text:
    COLUMBUS (City), Plaintiff-Appellee, v. THOMPSON, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4257.
    Decided May 26, 1949.
    Richard W. Gordon, City Atty., Walter W. Grelle, Jr., Traffic Pros., Columbus, for plaintiff-appellee.
    Isadore L. Margulis, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of conviction and sentence of the defendant of a charge of operating a motor vehicle while intoxicated. Appellant’s brief concludes with four reasons upon which it is claimed the judgment should be reversed. There is but one question of substance presented on the appeal and that is, whether or not defendant’s constitutional right under Article I, Section X of the Ohio Constitution has been infringed.

The defendant was arrested at about 5:50 P. M. but did not arrive at the City Prison until 7:30 to 7:45 P. M. At that time-a specimen of his urine was taken.

The arresting officer testified that defendant turned to the left against a “No Left Turn” sign; that he was stopped. Upon inquiry, he said he had just left his work; that he quit-work at 6:00 o’clock, although it was only then 5:50 P. M., and upon further inquiry said then it was 8:00 o’clock. The officer said that defendant swayed to some extent when he walked and that his breath smelled of alcohol and that it was his opinion that he was “pretty well under the influence”.Upon inquiry of defendant if he wanted to submit to a urinalysis, he said twice that he did; that he wanted to do anything that would assist him in proving that he was not intoxicated. The arresting officer said that upon tests of the defendant at the City Prison, it was his judgment that the defendant was not then intoxicated. Lloyd M. Shoup, a chemist and biologist with the Department of Police, City of Columbus, who established his qualifications as an expert on the subject, testified that the sample of urine taken from the defendant on the evening of his arrest disclosed a percentage of alcohol which, in his judgment, established that the defendant was definitely under the influence of alcohol at the time that he was arrested.

The defendant did not take the stand. The only objection that was interposed to the testimony of the chemist was that he was not, from the test made, qualified to express an opinion as to the intoxication of defendant. No claim was interposed that the testimony of the chemist was equivalent to self-incrimination of the defendant under Article I, Section X of; the Ohio Constitution. This question was first raised on a motion for new trial.

Assuming that the question sought to be made is properly urged, we examine the constitutional provision, which is,

“No person shall be compelled, in any criminal case, to be a witness against himself; * *

Many cases hold that the protection herein accorded to a defendant is against testimonial compulsion only. In Ohio,— State v. Gatton, 60 Oh Ap, 192, 20 N. E. (2d) 192; State v. Nutt, 78 Oh Ap, 336, 20 N. E. (2d) 675. We will not pursue this question but assume further that the protection extends to a privilege to the defendant against the admission of evidence gained by physical examination or tests made upon defendant’s body. There is unanimity of adjudication that the element of compulsion must appear before a defendant may claim the protection of the self-incriminating clause of the Constitution. Here, it is manifest that the defendant willingly submitted to the taking of his urine for the purpose of a test to determine whether or not he was intoxicated.

In State v. Cram, reported in 164 A. L. R. 958, Annotation at 976, it is said:

“It is well settled that the constitutional provision forbidding compulsory self-incrimination is not violated by a voluntary physical examination of a defendant in a criminal case and that testimony based on a voluntary examination is not excluded by such provision.”

Cases from 13 states are cited to support the proposition and none to the contrary. A case almost identical in facts with this one is that of State v. Morkid, (Ia.) 286 N. W. 412. See also People v. Corder, 244 Mich. 274, 221 N. W. 309; Moos v. State, Ariz., 198 Pac. 288, 116 A. L. R. 369, 24 Iowa Law Review, 191.

Appellant cites Booker v. City of Cincinnati, 5 O. O. 433, 22 Abs 286, where Judge Gorman held that the testimony of the physician, based on urinalysis and linewalking test to which a defendant, accused of driving an automobile while intoxicated, was forced to submit, was inadmissible. However, it should be observed that as a premise for the conclusion drawn the court determined that the doctor, who was examined as an expert, testified over objection of counsel for the defendant and assumed further that the defendant was compelled to submit to the tests against his will. City of Toledo v. Reeves, 12 O. O. 397, also cited, was not decided upon the constitutional question presented here.

No error assigned is established. The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


source: Caselaw Access Project

author: By JACKSON, J.

license: Public Domain

text:
    WHEELING STEEL CORPORATION v. GLANDER, Tax Commr. NATIONAL DISTILLERS PRODUCTS CORPORATION, N. Y. v. GLANDER, Tax Commr.
    Supreme Court of the United States.
    Nos. 447-448.
    Decided June 20, 1949.
    John M. Caren, Columbus, for appellant Wheeling Steel Corporation.
    Charles H. Tuttle and Paul L. Peyton, of the firm of Breed, Abbott and Morgan, New York City, N. Y., and Isadore Topper and R. Brooke Alloway, Columbus, for appellant National Distillers Products Corporation.
    W. H. Annat, Wooster, for appellees.
   Mr. Justice Jackson - delivered the opinion of the Court.

OPINION

By JACKSON, J.

The State of Ohio has laid an ad valorem tax against certain intangible property, consisting of notes, accounts receivable and prepaid insurance, owned by foreign corporations. As applied to appellants in these two cases, the tax is challenged' as violating the Federal Constitution on several grounds which may conveniently be considered in a single opinion. Facts are not in dispute.

Appellant Wheeling Steel Corporation is organized under the laws of Delaware, where it maintains a statutory office. Ohio has'authorized it to do business in that state and four of its eight manufacturing plants are located there. General offices, from which its entire business is controlled and conducted, are in Wheeling, West Virginia. Its officers there have custody of its money, notes and books of account. In twelve other states, including Ohio, it maintains sales offices which solicit and receive orders for its products subject to acceptance or rejection at the Wheeling office, to which all are forwarded. From this office only may credit be extended to purchasers. Accounts are billed and collected from the Wheeling office and the sales offices have no powers or duties with respect to collection. All accounts or notes receivable are payable at Wheeling, where the written evidences thereof are kept. Proceeds from receivables are taken into appellant’s treasury at Wheeling and there applied to general purposes of the business.

Appellant National Distillers Products Corporation is organized under the laws of Virginia, where it has a statutory office ,and holds annual stockholders meetings. It is admitted to do business in Ohio, where it maintains a distillery, or rectifying plant, and warehouse, as it does also in six other states. Pay roll checks for plant employees are drawn on funds deposited in banks in the locality of the plant. Appellant also is licensed to do business in New York, where it maintains its principal business office and conducts its fiscal affairs and from which all business activities are directed and controlled. The Corporation maintains regional sales offices in various of those states which permit private distribution of liquor. In such states customers are solicited and orders taken, subject to acceptance or rejection at New York. It maintains no sales office in Ohio, where dispensing liquor is a state monopoly. Orders from Ohio state authorities are forwarded directly to the offices in New York and are subject to acceptance or rejection there. When the New York office accepts an order from any source, it sends shipping orders to various plants, none of which makes any shipments except upon such orders. Only in New York can any credits be approved and all books, records and evidences of accounts receivable are kept there. Collections are managed from New York, which is the place of payment of all receivables. During the tax year in question, the Corporation solicited and took orders through agents in states other than Ohio for a large quantity of liquor shipped from its plants and warehouses in Ohio to customers elsewhere.

It is stipulated that appellants each paid all franchise or other taxes required by Ohio for admission to do business in the state and paid all taxes assessed, upon real and personal property located in said state.

The Wheeling Company also paid to the state of West Virginia, for the year in question, ad valorem taxes on all of its receivables, including those sought to be taxed by Ohio, pursuant to this court’s decision in Wheeling Steel Corp. v. Fox, 298 U. S. 193, 56 S. Ct. 773, 80 L. Ed. 1143. Neither Virginia nor New York has sought to tax the accounts receivable of National Distillers involved herein.

The Ohio Tax Commissioner, applying §§5328-1 and 5328-2 GC assessed for taxation in Ohio a large amount of notes and accounts receivable which each appellant derived from shipments originating at Ohio manufacturing plants. The specific ground stated for assessment was that such receivables “result from the sale of property from a stock of goods maintained within this state.”

The Board of Tax Appeals affirmed both assessments and in the Distiller’s case set forth the above mentioned statutes and pointed out wherein its own views and practices as to their application to accounts receivable had been modified by decisions of the Ohio Supreme Court, whose interpretations, for our purposes, become a part of the statutes. The Board said:

“* * * On a consideration of the statutory provisions above noted, the Board of Tax Appeals was of the view that before-a business situs of accounts receivable and other intangible property, for purposes of taxation, could be given to a state other than the state of domicile of the taxpayer, it must appear that such receivables or other intangible property not only arose in the conduct of the business of the taxpayer in. such other state, but were therein so used as to become an integral part of the business carried on in such other state; and that it was not sufficient that such accounts receivable- and other intangible property be used in business generally by the taxpayer. And on this view the Board held that the accounts receivable there in question, although they arose in the conduct of taxpayer’s business in the states of Indiana and Michigan, did not have a business situs in such states, and that such accounts receivable were taxable in Ohio.

“On the appeal of the decision of the Board of Tax Appeals in The Ransom & Randolph Co. case to the Supreme-Court of Ohio, that Court reversed the decision of the Board of Tax Appeals upon the point above indicated. 142 Oh St 398, 404, 27 O. O. 348, 52 N. E. 2d 738. That court, upon consideration of the applicable provisions of §5328-2 GC and related sections above noted, held that the accounts receivable of a taxpayer which arose in the conduct of its business in a state or states other than the state in which it had its domicile or place of residence, had a business situs in such other state- or states if such accounts receivable or the avails thereof are being applied or are intended to be applied in the conduct of the taxpayer’s business, whether in this state or elsewhere. This view of the Supreme Court as to the construction to be placed upon the statutory provisions here in question was later followed by that court in its decision in the cases of The Haverfield Company v. Evatt, Tax Comm., 143 Oh St 58, 28 O. O. 16, 54 N. E. 2d 149, and National Cash Register Company v. Evatt, Tax Comm., 145 Oh St 597, 31 O. O. 218, 62 N. E. 2d 327.

