text:
    ADAMS et, Plaintiffs-Appellees, v. MORRISON et, Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7351.
    Decided February 19, 1951.

      Simon Leis, E. G. Schuessler, Cincinnati, for plaintiffs-appellees.
    Henry M. Bruestle, Ed. F. Alexander, Cincinnati, for defendants-appellants.
   OPINION

By THE COURT:

The relief sought in this action is an injunction restraining the members of the Civil Service Commission of the City of Cincinnati from allowing any one other than the plaintiffs to compete in a promotional examination for the grade or rank of Police Chief of the police force of the City of Cincinnati. From, a judgment granting the relief sought, the defendant appeals on law and fact.

At the trial de novo in this court the cause was submitted upon a transcript of the testimony introduced in the Common Pleas Court, a stipulation of counsel, and copies of certain ordinances. The defendants also offered in evidence a copy of an ordinance and a copy of an amendment of the charter of the City of Cincinnati adopted during the pendency of this action to which the plaintiffs objected. The court reserved its ruling upon this objection until such time as it could be considered in the light thrown upon it by the briefs of counsel.

The plaintiff, William C. Adams is assistant Police Chief ranking immediately below the Police Chief and is the only member of the police force of that rank. The exact status or rank of the plaintiff Clem Merz is the disputed point in this case. The plaintiffs contend that his rank is that of Superintendent of Crime Bureau, and that this places him in rank immediately below the Assistant Police Chief and that as he is the only member of that rank in the police department, the plaintiffs contend that they and they alone, are the only members eligible to take the promotional examination to fill the position of Police Chief.

On the other hand, the defendants contend that the rank or grade of the plaintiff Merz is that of major, next in rank to that of Assistant Police Chief, and, as such, eligible to take the promotional examination for the position of Police Chief, but that as there are several other members of the police force of equal rank, they are all eligible to take the examination. In effect, the injunction granted excludes these other majors from entering the contest for promotion to Police Chief.

As disclosed by the testimony and ordinance in this case, as we enter the period material here, members of the police department of the grade or rank of captain were eligible to take an examination for promotion to the rank of Police Chief. All captains were of the same rank or grade and all were equally eligible. Sometime in the late 1920s or early 1930s a rank or grade styled “Major” was created, but whether the authority was different or higher at any time than that of captain is not clear and is unimportant, as many years ago the position or grade was consolidated with that of captain, the only vestige remaining being the honorary title of major applied to those captains who had been majors.

In the course of time these captains or majors were assigned specific duties by their superior officer, and these assignments acquired a certain permanency. They in time came to be designated by names indicating the nature of the duties, such as superintendent of crime bureau, superintendent of highway safety, etc., and for one reason or another the thought developed that a captain or major assigned to perform certain services should receive additional compensation. Finally, in recognition of an existing condition in the department, the city council, by ordinance, established six positions with salaries somewhat greater than the base salary of a captain. However, the City council was careful to expressly provide that the occupants of these positions should have the grade or rank of captain or major. In one instance only was this omitted, and that was in the codification and as soon as the omission was discovered, the city council, by ordinance restored the designation.

So we are of opinion that so far as the City of Cincinnati had the power, it exercised that power to place all captains or majors in the same grade or rank, and if the grade or rank established by the City of Cincinnati at the time this vacancy occurred is given effect, they are all equally eligible to contest at the promotional examination for Police Chief and this condition continued to the time this action was filed.

It has not been suggested that the captains or majors occupying these other positions within that rank or grade are any less qualified by their experience to discharge the duties of Police Chief than the Superintendent of the crime bureau. It is not claimed that placing all captains or majors on an equality of eligibility for promotion to the position of Police Chief would be arbitrary and a disregard of essential differences. Nor is it contended that the Civil Service Commission acted arbitrarily in ruling that all captains or majors were eligible to take the examination for promotion to Police Chief.

After the Common Pleas Court had entered its judgment in this case, the Council of the city of Cincinnati passed an ordinance to “clarify the procedure governing rank and promotions in the police force,” in which it was expressly ordained that “Within the ranks below that of assistant chief, the council shall establish such special positions having special duties, with preferential pay as the Council deems necessary; but the existence of such special positions shall not establish eligibility for promotion to the next higher rank. No special position established by Council within the ranks below that of assistant chief shall be filled without promotional examination.”

At the same meeting of the Council, it passed an ordinance to submit to the electors at the election to be held on November 7th, 1950, an amendment to the City Charter identical in terms with that of the ordinance. Said amendment was approved by a majority of the voters at that election.

We do not stop to consider what effect, if any, this later ordinance could be given as an independent legislative act in its application to a vacancy occurring prior to its enactment. In any event, we think it is competent to remove any doubt or uncertainty in the then existing ordinances. (50 Am. Jur., 326.) We do say, however, that no public employee — civil service or otherwise — has any vested right in the position he occupies, and by the same token no civil service employee has a vested right in a promotion status. Civil service employees are protected in their position and status against arbitrary interference — and that is all. No one has a vested right in a law.

The controversy, long continued as to the division of power between the State government and municipal governments, effected by Article XVIII of the Constitution, need not be reviewed here, although defendants’ counsel calls attention to a recent decision of the Supreme Court, in which no opinion was handed down which they assert is inconsistent with prior pronouncements of that court. The appeal as of right was dismissed, because no debatable constitutional question was presented. The record shows that there were other than constitutional questions involved, in that case, and as constitutional questions are not decided unless necessary, we think we may presume that this appeal was dismissed because the Supreme Court found that the judgment could be supported without deciding the constitutional issue.

The Supreme Court in Cincinnati v. Gamble, 138 Oh St, 220, held that “Matters relating to police and fire protection are of state-wide concern and under the control of state sovereignty” and therefore a municipal pension system could not be made to apply to the police and fire departments, contrary to general laws of the state. The court held that the home-rule provision of Article XVIII did not confer superior authority in such matters upon municipalities that had adopted home-rule charters. This was emphasized in State, ex rel. Arey v. Sherrill, 142 Oh St, 575, both of which cases involved the power of the City of Cincinnati over its police and fire departments, just as the case at bar does. A change of attitude as shown by these cases should be evidenced by more than an implication, from the lurking presence of the question in a later record. Defendants’ counsel do not ask us to conclude otherwise.

But both of these cases (Cincinnati v. Gamble and State ex rel. Sherrill, supra) involved conflicting actions by the state and municipality. They assumed that in the absence of conflicting state legislation, the municipality could legislate on the subject. It is expressly so stated in State, ex rel. Arey v. Sherill, supra, at 582 and 583: “It is claimed by virtue of these provisions of the charter and the administrative code the respondent is granted power and authority to hear and determine the charges against relator.”

“This claim must be sustained unless applying those provisions of the city charter and the administrative code to cases involving members of the police department creates conflict with general laws.”

Plaintiffs’ counsel do not contend that the State has enacted any law for the establishment of police departments by municipal corporations with provisions fixing duties, authority, salaries, order of precedence, etc. The only general law on that subject to which our attention has been called is §4374 GC, which provides that the police department of each city shall be composed of a chief of police “and such inspectors, captains, lieutenants, sergeants, corporals, detectives, patrolmen” — “as are provided by ordinance or resolution of council.” This statute not only does not limit municipal action, it expressly authorizes such action. Its only requirement is that there must be a Chief of Police.

But plaintiffs’ counsel so construe §486-15a GC, that it would operate as a limitation upon the power of the municipality to fix the order of precedence for promotion, and put it in conflict with the attempt of the defendants to treat all captains or majors as eligible to take the promotional examination for the position of Police Chief. Let us consider that section. We quote it in full:

“No position above the grade or rank of patrolman or regular fireman in the police or Are department shall be filled by original appointment. Vacancies in position above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. Promotion shall be by successive grades or ranks so far as practicable and no person in a police or fire department shall be promoted to a position in a higher grade or rank who has not served at least twelve months in the lower grade or rank. No competitive promotional examination shall be held unless there are at least two persons eligible to compete. Whenever a municipal civil service commission determines that there are less than two persons holding positions in the grade or rank next lower than the position to be filled and who are eligible and willing to compete, such commission shall allow the persons holding positions in the next lower grade or rank, and who are eligible, to compete with the person or persons holding positions in the grade or rank lower than the position to be filled. For the purpose of this section, an increase in the salary or other compensation of any one holding a position in a police or fire department, beyond that fixed for the grade or rank in which such position is classified, shall be deemed a promotion. Whenever a vacancy occurs in a'position above the grade or rank of patrolman or fireman in a police or fire department, and there be no eligible list for such grade or rank, the municipal civil service commission shall, within sixty days of such vacancy, hold a competitive promotional examination. After such examination has been held and an eligible list established the civil service commission shall forthwith certify to the appointing officer the name of the person receiving the highest rating. Upon such certification, the appointing officer shall appoint the person so certified, within thirty days from the date of such certification. If there is a list, the civil service commission shall, where there is a vacancy, immediately certify the name of the person having the highest rating and the appointing authority shall appoint such person within thirty days from the date of such certification.”

