author: Per CURIAM:

text:
    CAMPBELL, Ex parte.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23147.
    Decided March 31, 1954.

      J. B. White, Cleveland, for petitioner.
    B. J. Conway, Police Pros., Cleveland, for defendant.
   OPINION

Per CURIAM:

Petitioner, by this original action in habeas corpus, seeks an order to be admitted to reasonable bail. He is now confined in county jail in default of bail fixed by the Municipal Court of Cleveland in the sum of $2000.00 on a charge of larceny by trick (petit). The maximum penalty for this offense is a fine- of $200.00 and imprisonment for ninety days.

The trial judge gave testimony in this hearing to the effect that the accused did not make a demand for a jury trial when first arraigned, such demand being made when the case was called for trial on the date to which it had been continued, and that the bail of $1000.00 which had been set upon arraignment was then increased to $2000.00. The trial judge further testified that this action was in pursuance of a policy adopted by the trial judge to prevent “exploitation of the court” and inconvenience of officers and other witnesses who were thereby obliged to appear again and again before a particular case would ultimately be tried, and further that frequently when a case was ready for trial by jury, the defendant would then waive a jury and plead guilty or elect to go to trial before another judge of the same court; that such tactics were employed frequently by attorneys practicing in criminal cases before the Municipal Court. For all of these reasons, and to discourage such procedure, the trial court adopted a policy of doubling the amount of bond when a demand for a jury trial .was made under such circumstances and at a time subsequent to his arraignment.

It was this practice and procedure of the court which counsel for petitioner argued was an infringement of petitioner’s constitutional right to be admitted to reasonable bail.

The prosecutor in defending the increase in bail, presented evidence showing the defendant’s police record taken from the files of the Cleveland Police Department, as follows:

“The Cleveland Police Department.
Date: 3-9-54
Name: Larry Campbell Present Address: 8219 Central Ave.
Previous Offense Data:
1. 2 traffic arrests.
2. 3 Invest. Waivers
3. Grand Larceny 7-28-52 Turned over to Fed. Auths.
4. Robbery 7-23-53 No Bill.”

It will be noted from the foregoing record that one charge, namely, that of Grand Larceny, does not show any final disposition, the accused having been turned over to the Federal Authorities.

While this record would not be a proper subject of evidence on the trial of the case, we are of the opinion that the court may examine the same and consider it together with other factors when fixing bail.

Stripping the case of all extraneous issues there is a single question presented for our determination as to whether under the facts and circumstances here presented a bail of $2000.00 required of defendant upon the last hearing is reasonable.

No motion was made before the trial court for a reconsideration of the increase in bail or to permit the taking of testimony as to its reasonableness.

Art. I, Sec. 9 of the Constitution of Ohio, and the VUIth Amendment to the Constitution of the United States, provide that “Excessive bail shall not be required.”

At the outset we are confronted with a procedural question.

In the case of In re Polizzi, 61 Oh Ap 354, the first paragraph of the syllabus reads:

“An application made to appellate court for writ of habeas corpus will be denied in the absence of a record and a showing that all remedies available in the trial court have been exhausted.”

The Polizzi case has never been reversed or modified and is applicable to the facts of the instant case. The petitioner having failed to show exhaustion of remedies in the trial court, we are obliged to deny the writ on this ground alone.

In the case of In re Lonardo, 86 Oh Ap 289, the court had before it for consideration the question of reasonable bail on charges where the petitioners were charged with being suspicious persons in violation of the ordinances of the City of Cleveland. In that case, although a misdemeanor was charged, reasonable bail was fixed at $15,000.00. The third syllabus reads as follows:

“3. The primary purpose of bail is to secure the appearance of the accused at the trial. In determining the amount of bail, the following factors, among others, may be considered: The nature of the offense, the penalty upon conviction thereof, the character and reputation of the accused, including his criminal record, if any, and the probability of his appearance for trial.”

Applying the rule of the Lonardo case, we cannot say, in view of the nature of the offense, the penalty upon conviction, the police record of the defendant herein, and other factors involved, that a bail in the sum of $2000.00 is excessive. For this further reason the writ must be denied.

While we appreciate the difficulties recited by the trial judge in attempting to regulate orderly procedures in the criminal branch of the Municipal Court, we are unable to approve any rule of thumb method of fixing bond that is not in accord with constitutional guarantees and based entirely upon the facts and circumstances of the particular case, taking into consideration the purpose of bail and the factors entering into the determination of amount as set forth in syllabus 3 of the case of In re Lonardo, supra.

The right to reasonable bail is constitutional, and each case must be judged on its merits. A method or plan whereby bail is doubled is not a proper criterion for fixing bail. The principles of law and constitutional provision must, at all times, be observed.

In conclusion, we are obliged to state that whatever may have been the reasons for increasing the bond in this case, we are unable to say from all the facts and circumstances, and the crime charged, that bail in the sum of $2000.00 is unreasonable or excessive and we must further say that until remedies are exhausted in the trial court in accordance with the principles of In re Polizzi, supra, this court is without jurisdiction to grant a writ of habeas corpus.

Writ denied. Exc. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


source: Caselaw Access Project

author: By FULTON, J.

license: Public Domain

text:
    CONNELLY et, Plaintiffs, v. MORRIS, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 662518.

      Morris Berick of Halle, Haber, Berick & McNulty, Cleveland, for Robert Morris.
    Harold Bell, Leo Rattay, Cleveland, for Connelly and other defendants.
   OPINION

By FULTON, J.

STATEMENT OF CASE

Connelly and others seek an injunction against the completion of the erection of a single residential house by Defendant Robert Morris on North Park Boulevard, and additionally seek a mandatory injunction to require either demolition of the structure to the extent now finished, or change the structure or remove part thereof. These requests are predicated upon the alleged failure of Morris to cause his house to be constructed at a distance of 100 or more feet from the street.

The Plaintiffs did not seek a preliminary restraining order or a temporary injunction in which event they would have been required to, and therefore they did not, place- bond to indemnify Defendant Morris against loss or damage should they fail in their litigation efforts. (It is recognized that Plaintiffs were not required to seek either a preliminary restraining order or a temporary injunction.)

DECISION

Plaintiffs’ request for injunctive relief, restraining and mandatory, is denied and disallowed. Plaintiffs’ petition is dismissed and a finding and judgment is entered for the Defendant at Plaintiffs’ cost.

This determination is upon the facts and for the reason later set forth.

THE FACTS

When the action was brought Morris had spent approximately $25,000.00 toward the construction cost of his house for which the contract price of erection is $49,650.

The complaint embraced in the petition is that the front of the house is nearer the street than 100 feet in violation of private or community restrictions (First Cause of Action) and of zoning regulations (Second Cause of Action) either of which, it is asserted require a “setback” of at least 100 feet.

There were originally a set of uniform area restrictions. These perhaps were subdivision restrictions although the evidence is silent about this. It was stated that these original restrictions required a setback of 100 feet. These original restrictions antedated the zoning setback restrictions Subsequently, however, to the zoning regulations, and because the area restrictions had expired,, all of the people in the area, except nine, deeded their respective properties to a title company which reconveyed to these persons with new or revitalized restrictions. All of the residents on the north side of North Park Boulevard between Arlington and Fairfax, where Defendant’s house is under construction, including Defendant’s predecessor in title, joined in the propagation of these community or neighborhood restrictions. There are no houses or residences on the south side of North Park Boulevard between Arlington and Fairfax.

These new or revitalized restrictions require a setback of 100 feet. The Cleveland Heights zoning contains a restriction formula which, if valid, as applied to the territory in the next preceding paragraph, would require a setback of 100 feet.

All of the houses of this territory are, except Defendant’s, set back 100 feet or more. The other nouses are not set back uniformly at 100 feet. Some are set back more than 100 feet. Uniform symmetry is not maintained (Ex. “15”). There is no conventional sidewalk according to the testimony—if there is a sidewalk at all (Ex. “G”). Moreover the judge’s view of the property on North Park Boulevard between Arlington and Coventry—which view is stipulated as evidence and not merely as a means to better application or better understanding of the evidence—, as well as other photographic exhibits show no tree lawn and indicate that North Park Boulevard is not a straight line in the front of the houses on the north side thereof. It appears to curve easterly and westerly from a point about in front of the Defendant’s house.

The house at issue is being built on a beautifully wooded lot with trees in front and in rear. The house is modern— yes, modernistic—in contrast to the stately mansions of an earlier period (Ex. “G,” photographic exhibit as to the subject house and the Court’s Ex. “2” as to the home of Plaintiff Connelly). As constructed, one front corner is 87 feet, rather than 100 feet, from the curb line on North Park Boulevard and the other corner is about 97 feet from that curb line. Defendant applied for and procured from The Cleveland Heights authorities, a permit to build his house. With it (Exs. “3” and “D”) was filed a blueprine of plans. From these the setback of the proposed house was determinable The permit as issued (Ex. “4”) states that it “is issued in accordance with and subject to all articles and provisions of the building code of the City of Cleveland Heights, Ohio and other applicable ordinances and statutes.” Many photographic exhibits taken by one of the Plaintiffs, show the progress of the work. All of the Plaintiffs, except the Schaabers, reside between Arlington and Fairfax. (Ex. “B”.) The Schaabers are between Fairfax and Coventry. Therefore the purported presentation of Plaintiffs complaint is not limited to the territory between Arlington and Fairfax, but to the whole area in which the people resided who conveyed and received reconveyance to establish the new or revitalized restrictions.

