author: By BELL, PJ.

text:
    DOMBEY, In re.
    Common Pleas Court, Franklin County.
    No. 189110.
    Decided July 3, 1954.

      James M. Hengst, John W. King, William L. Schmidt, Columbus, Committee for the Bar Association.
    John J. Chester, Columbus, for Alex S. Dombey.
    (BELL, J, of Hamilton County, sitting by assignment in Franklin County.)
   OPINION

By BELL, PJ.

The Columbus Bar Association, after receipt of two complaints, brought to the knowledge and attention of the judges of this court that Alex S. Dombey, in his office as an attorney at law, probably had been guilty of misconduct or unprofessional conduct involving moral turpitude.

In pursuance to the requirement of the statute (§4705.02 R. C.), the court appointed James M. Hengst, John W. King and William L. Schmidt, three attorneys at law, as a committee to investigate the matter, and if the facts warranted action, to prepare and file written charges against' the accused.

On January 18, 1954, the committee filed with the clerk of courts written charges and specifications against Dombey. The charges read:

CHARGE 1.

“That the said Alex S. Dombey now is and was at the times hereinafter set forth an attorney-at-law duly admitted to practice as such in all the courts of this state and practicing in this court and that as such attorney-at-law he was at the times and in the manner hereinafter set forth guilty of misconduct in his said office as an attorney-at-law involving moral turpitude.

CHARGE 2.

“That the said Alex S. Dombey now is and was at the times hereinafter set forth an attorney-at-law duly admitted to practice as such in all the courts of this state and practicing in this court and that as such attorney-at-law he was at the time and in the manner hereinafter set forth guilty of unprofessional conduct involving moral turpitude.”

Seven specifications were filed setting forth the claimed acts upon which the charges were based.

Nine days thereafter, Dombey, as respondent, filed an answer, in which, after admitting that at all times mentioned in said charges he was an attorney at law, he denied the charges.

On March 30, 1954, by leave of court (the Presiding Judge not participating), the committee filed an “Amendment to Charges and Specifications” consisting of fifteen additional specifications of acts of alleged misconduct or unprofessional conduct involving moral turpitude.

Subsequent thereto, at the request of the judges of the court, Chief Justice Weygandt of the Supreme Court of Ohio appointed Honorable Albert V. Baumann, Judge of the Court of Common Pleas of Sandusky County, Honorable John W. Ford, a Judge of the Court of Common Pleas of Mahoning County, and the writer, a Judge of the Court of Common Pleas of Hamilton County, to hear and determine these charges. The charges were heard by those judges, sitting by assignment as Judges of the Court of Common Pleas of Franklin County.

The charges are bottomed upon the provisions of §4705.02 R. C. (§1707 GC), which grants authority to Courts of Common Pleas in this state to hear and determine a proceeding for suspension or removal of an attorney from his office. That section reads as follows:

“The Supreme Court, Court of Appeals, or Court of Common Pleas may suspend or remove an attorney at law from office or may give private or public reprimand to him as the nature of the offense may warrant, for misconduct or unprofessional conduct in office involving moral turpitude, or for conviction of a crime involving moral turpitude. Such suspension or removal shall operate as a suspension or removal in all the courts of the state. The clerk of court upon such suspension or removal shall send a copy thereof to the Supreme Court, the Court of Appeals and to the federal court of the district in which said attorney resided at the time of the trial for such action as is warranted. Judges of such state courts are required to cause proceedings to be instituted against an attorney, when it comes to the knowledge of any judge or when brought to his knowledge by the bar association of the county in which such attorney practices that he may be guilty of any of the causes for suspension, removal, or reprimand.” (Emphasis supplied.)

Before proceeding to a consideration of the evidence, there are four preliminary questions to be resolved. Each will be disposed of in the order stated:

1. Has the court jurisdiction to hear and determine these charges?

2. Has this court inherent power to reprimand, suspend or disbar an attorney at law, irrespective of the statute?

3. Has the committee the right to call the respondent and proceed to examine him as upon cross-examination?

4. Is the testimony contained in depositions competent to be read in evidence upon the trial of a disbarment proceeding?

At the conclusion of the opening statement of the committee, counsel for respondent made an oral motion that the court dismiss the charges upon the ground that the court had no jurisdiction to proceed with the hearing (R. 11). The motion at that time was overruled, with permission to renew it at the conclusion of all the testimony. Such motion was so renewed, both at the conclusion of the testimony offered by the committee (R. 1000), and at the conclusion of all the evidence (R. 1153).

The argument advanced by respondent was that the charges and specifications, assuming them to be true, do not constitute misconduct or unprofessional conduct involving moral turpitude.

1. JURISDICTION.

Jurisdiction of a court consists of three component parts: (a) Jurisdiction of the subject matter; (b) jurisdiction of the parties; and (c) jurisdiction to enforce its judgment.

In the instant case, jurisdiction of the subject matter is specifically conferred by the statute (§4705.02 R. C.).

Jurisdiction of the person clearly appears from the record. Respondent filed an answer and appeared in person and with counsel at the hearing.

Jurisdiction to enforce any judgment which the court may enter cannot be successfully challenged.

The conclusion is inescapable that this court has full and complete jurisdiction in this proceeding.

The question of whether the charges and specifications and the evidence adduced in support thereof constitute or establish misconduct or unprofessional conduct involving moral turpitude is the ultimate question to be decided. That question in no way involves the question of jurisdiction. Even though respondent’s motion be considered as a general demurrer, it is not well taken. Hence, the motion to dismiss will be overruled.

2. INHERENT POWER.

The question of inherent power is unnecessary of decision in the instant case.

The court has carefully examined the case of In re Thatcher, 80 Oh St 492, wherein it was held (paragraphs one and two of the syllabus) that the courts of Ohio do have such inherent power. Likewise, we have considered In re Hawke, 107 Oh St 341, wherein it is stated in the opinion that the courts of Ohio have no such inherent power (pages 349 and 350). No question of inherent power was involved in the Hawke case.

The Hawke case was decided fourteen years after the Thatcher case, yet no mention of the Thatcher case was made in that case. The pronouncements in the Thatcher case have never been overruled, and in view of the facts that those pronouncements are found in the syllabus, and that the statement in the opinion in the Hawke case is pure obiter, we conclude that the Thatcher case is still the law of Ohio. However, the instant case was instituted, has been heard and is being decided as a proceeding under the statute.

3. RIGHT OF COMMITTEE TO CALL RESPONDENT AND PROCEED AS ON CROSS-EXAMINATION.

At the commencement of the hearing the court was confronted with the question of the right of the committee to call respondent and proceed as upon cross-examination.

This is a special statutory proceeding, which is neither a civil action nor a criminal prosecution, but partakes of some of the attributes of each. It is the established law of this state that the statute is penal in its nature, must be strictly construed in favor of the accused, and that the evidence must be clear and convincing to establish guilt.

No Ohio case has been called to our attention wherein the question of the right of a committee to call a respondent in a disbarment proceeding and proceed as on cross-examination has been determined. The cases in other jurisdictions are not uniform, some courts have concluded that a proceeding to disbar an attorney is a criminal prosecution, and others that it is a civil action.

Sec. 2317.07 R. C. (§11497 GO reads in part as follows:

“At the instance of the adverse party, a party may be examined as if under cross-examination, orally, by way of deposition, like any other witness * *

That section supersedes the common-law action known as a bill of discovery. (In re Berger, 13 Oh Ap 206, affirmed, 101 Oh St 512.)

The section permits the calling of the adverse party to elicit facts within the knowledge of the party called, and unknown to the party calling the witness, essential to make out a cause of action or a defense. (See In re Schoepf, 74 Oh St 1, at page 14.)

We think that the committee had no right to call and examine respondent as if under cross-examination. There were no facts unknown to the committee, which were elements essential to making out a case.

4. DEPOSITIONS.

Respondent asserts that the testimony contained in the depositions is not competent. The committee asserts that the court has heretofore decided that question when it granted permission to take such depositions. With the contention of the committee the court does not agree. True, the court granted permission to take depositions, but we have been unable to find anything in the record to indicate that the court has heretofore passed upon the question of the admissibility of the testimony contained therein. The right to take depositions is granted by the statute, and is not dependent upon permission of the court. The right to take depositions should be carefully distinguished from the right to read the testimony contained therein at the trial. (See In re Raug, 65 Oh St 128, and Gorman, Admx, v. The Columbus & Southern Ohio Electric Co., 144 Oh St, 593.) The question of the admissibility of testimony arises only when the testimony is offered, regardless of whether such testimony is oral, by affidavit, or by deposition,

It is the contention of the respondent that this is not an adversary proceeding — that there is no adverse party.

Sec. 2319.15 R. C., reads in part as follows:

“Written notice of the intention to take a deposition shall be given to the adverse party * * (Emphasis supplied.)

Upon this point the position of respondent is, to say the least, not consistent. At a preliminary hearing held in February, 1954, the respondent complained that he had not been notified that the court had appointed two investigators to assist the committee. The respondent, by his counsel, then argued that the proceeding was an adversary proceeding. The record further discloses that respondent was first to Invoke the statute authorizing the taking of depositions, and he served the committee as the adverse party.

The term, “adverse party,” has a legal signification, and it must be presumed that the General Assembly, in the enactment of §2319.15 R. C., and numerous other sections wherein the term, “adverse party,” is used, had in mind the legal meaning of the term.

The term “adverse party” embraces any party whose personal, property, or other rights may be adversely affected by the operation of the judgment or final relief sought in a legal proceeding. The caption of the proceeding is in no way controlling. (See 2 Words and Phrases [Permanent Ed.], 549 et seq., and numerous cases cited.)