“* * * In this situation, and applying the statutory provisions here in question as the same have been construed by the Supreme Court of this state, it follows that since the accounts receivable of the appellant corporation involved in this case arose — as this Board hereby find — , in the conduct. of its business in the state of Ohio by the sale of its products from a stock of goods located in this state, and since, further, such accounts receivable or the avails thereof were used or were intended to be used by the appellant in its business, whether in this state or elsewhere, such accounts receivable have a business and taxable situs in the state of Ohio, as found and determined by the tax commissioner.

“With respect to a question such as that here presented, to wit, that as to the taxation of the accounts receivable of a foreign corporation arising in the conduct of its business in this state, the application of the above noted provisions of §§5328-1, 5328-2 GC and other related sections, as the same have been construed by the Supreme Court, presents, to our mind, a serious question as to the constitutionality of said statutory provisions as so construed under the Due Process of Law clause of the Federal Constitution. * * *”

The Ohio Supreme Court affirmed in both cases (150 Oh St, 229) which were brought here by appeals. (28 U. S. C. § 1257 [2], 28 U. S. C. A. §1257 [2]).

Appellants urge that the question which the Board of Tax Appeals regarded as serious should be resolved against the state on the ground that these intangibles had no situs in Ohio to sustain its power under the Due Process Clause so to tax them and also that to do so imposes an undue burden on interstate commerce in violation of the Commerce Clause. They point out that the credits sought to be taxed here were not created in Ohio, not payable there, and neither the payor nor payee, debtor nor creditor, was resident there. Moreover, "the receivables arose from a contract for sale of goods, but the contracts were not made in Ohio nor performed in Ohio, and neither buyer nor seller resided there. On the assumption that Ohio could not follow tangible goods into a foreign state and tax them, either in the hands of the vendor before delivery or in the hands of a vendee after delivery, it is argued that she has no greater power to tax intangibles substituted in a foreign state for them and has no right to tax intangible proceeds of the sale of tangible goods that had passed beyond her taxing power.

In their original application of the statutory scheme the taxing authorities sought to overcome this hurdle by requiring an additional and more substantial connection between the taxed intangibles and the state taxing power.’ For purpose of an Ohio tax the Board of Tax Appeals held intangibles to have a situs in that state only when and to the extent “so used as to become an integral part of the business carried on” in Ohio. It was this requirement which the Supreme Court of the state eliminated by Ransom & Randolph Co. v. Evatt, 142. Oh St 398, 27 O. O. 348, 52 N. E. 2d 738, when it held that any use of the intangibles in the general business was sufficient, to make them taxable. Thus was cut the connection which the Board of Tax Appeals originally invoked to confer jurisdiction to tax, and thus was raised the question of constitutionality regarded by the Board as serious.

However, we find it inappropriate to decide the Due Process, question. The state action, which is reviewable under the-Fourteenth Amendment, is the composite result of both legislation and its judicial interpretation. Ohio does not attempt and has not asserted power to tax all such intangibles, but only those owned by nonresidents and foreign corporations. It has given no indication that it intends to or would reach-out to tax such intangibles as we have here unless it may at the same time exempt identical ones owned by its residents and domestic corporations. The contrary is indicated by §5328-2 GC, which makes the two inseparable. We deal with the taxing plan as an entirety as we find it in operation and pass only on the constitutionality of that which the state-has asserted power and purpose to do.

The state action and policy resulting from statute and decisions is certified to us by the appellee, the Tax Commissioner-of Ohio, to be as follows:

“* * * since the decision of the Supreme Court of Ohio in Ransom & Randolph v. Evatt, 142 Oh St 398, 27 O. O. 348,. 52 N. E. 2d 738 (January 12, 1944) and in obedience thereto, it has been the policy and practice of said Department of Taxation to construe and apply §§5328-1 and 5328-2 GC.

“(A) so as to exempt from taxation in Ohio accounts receivable of Ohio residents, including domestic corporations,, which arise.

“(1) from a sale of goods by an agent having an office-in another state, even though such goods be shipped from. Ohio, or

“(2) from a sale of goods shipped from another state, even though such goods be sold by an agent having an office in-Ohio;

“(B) so as to tax in Ohio accounts receivable of non-residents of Ohio, including foreign corporations, which arise-either

“(1) from a sale of goods shipped from Ohio, even though such goods be sold by an agent having an office' in another state, or

“(2) from a sale of goods by an agent having an office in Ohio, even though such goods be shipped from another state.

“That the foregoing have been in effect as the only tests of taxability of accounts receivable in Ohio since the decision of the Supreme Court of Ohio in the case of Ransom & Randolph v. Evatt, 142 Oh St 398, 27 O. O. 348, 52 N. E. 2d 738, and that said tests have been applied without deviation both by affiant and by his predecessor in office, William S. .Evatt, as the result of the holding in that case.”

Under long settled principles of our Federation, Ohio was mot required to admit these foreign corporations to carry on intrastate business within its borders. The state may arbitrarily exclude them or may license them upon any terms it sees fit, apart from exacting surrender of rights derived from the Constitution of the United States. Hanover Insurance Co. v. Harding, 272 U. S. 494, 507, 47 S. Ct. 179, 182, 71 L. Ed. 372, 49 A. L. R. 713; Connecticut General Co. v. Johnson, 303 U. S. 77, 79-80, 58 S. Ct. 436, 82 L. Ed. 673. Ohio elected, how•ever, to admit these corporations to transact businesses and operate manufacturing plants in the state. For that privilege they have paid all that the state required by way of franchise or privilege tax, which includes in its measure the value of all property owned and business done in Ohio. Secs. 5495, 5497, 5498 and 5499 GC. See International Harvester Co. v. Evatt, 329 U. S. 416, 67 S. Ct. 444, 91 L. Ed. 390. After a state has chosen to domesticate foreign corporations, the adopted corporations are entitled to equal protection with the state’s own corporate progeny, at least to the extent that their property is entitled to an equally favorable ad valorem tax basis. Hanover Insurance Co. v. Harding, 272 U. S. 494, 510-511, 47 S. Ct 179, 183, 71 L. Ed. 372, 49 A. L. R. 713; Power Co. v. Saunders, 274 U. S. 490, 493, 497, 47 S. Ct. 678, 679, 680, 71 L. Ed. 1165. Ohio holds this tax on intangibles to be an ad valorem property tax, Bennett v. Evatt, 145 Oh St 587, 31 O. O. 214, 62 N. E. 2d. 345, and in no sense a franchise, privilege, occupation or income tax.

The Ohio statutory scheme assimilates its own corporate creations to natural residents and all others to nonresidents. While this classification is a permissible basis for some different rights and liabilities, we have held, as to taxation of intangibles, that the federal right of a non-resident “is the right to equal treatment.” Hillsborough v. Cromwell, 326 U. S. 620, 623, 66 S. Ct. 445, 448, 90 L. Ed. 358.

The certificate of the Tax Commissioner discloses how fundamentally discriminatory is the application of this ad valorem tax to intangibles when owned by a resident or a domestic corporation as contrasted with its application when those are-owned by a domesticated corporation or a nonresident. If on the taxing date one of these petitioners and an Ohio competitor each owns an account receivable of the same amount from the same out-of-state customer for the same-kind of commodity, both shipped from a manufacturing plant in Ohio and both sold out of Ohio by an agent having an office out of the state, appellant’s account receivable would be subject to Ohio’s ad valorem tax and the one held by the competing domestic corporation would not. It seems obvious, that appellants are not accorded equal treatment, and the inequality is not because of the slightest difference in Ohio’s-relation to the decisive transaction, but solely because of the different residence of the owner.

The state does not seriously deny this unequal application of its own tax but claims that reciprocity provisions of the-statute reestablish equality. Those provisions therefore require scrutiny.

This entire taxing plan rests on a statutory formula for fixing situs of intangible property both within and without the state. This is provided by §5328-2 GC. These intangibles “shall be considered to arise out of business transacted in a state other than that in which the owner thereof resides” under certain circumstances. (Emphasis ours.) This basic rule separates the situs of intangibles from the residence of' their owner whereas it has traditionally been at such residence, though with some exceptions. The effect is that, intangibles of nonresident owners are assigned a situs within the taxing reach of Ohio while those of its residents are-assigned a situs without. The plan may be said to be logically consistent in that, while it draws all such intangibles of nonresidents within the taxing power of Ohio, it by the same-formula excludes those of residents. The exempted intangibles of residents are offered up to the taxing power of other-states which may embrace this doctrine of a tax situs separate from residence. This is what is meant here by reciprocity, and the two provisions are declared inseparable; so that if the formula by which Ohio takes unto itself the accounts of nonresidents is held invalid, “such decision shall be deemed also to affect such provision as applied to the property of a resident.”

It is hard to see that this offer of reciprocity restores to appellants any of the equality which the application of the Ohio tax, considered alone, so obviously denies. There is no indication of a readiness by other states to copy Ohio’s situs scheme so as to tax that which Ohio exempts. The proffered exchange of residents for intangible tax purposes may not commend itself as an even bargain .between states. Ohio, being large, populous and highly industrialized, with heavy and basic industries, may well have much more to gain from a plan the effect of which is to tax credit exports to other states, than most states would have from a privilege to tax its own exports into Ohio. In the several years that the Ohio statute has been on the books, no other state has sought to take advantage of the “reciprocity” proffer. And if it did, the equality of rates which would also be necessary to equalize the burden between nonresidents and their resident competitors could be hardly expected nor is it provided for. Far from acceding to the situs doctrine which allocates these receivables to Ohio, the state of West Virginia stands on the very different situs doctrine approved by this Court in Wheeling Steel Corp. v. Fox, 298 U. S. 193, 56 S. Ct. 773, 80 L. Ed. 1143, and under its authority has for the year in question taxed all of the receivables of the Wheeling Company, including those Ohio seeks to claim as having situs in Ohio. It is clear that this plan of “reciprocity” is not one which by credits or otherwise protects the nonresident or foreign corporation against the discriminations apparent in the Ohio statute. We think these discriminations deny appellants equal protection of Ohio law.

The judgments are reversed and the causes remanded for proceedings not inconsistent herewith. Reversed.