BASIS FOR DECISION

The result reached is upon the assumption that the restrictions of the community plan and of the zoning require a setback of 100 feet. (Actually this assumption is considered by this Court of doubtful validity.) It is not proposed to decide this case on constitutional grounds because other grounds will suffice and further because it is this Court’s view that only reviewing Courts should, generally, decide constitutional questions. Nor is it intended to decide that the community restrictions are invalid on other than constitutional grounds.

By way of passing, however, it is the view of this judge that the zoning law of Cleveland Heights is constitutionally valid except as to the setback regulation. That regulation is a formula which neither a property owner nor any officer of the city could apply absent consent of all property owners on any given street, without trespass. Setbacks should be stated in distance in order to be clear and completely free from doubt. Treating the whole zoning ordinance including the setback provision as valid, it does appear, although this is not used, a basis for this decision that the application of this zoning ordinance to this case, that is to say to this house in its present state, would be an arbitrary and unconstitutional application and the taking of property without due process and without just compensation.

Further by way of passing this writer—again not as a basis for decision and not on the basis of constitutional grounds— questions the validity of the community restrictions because they are not written expressly to bind all, if not all j oin in their creation. The case of Blum v. Hodapp, 87 Oh Ap 45 (C. A. Montgomery County), at first blush appears contra. That case dealt with a subdivision plan. On the whole that case is not helpful to Plaintiffs here. (See its headnote 2, as well as page 49.) Moreover in America the free use and alienation of property is favored. Any restraint, whether legislative or otherwise, requires strict construction. Here the restrictions appear to provide a setback benefit which is inured to all property owners, and a garage requirement which inures to the benefit of the next door neighbor. (Which next door neighbor?) They also provide that the violation of the cost requirement results impliedly in demolition, whereas no such penalty attaches to the violation of the setback provision.

(Parenthetically, the Court thinks little of the argument of defense counsel based on the proposition “Who is grantee ” That does not appear sound.)

Now beyond the remarks made respecting validity, constitutional or otherwise, of the community and zoning restrictions, Plaintiffs should not prevail.

They should not, in any event, prevail on the basis of the alleged zoning violations, sine §713.13 R. C. provides that the “municipal corporation” or “the owner of any contiguous or neighboring property who would be especially damaged * * * may institute a suit for injunction.” The Court does not deem that any of the named Plaintiffs are especially damaged. This is based as much upon the judge’s view as upon the other evidence in the case. Nobody on the Plaintiffs’ side is a loser of air, view, or light. To them there is no obstruction to their air, view, or light by Defendant’s house. Palm’s view is, by reason of the greater setback of his house, lost by the Hingston and Dennison homes. Neither Hingson nor Dennison (the latter is not a party to this action) are injured. Whatever obstruction to view prevails are nature’s good trees and this applies equally to Connelly and Dr. Jappa, whose places are scarcely seen, except by extraordinary eyestrain from the Morris home and its upstairs front porch. Billingslys, between Connelly and Jappa, are not parties and the Schaabers are beyond Fairfax. None of these people lose light or air, nor does the Court think they have suffered special damages if that is included in the expression “especially damaged.” The money loss testimony of Mr. Shields is discarded. It was general; and in any event-its worth was destroyed by his volunteered statement that his buying or building in this neighborhood would minimize its value because he does not belong or would not fit there. This foolish statement was made to support his claim that “what type of people” live in the neighborhood is an evaluation factor. Indeed that statement led to an inference adopted by the Court to which allusion will be made later.

These statements about damages on the zoning cause of action do not apply to the community restrictions cause of action, since as to valid restrictions (whether subdivision or community) non-damage does not prevent one from seeking or obtaining an injunction. Dales v. Albrecht, 11 Oh Ap 368.

That the setback is 100 feet is the assumption as a basis for this decision. That Defendant’s house is nearer than 100 feet resulted from a mistake. It was indeed a very careless mistake. Right then Defendant needed other than his own counsel. However, Plaintiffs’ counsel did not "say, in answer to the question of the Court, that Defendant surreptitiously built his house behind hidden bushes. Even now a complete view of the house is still obstructed by trees to some extent from the street and to a definite extent from the houses situated east and west.

Counsel for Plaintiffs did imply that there was acceleration of work after the Connelly letter. There was some accelerating which, under all the circumstances, the Court finds was natural: the contractors own and sub-contractors own work. This the Court finds was not an acceleration by the Defendant to “beat the gun,” so to speak. This Court does not understand that why, in the absence of injunction, Defendant feared to complete his house. The Court thinks and finds that the failure arose not from the fear of risk involved, so much as a demonstration of neighborliness, plus the recognition of his own foolish mistake. The foolish mistake was about the distance of a wall from the street. The Court thinks the wall in the community restrictions means fence wall; but does it; since it is less restrictive than the earlier zoning restrictions on the same point. (See Ex. “H” and compare it to par. 3 of Ex. “6”, the community restrictions.) Private restrictions subsequent to valid zoning restrictions, may be more but not less restrictive. Much was said about presumptive knowledge during the trial. Did not Plaintiffs have presumptive knowledge of the zoning wall restriction? Certainly they had such presumptive knowledge.

• The Court finds that the Plaintiffs, honestly, but by self impression, subconsciously by after thought, described the wall they saw under construction, as “garden,” or “patio” or “sample.”

They saw.

They knew.

It appears that they now claim they did not know, yet they could and should have known by appropriate inquiry, by the exercise of diligence and by no means by snooping as hinted in Wrigley v. Newlon, 15 Ohio Supp. 78. Under all the facts and circumstances, it appears to and is found by the Court that the Plaintiffs acted unseasonably. One of the factors in laches is the time factor. It may arise in a few days and under some circumstances may not arise for one year or more.

The Court recognizes laches as an affirmative defense and if the burden of going forward or of proof is upon the Defendant to establish it, the Court now finds that upon all of the evidence defendant has established laches. The Court therefore finds the Plaintiffs chargeable with laches.

During April Defendant’s house was staked; toward the end of May the controversial wall was completed (8 feet high and 16 feet long); by the middle of June the wall was faced; structural work, including joists, rafters in part of the building, was installed, as well as the roofing finished by July' 15. 1954. This was seven days before Mr. Connelly’s letter which he wrote for himself and assumed to write for others; and the others, now Plaintiffs, like Mr Connelly saw this wall. They might have inquired: What is it? Whose is it? The inquiry might have been made of the next door neighbor, Mrs. Gardener, or at the City Hall of Cleveland Heights. Mr. Connelly was at the City Hall. Sure.ly he learned or could have learned about the setback. Yet the union of Plaintiffs as one came after the Connelly letter and the suit still later on August 4, 1954.

Swift diligence is required where restrictions are involved. Of course, one need not snoop but must be inquiringly diligent. There are few excuses for other than swift conduct under the circumstances of this case. These Plaintiffs were, except for one, on the scene and either knew or could have known the nature and progress of the work. They presumptively knew about the restrictions and readily could have known the physical situation, as it appeared and progressed, and to which the restrictions applied. The natural obstruction to the view of the progress of work now offered as an excuse may now be proffered as an obstruction of view to 'an unsightly modernistic house, as some may consider it. Prom all of the evidence including the Court’s view of the house, street and territory, the inference is drawn that one of the reserved objections of Plaintiffs is the architectural design; and the Court from Mr. Shield’s testimony, infers that there is a reserved objection to the type of new resident, exemplified among other things by the modernistic home.

Mr. Connelly speaking for all—perhaps prematurely—and mayhap only for self said he could see that “the residence which you are constructing appeared closer to North Park than the next adjoining residence which is occupied by Mrs. Gardener” based on his “recently driving by” Defendant’s property.

Mr. Connelly is a good citizen. He was and always has been watchful that no serious changes should take place in his neighborhood. For this zeal he is complimented. At the same time he must under all of the circumstances assume the risk of any lack of diligence. That same letter says he “went to the Building Inspection Department of Cleveland Heights and found from your (Defendant’s) plans” about the setback violation. That could have been ascertained in the same manner earlier by him or the other Plaintiffs since the plans were filed with the application for permit. To be sure the other Plaintiffs appeared to rely on Mr. Connelly and because of that, as well as their own respective failure, are chargeable with laches.

Estoppel in its technical sense does not seem to apply. Yet one queries about this when he reads Brow v. Sherwin Williams, 63 Abs 466 (Cuyahoga County).

In any event the general equities are with defendant. The restraint and compulsion sought will cause, if allowed, more harm to Defendant Morris than any good or benefit to Plaintiffs.

Indeed the Court finds that to allow the relief would clearly harm Morris and would not materially benefit Plaintiffs; whereas the denial of such relief will do no harm to anybody. None of the Plaintiffs will be caused either general or special damage if Defendant is allowed to complete his house. This doctrine is pronounced in Brow v. Sherwin Williams, Supra, decided February 1952,

The Court specifically finds that, notwithstanding, the setback violation, the house in process of construction will benefit, beautify and complement the other properties in the neighborhood and might even add to their property values and ultimately lead to changes for betterment elsewhere in the neighborhood either by new construction or modernization. This latter remark is not too remote when the Court infers that architectural design rather than setback is one of the two ghosts in the background.

The Court does not follow the case of Morgan v. Veach, 59 Cal. App. (2nd) 684 as authoritive. The case is distinguishable by its headnote or syllabus 3 where the subject of balancing conveniences is summarized and in connection with which it is stated that one who acts with full knowledge as the Court finds the Plaintiffs in this case did, is not entitled to the benefit of the doctrine—even if the balancing of such equities favor the Plaintiffs. Here, the Court finds, the balancing of equities or conveniences favors the Defendant. Nor does Dale v. Albrecht, 11 Oh Ap 368, involving the removal only of a closed porch, apply to the situation here except in the limited sense heretofore noted.

