author: By KLOEB, District Judge.

text:
    DECKER v. SPICER MFG. DIVISION OF DANA CORP.
    United States District Court, Northern District of Ohio, Western Division.
    Civil No. 6350.
    Decided November 26, 1951.
    William T. Burgess, Toledo, for plaintiff.
    William J. Higley, Toledo, for defendant.
   OPINION

By KLOEB, District Judge.

This matter comes before the court on the motion of the plaintiff to remand this case to the Common Pleas Court of Lucas County, Ohio, from whence it came.

Plaintiff’s decedent was an employee of the defendant corporation and, on September 1, 1944, he sustained certain injuries in the course of his employment for which he was paid compensation in a total sum of $2,750.00. He died on the 10th day of July, 1946, and, on October 21, 1946, plaintiff, the surviving spouse, filed her claim with the Industrial Commission of Ohio for death benefits. Her claim was heard before the Toledo District Board of Claims on July 1, 1947. and, in due course, was denied on the ground that the record failed to show that the deceased had met his death as the result of injury sustained in the course and arising out of his employment. Plaintiff then filed an application for reconsideration with the Industrial Commission bf Ohio, as provided by the Act, and, on August 13, 1947, the Commission sustained the finding of the District Board of Claims. An application for rehearing was filed by plaintiff and, on February 26, 1951, the Commission finally disallowed the death claim. In accordance with the provisions of the Act. the plaintiff then filed her petition in the Common Pleas Court of Lucas County, Ohio, this being the County “wherein the injury was inflicted” and, in due course, the defendant filed its petition for removal of the cause to this Court on the ground of diversity of citizenship. Diversity of citizenship appears to exist.

Defendant claims its right to remove by virtue of Section 1441(a) of Title 28 Judicial Code, which reads as follows: “Except as otherwise expressly provided by Act of Congress any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”

. It is the contention of plaintiff that the defendant, by submitting itself to the jurisdiction of the Industrial Commission of the State of Ohio, and the statutes governing the operation of this body, has waived its rights to remove this case from the State Court to the Federal Court, and plaintiff further contends that the necessary administrative functions of the Industrial Commission of the State are so interwoven with the proceedings necessary to arrive at a final conclusion, as to make it impossible for a Federal Court to assume jurisdiction on the ground that it is proceeding with a civil action.

Sec. 1465-90 GC appears to be the section of law most pertinent to the case before us. Because of the length of this statute, the court quotes only the most pertinent parts thereof as follows:

“* * * If the commission, after such hearing, denies the right of the claimant to receive or to continue to receive compensation it shall state the ground or grounds on which the claim was denied and if the claim was denied on any of the grounds hereinabove specifically stated then the claimant, within sixty days after receipt of notice of such action of the commission, may file a petition in the common pleas court of the county wherein the injury was inflicted, or in the common pleas court of the county wherein the contract of employment was made in cases where the injury occurs outside the state of Ohio. * * * If the claimant is seeking compensation from an employer who has qualified to pay compensation direct, as provided by §1465-69 GC * * *, the defendant in such action ■ shall be such employer and summons shall issue to such employer. Further pleadings shall be had in accordance with the rules of civil procedure. * * *

“Within ten days after the filing of the answer the industrial commission shall certify to such court a transcript of the record of such rehearing, and the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in such fund upon the evidence contained in such record and no other evidence; * * *. If the finding of the court or the verdict of the jury is in favor of the claimant’s right to participate or to continue to participate in such fund, the court shall certify such finding or verdict to the industrial commission and the commission shall thereupon order compensation to be paid in the manner provided by this act for the payment of other awards, and such certificate of the court shall be entered in the records of judgments of such court and shall for the purpose of error proceedings, be in lieu of final judgment in such cause but notwithstanding the judgment rendered, the commission may modify or revoke a finding that the claimant is permanently and totally disabled if it finds on evidence that the claimant is thereafter capable of doing work.

“No such certificate shall be placed upon the record of judgments until such certificate has been submitted to the attorney general and no entry except an entry setting forth the trial of the case and the verdict of the jury shall be placed-upon the record of the court until such entry has been so submitted.”

It is noted that the statute specifically designates the filing of the petition in the Common Pleas Court of the County wherein the injury was inflicted. In the case of Ford, Appellant v. Industrial Commission of Ohio, Appellee, 145 Oh St, 1, at pages 3, 4 and 5, 30 O. O. 236, 60 N. E. 2d 471, 472, we find the following:

“The syllabus in Industrial Commission v. Weigand, supra, reads as follows:

“ ‘After a claim has been denied by the Industrial Commission on jurisdictional grounds, §1465-90 GC, grants a claimant the- right to file a petition “in the common pleas court of the county wherein the injury was inflicted.” This is a special statute applying to cases brought under our Workmen’s Compensation Law. It relates not only to venue but to jurisdiction, since it selects the court which shall hear and determine such causes.’ * * * On the other hand, where there is an express statutory provision granting an appeal and providing in what county and what court a party entitled to appeal may file a petition, the statute is exclusive and the general provisions of the Code of Civil Procedure, relating to venue and jurisdiction, have no application. * * *

“A petition for appeal, where the workman suffers his injury in Ohio, can be filed only in the Court of Common Pleas of the county in which the injury was inflicted.”

It is also noted that §1465-90 GC specifically provides that “Within ten days after the filing of the answer the industrial commission shall certify to such court” (emphasis by the Court) “a transcript of the record of such rehearing, and the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in such fund upon the evidence contained in such record and no other evidence.”

It is noted further that the statute provides that, if the finding of the court or the verdict of the jury is in favor of the claimant’s right to participate or to continue to participate in the fund, the court shall certify such finding or verdict to the Industrial Commission which shall order compensation to be paid but that the Commission, notwithstanding the judgment rendered, may modify or revoke a finding that the claimant is permanently and totally disabled, and the statute further provides that no such certificate shall be placed upon the record of judgments until it has been submitted to the Attorney General, and no entry, except an entry setting forth the trial of the case and the verdict of the jury, shall be placed upon the record of the court until such entry has been so submitted.

It appears to this court, from a study of the Act itself, that this case is not properly removable to a Federal Court. The right to compensation is so dependent upon the administrative procedure outlined in the Act as to render the hearing before the court, in effect, but another step in the administrative procedure and not as such a civil action contemplated by Section 1441(a> of Title 28 of the Federal Judicial Code.

Under the court methods of determining and awarding damages for injury and death due to industrial operations, that obtained prior to the enactment of the Workmen’s Compensation Act, much delay and injustice ensued. Both employees and employers seemed to recognize this and to agree in Ohio back as far as the year 1912 that a new method ought to be devised to handle cases of this character. The establishment of an Industrial Commission by law was the result. A certain method of procedure that would result in the elimination of delays and injustices was outlined by statute, and the Commission was clothed with authority to act in all such cases. The appeal to the court after denial in a rehearing before the Commission was a necessary and logical step provided by the Act. In order to facilitate the appeal, the framers of the Act specifically designated a Common Pleas Court of the state to have jurisdiction in any given case, and the function of that court was strictly limited to a review of the proceedings had before the Commission. Upon the petition being filed with the court, the Commission is empowered to certify the transcript of the record which the court is expected to review, and the Act is definite in empowering the Commission to certify such a transcript only “to such court,” meaning, of course, the Common Pleas Court of the county wherein the injury was inflicted. In the opinion of this court, the Industrial Commission would have no authority whatever to certify a transcript of the proceedings had in this case to this Federal Court should this court decide to assume jurisdiction.

It is the opinion of this court that the administrative steps provided by the Act are inseparable from the right to review by a Court of Common Pleas; that a Court of Common Pleas of the county wherein the injury was inflicted is the only court that can function under the provisions of the Act; that the defendant in this case, having submitted itself to the jurisdiction of the Industrial Commission, is bound to follow the steps outlined by the Act; that the review by the court provided in the Act is not a civil action as contemplated by Section 1441 (al of 28 ü. S. C. A.; and that, therefore, the motion to remand ought to be and is sustained.

State of New Jersey v. Weinberger et al., D. C., 38 F. 2d 298, and Snook v. Industdial Commission of Illinois et al., D. C., 9 F. Supp. 26, have been helpful to the court.

An order is drawn accordingly.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    COLLINS, Exr., Plaintiff-Appellee, v. PATTON, Defendant-Appellant, BOERSTLER et, Defendants-Appellees.
    Ohio Appeals, Second District, Clark County.
    No. 489.
    Decided July 18, 1952.
    George C. Collins, Springfield, for executor.
    Corry, Durfey, Martin & Browne, Springfield, for the Women’s General Missionary Society of the United Presbyterian Church of North America.
    McGrew & Laybourne, Springfield, for William S. Patton.
   OPINION

By THE COURT:

This is a law appeal from the Probate Court of Clark County in an action to construe the will of Anna I. Patton, deceased.

Counsel stipulated that the facts stated in the petition were true. It is also agreed that the principal question for determination is: Does the real estate described in Item 7 become a part of the residuary estate and pass under the will to the Women’s General Missionary Society of the United Presbyterian Church of North America, or does the property descend as intestate property to the brother of the testatrix, William S. Patton? The determination of this question hinges on whether Item 9 of the will is a general residuary clause or whether it creates a particular fund, the balance of which is distributed to the Women’s General Missionary Society. The Probate Court held that Item 9 was a general residuary clause and that the real estate described in Item 7 passed to the Women’s General Missionary Society as a part of the general residuary estate.

