author: By HOLTSBERRY, J.

text:
    CLEAVER, Plaintiff, v. LONG, Extrx. et al., Defendant.
    Common Pleas Court, Licking County.
    No. 40316.
    Decided January 1955 Term.

      Kibler, Hervey & Kibler, Newark, on behalf of plaintiff.
    Todd, Wellman & Norris, Mt. Vernon, on behalf of defendant, Marion McCluskey.
    Ernest T. Johnson, Newark, on behalf of defendant, Mary Long.
   OPINION

By HOLTSBERRY, J.

An agreed statement of facts has been filed herein. It is agreed that the sole issue before this Court in this partition proceeding is one of law involving the validity and legal effect, if any, of a quit-claim deed dated July 14, 1939. The grantors and grantees are the same persons, Marion E. Cleaver and Florence Cleaver, husband and wife. The deed was recorded July 17, 1939 in volume 334 at page 132 of the Deed Records of Licking County, Ohio. At the time this deed was executed Marion E. Cleaver was seized of an undivided two-thirds interest in the property therein described. Florence Cleaver had an inchoate right of dower in said property.

' Following the habendum clause in said deed is a separate paragraph reading as follows:

“It is the intention of this conveyance that the within described real estate shall be the joint property of the Grantor and the Grantee, and owned by them as joint tenants, with the right of survivorship, and not as tenants in common, and upon the death of either of them, all of said real estate shall become the absolute property in fee simple of the survivor.”

A consideration and determination of the law of joint tenancy with right of survivorship is necessary to determine the effect of the Cleaver deed.

Washburn on real property, Volume 1, page 642, defines a joint tenancy as an estate held by two or more persons jointly so that during the lives of all they are equally entitled to the enjoyment of the land, or its equivalent in rent and profits; but on the death of one his share vests in the survivor or the survivors, until there be but one survivor, when the estate becomes one in severalty in him and descends to the heirs upon his death.

Under the common law it has been said that to create a joint tenancy the four unities of interest, time, title and possession must be present. The common law rule indicates that all tenants must have the same interest in the land in respect to the duration of the estate. One cannot be a tenant for life while another is a tenant in fee; that unity of title means that all must acquire their interest by the same title; that one cannot hold by one deed and another by another deed; there must be a vesting at the same time of the estate of joint tenancy, otherwise there would be no unity of time; also the estate must take effect in possession at the same time. One could not have an estate in remainder with the other having an estate in possession.

In 2 Blackstone Commentaries, 180-181-182, it is said that they must “have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same possession.” Williams in his work on real property at page 132 says that whenever the four unities, referred to above, were present in a joint estate, the estate was construed at common law to be a joint tenancy.

Many members of the legal profession in Ohio are of the opinion that joint tenancy is a thing to be frowned upon in this State, and rely upon the case of Sergeant v. Steinberger, 2 O. R. 305. The facts of this case show that a clause in a will was involved and that the will contained no words of survivorship, and there were no words which could be construed therein as indicating an intention to create an estate with the right of survivorship. In this particular case the court held that devisees took as tenants in common.

There are other Ohio cases in which the Supreme Court has recognized the doctrine of survivorship. See Lewis v. Baldwin, 11 Ohio Reports, 352.

It is true that the court did not in the Lewis Case find in clear and unequivocal language that an estate in joint tenancy had been created but it did find and hold that where words of survivorship were contained in a grant or devise and such clearly indicated an intention to create an estate with the right of survivorship, such intent would be upheld. Ohio courts have been inclined to follow this reasoning since said decision.

Joint ownership and the right of survivorship in respect to personal property has been uniformly upheld by the Ohio courts. The most frequent questions have been in connection with joint bank accounts. See Trust Company v. Scobie, 114 Oh St 242; Tax Commission v. Hutchison, 120 Oh St 361; Yost ,v. Schmitt, 128 Oh St 48; Union Trust Company v. Hutchison, 27 Oh Ap 284,

A joint and survivorship bank account contains all of the incidents characteristic of joint tenancy, and it appears that the survivor takes an estate which is in all respects similar to an estate in joint tenancy.