Surely it cannot be seriously contended that the personal, property, or other rights of the respondent may not be adversely affected by the judgment in this proceeding.

We conclude that upon the filing of the charges, the committee and respondent became adverse parties.

Sec. 2319.29 R. C., provides:

“No exception to a deposition other than for incompetency or irrelevancy shall be regarded unless it is made and filed before the commencement of the trial.” (Emphasis supplied.)

The respondent failed to file any objection to the taking of the depositions, and also failed to file any exceptions in writing to the depositions prior to the trial. If, as he now claims, the depositions were not legally taken and could not be read in evidence, it was his duty, under the statute, to file his exceptions in writing before the commencement of the trial. His objection was not to the competency or relevancy of the testimony contained in the depositions, but to the legality of their taking.

We adhere to the ruling that it was proper to receive the competent and material testimony contained in the depositions.

We come now to a consideration of the evidence. No useful purpose would be served, and this opinion would be unduly lengthened by the setting forth of each of the twenty-two specifications filed in connection with the charges, and the testimony as it applies to each specification. The court will content itself with a narrative form statement of what the testimony clearly and convincingly establishes.

Respondent, Alex S. Dombey, was admitted to the bar of Ohio in 1929, and took the then existing oath as an attorney at law. He began to practice law in the city of Columbus, and until 1951 no official complaint was made of his conduct. In 1947 he was retained as attorney for the Legislative Cooperation Committee for the Transportation Brotherhoods, with a membership of about seventy thousand men employed by various railroads. Thereafter he devoted almost his entire time to the work of the .committee and the handling of railroad accident cases. That he was eminently successful in that line of endeavor is best attested by the fact that from 1948 to 1952, inclusive, he recovered from the railroads, for injured workmen and the families of workmen accidentally killed in railroad accidents, approximately two and one-half million dollars. He acquired many satisfied and enthusiastic clients.

In September 1947, Darwin E. Bennett (R. 120 et seq.) a man employed in the transportation department of the Pennsylvania Railroad was injured, and later that year he employed respondent to represent him in connection with that injury. During the pendency of Bennett’s claim against the railroad, and until the settlement of the case in 1948, respondent loaned Bennett considerable sums of money. During that time Bennett and respondent had some conversation with regard to solicitation of personal injury cases, at which time respondent told Bennett that, if he knew of any cases which he could get for respondent, he (Bennett) would be well taken care of. Bennett testified that later, while he and respondent were in Pittsburg, Pennsylvania, to see one Rogers, an injured railroad employee whom Bennett had solicited for respondent, it was agreed between Bennett and respondent that he (Bennett) was to receive a sum equal to five per cent of the recovery in each case he solicited.

Bennett’s first solicitation for respondent was the Rogers case. Respondent also paid the expenses of another man, named Moody, in an effort to secure the Rogers case. In his endeavor to secure the Rogers case Bennett made trips to a hospital in Steubenville, Ohio, and to Rogers’ home in Pittsburg, Pennsylvania. Rogers finally said that he would like to talk to respondent. The next day Bennett and respondent appeared at the home of Rogers in Pittsburg, Pennsylvania, and at that time and place respondent secured a contract of employment from Rogers, and advanced him one thousand dollars for living expenses, at the same time giving to Bennett a check for three hundred dollars.

The Rogers case is typical of the method employed between Bennett and respondent.

Bennett solicited numerous cases between the time of the Rogers case and 1951, when he and respondent had some dispute, Bennett claiming that respondent owed him a large sum of money over the amount of several hundred dollars which he had received. That' dispute led to Bennett’s visit to the chairman of the Grievance Committee of the Bar Association in 1951.

In 1949 one George F. Wolcott (R. 533 et seq.) employed in the transportation department of the New York Central Railroad was injured. He employed Carl Gugler, an attorney practicing in Galion, Ohio, to represent him. Wolcott became dissatisfied with Gugler’s services and went to see respondent, who told him that he (respondent) could not act in the case as long as Gugler was Wolcott’s attorney. After some conversation between Wolcott and respondent with reference to certain indebtedness due to Gugler from Wolcott, respondent advanced Wolcott the sum of five hundred dollars to pay the said debt, in order that Wolcott could employ respondent. This loan, according to Wolcott’s testimony, was made prior to the signing of any contract of employment between Wolcott and respondent.

During the pendency of that claim respondent advanced to Wolcott substantial sums of money and told him (Wolcott) that he could make a little extra money by talking to railroad friends who received injuries, and referring such cases to respondent. Wolcott proceeded to solicit numerous cases for respondent, and was paid varying amounts, totaling about seven hundred dollars.

In 1951 Wolcott moved to Omaha, Nebraska, and respondent told him to be sure and let him (respondent) know where he (Wolcott) was, in order that payment could be made on some of the business that Wolcott had brought in. Wolcott returned to Ohio in 1953, and called on respondent, saying that he was short one hundred dollars of having enough money to pay the trucking company for hauling his furniture back to Ohio. Respondent furnished the amount requested. Later Wolcott made a demand on respondent for money whidh he claimed was due him for solicitation of business. His inability to see respondent after the one hundred-dollar transaction, caused him in 1953, to make a sworn statement to the Grievance Committee of the Bar Association.

We have reviewed the testimony of Bennett and Wolcott in considerable detail, with a two-fold purpose. The complaints of these two men were the original source of the Bar Association’s action, and their testimony clearly discloses a course of conduct on the part of respondent in securing a large number of cases, which course of conduct continued for several years.

The record contains the testimony of numerous other injured persons who were solicited, some by paid solicitors, to employ respondent to represent them. Some oí those solicited did, and some did not employ him.

After the complaints by Bennett and Wolcott to the Grievance Committee, on October 1, 1953 respondent voluntarily appeared before that committee and made a statement (R. 963). In that statement respondent admitted paying money to Moody, Bennett and Wolcott, and to others in cases in which each, respectively, had a part in securing the injured person to employ respondent. It was stated by respondent at that time that the money was paid for investigational work. After hearing the testimony-of Bennett and Wolcott, together with the large array of other witnesses offered by the committee, the respondent rested his defense without taking the witness stand. Hence, the testimony as to solicitation offered by the committee at the hearing stands uncontradicted.

The court finds that the respondent was obtaining legal business through paid solicitors, and that course of conduct covered a period of at least three or four years.

The final and ultimate legal question to be resolved is whether or not solicitation of legal business through paid solicitors amounts to misconduct or unprofessional conduct involving moral turpitude.

There can be little dispute upon the proposition that solicitation of legal business through paid solicitors amounts to unprofessional conduct. Does it involve “moral turpitude”?

The statute does not define “moral turpitude,” and the term is almost impossible of exact definition. The phrase, “moral turpitude,” has been defined many times by courts, and often the definitions have been more confusing than enlightening.

The case against the respondent is built upon the proposition that solicitation of legal business by an attorney through paid solicitors amounts to misconduct or unprofessional conduct involving moral turpitude. That position is vigorously assailed by respondent. He contends that his course of conduct as shown by the evidence does not involve moral turpitude.

In this state the Supreme Court has exclusive power to admit persons to the practice of law. The General Assembly has recognized that power by the passage of §§4705.01, 4705.07 and 4705.99 R. C.

The power to promulgate and enforce rules of conduct is a necessary incident to the power to admit; if that were not true, then the courts would have no control over their own officers, and the practice of the law would cease to be a profession and become purely a competitive enterprise.

In the exercise of such power, the Supreme Court adopted rules of professional conduct. We are concerned with Rule XXVIII, which reads in part as follows:

“SECTION 1. These rules of professional conduct shall be binding upon all members admitted to practice law in the State of Ohio, and the wilful breach thereof shall be punished by reprimand, by suspension or by disbarment, as may be determined by any court of competent jurisdiction.
“The Canons of Ethics of the American Bar Association are commended; and nothing in these rules is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation thereof.
“SECTION 2. An attorney at law shall not advertise or otherwise solicit professional employment. This rule shall not apply to the publication or use of ordinary professional cards or conventional listings in legal directories and newspapers.
“SECTION 3. An attorney at law shall not employ another to solicit or to obtain or remunerate another for soliciting or obtaining professional employment for him.” (Emphasis supplied.)

There can be no question that respondent has wilfully and consistently violated that rule for a long period of time.

This case is reduced to the simple question: Does a wilful and persistent violation of Rule XXVIII constitute moral turpitude?

The phrase, “moral turpitude,” is found in many federal and state statutes. As used in the Federal Deportation Statute that phrase has been given one meaning; as used in connection with criminal acts another, meaning; and as used in disbarment proceedings a third meaning. (See 27 Words and Phrases [Permanent Ed.], 554 et seq., and cases cited; Bouvier’s Law Dictionary.)

There is a vast difference between securing business through the influence and efforts of friends, and securing it through the methods employed by the strictly commercial enterprise of hired agents.

There is also a difference between the unprofessional and undignified practice of personal solicitation of business and the indefensible and vicious practice of employing agents or runners to go about soliciting business. Some cases hold that personal solicitation, while unprofessional and undignified, does not involve moral turpitude; others hold to the contrary. However, the decisions throughout the country are practically uniform in condemning paid solicitation and disciplining the attorney involved. (See Smith v. State Bar of California. 211 Cal., 249; People, ex rel Chicago Bar Association, v. Berezniak, 292 Ill., 305; Chreste v. Commonwealth, 171 Ky., 77; In re Sizer, 306 Mo., 356; In re Thatcher, 80 Oh St 492; Maires’ Appeal, 189 Pa., 99; State v. Kiefer, 197 Wis., 524; In re Jacoby, 74 Oh Ap 147; In re Meck, 51 Oh Ap 237; In re Veach, 1 Ill. (2d), 264, 115 N. E. (2d) 257; Louisville Bar Assn. v. Mazin, 282 Ky., 743, 139 S. W. (2d), 771; In re Greathouse, 189 Minn., 51, 248 N W. 735; State, ex rel Sorensen, v. Goldman, 127 Neb., 340, 255 N. W. 32; In re Durham, 190 Okl., 588, 126 P. (2d), 69; In re Gorsuch, 113 Kan., 380, and 214 P. 794.