JACKSON, J. The writer of the Court’s opinion deems it necessary to complete the record by pointing out why, in writing by assignment for the Court, he assumed without discussion that the protections of the Fourteenth Amendment :are available to a corporation. It was not questioned by the State in this case, nor was it considered by the courts below. It has consistently been held by this Court that the Fourteenth Amendment assures corporations equal protection of the laws, at least since 1886, Santa Clara Co. v. Southern Pacific R. Co., 118 U. S. 394, 396, 6 S. Ct. 1132, 30 L. Ed. 118, and that it entitles them to due process of law, at least since 1889, Minneapolis R, Co. v. Beckwith, 129 U. S. 26, 28, 9 S. Ct, 207, 32 L. Ed. 585.

It is true that this proposition was once challenged by one Justice. Connecticut General Co. v. Johnson, 303 U. S. 77, 83, 58 S. Ct. 436, 439, 82 L. Ed. 673 (dissenting opinion). But the challenge did not commend itself, even to such consistent liberals as Mr. Justice Brandéis and Mr. Justice Stone, and I had supposed it was no longer pressed. See the same Justice’s separate opinion in International Shoe Co. v. State of Washington, 326 U. S. 310, 322, 66 S. Ct. 154, 161, 90 L. Ed. 95, 161 A. L. R. 1057, making no mention of this issue.

Mr. Justice Douglas says, as the reason for reviving the-question at this time and in this case, “Heretofore I have not had to face the issue squarely.” This intimation that the Court’s opinion in this case is the first to commit him to a. doctrine to which he now announces objection, is unwarranted.

Without pretending to a complete analysis, I find that in at least two cases during this current term the same question was appropriate for consideration, as here. In Railway Express v. New York, 336 U. S. 106, 69 S. Ct. 463, a corporation claimed to be deprived of both due process and equal protection of the law, and in Ott v. Mississippi Barge Line, 336 U. S. 169, 69 S. Ct. 432, a corporation claimed to be denied due process of law. At prior terms, in many cases the question was also inherent, for corporations made similar claims under the Fourteenth Amendment. See, e. g., Illinois Central R. Co. v. Minnesota, 309 U. S. 157, 60 S. Ct. 419, 84 L. Ed. 670; Lincoln Life Insurance Co. v. Read, 325 U. S. 673, 65 S. Ct. 1220. 89 L. Ed. 1861; Queenside Hills Co. v. Saxl, 328 U. S. 80, 66 S. Ct. 850, 90 L. Ed. 1096. Although the author of the present dissent was the writer of each of the cited Court’s-opinions, it was not intimated therein that there was even doubt whether the corporations had standing to raise the-questions or were entitled to protection of the Amendment. Instead, in each case the author, as I have done in this case,, proceeded to discuss and dispose of the corporation’s contentions on their merits, a quite improper procedure, I should’ think, if the corporation had no standing to raise the constitutional questions. Indeed, if the corporation had no such right, it is difficult to see how this Court would have jurisdiction to consider the case at all.

It may be said that in the foregoing cases other grounds, might have been found upon which to defeat the corporations’ claims, while in the present case apparently there is-none.

However, in at least two cases this Court has recently supported corporations in striking down state action by invoking their rights under the Fourteenth Amendment. In Times-Mirror Co. v. California, companion case to Bridges v. California, 314 U. S. 252, 62 S. Ct. 190, 86 L. Ed. 192, 159 A. L. R. 1346, a newspaper corporation persuaded this Court that a-$500 fine assessed against it violated its rights under the Fourteenth Amendment. In Pennekamp v. Florida, 328 U. S. 331, 66 S. Ct. 1029, 90 L. Ed. 1295, a newspaper corporation was convicted along with an individual defendant, and this Court set aside the conviction upon the ground that the Fourteenth Amendment prohibited such state action. In neither of these cases was the corporation’s right to raise the issue questioned and the result in each case was irreconcilable with the position now asserted in dissent.

It cannot be suggested that in cases where the author is the mere instrument of the court he must forego expression of his own convictions. Mr. Justice Cardozo taught us how Justices may write for the court and still reserve their own positions, though overruled. Helvering v. Davis, 301 U. S. 619. 639, 57 S. Ct. 904, 908, 81 L. Ed. 1307, 109 A. L. R. 1319.

In view of this record I did not, and still do not, consider it necessary for the Court opinion to review the considerations which justify the assumption that these corporations have standing to raise the issues decided.

Mr. JUSTICE DOUGLAS, with whom Mr. JUSTICE BLACK concurs, dissenting.

It has been implicit in all of our decisions since 1886 that a corporation is a “person” within the meaning of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara Co. v. South. Pacific R. Co., 118 U. S. 394, 396, 6 S. Ct., 1132, 30 L. Ed. 118, so held. The Court was cryptic in its decision. It was so sure of its ground that it wrote no opinion on the point, Chief Justice Waite announcing from the bench:

“The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

There was no history, logic, or reason given to support that view. Nor was the result so obvious that exposition was unnecessary.

The Fourteenth Amendment becamp a part of the Constitution in 1868. In 1871 a corporation claimed that Louisiana had imposed on it a tax that violated the Equal Protection Clause of the new Amendment. Mr. Justice Woods (then Circuit Judge) held that “person” as there used did not include a corporation and added, “This construction of the section is strengthened by the history of the submission by congress, and the adoption by the states of the 14th amendment so fresh in all minds as to need no rehearsal.” Insurance Co. v. New Orleans, Fed. Cas. No. 7,051, 1 Woods 85, 88.

What was obvious to Mr. Justice Woods in 1871 was still plain to the Court in 1873. Mr. Justice Miller in the Slaughter House Cases, 16 Wall. 36, 71, 21 L. Ed. 394, adverted to events “almost too recent to be called history” to show that the purpose of the Amendment was to protect human rights — primarily the rights of a race which had just won its freedom. And as respects the Equal Protection Clause he stated, “The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.” 16 Wall, at page 81, 21 L. Ed. 394.

Moreover what was clear to these earlier judges was apparently plain to the people who voted to make the Fourteenth Amendment a part of our Constitution. For as Mr. Justice Black pointed out in his dissent in Connecticut General Co. v. Johnson, 303 U. S. 77, 87, 58 S. Ct. 436, 441, 82 L. Ed. 873, the submission of the Amendment to the people was on the basis that it protected human beings. There was no suggestion in its submission that it was designed to put negroes and corporations into one class and so dilute the police power of the States over corporate affairs/ Arthur Twining Hadley once wrote that “The Fourteenth Amendment was framed to protect the negroes from oppression by the whites, not to protect corporations from oppression by the legislature. It is doubtful whether a single one of the members of Congress who voted for it had any idea that it would touch the question of corporate regulation at all”

Both Mr. Justice Woods in Insurance Co. v. New Orleans, supra, Fed. Cas. No. 7,052, 1 Woods page 88, and Mr. Justice Black in his dissent in Connecticut General Co. v. Johnson, supra, 303 U. S. at pages 88-89, 58 S. Ct. at page 441, 442, 82 L. Ed. 873, have shown how strained a construction it is of the Fourteenth Amendment so to hold. Section 1 of the Amendment provides:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis ours.)

“Persons” in the first sentence plainly include only human beings, for corporations are not “born or naturalized.”

Corporations are not “citizens” within the meaning of the first clause of the second sentence. Western Turf Ass’n v. Greenberg, 204 U. S. 359, 363, 27 S. Ct. 384, 385, 51 L. Ed. 520; Selover, Bates & Co. v. Walsh, 226 U. S. 112, 126, 33 S. Ct. 69, 72, 57 L. Ed. 146

It has never been held that they are persons whom a State may not deprive of “life” within the meaning of the second clause of the second sentence.

“Liberty” in that clause" is “the liberty of natural, not artificial, persons.” Western Turf Ass’n v. Greenberg, supra, 204 U. S. at page 363, 27 S. Ct. at page 385, 386, 51 L. Ed. 520.

But “property” as used in that clause has been held to include that of a corporation since 1889 when Minneapolis R. Co. v. Beckwith, 129 U. S. 26, 9 S. Ct. 207, 32 L. Ed. 585, was decided.

It requires distortion to read “person” as meaning one thing, then another within the same clause and from clause to clause. It means, in my opinion, a substantial revision of. the Fourteenth Amendment. As to the matter of construction, the sense seems to me to be with Mr. Justice Woods in Insurance Co. v. New Orleans, supra, Fed. Cas. No. 7,052, 1 Woods at page 88, where he said, “The plain and evident meaning of the section is, that the persons to whom the equal protection of the law is secured are persons born or naturalized or endowed with life and liberty, and consequently natural and not artificial persons.”

History has gone the other way. Since 1886 the Court has repeatedly struck down state legislation as applied to corporations on the ground that it violated the Equal Protection Clause. Every one of our decisions upholding legislation as applied to corporations over the objection that it violated the Equal Protection Clause has assumed that they are entitled to the constitutional protection. But in those cases it was not necessary to meet the issue since the state law was not found to contain the elements of discrimination which the Equal Protection Clause condemns. But now that the question is squarely presented I can only conclude that the Santa Clara case was wrong and should be overruled.

One hesitates to overrule cases even in the constitutional field that are of an old vintage. But that has never been a deterrent heretofore and should not be now.

We are dealing with a question of vital concern to the people of the nation. It may be most desirable to give corporations this protection from the operation of the legislative process. But that question is not for us. It is for the people. If they want corporations to be treated as humans are treated, if they want to grant corporations this large degree of emancipation from state regulation they should say so. The Constitution provides a method by which they may do so. We should not do it for them through the guise of interpretation.