The case may be appealed either on questions of law or on questions of law and fact. The latter appeal requires a bond as a jurisdictional requirement. Having in mind the amount Mr. Morris has already invested in the construction of the house and the possibilities of deterioration by the winter elements, bond is fixed at $30,000. This matter of bond amount is subject to further conference with counsel.

The question of supedsedeas may arise if the appeal is on questions of law only, absent which supersedeas the parties perhaps remain as if there was not litigation.


author: By THE COURT.

text:
    MOORE, Plaintiff-Appellee, v. S. L. GRUNDSTEIN & SONS, INC. et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4567.
    Decided October 2, 1952.

      John P. Moloney, Columbus, for plaintiff-appellee.
    Benjamin P. Levinson, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury. The action was for damages arising out of a collision between an automobile owned by the plaintiff, and a truck, by the defendant. It appears that the plaintiff’s car was struck in the rear while stopped at a street intersection in the center lane of traffic prepared to make a left turn but was unable to do so because of the approaching traffic. The defendant was charged with the following acts of negligence:

1. In failing to keep its vehicle under control.

2. In failing to stop or swerve said vehicle to avoid a collision.

3. In failing to sound the horn or give other warning that said vehicle was approaching.

The answer is a general denial and alleges further that any injuries suffered by the plaintiff were caused by his own negligence.

On the issues joined the jury returned a verdict for the plaintiff in the sum of $2000.00 for which judgment was rendered.

The first error assigned is that the judgment is against the manifest weight of the evidence. We have examined the entire record and find that there was a conflict in the testimony. The plaintiff’s evidence tended to establish that while the plaintiff’s automobile was parked properly preparatory to making a left-hand turn, it was struck in the rear by the defendant’s truck. These facts are denied by the defendant and evidence was offered supporting its theory of the case, to wit, that the plaintiff’s automobile passed the defendant’s truck on the left, then suddenly stopped in front of it in such a manner that the driver of the truck could not avoid the collision. We think that the testimony favorable to the plaintiff was clearly sufficient to support the verdict. It is a well established rule that a reviewing court will accept the determination of the fact-finding entity, be it jury or court, unless it is so manifestly against the weight of the evidence as to shock the conscience to permit it to stand.

It is next urged that the damages were excessive having been given under the influence of passion and prejudice. We find nothing in the record to support this charge. An examination thereof reveals that the damages consisted of injuries to property and person and that the same were substantial. It does not appear that the award is out of proportion to the compensation to which the plaintiff is entitled. A verdict will be disturbed only when it is so grossly out of proportion as to clearly indicate that it had its source in the passion or prejudice of the jury. Lucente v. Philipedes, 46 Abs 41.

We find the Court did not err in overruling the appellant’s motion for a directed verdict. Neither did it err in the general charge to the jury. It is urged that the Court should have charged on the assured clear distance ahead statute and that its failure to do so constituted prejudicial error. It will be noted that the violation of this statute is not set forth in the petition as one of the specifications of negligence. The record discloses that no special request was made at any time for the Court to charge on this statute and no general exception was taken to the charge. If any error was committed it would be one of omission and not commission and therefore not reviewable. State v. McCoy, 88 Oh St 447; 2 O. Jur. (Pt. 2) 1394, Section 746.

Finding no prejudicial error in the record the judgment will be affirmed.

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


author: Per CURIAM: SKEEL, J,

text:
    MARASCHKY, Plaintiff-Appellant, v. CLEVELAND (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22849.
    Decided October 26, 1953.
    M. D. Barrisch, Cleveland, for plaintiff-appellant.
    J. H. Crowley, Law Director, J. H. Urbancik, Asst. Law Director, for defendant-appellee.
   OPINION

Per CURIAM:

Briefly stated, the evidence set forth in a narrative bill of exceptions shows that the plaintiff was operating an automobile after dark on Rocky River Drive in the City of Cleveland, at approximately thirty miles per hour; that her headlights were on and were functioning properly; that the roadway was wet; that suddenly she discerned something in the path of her car that appeared to be an obstacle; that she immediately applied the brakes of her car; that her brakes were in good working order; that the obstacle was a pile of material which had been dug from the roadway about two feet high and one lane wide and the same material as the roadway; that there was no barricade or other deviee to warn drivers of the danger; that there were two lanterns or flares in front of the obstacle but that neither was lit. This, together with all the evidence, in our opinion presents an issue of fact as to whether or not the object with which the plaintiff collided was reasonably discernible in time to enable her to bring her car to a stop within the assured clear distance ahead. On this question reasonable minds could reasonably come to different conclusions.

For the reasons stated, the judgment of the Municipal Court is reversed for error of law in directing a verdict at the close of plaintiff’s case and the cause is remanded for further proceedings according to law. Exc. Order see journal.

HURD, PJ, KOVACHY, J, concur.

SKEEL, J,

dissents for the reason that plaintiff’s evidence discloses that there was a pile of material two feet high across the entire lane in which she was travelling, which material constituted a substantial object which the plaintiff should have observed and discerned in the exercise of ordinary care, in time to bring her vehicle to a stop.


author: By CLIFFORD, J.

text:
    MEYER, Appellant, v. BOARD OF LIQUOR CONTROL, Appellees.
    Common Pleas Court, Franklin County.
    No. 188808.
    Decided April 20, 1954.

      John B. Freiden, Cincinnati, for appellant.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By CLIFFORD, J.

This appeal arises from an order and findings of the Board of Liquor Control revoking Class C-l, C-2 and D-5 permits, Certificate No. 62327, held by the appellant, by reason of charges against him under the provisions of Regulation No. 52. The order appealed from is set forth as follows:

“This cause came on to be heard on the charges brought against the above permit holder, to-wit:
“ ‘That on September 25, 1953, you and/or your agent or employee, did knowingly and willfully allow in and upon the permit premises immoral, improper, indecent, profane and obscene entertainment and conduct, to-wit, the showing of moving pictures depicting acts of sexual intercourse, indecent and obscene dancing, acts of sexual intercourse, and other immoral exhibitions—in violation of provisions of the Liquor Control Act and regulations of the Board of Liquor Control,’
“and said permit holder was duly served with a copy of said charges and notice of the hearing thereon. And said permit holder, appearing before the Board of Liquor Control to answer said charges, admitted the truth thereof, and thereupon the matter was submitted to the Board on the statements of the Director of Liquor Control and said permit holder; and said Board being fully advised in the premises, orders the above permits revoked.
“It is therefore ordered and adjudged that Class C-l, C-2 and D-5 permits, Certificate No. 62327, be, and the same are REVOKED, effective December 2, 1953.”

Regulation No. 52 states in part:

“No permit holder shall knowingly or wilfully allow in, upon or about his licensed premises improper conduct of any kind, type or character: or any * * *, lewd, immoral activities * * *; or any indecedent, profane, or obscene * * * entertainment «

«

The record discloses that this cause was heard before the Board of Liquor Control on the 10th day of November, 1953, at the offices of the Department, Room 210, 33 North Third Street, Columbfus, Ohio, as per the Order to Show Cause issued by the Director of the Department of Liquor Control to the permit holder; there appearing at said time and place the following:

“The permit holder not appearing. Mr. Emmett R. Moore, Attorney at Law, 705 Traction Building, Cincinnati, Ohio, appearing on behalf of permit holder and Receiver.” (Page one of record.)

A guilty plea was entered to the charge as disclosed on page two of the record, shown as follows:

“Mr. Schuessler: You know, we follow the rules of civil procedure here, and I believe the statute to say that failure to deny anything is admission of the truth involved Unless you want to admit the truth here, you had better plead Not Guilty.
“Mr. Moore: We’ll change our plea to Guilty, then.”

The facts supporting the charge are given in detail by the sworn testimony of an eye witness, one Charles Ludwig, the owner of the land and buildings leased by him to the permit holder, Charles Meyer, and in/and or on which permit premises the violations took place as alleged in the formal charge.

His testimony graphically meets the test and requirement of the statute §119.12 R. C. (§154-73 GC), that the order of the Board is supported by reliable, probative and substantial evidence.

But, counsel for the appellant correctly points out that §119.12 R. C. (§154-73 GC), requires that such order must be “in accordance with law,” and raises the question, Was the Order of the Board in accordance with law with reference to:

a. Should the Receiver have received notice of the hearing before the Board of Liquor Control?

b. On November 10, 1953, was Regulation 52 of the Board of Liquor Control a valid, enforceable regulation?

The requirements of notices for administrative hearing are found in §119.07 R. C. (§154-68 GC), which reads in pertinent part:

“* * * the agency shall give notice as hereinafter provided to the party informing him of his right to a hearing.”

The term “party” is defined in §119.01 R. C. (§154-62 GC), which reads:

“ ‘Party’ means and includes the person or persons whose interests are the subject of an adjudication by an agency.”

At the outset it should be pointed out that the instant appeal is taken by the permit holder and not by the receiver. There is no assertion by the appellant permit holder that there was a failure of notice as to him, and it is, therefore, questionable that this order should be invalidated by the failure of good notice to some one other than the appellant who is not a party to the present appeal.