Although the Hutchison Case, 120 Oh St, is not a direct answer to the question involved herein since the issue involved in said case concerned personal property, there is a most interesting discussion in the opinion. It is noted that at page 550 the Supreme Court in reference to joint tenancy uses the words both real and personal in reference to property. At page 551 the Supreme Court had the following to say:

“Joint tenancy was the product of feudalism, and that character of tenure was favored, because it tended to combine or unite the feudal service, and to consolidate the tenure, and to strengthen the military service growing out of that tenure. With the passing of the feudal system, joint tenancy came to be regarded with as little favor in England as in this country. In England, as in America, courts of law and equity will construe expressions in a conveyance as importing a condition in favor of a tenancy in common, rather than a joint tenancy, and effect will be given accordingly. Manifestly no such latitude of interpretation can be permitted, where the terms of a gift or grant clearly give a right of survivorship. If a joint tenancy is expressed, without words of survivorship, under the unbroken line of authorities in Ohio, it will be considered as a tenancy in common. If. on the other hand, a donor or grantor, by the operative words of the gift or grant, clearly expresses an intention to give the right of survivorship, such words will not be disregarded. In Lewis v. Baldwin, supra, the grantor employed the expedient of a trustee. That expedient was probably necessary at that time (1842), but is certainly not necessary in Ohio since the statute of 1887, giving husband and wife right to contract with each other (§799 GC; 84 Ohio Laws, 132).”

Therefore, our Supreme Court has clothed the intent of a person with great dignity.

Among other cases indicating respect for intent of parties and holding that where the intention of parties is manifest the cardinal rule should be that the intention of the parties controls. See Pennsylvania Railroad v. Kearns, 71 Oh Ap 209; Metzger v. Joyce, 70 Oh Ap 101. Technical rules are not favored to defeat a grantor’s intent. Johnson v. Darling, 32 O. C. A., 113, 35 O. C. D„ 699.

A careful examination of many court decisions over the United States respecting joint tenancy reveals that many reasons pro and con are advanced by various courts. In 1928 the Supreme Court of Illinois, 331 Illinois, 357, went to great lengths to indicate the defects of a deed, but in the court’s final analysis inconsistently held the deed valid to create a tenancy in common but refused to recognize a joint tenancy. Considering the reasoning of this court and some other foreign courts, and keeping in mind the Ohio law with respect to intent of parties, I am of the opinion that some of these decisions really strengthen the argument for validity of the Cleaver deed.

We must be mindful of the fact that at one time a wife was restricted in her power of contract, and regarded as one and the same person as her husband. Methods were devised to get around this limitation—trusteeship was one of such.

Courts have often been reluctant to use the term joint tenancy as it was known at common law, but in effect have carried out the intention of survivorship by what was termed specific contract. Neneman v. Rickley, 110 Neb. 446; 197 Northwestern, 447. The Steuhm case (Nebraska) 297 N. W., 595 which has been cited to this Court is not in point. Careful reading of that case indicates that joint tenancy with survivorship could have been created with the intervention of a trustee. The logic in some of the cases denying survivor-ship is untenable. In a review of the case law of the United States the reviewer must be ever watchful of statutes which have been enacted in some states changing certain rules.

Some cases of interest regarding the holdings in some states can be found in Colson v. Baker, 42 Misc., 407, 87 N. Y. S., 238; Saxon v. Saxon, 46 Misc., 202, 93 N. Y. S., 191; Lawton v. Lawton, 48 R. I., 134, 136 A. 241; Amex v. Chandler, 265 Mass., 428, 164 N. E., 616; Dutron v. Buckley, 116 Or., 661, 242 P. 626; Coons v. Campbell, 138 Misc., 567, 240 N. Y. S., 772; and Boehringer v. Schmid, 254 N. Y., 355, 173 N. E. 220.