Rule XXVIII prohibits solicitation, and where an attorney disobeys a rule of the Supreme Court fixing the standard of professional conduct, and such disobedience is wilful and persistent over a long period of time, such course of conduct involves moral turpitude. (See Townsend v. State Bar of California, 210 Cal., 362; In re Attorneys of Sanitary District of Chicago, 351 Ill., 206.)

The evidence in the instant case is clear and convincing that respondent has been guilty of unprofessional conduct involving moral turpitude in two respects: (a) By solicitation of personal injury cases by and through paid solicitors; and (b) by respondent’s payment to Wolcott of five hundred dollars to get another attorney discharged from a case in order that respondent could be employed.

The last question to be answered is: What penalty is warranted under the facts?

The statute provides that the court shall take “such action as is warranted.” Rule XXVIII and the statute provide for punishment by “reprimand, by suspension or by disbarment.”

In determining the question of punishment the court has taken into consideration-: That this record fails to disclose any interference or attempt to interfere with the due administration of justise; that respondent was not dishonest in his dealings with any of his clients; that respondent has never tampered with a witness in any cause; and that from 1929 until 1951 respondent’s conduct as an attorney was never officially questioned.

We believe that the facts do not justify the disbarment of respondent, but do warrant his suspension from the practice for the period of one year from August 1, 1954, until July 31, 1955.

An entry may be drawn accordingly.

BAUMANN, J., of Sandusky County and FORD, J., of Ma-honing County, concur.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    NAGIE, a. k. a. NAGEY, Petitioner-Appellant, v. LANGLEY, Sheriff, Respondent-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No 3561.
    Decided April 1, 1953.
    Fred J. Gough, James M. Modarelli, Jr., Youngstown, for petitioner-appellant.
    W. A. Ambrose, Pros. Atty., H. H. Hull, Asst. Pros. Atty., Youngstown, for respondent-appellee.
   OPINION

Per CURIAM.

The Governor of the State of Ohio honored the requisition of the Governor of the State of Pennsylvania and issued a warrant ordering petitioner extradited to the state of Pennsylvania on the ground that he was an “alleged fugitive” from justice therefrom, where he was charged with committing burglarly.

The information in affidavit form as applicable reads:—

,,* * * on fog 12th day of April, 1952, unlawfully and willfully and maliciously enter the dwelling house of one Myer Wilkoff * * * in Mercer County, Pennsylvania, with intent to commit a felony therein * *

The respondent, Sheriff of Mahoning county, arrested petitioner under such warrant, and while he detained petitioner petitioner filed a petition in the court of common pleas praying for a writ of habeas corpus.

Upon hearing had, a judge of the court of common pleas dismissed petitioner’s petition and refused to issue the writ of habeas corpus for which he prayed.

Petitioner appealed from that judgment to this court on questions of law, and contends:—

“1. The court of common pleas erred in denying the writ of habeas corpus in that, after concluding that petitioner was not a fugitive from justice, erred in concluding that a finding that petitioner was a fugitive from justice was not a condition precedent to denying petitioner’s application; and
“2. For other errors occurring at the hearing for the writ of habeas corpus appearing on the face of the record.”

The trial judge found that “there is no evidence here that he was in Pennsylvania on that day. No evidence at all”; and that “* * * there is clearly no evidence here that this man (plaintiff) charged in Pennsylvania ever fled from Pennsylvania.”

Sec. 109-3 GC, Uniform Extradition Act, provides:—

“No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under section 6 (§109-6 GC), that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, ipformation, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.”

The record in this case shows that the information in affidavit form from the state of Pennsylvania charged the petitioner with the crime of burglarly, a felony.

Section 4901, Title 18, of the Penal Code of Pennsylvania, defines the crime of burglarly as follows:—

“Whoever, at any time, wilfully and maliciously, enters any building, with intent to commit any felony therein, is guilty of burglarly, a felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), -or to undergo imprisonment, by separate or solitary confinement at labor, not exceeding twenty (20) years, or both ”

Section 5105, Title 18, of the Penal Code of Pennsylvania, provides:—

“Every principal in the second degree or accessory before the fact, to any felony at the common law or under any act of Assembly may be indicted, tried, convicted, and if no punishment is provided, may be punished in all respects as if he were the principal felon.”

There is no evidence in the record before the common pleas court from which that court, or this, could find that the petitioner was guilty of the crime of burglarly as the principal felony, or the crime of being a “principal in the second degree or accessory before the fact of that felony.”

There is in such section of the Penal Code the following provision:—

“Every accessory after the fact to any felony at the common law or under any act of Assembly for whom no punishment is provided, shall be guilty of a misdemeanor and. on conviction, be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment, with or without labor, not exceeding two (2) years, or both.”

There is evidence in the record that the petitioner could properly be convicted of the misdemeanor denominated as an accessory after the fact, which we find to be an included offense in the crime of burglarly under the Penal Code of Pennsylvania.

The trial court was not authorized to dismiss the petition for a writ of habeas corpus upon the theory that -the accused was guilty of what under Ohio 'law would be considered an aider or abettor of the crime of burglary, but the dismissal of the petition was clearly authorized because the law of Pennsylvania, as distinguished from the law of Ohio, provides that one who is an accessory after the fact of the felony shall be found guilty of a misdemeanor, which is an element of and included in the felony charge.

Sec. 109-6 GC, provides for the extradition of one who has committed some act in the state of Ohio which has resulted in the commission of a crime in the demanding state, even though the accused was not in the demanding state at the time of the commission of the crime, and has not fled therefrom.

The evidence here sufficiently shows that the petitioner is guilty of the crime of an accessory after the fact under Section 5105 of the Pennsylvania Criminal Code, in that he' was found in possession of the property, or a p'art thereof, which was procured as a result of the burglarly in Pennsylvania.

Under such circumstances §109-6 GC, clearly authorizes that petitioner be extradited in accordance with the warrant issued by the Governor of the state of Ohio, and the common pleas court of Mahoning county was not in error in dismissing the petition for a writ of habeas corpus, and the judgment of that court must be and is affirmed.

GRIFFITH, PJ, PHILLIPS & NICHOLS, JJ, concur.


author: By BARTLETT, J.

text:
    STATE, ex rel. WOLLETT, Relator, v. OESTREICHER et, Respondents.
    Common Pleas Court, Franklin County.
    No. 187269.
    Decided May 25, 1953.

      Thomas Applegate, for relator.
    Richard W. Gordon, City Atty., J. Raymond Snowden, Asst. City Atty ...Columbus, for respondents.
   OPINION

By BARTLETT, J.

WRIT OF MANDAMUS ORDERED TO ISSUE IN ACCORDANCE WITH PETITION.

The petition recites that the Relator is the owner of 13.313 acres of land in Clinton Township as described therein; that on February 18, 1953, Relator submitted a plat of the premises to the Respondents as the Planning Commission of the City of Columbus; that on February 19, 1953, the Respondents deferred consideration of said plat; that on April 3, 1953, in answer to a request by Relator that said plat be approved or disapproved, the Respondents reaffirmed their previous action and further deferred consideration of said plat; and prays for a writ of mandamus, commanding the Respondents to issue a certificate as to the date of the submission of the plat to the Respondents and their failure to approve or disapprove the same within thirty days as required by §3586-1 GC.

The answer of Respondents admits Relator submitted a plat of the premises on February 18, 1953; for the consideration of Respondents and tentative approval; that on February 19, 1953, Respondents considered said plat and deferred consideration thereof; that prior to February 18, 1953, the city council of Columbus had by resolution ordered appraisals to be made of the' premises and other real estate in its vicinity to be acquired by the city for public park purposes; that on February 24, 1953, the Relator was advised that Respondents deemed it wise to defer consideration of said plat since city council had declared its intention to purchase said land for park purposes; that on March 24, 1953, Relator requested the Respondents to issue a certificate as to the date of submission of said plat and the failure of Respondents to take action thereon; and that on April 3, 1953, the Relator was again advised of the previous action of Respondents; that said plat was picked up on February 20, 1953, by counsel for Relator; that contrary to the rules of the City Planning Commission, after filing his tentative plat, said Relator has not presented a final plat in the form required by said City Commission; and. therefore, has not exhausted his administrative remedy by filing the final plat

The evidence at the trial was generally in accordance with the pleadings, except that it was clearly established that the plat filed remained in possession of Respondents. One of the Respondents under oath admitted that they did not intend to act on said plat until compelled to, and that their action would be delayed as long as possible.

Sec. 3586-1 GC, is the controlling section as to plats in the present case. This section of the code provides in substance that no plat of land in the city or within three miles of the corporate limits thereof, shall be recorded until approved by the City Planning Commission with its approval endorsed thereon. Provided, however, such approval or refusal to approve, shall be within thirty days after submission of the plat; otherwise it shall be deemed approved, and a certificate as to the date of the submission of the plat and the failure to act thereon within such time shall be issued on demand, with the ground of refusal or approval noted on the records of Respondents as the City Planning Commission.