      . Pertinent parts of the Ohio law read as follows:

        “Section 5328-1 GC: ** * * Property of the kinds and classes mentioned in §5328-2 GC, used in and arising out of business transacted in this state by, for or on behalf of a non-resident person
      * * * shall be subject to taxation; and all such property of persons residing in this state used in and arising out of business transacted outside of this state by, for or on behalf of such persons
      * * * shall not be subject to taxation * * *

        “Section 5328-2 GC: Property of the kinds and classes herein
      mentioned, when used in business, shall be considered to arise out of business transacted in a state other than that in which the owner thereof resides in the cases and under the circumstances following:
      “In the case of accounts receivable, when resulting from the sale of property sold' by an agent having an office in such other state or from a stock of goods maintained therein, or from services performed by an officer, agent or employe connected with, sent from, or reporting to any officer or at any office located in such other state.
      “The provisions of this section shall be reciprocally applied, to the end that all property of the kinds and classes mentioned in this section having a business situs in this state shall be taxed herein and no property of such kinds and classes belonging to a person residing in this state and having a business situs outside of this state shall be taxed. It is hereby declared that the assignment of a business situs outside of this state to property of a person residing in this state in any case and under any circumstances mentioned in this section is inseparable from the assignment of such situs in this state to property of a person residing outside of this state in a like case and under similar circumstances. * * *.

        “Section 5325-1 GC: * * * Moneys, deposits, investments, accounts receivable and prepaid items, and other taxable intangibles shall be considered to be ‘used’ when they or the avails thereof are being applied, or are intended to be applied in the conduct of the business, whether in this state or elsewhere. * * * “Section 5338 GC: Annual taxes are hereby levied on the kinds and classes of intangible property, hereinafter enumerated, on the classified tax list in the offices of the county auditors and duplicates thereof in the offices of the county treasurers at the following rates, to wit:
      “* * * moneys, credits and all other taxable intangibles so listed, three mills on the dollar. * * *

        “Section 5327 GC: The term ‘credits’ as so used, means the excess of the sum of all current accounts receivable and prepaid items (used) in business when added together estimating every such account and item at its true value in money, over and above the sum of current accounts payable of business, other than taxes and assessments. * * *” Ohio Gen. Code Ann. (1945).

      . The Constitutional Position of Property in America, 64 Independent 834, 836 (1908). He went on to say that the Dartmouth College case, 4 Wheat. 518, 4 L. Ed. 629, and the construction given the Fourteenth Amendment in the Santa Clara case “have had the effect of placing the modern industrial corporation in an almost impregnable constitutional position.” Id., p. 836.
      As to whether the framers of the Amendment may have had such an undisclosed purpose see Graham, The “Conspiracy Theory” of the Fourteenth Amendment, 47 Yale L. J. 371.

      . Cf. McGovney, A Supreme Court Fiction, 56 Harv. L. Rev. 853, 1090, 1225, dealing with corporations in the diverse citizenship . jurisdiction of the federal courts.

      . See Chicago & R. Co. v. Minnesota, 134 U. S. 418, 10 S. Ct. 462, 702, 33 L. Ed. 970; Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U. S. 150, 17 S. Ct. 255, 41 L. Ed. 666; Cotting v. Kansas City Stockyards Co, 183 U. S. 79, 22 S. Ct. 30, 46 L. Ed. 92; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 S. Ct. 431, 46 L. Ed. 679; Southern R. Co. v. Greene, 216 U. S. 400, 30 S. Ct. 287, 54 L. Ed. 536; Herndon v. Chicago Rock Island & Pac. R. Co., 218 U. S. 135, 30 S. Ct. 633, 54 L. Ed. 970; Roach v. Atchison, T. & Santa Fe R. Co., 218 U. S. 159, 30 S. Ct. 639, 54 L. Ed. 978; Atchison & Santa Fe R. Co. v. Vosburg, 238 U. S. 56, 35 S. Ct. 675, 59 L. Ed. 1119, L. R. A. 1915E, 953; Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55, 36 S. Ct. 400, 60 L. Ed. 1239; McFarland v. American Sugar Co., 241 U. S. 79, 36 S. Ct. 498, 60 L. Ed. 899; Royster Guano Co. v. Virginia, 253 U. S. 412, 40 S. Ct. 560, 64 L. Ed. 989; Bethlehem Motors Co. v. Flynt, 256 U. S. 421, 41 S. Ct. 571, 65 L. Ed. 1029; Kansas City So. R. Co. v. Road Imp. Dist. No. 6, 256 U. S. 658, 41 S. Ct. 604, 65 L. Ed. 1151; Chicago & N. W. R. Co. v. Nye Co., 260 U. S. 35, 43 S. Ct. 55, 67 L. Ed. 115; Sioux City Bridge v. Dakota County, 260 U. S. 441, 43 S. Ct. 190, 67 L. Ed. 340, 28 A. L. R. 979; Thomas v. Kansas City So. R. Co., 261 U. S. 481, 43 S. Ct. 440, 67 L. Ed. 758; Kentucky Co. v. Paramount Exch., 262 U. S. 544, 43 S. Ct. 636, 67 L. Ed. 1112; Air-Way Corp. v. Day, 266 U. S. 71, 45 S. Ct. 12, 69 L. Ed. 169; Hanover Ins. Co. v. Harding, 272 U. S. 494, 47 S. Ct. 179, 71 L, Ed. 372, 49 A. L. R. 713; Power Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 71 L. Ed. 1165; Louisville Gas Co. v. Coleman, 277 U. S. 32, 48 S. Ct. 423, 72 L. Ed. 770; Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389, 48 S. Ct. 553, 72 L. Ed. 927; Cumberland Coal Co. v. Board, 284 U. S. 23, 52 S. Ct. 48, 76 L. Ed. 146; Liggett Co. v. Lee, 288 U. S. 517, 53 S. Ct. 481, 77 L. Ed. 929, 85 A. L. R. 699; Concordia Ins. Co. v. Illinois, 292 U. S. 535, 54 S. Ct. 830, 78 L. Ed. 1411; Stewart Dry Goods Co. v. Lewis, 294 U. S. 550, 55 S. Ct. 525, 79 L. Ed. 1054; Mayflower Farms v. Ten Eyck, 297 U. S. 266, 56 S. Ct. 457, 80 L. Ed. 675; Hartford Co. v. Harrison, 301 U. S. 459, 57 S. Ct. 838, 81 L. Ed. 1223.

      . In re Ayers, 123 U. S. 443, 8 S. Ct. 164, 31 L. Ed. 216, overruled in part Osborn v. United States Bank, 9 Wheat 738, 6 L. Ed. 204, a decision 63 years old; Leisy v. Hardin, 135 U. S. 100, 10 S. Ct. 681, 34 L. Ed. 128, overruled Peirce v. New Hampshire, 5 How. 504, 12 L. Ed. 256, a decision 42 years old. Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A. L. R. 1487, overruled Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865, a decision 95 years old; Graves v. New York ex rel. O’Keefe, 806 U. S. 466, 59 S. Ct. 595, 83 L. Ed. 927, 120 A. L. R. 1466, overruled Collector v. Day, 11 Wall. 113, 20 L. Ed. 122, a decision 68 years old. United States v. South Eastern Underwriter’s Ass’n. 322 U. S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440, overruled in part Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, a decision 75 years old.

      . The restrictions on state power which are contained in the Commerce Clause and which may prevent the States from burdening interstate commerce, see Southern Pacific Co. v. Arizona, 325 U. S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915; Morgan v. Virginia, 328 U. S. 373, 66 S. Ct. 1050, 90 L. Ed. 1317, 165 A. L. R. 574; or discriminating against it, see Nippert v. Richmond, 327 U. S. 416, 66 S. Ct. 586, 90 L. Ed. 760, 162 A. L. R. 844, rise from a different source and are not relevant here.


author: By HERRMAN, Referee.

text:
    WYSE LABORATORIES, INC., Bankrupt; In Re.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION
    No. 9452.
    Decided July 14, 1949.
    John B. Harshman, Joseph L. Lair, Dayton, for the Maxwell Finance Company and Jack Pickrel.
    Thomas Talbot, Dayton, for the trustee in bankruptcy.
   OPINION OF REFEREE

By HERRMAN, Referee.

At Dayton, in said District, on the 14th day of July, 1949. This matter comes before the Court jointly on the Petition for Reclamation filed by The Maxwell Finance Company and the Petition of the Trustee for the sale of the assets of the bankrupt corporation. After proper notice was given, a hearing was held on the Petitions herein and testimony taken, which testimony has been reduced to writing and a transcript thereof has been filed with Exhibits attached. By agreement of the parties an order was entered permitting the sale of all of the property (excepting certain personal property covered by chattel mortgages listed as Exhibits F and G) and any liens, preferences or priorities which may be claimed were ordered transferred to the fund created by such sale.

This case may be divided into two separate matters, one involving the validity of certain chattel mortgages (Exhibits A through E) and the other concerning a factor’s lien claimed by The Maxwell Finance Company (Exhibits H, 1 and J).

The record discloses that beginning on or about March 19, 1946, James H. Wyse, Harold G. Wyse and David S. Wyse, partners, doing business as Wyse Laboratories, borrowed $30,000.00 from The Maxwell Finance Company on a promissory note and gave to The Maxwell Finance Company a chattel mortgage (Exhibit A! to secure the repayment of said note. Later on, said partners caused the .business to be incorporated under the laws of the State of Ohio with their principal place of business at Dayton, Ohio, and again subsequently executed notes for varying amounts and gave chattel mortgages to secure the repayment of said notes. (Exhibits B through G). This Court has already found that chattel mortgages F and G are valid and subsisting liens against the property described therein, and in the discussion which follows the Court will only consider the other chattel mortgages because of the circumstances surrounding the methods used in financing which resulted in the execution of the notes and mortgages.

The Trustee has attacked the validity of these mortgages for the reason that an unusual method of handling the financing obtained. For example, Wyse would borrow $30,000.00 on March 19, 1947, due 90 days from date; executed a note and a mortgage on certain property to secure the payment of said note. On or about the due date of the obligation Maxwell would issue a check to Wyse for ($30,000,001 and then Wyse would issue its check to Maxwell for $30,000.00, but the note which was then given at the due date would be marked “This is a renewal note.” This continued on many occasions throughout the transactions of financing and the testimony disclosed that in all of the situations wherein chattel mortgages A through E were given, at sometime or other there would be a payment by Maxwell to Wyse and check issued by Wyse back to Maxwell.