The logic of some of these last referred to cases is questioned by certain Nebraska courts, but to this Court seems more tenable in many respects than the reasoning of certain Nebraska courts.

The Nebraska Supreme Court once remarked “Where the words ‘joint tenancy’ alone are used as descriptive of the estate conveyed, we must look to the common law for the answer.” In the instant Cleaver deed these words alone were not used.

Some courts hold that an owner may not convey directly to himself and another to create a joint tenancy, but may do so with the intervention of a trustee. In effect this is merely saying that it is entirely proper and legal to do indirectly that which “the rules of law” prohibit doing directly.

in reaching just conclusions to carry out the intention of persons, where no statute or public policy is violated, courts today are disregarding fictions and technical niceties and distinctions of the common law.

The writer of this opinion cannot escape wondering why the courts have dwelt at great pains on the “four unities” of the old common law joint tenancy when the incident of survivor-ship is expressly provided for as the clear intention in a deed.

In the Jacobs case, 306 U. S., 363, the argument of different tenancies was urged upon the United States Supreme- Court, and said court commented: “The constitutionality of an excise of the taxing power of Congress is not to be determined by such shadowy and intricate distinctions of common law property concepts and ancient fictions.”

Although some courts over the United States have taken the technical view, I believe the weight of authority is that such view must yield to the intention of the parties. The right of survivorship is from the viewpoint of a layman the principal characteristic of a joint tenancy. Particularly where the layman specifically uses proper words of survivorship in his deed, and the logic of holding in such instances that a grantor had in mind the old common law “four unities,” which I doubt incidently if many legally trained persons can readily recite, amounts to pure absurdity.

For interesting cases discussing the question of necessity for circuitous conveyance through a dummy, see: Eisenhardt v. Lowell, 105 Colorado, 417; Johnson v. Landefeed, 138 Florida, 511.

The often referred to Pegg case, 183 Michigan 656, has been considered by many courts, and in 131 Md., 215, the court reasoned that the controlling feature therein was that the grant was of an undivided one-half interest which made the wife a tenant in common and could not be enlarged by subsequent clause of the deed.

The courts of New Mexico, 35 N. M„ 604, criticize the Pegg case and hold, as seems to follow New York authorities, that the four unities were observed, when the new estate was created by the deed, and specifically gave effect to intent.

The Bassett case, 77 Michigan, 338, 43 N. W., 984, has often been cited as authority that intent rules and technical rules must yield.

Can it be said that the Cleavers have violated any public' policy of this State? Certainly not. Because legal policy has been hesitant in the writing of such, deeds, and courts have hesitated in some instances to hold them valid, does not of itself create a contrary policy. Perhaps public policy would be otherwise.

Reference is also made to some interesting New York cases: 87 N. Y. S., 238; 93 N. Y. S., 191; 240 N. Y. S., 772; 216 N. Y., 83; 254 N. Y., 355.

To hold that the Cleaver deed did not provide for survivor-ship would be to thwart the intent of the parties.

In §3501.01, et seq., R. C., are the statutory provisions of this State pertaining to deeds.

The formality as prescribed in §5301.02 R. C., provides that the use of the terms of inheritance or succession are not necessary to create a fee simple estate and every grant shall convey the entire interest of grantor which he could lawfully grant unless it clearly appears by the deed or instrument that a less estate was intended. I find nothing in the law of Ohio, or the law of sound judgment, which would forbid the Cleaver conveyance from being effective, as the instrument clearly manifests the intent of survivorship.

It cannot be questioned that in Ohio a husband may make valid conveyance of real estate to his wife and the estate may be limited, by appropriate words, in any manner grantor desires, if such is not cpntrary to public policy or prohibitory legislation, express or implied. In the absence of contrary law or public policy the intent of grantor is paramount to purely formalistic objections based on arbitrary or shadowy distinctions.