Sec. 3586-1 GC, supra, does not recognize or require, tentative approval of plats, or tentative and final plats (emphasis ours); and the City Planning Commission cannot by rules and regulations limit or extend the terms of the statute. The only remedy of the commission is to refuse to approve the plat if it does not comply with the rules and regulations of the commission. The Planning Commission cannot defer action on the plat submitted more than thirty days; otherwise it will be deemed approved; and thereupon it is mandatory that the certificate of the planning commission, on demand, shall be issued showing the date of submission of the plat and its failure to act thereon.

It must be borne in mind that the city council has not adopted a resolution declaring its intention to appropriate this land by eminent domain for park purposes, in which event, “the property was set apart for a particular purpose in exclusion of all others and in that sense was appropriated." Euclid (city) v. Vogelin et al., 54 Abs 389. Under such circumstances, the Relator would not be deprived of his land or the use thereof, without compensation as required by the constitution of Ohio.

In fact the city council of Columbus has no legal authority to acquire the land in question by eminent domain, since this land is not in the city or contiguous thereto. Secs. 3678 and 4060 GC. If this land is acquired by the city for park purposes, it must be by purchase; and the resolution of council merely declares its intention to purchase this land for such purpose. Such procedure does not assure the Relator of compensation in depriving him of the use of his property; and, therefore, the planning commission must be held strictly to the terms of the statute.

The acquiring of land for parks is generally accepted today as a highly laudable and most desirable program for our progressive cities; but this does not authorize planning commissions to trifle with the vested rights of property owners. It does not lend tolerance to the whims of such a group of men, which results unreasonably in depriving the owner of the use of his property by indefinite and inexcusable delay in compliance with the law.

We are still operating as a government of law rather than as a government of men. Public agencies are required to comply with the law the same as private citizens.

The writ of mandamus will issue in accordance with the prayer of the petition.

Entry accordingly with exceptions of counsel for the respondents.


author: By WEBER, J.

text:
    GENERAL ELECTRIC COMPANY, Plaintiff, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), RALPH W. GABE, et al, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-137254.
    Decided June 22, 1953.

      J. Mack Swigert, Hulse Hays, Jr., Cincinnati, for plaintiff.
    Sol Goodman, Cincinnati, for defendants.
   OPINION

By WEBER, J.

The amended charge of contempt contains three different charges. This hearing has been conducted on the first charge which alleges that Ralph W. Gabe as the agent and member of the union committed certain acts on May 11, 1953 in violation of the injunction issued in case number A-137254 on April 13, 1953.

The plaintiff called the defendant as a witness to testify as upon cross-examination. Before the oath was administered, counsel for the defendant objected, without stating the grounds for the objection, to the defendant testifying. The court overruled the objection upon the assumption that the hearing was a civil proceeding. The oath was then administered and the defendant was asked whether he was a member of the union, to which he answered in the affirmative. No further objection was made. After the plaintiff rested its case, counsel for the defendant moved as follows:

“If the court please we move to dismiss the charge against the defendant Gabe and to declare a mistrial, particularly on the ground that his constitutional rights have been violated in having been called as a witness over his objection, and asked to give testimony and having been compelled to give testimony.”

.The first question presented is whether this is a criminal proceeding. Contempt proceedings are said to be quasi criminal, that is, they may be considered under certain circumstances as civil and under certain ciroumstances as criminal. The primary test is whether the principal purpose is to confer a benefit or restitution upon the plaintiff, or to punish the accused. If the injunctive order has commanded the accused to perform an act and the accused has failed to perform, the contempt proceeding is for the benefit of the plaintiff and the hearing is a civil proceeding. If the injunctive order has prohibited the doing of an act and that act has been completely performed in violation of the order, the hearing is usually held to be a criminal proceeding. However, it is not always so held. If the injunction was issued in a suit brought by a private party in which restitution by way of damages was sought and the contempt charge is filed in the same case, it may be held that the primary purpose set forth in the petition is restitution and for that reason that the hearing is a civil proceeding, although the accused has completely performed an act prohibited by the injunction. Remington Rand, Inc. v. International Association of Machinists, 6 O. O. 308; Hayes v. Hayes, 11 O. O. 10; Gompers v. Buck Stove Company, 221 U. S. 418.

The next question is raised by the contention of the plaintiff that the objection to the defendant testifying against himself is a personal privilege and one which must be asserted by the defendant himself and which cannot be asserted by the defendant's attorney or anyone else and also that it must be asserted after the oath has been administered to the defendant. These rules have been applied in a number of Ohio cases. State of Ohio v. Cox, 87 Oh St 313; Burke v. State of Ohio, 104 Oh St 220; Lawson v. Hudephol, 46 O. O. 11.

In order to determine whether these rules should be applied to the situation here presented, an examination should be made of the nature of the situation in which they were applied and the reason for applying them.

When a witness is subpoenaed to testify before a grand jury concerning matters in which it may be developed he was engaged, it is net absolutely certain before he is sworn and questioned that he will be1 testifying against himself. He is not then the defendant accused of the offense which is the subject of the inquiry by the grand jury and it is not self-evident that if examined he will testify against himself. Knowledge that answers to particular questions will tend to incriminate such a witness exists only in the inner recesses of the mind of the witness. His attorney, even if permitted to be present, could not base an objection upon absolute firsthand knowledge. Questions calling for incriminating answers cannot be asked until the oath has been administered.

The same is true, but to a greater extent, where, in a criminal trial, one who is not the defendant therein is called as a witness.

In this case the defendant himself was called as a witness. To be admissible in a criminal trial the evidence must be relevant to the criminal act charged against the defendant. The only competent evidence is that which tends to prove the innocence or the guilt of the defendant. Where the defendant is called as upon cross-examination in a criminal trial the subject matter of possible self incrimination is not something existing only in the inner recesses of the defendant’s mind. It has been disclosed in the charge against him. It is as well known to the party calling the defendant and to the defendant’s attorney as it is to the defendant. In calling the defendant as upon cross-examination the intended purpose is to solicit from him testimony which tends to prove his guilt. To reveal this purpose it is not necessary that questions be asked and answers be given under oath. Such purpose is self-evident. In such a situation there is no sound reason why the defendant’s attorney, who has general authority to take all steps necessary to protect him, cannot make a valid objection to calling the defendant as a witness, even before the oath has been administered. Overruling such an objection is a direction by the court to the defendant to testify and is compulsion. Since the hearing must be treated as a criminal proceeding, the court committed error in overruling the objection.

The motion of the defendant is twofold; to declare a mistrial and to dismiss the defendant from the first charge set forth in the amended charge of contempt. Both phases of the motion are based upon the claim, which the court sustains, that to make the defendant amenable to the restraining order, he must have had actual knowledge of the restraining order or constructive knowledge by reason of his being an agent or member of the union; also the claim, which the court sustains, that the only evidence of such knowledge on the part of the defendant is his testimony that he was a member of the union at the time the acts complained of were committed and that such testimony is incompetent because it violates his constitutional right not to be compelled to testify against himself. However, the two parts of the defendant’s motion are inconsistent. A ruling that there is technically a mistrial must be upon the premise that a finding that the defendant is guilty necessarily would be based, at least in part, upon such incompetent testimony and would require a retrial. In order to grant the motion for a dismissal, the court must construe the motion for a mistrial as a motion to strike said incompetent testimony from the record, which, if granted, deprives the plaintiff, at the time it rested, of all proof of one of the essential elements of its case, that is that the defendant was amenable to the restraining order.

The following cases approve the rule that such incompetent evidence, whether the proceeding is civil or criminal, and particularly if the case is tried to the court, should be stricken from the case or disregarded instead of declaring a mistrial and granting a retrial.

Booker v. Cincinnati (1936 C. P.), 22 Abs 286, in which the accused was charged with drunken driving. Over his objection he had been obliged to take certain tests which he claimed violated his privilege against self-incrimination. At the trial the doctor, was permitted to testify with respect to these tests and the accused was convicted. On appeal, Judge Gorman held that the doctor’s testimony was incompetent, but that ignoring such testimony there was still enough evidence in the record to sustain the conviction.

In Killits v. State (1898), 19 C. C. 740, a proceeding was brought against a prosecuting attorney to remove him from office for gross misconduct. The court held this to be a criminal proceeding. At the trial the defendant was called to the witness stand over the objection of his counsel and was required to testify. The court found that this violated the defendant’s right'against self-crimination, and stated that:

“The evidence thus obtained must be disregarded by us: and as the defendant was the only witness called, and there was no other evidence submitted in support of the charges (the exhibits resting and depending upon his. statement as to authenticity), we hold that the charges are not sustained by any competent evidence.”

Similarly, in Carolene Products Co. v. United States (CCA 4; 1944), 140 F. (2d), 61, the defendants were called to the witness stand in violation of their right against self-crimination and were required to testify. The opinion states that:

“A motion to exclude the evidence so far as it applied to the witness was granted, with the consent of the District Attorney. The government then proved the connection of the individual defendants with the two corporations by certificate from the records of the state of incorporation.”
Defendants’ counsel then moved for a directed verdict for the individual defendants but the motion was denied.”

The conviction of the defendants was affirmed by the Court of Appeals and also by the Supreme Court of the United States. 323 U. S. 18, 89 L. E. 15.

The rationale of this rule is well stated in the opinion in Oates v. United States, a contempt case (CCA 4; 1916), 233 Fed. 201, at page 205 where the court stated:

“In all these and many other cases the rule laid down by Chief Justice Marshall in Field v. United States, 9 Pet. 202, 9 L. Ed. 94, has been followed:
“ ‘As the cause was * * * not tried by a jury, the exception to the admission of evidence was not properly the subject of a bill of exceptions. But if the District Court improperly admitted the evidence, the only effect would be that this court would reject that evidence, and proceed to decide the cause as if it were not on the record. It would not, however, of itself constitute any ground for a reversal of the judgment!’”