In Item 7 of the will the testatrix devised to Mr. and Mrs. H. John Singer her real estate located on North Fountain Avenue, City of Springfield. Prior to the death of the testatrix both Mr. and Mrs. Singer died in a common accident. The will does not expressly provide for the contingency which may arise by reason of the death of both of the Singers prior to the death of the testatrix. It is agreed by counsel that the devise under Item 7 to the Singers lapsed.

Is Item 9 a general residuary clause? Item 9 in part is as follows:

“All the rest, residue and remainder of my estate I give, devise and bequeath to the Women’s General Missionary Society of the United Presbyterian Church of North America, etc.”

In 41 O. Jur., page 860, Section 740, the text is as follows:

“A residuary clause is the clause in a will by which that part of the property is disposed of which remains after satisfying previous bequests and devises. It is one which operates to pass all of the testator’s property not previously disposed of, and it includes legacies which may lapse by events subsequent to the making of a will, or property covered by illegal legacies or legacies which for some reason are prevented from taking effect. The words ‘all the rest, residue, and remainder’ are general words commonly employed in a residuary clause of a will to embrace every species of property not otherwise disposed of.”

In Vol. 41, O. Jur., Page 947, Section 831, it is stated:

“The modern rule is that a residuary clause carries all the estate of the testator not otherwise lawfully disposed of by the will, including void and lapsed legacies and devises.”

In the case at bar the testatrix did provide for the payment of pecuniary legacies and made two bequests of personal property and then provided for the disposition of the residuary estate.

In the application of the rule just stated to the provisions of the will under construction, this Court concludes, as did the trial court, that Item 9 constituted a general residuary clause. There is no provision in the will from which the court could conclude that it was the intention of the testatrix to create a particular fund, the balance of which passed under Item 9. Cases cited by the Appellee involved wills in which the testator had created a particular fund; the law in such cases has no application here.

We have considered Item 11 in construing the will. Item 11 confers on the executor the usual powers and authority in effecting the settlement of the estate. Item 11 is not a dispositive clause. This item only attempts to give instructions to the executor. However, in Item 11 the testatrix manifests her intention. to convert into cash all property, both real and personal, not otherwise disposed of. The real estate at the time of her death was npt otherwise disposed of except by reference to the residuary clause. There is no provision in Item 11 which in any way weakens Item 9 as a general residuary clause.

In our judgment, the trial court was correct in holding that the real estate did not pass as intestate property to the brother, but passed under the general residuary clause in Item 9 to the Women’s General Missionary Society.

We have been favored with a copy of the opinion of the trial court, the gist of which was carried into the judgment entry. We agree with the judgment of the trial court on other issues of minor importance without further comment.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

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


author: By SKEEL, PJ:

text:
    STEISAPIR, Plaintiff-Appellant, v. SEARS ROEBUCK & CO., Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22195.
    Decided October 8, 1951.

      Lawrence M. Rich, Cleveland, for plaintiff-appellant.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Edward F. McDermott, Asst. Law Director, Cleveland, for defendants-appellees.
    (DOYLE, J, of the 9th District sitting by designation in place of HURD, J.)
   OPINION

By SKEEL, PJ:

This appeal comes to this court on questions of law from a judgment entered for the defendant by the Common Pleas Court of Cuyahoga County. The plaintiff, by his petition styled “petition for injunction and equitable relief” prayed for an injunction prohibiting the defendant from using premises consisting of three lots, owned or under the control of the defendant, located on the east side of East 83rd Street immediately south of premises owned by the plaintiff, as a parking lot, and for egress into East 83rd Street from its parking lot now maintained east of and contiguous to the above mentioned lots.

The defendant is a New York corporation owning and operating retail department stores, one of which is located on Carnegie Avenue, the store being just east of East 83rd Street and extending to the northeast corner of East 86 and Carnegie Avenue. The defendant owns all of the frontage on the north side of Carnegie Avenue from East 83rd to East 86 Street for a depth of about two hundred feet. The defendant also Owns a strip of land about three hundred feet wide running directly north from its Carnegie Avenue property which land runs through to Euclid Avenue a distance of about 575 feet. The frontage on East 83rd Street and East 86th Street north of defendant’s property, except for the three lots here in question, is owned by others including the plaintiff.

All of the property of the defendant, fronting on Euclid and Carnegie Avenues, is zoned for retail business. ' The balance is zoned for commercial use. The plaintiff’s property and the lots in question in this action are zoned for multi-family or apartment house dwellings.

The zoning ordinance of the City of Cleveland was amended Jan. 29, 1950. Section 981-16 (c) of the amended ordinance provides as follows:

“Parking Lots: When in its opinion the best interests of the community will be served thereby, the Board of Zoning Appeals may permit temporarily or permanently the use of land in a Residence District other than a Limited One-Family District for a parking lot where the land abuts or is across the street from a District other than a residence District, provided that:

“1. The lot is to be used only for the parking of passenger automobiles of employees, customers, or guests of the person or firm controlling ‘and operating the lot, who shall be responsible for its maintenance.

“2. No charge is to be made for parking on the lot.

“3. The lot is not to be used for sales, repair work or servicing of any kind.

“4. Entrance to and exit from the lot are to be located so as to do the least harm to the Residence District.

“5. No advertising sign or material is to be located on the lot.

“6. All parking is to be kept back of the setback building line by barrier, unless specifically authorized otherwise by the Board of Zoning Appeals.

“7. The parking lot, and that portion of the driveway back of the building line, is to be adequately screened from the street and from adjoining property in a Residence District by a hedge or slight fence or wall not less than 4 feet 6 inches high and not more than 5 feet high located back of the setback building line; and all lighting is to be arranged so that there will be no glare therefrom annoying to the occupants of adjoining property in a Residence District, and the surface of the parking lot is to be smoothly graded, hard surfaced and adequately drained.

“8. Such other and further conditions are imposed as the Board of Zoning Appeals may deem necessary in any specific case to reduce the adverse effect of the proximity of a parking lot upon the character, development, and maintenance of the Residence District in which the said parking lot is to be located.”

The defendant filed an application with the Building Commissioner seeking the right to demolish the three single residence buildings on the three lots in question and establish thereon a parking lot with exits into East 83rd Street for cars parked thereon and as an exit from their parking lot contiguous thereto. The Building Commissioner refused the application and an appeal was taken to the Zoning Board of Appeals. A full and complete hearing was held after proper notice and upon due consideration the application was granted. The defendant then proceeded to demolish the buildings and to construct the parking lot and exits. While the work was in progress the plaintiff brought this action to enjoin the use of the property as a free parking lot for customers and employees and exit into East 83 Street by customers of the defendant.

Upon the trial of the case the following stipulations were entered into:

“Mr. Grossman: Your Honor, please, so that the record may be clear on the subject, I take it it can be stipulated, Mr. Rich, that the zoning ordinance here involved which went into effect January 29, 1950, was lawfully passed by the City Council and is a valid ordinance?

“Mr. Rich: It may be so stipulated.

“Mr. Grossman: Second, that the Zoning Board of Appeals, in hearing and passing upon the'matter here involved, had jurisdiction to consider the same and that all necessary notices were given to the proceeding?

“Mr. Rich: Yes, I stipulate that.”

The appellant’s assignments of error are:

1. The trial court erred in the interpretation placed on the words “best interests of the community” as used in Sec. 981-16(0 of the zoning ordinance above quoted.

2. In holding that the word “owner” as used in the zoning-law could apply to the defendant whose only right to title to the three lots was that of an option.

3. That the reasons assigned by the Zoning Board of Appeals for granting the defendant’s application for an exception as provided by Sec. 981-16 (c) did not justify the granting of such application.

4. That no hardship will result to defendant if the application were refused, while the granting of such application will be detrimental to the plaintiff’s property.

5. That the Zoning Board of Appeals is without power to grant exceptions to the provisions of the zoning ordinance.

6. That the proceedings before the Board were void because of improper notice to the plaintiff.

7. The holding is against the weight of the evidence and contrary to law.

In giving consideration to these claims, it must be remembered that the action in the trial court was an action seeking an injunction to prevent the defendant from making a parking lot out of the property in question, although the defendant’s application, seeking an exception under Sec. 981-16(c) had been granted by the Zoning Board of Appeals. The Zoning Board of Appeals is invested with the power, by the provisions of the ordinance, within the limits and upon the conditions therein prescribed, to grant the exceptions.

The authority of the Zoning Board of Appeals to act upon the defendant’s application is not questioned by the appeal. Nor is any question presented as to the procedure followed. The stipulation above quoted was to the effect that the ordinance had been legally passed, was a valid ordinance and that all necessary procedural steps had been taken. We are concerned therefore with just two questions:

1. Does the order of the Zoning Board of Appeals come within the scope of the authority conferred upon them by Sec. 981-16(c) and,

2. If so, in the exercising of such power in making the order permitting the use of the property here under consideration, for parking of automobiles, was the Board guilty of an abuse of discretion?