It is provided in §119.07 R. C., that a copy of the notice as sent to the party should also be mailed to attorneys or other representatives of record representing the party. There is no showing in the record that the appellant in this cause had designated a representative of record for any proceedings which might be had before the Board. Further, there is no showing that notice of this receivership had been brought to the attention of the Board prior to the time of hearing. In regard to the actual parties before the Board of Liquor Control in this hearing the record reveals from the cover page that a Mr. Emmett R. Moore, Attorney at Law, appeared on behalf of permit holder and receiver. The same representation appears on page two of the record where there is a statement by the Attorney General to the effect that Mr. Moore was representing the permit holder and the receiver. This was not denied and the hearing proceeded. Further, it appears from the record that counsel entered a plea of guilty. Assuming, for the sake of argument, that the receiver should have received notice, which appellee specifically denies, it would appear that the receiver was represented at the time of hearing and thus submitted himself to the jurisdiction of the Board. Mr. Moore, as counsel for the receiver and permit holder, at that time made no objection to the jurisdiction of the Board, and did in fact enter a plea of guilty. An attempt was then made to mitigate any possible penalty that the Board might assess.

In any discussion of the rights of receivership the basic question of whether a receiver acquires any rights beyond that of the permit holder to a liquor permit must be faced. The liquor permit itself has been recognized in a long line of cases beginning with State ex rel. v. O’Brien, 130 Oh St 23, as not creating any property right within the constitutional meaning of that term. The courts have universally held that it is not a contract, and have been willing to say only that it constitutes a mere permission to engage in the liquor business. The Supreme Court in Abraham v. Fiaramonte, 158 Oh St 213 held that such permits are personal licenses and not property Which can be mortgaged or seized under execution or court order for the satisfaction of debt.

A similar question was presented to this branch of the Common Pleas Court of Franklin County in the case of Rio Bar v. Department, No. 188588. There the proposition, as found in 34 O. Jur., 994, was cited with approval, to the effect that the Receiver acquires no greater right in the property than his debtor had. The Receiver takes the property in the same condition, and subject to the same rights as it stood in the hands of the person from whom he took possession. The court there said in regards to the review of an order of the Board of Liquor Control under §119.12 R. C., as follows:

“This statute applies to a permit held by a receiver, and a Receiver standing in the shoes of the original permit holder, takes the permit subject to all the liabilities then attaching to it, and if the permit could be revoked when in the hands of the original holder, then the permit assumes no greater statute when held by a Receiver for the permit holder.”

Appellee would contend that the receiver has no individual rights which are to be adjudicated, and thus under §119.07 R. C., is not entitled to notice. It is further the contention of the appellee that the receiver is bound by the acts of the permit holder and, insofar as the grounds for revocation are supported by reliable, probative and substantial evidence (§119.12 R. C.), the order of the Board must be affirmed.

Secondly, appellant contends by way of his brief that by reason of the adoption of the Revised Code as of October 1, 1953 that Regulations duly promulgated under the authority granted by the General Code to the Board of Liquor Control, having not been re-enacted under the authority granted under the Revised Code, are, therefore, void.

At the outset, it should be pointed out that the alleged violation of Regulation 52 of the Board of Liquor Control occurred on September 25, 1953, at which time Regulation No. 52 was in full force and effect. The revocation which was entered was under the authority of §6064-25 GC, now §4301.25 R. C.. which provides that the Board may suspend or revoke any permit for a violation of any rule or regulation of the Board. Such regulations are promulgated under the authority of §6064-3 GC, and provide specific duties of the permit holder.

It now becomes pertinent to determine how the code revision was characterized by the Legislature. It must be determined how the Legislature intended that the change from the General Code to Revised Code would be accomplished. In this regard attention should first be given to §1.01 R. C., which reads in part:

“The enactment of the Revised Code shall not be construed to affect a right or liability accrued or incurred under any section of the General Code prior to the effective date of such enactment or an action or proceeding for the enforcement of such right or liability. Such enactment shall not be construed to relieve any person from punishment for an act occurring in violation of any section of the General Code, nor to affect an indictment or prosecution therefor. For such purposes, any such section of the General Code shall continue in full force notwithstanding its repeal for the purpose of revision.”

■ As contended by appellee the violation in the instant case and the punishment assessed is by virtue of statute and not by regulation. The regulation merely implements the statutory authority found in the Board. It is therefore contended that the order is in accordance with law by reason of this savings provision.

Beyond the provision that for purposes of punishment of an act committed in violation of the General Code, there is continuing effect to the General Code, the Legislature also intended that there be no hiatus between the General and Revised Code. It was the legislative purpose that the Statutes involved should have continuing force and effect. This being the case, then, the rules and regulations as promulgated under the General Code did not lapse or become void by reason of revision, but continued in full force and effect. The legislature intended that the Revised Code should not be a new enactment, but would continue the existing statutory provisions and be only a substitution. This intent is clearly set out in §1.24 R. C., which reads:

“That in enacting this Act' it is the intent of the General Assembly not to change the law as heretofore expressed by section or sections of the General Code in effect or the date of enactment of this Act. The provisions of the Revised Code relating to the corresponding section or sections of the General Code shall be construed as restatements of a substitute in a continuing way for applicable existing statutory provisions, and not as new enactments.”

The appellee contends that by the operation of this Statute the substantive law, as found in the General Code, has continued through the revision and now exists only in new form. For this reason, then, the regulations taking their force and effect from statutory authority' also have continued through the code revision.

The precise question has not been presented to the courts of Ohio up to this time. A similar question, however, was presented in the case of Solvey v. Molony, 40 California Appeals 2nd, 381. This was a mandamus action to restrain thé Medical Board from hearing a complaint on an act which had been committed prior to the revision of the Business and Professions Code of California. A similar savings clause as to that found in §1.24 R. C., supra, is found in Section two of the. California Business and Professions Code. This Section read:

“The provisions of this Code insofar as they are substantially the same as existing statutory provisions relating to the same subject matter shall be construed as restatements and continuations thereof, and not as new enactments.”

The court in that case denied the writ of mandamus and discussed the question as follows:

“When a statute, although new in form, re-enacts an older statute without substantial change, even though it. repeals the older statute, the new statute is but a continuation of the old. There is no break in the continuous operation of the old statute, and no statement of any of the legal consequences of acts done under the old statute. Especially does this rule apply to the consolidation, revision, or codification of statutes, because, obviously, in such event the intent of the legislature is to secure clarification, and new arrangement of clauses, and to delete superseded provisions, and not to affect the continuous operation of the law.” * * * This rule of construction, based as it is on the presumed legislative intent, applies whether the subject of the statute is civil or criminal law. It is well settled that, independently of a saving clause, a person may lawfully be prosecuted, under a repealed and re-enacted statute, for a crime committed prior to the date, of the re-enactment. (Cases and text cited) * * *
“Section 2 of the Business and Professions Code codifies this legislative intent and rule of construction.” (Appeal of Supreme Court denied October 10, 1940.)

The appellee would therefore urge upon this court that the regulation and statute under which appellant was found guilty has continuing force and effect notwithstanding the Code revision, and further appellee would urge that by reason of the statutory savings clause, §1.01 R. C., supra, that appellant may not escape his due punishment for an act committed prior to the revision. For these reasons then appellee asserts that there is reliable, probative and substantial evidence upon which to base a finding that the alleged incident did, in fact, occur and that the revocation assessed as a penalty for this incident is in accordance with law, to all of which this court adopts, finds and concurs.

The Court finds that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence, and that the order of the Board is in accordance with law. The order of the Board is affirmed.


text:
    BECKER, Guardian, Appellee, v. BECKER et, Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4269.
    Decided July 2, 1952.

      D. H. Schaffner, Paul E. Weimer, Akron, for the motion.
    Stanley Denlinger, Akron, contra.
   OPINION

Per CURIAM:

Where an appeal on questions of law and fact is filed in an action which is not properly so appealable, and the appellees do not seek by motion to dismiss such appeal and have the case retained as an appeal on questions of law only, this court may, sua sponte, dismiss such appeal on questions of law and fact and retain the case on questions of law only. Walkovic v. Abood, Case No. 4105, Summit County (unreported), decided June 28, 1950.

This appeal, although taken on questions of law and fact, is properly only an appeal on questions of law, and will be so considered by this court.

Peter Becker was appointed, by the Probate Court of Summit County, Ohio, the guardian of the person and the estate of his wife, Minnie Becker, an incompetent. Some time after such appointment, the guardian filed in the Probate Court a petition to sell real estate owned by his ward. The court found that “it is for the best interests of said ward that said premises be sold as prayed for in plaintiff’s petition,” and further ordered that “a new appraisement must be made of said * * * real estate.”

Ralph Clipper, the stepson of the guardian and son of Minnie Becker, excepted to said order, and filed a notice of appeal to this court. After such appeal was filed, the ward, Minnie Becker, died. Counsel for appellee, Peter Becker, then filed a motion to dismiss the appeal on the ground that the question raised therein had become moot.

Sec. 10510-6 GC, provides when a guardian may sell the real estate of his ward. The succeeding sections of the General Code provide the manner in which proceedings may be carried on to complete such sale. Sec. 10510-31 GC, provides, where a new appraisement has been ordered, that, upon its approval by the Probate Court, the guardian shall give a new bond, or, in certain cases, the court may order that the bond originally given in the guardianship matter may be deemed sufficient in the proceedings to sell such real estate. Sec. 10510-34 GC, provides that when such bond is filed and approved by the court, an order of sale of the real estate shall issue.

It is therefore readily apparent that the judgment now under consideration was only a determination of the necessity to' sell and not the authority to sell such real estate. The guardian was required, and the court was required, to take further steps before a sale could lawfully be consummated.

When Minnie Becker died, the authority, duty and power of the guardian ceased. The guardianship was at an end, except for the obligation imposed on the guardian to account for the property of the ward.

“1. The death of the ward terminates the guardianship, and the guardian has no further authority or control over the personal estate remaining in his hands except to safely keep and deliver the same to the personal representative.” Sommers v. Boyd, Treas., 48 Oh St 648.