The latest case on this rule is Stein v. The People of the State of New York, U. S. Supreme Court, reported in U. S. Law Week, June 16, 1953, wherein this question is thoroughly reviewed. The majority opinion, written by Justice Jackson, holds that a confession obtained through coercion by the police does not always invalidate a murder conviction returned by a jury, and that the conviction may stand if other evidence produced at the trial was sufficient to justify the guilty verdict. The court held that the jury may find that the confession was involuntary and incompetent and totally disregarded it in reaching their verdict. See also §13449-5 GC; State v. Polhamus (Ohio Court of Appeals, 1951), 106 N. E. (2d), 646; Griggs v. State (1931), 4 Oh Ap 130, 178 N. E. 15; appeal dismissed, 177 N. E., 633; 116 A. L. R. 558.

If the only matters before the court were the two motions of the defendant, the court would strike said incompetent evidence and grant , the motion to dismiss the defendant Ralph Gabe. However, the plaintiff orally and later formally in writing made the following motion:

“Now comes the plaintiff and moves for leave to reopen its case and submit additional evidence in support of its case and the charges herein filed;” whereby it seeks an opportunity to present, before the defendant proceeds with his case, evidence relevant to the amenability of the defendant to the restraining order. The following authorities support the rule that the trial court in a criminal case, may permit the plaintiff or the state, after it has rested its case, to reopen the case in chief and introduce evidence which may have been omitted and which is necessary to prove its case.

In State v. Grundstein (1943), 69 N. E. (2d), 418, Ohio, C. A. Franklin County, the state was prosecuting the defendant for receiving and concealing stolen automobile tires, and overlooked the presentation of evidence on the question of the value of the stolen property. This was not discovered by the prosecutor until after all of the evidence was in and the attorney for the defendant had closed his argument to the jury. Thereupon, the prosecutor moved for leave to permit the presentation of evidence as to the value of the stolen property. The court granted the motion and the defendant was convicted. Conviction was affirmed on appeal.

In Vecchio v. Ohio (1930), 32 O. L. R. 553, the prosecutor was permitted to reopen the case after the defendant had completed its argument to the jury to introduce evidence as to the age of the defendant. Conviction was affirmed, the Court of' Appeals stating that:

“Coming to the assignment of error that the court erred in permitting the state to Offer testimony concerning defendant’s age after both the state and the defense had completed its argument, upon examination of the record we find that there is no prejudicial error here for the reason that the state had failed to show that the defendant was over the age of eighteen as provided for in the statute, and we think it would have been clear error on the part of the court under such a situation to refuse the application of the state, even at that stage of the trial, to offer evidence concerning the defendant’s age. It was a matter of discretion, and we do not think there was any abuse of it when we come to consider the circumstances and facts surrounding the case at the time.” (Emphasis added.)

Hughes v. State, 9 Cir. Ct. (N. S.) 369; affirmed 77 Oh St 640; Syl. 3:

“It is within the discretion of the court to grant permission to the prosecution to introduce additional evidence in chief after the close of the defense, and after requests for instructions to the jury have been passed on.”

The defendant argues that the court in overruling the objection to the defendant, Gabe, testifying, in effect discharged said defendant so that he might be a witness for the state. In support of said argument the defendant cites §13442-13 GC (§2945.15 R. C.), which reads:

“When two or more persons are tried jointly, before any of • the accused has gone into his defense, the court may direct one or more of such accused to be discharged that he may be a witness for the State.”

There is nothing in the proceedings which make this section of the code applicable, particularly since the defendant Gabe was called as upon cross-examination and not as the witness of the plaintiff.

The motion of the defendant to strike incompetent testimony of the defendant should be and is hereby granted.

The motion of the defendant that he be dismissed should be and is hereby overruled.

The motion of the plaintiff to reopen its case in chief for the purpose of introducing evidence relevant to the defendant’s amenability to the restraining order should be and is hereby granted.


text:
    SHRAGE v. PORTSMOUTH STEEL CORP., et.
    United States Court of Appeals, Sixth Circuit.
    No. 11744.
    Decided October 23, 1953.
    John H. Clippinger, John B. Hollister, Cincinnati, Henry S Gottfried, Sheldon B. Guren, Cleveland, Frank J. Richter, Cincinnati, Halperin, Natanson, Shivitz & Scholer, New York, on brief, for appellant.
    Robert S. Marx, Leonard D. Slutz, Nichols, Wood, Marx & Ginter, Cincinnati, on brief, for appellee.
    Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.
   OPINION

Per CURIAM.

The appellant, a citizen of New York State and owner of 200 shares of stock in the Portsmouth Steel Corporation, an Ohio corporation, filed a complaint demanding judgment:

1. Winding up the affairs and business of Portsmouth, liquidating its assets and distributing the net proceeds prorata among its shareholders;

2. Allowing him reimbursement for any and all necessary expenses in this action and for costs herein;

3. Allowing his attorneys fair and reasonable fees for services rendered by them in this action;

4. For such other, further and different relief as this court may deem just and proper.

The District Court sustained a motion to dismiss the action mainly upon the ground that the plaintiff lacked capacity to maintain the suit because under the laws of Ohio an action for judicial dissolution of an Ohio corporation cannot be maintained by less than a majority of the stockholders. The case is governed by §8623-86 GC (§1701.94 It. C.) pertinent parts of which are printed in the margin.

Sec. 8623-79 GC (§1701.86 R. C.) provides for voluntary dissolution upon vote of two-thirds of the voting shares or such other proportion as the articles may require.

Sec. 8623-87 GC (§1701.95 R. C.) provides that the petition for judicial dissolution “may be filed by or on behalf of the holders of the shares entitled to dissolve the corporation * * *.”

Under the Ohio law, which is controlling here, Erie Railroad Company v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 11 O. O. 246, 82 L. Ed. 1188, 114 A. L. R. 1487; Ragan v. Merchants Transfer & Warehouse Company, 337 U. S. 530, 69 S. Ct. 1233, 93 L. Ed. 1520; Cohen v. Beneficial Industrial Loan Corporation, 337 U. S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528, the provisions of these statutes for the dissolution of corporations are exclusive. Shearer v. Union Mortgage Company, 28 Oh Ap 373, 162 N. E. 696; Goldberg v. Friedman, 8 Abs 8.

Appellant owns only a small fraction of 1% of the stock of Portsmouth and, if these statutes apply, the District Court was clearly correct in holding that appellant and the single intervenor had not capacity to maintain the action.

Appellant contends that the statutes do not apply to the action pleaded, which includes allegations of waste, mismanagement, nonfeasance and abandonment of the objects of the corporation. But the District Court found, and we think correctly, that these allegations are not stated with the particularity required by the Rules of Civil Procedure and relate to matters within the proper discretion of the board of directors of the corporation. The allegations are mere conclusions and are not supported by the facts set forth in the petition.

Appellant also contends that the action pleaded is not for dissolution of the corporation; but the prayer clearly contradicts this contention. The complaint avers that the defendant directors “have failed, neglected and refused to dissolve Portsmouth, liquidate its assets and distribute the proceeds prorata among its shareholders. * * *” It alleges upon information and belief that “The winding up of the affairs and business of Portsmouth, the liquidation of its assets and the distribution of the proceeds among the shareholders of Portsmouth” will be beneficial to the shareholders. It also sets forth that a demand upon the board of directors of Portsmouth or upon the stockholders to effect “the winding up and/or dissolution” of the company would be futile, as these groups are controlled and dominated by defendant Eaton. The gist of the action, in fact, as pleaded in the complaint, is one for judicial dissolution within the provisions of §8623-86 GC (§1701.94 R. C.). Moreover, the Ohio decisions which are binding here treat an action praying for winding up a corporation and distributing its assets as one for dissolution, Cincinnati, Hamilton & Dayton R. R. Co. v. Duckworth, 2 Ohio Cir. Ct. R. 518, affirmed by the Supreme Court of Ohio 21 Wkly. Law Bull. 36; North Fairmount Building & Savings Company v. Rehn, 8 Ohio Dec. 594; Woods v. Equitable Debenture Company, 11 Ohio Dec. 154.

The judgment of the District Court is affirmed.

      . Sections 8623-86. “Judicial dissolution; procedure. A corporation of this state may be dissolved by an order of common pleas court * * * when it is made to appear:
      “(a) That its articles have been cancelled; or
      “(b) That its property and assets are insufficient to pay all just demands for which it is liable, or to afford reasonable security to those who may deal with it; or that the objects of the corporation have wholly failed, or are entirely abandoned, or their accomplishment is impracticable; or
      “(c) That it is beneficial to the interests of the shareholders that the corporation should be dissolved and that the holders of shares entitling them to exercise a majority of the voting power on such proposal, or that the holders of shares entitled by the articles to dissolve the corporation, deem a dissolution beneficial to their interests; * *


author: By MERRICK, J:

text:
    AGINS et, Plaintiffs, v. UNIVERSITY HEIGHTS (City) et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 625389.
    Decided October 8, 1952.
    Myron D. Malitz, William J. Kraus, Cleveland, for plaintiff.
    Roland A. Baskin, Krueger, Gorman & Davis, Cleveland, for defendants.
   OPINION

By MERRICK, J:

Plaintiff, brings this action as a taxpayer by way of a class suit and claims that §4314 GC authorizes such action. He claims that a request was made and served upon the law director of the defendant city and a refusal to bring suit followed.