The Trustee’s contention, simply stated, is that when Wyse issued, a check to Maxwell the note for which the chattel mortgage was given as security then became paid and upon payment the chattel mortgage must fall. With this contention I cannot agree for the reason that the controlling case law -in Ohio requires us to look to the facts and circumstances surrounding the transaction to determine the intention of the parties at the time of the transaction. 1 can find no evidence in the record which indicates any intention on the part of The Maxwell Finance Company or the Bankrupt Corporation that the method used constituted payment of the pre-existing note, thus discharging the security. The record is silent as to any reason for that particular method of handling the financing program This Court is of the opinion that there was no absolute payment of the obligation and that it was the intention of the parties that the new note should be a renewal of the old note and not a payment thereof. This Court follows the reasoning as set forth by Judge Hornbéck in the case of Madlener v. Greathouse, 31 Abs. 434, that the giving of a renewal note does not operate as a payment, satisfaction or discharge of the instrument for which it is given, unless it has been so agreed between the parties. The testimony of the President of the Bankrupt Corporation was to the effect that there was no intention to pay the pre-existing note by the back and forth issuance of checks and that in his mind he was merely, renewing the note. The Court, therefore, finds that the liens of The Maxwell Finance Company as set forth under its chattel mortgages, Exhibits A through E, are valid liens against the property described in said mortgages.

2. FACTOR’S LIEN

The second part of this opinion involves an Agreement dated June 25, 1946, between the bankrupt and The Maxwell Finance Company to create a factor’s lien under and by virtue of the provisions of §8364-1 GC et seq. The record discloses that on June 25, 1946, the bankrupt and The Maxwell Finance Company entered into a factor agreement which is in evidence as Exhibit I. On the same date the bankrupt executed a statement of itself as borrower, setting forth the merchandise to be covered by the factor’s lien which is in evidence as Exhibit J. On the same date a notice of lien was executed by both parties which is in evidence as Exhibit H. This notice was properly filed for record in the Office of the Recorder of Montgomery County, Ohio, as required by law. The factor’s lien was given as security for the repayment of various advances made by the factor to the borrower over a period of time extending through June 25, 1947.

The Trustee does not question the validity of the factor’s lien or the compliance with the provisions of the Factor’s Lien Law between borrower and the factor as of June 25, 1946, but does question the extent of the merchandise to be covered by the lien. The Trustee's contention is that the factor’s lien could only cover the merchandise as set forth in Exhibit J, listing the typewritten portion on the statement of the borrower as being the property covered and claims that the printed portion of said Exhibit does not apply. To be more specific, the Trustee challenges the right of the factor to have a lien on merchandise coming into existence or acquired by the borrower subsequently to the time of the execution of the written agreement or subsequent to the filing of the notice of the lien. The Trustee in support of this contention advances the argument that the factor was required to file additional notices in order to have the lien cover subsequently acquired merchandise, placing an interpretation upon §8364-2 GC, that it was necessary for the factor to secure additional statements from the borrower as other merchandise was acquired.

In this case we have no question of the iniquity of a secret lien which might be void under the provisions of Section 60a of the Chandler Act for we do have the giving of a public notice by the factor in order to establish his open and notorious lien.

The Factor’s Lien Law is new in Ohio, having been enacted in 1945. So far as this Court knows there are no recorded decisions interpreting the provisions of the Act, except a Common Pleas Court decision in Montgomery County where the validity of the Act was upheld without opinion by the Court. It would seem beneficial to examine the reasons and circumstances which produce the Act. Only one state has had a Factor’s Lien Act for any length of time, New York having passed such an Act in 1911, and with but few exceptions the fifteen states which have enacted Factor Lien Laws have all done so beginning in 1945, and thereafter. All of these Statutes are similar in form and provide in their essence for the maintenance of a lien on a shifting stock of goods in the possession of the borrower. In some states notice is required to be filed similar to the requirement in Ohio. In several states there is a requirement for the posting of notice on the principal place of business of the borrower and upon the warehouse where the goods may be stored or kept. Other states provide alternative recording of notice or placing of the notice at the principal place of business or the warehouse. In every case there is a requirement of notice. In some states, including New York, there is a legislative expression that the Act is to be liberally construed to give effect to those provisions and purpose. In many states there is no such legislative expression. The Act arises out of a business need and is the extension of a type of security device to be helpful in the financing of business. It permits a borrower to secure advances on work-in-process, inventory, etc. Without releasing possession of his goods, thus providing a method of financing a business operation where without the law he would be unable to do so through the former security devices. The need for such a law has long been evident. This seems to be demonstrated by the fact that fifteen states have enacted such a law within a period of two or three years.. The law has been found to be helpful to the business community. This expression was derived from the report of Walter D. Yankauer, Chairman of the New Committee on Federal Liens and Pledges of the American Bar Association.

The Trustee calls the Court’s attention to certain differences between the New York and the Ohio Factor Lien Law. One difference has to do with the fact that the new York Act says that it shall be liberally construed and that substantial compliance shall be sufficient. In this connection the Trustee urges that a Court, in construing the Ohio Factor Lien Law, should follow the ordinary rule of interpretation which requires a strict interpretation and a strict compliance. There is no question in this case that there has been a strict compliance with the provisions of the Act regarding the execution of the necessary papers and the filing of notice. The question of strict interpretation of the meaning of the Act is posed by the Trustee in his interpretation of the necessity of the factor filing amended notices to include after acquired property. We again revert to an examination of the purposes of the 'exactment of the law. Keeping those purposes in mind I cannot find justification for supporting the contention of the trustee for should he be right, it would be necessary for the borrower to file a new statement and the factor to give new notice every time a pound of steel or a quart of oil should be purchased by the borrower. I do not believe the Legislature intended that such a situation should obtain, but feel that the provision for filing of amended notices did have in mind changes in the status of the parties or their respective interests. The Legislature did expressly have in mind that the lien should cover after acquired property by the use of the words “Whether such merchandise shall be in existence at the time of the execution of the written agreement or shall come into existence subsequently thereto, or shall subsequently thereto be acquired by the borrower.” (Sec. 8364-2 GC.)

The Trustee further calls attention to the difference between the New York and Ohio Act, in that New York requires the posting of the notice in a conspicuous place at the main entrance of the store, etc. While this may be beneficial, it is within the province of the Legislature to specifically prescribe the type of notice which shall be given, and in Ohio there is the requirement only that it be filed in the Office of the Recorder of the proper county. In this connection, North Carolina provides for the filing of the notice either in the Recorder’s Office or by the posting of a notice at the principal place of business of the borrower, or at a warehouse where the goods may be stored.

The Court has examined with great care what appears to be the leading case in the United States on the subject. The case was decided by Judge Hand and is styled In Re Comet Textile Company, Inc., 15 Fed. Supp. 963. The purposes of the Factor Act was amply described in the first syllabus. In that case it is said

“Purpose of the Factors Act was to permit creation of lien-on merchandise to secure loans in cases where statutory conditions of notoriety were complied with in lieu of delivery of possession of merchandise to lienor.”

It is also well to note the provisions of syllabus No. 3 of the Comet case wherein it is said

“Lien created under Factors Act allowing lien on merchandise to secure loans in cases where statutory conditions of notoriety were complied with in lieu of delivery of possession of merchandise to lienor held valid against creditors with claims antedating notice of the liens, where such claims were not made liens attaching to merchandise prior to filing of notice.”

Thus we see that the factor is protected even against the claims of creditors antedating the notice of the factor’s lien where the statutory conditions of notoriety were complied with and this expression carries out the purpose background to enable a borrower to secure funds through this security device where otherwise they probably would not be available. This Court finds no substantial differences between the New York and Ohio Acts which would require any finding other than that as set forth by Judge Hand in the Comet case.

Under the definition of merchandise as set forth under §8364-1 GC, the factor’s lien shall cover materials, goods-in-process and finished goods intended for sale whether or not requiring further manufacturing or processing, but shall not include motor vehicles, equipment, or trade fixtures of the borrower. The Bankrupt Corporation was engaged in the business of manufacturing of motorcycles which would fall within the definition of motor vehicles as prescribed by the Law of Ohio.. (Sec. 6302-1 and 2; §6290-2 GC.)

The Petitioner, the Maxwell Finance Company informed the Court by letter on May 6, 1949, that it did not claim that motor vehicles owned by the bankrupt were covered by the factor’s lien, the term motor vehicle including completed and fully assembled Wysecycles. The Attorneys for the trustee on May 12, 1949, concurred in the statement made by the attorneys for The Maxwell Finance Company so this Court does not include in this opinion any interpretation or effect to be given to the exception as set forth in the merchandise definition referred to herein above.

In conclusion, the Court finds that the chattel mortgages, Exhibits A through E, are valid liens covering all property described therein in favor of The Maxwell Finance Company, excepting after acquired property. As to the after acquired property provision in the mortgages, the mortgagee has waived any claim that the mortgages would cover any after acquired property.

The Court further finds that the factor’s lien of The Maxwell Finance Company is a valid lien on all material, goods-in-process and finished goods, excepting any finished motorcycles, all motor vehiclles, equipment or trade fixtures of the Bankrupt Corporation.

An Entry may be prepared accordingly.


author: By THE COURT:

text:
    HERKINS, Plaintiff-Appellee, v. PERRIN, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2033.
    Decided May 2, 1949.
    Shaman, Winer & Schulman, Dayton, for plaintiff-appellee.
    George P. Holland, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

The appeal is from a judgment of the Common Pleas Court, affirming a judgment of the Municipal Court in favor of the plaintiff in the sum of $175.00 with interest and costs.

The statement of claim was for money due and owing the plaintiff in the sum of $175.00 upon an account for services rendered. A copy of the account was attached, as follows:

For Professional Services:

Services rendered _______________________$325.00

Paid on Account__________________________150.00

Balance due______________________________$175.00

Three errors are assigned to the judgment.

(1) The refusal of the trial court to require plaintiff to elect whether he was proceeding on an account or upon a contract.

(2) Overruling defendant’s motion to dismiss at the close of plaintiff’s testimony.

(31 In entering judgment for the plaintiff for the reason that it is not sustained by the evidence.

It is urged that the action of the plaintiff was not the proper subject of a book account, it being a single transaction and arising on contract.

