mayor was absent from the City. Consequently the presumption and the inference must be that the President of Council knew what he was doing.

Secondly it is claimed that the notice was entitled “Mr. Clinton, President of Council” instead of “Acting Mayor”. If, as is indicated above, the President of Council became the Acting Mayor by authority of the Statute, it makes no difference how Mr. Clinton entitled himself in the call for the meeting State v. Lauser supra. The call for the meeting was actually issued by the City Auditor and Clerk of Council upon the telephone call from Mr. Clinton Possibly Mr. Clinton failed to indicate to the Clerk exactly how he desired his authority to be mentioned in the call. Possibly the Clerk mis-interpreted the directions, if any were given in this respect. At all events the call was sent out in writing and the officers of the City met at the time and place mentioned and proceeded to transact the business. No question was raised about the authority of the meeting at that time.

In the third place the claim is made that the call for the special meeting indicated that a discussion only would be had, and that it gave no authority for the Council to read or pass the Ordinance at the special meeting. The call was in the following form:

“Request of Mr. Clinton, President of Council. There will be a special meeting of Council at the City Building at 8 P. M. Monday night, for the purpose of further discussion for action of the Sewage disposal bond.”

It will be noticed that the meeting was called “for the purpose of further discussion for action of the sewage disposal bond.” The words “for action” were included in the call Consequently the meeting must have been for both “discussion” and “action" The Court can hardly understand how the term “for action” could have crept into the notice unless the President of Council had authorized the call to be issued in these words.

There is nothing in the statutes indicating in what form the notice of a special meeting shall be given nor does this question appear to have been decided in any of our Courts. McQuillin Municipal Corporations, 3rd Ed. Vol 4 Sec. 13.13 p. 450 reads as follows with foot notes indicating cases giving authority for the text which follows:

“A notice is sufficiently definite which states the object of the meeting to be to see what sum of money the town will vote to raise for the support of schools, of the poor, repairing bridges and highways, for the payment of the just debts of the town, and for other legal purposes. Under a warrant * * *' to see if the town will make an appropriation towards purchasing a fire engine, the town may pass a vote to raise and appropriate a sum for that object. So, under a warrant to see if the town will determine to build a town house and raise and appropriate money for the same, a vote to build a town house will be valid. Likewise, a warrant convening a meeting, to ascertain if the town would vote to pay a number of town notes, which specifies each note and gives the name of the payee, amount and date, is sufficient.”

. The foregoing authority would indicate that the text of the President of Council’s notice “for the purpose of further discussion for action of the sewage disposal bond” should have been sufficient to notify the members of Council that action might be taken at this special meeting.

The fourth objection is that the notice as above set forth did not indicate on which Monday night the meeting would be held. Inasmuch as all of the officers and members of Council, with the exception of one, appeared to understand the notice, and appeared at the meeting, and took part in the meeting without objection, the Court could not give much credit to this objection.

Lastly it is objected that the final sentence of §4273 GC above invalidates the action of the President of Council who presided at the meeting of June 29th. The evidence is that Mayor Catone was present in the City of Girard, and at this Council meeting. Consequently Mr. Clinton, President of Council was not acting as Mayor at that time. There was, therefore, nothing to prevent him, at that time, serving as President of Council.

In addition to the matters heretofore set forth the reviewing Courts of the State of Ohio have held that where a quorum of a legislative public body comes together and transacts business, even without notices to absent members, such transaction may be valid. §4238 GC specifically provides “Council shall determine its own rules and keep a Journal of its proceedings ” There is no showing in this case that any rules of the City of Girard Council were violated in convening the meeting, or the actions of the Girard City Council, on June 29th, and for aught that appears, the action of the meeting on June 29th was approved at the following regular meeting. Article 18, §3 of the Constitution of Ohio defining the powers of Municipalities states “Municipalities shall have authority to exercise all powers of local self government * * * The issuance of bonds for the construction of the sewage disposal plant was a matter of local self government, and as long as the proceedings were in accordance with the general laws governing the method of approving such Ordinance there appears no reason why a quorum of the Council and the officers of the City should not come together by agreement to adopt legislation for the benefit of the Municipality That the Courts approve such action is shown by the following cases:

State Ex Rel v. Bowers, 4 C. C. N. S. 345: Affirmed by Supreme Court 2/16/1904; Young v. Rushsylvania, 8 C. C. 75; Ohio Ex. Rel v. Trustees, 20 Oh St 288; Cupp v. Commissioners, 19 Oh St 173; State Ex Rel v. Higham, 35 Oh Ap 243.

The Court is therefore of the Opinion that the objections of Plaintiff are insufficient and that the officers and members of Council of the City of Girard had'■the authority to pass such Ordinance at the meeting of June 29th, 1953, and a Journal may be so drawn. If appeal is desired, bond is fixed at $300.00.