This section is a part of Chapter A of Division II of the General Code, by which the civil service of the state and its political subdivisions is governed. By its terms, it provides for municipal civil service commissions to execute its provisions. The defendants are the members of the civil service commission of the City of Cincinnati. In the discharge of their duty, they have ruled that all captains and majors are of the same grade or rank for the purpose of eligibility to take the promotional examination to fill the vacancy in the position of Chief of Police, and that ruling was based on the classification established by the municipal Council. Of course, if that classification and ruling are purely arbitrary, they cannot stand. If it had been shown that officials having entirely dissimilar duties to perform had been thrown into one class or grade arbitrarily, a different question would be presented. If it had been shown that the experience as superintendent of the crime bureau was entirely different from that of other captains or majors, and that such experience was clearly such as to give him greater qualifications for the position of police chief, it might be said that placing him in the same class with captains or majors generally would be arbitrary action by the City Council and Civil Service Commission, and that under such circumstances a court would be justified in enjoining such arbitrary action. No such showing has been made or attempted in this case.

Plaintiffs’ counsel rely solely on the terms of §486-15a GC, for their position that the superintendent of the crime bureau cannot be placed in the same grade or rank as captains or majors generally, and that it makes void the attempt of the City Council and the Civil Service Commission to so do.

We have been unable to find anything in §486-15a GC, defining the meaning of the phrase “grade or rank.”’ It assumes that there are grades or ranks, but it prescribes no standard by which to determine which is higher and which is lower. Counsel point to that portion of §486-15a GC, providing that “For the purpose of this section, an increase in the salary or other compensation of anyone holding a position in a police or fire department, beyond that fixed for the grade or rank in which such position is classified shall be deemed a promotion.” The case at bar does not involve a situation resulting from an increase of salary. We fail to see the relevancy of that portion of the section to the issue in this case. The range of the salary of captains or majors was between the minimum of $3240.00 to $4200.00. To say that the latter is the salary of the superintendent of the crime bureau and not that of a captain or major, is to disregard his classification as a captain or major. From the context of this section, it seems clear to us that the legislature was considering and determining what positions should be filled by promotional examinations only. It was not legislating as to eligibility to take the promotional examination at that point. At no place in this section, or any other section, so far as we have discovered, has the legislature prescribed any order of promotion. The most that it has done has been to say that there should be an order of promotion according to grades or ranks. It has not defined the terms or fixed a standard which a court can apply. It has left that to the sound discretion of the administrative department of the government — State or Municipal.

We have been cited to no case, and have found none, setting forth indicia by which to determine gradations of rank. That results, we presume, from the fact the agency having the authority to create the positions has the authority to prescribe the order of their importance. The intent of the creator of the positions as to their grades might be left to inference or, as we think as appears in this case could be expressly stated.

In State, ex rel. v. Cull, et al., Civil Service Commission, 140 Oh St, 207, the relator sought a writ requiring the respondents to “certify, appoint, and classify him as a permanent incumbent in the rank of engineer.” He had been a regular fireman and was promoted to a permanent position in the rank of marine engineer. He held this rank for several years, when he was notified that the City was discontinuing the use of fire boats and that as of that date' he was appointed temporarily to the lower rank of engineer. The action was to require his recognition as a permanent engineer. So it is obvious that the case involved a question of demotion — not promotion, and the rank or grade after demotion. The Court held he was entitled to the relief sought. At page 209 the Court said:

“The respondents contend that there is no difference in ‘rank’ between an engineer and a marine engineer. If left to inference, a difference in salary might not connote a difference in rank. However, the intention of the General Assembly in this respect is manifested by cognate §486-15a GC, which provides that for ‘the purpose of this section, an increase in the salary or other compensation of anyone holding a position in a police or fire department, beyond that fixed for the grade or rank in which such position is classified, shall be deemed a promotion.’ ”

We cite this case for three reasons: — (1) That a difference in salary does not necessarily connote a difference in rank, in the absence of a statute to the contrary; and, (2) That the case did not involve any issue of eligibility to enter a promotional examination; and, (3) That it does appear from the record that engineers and marine engineers had been placed by ordinance in distinct grades or ranks.

We conclude that the plaintiffs have failed to establish their right to an injunction, and that their petition should be dismissed. It is so ordered.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur,


source: Caselaw Access Project

author: By PHILLIPS, PJ.

license: Public Domain

text:
    LOCSAJ, Plaintiff-Appellee, v. ANGELO et, Defendants-Appellants. LOCSAJ, Plaintiff-Appellant, v. LOCSAJ, Defendant-Appellee.
    Ohio Appeals, Seventh District, Belmont County.
    Nos. 845, 846.
    Decided December 12, 1949.
    Esther Pinsky, Bellaire, for plaintiff-appellant and defendant-appellant Victoria Locsaj.
    Thornberg & Lewis, St. Clairsville, for plaintiff-appellee and defendant-appellee Joseph Locsaj.
   OPINION

By PHILLIPS, PJ.

In this opinion the parties will be referred to by the positions they held in the court of common pleas.

In case number 12608, filed in the court of common pleas, Victoria Locsaj sued her husband, Joseph Locsaj, for alimony. Joseph Locsaj answered her petition and cross petitioned her for divorce.

The trial judge granted Joseph Locsaj a divorce on his cross petition on the ground of extreme cruelty, and allowed Victoria Locsaj the “sum of five hundred dollars ($500.00) by way of alimony and property settlement.”

In case number 12523, filed in the court of common pleas, Joseph Locsaj sued Victoria Locsaj and her daughter Rose Angelo for partition of real estate, legal title to which at the time of the marriage of the parties resided in Joseph Locsaj, but in which at the time of trial Joseph Locsaj and Rose Angelo each owned in common an undivided one-half part.

In that case the trial judge ordered partition of such real estate as prayed for by Joseph Locsaj.

In appeals numbered 845 and 846 on the docket of this court Victoria Locsaj appealed on questions of law and questions of law and fact respectively from the judgments entered in cases numbered 12608 and 12523 on the docket of the court of common pleas.

The appeal on questions of law and fact was not properly perfected as such from the judgment entered in case number 12608 (appeal number 845), but it appearing that a bill of exceptions was duly filed the words “and fact” were stricken from the notice of appeal and the appeal was retained, argued, submitted, and will be determined as an appeal on questions of law.

The appeal from the judgment entered in case number 12523 (appeal number 846) was properly made as one on questions of law and fact; and Victoria Locsaj having elected to submit it as such upon a transcript of the evidence submitted to the court of common pleas, to which Joseph Locsaj agreed, the appeal in that case was retained, argued, submitted, and will be determined as an appeal on questions of law and fact.

Victoria Locsaj filed no formal assignments of error in either appeal, but by brief filed in each appeal asks us the following questions, which we will treat as assignments of error in the appeal from the action for divorce and alimony, and will dispose of in our finding made in the appeal from the action for partition:—

“Did the court err in admitting testimony offered by the defendant and objected to by the plaintiff?

“Did the court err in not admitting testimony offered by the plaintiff and objected to by the defendant?

“Was the finding and judgment of the lower court contrary to the evidence?

“Was the finding and judgment of the lower court manifestly against the weight of the evidence?

“Was the finding and judgment of the lower court contrary to the law?

“Was the finding and judgment of the lower court contrary to the law and evidence?

“Was there error of law occurring at the hearing, and excepted to by the plaintiff?

“Were there other errors apparent upon the face of the record?”

Each of the parties had been married before. Victoria Locsaj had a minor daughter from her previous marriage, named Rose Angelo, a defendant in the suit in partition. Joseph Locsaj’s children were adults.

On October 31, 1942, the time of the marriage of the parties to the respective appeals, title to the real estate sought to be partitioned resided in Dafill Angelo, the deceased husband of Victoria Locsaj, which real estate was mortgaged for $1700.00. Joseph Locsaj paid the costs of administration of Dafill Angelo’s estate, and liquidated the mortgage indebtedness on such real estate, which was purchased from Dafill Angelo’s estate by him and his wife, Victoria Locsaj. Subsequently Joseph Locsaj expended $2150.00 in repairs, alterations and improvements thereon, making his total investment in such real estate approximately $4,000.00. On the 11th day of December, 1943, Victoria Locsaj conveyed her undivided one-half interest in the real estate sought to be partitioned to her daughter, Rose Angelo, deed to which was recorded in August, 1948, in which conveyance Joseph Locsaj released his right and expectancy of dower in such real estate.

Joseph Locsaj gave his entire substantial earnings to Victoria Locsaj from the time of the marriage of the parties until 1948, when a dispute arose between the parties, which resulted in Joseph Locsaj retaining and handling his earnings until the parties separated late in 1948, and since that time.

While Victoria Locsaj alleged, and introduced evidence in the court of common pleas to show, that Joseph Locsaj struck, beat and otherwise abused her, no serious trouble developed between them until Joseph Locsaj began to handle his own funds. After that time Victoria Locsaj locked him out of their home, mistreated and abused him in other ways, not necessary to state, to the extent that the trial judge found that Victoria Locsaj was guilty of extreme cruelty toward him.

Further, the evidence discloses that because of the minority of Rose Angelo, at the time of the marriage of the parties to these appeals, Victoria Locsaj was receiving social security benefits, which after Rose Angelo reached her majority would have been suspended until Victoria Locsaj attained sixty-five years of age, if she did.

Considering the evidence briefly outlined herein, the trial judge said in his opinion “the relationship is now such that there is no hope of reconciliation”; and, in view of all the evidence, while granting Joseph Locsaj a divorce was of the opinion (as shown by his opinion) “that the plaintiff (Victoria Locsaj in case number 12608) should have something by way of property settlement with which to rehabilitate herself, and therefore, the court decrees that the defendant (Joseph Locsaj in case number 12608) pay the plaintiff (in that case Victoria Locsaj) the sum of five hundred dollars ($500.00) in full alimony and property settlement.”