Plaintiff contends that the defendants Huge have been operating a commercial business enterprise for many years and have been using land previously dedicated for street purposes in furtherance of such private business.

Plaintiff prays for an order of court requiring such alleged users of public streets to account for such usage and that a master be appointed to fix the amount due the city for such. usage.

The petition also contains other claims and requests which by stipulation of counsel are now conceded to be moot questions.

Many defenses are raised in this action but this Court is of the opinion that a decision on two phases of the case is dispositive of the entire case.

1 am unable to find any authority or text author supporting the theory that a municipal government can maintain a claim on a quantum basis for unauthorized use of its streets in the absence of franchise or contract by ordinance.

Even if a demand were to be made upon the proper officer of the city, he could not have any basis in law or by statute for the institution of such claim. His only remedy would be in equity by injunction in the name of the city, or in criminal law by steps incident to a prosecution for violation of some law or ordinance.

A careful reading of §§4311, 4312, 4313, 4314 GC, seems to indicate that recovery of money for the use of a street is not contemplated as coming within the purview of these sections.

Similar statutes were interpreted by the court of appeals for this district in the case of Worthington v. Akron, 18 C. C. Rep., (N. S.) 208.

The disposition of the question is contained in the syllabus as follows:

“A plaintiff can not maintain an action against a municipality and others for obstructing a street, either in his individual capacity or as an abutter upon the street, unless the nuisance sought to be abated is private and personal to him, affecting him or his property in a manner differing not merely in degree, but in kind from its effect upon the community in general, and he can not maintain such action as a taxpayer, for want of statutory provision therefor.”

In a later case, Fischer v. City of Cleveland, 42 Oh Ap, 75, which is likewise a decision of the reviewing court, of this jurisdiction, we find this language on page 83 of Judge Vickery’s opinion:—

“Now there is not a particle of evidence in this record that plaintiff did suffer any damage or injury other than that suffered by the general public if it suffered any; and therefore he could not maintain the suit, even though he had brought it in his individual capacity; and the writer of this opinion personally thinks there is no foundation for a suit by a taxpayer.”

In the opinion in Fischer v. City of Cleveland, supra, is quoted a theory to be found in High on Injunctions, Vol. 1, page 724 as follows:

Sec. 762. No principle of the law of injunctions is more clearly established than that private persons seeking the aid of equity to restrain a public nuisance, must show some special injury peculiar to themselves, aside from and independent of the general injury to the public. And in the absence of such special and peculiar injury sustained by a private citizen he will be denied an injunction leaving the public injury to be redressed upon information or other suitable proceeding by the attorney-general in behalf of the public. Even in cases of unquestioned nuisance if the party complaining shows no special injury to himself different from the common injury to the public, he is not entitled to an injunction.”

Consolidating this reasoning the petition will be dismissed at the costs of the substituted plaintiff. Counsel may prepare an entry accordingly.


author: By EARHART, J.

text:
    FRANKLIN, Plaintiff, v. CALLICOAT, Defendants.
    Common Pleas Court, Lawrence County.
    No. 33427.
    Decided February 6, 1954.
    O. E. Irish, Roy L. Henry, Ironton, for plaintiff,
    Milton J. Andrews, Ironton, for defendants.
   OPINION

By EARHART, J.

This cause is before the court on the petition of the plaintiff, E. E. Franklin which consists of two causes of action.

The plaintiff alleges that he is the owner of certain mineral rights under real estate described in his petition, and located in Mason Township, Lawrence County, Ohio.

Plaintiff says that his mineral rights consist of all the coal, gas, oil, fireclay, building stone, and other minerals in and underlying the above described premises, and that the defendants Clifford Callicoat and Gladys Callicoat own or claim to own the surface to said premises. Plaintiff says that the deed conveying the mineral rights to him give him full and free right of ingress, egress and regress and right of way and other convenient and necessary rights and privileges upon and over the premises of the defendants for the purpose of mining, removing, developing, boring for, refining, and taking away coal, oil, gas or any other minerals located beneath the surface of said premises without being responsible in any way for damage or injury which might be done by reason of said mining, removing and taking of the minerals.

Plaintiff claims title to these premises by virtue of a deed recorded in Deed Record 79 page 415 of the Lawrence County, Ohio Deed Records and it is the claim of the plaintiff that on or about July 1953, he attempted to use the rights and privileges set forth above, but that defendant Clifford Callicoat ordered him off of the premises and refused to allow him to exercise these privileges.

Plaintiff says that he has reason to believe that unless Clifford Callicoat is enjoined by an order of this court, that he will do the plaintiff and plaintiff’s agents bodily harm upon the plaintiff entering the above premises and exercising the rights and privileges acquired under the deed mentioned herein, and asks that a permanent injunction issue prohibiting defendant Clifford Callicoat from interfering with the plaintiff and the plaintiff’s agents and employees in any manner whatsoever while the plaintiff is exercising his rights at mining, drilling and other privileges.

For his second cause of action, the plaintiff adapts the averments of his first cause of action as though rewritten herein, and says that in addition to the above mentioned mineral rights that plaintiff is the owner of approximately three thousand acres of mineral rights located in Lawrence County, Ohio, and that he is in the business of buying and selling mineral rights and in the business of developing mining rights, and that due to the threats of the defendant referred to herein, and also due to the claim of the defendant Clifford Callieoat that he himself owns the mineral rights along with his wife Gladys Callieoat. The plaintiff has been unable to sell for development purposes his entire mineral rights in Lawrence county and that by reason of the foregoing, he has been damaged in the sum of ten thousand dollars.

Defendants have filed an answer herein, in which they admit that the plaintiff is the owner of the minerals and mineral rights described in the plaintiff’s petition, together with rights of ingress, egress and regress all as alleged in the plaintiff’s petition. Defendants further admit that said rights were conveyed to the plaintiff by defendant’s predecessor in title by deed recorded in Deed Book 79, page 415 of the Lawrence county, Ohio Deed Records.

It is the claim of the defendants that the deed referred to above was made in the year 1905 and that the strip mining of coal was unknown to the coal industry at the time, and was not contemplated by the parties to said deed, that plaintiff informed the defendants that he intended to strip the coal in said property and was informed by defendants that he could not enter upon the premises for that purpose. Defendants admit that plaintiff has the right to mine and remove coal, oil, or gas by methods contemplated by the parties when the original deed was made in 1905 conveying said minerals, but claim that the plaintiff is limited in his right to remove same by drift or shaft mining, but not by strip mining which would totally destroy defendant’s surface rights in said land.

In answer to the plaintiff’s second cause of action, defendants admit that plaintiff is in the business of buying and selling mineral rights and in the business of developing mineral rights and deny all other allegations contained therein, and asks that the petition of the plaintiff be dismissed.

These are the issues in this case.

The plaintiff claims title to said premises by reason of a special warranty deed from James C. Riley, trustee and O. E. Irish, trustee to E. E. Franklin dated March 6,1952 and recorded in Deed Record 206, page 42 of the Lawrence County, Ohio Deed Records. This deed describes only the mineral rights referred to in the plaintiff’s petition.

The plaintiff in this action, E E. Franklin, is the successor in title to said mineral rights of the Symnes Valley Coal Company which acquired the mineral rights from George'Corn by deed dated February 16, 1905 and recorded in Deed Book 79, page 415 of the Lawrence county, Ohio Deed Records. The deed in so far as it pertains to the mineral rights reads as follows:

“Also the interest of the said grantor in all leases for oil, gas, or other minerals which may be held against said premises, together with full and free rights of ingress, egress, regress and of way and other necessary or convenient rights and privileges in, upon, and over the above described premises for the purpose of mining, removing, developing, boring for, refining suid taking away said coal, oil, gas or any other minerals contained therein or thereon. Also the privilege of removing under and through the same any oil, gas, coal or other minerals which are owned by or which may be hereafter acquired by the said grantee herein without being in any way liable for damage or injury which may be done to the above described premises or to any waters or water course therein or thereon, by reason of the mining, removing and taking of said coal, oil, gas or other minerals. The said grantor further grants, bargains, sells and hereby conveys to the grantee herein so much of the surface of said real estate as may be required for machinery, buildings, waste dumps, railroads, switches, tramways, etc., but said grantee agrees to pay therefor an additional sum of $30.00 per acre for all of such surface so used or occupied by it. It is expressly understood and agreed as part of this conveyance that in case oil or gas pipes are laid across said premises, the same where ground is tillable are to be placed beneath the surface to a sufficient depth so as not to interfere with agricultural purposes and said grantee is to pay to the grantor herein twenty-five cents per lineal rod for all pipes so laid.”

The sole question in this case is whether or not under the provisions recited above the plaintiff has the right to go upon the premises of the defendants for the purpose of strip mining coal from said premises or whether he is limited to the method of drift mining which was the method of mining at the time of the execution of this deed, to-wit, February 16, 1905.

There was much testimony introduced as to the methods of mining and it is undisputed that in 1905 strip mining methods were unknown to the coal industry in this county. The undisputed evidence is that strip mining methods were unknown to Lawrence county until approximately 1943 and that previous to 1943, the mining of coal was done by what is known as deep mine or drift mine methods. It is further undisputed that the only profitable way to remove the coal at the present time is by strip mining methods and that if the plaintiff is restricted to drift mining or deep mining methods, the coal cannot be commercially produced at a profit.

I have considered carefully the authorities referred to in the briefs submitted by counsel for the plaintiff and the defendant, together with other authorities not mentioned in the briefs.