Giving the greatest weight possible to the argument of necessity of unity of time, possession, interest and title, if such rule should in any event be applicable to the deed in question, the interests of both parties herein were fixed in this estate by the instrument at the same time, both had the same right of possession fixed by the instrument, and their title became the same.

Counsel concede that there is no Ohio decision controlling with respect to the instant deed in question.

In view of the reasons and authorities stated herein, this Court holds that said deed is effective as an instrument creating the relationship between the parties of joint tenants, with the right of survivorship, and not as tenants in common, and that upon the death of either of thém said real estate became the absolute property in fee simple of the survivor.

Entry may be prepared accordingly.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    DUFF, Plaintiff-Appellee, v. DUFF, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2277.
    Decided April 14, 1954.

      Baggott & Johnston, Horace W. Baggott, of Counsel, Dayton, for plaintiff-appellee.
    Pickrel, Schaeffer & Ebeling, Virgil Schaeffer, of Counsel, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Court of Domestic Relations for Montgomery County decreeing a divorce to the plaintiff, a division of property rights, and awarding the plaintiff alimony in the sum of $3,500.00.

The record discloses that a divorce and alimony were sought by the plaintiff on the grounds of gross neglect of duty, extreme cruelty and habitual drunkenness. The answer was a general denial and a cross-petition charging the plaintiff with extremé cruelty. It was further alleged in the cross-petition that “if she did have any complaint at all because of his drinking thereof prior to that date (April, 1952) she condoned it by continuing to live with him until November, 1952, and for a period of five months after he ceased to even drink a little wine or beer.” The reply denied generally all the material allegations contained in -the answer and cross-petition.

Five errors are assigned, but only one is discussed in the appellant’s brief; hence, we shall limit our examination to that assignment, which is as follows:

“The judgment is not sustained by, and is contrary to the weight of the evidence, which shows condonation by plaintiffappellee of conduct of defendant-appellant complained of, and also her own misconduct by way of recrimination.”

An examination of the record discloses that plaintiff ‘offered sufficient evidence to entitle her to a divorce decree upon the grounds of extreme cruelty and habitual drunkenness if credence is to be given to this testimony. The defendant-appellant urges, however, that he plead condonation and that the record is not controverted that the defendant quit drinking in May and that the plaintiff continued to live with him until the following November when the separation took place. The record supports the foregoing statement, but the plaintiff testified that during this period the defendant’s behavior toward her underwent little if any change, except that coldness, sullenness and indifference replaced brutality and drunkenness.

It should be noted that the divorce was granted for extreme cruelty and not for habitual drunkenness. The fact that he refrained from drinking for a period of some seven months is not proof that other acts of cruelty did not continue over that period of time. The court made no finding on the issue of condonation; hence it may be assumed that it found none to have existed. Condonation is defined in 14 O. Jur. 401, Section 21, as,

“The forgiveness by a husband or wife of a marital wrong committed by the other, the effect of which is to prevent such a wrong from being afterwards urged as a ground for divorce.”

It is an affirmative defense which must be pleaded and the burden is upon the defendant to establish it by a preponderance of the evidence. Weller v. Weller, 35 Abs 631; Huffine v. Huffine, 36 Oh St 56; Mears v. Mears, 30 O. O. 177. We find nothing in the record which shows that the plaintiff expressly forgave the defendant for his long years of misconduct. The fact that she continued to dwell in the same house with the defendant, after he quit drinking, does not of itself show a condonation. It perhaps shows that the wife hoped that some change for the better might occur as the result of her husband’s sobriety, but the law should not penalize a wife for her patience with her husband’s wrongdoing, either as an acquiescence or condonation. We are of the opinion that the court did not err in failing to find that the wrongful acts of the defendant had been condoned. The judgment finding the defendant guilty of extreme cruelty is therefore not against the manifest weight of the evidence.