Section 981-16(c) supra, in part, provides:

“When, in its opinion, the best interests of the community will be served thereby” * * *

the Board may permit permanent use of land, in a residence district other than where the use is limited to one-family residences, for use of employee or customer parking of passenger automobiles, where such property abuts or is across the street from a district other than a residence district.

All of the circumstances of the defendant’s property come within the requirements of the ordinance. The trial court, as did the Zoning Board of Appeals, interpreted the word “community” used in the ordinance, as meaning the community at large, as distinguished from the contention of the plaintiff that the term must be interpreted as meaning the immediate neighborhood. We conclude that the term as used in the ordinance was correctly interpreted by the Board and by the trial court.

The burdens, as well as the advantages, which affect the economic value of property, because of concentration of traffic in great metropolitan centers, are included in the • incidents of ownership of property. Such problems go beyond the immediate neighborhood and affect the whole community. Whether the plaintiff’s property is adversely affected is not the question. The interest of the community is the principal consideration. The conclusion of the trial court that the Zoning Board of Appeals was under all circumstances, justified in granting the exception to the use of the three lots as requested by the defendant, is well supported by the record. The Zoning Board of Appeals, in granting defendant’s application, was not guilty of an abuse of its discretion.

We find that the claims of error of the plaintiff are not well taken and are therefore dismissed.

The judgment of the trial court is affirmed. Exc. Order see journal.

DOYLE, J,- THOMPSON, J, concur.


author: By McBRIDE, J:

text:
    DAYTON (City) v. BRENNAN, Defendant.
    Municipal Court (Criminal Division).
    No. 97074.
    Decided August 13, 1952.

      Cecil Edwards, Pros., Arthur T. Eaton, Dayton; for complaining witness.
    Albert Scharrer, Paul Ziegler, Dayton, for defendant.
   OPINION

By McBRIDE, J:

This case originated with the filing of an affidavit by Charlotte Wilkinson charging that on or about the 20th day of April, 1952, Larry Brennan, while operating a motor vehicle on Main Street failed to obey a red signal traffic light at Apple Street in Dayton, Ohio, thereby colliding with an Oldsmobile coach driven by Robert C. Wilkinson which was travelling eastwardly on Apple Street' with the green signal traffic light, contrary to Section 302 of the ordinances of the City of Dayton, Ohio.

On Sunday afternoon, April 20th, 1952, the defendant, an elected and part-time police constable of VanBuren township, was driving to the hospital to visit his wife. The constable was using his private car, in civilian clothes and not on duty. Entering Germantown Street, he observed a Box 21 car on an emergency run. The driver signalled him to follow. Defendant did so and reached the Dayton Speedway in Jefferson Township, where a racing car had crashed into the stands, killing four, injuring many and covering “hundreds” with an aluminum paint from drums which had been standing beside the stands.

When the defendant arrived, a deputy sheriff asked him to help move the crowd from the death car. Two bodies were still there awaiting the arrival of the coroner. The defendant worked with the crowd for several minutes and then moved away and conversed with friends. During this time, the seriously injured had been or were being taken to hospitals in ambulances and private cars. Others with minor injuries, paint and shock were standing around and leaving, as they were able, for a hospital for treatment and removal of the paint from their bodies. After 10 or 15 minutes, the defendant was asked if he would take a group to the hospital. He returned to his car and found three adults and two children waiting. One child was crying and carried by a woman whom he took to be her mother. The child appeared to have a leg injury. All, except the child, were “walking” cases. The defendant then mounted a flashing red light, which he had in the trunk of his car, and proceeded on an emergency run to the Miami Valley Hospital. He reached the hospital without incident. On the way, he used his radio to inquire as to the identity of a special policeman who had been killed. While at the hospital, he visited the morgue in an attempt to identify the party.

By this time, about one hour had elapsed. While at Miami Valley Hospital, defendant met a man who had made three trips to hospitals. Since this party had no red light on his car he asked to follow the constable back to the Speedway. Another man asked for a ride to the Speedway where he had left his car. Checking his red light, the constable proceeded with his passenger east on Wyoming and north on Main Street toward Apple. Earlier, at 3:06 P. M., the Sheriff’s office received word that additional ambulances were not needed.

The testimony of what happened at the intersection is long and includes occupants of two cars, one waiting north of the light and another waiting south of the light, both of which the defendant has no recollection. All of these witnesses, together with the occupants of the vehicle proceeding eastwardly, testified that the light was red for the defendant when he entered or that the operational factors were such that the light would have continued red until the defendant entered. They also fix the defendant’s speed at 35 miles per hour or more. The defendant testified his speed was somewhat less, and that the light changed a split second before he entered. He also testified that he used his horn continuously, saw the vehicle proceeding eastwardly, but accelerated his speed as he saw the light change.

The facts clearly indicate, and we find, that the defendant entered the intersection on the red light.

The defense claims that the constable was operating an emergency vehicle on an emergency run. We shall consider the nature of the vehicle first since those requirements are statutory. For this purpose, we have reviewed and include the sections of the motor vehicle act which refer to emergency vehicles. Secs. 6307-2 and 6307-44 GC were amended in 1951.

Sec. 6307-2 GC contains a definition of emergency vehicles.

“Fire department, police and state highway patrol vehicles, vehicles of salvage corporations, organized under §§9873 to 9879 GC, inclusive, and emergency vehicles of municipal or county departments or public utility corporations, when identified as such as required by law, the director, or local authorities, and motor vehicles when commandeered by a police officer, ambulances and motor vehicles when used by volunteer firemen responding to emergency calls in the fire department service when identified as shall be required by the director.”

Sec. 6307-44 GC gives the requirements for emergency vehicles.

“Upon the approach of an emergency vehicle, equipped with at least one flashing red light visible under normal atmospheric conditions from a distance of 500 feet to the front of such vehicle and when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the edge or curb of the highway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a police officer.

“Upon the approach of an emergency vehicle, as above stated, the operator of every street car or trackless trolley shall immediately stop such car clear of any intersection and keep it in such position until the emergency vehicle has passed, except when otherwise directed by a police officer.

“This section shall not operate to relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property upon the highway.”

Sec. 6307-4 GC permits emergency vehicles to proceed cautiously past red or stop signal.

“The driver of any emergency vehicle when responding to an emergency call upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety to traffic but may proceed cautiously past such red or stop sign or signal with due regard for the safety of all persons using the street or highway.”

Sec. 6307-24 GC excepts emergency vehicles from the speed laws.

“The prima facie speed limitations set forth in Section 21 (§6307-21 GC) shall not apply to emergency vehicles when responding to emergency calls and the drivers thereof sound audible signals by bell, siren, or exhaust whistle. This provision shall not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons using the street or highway.”

From ’ these sections, a portion of which are included in the municipal ordinances, it is clear that because of the absence of a siren, exhaust whistle or bell, the automobile operated by the defendant was not an emergency vehicle and therefore he was not entitled to the right-of-way granted by §6307-44 GC, nor was he entitled to proceed “cautiously past such red or stop sign” as provided in §6307-4 GC.

The existence of an emergency situation does not authorize an operator to disregard normal traffic regulations unless the vehicle he is operating is designated as an emergency vehicle. The statute indicates clearly in the foregoing sections when and how an emergency vehicle may make an emergency run.

Protection of the public requires that rules regulating emergency vehicles be enforced and relaxed only under the circumstances set forth in the statutes which warn others on the highway of the unusual danger.

The prosecution also contends that an emergency did not exist. The “disaster” to which the prosecution repeatedly referred is claimed to have terminated. This is a question of fact to be determined by the Court, since there was no jury in this case; however, in view, of our finding that the car in question was not designated as an emergency vehicle, a decision on the question as to whether an emergency existed is immaterial. We may say however that the radio call not to send further ambulances did not end the emergency in the case of every individual driver. Operators of some emergency vehicles too readily switch on a siren when neither life, limb nor property are known to be in jeopardy and thereby accept responsibility for additional harm.

The defense pleaded rather eloquently that an exception exists for an “errand of mercy.” Such an argument is wholly fallacious and must be expressly repudiated not only because the statutes recognize no such exception but also because an “errand of mercy” may become an errand to death or destruction for additional innocent parties.

Whether an emergency exists is a matter of fact for the Court and jury to decide under all the circumstances of an individual case. Otherwise it would be possible for an officer to drive, or direct a subordinate, to make an emergency run to reach a meeting on time, or it would be equally possible for a volunteer to rush a victim to a hospital in reckless disregard of the law even though his vehicle was not properly identified so as to warn the general public. These examples indicate the two statutory requirements which such vehicles must meet. They must be identified and announced as required by the statute and an emergency must exist. There are additional requirements under the municipal ordinances of Dayton, however, the general statutes cited determine the law of this case.

It is argued that the defendant cannot be found guilty unless the prosecution establishes a criminal intent to enter on the red light. Negligence is the failure to exercise ordinary care or a failure to perform an act required by law. Under the motor vehicle act, the doing or refraining from doing any of the definite acts specified in the statute constitutes not only negligence, but also what has been described as criminal negligence. In other words, the statute imposes an absolute duty and violation thereof constitutes a crime. Intent is not an element in a criminal prosecution arising under the definite requirements of the motor vehicle act. State of Ohio v. Saam (Saan), 36 O. O. 271 (CP Judge Lamneck), 50 Abs 5. Also 12 O. Jur. on the subject of intent.