The only Ohio case which I find dealing with this subject is the case of U. S. Coal Company v. Wayne Coal Company reported at 12 Oh Ap 1. In this case, the plaintiff and defendants are owners of contiguous tracts of land and both are engaged in coal mining business. Plaintiff by deep mining methods and defendant by strip mining. Plaintiff seeks to enjoin the-defendant from strip mining on the ground that it interferes with the lateral support of his premises and I notice in the court’s opinion at page 4 the following:

“The mining of coal by stripping process has come into practice only within the past few years and could not be the minds of the parties when the deed was executed from Hublers to Rhodes and Bailey, for no such process was known at that time. It does not, however, follow that defendant has not a right to use that process or any other new or improved method of mining by machinery or otherwise which has come into use.”

I note in the case of Moore v. Indian Camp Coal Company reported at 75 Oh St 493, that the Ohio courts have followed the theory that where the surface and minerals have been conveyed to separate owners, as in this case, the owner of the minerals has a fee in the land so long as there is coal beneath it, except that he may not remove the subjacent support of the owner of the surface. It is the contention of the defendants that the plaintiff has the right to remove the minerals underlying the premises, so long as he does not interfere with the subjacent support of the land of the defendants.

I find in 27 O. Jur., at page 93 the following:

“The rule is well settled that when one owning the whole fee grants the minerals reserving the surface to himself, his grantee will be entitled only to so much of the minerals as he can get without injury to the superincumbent soil unless the language of the instrument clearly imports it was the intention of the grantor to part with the right of subjacent support. The right of subjacent support extends only to the land in its natural state.

The surface owner is. entitled to the absolute support of his land, not as an easement but as part of the free hold which is incident to the land in its natural state. It is a property right and passes by a conveyance of the surface without an express grant to that effect, constituting a servitude on the lower estate. This obligation to protect the superincumbent soil exists where there is a conveyance of the surface reserving the minerals, or a grant of the minerals, without a conveyance of the surface. In either case, the presumption arises that the owner of the minerals does not, by removing them wholly or in part, intend to injure the owners of the soil above.

The owner of the surface may, of course, part with his right to surface support by his deed or covenant, or he may waive it. The intention, however, to dispense with subjacent support must be manifested by clear and -unequivocal language in the deed or lease. For instance, it has been held that a sale of all the coal and other minerals under a tract of land is not a release in express terms, or by necessary implication of the right to surface support. On the other hand, it has been held that a deed conveying the surface estate, and reserving the right to mine coal thereunder, without reference to damage to former, reserves the right to mine coal without liability for want of support to the surface estate.”

I find an annotation in 1 A. L. R. (2d) page 792 under the title of “Open pit mining,” although the cases cited in this article are not in point, they nevertheless tend to show the attitude of the courts towards open pit mining or strip mining. I note at page 791 the following language:

“A reservation by a seller of land of minerals, oil and gas rights was held not to include the right to exploit the land for sand and gravel (Then the author cites a Louisiana case), where the recovering of sand and gravel would destroy the surface of the land which has been conveyed by the seller to a farmer who purchased the land for grazing and agricultural purposes, and the sellers have agreed to have due regard for the rights of the farmer as the owner of the land and there has been no discussion of the reservation of sand and gravel in negotiations between the parties. The court said, ‘It would not be reasonable to construe the reservation of minerals and gas rights so as to embrace the right to exploit minerals which could not be removed from the land without destroying the surface for agricultural and grazing purposes. We do not think it can be seriously contended that it was in the contemplation of the farmer that he might at any time be deprived of the use of the land for the purpose for which he had purchased it by the mining of sand and gravel thereon, largely for the benefit of his vendors.’ ”

I find at page 792 a case more nearly like the one before the court and quote the following language:

“In Barker v. Mintz (1923) 73 Colo. 262, 215 P 534. in which a conveyance of land excepted and reserved all oil, coal and other minerals and further reserved the right to use so much of the said land as might be convenient or necessary for the convenient and proper operation of mines, it was held that although the owner of the minerals did not have the right to scrape off and remove the soil and gravel from above the coal on the land, the only practicable way to mine the coal, since the right to ‘use’ was not the right to destroy, the owner of the land would not be granted an injunction, which would destroy the property right of the owners of the minerals, where the land was used mainly for pasturage and the injury to the owner of the land could be compensated for by the payment of damages. After pointing out that no hard and fast rule could be laid down to govern all cases, each case depending somewhat on its own facts, the court said: ‘And here it seems to us as inequitable to give a judgment against the defendant fthfi owner of the minerals) which destroys his property, as it would be to let him take out his coal without compensation to the plaintiff (the owner of the land) and so destroy hers. Is her property more sacred than his? No injunction should be granted contrary to the ‘real justice of the case.’ The land is wild and its present value, except for the coal, is only for pasturage, a very little of it for cultivation. The stripping destroys these values, but the fair and equitable way is so to treat the matter that each party will get the greatest amount of good with the least possible harm, and that is by allowing the defendant to take out his coal and pay the plaintiff for the damage he thereby does to her estate. He will then get the full value of his property and she will get the full value of hers. Is not that equity?’ ”

I note in 36 American Jurisprudence, page 402, paragraph 177 the following:

“The right to minerals when separated by grant or reservation in a deed is as much an estate in lands as the right to the surface of the same lands, and unless the language of the conveyance by which the minerals are acquired repels such construction, the mineral estate carries with it the right to use so much of the surface as may be reasonably necessary to reach and remove the minerals. This is an application of the maxim that when anything is granted all of the means of obtaining it and all of the fruits and effects of it are also granted. The implied right to occupy so much of the surface as may be needed to open and work the mines is not limited, but rather strengthened, by a special grant of certain timber and water privileges and of a right of way to and from the mines. There are obvious degrees of necessity for the use of the surface in the conduct of subterranean mining operations, from the absolute necessity of sinking shafts or making other entrances to the minerals, to the practical necessities of business operations. The owner of the minerals obtains, either by express terms of the conveyance or by necessary implication therefrom, a right of entry or access to the minerals over and through the surface, and as against such purpose, the grantor does not hold the surface adversely. The grantee of minerals may not have the right to use the surface in aid of mining on adjoining premises.”

I note the following at page 405, paragraph 184:

“The doctrine of subjacent support is applicable where the surface estate is, by deed or otherwise, severed from the underlying mineral estate and the two are owned by different persons. Where that is the case, the mining should be carried on and the minerals removed without injury to the surface. And unless the surface owner has parted with or waived his right in the matter or it has been taken away by statute, he is entitled to have the mining done in such a way as to leave sufficient support for the surface in its natural state, either by allowing a sufficient amount of the ground to remain or by substituting artificial supports. The owner of the surface is entitled to this absolute support of his land, not as an easement depending on a supposed grant, but as a proprietary right at common law. Moreover, this right is without regard to the comparative value of the strata or of the minerals and the surface, and liability results from its infringement irrespective of actual negligence in conducting the mining operations. It is immaterial that the minerals have been removed carefully and skillfully and by means of the most approved system of mining. The right to such surface support cannot be defeated by a custom among miners — such as a custom permitting miners upon ceasing further mining operations to remove the pillars or ribs of mineral which were left for surface support.

I find in 58 Corpus Juris Secundum, page 335, paragraph 159 the following:

“In the absence of an authorization contained in the grant or reservation, the mineral owner may not destroy the surface of the land by strip mining. Where however, a grantee of the surface of land accepts a deed containing unequivocal exceptions of minerals such as a seam of coal, and the reservations as to mining rights, including the mining of the mineral by stripping, the mineral owner may mine by stripping in the absence of statutory inhibition, fraud, or other vitiating circumstances.”

I note also in 58 Corpus Juris Secundum, page 333 the following:

“The implied right to occupy as much of the surface as may be needed to open and work the mineral estate is not limited by a special grant or reservation of privileges which would not be implied. The incidental rights of the mineral owner are to be guaged by the necessities of the particular case and therefore vary with changed conditions and circumstances; in determining such rights, the courts take into consideration the circumstances, the right conveyed, the purpose for which it was conveyed and the information of the grantor and grantee in order to ascertain the intention of the parties.
In accordance with this general rule an owner of minerals may sink shafts or construct drifts or wells through the surface for the purpose of exploring and opening a way to his underlying minerals; remove or use so much of the containing strata, above and below, as may be reasonably required for the proper mining of the mineral; construct drains and tunnels; construct such roads, passways, or means of ingress and egress as may be necessary to get at and remove the minerals; use such amount of water from the land as is reasonably necessary to develop the mineral rights; construct a tramroad from the mine to be used in connection with the mining operations, if fairly necessary; erect and maintain a tipple; and generally employ all reasonable means and necessary appliances requisite to the proper working of the mine or minerals, except that where the right, granted or reserved, is to mine in a specified manner it does not give the right to mine m a different manner.”

To summarize the authorities which have been set forth above, it seems to be the rule in Ohio, as well as other jurisdictions, that the owner of the surface has a right to subjacent support of the surface unless the reservation of the minerals contained in the deed expressly provided to the contrary. It therefore, becomes necessary to examine the wording of the reservation in the deed from George Corn to the Symnes Valley Coal Company recorded in Deed Book 79, page 415 of the Lawrence County, Ohio Deeds Records and dated February 16, 1905. The last part of this reservation which has been set forth in full in this also provides as follows:

“It is expressly understood and agreed as part of this conveyance that in case oil or gas pipes are laid across said premises, the same where ground is tillable are to be placed beneath the surface to a sufficient depth so as not to interfere with agricultural purposes, and said grantee is to pay to the grantor herein 25c per lineal rod for all pipes so laid.”