The next question presented concerns the reasonableness of the award of $3,500.00 as alimony. The record discloses that after making disposition of the personal property belonging to the parties the only property remaining was the family homestead, which was owned jointly and appraised at $14,-000.00. The court awarded the plaintiff $3,500.00 alimony, the same to be a lien upon the defendant’s one-half interest in the real estate. The allowance of alimony awarded by the trial court must be reasonable, having due regard for the earning capacity of each of the parties, and the value of the real estate and personal estate of either at the time of the decree. The allowance may be by gross sum. Sec. 3105.18 R. C. In considering the amount to be allowed as alimony the trial court exercises “a very considerable amount of discretion.” Henry v. Henry, 157 Oh St 319. Since the record discloses that the defendant is fifty-two years of age, steadily employed and earning from four to five thousand dollars per year, with a liberal retirement insurance fund to his credit, we cannot say that the award is against the manifest weight of the evidence.

We find no error in the record and the judgment will be affirmed.

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


author: By CLIFFORD, J.

text:
    BOBLETT et, Plaintiffs, v. BARBEE, Defendant.
    Common Pleas Court, Franklin County.
    No. 188706.
    Decided May 7, 1954.

      Charles J. Chastang, Columbus, for plaintiffs.
    Theodore L. Horst, Columbus, for defendant.
   OPINION

By CLIFFORD, J.

This is an action brought to construe the last Will and Testament of George W. Gordon, a resident of Franklin County, Ohio, who died on December 28, 1896, leaving as his sole surviving heirs four children, namely Seymour Gordon, Sarah C. Barbee, Alice J. Lindig and Martha A. Hennis.

In the fourth item of his will, George W. Gordon devised an estate to his wife, Elizabeth Gordon, terminable at her remarriage or at her death, in certain real property situated in Pickaway County, Ohio, consisting of about 118% acres of land.

The will further provides that testator’s daughter. Martha A. Hennis, should succeed to a life estate in the west half of the subject property at the re-marriage or death of bis wife, Elizabeth Gordon. The will provides also that testator’s daughter, Alice J. Lindig, should succeed to a life estate in the east half of the property at the re-marriage or death of testator’s wife. The testator’s wife, Elizabeth Gordon, predeceased him, having died on November 13, 1887, and at testator’s death on December 28,1896, the subject property was divided, each of the two before-mentioned daughters succeeding to a life estate in the east and west portions respectively. The two other children of the testator were provided for by other provisions of the will.

The sixth item of the will of George W. Gordon provides among other things, that in the event his daughter, Alice J. Lindig, should die without leaving any children surviving or their legal representatives, then the real estate in which he devised a life estate to his daughter, Alice J. Lindig, should be divided equally among his children then living or their legal representatives. Alice J. Lindig, daughter of testator, died on December 13, 1952, leaving no issue, and at her death her brother, Seymour Gordon, and her sisters, Martha A. Hennis and Sarah C. Barbee, the children of testator, all had predeceased her.

The plaintiffs are: seven grandchildren and four great-grandchildren of the testator, George W. Gordon, the seven grandchildren claiming a one-ninth undivided interest, and the four great-grandchildren claiming a one-thirty-sixth of the subject real estate in which Alice J. Lindig was devised a life estate by her father.

The defendant, George W. Barbee, son of Sarah C Barbee, claims a one-half undivided interest in the east half of the real estate which is the subject of this litigation. The prayer of the petition is that the Court take jurisdiction of this cause under the Uniform Declaratory Judgment Act of Ohio and determine the construction to be placed upon the sixth item of the will. Plaintiffs and defendant agree that the sole issue raised by the pleadings is what interests do the parties hereto take in the real estate in question.

Item Six, the will provision herein to be construed, reads as follows:

“Item Sixth: I will and bequeath that if either of my said daughters, Sarah C. Barbee, Alice J. Lindig or Martha A. Hennis should die without leaving any child or children, or their legal representatives surviving them, then the part of my real estate so devised to such daughter shall be divided equally among the residue of my children then living or their legal representatives.”