We have reviewed the evidence submitted to the trial judge carefully; and two members of this court cannot reach the conclusion, at which Victoria Locsaj urges us to arrive, that the trial judge erred to her prejudice in any of the respects claimed by her upon which we pass.

Appellant’s counsel has failed to call our attention to “other errors apparent upon the face of the record” as alleged as a ground of error, nor to comply in respect thereto with the provisions of Rule VII of this court that her briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed in case number 12608, from which judgment Buckley, J., dissents.

Further we have carefully considered the evidence submitted to us in case 12523, and find no merit in the claims of defendants therein, Victoria Locsaj nor Rose Angelo, but do find that Rose Angelo and Joseph Locsaj each own in fee simple an undivided one-half interest in such real estate, which Joseph Locsaj is entitled to have partitioned. Therefore in that case partition of such real property is ordered.

Accordingly an entry in that case drawn in accordance with our finding and this opinion may be presented.

NICHOLS, J, concurs in judgment.

BUCKLEY, J, dissents in appeal No. 845 and concurs in appeal No. 846.


author: By THE COURT.

text:
    SCARAVILLI d. b. a. FLEET’S INN, Plaintiffs-Appellants, v. BOARD OF LIQUOR CONTROL, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4443.
    Decided May 12, 1950.
    Yale A. Barkan, Cleveland, for plaintiffs-appellants.
    Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted on motion by the defendant-appellee seeking an order dismissing the appeal on law and fact. The appeal is from the judgment of the Court of Common Pleas sustaining the Board of Liquor Control in rejecting the appellants’ application for a Class D-5 liquor permit. The appeal can be on questions of law only. Farrand v. State, 151 Oh St 222.

The motion will be sustained, but the case will be retained for hearing on questions of law. The appellants will be granted leave to file bill of exceptions, assignment of errors and brief in accordance with Supplement to Rule VII of this Court.

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


text:
    SCARAVILLI d. b. a. FLEET’S INN, Plaintiffs-Appellants, v. BOARD OF LIQUOR CONTROL, Defendant-Appellee.
    No. 4443.
    Decided October 9, 1950.
    S. Donald Friedman, Webber & Webber, Yale A. Barkan, Cleveland, S. Donald Friedman, William B. Webber, of Counsel, for appellants.
    Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for appellee.
   ON APPEAL AFFIRMING THE ACTION

OPINION

By THE COURT.

This is an appeal from a judgment of the Court of Common Pleas affirming the action of the Board of Liquor Control in affirming the action of the Director of the Department of Liquor Control in refusing to issue a D-5 liquor permit to the appellants.

Ten errors are assigned. The principal error urged is that the action of the Director in refusing to issue the permit upon the application of appellants was illegal, unfair and discriminatory. The action of the Director in refusing the liquor permit was based upon five grounds:

(1) Sales to minors.

(2) Employment of minors.

(3) Failure to serve meals.

(4) Failure to comply with sanitary regulations; and

(5) Failure to exercise reasonable care to discourage the activity or presence of prostitutes in or about the premises which appellants were conducting under a D-5 liquor permit theretofore issued to them.

The record affords support for all reasons assigned by the Director for his action although the appellants did take steps to correct their derelictions as to the employment of a minor by discharging her and by eventually conforming to sanitary regulations.

As we interpret the claim of the appellants it is that the Director had no authority to refuse the application of appellants for the issuance of a license. It must be conceded that the action of the Director preclude any modification or lessening of severity which would have been possible had the J order merely related to the revocation of an existing permit.

Without laboring the question, we are satisfied that the Director by virtue of §6064-7 and §6064-8 GC is given the power to issue or refuse permits in the first instance. Sec. 6064-8 (2) GC provides that the Department shall have the power to grant or refuse permits for the sale of beer and intoxicating liquor as authorized or required by the act. Sec. 6064-7 GC provides that subject only to the powers and duties of the Board as set forth in §6064-3 GC, all the powers and duties by the liquor control act vested in or imposed upon the Department shall be exercised and performed by the Director, who shall administer the affairs of the Department, excepting as otherwise specified in this act. The powers and duties set-out in §6064-3 GC do not vest the authority in the Board tc issue permits. It follows that this duty not having been specifically delegated to the Board is vested in the Director by §6064-7 GC.

The contention that a permit should first have been issued to appellants so that upon revocation they might have the benefit of a possible modification or lessening of the penalty might be urged as to any and all applicants for permits. Such a position in our judgment is not tenable. These appellants stand in no better situation respecting the right 2 to have a permit issued to them than would any other person upon an original application.

Any conduct upon the part of an applicant for a permit which discloses that, in probability, such applicant would, if licensed, conduct his place so as not to conduce to the health, morals or general welfare of the public is sufficient basis for the refusal of a permit. The Liquor Control Act in our opinion intends to empower the Department to make this determination as to the applicants either for a permit originally or upon renewal. As a matter of fact the Department has a better opportunity to judge the fitness of a permitee to have his license renewed than it would have respecting one who is applying for a permit for the first time.

It is not necessary to stress the fact that the charges against the appellants which the Director found to be supported by the evidence are of such serious nature as to justify the refusal of the permit.

We are satisfied that in the particulars we have discussed and in all others urged upon this appeal the appellants have not been denied any protection to which they are entitled under the law.

We find no error assigned well made.

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


author: By SKEEL, PJ:

text:
    STATE, Plaintiff-Appellee, v. LANGMAN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22236.
    Decided June 18, 1951.

      Lee C. Howley, Director of law, Jos. Stearns, Chief Police Pros., Cleveland, for plaintiff-appellee.
    Bravo & Bernstein, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ:

This appeal comes to this court on questions of law from a judgment finding the defendant guilty of keeping a room for gambling in violation of §13054 GC.

The facts are not in dispute. The defendant, with one avowed intention of testing the authority of the City of Cleveland to prohibit the operation of “Bingo” when conducted for alleged charitable purposes, made public announcement of his intention to operate such a game at 7921 Superior Avenue. His announcement stated that Bingo would be played at 1:30 P. M. March 29, 1951, the clear import of such announcement being to invite the public to participate. Twenty-five persons responded to the defendant’s invitation and engaged in the playing of “Bingo” until the game was stopped by the police.

The game of “Bingo” as played on the day in question, was as follows: The defendant, who at all times was in charge of the game, caused “Bingo” cards or slips to be sold to the persons desiring to take part. They were sold at the rate of three for ten cents. The players were seated at a long table and were furnished with a number of small black discs. Each Bingo card or slip had the letters “B-I-N-G-O” printed in large letters across the top. Below each letter were five squares formed by lines drawn vertically down and between each letter and before the letter “B” and after the letter “O,” which lines were intersected by five horizontal lines at equal distances of about three-quarters of an inch thereunder. In each of these squares numbers were printed ranging from one to seventy-five, except the center square under the letter “N” in the third line down was printed “Free Space.” When play was begun, the player would put a disc on the “Free Space.” The defendant had a wire cage so constructed that it could be turned on a central axis in which cage were supposed to be seventy-five small balls, fifteen of which had printed thereon the letter “B” and a single number ranging from one to fifteen; fifteen balls with the letter “I” and a single number ranging from sixteen to thirty; fifteen balls with the letter “N” and numbers ranging from thirty-one to forty-five; fifteen balls with the letter “G” and numbers ranging from forty-six to sixty, and fifteen balls with the letter “O” and a single number ranging from sixty-one to seventy-five. After causing the balls to be mixed up by turning the cage around, the defendant would draw them out of the cage one by one and call out the letter and number found on each, and if the player found that number under the letter called, on his Bingo card or cards, he would put a disc thereon. The first player to get the proper sequence of discs as determined by the defendant before play began would call out “Bingo” and would be declared the winner and would receive the announced prize of $1.50.

The police officers observed the defendant operate the first game which the defendant announced would be a “fill-up” game, meaning that all the spaces on the Bingo card would have to be covered by a disc. The defendant called out letters and numbers until two women called out “Bingo.” They were declared the winners and each received from the defendant a dollar and a half. A third player thereafter also claimed to have won, and she likewise was paid $1.50.

A second game was then announced by the defendant and after it had started the police officers put an end to the play, confiscated all of the “Bingo” equipment and arrested the defendant and his assistant. The undisputed evidence in the record is that the assistant a Miss Johnston, had been hired by defendant to sell bingo cards and to help conduct the game.

Although the defendant did not take the stand in his own defense, he did call his assistant “Miss Johnston” who insofar as the playing of “Bingo” as above described, on the afternoon of March 29, in a large room at the rear of 7921 Superior Avenue in the City of Cleveland is concerned, corroborated in detail the defendant’s conduct of a bingo game in the place and manner as charged by the State and supported by the State’s evidence. The defendant then attempted to show by this witness that the defendant conducted the game for the welfare fund of Owatanna Lodge. The court, upon objection timely made, rejected this evidence and the defendant made proffer thereof. The court did not commit prejudicial error in ruling out this evidence. In the first place, no foundation was laid to show anything other than that the witness’s opinion as to the relationship of the defendant with the suggested welfare committee was asked for and, second, the questions asked called for the witness’s conclusions and were therefore not admissible.

There are but two questions presented by this appeal:

1. Does the playing of bingo constitute gambling as the word is used in §13054 GC?

2. Did the court commit prejudicial error in instructing the jury that the ordinance licensing bingo passed by the City Council was declared unconstitutional by the courts?