“The guardianship terminated upon the death of the ward; and, thereafter, the guardian was without authority to do any act which could affect, or be binding upon, the estate.” Sommers v. Boyd, Treas., supra, at p. 659. See also: Simpson, et al. v. Holmes, Admr., et al., 106 Oh St 437.

We therefore determine that, since the authority of the guardian to continue the proceedings to sell real estate ceased at the time of the death of his ward, the question herein has become moot, and the appeal should be dismissed. See: Hagerman, Director, v. City of Dayton, 147 Oh St 313.

Motion granted and the appeal ordered dismissed.

HUNSICKER, PJ, DOYLE, J, STEVENS, J, concur.


author: By BARTLETT, J.

text:
    RUTHERFORD, Plaintiff, v. OHIO FINANCE CO., Defendant.
    Common Pleas Court, Franklin County.
    No. 190000.
    Decided October 25, 1954.
    Clara S. Cory, Columbus, for plaintiff.
    Clarence V. Sullivan, Columbus, for defendant.
   OPINION

By BARTLETT, J.

MOTION TO STRIKE AMENDED PETITION FROM FILES OVERRULED.

Before answer filed, plaintiff may amend petition without leave. Sec. 2309.55 R. C., upon notice to counsel, which was done in the instant case.

Counsel for defendant complains previous order of court not journalized. Under Rule VIII of this court, it was his duty to prepare the proper entry which he neglected to do. In any event plaintiff had a statutory right to file her amended petition, without the entry being filed.

Counsel complains that plaintiff sets out time lost while he requested amount lost. Counsel cannot control pleadings by his mere request.

“Loss of time and consequent loss of earnings,—are proper elements of damages for the consideration of the jury in personal injury actions.” 13 O. Jur. Damages, Sec. 47, p. 121.

Loss of time as result of injury in many jurisdictions need not be pleaded, in others, including Ohio, must be specially pleaded—15 Am. Jur. Damages, Sec. 315, p. 757. The item “loss of time” must be pleaded,—the consequent loss of earnings and their amount, is evidential.

Entry accordingly with exceptions by counsel for defendant.


text:
    MINNIX, Plaintiff-Appellant, v. HAGUE, Admr. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4834.
    Decided September 9, 1952.
    Charles O. Weilbacher, Columbus, for plaintiff-appellant.
    James B. Albers, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

Submitted on motion of the defendants-appellees seeking an order dismissing the appeal on law and fact for the reason that this Court has no jurisdiction to entertain such an appeal. The record reveals that the action was brought for the determination of heirship under §10509-95 et seq, GC. This is a statutory proceeding in which any relief granted would be in accordance with legal principles and not equitable. It is therefore not a chancery case. The motion will be sustained but the case will be retained for determination on questions of law only as provided by §11564 GC. The appellant will be granted leave to perfect said appeal in accordance with Rule VII of this Court.

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


author: By THE COURT:

text:
    KERFEL et, Plaintiffs-Appellants, v. TRIMBACH, Admrx., Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2228.
    Decided April 2, 1953.
    Wessel, Wessel & Wessel, Hamilton, for plaintiffs-appellants.
    Hon. Irvin L. Holderman, Dayton, for defendants-appellees.
   OPINION

By THE COURT:

This is a will contest case wherein it is urged that the court erred in instructing the jury to return a verdict for the defendants at the close of all the evidence.

The question presented is whether or not the will of Franziska Behr, executed on January 28, 1929, was revoked by the testatrix when she caused certain lines to be drawn through Item Eight, which reads as follows:

“All of the proceeds of the residue and remainder of my estate, both real, personal and mixed, wheresoever situate and of whatsoever kind, nature and discription, I give, devise and bequeath unto The Dayton Savings & Trust .Company of Dayton, Ohio, as Trustee, in trust nevertheless for the benefit of my niece, Clara Otto, to be used for her use and benefit in the manner hereinafter designated and for such other individuals as I shall hereinafter name.”

The record reveals that’ The Dayton Savings and Trust Company went out of business shortly after the execution of the will, and also that Clara Otto pre-deceased the testatrix, so it is obvious that no part of the'Eighth Article could have become effective even though it had not been cancelled. Therefore the obliteration in no way changed the terms of the will. Sec. 10504-47 GC defines the manner in which a will may be revoked, to-wit:

“A will shall be revoked by the testator tearing, canceling, obliterating or destroying it with the intention of revoking it, by the testator himself, or by some person in his presence, or by his express written direction, or by some other will or codicil, in writing, executed as prescribed by this title, or by some other writing, signed, attested and subscribed, in the manner provided by this title for the making of a will, but nothing herein contained shall prevent the revocation, implied by law, from subsequent changes in the condition or circumstances of the testator.”

The evidence most favorable to the plaintiff is that on numerous occasions the testatrix expressed her desire to make a new will. There is some evidence of the execution of a new will, but which the appellant admitted in the trial court did not meet the requirements necessary to constitute a revocation. That the testatrix produced the will on one occasion and said: “I want you to see this because this will is cancelled. * * * Here, look at it good; I have written all over it. * * * You can see here what I have done. * * * I have cancelled that.” The evidence discloses that she was pointing to the alterations when the last two statements were made. Under the terms of the statute when there is an obliteration of a part of a will the intention of the testator accompanying the act must govern, and if a revocation of the entire will was not intended there shall be no revocation. There can be no partial revocation. Giffin v. Brooks, 48 Oh St 211; Coghlin v. Coghlin, 79 Oh St 71. The trial court was of the opinion, and we think properly so, that where the act of obliteration is not so conclusive as to supply an intention to revoke the entire will, the act must be accompanied with a clear intention on the part of the testator to destroy it before there can be a revocation.

It appears to us that the statements of testatrix constitute merely an expression of her opinion as to the effects of the alterations, and do not reflect upon her intentions at the time the acts were committed. To effectuate revocation by an act done to the will there must be a concurrence of the act of cancelling the same, together with an intention to revoke the entire will. Cummings v. Nichols, 53 Oh Ap 520, 5 N. E. (2d) 923.

We find no evidence in the record indicating an intention to revoke the will at the time the alterations were made, but as Judge Cecil pointed out, the fact the will was in her possession up to the time of her death is strong evidence to the effect there was no intention to revoke.

Finding no error in the record, the Judgment will be affirmed.

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


author: By GRIESINGER, J.

text:
    MERRYMAN et, v. GORMAN et.
    Common Pleas Court, Jefferson County.
    No. 43749.
    Decided August 27, 1953.

      James S. Kimble, Steubenville, for plaintiffs.
    Bernard T. McCann, Pros. Atty., John E. Irvine, Steubenville, for defendant.
   OPINION

By GRIESINGER, J.

This case was specially assigned for final hearing by agreement of counsel, and is before the Court on the pleadings and évidence.

Plaintiffs pray for a permanent injunction against the defendants, members of the Board of Elections of Jefferson County, Ohio, the clerk and deputy clerk of said Board, prohibiting them from contracting for the purchase of ballots for a special election, from conducting and holding said special election, and from taking any steps whatsoever to hold or conduct such special election.

There is little or no dispute in regard to the facts. The principal question of law revolves about the application and construction of Sections 3, 7 and 8 of Article 18 of the Ohio Constitution.

Section 3 of Article 18 reads as follows:

“Section 3. (Powers.) Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Scctiop 7 of Article 18 reads as follows:

“Section 7. (Home rule.) Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.”

Section 8 of Article 18 reads as follows:

“Section 8. (Submission of question of election of charter commission; approval.) The legislative authority of any city or village may by a two-thirds vote of its members, and upon petition of ten per centum of the electors shall forthwith, provide by ordinance for the submission to the electors, of the question, ‘Shall a commission be chosen to frame a charter.’ The ordinance providing for the submission of such question shall require that it be submitted to the electors at the next regular municipal election if one shall occur not less than sixty nor more than one hundred and twenty days after its passage; otherwise it shall provide for the submission of the question at a special election to be called .and held within the time aforesaid. The ballot containing such question shall bear no party designation, and provision shall be made thereon for the election from the municipality at large of fifteen electors who shall constitute a commission to frame a charter; provided that a majority of the electors voting on such question shall have voted in the affirmative. Any charter so framed shall be submitted to the electors of the municipality at an election to be held at a time fixed by the charter commission arid within one year from the date of its election, provision for which shall be made by the legislative authority of'the municipality in so far as not prescribed by general law. Not less than thirty days prior to such election the clerk of the municipality shall mail a copy of the proposed charter to each elector whose name appears upon the poll or registration. books of the last regular or general election held therein. If such proposed charter is approved by a majority of the electors'voting thereon it shall become the charter of such municipality at the time fixed therein.”

Pursuant to Section 8, of Article 18, of the Ohio Constitution, upon petition of ten percent of the electors of the City of Steubenville, Council, on March 3, 1953, passed Ordinance No. 8173 (Defendants’ Exhibit A), which provided, among other things, for the submission to the electors of the question, “Shall a commission be chosen to frame a charter?” Said ordinance provided for the submission of such question to the electors at a special election to be held on May 5, 1953, which was the date of the municipal primary election, which was within the time provided by Section 8, of Article 18, of the Ohio Constitution, there being no regular municipal election within the time provided by the said section of the Constitution. The majority of the electors voting at said election voted affirmatively on said question and also elected a fifteen member commission to write or frame said charter. A proposed charter was framed by said commission and filed with the Clerk of Council on the 20th day of July, 1953, and Council met on the next day, July 21st, 1953, at which time the clerk presented said proposed charter (Plaintiffs’ Exhibit No. 1) to the Council. Said charter commission fixed the 15th day of September, 1953, for an election for the approval or disapproval of said proposed municipal charter. Ordinance No. 8230 (Plaintiffs’ Exhibit No. 2) to provide for the expense of such election was introduced on the 21st day of July, 1953. This ordinance has not yet been passed by Council.