This accident at Main and Apple Streets was a serious tragedy. It followed the Dayton Speedway disaster of April 20th, 1952, which started emergency vehicles screaming over the city streets for nearly an hour. The record discloses the tragic handicaps under which township and police constables operate.

In this case, a young, untrained and unexperienced constable went about his duties with enthusiasm but without a siren or exhaust whistle as required by law. He undertook the responsibilities of a police officer on January 1, 1952, using his private car, on which he was able to acquire only a red signal light. He was otherwise employed to support his young and growing family. We do not know how he acquired the radio, but recognize that many constables expend personal funds to equip their cars.

While the Sheriff is the chief law enforcement officer in the county, constables have equal and concurrent authority not only in the township in which they are elected or appointed, but throughout the county. This court is particularly conscious of the situation in which such officers find themselves, because it was our decision in Hoover v. Blackmore, 54 Abs 177, 84 N. E. 447 (4-14-49), which resulted in the establishment of legal traffic signs and signals throughout this county, resulting in additional enforcement problems for the constables. One of the arguments, which delayed such action by the county, was the inexperience and lack of qualifications of the township police officers. As a result of the resolution legalizing the county traffic signs and signals, constables responded without serious complaints although not all possessed vehicles identified as otherwise required by law to authorize them to perform regular traffic patrol duties. Sec. 12616-1 GC. Constables, who for practical purposes, are volunteers in that they must otherwise work for a living as well as supply their own equipment, have improved their efficiency locally without legislation and without financial assistance. Township trustees are unable, for many reasons, to supply constables with essential equipment for motor vehicles. Much has been said but little has been done to improve the antiquated system under which township enforcement officers operate. This case discloses that it is morally wrong to entrust such duties to officers who are not provided with the equipment so necessary for the protection of the public. Others have pleaded for changes and improvements for so many years that we have no reason now to believe that anything further this Court might add would achieve any results.

The Court has considered this case more thoroughly than is usual for a traffic violation for which the penalty is not significant, however, the extent of the personal injuries and the other circumstances are such as to justify all the attention that has been given it by the Court and by the attorneys in their presentation and argument.

Verdict: GUILTY.


author: By MILLER, J.

text:
    BEARD, Petitioner, v. STATE OF OHIO and ALVIS, Warden, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4537.
    Decided July 6, 1951.
    Donald F. Stair, Columbus, for petitioner.
    Hon. C. William O’Neill, Atty. Geni., Max H. Dennis, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By MILLER, J.

This is an original action in habeas corpus wherein the petitioner is seeking his release from the Ohio State Penitentiary.

The record reveals that on October 2, 1928, the Petitioner was indicted under §12400 GC for the crime of murder in the first degree. Preliminary to the trial on the indictment he was found to be insane and was ordered committed to the Lima State Hospital for the criminal insane until restored to reason. He remained at the Lima State Hopsital until April 16, 1934, when it was found that his reason had been restored and he was returned to Cuyahoga County for trial on the 1928 indictment. Upon trial being had the jury returned a verdict of guilty without a recommendation of mercy, which verdict was vacated on July 5, 1934, upon the granting of a motion for a new trial. Thereupon the petitioner retracted his plea of not guilty and entered a plea of guilty to the indictment. Upon this plea the Court by entry dated July 11, 1934, recommended mercy and sentenced him to a life term in the Ohio Penitentiary. The Court accepting this plea and sentencing the petitioner, consisted of only one judge. The petitioner was received at the Ohio Penitentiary on July 11, 1934, and is still in the custody of the warden of that institution.

The pertinent questions presented are:

(1) Did the Common Pleas Court of Cuyahoga County, consisting of only one judge, have jurisdiction to accept the plea of guilty and sentence the petitioner after the effective date of §13443-5 GC, which requires the impaneling of a three-judge court to determine the degree of the offense and pronounce sentence where the accused enters a plea of guilty to murder in the first degree?

(2) Does the finding and filing of an indictment constitute a pending criminal action within the purview of §26 GC, saving such prosecution from the effect of a later enactment repealing the effective statute at the time of the indictment?

The petitioner relies upon the ease of In re Knight, 73 Oh Ap 547, wherein it was held that since the enactment of §13442-5 GC, one judge has no jurisdiction to entertain a plea of guilty to first degree murder or to impose sentence thereon. Counsel for the respondent are in agreement with the legal principle announced in this case, but point out that it is distinguishable upon the facts from the case at bar, in that the indictment in the Knight case was returned during the April term of the year 1934, a date subsequent to the effective date of §13442-5 GC, while in the case at bar the indictment was returned on October 2, 1928, a date prior to the effective date of said statute, which became effective October 18, 1933. The applicable section which was in effect at the date of the rendering of the indictment herein was §13692 GC, and which reads as follows:

“Upon an indictment, the jury may find the defendant not guilty of the offense charged but guilty of an attempt to commit it, if such attempt is an offense at law. When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof. If the offense charged is murder, and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime, and pronounce sentence accordingly.”

This section was construed in the case of State v. Habig, 106 Oh St 151, to the effect that the court consisting of one judge was empowered to accept a plea of guilty upon a first degree murder charge and to impose sentence. At page 165 Chief Justice Marshall says:

“It was the undoubted legislative intent that all persons guilty of murder in the first degree, whether so found by the verdict of a jury or established by confession in open court, should have mercy if the facts and circumstances warranted it. This authority was in terms conferred only upon the jury, but §13692 GC confers upon the court certain powers which render the action of a jury unnecessary. The accused has confessed his guilt of homicide, thereby waiving the determination of a jury upon that question, but has not waived all consideration of the question of mercy. No legislative provision having been made for impaneling a jury after a confession of guilt in open court, it must be held that the legislature intended that all functions of the jury that could be exercised in defendant’s behalf might lawfully be exercised by the court.”

It is therefore our conclusion that at the date of the institution of the criminal proceedings a one judge court was empowered to accept the plea of guilty and to sentence the petitioner herein.

The question next arises as to the effect of §13442-5 GC which became effective in the interim between the date of the indictment and the entering of the plea of guilty. This, we think, is controlled by §26 GC which provides as follows:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings,' civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

It is our conclusion that the finding and filing of the indictment on October 2, 1928, was sufficient to qualify the charges against the petitioner as a pending prosecution within the wording of this section.

In the case of Harnett v. State, 42 Oh St 568, it was held that from the time of the defendant’s arrest and commitment on a charge of murder there was a prosecution within the meaning of the Revised Statute, Section 79, the wording of which is identical with the provisions of present §26 GC. In the cited case the Court clearly states its conclusion at page 576 as follows:

“Then as early as the arrest and commitment, for a crime for which he is afterwards indicted, the cause or prosecution is pending.”

See also State v. Morrow, 90 Oh St 202; Dennison v. State, 45 C. C. 748; Bergin v. State, 31 Oh St 111; 37 O. Jur. 432; Beach v. Glander, 153 Oh St 147.

We therefore find that at the time that sentence was imposed upon this petitioner under the facts presented one judge was empowered with the authority to accept the plea of guilty and pronounce sentence thereon.

The application will be denied.

HORNBECK, PJ, WISEMAN, J, concur.


author: By MILLS, J.

text:
    RAPA et v. HAINES et.
    Common Pleas Court, Montgomery County.
    No. 104036.
    Decided October 22, 1951.

      Samuel Levin, Dayton, for plaintiffs.
    Pierce Wood, Asst, to Pros. Atty., Dayton, for defendants.
   OPINION

By MILLS, J.

The petition of plaintiffs herein reads as follows:

“Plaintiffs herein, for their cause of action, say that they are each owners and occupiers of house trailers, located in Montgomery County, Ohio, which trailers are subject to an annual tax of $18.00 under $6292-2 GC which enjoins upon the Montgomery County auditor, the defendant herein, the duty of collecting said tax.

“1.

“Plaintiffs say that said statute §6292-2 GC is invalid and void for the reason that it contravenes Section 2, Article 12, of the Ohio Constitution, which provides that taxes levied upon property, according to value, shall be uniform and shall not exceed 1% of the value thereof, unless authorized by vote of the people, or the municipal charter. Plaintiffs say that this tax is not levied according to value, being $18.00 on each house trailer, regardless of value. Plaintiffs say that this is a specific tax on property without regard to the value thereof, and therefore in violation of Section 2, Article 12, of the Ohio Constitution.

“2.

“For their second cause of action, plaintiffs incorporate herein, as if specifically re-written, the first paragraph of their petition above, and say that said statute §6292-2 GC, provides for a penalty of $50.00, if the tax provided therein is not paid within thirty days after it is due. Plaintiffs say that this penalty is harsh, unreasonable, and oppressive, and violates Sec. 2, Art. 1, of the Ohio Constitution, which section guarantees equal protection of the law to all citizens. Said penalty of $50.00 amounts to 277% of the tax of $18.00 due on April 1, of each year, and amounts to 1111% of the tax of $4.50 due in the last quarter of the year, if ownership and occupancy of the house trailer begins during this period.