The court’s instructions to the jury on the subject of the bingo ordinance was brought about by the defendant’s attempt to introduce evidence into the record on that subject. The defendant’s own conduct having made such statement necessary, he cannot now complain that the court’s instructions prejudiced his rights. In any event, while not otherwise pertinent, the court’s instruction correctly stated the facts about the “Bingo” ordinance. Such claim of error is therefore overruled.

Coming now to the remaining question of error. The statute under which the defendant was charged, that is §13054 GC provides as follows:

“Whoever keeps a room, building, arbor, booth, shed or tenement or canal-boat or other watercraft, to be used or occupied for gambling, or knowingly permits it to be so used or occupied, or being the owner thereof rents it to be so used or occupied, shall be fined not less than thirty dollars nor more than five hundred dollars, or imprisoned not less than ten days, nor more than thirty days, or both.”

The defendant, in his brief, sets forth the question intended to be presented by this appeal as follows:

“The principal issue in the case at bar is as to whether or not the court’s instruction to the jury relative to the law, was a correct charge. Is the operation of a Lottery for charitable purposes, within the purview of the gambling statute? * * * In effect, the court directed the jury to return a verdict of guilty against the defendant-appellant. We are not concerned so much with any attempted usurpation of the province of the jury by the court or the invasion of the province of fact finding which is the function of the jury, as we are with the patent error in the court’s interpretation of what constitutes gambling which is punishable under existing statutory law.”

It is conceded that the defendant-appellant operated a bingo game in which the players were required to pay for the right to participate and in which the winner of each game was selected entirely by chance. Under every definition “Bingo” as played for money only under the undisputed evidence in this case, constituted “gambling.” If, therefore, the defendant kept a room for the purpose of playing “Bingo” such conduct would constitute a violation of §13054 GC, as charged in this proceeding. This question was correctly presented to the jury, and upon a fair consideration of the evidence it seems clear that the jury could have come to no other conclusion but that the defendant’s guilt was established beyond any doubt whatever.

The defendant’s claim that the defendant was not using the room for gambling because the game was being conducted for a charitable purpose, was earlier disposed of in this opinion by finding that the defendant failed to introduce or offer any competent evidence on that subject. Even if it could be said that that question was a necessary issue in this case, that is, that the State must show that the game was played for the defendant’s profit, the state made out a prima facie case by introducing evidence that the defendant received the money paid by the players and made payment of portions thereof to the winners, the balance being found in his possession at the time of his arrest. Such evidence unchallenged and uncontradicted, would certainly be sufficient to sustain a verdict of guilty.

But the question of whether or not “Bingo” as shown by the evidence in this case was played for the benefit of, or in part for the financial gain of some charitable enterprise and not for the profit of the defendant, is not an issue in this case. The fact is that Bingo as played at the time and place here in question, constituted “gambling” insofar as the participants, including the defendant, were concerned. Whether, under the evidence, they or any of them could have been prosecuted for the violation of any of the other sections found in the chapter dealing with the subject of Gambling, is not here important. Nor is it material that under some circumstances (because the statutes have not been passed to provide against it) (there being no common law crimes in Ohio) certain conduct that would otherwise clearly constitute “gambling” can not be the subject of a criminal prosecution.

The statutes dealing with the subject of “gambling” are found in Chapter XIV, Part Fourth, Penal, Title I, Felonies and Misdemeanors, of the General Code. Each section of this Chapter deals with a specific subject entirely independent of the subject matter defined and prohibited in any of the other sections. The section here under consideration is not to be read in pari materia with the other sections of this chapter. State v. Simonian, 77 Oh Ap 210.

In the case of State v. Berkman, 78 Oh Ap 432, the defendant was charged with a violation of §13054 GC, that is, keeping a room to be used for gambling. The prosecution introduced evidence that defendant operated a “numbers game” in the premises. The court said at page 434:

“3. It is urged that ‘numbers games’ is not ‘gambling’ as the term is used in §13054 GC, but is a lottery and as used can be prosecuted only under §13064 GC. The material part of §13054 GC is:

“ ‘Whoever keeps a room ... to be used or occupied for gambling . . . shall be . . .’

“The word ‘gambling’ is used here in its broad or generic sense. Gamble means ‘to stake money or any other thing of value upon an uncertain event.’ (Webster’s New International Dictionary) A lottery is a specific type of gambling. This charge is not that the defendants gambled but that they ‘did keep a room to be used for gambling.’ ”

Syllabus 3 of that case reads:

“The word ‘gambling’ in §13054 GC is there used in its generic sense and is broad enough to include a lottery known as ‘numbers game.’ ”

The evidence clearly establishes that defendant kept a room for the purpose of gambling and did conduct ‘gambling’ therein. We therefore find that the first claim of error is not well taken.

For the foregoing reasons the judgment is affirmed. Exc. O. S. J.

HURD, J, THOMPSON, J, concur.


author: By SCHNEIDER, J.

text:
    DUNHAM v. BOARD OF EDUCATION OF CITY SCHOOL DIST. OF CITY OF CINCINNATI.
    Common Pleas Court, Hamilton County.
    No. A-121644.
    Decided July 12, 1950.

      George J. Weller, Cincinnati, for plaintiff.
    Henry M. Bruestle, City Solicitor, James W. Farrell, Jr., Asst. Solicitor, Cincinnati, for defendant.
   OPINION

By SCHNEIDER, J.

The first amended petition of plaintiff alleges that Edward Dunham, eight years of age, son of plaintiff, was denied admission to one of the public schools of defendant after he had previously been legally admitted and enrolled, because plaintiff refused to sign a card giving his consent to having his son vaccinated; that the action of the defendant-board was taken pursuant to a regulation of said board providing as follows: “No person shall be admitted as a pupil in any day school who does not show satisfactory evidence of immunization against smallpox.”

Plaintiff alleges further that the defendant-board operates and maintains both day and night schools and that pupils attend both, the night attendance being approximately forty per cent of the total; that said regulation is discriminatory and violative of Article II, Section 26 of the Constitution of the State of Ohio.

Plaintiff further says that his religious teachings and beliefs do not allow him, in conscience, to permit the use of medicine, surgery or man administered medication in any form and that for defendant to make plaintiff consent to vaccination of his son, as a condition precedent to the son being readmitted, is in violation of the constitutional privileges of the plaintiff.

Plaintiff asks this Court to enjoin the defendant and its agents from interfering with the right of plaintiff’s son to attend the public school in the district wherein he resides.

To this petition the defendant Board of Education of the City School District of the City of Cincinnati filed a demurrer on the ground that the petition does not state facts which show a cause of action.

Decision on this demurrer has been delayed pending the disposition by the Supreme Court of Ohio of the case of State of Ohio, Appellee v. Dunham, Appellant, 154 Oh St 63, 93 N. E. 2d 286, 289. This case resulted from the prosecution of plaintiff herein for the offense of contributing to the neglect of his son Edward in failing to provide him with the proper and necessary education, the action in that case having been predicated upon the same facts and circumstances set forth in the petition for an injunction herein.

The regulation under which the defendant Board of Education undertook the exclusion of plaintiff’s son from the public schools constitutes an exercise of delegated legislative authority and would seem to come within the provisions of the Constitution cited by plaintiff. However, in the syllabus of State v. Dunham, the Supreme Court of Ohio has definitely found that said regulation is valid, although the Court, in all probability, did not have before it for consideration the point herein raised by plaintiff. In view of its definite finding, this Court will hold said regulation to be valid and enforceable.

However, the demurrer filed herein is general in that defendant claims the facts stated in the petition of plaintiff do not show a cause of action. In this connection it is interesting to note from the opinion of the Supreme Court in State v. Dunham that there was no proof that the defendant had in any way prevented the vaccination of his son in the manner contemplated by §4838-5 GC. In other words, the Supreme Court of Ohio seems to be of the opinion that the defendant Board of Education has a duty to apply to the proper authority to provide vaccination, at public expense, for the child of this plaintiff, under the provisions of §4838-5 GC. Indeed, Judge Turner, in a separate memorandum, concurring, states that: “The way is pointed out in the majority opinion for the correction of this situation.”

Pursuant to the opinion in State v. Dunham this Court feels that a cause of action is stated in the plaintiff’s petition and that on proof in support thereof, plaintiff would be entitled to the relief prayed for. The demurrer therefore will be overruled.


author: By SCHMIDT, J.

text:
    DUNHAM v. BOARD OF EDUCATION, CITY OF CINCINNATI.
    Common Pleas Court, Hamilton County.
    No. A-121644.
    Decided October 26, 1950.
    George J. Weller, Cincinnati, for plaintiff.
    Henry M. Bruestle, City Solicitor, James W. Farrell, Jr., Asst. City Solicitor, Cincinnati, for defendant.
   OPINION

By SCHMIDT, J.

The defendant has filed a motion for judgment on the pleadings. The pleadings consist of the first amended petition, the answer and the reply.

The plaintiff seeks an injunction against the Board of Education of the City School District of the City of Cincinnati enjoining any interference by the Board with the right of the son of the plaintiff to attend public school in the school district. The substance of the amended petition is that the Board of Education under §4836-1 GC, is charged with the duty of providing a free education to children of school age residing within the school district; that plaintiff’s son, Edward Dunham, is a minor of school age residing within the district and that he has been refused admittance to the public schools because he cannot produce satisfactory evidence of immunization against small pox, which is required by Regulation 10.3 of the Board of Education, which provides as follows:

“No person shall be admitted as a pupil in any day school who does not show satisfactory evidence of immunization against smallpox.”