In order to construe this clause in the will, our essential problem is to determine whether the beneficiaries shall take per stirpes or per capita. The determining factor in • construing a will and ascertaining whether the beneficiaries shall take per stirpes or per capita is the intention of the testator.

The wide variety of indicia to which courts have looked as manifestations of the testator’s intention should serve to convince anyone that there is authority available to sustain the validity of any contention that counsel might care to press. However, in the interest of justice and fairness and looking only to Ohio Law on the question before the Court, there can be only one conclusion in this case: In the absence of a clear manifestation of intention to the contrary, when all the beneficiaries of a testator in a direct line of descent are on an equal degree of relationship to the testator, whether children, grand-children or great-grandchildren, the property shall pass to such persons of equal degree of relationship to the testator in equal parts. Since all but one of the grandchildren of the testator are living, but one is dead, namely, Carl Hennis, the property shall be divided equally among the grandchildren who are living, and to the lineal descendants of Carl Hennis. so that each grandchild of the testator who is living will inherit the share to which he or she would have been entitled if all the grandchildren were living, and the lineal descendants of Carl Hennis, the deceased grandchild, inherit equal parts of that portion of the property to which the deceased grandchild would be entitled if living.

The only manifestation of intention in this will, if it can be called that, is testator’s apparent attempt to treat his family equally and fairly. This inference can reasonably be drawn from reading the will as a whole, since testator left out no natural object of his bounty and made equitable distribution, according to his lights, throughout the will. The case of Bruce, Ext., v. Warren et al, 22 Oh Ap 41, 153 N. E. 273, ably supports the view that an intention to treat all beneficiaries of the same class alike may be inferred from the other clauses of the will, in the absence of express provision to the contrary.

Defendant argues that the words “or their legal representatives surviving them” in the will makes the devise substitutional. We cannot agree.

As a general rule, where the testator has left undetermined the proportions in which his beneficiaries are to take, the Courts of Ohio, favoring equality, will direct the distribution to be per capita rather than per stirpes, but if the gift is substitutional, as where children are to take their parents’ shares, they take per stirpes. 41 O. Jur. 709.

This Court finds nothing to show that testator intended to make the devise substitutional. The Court adopts as the law of this case the following statement appearing at 41 O. Jur. 710, note 13:

“In cases of doubtful construction we may presume that testator intended to treat all members of a class with equality. Where it is proper to indulge the presumption of equality of participation in testator’s bounty, a construction should, if possible, be avoided which will cause the provision for one to fail to the consequent enlargement of the shares of others of the same class.”

The Court therefore grants judgment to the plaintiffs as prayed for with costs assessed against defendant, and entry may be so drawn.


author: By COLLIER, J: By THE COURT:

text:
    MELTON, Plaintiff-Appellant, v. BAYLOR et, Defendants-Appellees. MELTON, Plaintiff-Appellant, v. WASHINGTON et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23023, 23024.
    Decided March 17, 1954.

      J. B. Dworken, M. R. Dworken, Cleveland, for plaintiff-appellant.
    E. L. Watson, J. G. Shackleford, Cleveland, for defendantappellees.
    (STEVENS, PJ, HUNSICKER, J, of the 9th District: COLLIER, J, of the 4th District, sitting by designation in the 8th District.)
   OPINION

By COLLIER, J:

These two cases originated in the Municipal Court of the City of Cleveland, Cuyahoga County, Ohio, in which the plaintiff obtained default judgments. Inasmuch as the same questions of law are involved in each of the cases they are considered together and the parties will be referred to as the plaintiff and the defendants.

The plaintiff, Thess Melton, on the 29th day of May, 1951, obtained a judgment in each case by default and thereafter, in January, 1952, at a subsequent term of court, defendants filed petitions to vacate the said judgments. On October 23, 1952, the trial court vacated the judgment in each case and the defendants were given leave to file answers. At the hearing no evidence was submitted, but after a long colloquy between counsel and the court, the court announced the judgments would be vacated.