“Plaintiffs say that said penalty is a denial of the equal protection of the laws, inasmuch as other owners of personal property, subject to tax, are subject to a penalty of only 10% of the tax due, if payment is late, under §2657 GC.

“Wherefore, plaintiffs pray for a temporary restraining order, restraining the defendant herein, the county auditor of Montgomery County, Ohio, from any further collection of the tax levied under §6292-2 GC, and that upon the final hearing hereof, said temporary injunction may be made permanent, and that the plaintiffs herein may have all other proper relief to which they may be entitled in law or equity, including the refund of any unexpended portion of the tax collected by the defendant under said §6292-2 GC.”

This is an action for a temporary and permanent injunction restraining the defendant, the county auditor, from any further collection of tax levied under §6292-2 GC, and for any other and proper relief in law and equity including any refund of unexpended portion of the tax collected by the defendant under §6292-2 GC.

To this petition a general denial is filed by the defendants asserting that the tax is constitutional and enacted according to law.

The specific section of the statute, §6292-2 GC entitled “Tax Levy upon house trailers; purpose; rates; * * *” is too lengthy to incorporate in this decision. The principal question is whether the above tax law as enacted by the legislature is constitutional.

This cause was submitted upon an agreed stipulation of facts and briefs of counsel; the stipulation is as follows:

“By agreement of the parties, this cause is submitted to the court for determination of the legal issues involved upon the following stipulation:

“1. Plaintiffs are the owners and occupiers of house trailers located in Montgomery County, Ohio, which trailers are subject to annual tax of $18.00 under §6292-2 GC.

“2. Sec. 6292-2 GC enjoins upon the Montgomery County Auditor the duty of collecting said tax and paying the same over to the Montgomery County Treasurer.

“3. The tax levied by §6292-2 GC is not levied according to value, but is a specific tax, being $18.00 on each house trailer, regardless of value.

“4. Sec. 6292-2 GC provides for a penalty of $50.00 if the tax is not paid within thirty days after it is due.”

Quoting from 38 O. Jur., page 788:

“In the absence of any stipulation to the contrary, a sovereign state possesses the power of taxing all property held under it, and within its jurisdiction. Furthermore, the state constitution contemplates that all property physically located within the state shall be taxed unless clearly exempted by legislative enactment. (Citing Sandusky Bay Bridge Co. v. Fall, 41 Oh Ap 355, 181 N. E. 112.) And it has been declared that this power to tax necessarily involves the right to designate the property upon which it is to be levied.

“It has been asserted that ‘there is no constitutional limitation resting upon the authority of the general assembly to levy tax on property of every kind and character, except that it must be uniform and according to its true value in money.’ And further ‘The legislature has intended to reach, for the purposes of taxation, the property of every citizen, whatever its form may be, and which is not by law exempt, to the end that all shall bear their just share of the public burdens.’ (Citing Lewis v. State, 69 Oh St 473, 69 N. E. 980.)

“Under the present tax laws, all property, except such as is expressly exempted, is subject to taxation, there being, as previously stated, three classes, namely, real property, tangible personal property and intangible personal property, the classification of property for purposes of taxation being authorized by the Ohio constitution.”

Quoting from 47 American Jurisprudence 203: “While it is frequently declared that express constitutional requirements as to equality and uniformity of taxation are applicable to property taxes and not to excises, and while in a number of instances particular statutes imposing sales taxes have been held not violative of constitutional declarations providing in effect that taxes on property should be ad valorem and uniform upon the same class of subjects within the territorial limits of the authority imposing the tax, because of such constitutional provisions do not apply to excise taxes but only to property taxes * *

Quoting from Saviers v. Smith, Secretary of State, 101 Oh St 132, 128 N. E. 269, the first, third, and fourth syllabi read: “1. The power to tax is an attribute of sovereignty, and in this state is included in the general legislative power which is conferred by Section 1, Article II, of the Constitution, upon the General Assembly without limitation.”

“3. Under the general grant of legislative power conferred by Section 1, Article II, of the Constitution, the Legislature may tax rights, privileges, and franchises.”

“4. An excise is a tax imposed on the performance of an act, the engaging in an occupation, or the enjoyment of a privilege, and by the provisions of Section 10, Article XII, of the Constitution, specific authority has been conferred for the levying of such a tax.”

Let us look to the definitions of excise tax as given by different courts throughout the country.

Quoting from Great Northern Ry. Co. v. State, 200 Wash. 392, 93 P. 2d 694: “An ‘excise tax’ is not imposed on property, but is charge made for privilege enjoyed.”

From Holdcroft v. Murphy, 66 S. D. 388, 283 N. W. 860: “The annual motor vehicle registration fee exacted by statute is an ‘excise tax’ for revenue purposes imposed on the privilege of operating motor vehicles upon highways of state.”

California Institute of Technology v. Johnson, 55 Cal. App. 2d 856, 132 P. 2d 61: “The Use Tax is an ‘excise tax.’”

From Pure Oil Co. v. State, 244 Ala. 258, 12 So. 2d 861, 148 A. L. R. 260: “Privilege or occupation taxes for engaging in specified lines of business are ‘excise taxes.’ ”

From Mount Tivy Winery v. Lewis, 9 Cir., 134 F. 2d 120, 121: “An ‘excise tax’ is a tax imposed upon a particular use of property or the exercise of a single power over property incidental to ownership.”

From American Airways v. Wallace, D. C. Tenn., 57 F. 2d 877, 878: “The terms ‘excise tax’ and ‘privilege tax’ are synonymous.”

From State ex rel. Walls v. Wallace, 138 Oh St 410, 35 N. E. 2d 167: “The annual motor vehicle license tax is an ‘excise’ [tax] and not a ‘property tax,’ and therefore the statute imposing it is not affected by the section of the Constitution requiring certain property to be taxed by uniform rule according to value.”

Quoting from 132 Oh St 555, 9 N. E. 2d 684, State ex rel. Strubel v. Davis:

Syllabus 1: “Section 2 of Article XII of the state Constitution requires only lands and improvements thereon to be taxed by uniform rule according to value. By reason of the removal of previous constitutional limitations and restrictions, the power of the General Assembly to determine the subjects and methods of taxation and exemption of personal property therefrom is limited only by Article 1 of the Constitution of the state.”

Syllabus 2: “In the matter of classification of property for taxation purposes, broad power is conferred upon the Legislature. Its action in that regard will not be set aside by the courts unless the classification attempted results in such discrimination against members of the same class as to deny them the equal protection of the law.”

The legislature, in defining motor vehicle under §6290-2a GC, for the purpose of requiring the certificate of title under the motor vehicle law, held: “For the purposes of [§6290-2 and 86296 GCJ, the term ‘motor vehicle’ shall include a house trailer or house semi-trailer designed for humán habitation.”

Therein the legislature defines house trailers used for human habitation as motor vehicles and a specific use tax can be levied upon motor vehicles for their use upon the roads of this state; what then, it to prevent the legislature from enacting a specific tax for house trailers used for human habitation and which are classified by the legislature as motor vehicles, when the purpose of the specific act is for their use and occupation, and not according to their value?

Sec. 6292-2 GC having become effective as of April 1, 1951, there are no reported decisions involving its interpretation, and a review of the statutes in sister states does not reveal a tax of a similar nature which might assist in the understanding of the applicability of the Ohio Tax. An interpretation of the terms of the statute, as well as other code sections bearing on the subject of “house trailers,” must necessarily form the basis of the answer to this question.

The subject of taxation of house trailers was considered by the Ohio General Assembly in the adoption on July 6, 1949, of an Act entitled: “To amend 886290, 6292 and 12613 GC, and to enact supplemental 86292-2 GC relating to the levy of an annual license tax upon the ownership of house trailers and the apportionment of the funds collected.”

_ The amendment to §6290 GC, removed “house trailer” from the meaning of the term “trailer” and set forth a definition as follows: “7a. ‘House trailer’ means any self-propelled and non-self-propelled vehicle so designed, constructed, reconstructed, or added to by means of accessories in such manner as will permit the use and occupancy thereof for human,habitation whether resting on wheels, jacks or other foundation and used or so constructed as to permit its being used as a conveyance upon the public streets or highways.”

Sec. 6292 GC, before its amendment, dealt with the schedule of taxation rates based on vehicle ownership. This section was amended to levy a special license tax of $5 on every house trailer operating on the public highways of this state and to remove “house trailer” from the classification which assesses the license tax on trailers or semi-trailers on the basis of weight.

The only entirely new section in this act has been designated §6292-2 GC. It should be noted that ownership alone is not the basis for the tax but that the house trailer must be occupied for human habitation before tax liability, under this section attaches.

This court, upon examination of the aforementioned authorities and the definition by sister states and the Supreme Court of the State of Ohio of the words “excise tax” as a license tax or use tax and a license tax is no more than a license for the use of the property. This court is of the opinion the tax upon trailers, as provided for in §6292-2 GC is an excise tax for the use of trailers for human occupancy and is not in contravention of any constitutional guaranty, state or federal.