It seems clear from the above quoted language that it was the intention of the grantor and the grantee that the mining rights should be exercised without interfering with the use of the land for agricultural purposes, and it is the court’s opinion that the plaintiff has the right to use the premises for the extraction of minerals in such manner as not to interfere with the owner of the surface in agricultural pursuits. If this were not so, why was this provision inserted in the reservation of the minerals?

The interpretation of the reservation contained in the deed from George Corn to the Symmes Valley Coal Company placed upon this language by the plaintiff, is that he has a right to enter the premises of the defendants and upon payment of $30.00 an acre, may proceed to strip the entire area of the farm. This of course, would include the buildings situated on the premises, the destruction of fences, tillable land, pasture land and any other land which he may desire to mine. Certainly, this was not within the contemplation of the parties when the minerals were reserved in the deed which I have referred to above.

If we are to place upon the reservation the interpretation contended for by the plaintiff, let us see what the defendants purchased when they acquired the surface rights by deed from Orna E. Lemaster and O. M. Lemaster to themselves by deed recorded in Deed Book 210, page 445 of the Lawrence County, Ohio Deed Records. The deed conveying the surface to the defendants, if we are to accept the interpretation of the plaintiff, would amount to a nullity. In other words, the defendants have parted with consideration for the surface and the revenue stamps indicate a consideration in the neighborhood of five to six thousand dollars for a mere right to occupy these premises until such time as the plaintiff desires to pay the sum of $30.00 an acre and completely destroy the surface of the farm. Certainly, this was not the contemplation of the parties when the minerals were reserved and certainly, it would be inequitable and unjust for a court to hold that the owner of the surface received by his warranty deed only a right to reside upon the premises until such time as the plaintiff desired to come in with the necessary equipment, and remove the buildings, fences, tear up the entire surface of the farm.

I cannot bring myself to the conclusion that it was the intention of the parties at.the time the minerals were reserved to permit the owner of the minerals to completely destroy the surface of the farm which is now owned by the defendant. It is my opinion further, that the language which I quoted above contained in the reservation of the minerals clearly indicates that intention on the part of the owner of the minerals not to destroy the surface of the land, but rather to keep the surface intact and this is clearly the implication from the language quoted above wherein it is stated that in the event pipes are placed beneath the premises, they are to be placed in such manner as to not destroy the land for agricultural purposes. This is a clear implication in my opinion that the grantor in the deed from George Corn to the Symmes Valley Coal Company did not intend to part with subjacent support of the soil.

It is my opinion that the true interpretation of this reservation is that the owner of the minerals has the right to mine and remove the minerals in such manner as not to interfere with agricultural purposes and with the normal use of the surface of the land; that the provision in the reservation wherein the owner of the minerals may pay $30.00 per acre for use of the surface applies only to so much of the surface as is necessary for tramways, necessary buildings and appurtenances to the mining of the coal underlying the premises. I do not interpret this particular provision as meaning that the owner of the minerals may pay $30.00 an acre and arbitrarily use the land of these defendants. He is only entitled to purchase so much as is absolutely necessary for the mining operations in removing the coal underlying the surface.

I am aware of the fact that it is not profitable to mine this land by deep mining or drift mining methods, that the evidence in this case is clear that the premises may not be profitably mined by other than strip mining methods. However, my interpretation of the mineral reservations, so I have stated above, does not permit me to draw the conclusion that the plaintiff has the right to engage in strip mining on these premises. This case is one of utmost importance due to the fact that there are many other similarly worded mineral reservations in Mason Township, and I am aware that this is a case of great importance, not only to the plaintiff as owner of the mineral rights, but also to the owners of the surface rights where there are similar mineral reservations.

I am also aware of the fact that normally, persons holding mineral reservations cannot be held to archaic and ancient mining methods which are no longer profitable, but as I interpret this reservation, the mining must be conducted in such manner as not to destroy the surface or the normal farming uses of the premises.'

The second cause of action in the plaintiff’s petition is for damages and it is claimed by the plaintiff that he is the owner of three thousand acres of mineral rights located in Lawrence County, and that he is in the business of buying and selling mineral' rights and developing mining rights and due to the fact that he has been unable to mine or prospect for minerals underlying the premises of the defendants, he has been damaged in the sum of $10,000.00.

The plaintiff himself testified that he had an agreement with certain other parties whereby he was to sell the mineral rights underlying several thousand acres in Lawrence County, Ohio, that by reason of his failure to acquire the mineral rights under the premises described in the petition, that the entire transaction could not be consummated resulting to his damage in the sum of $10,000.00. It was his estimate that there are approximately seven thousand tons of coal per acre underlying the premises and that there were approximately fifteen acres of coal lands on the tract owned by the defendants, that he had a royalty agreement for 15c a ton from Lindsey Bellville, a strip mine operator for the coal underlying the defendants premises and that now the highest offer which he could get was 10c a ton, thereby resulting in a loss of five cents per ton on the prospective yield of coal underlying these premises.

It is noted the plaintiff did not state with whom he had the agreement over the purchase of the mineral rights which could not be consummated, and the extent of his loss is purely speculative, and are not based upon fact. Furthermore, it appeared from the evidence that the defendants’ deed from Oma Lemaster and O. M. Lemaster to the defendants made no mention of mineral rights and that the defendants in good faith believed that they were the owners of both the surface and the minerals since no mention was made in the deed of the reservation of the minerals. Under all of these circumstances, it is the court’s opinion that the plaintiff has failed to show by a preponderance of the evidence that he has suffered a loss. In addition to this, under the court’s interpretation of the reservation, he would not have a right to enter the premises for the purpose of strip mining any way, and it is therefore the order of the court that the petition of the plaintiff be dismissed, and that the plaintiff be denied an injunction against the defendants as prayed for in his petition

An entry may be prepared accordingly, noting the exceptions of the plaintiff to the ruling of the court.


text:
    MILLOVICH, Petitioner-Appellant, v. LANGLEY, Sheriff et, Respondents-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3548.
    Decided March 27, 1953.
    Maurice W. Lipscher, Carlyle & Carlyle, Youngstown, for petitioner-appellant.
    William A. Ambrose, Pros. Atty., Youngstown, for respondents-appellees.
   OPINION

Per CURIAM.

Petitioner-appellant, called petitioner herein, appealed on quéstions of law from a judgment of the court of common pleas denying him a writ of habeas corpus, in his action filed in that court against respondents, Sheriff of Mahoning county and Chief of Police of the City of Youngstown, called respondents in this opinion, who held him in custody.

In an affidavit executed by Mary Taliano in the Commonwealth of Pennsylvania she swore that petitioner, whom she later identified positively, and two other men robbed her of $1066.00 as she left a bank in the city of Farrell, Commonwealth of Pennsylvania, about 11:07 A. M. on the 24th day of April, 1952, and she and another respondent witness identified petitioner positively at the hearing in the Common Pleas Court.

Petitioner’s automobile was found abandoned at 11:50 A M. the same day on Park Drive in the city of Youngstown, Ohio, about fourteeen miles from the scene of the robbery.

Petitioner was arrested at his home on Halleck Street, Youngstown, Ohio, on the afternoon of the day of the robbery, upon a warrant issued by the Governor of Ohio charging him with being a fugitive from justice of the Commonwealth of Pennsylvania, he having been charged previously with such crime by that state.

By assignments of error petitioner contends:—

“1. The court of common pleas erred in adjudging the warrant issued by the Governor of Ohio sufficient for the deliverance of the petitioner-appellant to the state of Pennsylvania.
“2. The judgment of the court of common pleas in denying the writ of habeas corpus is against the manifest weight of the evidence.
“3. The court of common pleas erred in denying the writ of habeas corpus in that the identity of the petitioner-appellant was not established.
“4. The court of common pleas erred in denying the writ of habeas corpus in that the petitioner-appellant is not charged with an extraditable offense.
“5. The court of common pleas erred in denying the writ of habeas corpus in that petitioner-appellant is not a fugitive from justice.
“6. The court of common pleas erred in denying petitioner-appellant rights guaranteed to him by the Constitution of the United States and the Constitution of the State of Ohio.
• “7. And for other errors occurring at the hearing for the writ of habeas corpus appearing upon the face of the record.”

By brief counsel for petitioner state:—

“Although seven assignments of error having been specified as a matter of procedural expediency, the controlling issue in the case is: Was the trial court justified in denying the writ of habeas corpus on the quantum of evidence upon which the identification of petitioner-appellant is based?”

Petitioner was clad in pajamas when arrested, and testified he was ill and confined to bed, and stressed the fact that he had a “considerable growth of whiskers” at that time, presumably indicating that he had not shaved recently because of such illness.

There is evidence that at about the time of the commission of the robbery a dry cleaner was at and saw petitioner in his home clad in pajamas and unshaved; that at 12:00 o’clock a woman, who lives at 1144 Market Street, talked with petitioner by telephone at his home, which counsel for petitioner contends support their argument “that it is most unlikely that petitioner-appellant could have been in Farrell, Pennsylvania, and at his home in Youngstown, Ohio, at approximately the same time.”

“The trial judge is not obliged to hear and determine whether ' or not the party charged is guilty of the offense in the sister state but only whether or not the sister state has shown prima facie evidence, and has supported its requisition with proper formalities.” In Re: Sanders, 10 O. O. 1.

In our opinion, as stated by the state’s attorney, “the evidence produced was far more than enough to meet this simple burden placed on the state. The defendant’s ultimate rights would in any event be fully protected in the state of Pennsylvania where his guilt must be established beyond the existence of a reasonable doubt.”

Having considered all of the errors assigned and finding none prejudicial to petitioner the judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, PHILLIPS & NICHOLS, JJ, concur.