Subsequently copies of the proposed charter were printed, envelopes with the return address of the Clerk of Council printed thereon were prepared and copies of the charter placed therein, and stickers with the name and address of each elector whose name appears upon the poll or registration book of the last regular or general election held in said municipality were prepared. The stickers were placed upon the envelopes. The envelopes were out of the hands of the Clerk of Council when they were stamped for mailing. There were more than twenty thousand such envelopes. These envelopes were taken by the Clerk to the United States post office at Steubenville, Ohio, and there placed in the mail for delivery to said electors. The Clerk testified that he had no doubt they were the same envelopes and that they contained copies of said charter, and the Court so finds as a question of fact on the testimony.

Thereafter the Board of Elections prepared for said special election for the submission of the proposed charter to the voters of the municipality. Pursuant to §4785-5 GC, the Board of Elections gave public notice of said special election to be held on September 15th,, 1953. After said notice the election board, pursuant to §4785-114 GC, received bids and let a contract to the H. C. Cook Printing Company for the printing of the ballots for said special election. There seems to be some question whether a bond was filed by the successful bidder, or if so whether it was an adequate bond. Nevertheless a new bond was filed by the H. C. Cook Printing Company before the contract was let. Ballots were received and on file late in the afternoon of August 12, 1953. Ballots were not posted as required by §4785-115 GC.

This substantially covers the facts as presented by the pleadings and evidence in this case.

In dealing with similar questions our Supreme Court on more than one occasion has pointed out that the Court in construing the right of an initiative or a referendum as provided in the Constitution should do so with the idea of permitting rather than precluding the exercise of such right by the people.

In State, ex rel. City of Middletown v City Commission, 140 Oh St 368, 44 N. E. 2d 459, the first paragraph of the syllabus reads as follows:

“1. The provisions of the state Constitution authorizing and providing the manner of submission of municipal ordinances to a referendum vote should be so construed as to permit rather than preclude the exercise of the right conferred. The object clearly sought to be attained by such provisions should be promoted rather than prevented or obstructed.”

On the other hand clear and plain provisions of the law should be complied with. Those who advocate good government would not contend otherwise.

Our Supreme Court, in Switzer v. State, ex rel. Silvey, 103 Oh St 306, at page 319, 133 N. E. 552, 555, pointed out: “Courts should well hesitate about denying the people the right to vote to determine whether or not a proposed change of government is or is not wanted by the majority of those voting thereon, but there is still a greater and higher duty devolving upon courts than that of allowing the utmost freedom possible under the Constitution relative to a popular referendum. By the oaths of the judges it is made their special obligation to support the Constitution according to the best of their understanding and ability. Finally, no greater harm can come to stable popular government than to easily and freely disregard the plain provisions of our Constitutions touching any and all changes and amendments in our government, whether they be municipal, state, or federal.” At the beginning of the trial of this case the defendants, through "their counsel, raised the question of jurisdiction of the Court to grant an injunction to prevent a special election as prayed for by the plaintiffs in this case.

This question was presented to the Court in the case of City of Cincinnati v. Hillenbrand, 103 Oh St 286, at page 294, 133 N. E. 556, 558, the Court said:

“ ‘This court has no authority to pronounce an opinion, a judgment or a decree upon a mere moot question as to whether a proposed law will conflict with the Constitution, if it shall be enacted by the General Assembly, or be adopted by the people.’ There is no doubt concerning that proposition. However, the contention here not only involves the validity of proposed legislation, if enacted, and as to this injunction will not lie, but presents the question whether those desiring to initiate certain municipal legislation have complied with preliminary prerequisites necessary to be fulfilled before an initiative ordinance, valid or invalid, may be submitted to the electors. Such preliminary steps are specifically prescribed by statute. * * *
“The petition in this case avers that the board of deputy supervisors are about to proceed with the expenditure of a large amount of public money in submitting to the electors an ordinance as to which necessary preliminary steps to authorize such submission have not been taken in accordance with law. There is thus presented a different question than was presented in the case cited, and we are clear in the opinion that, where the board of elections is about to expend the public money in the holding of a special election, for which the necessary preliminary steps have not been taken in accordance with mandatory provisions of the Constitution or the statute, injunction is a proper remedy.”

With this test in mind let us examine the plaintiff’s petition in the light of the evidence in this case.

Were the necessary preliminary steps taken in order to authorize the submission of the proposed charter to the electors of Steubenville?

In paragraph 3, sub-section A, the plaintiffs complain that Council has not been afforded an opportunity by proper legislation to appropriate necessary funds for mailing to each elector a copy of the proposed charter and could not properly pass legislation to defray the expense of mailing the same at least thirty days prior to September 15, 1953, as is required by Section 8, of Article 18, of the Ohio Constitution.

This is a mandatory provision of the Constitution and the local legislative body has no discretion in the matter. It has to make such provision. Although no time is prescribed as to when this should be done, presumably it should be done before the printing and mailing of the copies of the charter to the electors; but this legislation could be passed and payment made after the mailing of said copies of the charter.

A requirement may be directory for one purpose and yet vital and mandatory for another purpose of vice versa.

This provision in the instant case is mandatory as regard to the Council providing funds to pay this expense, but only directory insofar as being a condition to holding such election. The vital and mandatory condition for the purpose of this provision to the holding of the election was that the copies of the charter were mailed by the Clerk to the electors. This condition was complied with.

Howard v. Shields, 16 Oh St 184.

Let us consider the complaints in paragraph B of the petition that there will be approximately fifty-five days from the time of the submission of the charter to Council to the date of the special election and by reason thereof numerous qualified electors will in practical effect be disfranchised because they are in the military service of the United States.

There are specific statutory provisions regulating the procedure concerning voting by absent voters ballots and voting by members of the Armed Forces. These provisions must be complied with. If they have been complied with then no complaint can be made that these necessary steps have not been taken.

The pertinent part of §4785-141 GC, covering this subject reads as follows:

“Armed service absent voter ballots for special elections held on days other than the days on which general or primary elections are held, shall be ready for use as many days before the day on which such special election is held as may be possible under the laws governing the holding of such special elections. On the sixtieth day before the day of each general or primary election, and on the earliest possible day after the sixtieth day before the day of a special election held on a day other than the day on which a general or primary election is held, the clerk of the board of elections shall mail * *

All that is required is that the absent voter ballots shall be ready for use as many days before the day of said special election as may be possible. There is no claim by the plaintiffs that the ballots were not made ready at the earliest date possible under the circumstances, and the Court finds as a fact in this case that said absent voter ballots were made ready at the earliest date -possible under the circumstances. This is a right governed by the statute, and there has been no violation of any necessary preliminary statutory steps in this regard. 15 O. Jur., pages 330, 331.

Now coming on to paragraph 4 of the plaintiffs’ petition it is said that if this election were held on November 3, 1953. instead of September 15, 1953, that considerable money would be saved the taxpayers. This may well be true.

The constitution provides that after the charter commission has finished its work that “Any charter so framed shall be submitted to the electors of the municipality at an election to be held at a time fixed by the charter commission and within one year from the date of its election.” Sec. 8, Art. 18, of the Ohio Constitution.

The charter commission thus is the sole authority for fixing the date for the submission of this question to the voters. This they may do even at the additional cost of a special election. Consequently no necessary preliminary step or law has been violated in this connection.

In paragraph 5 the plaintiffs claim that said charter is contrary to the Constitution and the laws of the State of Ohio, in that said charter as proposed contains many provisions in contravention of the general laws of the State of Ohio.

To begin with, as pointed out in City of Cincinnati v. Hillenbrand, supra, the Court has no jurisdiction to enjoin the election on the claim that the charter or some provisions thereof may be unconstitutional or in conflict with the general law of the state. This claim upon the part of the plaintiffs does not raise the question of a preliminary necessary step that must be complied with before the election can be held.

The evidence is that the proposed charter provides for seven councilmen, whereas §3515-20 GC, provides that in cities of more than twenty-five thousand inhabitants there must be nine councilmen.

It is stipulated and agreed by and between counsel that Steubenville, Ohio, is a city of more than twenty-five thousand people.

In addition to the Court’s lack of jurisdiction to issue an injunction under such circumstances it is the opinion of the Court that the charter’s authority to make such a provision stems directly from the Constitution itself and therefore is a superior authority and supercedes the provisions of the General Code. 28 O. Jur. page 228.

Section 7, of Article 18, provides that the municipality may exercise all power of local self-government subject to the limitations of Section 3 of said Article. The limitation provided in Section 3 of said Article is that local police, sanitary and other similar regulations must not be in conflict with the general law.

The number of councilmen is a matter of local concern and not a police, sanitary or other similar regulation. Therefore, the charter provision would prevail notwithstanding §3515-20 GC.

In the case of State, ex rel. Frankenstein v. Hillenbrand, 100 Oh St 339, in paragraph 1 of the syllabus, 126 N. E. 309 this Court said:

“Section 7, of Article XVIII of the Ohio Constitution, vests in cities adopting a charter the power to prescribe the manner of the selection of their own purely municipal officers.”