This cause coming on further to be heard upon the question of the penalty provided if the tax is not paid within thirty days after it is due, the court has examined numerous authority in the State of Ohio. The case of DeWitt v. State, Attorney General, 108 Oh St 513, 141 N. E. 551, 563, discusses at length the matter of penalties and different cases are cited. The court said: “The grant of power to the General Assembly to pass a compulsory law carries with it, as incident thereto, the power to include all such reasonable provisions as are necessary to make the law effective.”

And goes on further to say: “The plaintiff in error contends that his constitutional rights have been infringed in the respects above set forth. While it cannot be said that one who comes into court, confessing that he has failed to comply with the express provisions of a statute, is to be denied the privilege of asserting the invalidity of the statute as the reason for his noncompliance with it, still he must realize that any penalties that are visited upon him for such noncompliance with the terms of the statute are not to be complained of in the event of its being finally upheld.”

In that case the penalty amounted to almost $3,000 for noncompliance with payment of an industrial award, heard before the Common Pleas Court, in an Industrial Commission case, and was a question of the constitutionality of the legislators’ right to inflict the penalty. The court held it was constitutional.

In violations for overcharges for rent under the OPA, there are provisions for treble damages in certain instances, and in all of such cases the law has not been held unconstitutional.

In their brief, counsel for defendants refer the court to Western Union Telegraph Company v. State of Indiana, 165 U. S. 304, 17 S. Ct. 345, 41 L. Ed. 725, and Bankers Trust Co. v. Blodgett, 260 U. S. 647, 43 S. Ct. 233, 67 L. Ed. 439. Therein the courts have held the amount of the penalty for the state legislature to determine in its discretion.

The Supreme Court of Appeals of West Virginia in State v. Page, 100 W. Va. 166, 130 S. E. 426, 428, 44 A. L. R. 501, also cited by counsel for defendants, had before it the case of penalty for nonpayment of tax, contested on constitutional grounds, and said; “Is, then, the penalty imposed by the statute under consideration so excessive or disproportionate to the character and degree of the offense created thereby, that the courts can say that the Legislature exceeded its powers, under the Constitution? In view of what we have said regarding the power of the Legislature to levy and collect taxes, and the reasons given for conferring on the lawmaking body so great a power, is it not within the province of that body to determine the character and degree of the offense of one who refuses to contribute his share of the expenses of the state government? Perhaps the first duty of the Legislature is the preservation and security of the state. There is no way by which the Legislature c%n provide for the maintenance of the agencies of the government, but by taxation. If in any way the taxing power is interfered with, the whole system of government is impaired. The taxing power would be ineffectual, without the means of enforcing the laws in relation thereto. ' The Legislature must provide for the assessment of property and the collection of taxes, and does it not necessarily follow, that it is within the province of that body to prescribe the method by which such assessment and collection shall be enforced, even to the extent of the penalty that may be imposed for failure or refusal on the part of a property owner to return his property for taxation or to pay the taxes levied? Concealing property is a graver offense against the state than refusal or failure to pay taxes. When the property has been assessed and the amount of taxes ascertained, it is a comparatively easy matter to enforce collection; but if the property is concealed, in many cases the state has no means of discovering it, and the owner goes free. The Legislature has found it necessary to impose a penalty, to compel taxpayers to make returns of their property; and who is to say what that penalty shall or ought to be?”

Many fines for criminal violation of the law are by penalties exacted by the legislature for unlawful violation of an act. By reason of a heavy fine or penalty exacted by the legislature they are held constitutional.

Upon careful reading of §6292-2 GC, upon failing to register trailers to be occupied for human habitation, it anticipates the county auditor certifying the violation of the law by such owners and occupants of trailers, to the Prosecuting Attorney to bring a suit in order to recover the tax and the penalty. That takes into consideration the cost of such litigation in order to force a person failing to obey the law to pay his tax and the penalty. Such action would be a further burden upon the county and the taxpayers in order to enforce the collection of taxes. The legislature must have taken into consideration the costs of such enforced action.

Accordingly the court is of the opinion that the inflicting of such a penalty is not unreasonable, nor unconstitutional. Counsel will draw their entries accordingly.


author: By 'fHE COURT:

text:
    RAPA et, Plaintiffs-Appellants, v. HAINES Aud. et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2172.
    Decided April 3, 1952.
    Sam Levin, Dayton, for plaintiffs-appellants
    Mathias H. Heck, County Pros.. Peirce Wood, Special Asst Pros., Dayton, for defendants-appellees.
   OPINION

By 'fHE COURT:

This is a law appeal from the judgment of the Common Pleas Court holding that §6292-2 GC is a valid legislative enactment and denying the appellants an injunction against its enforcement by the proper public officials. This section of the Code provides that an annual tax of $18.00 per year is levied upon house trailers for the purpose of supplementing the general revenue funds of the local subdivision in which the trailer is located when it becomes due; that it shall become due and payable immediately upon the occupancy for human habitation of such house trailer, with certain exceptions.

The case was submitted on an agreed statement of facts which are fully set forth in the opinion of the trial court and will not be restated. From these facts it appears that the plaintiffs own and dwell in a trailer in Montgomery County and that the tax levied is not assessed according to the value of the trailer but that it is a specific tax. The trial court held that it was an excise tax “for the use of trailers for human occupancy and as an excise tax it is not in contravention of any constitutional guaranty, state or federal.” The Court was of the opinion that the statute under consideration was enacted under the iegislative power conferred by Section 1. Article II of the Constitution and that Section 2, Article XII does not impose a limitation on this power when the tax imposed is an excise tax.

One of the principal questions presented is the nature of the tax imposed under the act. Is it a real property tax or is it a tax for the enjoyment of a privilege, to-wit: the right to use a house trailer as a place for human occupancy? If it is the latter the case comes within the legal principles pronounced in the case of Saviers v. Smith, 101 Oh St, 132, syllabus 4 of which provides:

“An excise is a tax imposed on the performance of an act, the engaging in an occupation or the enjoyment of a privilege, and by the provisions of Section 10, Article XII of the Constitution, specific authority has been conferred for the levying of such a tax.”

We think the Court was correct in its classification of the tax.

It is also urged by the appellants that the penalty is excessive which constitutes a further reason for declaring the act unconstitutional. The Court refused to make such a finding and we are in accord with the same. Judge Mills wrote a lengthy opinion which we think amply supports his legal conclusions upon all of the issues presented and questions raised. Further authorities do not appear to be necessary.

The judgment will be affirmed.

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


author: By FREED, District Judge.

text:
    FELDMAN v. GROSS.
    United States District Court, N. D. Ohio, E. D.
    No. 28722.
    Decided June 10, 1952.
    Edward Lurie, Cleveland, for plaintiff.
    A. W. Thomas of Boer, Mierke, Thomas, McClelland & Handy, Cleveland, for defendant.
   OPINION

By FREED, District Judge.

Plaintiff, as Administrator of the Estate of Sarah Feldman, sues to recover compensation for wrongful death from the defendant, as Administratrix of the Estate of Saul K. Gross The parties received their respective appointments in Cook County, Illinois. Plaintiff is a resident of Illinois: defendant is a resident of Pennsylvania. The action arises from an automobile accident which occurred in Columbiana County. Ohio. Defendant was personally served in Cuyahoga County. Ohio while she was paying a one day visit to a relative. The suit was originally instituted in the Common Pleas Court of Cuyahoga County, but was subsequently removed to this court on defendant’s motion. Defendant now moves to quash service and to dismiss the complaint on the ground that the court is without jurisdiction over the defendant.

A single inquiry is presented: May a foreign administrator (administratrix) be sued in a state other than that of his appointment?

Sec. 10509-161 GC provides:

“The several courts of probate, common pleas and superior courts, shall have the same power and authority over such foreign executors and administrators as if they were appointed under the laws of this state.”

In Helme v. Buckelew, 1920, 229 N. Y. 363, 128 N. E. 216, 219, the Court of Appeals of New York, when called upon to determine the effect of an almost identical New York statute, construed it to be no more than a declaration of the common law rule permitting suits to be maintained against foreign executors and administrators to the extent of the decedent’s property located within the state. Speaking through Judge Cardozo, the court said:

“I think the true view must, therefore, be that the statute removes disabilities, but does not terminate immunities. These are what they always were. Foreign administrators and executors may sue in the same manner as nonresidents, for comity may enlarge the measure of their rights as plaintiffs without encroaching upon the jurisdiction of other courts, or overstepping the limits of our own. Foreign administrators and executors may be sued in the same manner as nonresidents, but only when the subject-matter subjects them to the jurisdiction; for comity, though it may enlarge their rights, cannot, unless it is also the comity of the domicile, enlarge their liabilities, and there is nothing in the status that unmistakably reveals a purpose to assume, in disregard of comity, a jurisdiction which the accepted principles and usages prevailing between different sovereignties have heretofore condemned.”