Manifestly, the action did arise on contract b‘ut that in itself does not preclude the entrance of the transaction relative to the contract into a book account. The action here was clearly stated by the plaintiff to be on an account both in his pleading and in the statement of his counsel. The election to proceed on the account was specific.

The difficulty in this case is to reconcile defendant’s exhibits A. and B., being receipts for $5.00 and $75.00, respectively, with the account. The first, Exhibit A., is a receipt from plaintiff to the defendant in which it is stated, “In Re Divorce Fee, applied on account, date, January 30, 1947”. Exhibit B for $75.00, dated February 25, 1947, states, “In Re: to apply to Divorce Fee — on account”.

The account bears no date whatever as to the time when the services were rendered, the time when the credit of $150.00 was paid and no evidence whatever was proffered in the form of an account, the evidence merely proving the existence of .a contract which could have been made the subject of an account. It will be noted that the total amount set out as representative of services rendered is $325.00, and the only credit is $150,00, which was an allowance made by the trial judge to plaintiff and another counsel for defendant for services rendered by them and each of them in a divorce action wherein the defendant here was plaintiff and her former husband was defendant.

The contract upon which plaintiff entered into performance was to assist in representing her as counsel in her divorce action at Wilmington, Clinton County. The evidence will not bear any interpretation other than that the services performed by the plaintiff were pursuant to his employment to-represent the defendant in her divorce action. This is accentuated by statement of plaintiff’s counsel at the beginning of the trial as follows:

“This is an action filed by the plaintiff to recover the amount of $175.00, which represents non-payment of the balance of attorney fees for services rendered by Mr. Herkins. Our evidence will show that Mr. Herkins represgnted her in a divorce action. He received partial payment for his account, for services rendered.”

The testimony of the plaintiff is all to the effect that the services rendered were in the divorce action and as a matter of fact they were all properly performed in that relation, even though in such representation some cheek was made of a partition suit between the parties. Counsel for plaintiff in cross-examination seemed to make some point that extra services may have been rendered for which the $75.00 was a. payment. This clearly is not supported by the record and is not contended by the plaintiff in his testimony. So that, inasmuch as defendant denied “that there is due and owing the sum of $175.00 for services rendered”, Manufacturing Co. v. Haas, 6 O. N. P. 451, it was incumbent upon the plaintiff, electing to proceed upon an account, to establish that there was a balance due of $175.00. Dykeman v. Johnson, 83 Oh St 126. The first syllabus is authority to the effect that,

“Where in an action on an account to recover for services rendered, the petition of plaintiff is in short form authorized by Section 5086, Revised Statutes, such petition must be construed to contain and by implication allege, all those facts which it would otherwise be necessary to specifically aver in the statement of a sufficient cause of action, and every fact thus averred by implication is traversed and put in issue by the general denial.”

The account setting out the charge for services rendered to be $325.00, crediting the payments of $75.00, $5.00 and $150.00, establishes credits which should have been allowed in the sum of $230.00, which would leave a balance due plaintiff in the sum of $95.00 only. As the book account, properly stated, clearly began at the time that the contract of employment was entered into, if there was a balance due plaintiff in the sum of $175.00, the total amount charged for services should have been $405.00, instead of $325.00. The only way that the verdict and judgment for the plaintiff may be reconciled is to set up such an account. This would be in direct conflict with the statement which plaintiff attached to his petition, or in disregard of the express acknowledgement in the receipts over plaintiff’s signature that the $75.00 and $5.00 credits were received on the account of the divorce action.

It is further urged that the judgment may not be supported because plaintiff offered no evidence as to the value of the services performed by him for the defendant. Upon the denial by the defendant of the amount claimed to .be owing plain'tiff, the sum for which he sued, the burden was upon him to establish every element of his case, including the reasonableness of the charge for the services performed. Upon the whole record, it seems clear that this action was on an express contract to pay as upon quantum meruit for legal services to be performed by the plaintiff for the defendant in her divorce action.

By final entry in the divorce case in Clinton County, the trial judge required the defendant to pay to the plaintiff for services performed by her lawyers, naming them, one of which was plaintiff here, the sum of $450.00. Plaintiff states that he received $150.00 of this sum and that he did not approve the entry. The fact that the trial judge, who should have been familiar with the services rendered by both counsel, fixed the value thereof at $450.00 is some evidence as to the reasonable value of the services rendered. This, of course, did not preclude a contract between plaintiff and the defendant, his client, for any other sum, but inasmuch as the amount due him was in quantum meruit, the action of the trial judge in the divorce case had some weight. The only testimony adduced by the plaintiff in this respect was the rates fixed by the Montgomery County Bar Association, the minimum charge of which would account for $275.00 for services in a contested case and for a day and a half trip to and from Wilmington. If the other half day when the plaintiff first went to Wilmington was included, this would be $25.00 more. There is no other testimony relating the schedule of fees to the services performed.

At the trial, counsel for defendant sought time to bring the associate counsel of plaintiff in the divorce case in to testify and this privilege was denied. We can not be critical of the trial judge for this action, although it would have been most helpful to have secured the testimony of the associate counsel upon this material matter of the arrangement between the attorneys as to division of fees. This is expressly true because the court had admitted statements made by associate counsel to the plaintiff in the absence of defendant as to the division of any fees that might be allowed by the court. This testimony was admitted over objection.

Proof of the reasonableness of the charges for the services as claimed by the plaintiff devolved upon him. The W. H. Davis Dye Company v. The Beltz-Hoover Electric Company, 40 Oh Ap 308, 1 C. J. S. 604.

We are not unmindful of the fact that plaintiff testified that he fixed his fee as to the amount after the divorce decree and that he told the defendant that she would owe him a balance of $175.00, crediting $150.00 as the allowance made in the divorce case on his charge. This fixing of the fee was done while the relationship of attorney and client subsisted between the parties and would be subject to clear proof of the fairness of such a contract. A different rule applies as to the obligation of the attorney to his client respecting a contract for fees if made before the relationship of attorney and client subsists than if made during such relationship. 4 O. Jur. 484; Grezeziniski v. Pruss, 5 Abs. 627.

We are of the opinion, however, that the evidence upon its entirety requires the conclusion, as we have before stated, that what is presented here on behalf of the plaintiff is proof of an express contract between counsel and client whereby he was to perform legal services for the client in her divorce case, a refusal to fix any specific charge, thereby relying as to the amount of his fee upon what his services were reasonably worth.

We do not consider the specific defense of the defendant that there was an express contract wherein plaintiff agreed to perform the services in full for $160.00 and not over $200.00. Defendant’s testimony to that effect was supported by two other witnesses but the court had the right upon this affirmative defense to hold against her.

Upon the issues drawn on the pleadings of the parties and the evidence, in fairness to the appellant, we can not permit this judgment to stand without crediting her for the sum of $80.00 on account in the divorce case, which is according to the specific terms of the receipts. Nor can we increase the amount of the total charge set up in the account which plaintiff states is the basis of his action. So doing, the defendant is clearly entitled, as the record now stands, to a further credit of $80.00. This leaves a balance due the plaintiff of *$95.00. Because of the view that we take of this appeal, we could not order a remittitur without prejudicing the rights of the defendant. However, if the defendant will consent to a reduction of the judgment from $175.00, with interest and cost, to $95.00 with interest and cost, and the plaintiff will enter a remittitur in this court of all over that sum, the judgment of the plaintiff will be affirmed in that amount. If this is not done, the judgment will be reversed on the ground that it is against the manifest weight of the evidence; that plaintiff has failed as a matter of law to make proper proof that $175.00 is due and owing to him because of his failure to prove the reasonable value of his services and to give credit to the defendant for the $80.00 represented by the defendant’s receipts, exhibits A. and B.

Judgment accordingly.

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


author: By HILDEBRANT, J.:

text:
    RENNER, Treas., Plaintiff-Appellee, v. RABKIN et, Defendants-Appellees, and PAUL, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7010.
    Decided November 22, 1948.

      Carson Hoy, Cincinnati, Melvin G. Rueger, for plaintiffappellee.
    Milton H, Schmidt, Cincinnati, for defendants-appellees. Stewart S. Cooper, Cincinnati, for defendant-appellant.
   OPINION

By HILDEBRANT, J.:

This is a suit in the name of the County Treasurer to foreclose the lien for taxes on delinquent lands of the appellees. Following the procedure outlined in the Code, the cause proceeded to sale by the sheriff, where appellant became the high bidder. The order for sale was returned and filed by the sheriff on May 28th, 1948.

On June 1, 1948, on motion, after notice to all parties, it appearing to the court that appellees had paid to the Clerk of Courts the full sum of the judgment plus interest and costs as required by §11690 GC, the sale was set aside and held for naught and the property redeemed' to the -judgment debtors.

The appeal on questions of law is from that action of the Court.

No bill of exceptions is filed herein, so that the Court is limited to determining from the record before it the question as to the power of the Court to make the order here challenged.

It is contended by appellant that by virtue of §5724 GC, no right of redemption exists unless exercised before foreclosure proceedings have been instituted.

Sec. 5724 GC, reads:

“All delinquent land upon which the taxes, assessments, penalty or interest have become delinquent, may be redeemed at any time before foreclosure proceedings thereon have been instituted, by tendering to the county treasurer the amount then due and unpaid.”

That section merely permits redemption of all delinquent lands before the institution of foreclosure proceedings by tender of payment to a particular official — the County Treasurer. It contains no language importing it to be the exclusive mode of redemption, nor of barring all further opportunity of redemption. Under this section is cited Freedman v. Van Antwerp, 14 O. C. c. (n. sj 333, wherein this Court held:

“The owner of real estate, ordered sold in satisfaction of a lien -for unpaid taxes or assessments, may redeem the property at any time before confirmation by payment of such taxes or assessments with penalties.”

It further appears that the statutes here invoked for sale of the delinquent lands grant the right to redeem upon proper payment prior to confirmation of the sheriff’s sale. Sec. 5718-3 GC, provides in part:

“The proceedings for such foreclosure shall be instituted and prosecuted in the same manner as is now or hereafter may be provided by law for the foreclosure of mortgages on land in this state, excepting that if service by publication is necessary, such publication shall be made once a week for. three consecutive weeks instead of as provided by §§11295 or 11298 GC, and the service shall be complete at the expiration of three weeks after the date of the first publication.”