Judge Robinson stated in 100 Oh St 343, 126 N. E. 310:

“Whatever difficulty this court may have encountered in accurately designating the subjects comprehended in ‘local self-government,’ as contradistinguished from ‘local police, sanitary and other similar regulations,’ it has had no difficulty in arriving at the conclusion that the qualifications, duties, and manner of selection of officers purely municipal come within the purview of the provisions granting a city ‘local self-government.’ ” Fitzgerald v. Cleveland, 88 Oh St 338, 103 N. E. 512; Switzer v. State, ex rel., 103 Oh St 306, 133 N. E. 552; State, ex rel. Hackley v. Edmonds, 150 Oh St 203, 80 N. E. 2d 769.

Again, it is claimed in the brief of the plaintiffs that the proposed charter is in conflict with the general laws of the State of Ohio, namely §486-17a GC, which deals with tenure of office and removal of members of the classified service; §4367 GC, dealing with the appointment of a safety director; and §4380 GC, dealing with suspension hearings by the safety director. Again it may be pointed out that the Court has no jurisdiction to enjoin an election on a proposed charter for the reason that some provision of said proposed charter may be unconstitutional or in conflict with the general laws of the State. Again, this question does not involve a preliminary necessary step which must be taken before the proposed charter is submitted to the vote of the people.

If the claims of the plaintiffs should be correct in these respects it would not invalidate the charter. The proposed charter contains a saving clause in Section 82 thereof, wherein it is provided in substance that if any section or part of a section should be held invalid, it should not impair or effect any other section or part of a section of said charter. In case any portion should be held invalid as being in conflict with the provisions of the General Code, then in such case the provisions of the General Code would prevail.

A further question is raised in paragraph 6 of the plaintiffs’ petition to the effect that a complete slate of municipal offices were elected by both the Republican and Democratic 'parties at the primaries for the offices provided for under the general laws of Ohio.

This raises the question of whether or not the nominee of a political party has fixed or proprietory rights to run at the general election or to 'hold office when the office has been abolished by provision of law.

In State, ex rel. Shirley v. Corbett, 113 Oh St 23, at pages 31 and 32, 148 N. E. 357, 359, it is said;

“The effect of the abolition of an office is always to terminate the term of the incumbent, since he cannot be an officer or incumbent of an office which has ceased to exist, and what has been said as to the incumbent of course is equally applicable to the officer elect.” 32 O. Jur., Sec. 217, pages 1074 and 1075.

The law provides that a nominee may be deprived of his right to election and holding of office under circumstances similar to those in the instant case. And, hence, this fact would not prevent the submission of the charter to the electorate on September 15, 1953.

Although they were not pleaded, the evidence and brief on behalf of the plaintiffs presented three other questions.

Sec. 4785-114 GC, among other things, provides:

“Each bid for such printing must be accompanied by a bond with at least two sureties * * *.”

Any irregularity or failure to comply with this section would not prevent or invalidate the election. Such a violation may affect the contractual relations between the Board and the successful bidder but could not prevent or invalidate any election. 15 O. Jur., Sec. 72, pages 400 and 401.

Also some question was raised by the evidence and brief of the plaintiffs that printed proofs of the ballot were not posted as required by §4785-115 GC. No claim is made that the printed proof and ballot were not correct in all respects. This section is merely directory and for the purpose of enabling the candidate or chairman of the political parties and persons interested to read the proof so that any errors in the proof may be corrected.

The Supreme Court of Ohio brings this to our attention in State, ex rel. Meurer v. Eyrich, 154 Oh St 471, 96 N. E. 2d 412, 413, where it is said:

“The extraordinary remedy of prohibition is not available to prevent the performance of a purely ministerial act.”

The plaintiffs contend in their brief that Ordinance No. 8173, passed by. Council for the purpose of submitting the question, “Shall a commission be chosen to frame a charter,” etc., passed pursuant to Section 8, of Article 18. of the Ohio Constitution, was not read on three different days as required by §4224 GC, and that this would be reason for the granting of the injunction.

The constitutional provision in question provides that “the legislative authority of the city * * * upon petition of ten per centum of the electors shall forthwith provide by ordinance” for the submission of such question to the electors.

This, again, is a mandatory act required of Council, one which it must do “forthwith.” This does not mean that Council should wait and read the ordinance on three different days. It orders its passage immediately, without delay, It means the Constitution prevails over §4224 GC.

If plaintiffs are right in their contention it would be necessary for the mayor to approve the ordinance. Yet, this has been held unnecessary under such a constitutional provision. Payne v. State, ex rel., 32 Oh Ap 189, 166 N. E. 907.

A very similar question was before the court in the case of Kumpf v. Village of Delhi, 1 Ohio N. P., N. S., 336, and it was held that such an ordinance need not be read on three different days.

In answer to the question with which we began the Court finds from the pleadings and the evidence in this case that the necessary steps have been taken in order to authorize the submission of the proposed charter to the electors of the City of Steubenville. -Therefore, the prayer of the plaintiffs for an injunction is denied and plaintiffs’ petition is dismissed.

Costs are assessed against the plaintiffs.

Special entry.


text:
    MASTROIANNI v. BOARD OF LIQUOR CONTROL et.
    Common Pleas Court, Franklin County.
    No. 189031.
    Decided April 13, 1954.
    Paul Ward, Columbus, Charles T. Kaps, Cleveland, for appellant.
    C. William O’Neill, Atty. Genl., Kiehner Johnson, Asst. Atty. Genl., Columbus, for appellee.
   OPINION

By CLIFFORD, J.

This matter comes before the Court on appeal from a decision of the Board of Liquor Control, in which' decision the Board denied a transfer of a Class IT-5 liquor permit held by appellant Mastroianni, from a location in the incorporated village of Waynesburg to a place in the unincorporated territory of Stark County outside the corporate limits of Canton.

Briefly, the facts are these: The Chief of the Permit Division of the Board of Liquor Control wrote a letter to Mastroianni, saying that his application for transfer had been approved subject to certain conditions, and if the conditions were met, the transfer of the permit to the proposed new location would issue as applied for. Relying upon this letter Mastroianni built a new building to house his business, spending a large sum of money. After complying with the conditions set forth in the letter Mastroianni notified the Department of Liquor Control that he was ready to commence doing business at the new location, and asked transfer of his permit. The Department refused, saying that to transfer the permit from the incorporated village of Waynesburg to the unincorporated territory of Stark County would increase the number of outstanding liquor permits of the class in question in unincorporated Stark County to twenty-three. This said the Department would be one in excess of the quota for the unincorporated area of Stark County, which quota is twenty-two under Regulation 64. Regulation 64, the “freeze order,” set the number of outstanding permits of this class at the number outstanding on April 11, 1949.

Between the time Mastroianni received the letter on which he relied to construct the building to house his business, and the time of the Department’s refusal to transfer his permit, a change of personnel had occurred in the Permit Division. Appellant contends that accompanying this change of personnel was a change of the policy of the Department of Liquor Control, and that the Department is estopped from following such a change of policy to the prejudice of the appellant, especially after inducing appellant to rely upon the aforementioned letter of the Department to the effect that a transfer would issue.

Appellant had submitted two applications to transfer his permit to the new location. It was stipulated by the parties herein, that on the dates of both applications, and on April 11, 1949, the date on which the quota was set for Class D-5 permits, that the number of outstanding Class D-5 permits for the unincorporated area of Stark County was twenty-two. It is apparent to this Court that if the requested transfer is made, the transfer must be made in violation of Regulation 64 of the Department of Liquor Control because this Regulation unequivocally sets the lawful quota of Class D-5 liquor permits for the unincorporated area of Stark County at twenty-two. The requested transfer, if executed, would raise the number of outstanding Class D-5 permits to twenty-three, or one in excess of that permitted by Regulation 64.

There can be no estoppel against the State as contended for by appellant. The Court does not view the refusal by the Department to transfer as a digression from any original policy. Rather, the Court is of the opinion that the original letter of the then Chief of the Permit Division to Mastroianni which indicated that a transfer would be made, was the unauthorized act of an agent of the Department, because the letter stated that the Department would do something which Regulation 64 expressly forbade it to do, i. e., issue permits within a political subdivision in excess of the number outstanding on April 11, 1949. At 16 O. Jur. 649, 650, it is said:

“Unlike an individual, the state can act only by its agents or officers, and it cannot be estopped by acts of its officers or agents unless it has by statute authorized them to act on that behalf and then the estoppel can be no .broader than the authority. Agents of the state, unlike the agents of individuals, do not possess so-called ‘apparent powers,’ and the State cannot' be estopped by acts of its agents which are not within their actual authority, even though they may be such as would, under similar circumstances, be within the implied or apparent authority of the agent of a private person.”

The case before the Court is indeed a hard case, and great hardship will likely fall upon appellant if he is unable to obtain transfer of his permit. The authorities upon the question before the Court are, however, quite clear. At 1 A. L. R. 2d 344, the law is stated:

“The doctrine of estoppel should not be lightly invoked against the state. It will not be applied against it in its governmental, public, or sovereign capacity, or to deprive it of its sovereign rights or from exercising its police powers * * *. The state cannot be estopped by the unauthorized or fraudulent acts or admissions or conduct of its officers; or by their mistaken or erroneous statements or opinions; or by their omission or neglect.”

On the proposition that “the doctrine of estoppel is not applied to the extent of impairing sovereign powers of a state such as it exercises, for example, in the enactment and enforcement of police measures,” and that “a state cannot be estopped by the unauthorized acts or representations of its officers,” see 19 Am. Jur. 818. This Court is constrained to hold that no estoppel lies against the Board or the Department of Liquor Control in this case.