It is alleged that the plaintiff and his son are members of the Union Assembly of the Church of God whose teachings and precepts are opposed to the use of medicine or man administered medication in any form. It is claimed that for the Board of Education to compel the plaintiff’s son to submit to vaccination would violate the religious beliefs of plaintiff and plaintiff’s son and would infringe plaintiff’s rights of conscience and freedom of religion guaranteed by the Fourteenth Amendment of the Constitution of the United States and Article I, Section 7, of the Constitution of the State of Ohio.

The answer of the defendant admits the facts and allegations of the petition; denies that the regulation of the Board of Education which is attacked is unconstitutional; and alleges further, as a second defense, that the Court of Appeals of the First Appellate District of Ohio entered final judgment in favor of the defendant in the case of State of Ohio ex rel. Roy Dunham v. Board of Education of the City School District of the City of Cincinnati, Ohio, No. 7247, in which action plaintiff sought a writ of mandamus to compel the defendant Board of Education to accept his son in the public school without his being required to present a certificate of vaccination. It is alleged that this prior action involved the same parties and the same legal question which is involved in this proceeding, and that therefore the judgment of the Court of Appeals makes the matters set up in the petition in this action res ad judicata.

The plaintiff has filed a reply and also a stipulation which admits the facts set forth by the- Board of Education in its second defense and admits that the pleadings of Case No. 7247 in which the Court of Appeals rendered judgment for the defendant, copies of which pleadings are attached to and incorporated in the answer, are correctly set forth.

The motion for judgment on the pleadings is based upon the plea of res ad judicata.

The defendant contends that although the remedy in the Court of Appeals action, that is mandamus, differed from the remedy sought in this proceeding, that is injunction, the issues and the parties are identical. It is claimed further that the decision of the Court of Appeals denying the writ of mandamus is a final judgment, and that even though a proceeding to review the judgment is now pending in the Supreme Court of Ohio, the Court of Appeals judgment is a bar to the present proceeding.

The plaintiff argues that the cause of action set forth in this petition is essentially different from that involved in the Court of Appeals; that the pendency of the appeal in the Supreme Court of Ohio to review the Court of Appeals decision suspends the finality of the decision of the latter court, and that therefore there is no final judgment which is a bar to plaintiff’s action in this case.

It is also argued that in a prior action which was a criminal proceeding brought against Roy Dunham, the father, under §1639-3 GC, for neglecting or refusing to provide his son proper or necessary education, the Supreme Court reversed the conviction of the father for the reasons that no evidence had been presented to show that the father had in any manner prevented the vaccination of his son provided for under §4838-5 GC; and that there was no law which required a father to provide for the vaccination of a child.

In the opinion of this court, the decision of the Supreme Court of Ohio, in State v. Dunham, 154 Oh St, 63, 42 OO 133, referred to by the plaintiff, has no bearing upon the issues in the present case. That case involved an entirely different problem relating to the adequacy of the proof in a criminal prosecution brought against the defendant. The validity of the regulation of the Board of Education apparently was not placed in issue in that proceeding, or at least the court did not find it necessary to inquire into the validity of the regulation since it held that the evidence for conviction was insufficient even though the regulation was assumed to be valid.

It is the view of the court that the mandamus case decided by the Court of Appeals did involve the identical question and parties which are now involved in this injunction proceeding. The difference in the form of action between the two cases is immaterial in determining whether the Court of Appeals action is a bar to the present proceeding. All of the questions which the plaintiff is now raising in this action were either raised or could have been raised in the mandamus proceeding, and it is this test which determines whether the principle of res adjudicata applies rather than the form of the particular action in which the legal problem is presented. Quinn v. State, 118 Ohio St, 48.

The only question remaining before the court therefore is whether the appeal by the plaintiff from the Court of Appeals judgment, which appeal is not yet disposed of, prevents the application of the res adjudicata principle. An examination of the authorities supports the conclusion that when the prior judgment, which is asserted as the bar, remains in full force and effect and has not been reversed or otherwise set aside, the mere pendency of an appeal is immaterial. 30 Am. Juris., page 950, Section 218; Hixon v. Ogg, 53 Oh St, 361.

It is the opinion of the court therefore that the motion of the defendant is well taken and should be granted on the ground that the matter in issue in this case is res adjudicata. Additional reasons also exist justifying the granting of the motion. Sec. 11309, subparagraph 4, GC, provides that a demurrer to a petition may be filed when there is another action pending between the same parties for the same cause. A motion for judgment on the pleadings is sufficiently analogous to a demurrer to make applicable the foregoing provision.

Furthermore, it is my view, although not necessary for a decision on this matter, that the regulation of the Board of Education is valid, that it is a reasonable exercise of the authority vested in the Board of Education by law to provide for the health of the children under its jurisdiction, and that it does not infringe the constitutional guarantees of freedom of religion or the rights of conscience. In this view I am supported by the decision of the Supreme Court of Ohio in State ex rel. Milhoff v. The Board of Education of the Village of Barberton, Ohio, 76 Oh St, 297.

The motion is granted and an entry may be submitted accordingly.


text:
    NORTHERN BOILER COMPANY, Plaintiff-Appellant, v. DAVID et, Defendant-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22359.
    Decided October 29, 1951.
    Davis & Young, J. J. Corrigan, Cleveland, for plaintiff-appellant.
    Robt. J. Selzer, Asst. Law Director, Cleveland, for defendantappellee.
    (PHILLIPS, J,. of the 7th District sitting by designation in place of HURD, J, of the 8th District.)
   OPINION

By SKEEL, PJ:

This appeal comes to this Court on questions of law from a final judgment entered by the Common Pleas Court of Cuyahoga County. The plaintiff filed its petition seeking a mandatory injunction directing the City of Cleveland to issue a permit to cut the curb in front of its property located on West 88th Street in the City of Cleveland.

The petition alleges the following facts: — that the plaintiff owns a parcel of land, one on the west side of West 88th Street and one on Silverton Avenue in the City of Cleveland, both of which parcels are zoned for industrial purposes and that the plaintiff has operated an industrial business on the Silver-ton property for more than twenty-five years.

The petition further alleges that the plaintiff is presently building an addition to its plant on Silverton Avenue; that this property on West 88th Street is now being used to store building materials for the new addition; that there is no means of ingress or egress to its West 88th Street property, which has a frontage of about 200 feet on said street and that unless leave is granted to construct a driveway it will be impossible to remove its materials for use in the addition to its plant now under construction; that application was made to the Commissioner of Streets as provided by ordinance, and that notice of such application was served on the Councilman of the Ward in which such property is located and that such Councilman has objected to granting said permit so that the permit has been held up by the City of Cleveland.

That Section 135-2 of the Municipal Ordinance of the City of Cleveland provides:

“Except as to residential property, no permit shall be granted by the Director of Public Service to cut the curb within any ward of the city unless and until written notice of the application for such permit has been given to the member of council from such ward. If, within ten days after receipt of such notice, such member of council shall notify said director in writing of his objection to the issuance of such permit, such permit shall not be issued except pursuant to resolution of council; otherwise such permit may be issued any time after the expiration of ten days following the said required notice to the member of council.”

The petition then alleges that the said ordinance is unconstitutional.

The Common Pleas Court sustained a demurrer filed by the appellee, for the reason that the plaintiff had failed to allege that the City Council had refused to grant such permit by resolution or that application had been made therefor. In other words, it was held that until the plaintiff had exhausted his remedies by attempting to seek, and by being refused, relief from council, as provided for by the ordinance, the question of whether or not some part of the ordinance invaded his constitutional rights cannot be given consideration.

The rule as thus stated does not apply under the facts in this case. The right to ingress or egress from private property to the public highway upon which it abuts is a valuable right and can only be limited when necessary to guard the public health, morals or safety. The ordinance under consideration fails to define the circumstances upon which such right to ingress or egress should be limited or completely withheld. It simply places it within the power of an elected legislative officer to arbitrarily decide when a permit to break the curb’ will be issued.

37 American Jurisprudence, p. 667, parag. 53, provides in part:

“Delegation of Powers: A municipal council cannot delegate to one of its own committee or to any other municipal officer, the power to decide upon legislative matters properly resting in the judgment and discretion of the council, or, as held by some authorities, to one member of such governing body. Thus, when the exercise of discretion is involved, a municipal council cannot delegate the power of enacting police regulations, of issuing licenses, of enacting and enforcing building regulations, of determining what public improvements shall be undertaken and the character and extent of such improvements, of the approving of certain acts, of selling municipal bonds, of purchasing fire equipment, of entering into contracts generally, or of levying a tax.”

Also, on page 778, paragraph 160, we find the following:

“In accordance with settled principles that no American legislative body can constitutionally and validly delegate to administrative officers an exercise of discretionary powers which is arbitrary, it is established that any municipal ordinance which vests an arbitrary discretion in public administrative officials with reference to the rights, property, or business of individuals, without prescribing a uniform rule of action, making the enjoyment of such rights depend upon arbitrary choice of officers without reference to all persons of the class to which the ordinance is intended to be applicable, and without furnishing any definite standard for the control of the officers, is unconstitutional, void and beyond the powers of a municipality * *

The claims that the constitutionality of the ordinance is saved because it provides for an appeal to the council, and that the plaintiff is without remedy until such appeal is taken, cannot be supported. There is no appeal provided by the ordinance. In case an application to the Director of Public Service and notice to the Councilman, results in the latter filing an objection preventing the granting of the request, no procedure is provided whereby the matter is referred to the council for action, and whatever is done thereafter must be the result of following out procedures in attempting to secure the passage of a resolution by the council as an original matter.