The law relating to foreclosure of mortgages, to which we are directed, §11690 GC, provides:

“JUDGMENT DEBTOR MAY REDEEM ANY TIME BEFORE CONFIRMATION. In sales of real estate on execution or order of sale, at any time before the confirmation thereof, the debtor may redeem it from sale by depositing in the hands of the clerk of the court to which such execution or order is returnable, the amount of the judgment or judgments or decree 'upon which such lands were sold, with all costs, including poundage, and interest at the rate of eight per cent per annum on the purchase money from the day of sale to the time of such deposit; or, if it be made in vacation, to the first day of the next term, except where the judgment creditor is the purchaser, the interest at such rate on the excess above his claim. The court thereupon shall make an order setting aside such sale, and apply the deposit to the payment of such judgment or judgments or decree and costs, and award such interest to the purchaser, who shall receive from the officer making the sale the purchase money paid by him, and the interest from the clerk. Nothing in this section shall take away the power of the court to set aside such sale for any reason for which it might have been set aside prior to the enactment hereof.”

Under the above section, it seems clear the right of redemption remained in the judgment debtor and that the court had power to so order, as it did prior to confirmation.

In addition, it would appear that the statute preserves any equitable power reposing in the court to set aside judicial sales even after confirmation.

Having concluded that the statutes gave the right to redeem here exercised, this opinion will not be extended to other contentions argued.

The judgment is affirmed.

MATTHEWS, PJ, ROSS & HILDEBRANT, JJ, concur in syllabus, opinion & judgment.


author: By PER CURIAM:

text:
    QUILLIAM, Ex Parte, In Re. WOODALL, Ex Parte, In Re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 21321 and 21322.
    Decided June 13, 1949.
    Frank C. Lyons, Cleveland, for relators.
    Frank T. Cullitan, County Prosecutor, Cleveland, for respondents.
   OPINION

By PER CURIAM:

It is the view of this Court that the question here presented is one which seeks to invoke the jurisdiction of this Court to pass upon a question which it is beyond the power of this Court to consider, that is, whether or not a sister State is violating the Constitutional rights of one charged and convicted of crime by its courts.

If the Constitutional rights of a prisoner are being violated in the sister State, such question should be presented by proper proceedings to the courts of that State for remedy. The only remedy that would be available by granting the writs here requested would be to release the prisoners in the State of Ohio, thus in effect commuting their sentences for serious crimes of which they have been found guilty.

Section 2, Article 4 of the Constitution of the United States provides:

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

The purpose of this provision of the Constitution is to prevent a state from becoming an asylum for persons charged with crime or for convicts from another state.

In Drew v. Thaw, 235 U. S. 432, at page 439, 35 Supreme Court 137, on page 138, 59 L. Ed. 302, a case involving an escapee from an institution, Justice Holmes stated:

“* * * In extradition proceedings, even when, as here, a humane opportunity is afforded to test them upon habeas corpus, the purpose of the writ is not to substitute the judgment of another tribunal upon the facts or the law of the matter to be tried. The Constitution says nothing about habeas corpus in this connection, but peremptorily requires that upon proper demand the person charged shall be delivered up to be removed to the state having jurisdiction of the crime. Art. 4, Sec. 2, Pettibone v. Nichols, 203 U. S. 192, 51 L. Ed. 148, 153, 27 Sup. Ct. Rep. 111, 7 Ann. Cas. 1047. There is no discretion allowed, no inquiry into motives. Kentucky v. Denison, 24 How. 66, 16 L. Ed. 717; Pettibone v. Nichols, 203 U. S. 192, 203, 51 L. Ed. 148, 153, 27 Sup. Ct. Rep. 111, 7 Ann. Cas. 1047.”

The foregoing authority dealt with the case of one charged with crime who had not yet been convicted. In the instant case we are dealing with relators who have been found guilty of serious crimes and who have escaped from the penal institution in which they had been confined. The law of that case must, therefore, have greater force under the facts of this case.

For the foregoing reasons the judgment of the trial court is affirmed. Exc.

SKEEL, PJ, HURD, J, DOYLE, J, concur.


author: By PHILLIPS, J.

text:
    SCURRY, Plaintiff-Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Defendant-Appellant.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1022.
    Decided 1949.
    Thomas F. Joseph, Martins Ferry, William J. Weinman, Steubenville, for plaintiff-appellee.
    Hugh S. Jenkins, Atty. Geni., R. Brooke Alloway, Asst. Atty. Geni., Joe F. Asher, Asst. Atty Geni., Columbus, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Plaintiff is the widow of decedent, John D. Scurry, who at the time of death on November 1, 1945, was an employee of a corporation amenable to the Workmen’s Compensation Laws of Ohio, and a contributor to the fund created thereby.

After decedent’s death plaintiff duly filed her application for compensation with defendant, Industrial Commission of Ohio, in which she stated that at the time of decedent’s death she was living with him as his wife and was wholly dependent upon him for support.

That application was disallowed on the ground that the injury resulting in his death was not sustained in the course of nor arising out of his employment. The subsequent necessary procedural steps were taken and from a final disallowance of her claim upon rehearing her appeal was perfected to the court of common pleas; and it is from the judgment entered upon the finding for plaintiff of á judge of that court, to whom the case we review was submitted by agreement of counsel, that defendant appeals to this court on questions of law.

The facts are simple, and those necessary to understand the question presented are summarized in the following quoted portion of a hypothetical question propounded by plaintiff’s counsel to one of her medical witnesses who had treated decedent for influenza about three years prior thereto, and who testified in her case in the court of common pleas that her husband died from a fracture of the skull, but on cross-examination said he did not know “what he died from”:—

“Doctor, I wish you would assume that John D. Scurry, was fifty years of age on the first day of November, 1945, and at that time, was employed at washing windows. In doing this work, he stood about five feet from a certain wall, and while engaged in washing the windows he was seen to be falling backward, with his hands over his head. He fell prone, in other words, it has been described that he fell ‘like a board’; that as he fell, he struck his head on a tile wall about 24 inches above the floor, striking the upper and middle part of his head in the back; that his head then struck the floor there where he was working, and after his head had struck the wall and the floor, it lay up against the wall. After this happened, he was raised up, at which time he was seen to be breathing heavily, and he sat in this position for a minute or so, and then lay back down. At that time his body was covered, a doctor was called, arriving later, and his body was covered, and his face was covered with his hat. After he fell, there was blood to be observed on the floor about the size of a half dollar. * *

Another of plaintiff’s medical witnesses testified that plaintiff’s decedent died as the result of a “cerebral injury, injury to the brain”.

Defendant’s medical evidence is that the “apparent cause of (decedent’s) death assumed to be coronary occlusion in the absence of other findings, some type of heart attack or sudden heart damage, or from a massive lesion inside the skull, probably most likely a large cerebral hemorrhage” not caused by a fall; that “something violent and serious happened to him (decedent) to cause the fall itself and it in all probability was the sole cause of death”.

Such is the evidence, which in our opinion supports the judgment of the trial court, upon which we are asked to determine whether or not decedent’s death was the result of an injury sustained in the course of and arising out of his employment.

In the case of Stanfield, Appellant, v. Industrial Commission, Appellee, 146 Oh St, 583, upon which defendant relies heavily to secure a reversal of the judgment of the trial court, the supreme court said “the fall resulted from the seizure alone and not from any circumstances of his employment.”

In our opinion that case is distinguished from the case we review by the fact that in the case we review the evidence is in conflict as to whether the fall resulted from a seizure or whether decedent’s injury was caused by a fall in no way associated with the seizure presenting a question for the determination of the trial judge sitting as a jury, with whose finding and judgment we will not interfere.

We can not say as a matter of law from the evidence submitted to us whether plaintiff’s decedent died from the causes assigned by her medical witnesses or from the causes assigned by defendant’s medical witnesses.

We are not only bound but are deeply impressed by the reasoning of the supreme court in the case of Industrial Commission of Ohio v. Nelson, 127 Oh St, 41, in which the court exhaustively reviews a large number of cases, and to which counsel for the respective parties are respectfully referred.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


author: By WISEMAN, J.:

text:
    STATE, ex rel SPARTO et, Relators, v. WILLIAMS, Respondent.
    Ohio Appeals, Second District, Darke County.
    No. 671.
    Decided May 9, 1949.
    Louis A. Ginocchio, Cincinnati, Goubeaux & Goubeaux, Greenville, for relators.
    Cecil E. Edwards, Dayton, Paul W. Younker, Greenville, for respondents.
   OPINION

By WISEMAN, J.:

Submitted on demurrer to the petition for a writ of prohibition enjoining the Honorable Edward Williams, Judge of the Juvenile Court of Darke County, Ohio, from proceeding in a cause involving the custody of Rita Mae Sparto, a child twelve years of age, the daughter of the relators, who is now in the custody of said child’s uncle and aunt, residents of Darke County, Ohio.

In the petition these pertinent facts are alleged: The uncle and aunt petitioned the Probate Court of Darke County, Ohio, for leave to adopt said child which was denied; the judge of the Probate Court in the capacity of judge of the Juvenile Court, without certification as provided in §10512-21 GC and without a separate hearing, made an order respecting the custody of said child. From this order an appeal was taken to the Court of Appeals which affirmed the judgment of the Probate Court denying the adoption but reversing the order respecting the custody of said child and remanded the cause to the Probate Court for a proper certification to the Juvenile Court for further proceedings in conformity to the provisions of §10512-21 GC. (See, In Re Adoption of Rita Mae Sparto, 52 Abs 189, 82 N. E. (2d) 328.) Subsequently the proper certification was made and, on hearing, the judge of the Juvenile Court dismissed the cause on the ground that it had no jurisdiction. A motion for new trial was duly filed, supported by an affidavit of the aunt that said minor was a neglected child within the provisions of §1639-23 GC. A new trial was granted. .At a subsequent hearing the court found that it had jurisdiction to'determine the custody of said minor, that the relators had not abandoned the child nor lost their right through unfitness or inability to provide a suitable home for said child; that said minor was not a dependent, neglected nor delinquent child and that the relators should have the custody and control of said child. The court further found that inasmuch as the child had not resided in the home of relators for a considerable length of time, the Juvenile Court should retain continuing jurisdiction until the child had made the proper adjustment; that the complaint be dismissed and custody of said child be awarded to relators subject to the order of the Juvenile Court. The court further ordered that execution of said judgment be stayed pending appeal and that said minor remain in the custody of the uncle and aunt until the determination of said appeal. It is not alleged that an appeal was perfected.