Although the question of what constitutes a political subdivision in connection with the language “within each political subdivision” contained in Regulation 64 does not appear from the record to have been before the Board as an issue in this case, the Court will, however, comment briefly on this point because of the memorandum submitted by counsel for appellant.

The applicable part of Regulation 64, Section I, states:

“The number of D-3, D-3A, D-4 and D-5 permits which may be issued within the State of Ohio and within eaqh political subdivision thereof is hereby limited to a figure which shall be equal to the number of permits of each above designated class respectively issued and outstanding in the State of Ohio and in each political subdivision thereof as of April 11, 1949.” (Emphasis ours.)

The meaning of “within each political subdivision” has been interpreted in 1939 O. A. G. Opn. No. 947 in connection with an interpretation of §4303.29 R. C., §6064-17 GO. Appellant argues that the construction given the words “within each political subdivision” in 1939 O. A. G. Opn. No. 947 is no longer the law in Ohio. Appellant cites the unreported Ohio case of State of Ohio ex rel. Sobiech v. Fleckner, No. 31903, in which the Supreme Court overruled a demurrer to the petition in mandamus. One of the authorities cited in behalf of the demurrer was 1939 O. A. G. Opn. No. 947, and appellant contends that since the Supreme Court overruled the demurrer, the Court did in effect overrule the authorities cited in behalf of the demurrer. This is not the law for if this principle were applied, the result would be the overruling of authorities erroneously cited in behalf of a given proposition. If the high court did give its reasons for overruling the demurrer in that case, this court has not seen them. In the absence of better authority to the contrary, this court will follow the law as interpreted in 1939 O. A. G. Opn. No. 947.

The Court finds that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence and that the order of the Board is in accordance with law. The order of the Board is affirmed.


author: By MILLER, J.:

text:
    CLARK, Estate of, In re.
    Ohio Appeals, Second District, Darke County.
    No. 717.
    Decided April 14, 1954.
    S. E. Mote, Greenville, for appellant, Laura Clark.
    Russell E. Wise, Union City, Indiana, Spidel, Staley & Hole, Greenville, for appellee-administrator.
   OPINION

By MILLER, J.:

This is a law appeal from the judgment of the Probate Court overruling exceptions filed to the inventory by the alleged widow of the decedent.

The record discloses that Harrison W. Clark died intestate, a resident of Darke County, Ohio, on or about the 27th day of December, 1952, leaving his alleged widow and three grandchildren-as his next of kin. An administrator was duly appointed, who filed his inventory and appraisement, but did not set off to the alleged widow any property as exempt under Schedule F, or any property for a year’s allowance under Schedule G. The alleged widow, Laura Clark, thereupon filed exceptions to the inventory for failing to set off the statutory exemptions.

The record discloses further that Harrison W. Clark, deceased, and Laura Clark, the exceptor, were married on the second day of July, 1927; that at the time of their marriage Mrs. Clark had two minor children, and that the family moved onto a 68-acre farm owned by the deceased'; that shortly before his marriage the deceased had undergone a major operation and that during his marriage he was physically unable to do much work; that the 68-acre farm was rented on the shares, and that all of the income the deceased had was a one-half interest in the crops raised on the said farm; that during this period his barn burned and it was necessary for him to rebuild the same and to raise the money by going into debt; that he provided cows, chickens and a garden, and that sufficient hogs were raised for their own meat supply; that the income derived from the cows and chickens was given to Mrs. Clark for the family expenses; that the Clarks resided as husband and wife on the farm for a little over three years, at which time Mrs. Clark Jeft, taking her two children with her; that she left approximately in the year 1930, moving first to Greenville and then to Cornell, Wisconsin; that the family relationship ceased at this time and was never re-established. The record is silent as to any divorce having been granted, but it does appear that on several occasions the deceased wrote letters to Mrs. Clark requesting her return.

During the course of the hearing the exceptor offered herself as a witness. Objection was made to her testimony by reason of the provisions of §2317.03 R. C., which objection was sustained by the trial court. This is assigned as prejudicial error. It is our conclusion that the cited section of the Revised Code prohibits the testimony of the exceptor and the court did not err in its ruling.

The next question presented is whether the proof is sufficient to establish the fact that the exceptor is the widow of said Harrison W. Clark. The burden of proof is upon the exceptor, but we think this was fully met when the records of the Probate Court of Darke County were offered in evidence showing that the parties were married on July 2, 1927. When such a relationship is once established and the record is silenc as to whether there has been a divorce of the parties, there is a presumption that the status continues. Industrial Commission v. Dell, 104 Oh St 389; 34 A. L. R. 422; McHenry v. McHenry, 19 Oh Ap 187. The same legal principle is pronounced in 26 O. Jur. 79, Section 70:

“It is usually held that there is a presumption that any marriage which has been properly and legally solemnized, and the status of the parties thereby fixed and determined, shall continue until terminated by death, or by the decree of some court of competent jurisdiction, having both parties before it, by due process of law. That is, the presumption is that the parties are still husband and wife, while living, or that the relation which the law has once established continues until the contrary is shown.”

We are therefore of the opinion that all the evidence in the record on this question supports the conclusion that the exceptor was still the wife of the said Harrison W. Clark at the time of his decease.

We shall next give consideration to the question of whether or not the- court erred in overruling the exceptions and denying the widow her allowance under §2117.20 R. C., and exemptions under §2115.13 R. C. Sec. 2115.13 R. C., provides:

“When a person dies leaving a surviving spouse or minor children, certain properties, if selected as provided in this section, are not assets or administered as such, but must be included and stated in the inventory of the estate. * * * Such property is to be selected by such surviving spouse, or if there is no surviving spouse by the guardian or next friend of such minor children. * * *”

Sec. 2117.20 R. C., provides:

“The appraisers of a decedent’s estate shall set off and allow to the widow and to the children under the age of eighteen years, or if there is no widow then to such children, sufficient provisions or other property to support them for twelve months from the decedent’s death but such allowance shall be set off to such children only when necessary for their support, taking into consideration the father’s primary duty to care for his children.”

Both of the foregoing sections were given consideration in the case of Davidson v. Miners and Mechanics Savings & Trust Co., 129 Oh St 418, wherein the court held in the second syllabus:

“The widow’s year’s allowance and the allowance given her under §10509-54 GC, are a debt and preferred claim, respectively, against her deceased husband’s estate, deductible before a determination of the share of the estate to be taken by the widow ‘under the statute of descent and distribution.’ ”

If these exemptions and allowances are preferred claims against the estate they inure not only to the benefit of the widow but also to her estate after her decease. Raleigh v. Raleigh, 153 Oh St 173. The appellee urges that the record supports the conclusion that the exceptor deserted her husband through her own fault and choosing and for this reason she is not entitled to- the year’s allowance, citing Adams & Hosford’s Ohio Probate Practice, p. 903. An examination of the foregoing authority discloses that the- author relied upon the case of In re Estate of William Roth, 6 O. N. P. 498. This is an early Nisi Prius case and we find no other decisions in this state wherein it has been followed or even cited. We are of the opinion that the record would support the facts or finding urged by the appellee, but even so, under the pronouncement of our Supreme Court the reason for the separation is neither pertinent nor material.

In the case of In re Croke, 155 Oh St 434, the court was called upon to construe §10509-74 GC. (§2117.20 R. C.) At page 440 Judge Hart says:

“Upon full consideration, it is our view that the statutes governing a widow’s allowance from the estate of her deceased husband contemplate and require an allowance of support for a full period of twelve months after his death, even though the widow dies before the expiration of that period. We now state the reasons for this view.
“In the first place, the language of the statute providing for such an allowance is clear, positive and unambiguous. It is: ‘The appraisers * * * shall set off and allow to the widow * * * sufficient provisions or other property to support * * * (her) for twelve months from the decedent’s death.’
“If the General Assembly had intended to impose any limitation upon this sweeping award to the widow, it could easily have done so by providing for the payment of such support in monthly installments so long as she survived her husband but in no event to exceed twelve such installments. This statute has had the consideration of the General Assembly on several occasions since the adoption of the General Code in 1910. Present §10509-74 GC, differs in several respects from former §10656 GC, which it supersedes. In a compre-, hensive revision of the statutes governing administration of estates, the General Assembly, effective January 1, 193.2, enacted §10509-74 GC, which now provides that an allowance to minor children under 18 years of age shall be made only when'-the same is necessary for their support. Significantly, the widow was not included in such limitation.”

And continuing on page 442 he says:

“The widow’s ‘year’s allowance’ is as broad as the grant of the statute and may not be limited except by specific terms of the statute creating it or by some other statutory enactment of equal efficacy. As a vested right of property such right may not be taken away except by a waiver or surrender thereof by the widow herself or her personal representative in case of her death.”

On page 448 the court said:

“In commenting on the holding of the Court in the case last cited, Judge Stewart in the Raleigh case above cited, appropriately said:
“ ‘If the allowance under §10509-54 GC, is a preferred claim against the estate, it is logical that it inures not only to the benefit of the spouse who is entitled to it but likewise to his estate after his decease.’
“By the same logic the widow’s ‘year’s allowance’ provided for in §16509-74 GC, which is also a debt and preferred claim against the husband’s estate, must inure not only to the benefit of the widow who is entitled to it, but likewise to her estate after her death.”

In the light of the foregoing authorities it is our conclusion that the statutes involved herein must be construed to mean what they plainly say and nothing may be added thereto or subtracted therefrom, except by other legislative enactments of equal efficacy. Under such an interpretation the exceptions to the account should have been allowed.

The judgment will be reversed and cause remanded with instructions that the exceptions be allowed.

WISEMAN, PJ, HORNBECK, JJ, concur.