There is no doubt but that the council of a municipal corporation is authorized by §3714 GC to regulate the streets and highways of such municipal corporation. But in exercising that right they cannot act in an arbitrary manner. So, in delegating the right to grant or effectively prevent a property owner to cut the curb as a necessary step in constructing a driveway to provide ingress and egress to a public highway from such abutting property, the rule or policy in determining the basis on which such permit will be granted or withheld, must be determined by the Council. Such a matter is legislative in character. The ordinance under consideration as above indicated, fails to provide such legislative policy and in delegating the right to one of its members to prevent a property owner from cutting the curb, so that ingress or egress may be provided from his property to the public thoroughfare upon which it abuts, for whatever reasons he deems sufficient, without spelling-out the legislative policy with regard thereto, constitutes the delegation of legislative authority to such councilman, and such ordinance is, for that reason, unconstitutional and void and of no legal effect.

12 Amer. Law Rep. 1435; 54 Amer. Law Rep. 1104; 92 Amer. Law Rep. 400, parag. 2 at page 401.

For the foregoing reasons, the judgment of the Common Pleas Court is reversed and the cause is remanded with instructions to overrule the demurrer and for further proceedings according to law. Exceptions. Order see journal.

THOMPSON, J, concurs.

PHILLIPS, J, dissents.


author: By HORNBECK, PJ.

text:
    STATE, Plaintiff-Appellee, v. CRAWFORD, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4550.
    Decided June 5, 1951.

      Ralph J. Bartlett, Pros. Atty., Edmund B. Paxton, Asst. Pros. Atty., Cdlumbus, for appellee.
    Roland G. Allen, Columbus, for appellant.
   OPINION

By HORNBECK, PJ.

The appeal is on questions of law from a judgment and sentence of the defendant-appellant on a conviction of guilty on count No. 1 which count of the indictment charged the defendant with unlawfully killing one, Lula- McCoy, while operating a motor vehicle without due regard for the safety and rights of others and so as to endanger the life, limb or property of other persons in the lawful use of the streets and highways. The second count of the indictment was a charge of driving a motor vehicle at a rate of speed greater than is reasonable and proper. The third count was a charge that defendant operated his motor vehicle while under the influence of intoxicating liquor.

The jury returned a verdict of not guilty on the second and third counts of the indictment.

Upon the conclusion of the State’s case in chief, defendant moved for a directed verdict which was overruled and after conviction, motion for new trial was duly filed and overruled. The action of the Court on these motions is made the subject of assignments of error.

In the general charge relating to the law of the case as related to the speed with which the defendant was operating the vehicle at the time of the collision, after quoting the applicable section of the statute, §6307-21 GC, the trial judge said:

“It shall be prima facie lawful for the operator of a motor vehicle to operate the same at a speed not exceeding the following: 20 miles per hour when passing a school building or the grounds thereof during school recess and while children are going to or leaving school during the opening or closing hours and when appropriate signs giving notice thereof are erected; 25 miles per hour in all other portions of a municipal corporation, except on state routes and on through highways outside business districts.

“Therefore, this not being a location where a school was being passed and it being a location outside of the .business district, the prima facie lawful speed at this location was 25 miles per hour.

“And the statute further provides, it shall be prima facie unlawful for any person to exceed any of the speed limitations in this or in other sections of this act.

“It will be noticed that said section provides that it shall be prima facie lawful to operate an automobile at a rate of speed of 25 miles per hour at this particular location.”

The Court continued and properly said to the jury that the ultimate test was whether or not the automobile of the defendant was being driven at a rate of speed which was, or was not, reasonable or proper taking into consideration all of the terms of the statute. The trial judge also charged on the assured clear distance ahead portion of the section of the Code. This charge of the Court is made the subject of an assignment of error. Appellant asserts that the scene of the collision of the automobiles, Bassett and Leonard Avenues, was not a 25 mile but a 35 mile per hour speed zone.

Traffic Ordinance of the City of Columbus No. 1279 designated Leonard Avenue at the scene of the collision as a through highway, and §6307-21 GC provides that it shall be prima facie lawful to operate a motor vehicle at a speed not exceeding 35 miles per hour on state routes or through highways within municipalities outside business districts. There is evidence in the record from which the trial judge and the jury could have determined that Leonard Avenue at the intersection of Bassett Avenue was outside business districts.

During the deliberations of the jury they were called to the courtroom by the trial judge to determine if they had reached a verdict and at that time the Court enjoined upon them the obligation to make every reasonable effort to agree upon a verdict. This action of the trial judge is made the subject of the 5th assignment of error predicated upon the claim that the language of the trial judge constituted in effect a direction to the jury that it must reach a verdict.

The ordinance was not offered in evidence and unless the trial judge must have taken judicial notice of the ordinance it was not brought to his attention. We discussed, at considerable length, the obligation of a reviewing court to take judicial notice of a municipal ordinance on an appeal from a conviction of- a traffic violation in City of Dayton v. DeBrosse, 62 Oh Ap 232, 234. The Supreme Court announced the doctrine in Orose v. Hodge Drive-It-Yourself Co., Inc., 132 Oh St 607, 9 N. E. (2d) 671, second syllabus:

“In reviewing the judgment of a municipal court on questions of law including the weight and sufficiency of the evidence, the reviewing court will take judicial notice of an ordinance of the municipality to the same extent as the municipal court did and had a right to take notice thereof.”

It will be noted that this pronouncement arose from an action instituted, tried and determined in a Municipal Court which action was predicated upon the violation of a municipal ordinance. The Court in the cited case held, first syllabus:

“A municipal court will take judicial notice of an ordinance of its own particular municipality.”

Thus, it is the obligation of a reviewing Court to take judicial notice only of those matters of which the trial court should have taken notice. The offense charged here arising in the Common Pleas Court and tried there did not enjoin upon the trial judge the obligation of taking judicial notice of the municipal ordinance of the City of Columbus designating Leonard Avenue as a through highway. The charge of the Court was not erroneous upon the state of the record.

Upon cross-examination of the defendant, he answered that he had been convicted of a charge of drunkenness in the Municipal Court of the City of Columbus and the jury was instructed on this subject as follows:

“Members of the Jury, there was evidence brought out on the cross-examination of the defendant as to a prior conviction of the defendant on a charge of drunkenness. In that regard, Members of the Jury, I say to you that in any criminal case, and I am only reading that part of the Statute, Sec. 13444-19 GC, as is pertinent to the matter at hand, namely, the introduction of this matter of drunkenness — now, I will go back — -Tn any criminal case where the defendant’s motive, intent, the absence of mistake or accident on his part is material, it may be proved whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another or subsequent crime by the defendant.’ ”

Counsel for the defendant noted objections and exceptions to this portion of the charge and although not argued in the briefs it is brought onto the record by the appeal. If this testimony was admissible under §13444-19 GC, the jury may have been of opinion that the proof of the offense of drunkenness was probative on the question whether or not the collision was the result of an unavoidable accident. It may have concluded that this proof of a conviction of another crime tended to show that the collision was not accidental. The charge in our judgment was erroneous and prejudicial. The statute has no application to any of the charges in the indictment. If it could have application to any of the charges it would be that of drunkenness, an element of the offense charged in the third count of the indictment, and it was not restricted to that count. This statute is an enactment of the doctrine of scienter in criminal offenses where it is applicable. In cases involving the motive or intent with which an act is done it is competent to show the commission of like offenses if they tend to show the state of mind which actuated the defendant in the commission of the act charged. The offense of second degree manslaughter requires no proof of intent or motive and we doubt if that part of the statute which speaks of mistake or accident relates to an unintentional killing as is set out in second degree manslaughter and in the indictment. But, if it is conceivable that the statute could be given application it is required that the offense proven be a like offense. The charge here is the killing of a person in the commission of an unlawful act. The charge to which it is shown the defendant entered a plea of guilty was drunkenness and not a killing or driving an automobile while intoxicated.

Manslaughter as now defined in §6307-18 GC is predicated upon a violation of a law of this state applying to the use or regulation of traffic. Manifestly, a conviction of drunkenness under the city ordinance could not be an offense like unto that charged in the indictment here. In Steele v. State, 121 Oh St 332, the defendant was convicted of manslaughter based upon the violation of the ordinance of the City of Warren, Ohio. The Court reversed the judgment upon the authority of Johnson v. State, 66 Oh St 59, 92 N. E. 22, and disapproved and overruled paragraphs 3 and 4 of State v. O’Mara, 105 Oh St 94. The charge of the Court permitting the jury to consider the former conviction of the defendant of a charge of drunkenness for the purpose of refuting any claim of an unavoidable accident was, in our judgment, erroneous and it is readily conceivable that it may have been prejudicial to the defendant. Sec. 13449-5 GC.

The trial judge presented this case to the jury upon the defense that the collision was an unavoidable accident; (No exception to the correctness of this theory of the case has been suggested by the State.) that the foot brakes of defendant’s automobile suddenly became completely ineffective. Defendant testified that on the day before the accident he had purchased the car; had it completely checked and that it was in sound condition; that on the night of the collision he had driven it for considerable distance through city traffic; that he had stopped at several intersections because of traffic lights and that his foot brakes were working perfectly; that he saw the car which he struck at a distance of several hundred yards; that the traffic light had changed to green as he approached the intersection; that he thought the car ahead of him would move into and through the intersection; that he did not realize that it would not so move until at a distance of about sixty feet therefrom and at that moment he applied his foot brakes and then for the first time discovered that he had no such brakes. It further appeared that his emergency brake was set when his automobile was inspected after the collision. There was also testimony to the effect that on the day succeeding the collision an examination of the hydraulic brakes on defendant’s car disclosed that practically all of the liquid in the master cylinder had leaked out which would explain the failure of the brakes to operate.