In Thorburn v. Gates, D. C. S. D. N. Y., 1915, 225 F. 613, 616, Judge Learned Hand limited the effect of the same New York statute to situations wherein property of the decedent was discovered in New York. Judge Hand stated his views as follows:

“Section 1836a of the Code of Civil Procedure of New York must be read in the light of these general ideas regarding the status of executors. No doubt the state of New York, as respects goods situated within its own jurisdiction, might provide that an executor appointed elsewhere should be its own representative, and that process served upon him within its own borders should be effective to determine the disposision of all such goods, Stacy v. Thrasher [6 How. 44, 12 L. Ed. 337], supra, McLean v. Meek, 18 How. 16, 15 L. Ed. 277. Yet if it attempted to go further than this, to take any steps towards the disposition of decedent’s goods situated elsewhere and under the existing administration of another state, it would violate the common understanding respecting such matters and expose itself to the disregard of its judgments by the state which had appointed the executor and assumed the direction of his official conduct. Moreover, since the fourteenth amendment, the assumption- of such a jurisdiction which conflicted with the exclusive authority of another state over a matter within its jurisdiction would itself be disregarded at the outset, at least in a federal court; nor would the executor be left to the assertion of the invalidity of such proceedings, when it was presented for execution or as evidence.”

Compelling reasons prompt this court to be in complete accord with these decisions. At common law a foreign personal representative was regarded as the agent of a foreign sovereignty and, as such was held to be without authority to bind the estate outside the state of his appointment. Brown v. Fletcher’s Estate, 1908, 210 U. S. 82, 28 S. Ct. 702, 52 L. Ed. 966; Burrowes v. Goodman, 2 Cir., 1931, 50 F. 2d 92, 77 A. L. R. 249. He was held to be accountable only to the courts of the state of his appointment. A judgment against him in the court of a foreign sovereign registered “a futile effort.” except as to the decedent’s property situate within the jurisdiction of the foreign court. Helme v. Buckelew, supra.

Research of the law in Ohio led to but one adjudicated case in which the constitutionality of §10509-160 GC was placed in question. In Craig v. Toledo, A. A. & N. M. R. R. Co, 1895, 3 Ohio Dec. 146, the Common Pleas Court of Lucas County rejected the contention that the statute should be limited in its application to instances wherein assets of the estate were found in Ohio.

Under the doctrine of Erie R. Co. v. Tompkins, 1938, 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, federal district courts are required to determine and follow the substantive law, both case and statutory, of the respective states where they are located. Generally speaking, the law of the state may be readily resolved from the decisions of the highest court of the state. In the absence of decisions of the highest court, the Erie-Tompkins rule has been extended to include the decisions of intermediate courts of appeal, except where it is convincingly found that the highest court of the state would rule in a contrary manner. Continental Casualty Co. v. Ohio Edison Co., 6 Cir., 1942, 126 F. 2d 423; Leithauser v. Hartford Fire Ins. Co., 6 Cir., 1942, 124 F. 2d 117. No case has been pointed out to the court nor has independent research disclosed any in which the Erie-Tompkins rule has been held to apply to decisions of courts of original jurisdiction whose determinations are not binding on other courts within the state. In fact, King v. Order of United Commercial Travelers, 1948, 333 U. S. 153, 68 S. Ct. 488, 92 L. Ed. 608, the Supreme Court concluded that a federal district court sitting in South Carolina was not bound by the decisions of the South Carolina common pleas courts. In Clarke v. Baltimore & O. R. Co., 6 Cir., 196 F. 2d 206, the Court of Appeals of this Circuit appears to indicate that a district court in Ohio was bound by a rule of law announced by a Common Pleas Court —a court of original jurisdiction — in Ohio. A careful reading of the opinion in the Clarke case reveals, however, that the court regarded the rule set forth in that Common Pleas decision simply a clear expression of the law as previously declared by the higher courts of the state.

In any event, the Craig case, supra, does not appear to constitute a clear-cut expression of Ohio law. The very words of the opinion clearly show that the decision resulted from temerity and misgiving to declare a statute unconstitutional. The Judge commented:

“I dislike very much to criticise or fail to follow such high authority; but I certainly cannot hold any statute of Ohio unconstitutional on the ground that it is ‘contrary to natural justice or the principles of international law,’ although the New Jersey court did so hold. * * * It may be possible for the Federal courts to establish and follow such a rule, but it could not be possible for the great number of courts, of final and inferior jurisdiction, in the several states of the Union to do so.”

The motion to quash service of summons will be sustained.


author: By CROSSLAND, J.

text:
    STRIETELMEIER et, Plaintiffs, v. ANGELO et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 32984.
    Decided October 4, 1951.
    A. M. Henderson, Youngstown, Meyer, Johnson & Kincaid, Marvin Lewis & Pugh, Knapp & Miller, Zanesville, for plaintiffs.

      William D. Holliday, Zanesville, for defendant Felix Angelo
    C. F. Taplin, Cleveland, Clarence A. Graham, Zanesville, for defendants, Harris Coal Co. and R. C. and L. M. Harris.
   OPINION

By CROSSLAND, J.

DETERMINATION AND OPINION PURSUANT TO REPORT AND RECOMMENDATIONS OF THE REFEREE.

The above cause, which had its inception with the filing of the plaintiffs’ original petition April 3, 1944, and its submission to the judge of the court following the last brief filed June 29, 1951, exceeding seven years, embraces evidence consisting of 723 pages of testimony and 35 designated exhibits, extensive pleadings, more extensive briefing, and the 82 pages of Referee’s Report, all of which the undersigned has fully and thoughtfully read, studied, analyzed and considered.

Believing that an early and concise expression of ultimate findings and conclusions, although brief, is preferable in the interest of all parties and of the litigation rather than a detailed exposition of all contended and controverted issues and a minutely stated disposition thereof, the undersigned will conform his' determination as to judgment accordingly.

The defendant Felix Angelo entered into two separate and distinct agreements with reference to his so-called Blue Diamond Mine No. 1 consisting of lands leased for coal stripping and marketing operations, ostensibly without knowledge by either party of the other’s contract with Angelo at the time of execution.

First in point of time was the Memorandum of Agreement between Felix F. Angelo and Harris Coal Corporation, dated July 1, 1942, covering sale by and through Harris Coal Corporation excepting principally “all coal not loaded out in railroad cars.”

Second in point of time was a contract between Felix Angelo and Henry W. Strietelmeier of August 3, 1942, which became the contract of plaintiffs’, covering stripping and loading, to continue “so long as there remains coal to be mined under said lease or so long as it is profitable to strip and load the coal underlying the above described real estate.” Said contract further provided “that all money received from the sale of coal stripped ahd loaded under this contract shall be paid to Henry W. Strietelmeier.”

Subsequently and before stripping and loading, sales and payments, each of said respective agreements became fully known to the other contracting parties dealing with Angelo, who thereupon entered into conferences and conversations relative thereto, out of which arose a practice or custom implementing the purposes and intentions of the respective contracts with Angelo, being in the one between Harris Coal Corporation and Angelo that the former should collect, distribute and disburse all receipts from rail loading sales and being in the one between plaintiffs and Angelo that plaintiffs should receive their money for stripping and loading “from the sale of coal stripped and loaded” rather than “all” money received therefrom.

For the purpose of the language of plaintiffs’ contract whereby it was agreed by Angelo “that all money received from the sale of coal stripped and loaded under this contract shall be paid to Henry W. Strietelmeier” it was not only unnecessary but, in the circumstances and fact of the Harris contract, undesirable that plaintiffs be paid all money received from such sales, as the Harris bookkeeping could, would and did logically and more simply distribute and disburse directly to the parties to whom due the money received by the Sales Agent of Angelo, Harris Coal Corporation, after rightfully under its own Angelo contract first deducting and substracting money due it, — Harris Coal Corporation in effect becoming and being agent of plaintiffs in remitting to them for stripping and loading.

The only legal significance of the earlier date of the Harris agreement is the undoubted right and privilege accorded the Harris Coal Corporation to make all sales collections of rail shipped coal, which thereby precluded the payment to plaintiffs of “all money received from the sale of coal stripped and loaded under this (plaintiffs’) contract.” To conclude that plaintiffs were willing or agreed to be paid directly no money so received would not only be to put an unreasonable and illogical construction upon the purposes and effect of the conversations between plaintiffs and Harris and of the resulting and ensuing practice and custom in Harris Coal Corporation direct remittances to plaintiffs, but would likewise be to attribute to plaintiffs a puerile lack of understanding of their own financial safety in the manifest light of their positive contractual security against the dubious state of Angelo’s credit. On the contrary, Angelo in his answer to plaintiffs’ third amended petition “admits — that the Harris Coal Corporation should collect all money for coal mined on said premises and sold by rail, and that The Harris Coal Corporation should pay to the plaintiffs their share of the money received from the sale of coal directly without the defendant, Felix Angelo, having any control whatever over said portion of the money or having any authority or right therein.”

As a matter of law, the undersigned believes that the two contracts which the defendant Angelo made should be reconciled if it is reasonably possible to do so, that it is possible to do so so as to preserve and fulfill the essential purpose and intention of each, that such was the reason and occasion of the Harris — Strietelmeier—Singer conferences and conversations, and that pursuant thereto in fact and in deed Harris Coal Corporation undertook to and did remit directly to plaintiffs money due them under their contract with Angelo, by which contract Angelo acknowledged plaintiffs’ right to be so paid and by which contract defendant Harris Coal Corporation was also bound in that connection, particularly after it had been giving effect to it throughout the entire period of the tripartite dealings except in the one month which is the subject matter of plaintiffs’ original action.