A motion for new trial was duly filed which came on for hearing before a successor judge, the respondent herein. The-court rendered a written opinion in which it held that the-motion for new trial should be sustained on the ground that there was evidence that the relator had abandoned the child. This opinion has not been journalized due to the bringing of this action.

Do the facts alleged show that relators are entitled to the relief sought? The relators contend that the court found it had no jurisdiction and that in fact it has no jurisdiction to make an order or to proceed further in the matter. The respondent contends that the court had jurisdiction to determine custody and to make an order in respect thereto.

Under the provisions of §10512-21 GC which is a part of the Probate Code, upon a proper certification of the case' to the Juvenile Court jurisdiction is conferred upon such court, to determine custody of said child. Sec. 1639-16 GC provides, for the exclusive original jurisdiction of the Juvenile Court. Subdivision (2), paragraph 2, provides that the Juvenile Court shall have jurisdiction to “determine the custody of any child not a ward of another court.” And subdivision (d) of said section provides that “the court shall have jurisdiction to hear and determine the case of any child duly certified to the court according to law by any court of competent jurisdiction, and to make disposition of said child in accordance with the provisions of this chapter.”

In our opinion the provisions of the aforementioned sections are sufficient to confer jurisdiction on the Juvenile Court to determine the right of custody of such child. The court bad the authority to retain and exercise continuing jurisdiction. See §1639-35 GC.

Relators rely on the case of Paddock v. Ripley, 149 Oh St 539, 80 N. E. (2d) 129, in which the Court on page 541 held:

“Under the Juvenile Court Code, such courts have jurisdiction only of delinquent, neglected or dependent children.”

The issue herein raised does not require an analysis or application of the principle of law announced in the Paddock case, since it is quite clear that if the court did not have jurisdiction on any other ground, it acquired jurisdiction when the affidavit was filed by the aunt that said minor was a neglected child within the provisions of §1639-23 GC. A full hearing was had on the issue raised by the filing of the affidavit. After judgment on this issue a motion for new trial was filed in which the court has announced its opinion. This is the first motion for new trial on the issue raised by the filing of the affidavit.

No facts are alleged showing that the court has lost jurisdiction. The finding of the trial court that it had lost jurisdiction is immaterial and must be disregarded, where the petition is tested on demurrer and facts are alleged which show that the court at all times had and still has jurisdiction.

The court had jurisdiction of the subject matter involved, in the controversy and it .may proceed to enter an order in regard thereto. Weenink & Sons v. Court, 150 Oh St 349, 355, 82 N. E. (2d) 730; 32 O. Jur. page 580, Section 20; Am. Jur. page 435, Section 243.

Relators contend that the court will commit error if it is .allowed to journalize an order in conformity with its opinion. A writ of prohibition does not lie to prevent erroneous decisions. 32 O. Jur. page 586, Section 24.

The relators are afforded an adequate remedy at law by prosecuting an appeal at the proper time. State, ex rel. v. Conn, 151 Oh St 8; 32 O. Jur. page 572, Section 10.

The demurrer to the petition will be sustained. Counsel .may draw the proper entry.

MILLER, PJ, and HORNBECK, J, concur.


author: By SKEEL, PJ.

text:
    STATE, Plaintiff-Appellee, v. MORGAN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21537.
    Decided October 17, 1949.

      Frank T. Cullitan, County Prosecutor, Harvey Monck, Ass’t. County Prosecutor, Cleveland, for plaintiff-appellee.
    Martin L. Sweeney, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment of the common pleas court of Cuyahoga County finding the defendant guilty of the crime of first degree manslaughter.

The defendant and the deceased had been room-mates for a short period of time prior to March 29, 1949 in rooms located at the rear of 6310 Quincy Avenue in the City of Cleveland. The rooms were directly behind a store fronting on Quincy Avenue and were reached by a driveway running from Quincy Avenue on the west side of the building to the rear of the-property.

The deceased, a man about 55 years of age, had sent a. mutual friend to find the defendant so he could talk with him about removing a juke box from the rooms. The defendant,, upon learning that the deceased wanted to talk with him, returned to 6310 Quincy Avenue and found the deceased in the-store. He, the deceased, came out on the sidewalk and the two men walked into the driveway and stood at or close to the corner of the building and engaged in a heated conversation about the removal of the juke box and other furniture, the-deceased displaying some anger toward the defendant during the conversation. While this conversation was going on they were standing close together.

The defendant testified in substance that he had seen the-deceased with a gun a week or two before and that on this-occasion the deceased, during the course of the conversation,, rushed or moved toward the defendant and put his hand in his pocket and that the defendant then hit him once on the side of the jaw with his fist and the deceased hit his head against the wall and fell to the street. The defendant then walked away and went to a picture show.

The deceased upon examination was found to have a blackened eye, a fractured nose, a fracture of the bones above the lip, a fractured sternum and a subarachnoid hemorrhage in the region of the temple. There is no controversy in the evidence but that the deceased came to his death as a proximate result of the assault and battery committed on and against his person by defendant.

The defendant is a man thirty-two years of age. He had a criminal record which the jury had a right to consider when determining his credibility. He had also engaged in a limited way in professional or semi-professional boxing.

At the conclusion of the trial, the arguments of counsel and the charge of the court the defendant requested the court to give further instructions on the subject of “self defense”, the request being as follows:

“We would like the court to charge on behalf of the defendant that if the defendant had a bona fide belief under all the circumstances that he was in imminent peril of bodily harm and he had a bona fide belief that the deceased had a gun even though it developed later that he did not have a gun in his possession, he is justified in exercising self-defense.”

In refusing this request, the court stated that he covered all legal principles contained in the request in the general charge.

The court as a part of the general charge instructed the jury on the subject of self-defense in part as follows:

“Every man may repel force by force, even to the extent of taking life, in defense of his person, his home or his property. A bare fear, however, of being killed, or of receiving bodily harm, is not sufficient to justify one in inflicting serious injury or death upon another. It must appear that the circumstances were sufficient to excite the fear of a reasonable person similarly situated, and the defendant acted in good faith, and in reviewing the situation and circumstances from his standpoint, really acted under the influence of such fear, and not in a spirit of malice or revenge. That is, the jury are to look at the. situation from the standpoint of the defendant himself, at the time he acted, as charged in the indictment, and determine, under the circumstances of stress and excitement surrounding him whether without fault or carelessness on his part he did honestly believe he was in imminent danger of losing his life, or of receiving great bodily harm, and, to prevent this, it was necessary for him to have acted as he did. The law of self-defense is a law of necessity, pure and simple. It is not an offensive law, but is a defensive law.” * * *

“A person who is assaulted and believes and has good cause to believe that great bodily harm is about to be done him and who acts in a moment of seeming impending peril need not gauge nicely the quantum or amount of force necessary to repel his assailant. The question in such case is whether under all the circumstances he had reason to believe and did believe that the means or force exercised was necessary to protect him from impending danger or great bodily harm. The degree of force and the nature or means which may be properly employed in self-defense must depend upon the circumstances of the case in hand.”

“* * * n0W; you will look to the act and conduct of the deceased before and at the time the defendant shot him, if you should find that he did shoot him. Were his acts and conduct such as would indicate to the defendant that the deceased was about to kill him, or do him great bodily harm? You should put yourselves in the position of the defendant as nearly as possible, with his knowledge or lack of knowledge of the deceased, surrounded by the conditions and circumstances that surrounded defendant, and seeing what he saw. You should also consider the acts and conduct of defendant and determine whether or not he in good faith believed and had reasonable grounds to believe that he was in imminent danger of death or great bodily harm, and that his only means of escape was by taking the life of his assailant.”

The errors complained of by the defendant, are:

“(1) Failure of the court to charge on the law of self-defense as requested by the defendant.

(2) Misconduct of the prosecuting attorney.

(3) Error of law occurring at the trial.

(4) That the verdict is not sustained by sufficient evidence and is contrary to law.”

The defendant’s request for the court to enlarge on its instructions on the subject of self-defense under the circumstances was not well taken. The elements of self-defense that were correctly stated in the request were completely covered in the court’s general charge.

It will also be noticed that the first paragraph of the court’s charge above quoted is erroneous and in a limited sense contradictory and not in conformity with the rule as set forth in State v. Sheets, 115 Oh St 308 or Nelson v. State, 42 Oh Ap 252, but when considered in the light of all of the facts of the case, while erroneous, it does not appear that such error prejudiced the rights of defendant.

During the course of the prosecutor’s argument to the jury he turned to the defendant and said:

“You ought to be ashamed of yourself, killing an old man.”

The defendant’s motion to exclude such remark was sustained by the court and the prosecutor retracted the statement. The record therefore fails to show any prejudicial error upon this claim.

Likewise, a fair examination of the other errors complained of fails to sustain the defendant’s contention that he was prejudiced thereby.

Sec. 13449-5 GC provides in part that no judgment of conviction shall be reversed for a misdirection of the jury or for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.

Under the undisputed facts in this case, the defendant struck the deceased a vicious blow causing him to fall to the pavement and then walked slowly away, under such circumstances that would warrant the jury in concluding that he was not in the least concerned about his own safety. We must therefore conclude that substantial justice has been done and the judgment of the trial court is affirmed.

Judgment affirmed. Order see journal. Exceptions noted.

McNAMEE, J, Concurs.

HURD, J, dissents on authority of Marts v. State, 26 Oh St 162, Napier v. State, 90 Oh St 276, State v. Sheets, 115 Oh St 308; Nelson v. State, 42 Oh Ap 252.