The jury reached a verdict of not guilty of.the counts of the indictment charging the killing while driving in an intoxicated condition and driving at a rate of speed faster than was reasonable and proper and failing to stop within the assured clear distance ahead.

It is difficult to understand how the jury could consistently return the verdict of guilty under one count and not guilty under the other two inasmuch as they were so closely related. The fact that the jury did so return the verdict would not support a reversal were it not for the probable effect of the charge as given respecting the admission of the conviction of the defendant of drunkenness on the theory that it could be considered as tending to disprove any accident.

Inasmuch as the case may be tried again, we direct attention to another part of the general charge which, although we would not say was prejudicially erroneous, could be clarified. The Court used this language:

“Therefore, you will not only carefully examine the facts and circumstances in evidence pertaining to his brakes but you will also examine the facts and circumstances in evidence as to whether or not he could have avoided the collision with the Garrett car by going around it, if you do find that his brakes were defective through no fault of his own, and if perchance, you do find from the facts and circumstances in the case that he could have avoided the collision by going either to the right or to the left of the Garrett car, well, then, of course, he would be guilty of a violation and you may properly so find him under this particular section of the Code. If not, it would be proper for you to find him not guilty.”

•No doubt the trial judge meant to say to the jury that if it found that the brakes on defendant’s automobile were defective through no fault of his own and this condition caused the collision they could find that the collision was an unavoidable accident. We do not believe that it was proper to say to the jury, without qualification, that if the defendant could have avoided the collision by going to the right or to the left of the Garrett car he would be guilty of a violation of the section of the Code involved. Manifestly, he could have gone around the Garrett car if he knew or should have known that it was to remain in his line of traffic when he came up to the place occupied by the Garrett car at the time of the collision.

An instance where the trial judge should have admitted the testimony proffered by the defendant is found at page 186 of the record. The defendant claimed that he had been attacked after the collision and as a result he became temporarily unconscious. In discussing what happened, he said

“A. I came to just long enough just to hear something — I heard them say, T will fix him.’

Q. Then what happened?

A. Well, then, I felt something — I took it — it wasn’t a knife —it seemed more like a screwdriver or a chisel, and then right —I think it was right here — whether it was a fist or a foot, I don’t know.

Q. What did you see there as to what the wound was like?”

Upon objection, the witness was not permitted to answer this question. The question was proper and the answer should have been admitted. Of course, the witness would not have been permitted to discuss the character of the wound in medical terms but he could state in his own language how it appeared.

The Court did not err in refusing to sustain the motion of defendant to dismiss the first count of the indictment at the conclusion of the State’s case and the verdict and judgment are not against the manifest weight of the evidence.

For the error in the charge as to the application of §13444-19 GC, the judgment will be reversed and the cause remanded,

WISEMAN and MILLER, JJ, concur.


author: By THOMAS, J.

text:
    BURROWS, d. b. a. WARREN GARBAGE AGENCY v. WARREN (City).
    Common Pleas Court, Trumbull County.
    No. 59501.
    Decided March 14, 1951.

      Paul E. Kightlinger, Warren, for plaintiff.
    Joseph Craciun, Warren, for defendant City of Warren.
   OPINION

By THOMAS, J.

Plaintiff seeks declaratory relief in connection with his agreement of August 5, 1950 (herein called the Agreement) with the Board of Health of the City of Warren, by which Agreement he is given the “exclusive right to collect and remove garbage within the city of Warren” for a term of two years commencing October 1, 1950, and ending September 30, 1952.

First — Plaintiff asks the court to find invalid that portion of Section 8 of the Agreement which provides that “Garbage as defined in Ordinance No. 3924 shall include * * * tin cans. (Tin cans are those cans from which food is consumed by the family in the usual course by conducting a household.)”

Secondly — it is requested by the plaintiff that the court find that Ordinance 3994/50 has nullified his Agreement, and further it is requested that the court order the Board of Health to proceed with advertising “for separate bids and contracts for the collection of Garbage and Rubbish, and for both,” as directed by Ordinance 3994/50. The case was presented on the pleadings, stipulations, mutual exhibits, oral evidence, briefs and oral argument of Counsel.

The plaintiff, the defendant city, and the defendant Board of Health, have rights and legal relations which are affected both by contract and Municipal Ordinance. They are, therefore entitled to have a judicial determination of the contested questions which the plaintiff raises concerning the construction and validity of Section 8 of the Agreement, and of the effect on the Agreement of Ordinances 3924/50 and 3994/50 of the City of Warren. Sec. 13102-2 GC, and L. & A. Ins. Co. v. Jones, 152 Oh St 287, 40 O. O. 326.

It is admitted that the plaintiff has fallen behind in his garbage collections. One of the reasons advanced for this breakdown in this vital public health service is the necessity, under Section 8 of the Agreement, for the plaintiff to collect “tin cans” as well as animal and vegetable refuse. At least fifty per cent or more of the bulk collected by the plaintiff is “tin cans,” the evidence indicated. If “tin cans” were not being picked up, plaintiff says that there would be a corresponding increase in the amount of garbage carried in each load. Faster service would thus result, plaintiff insists.

It is established too that much confusion now exists with reference to the effect on the Agreement of Ordinance 3994/50 passed December 18, 1950.

The plaintiff wrote the Board of Health on January 3, 1951 that “the fact that Council has passed an Ordinance declaring its intent to advertise for bids in contemplation of a new contract or contracts for garbage and rubbish separately, has further confused the matter.” Plaintiff then added “It has become necessary that I ask for termination of the contract dated August 5, 1950.”

Subsequently the Board of Health took action refusing to terminate the Agreement, and indicating that it would take steps to forfeit his $5,000.00 faithful performance bond, unless he carried out the Agreement.

In view of these facts it is apparent that his “action is within the spirit of the declaratory judgment act, a real justiciable controversy exists between adverse parties, and speedy relief is necessary to the preservation of rights which may otherwise be impaired or lost.” L. & A. Ins. Co. v. Jones, supra. A case is therefore presented which justifies the granting of declaratory relief.

The first question raised by the plaintiff may now be considered.

Is That Portion of Section 8 of The Agreement Valid Which Provides That “Garbage as defined in Ordinance No. 3924 shall include * * * tin cans, etc.”

Section 8 of the Agreement in its entirety provides that:

“Garbage as defined in Ordinance No. 3924 shall also include sweepings, paper, wood, carton boxes and tin cans (Tin cans are those cans from which food is consumed by the family in the usual course of conducting a household).

However “tin cans” are not embraced within the definition of Garbage which is contained in Section 1(a) of Ordinance 3924/50, the Ordinance which fathered the Agreement; Section 1 (a) reads:

“That the word “garbage” as herein used is intended and shall be construed to mean and include fruits, vegetables, meats or any refuse accumulation of fruit, vegetable, or animal matter or anything whatsoever which will decompose and become foul, offensive or dangerous to health.”

The conclusion that Section 1 (a) does not include “tin cans” within the definition of garbage is reinforced by the express inclusion of “tin cans” in the definition of “Rubbish” which appears in Section 1 (b) and which reads:

“The word “rubbish” as herein used is intended and shall be construed to mean and include all inorganic refuse matter such as tin cans, glass, ashes, and sweepings, and shall also include wood, paper and carton boxes.”

Unless there is some other provision in Ordinance 3924/50 which modifies the plain unequivocal intent of Section 1 (a) and (b) to regard and classify “tin cans” as Rubbish, and not as Garbage, it follows that the language of Section 8 which designates “tin cans” as Garbage does not conform to Ordinance 3924/50.

Only one other section of the Ordinance conceivably might modify Section 1 (a) and (b).

This is the second paragraph of Section 6 which provides that:

“The holder of the garbage contract shall collect all combustible refuse including lawn, hedge, and tree trimmings, which shall be placed in suitable containers or shall be tied in bundles not to exceed three feet in length, arranged in such manner as to be easily handled by the collector.”

Undoubtedly the first part of Section 8 is thereby warranted. For “sweepings, paper, wood,” and “carton boxes, patently qualify as ‘combustible refuse.’ ”

But just as patently, “tin cans” according to common knowledge and human experience do not constitute “combustible refuse.”

There is good reason to believe, as the evidence indicates, that when the Agreement was signed it was understood that “tin cans” should be within Section Eight’s definition of garbage (thus necessitating collection) only if “tin cans” could be burned in the new incinerator.

If the designation of “tin cans” as Garbage in Section 8 hinged on the success of the experiment in burning tin cans in the new incinerator it is necessary to ascertain the success or failure of the experiment.

It is agreed by all parties that though, according to the incinerator’s sales promotion, the incinerator was represented to have tin can consuming propensities, in actual performance, the incinerator does not burn tin cans.

“Tin cans” not being “combustible refuse” the Garbage Contractor cannot be required to collect “tin cans” by reason of the last paragraph of Section 6 of Ordinance 3924/50.

It is concluded that the designation of “tin' cans” as garbage in Section 8 of the Agreement, is inconsistent and irreconcilable with the plain terms of Ordinance 3924/50.

Nevertheless defendant city contends that the plaintiff is bound by Section 8 because he consented to its inclusion in the agreement.