When defendant Harris Coal Corporation, without plaintiffs’ consent, paid to defendant Felix Angelo money which the latter admits “having no control over whatever, or having any authority or right therein,” in face of the fact that plaintiffs stripped and loaded coal for Harris to sell in the first instance only because and by reason of payment to them for stripping and loading by Harris direct, said defendant violated a confidence and trust reposed in it by plaintiffs and breached its duty to them, without legal excuse or justification.

Accordingly, there is due and unpaid plaintiffs from defendant Harris Coal Corporation the sum of Sixteen Thousand Seven Hundred Twenty Dollars and Ninety-nine Cents ($16,-720.99), with interest at the rate of six per cent (6%) per annum or $8,340.26 from and since February 25, 1944, and on $8,380.73 from and since March 25, 1944, for which judgment is given and execution awarded.

Relative to the further claims of plaintiffs’ third amended petition, the undersigned fails to find that the money owing plaintiffs by defendant Harris Coal Corporation constituted said defendant in law a trustee thereof, but rather a debtor thereof to plaintiffs, and consequently that wrongful payment of said sum of $16,720.99 by defendant Harris Coal Corporation to defendant Felix Angelo, while none the less making defendant Corporation still liable therefor with interest to plaintiffs, did not thereby make the unobligated payment by said Corporation to Angelo of an equivalent sum of money and its use, profits, benefits or dissipation or loss to or for Angelo or to or for R. C. Harris or L. M. Harris any fund or other property having the established characteristics of a recognized trust; and, therefore, such further claim is dismissed, with judgment accordingly in behalf of said defendants.

As to the Amended Cross-Petition of the defendant Felix Angelo, relative to the first, second, third and fourth causes of action, the undersigned finds from the evidence similarly as was found and reported by the Referee on page 70 of his Report, excepting that the amount of $560 otherwise previously due defendant Angelo from plaintiffs was liquidated April 5, 1944, when Angelo accepted and received credit from defendant Harris Coal Corporation of that part of the amount of $16,720.99 wrongfully paid or credited to him by defendant Corporation, for which payment or credit, unauthorized by plaintiffs, defendant Harris Coal Corporation remains fully liable to plaintiffs although thereby discharging the prior obligation of plaintiffs to defendant Angelo. The undersigned, therefore, finds against said defendant Felix Angelo and for plaintiffs on said defendant’s first, second, third and fourth causes of action, which are dismissed accordingly.

The issues and evidence relating to the defendant Felix Angelo’s fifth cause of action pose several interesting questions of fact and law. Plaintiffs’ contract stipulates its continuance “so long as there remains coal to be mined under said lease or so long as it is profitable to strip and load the coal underlying the above described real estate,”

There is considerable conflicting evidence as to whether or not coal remained to be mined under said lease, whether or not it was longer profitable to strip and load the underlying coal, and whether or not plaintiffs and defendant Angelo agreed as to the existence of either condition for termination, and the further question of law as to whether or not non-speculative damages are ascertainable even if plaintiffs breached said contract with Angelo.

Testimony of conversations between Strietelmeier and Angelo in early and late December, 1943, and early January, 1944, and of conversations between Singer and Angelo in early and late January, 1944, was given by Strietelmeier and Singer, each stating that Angelo agreed that the overburden of rock over the remaining coal and consequent increased expense of continued stripping under the existing contract was rapidly making their stripping unprofitable and that it could not continue profitably beyond February, 1944, at the outside.

The testimony of Angelo throughout was shifty, uncertain, unreliable and obviously prompted by a purpose of expediency on his part and the undersigned cannot escape arriving at the conclusion from the testimony of all three witnesses, Strietelmeier, Singer and Angelo, that the latter acquiesced in the expressed views of the two former that stripping and Loading operations could not continue beyond February, 1944, profitably to plaintiffs, and the undersigned so finds and that plaintiffs were not required by defendant Angelo to continue under their contract with him beyond that date.

The foregoing finding and conclusion is further supplemented in another aspect of the evidence. Inasmuch as the undersigned finds and considers that plaintiffs are entitled to recover for coal stripped and loaded by them in January and February, 1944, from defendant Harris Coal Corporation in an amount which defendant Angelo himself not only sought to prevent plaintiffs from obtaining but whicn he himself later requested, received, accepted and retained for his own use or account, Angelo thereby in actively participating and cooperating to frustrate and attempt to prevent plaintiffs’ receipt and collection of stripping and loading charges due them certainly made any question of continued physical operations not only financially unprofitable but financially impossible. Defendant Angelo could not be party to a financial wrong to plaintiffs under his contract with them and then claim liability to him because of their inability or unwillingness to continue minus payments for stripping and loading services already rendered.

The finding of the Referee against all of the defendant Angelo’s claims on his first four causes of action except for $560 supports the conclusion that non-payment to plaintiffs of $8340.26, February 25, 1944 and of $8380.73, March 25, 1944, were each without proper cause, that plaintiffs were then entitled to said respective sums less said relatively minor sum of $560, and that the later claim asserted in said defendant’s fifth cause of action was then at best contingent upon future default, proof of loss therefrom and ascertainment of damage thereby. Defendant Angelo’s own actions in seeking to contrive unfounded grounds for denial to plaintiffs of over $16,000 then admittedly due plaintiffs, as found and considered both by the Referee and the undersigned, fully excused plaintiffs from longer performing under their contract with Angelo, even if he had not expressly agreed to or acquiesced in their views as to the conditions for contract termination as therein provided and even if he afterward suffered loss reasonably ascertainable in damages.

The undersigned therefore considers and determines that there was no basis for damages to defendant Angelo by reason of contract termination on the part of plaintiffs; first, because Angelo agreed with Strietelmeier and Singer in their expressed views that it was no longer profitable to strip and load the underlying coal, and second, because Angelo effectively prevented plaintiffs from receiving payment of money earned and due them under his contract with them, which amount he subsequently induced their debtor to pay or credit to him.

In view of the foregoing findings and determination there is no need or occasion to resolve the extensive evidence as to whether or not coal remained to be mined under said lease or could be profitably stripped and loaded. The undersigned is constrained, however, to remark that upon the evidence of defendant Angelo’s operation of Blue Diamond Mine No. 1 there is a distinct impression of inept management and financial debility, no demonstration or even slight indication of any past profit, much less business solvency, and no criterion of any kind whatever for measuring or estimating any future profit or even guessing that he could, much less would, be able to conduct or manage a mining operation profitably at all.

It would seem 'to the undersigned that if the amount of coal remaining in the lease was abundant and could be stripped and loaded profitably under plaintiffs’ contract, and also profitably to defendant Angelo, a new stripping and loading contract with another or others, including whatever additional payment or premium might have been required to obtain it, would be the only manner of establishing loss and damage, in this instance, if not otherwise barred.

“It is fundamental in the law of damages that damage which is uncertain, contingent, or remote is not a proper basis of recovery, and under this general principle the courts have frequently denied recovery for loss of profits upon breach of a contract, on the ground that expected profits are dependent upon uncertain and changing contingencies, and constitute no definite or trustworthy measure of the actual damages; in other words, the law does not permit the recovery of damages which can be ascertained only by speculative methods.” (13 O. Jur. 152-3, Sec. 73.)

“Throughout all the authorities, where damages are sought to be recovered, whether for injuries to property or business, or trade, or for personal injuries, there is a clear recognition that the profits of a business are subject to many contingencies, causing fluctuations and uncertainties and rendering the whole subject of the allowance of profits as damages more or less uncertain and speculative.” (13 O. Jur. 160-1, Sec. 78.)

The amended cross-petition of defendant Felix Angele; is therefore dismissed in its entirety, with respect to each and all of the five causes of action thereof.

The Referee conducted the hearings before him so as to give every consideration to all parties and the utmost latitude for the submission of all possible pertinent evidence, as well as exhaustive study and consideration of all questions and issues of fact and law arising therefrom, and the Referee is thanked and commended therefor, even though tne determination and judgment of the court upon the evidence and record of the case is basicly and materially contrary to the Referee’s Report, the undersigned as the Court finding and concluding that the Referee’s recommendation of judgment against defendant Angelo rather than against defendant Harris Coal Corporation and that his recommendation of judgment in any amount against plaintiffs and for defendant Felix Angelo upon the latter’s Amended Cross-Petition are each contrary to the manifest weight of the evidence as well as untenable in the specific respects heretofore set forth and arrived at.

■ Nevertheless, the undersigned as the Court finds and considers that said Referee is entitled to payment for his services in an amount worthy of his devoted effort, energy and time, hereby fixed at the sum of Twenty-five Hundred Dollars ($2500.00), which together with all expenses of reporting, filings, service and all other costs, the court taxes against defendant Harris Coal Corporation as the party primarily and directly at fault and responsible for the onset of litigation and its resulting ramifications, including its encouragement, inducement and procurement of the unfounded claims of the said cross-petitioner for its own interest and purposes and that of its associates.

Judgment accordingly, with Journal Entry containing find-to be prepared by counsel for plaintiffs and then submitted to counsel for the respective defendants for their consideration of approval before submission to the court for its approval for filing, allowing exceptions to all parties.