Counsel for the city says in its brief:

“As to (b) that said Contract of August 5, 1950, is invalid and unenforceable against Plaintiff by reason of nonconformity with the Ordinance No. 3924/50 and Plaintiff’s bid of July 7th, 1950, it is the city’s contention that plaintiff was fully informed and agreed to changes made in the contract and was aware of and consented to changes before and at the time he presented his bid in discussion with city officials.”

One answer to this contention is that the evidence shows that the parties agreed to Section Eight’s designation of “tin cans” as garbage only on condition that “tin cans” could be burned in the new incinerator. Now that it is definitely established that the new incinerator will not burn “tin cans” the justification for this latter portion of Section 8 ceases. Its justification being at an end that part of Section 8 which designates “tin cans” as garbage ceases to have further validity.

But a more fundamental reason exists for invalidating the attempt of the parties to alter and change the definition of garbage, as contained in Section 1 (a) so as to embrace “tin cans.”

To uphold the validity of Section Eight’s designation of “tin cans” as garbage, when Ordinance 3924/50 manifestly prohibits such a designation, would constitute an unlawful delegation of legislative power to the plaintiff and the board of health.

To uphold the validity of Section Eight’s designation of “tin cans” as Garbage, when Ordinance 3924/50 manifestly prohibits such a designation, would constitute an unlawful delegation of legislative power to the plaintiff and the Board of Health.

Only the City Council, not the Board of Health, has the power to legislate with reference to providing for the collection and removal of garbage and rubbish.

Council derives power to provide for the collection and removal of garbage and rubbish pursuant to the powers of local self government given to municipalities under Section 3, Article 18 of the Ohio Constitution. It may thereby adopt and enforce sanitary regulations which may include the establishment of a garbage and rubbish collection service as a municipal service. City of Canton v. Van Voorhis, 14 O. O. 413. If a municipal garbage and rubbish collection service is established its management is entrusted to the Director of Public Service by §4326 GC.

Council may also legislate in this field by virtue of several statutory grants of power. Secs 3649, 4470 and 4463 GC.

Sec. 3649 GC is a general grant of power “to provide for the collection and disposition of sewage, garbage, etc.”

Sec. 4470 GC permits the council to directly contract for the collection and removal of garbage and other solid waste substances. Such a contract would undoubtedly be entered into and conducted to performance by the Director of Public Service, §4211 G C.

Or city council, by §4463 GC, may empower the Board of Health with authority to contract for the collection of garbage and offal (which term is broad enough to include rubbish).

Historically §4463 GC is a vestigial remainder of a past era. It was enacted when municpal boards of health were departments of municipal government.

Boards of health since 1919 and the passage of the Hughes Act (108 Ohio Laws, part 1, 236) and the Griswold Act (108 Ohio Laws, part 2, 1085) as amended, are no longer part of local governments, but are city health districts which are separate political subdivisions of the state independent of the city with which they are coterminus. State, ex rel., v. Underwood, 137 Oh St, 1 and 5.

Boards of health are vested with numerous powers relating to the safe guarding and preservation of the public health (Secs. 4420, 4421, 4424, 4425, 4462, 4464 GC). In exercising any of these powers a board of health may exercise legislative authority. It may issue orders and regulations which have the same force and effect as municipal ordinances, §4413 GC.

However, boards of health are not directly vested with statutory power to contract for the collection and removal of garbage and offal.

The only authority by which a board of health may contract for the collection and removal of garbage and offal, it receives at the discretion of a city council under §4463 GC.

Sec. 4463 GC, says that “The Council may empower the Board of Health to employ such number of scavengers for the removal of swill, garbage and offal * * * as it deems necessary.” And that “In such case the Board may make contracts therefor, subject to the approval of Council * *

It is plainly implicit that in exercising the power delegated to it by council under §4463 GC, the board of health is restricted by the nature and the extent of the power granted.

A board of health, in carrying out council’s delegation of power necessarily is acting administratively, and not legislatively. It therefore would have no power to supercede the express commands and specific restrictions imposed by the very ordinance which gave the board its sole power to act in the matter.

Hence the Board of Health is powerless to promulgate a contract which in any respect contravenes or is repugnant to Ordinance 3924/50. Being invalid, that part of Section 8 which designates “tin cans” as garbage is wholly without effect, even though the parties consented to it.

Defendant city also contends that council ratified and adopted any changes which the agreement introduced.

Referring to Section 8 of the Agreement, counsel for the defendant city claims in his brief that “This change was approved as shown by approval of Resolution 1817/50 * * *. It will be noted that it was agreed “That the proposed contract for the collection of garbage and rubbish” was provided in this Resolution, which is proof that council consented to the inclusion of rubbish with garbage as agreed between the parties.” (the inner quote is from the Resolution.)

The use of the word “rubbish” in the Resolution cannot serve to incorporate Section 8 of the Agreement into the Resolution by reference, since Section 8 does not mention “rubbish.” On the contrary it classifies everything there described, as garbage.

, Nor can the Resolution serve to amend Ordinance 3924/50 because such Resolution does not conform to the procedure of §4226 GC, by which existing legislation can be amended.

The required procedure for amending Ordinance 3924/50 is well illustrated by Ordinance 3994/50. The latter Ordinance expressly states that it is an Ordinance “to amend the first and second paragraphs of Section 5 of Ordinance No. 3924/50, by change and addition.”

In the absence of an express intention in Resolution 1817/50 to amend Section 1 (a) and (b) of Ordinance 3924/50 which define Garbage and Rubbish it is concluded that Resolution 1817/50 does not and cannot ratify and approve the new definition of Garbage in Section 8 of the Agreement.

The answer to the first question raised by the plaintiff is that the wording of Section 8 of the Agreement which reads “and tin cans (Tin cans are those cans from which food is removed by the family in the usual course of conducting a household)” is clearly invalid. Being invalid it is not enforceable.

The second question raised by the plaintiff remains.

It is evident that Ordinance 3994/50 contemplates that the Board of Health shall procede to make separate garbage and rubbish collection contracts.

It is the expressed mandatory requirement of council that the Board of Health “immediately after the passage and legal publication of this Ordinance * * * shall advertise for bids for the collection of garbage, rubbish and both, covering the period of not less than five years at the option of the Board of Health.”

It is self evident that Ordinance 3994/50 is not self executing.

The Ordinance, standing alone, does not terminate the plaintiff’s agreement. It is only when the Board of Health undertakes the execution of the Ordinance, and pursuant to advertising lets a new contract for the exclusive collection of garbage, that the present Agreement might be superseded.

At that time plaintiff could abandon his Agreement. Or he could resist the letting of such a superceding contract. For such a new agreement would clearly invade and impair his Agreement with the Board of Health, if done within the two year term of the Agreement.

It is enough to say now that as long as the Board of Health does not carry out the mandate of Ordinance 3994/50 plaintiff’s Agreement is not abrogated by the effect or the implications of the Ordinance.

But the plaintiff asks the court to order the Board of Health to carry out the mandatory requirements of Ordinance 3994/50, to advertise for bids and let contracts for the separate collection of garbage and rubbish.

This the court cannot do.

It has been previously pointed out that a Board of Health is an independent political subdivision of the state. State, ex rel., v. Underwood, 137 Oh St, 1, 17 O. O. 298.

A Board of Health cannot be compelled by mandamus to carry out the provisions of a city ordinance requiring that the Board of Health issue milk and cream vendor permits, and to make necessary inspections. State, ex rel. Hanna, v. Spitler, 47 Oh Ap, 114.

There it was said by the 3rd District Court of Appeals:

“We find no provision of law making a board of health of a city health district subject or amenable in any way to the government of the municipality with which the district is coextensive, except that appointments of members of the board are made by the mayor of such municipality, and such board, under the law constitutes a governmental agency separate and distinct from such municipality and not in any way subject to the jurisdiction of the municipality. It is said in 20 O. Jur., 572, that: “Local health officers in the exercise of the power delegated to them are plainly engaged in' a purely public service in the performance of strictly governmental duties. They cannot in any sense be considered as the agents of the corporation, which is, accordingly, not liable for their negligence or misdoings.”

If a Board of Health cannot be compelled by mandamus to carry out mandatory requirements of a municipal ordinance, clearly here this court cannot issue any mandatory order which would compel the board to comply with Ordinance 3994/50.

If the Board, in its discretion, accepts the duty and power which Council seeks to vest the Board with under §4463 GC, the Board may act.

If the Board, in its discretion, declines to accept the delegation of power, given by Council under §4463 GC, Council is powerless to force compliance. This is true because the City and Board are coordinate branches of government, neither subservient to the other. And if Council cannot obtain compliance surely a private citizen cannot force the Board to carry out Ordinance 3994/50.

Council cannot compel the Board to act, any more than the Board could force the City of Warren to carry out a mandate, which the Board might seek to impose on the City through an order or regulation of the Board.

It is declared and ordered that the language of Section 8 of the Agreement which reads “and tin cans (Tin cans are those cans from which food is removed by the family in the usual course of conducting a household)” is deemed invalid, and said wording shall not be enforced.

It is further declared and ordered that except for the language of Section 8, herein declared to be invalid, the Agreement is in full force and effect.

It is further declared and ordered that the Agreement is not terminated or in any manner modified by Ordinance 3994/50.

It is finally declared and ordered that the Agreement may only be terminated in accordance with Section 16 of Ordinance 3924/50, unless, of course, it is terminated by agreement of the plaintiff and the Board.