The conversation between court and counsel, consisting of 33 pages as shown by the bill of exceptions, may not be considered in any sense, as evidence; there is no agreed statement of facts and counsel do not agree on a single question involved in the case. The said colloquy reveals a long and complicated history of these cases before the rent Control Board and in the Municipal Court of Cleveland and in the Federal District Court, but a determination of the only important question presented to this court by the record renders it.unnecessary to consider the other issues.

As we view the record, the only question this court is called upon to decide is whether or not the trial court had the authority to vacate these judgments upon the statements of counsel, in the absence of any proof of the grounds alleged for setting aside the judgments and without evidence of a valid defense to the action.

Decided April 14, 1954.

The decisions of Ohio courts are unanimous that a court is without authority to modify its judgment after term at which it is rendered, except as provided in §11631 et • seq, GC (§3325-01 et seq, R. C.). See Robinson, In re, 8 Oh Ap 391, Washington v. Levinson, 66 Oh Ap 461, Grelle, Jr., v. Humbel et al, 84 Oh Ap 277, and Rabb, Admr. v. Board of County Commissioners of Cuyahoga County, et al, 36 Oh Ap 481.

The case of Grelle, Jr., v. Humbel et al, is almost identical in every respect with the instant case and we concur with the conclusion stated by Wiseman, P. J., in the opinion at page 278:

“A court is without power to vacate a judgment after term unless there is strict compliance with the controlling statutory provisions.”

This statute, §11631 GC (§2325.01. et seq, R. C.), provides that the court must determine from the evidence: (1) whether a ground for vacation exists, and (2) whether there is substantial evidence of a valid defense. These statutory requisites were not complied with and therefore the court was without authority to vacate the judgments.

The judgments are reversed and the cause remanded for further proceedings according to law. Exc. Order see journal.

STEVENS, PJ, HUNSICKER, J, concur.

MELTON, Plaintiff-Appellant, v. BAYLOR et, Defendants-Appellees. MELTON, Plaintiff-Appellant, v. WASHINGTON et, Defendants-Appellees.

Nos. 23023, 23024.

OPINION

By THE COURT:

These cases are before the court on the following two motions:

1. A motion by the defendant-appellees requesting a hearing which is designated as a “petition” for rehearing, and

2. A motion filed for the plaintiff-appellant to tax costs.

The motions will be considered in the order stated.

1. The present rules of the Court of Appeals in Ohio do not provide for an application for rehearing. See: 81 Oh Ap (Xli).

However, we have reconsidered the questions involved in these cases and have examined the briefs supporting and opposing the motion and find no reason for changing the original decision. Therefore the motion for rehearing is overruled.

2. The motion filed by the plaintiff-appellant to tax costs is sustained on the authority of §2505.41 R. C. (§12223-43 GC).

STEVENS, PJ, HUNSICKER, J, COLLIER, J, concur.


text:
    MILLER, Plaintiff-Appellee, v. GARRETT et, Defendants-Appellants.
    Ohio Appeals, Second District, Madison County.
    No. 188.
    Decided May 22, 1954.
    Robert E. Wright, Mt. Sterling, for plaintiff-appellee.
    John M. Scott, Goldie K. Mayer, Columbus, for defendants-appellants.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss tbe appeal on questions of law and fact for failure of appellant, William A. Garrett, to file a proper bond. The notice of appeal was given on March 24, 1954. On May 1, there was filed in this Court an application of William A. Garrett, appellant

“to sign the appeal bond heretofore given on the 21st day of March, 1954.”

The appeal bond, as tendered by appellants, was not signed by either appellant but by two sureties only.

Certain sections of the Revised Code are pertinent. Sec. 2505.6 R. C.:

“Except as provided in §2505.12 R. C., no appeal shall be effective as an appeal upon questions of law and fact until the order, judgment, or decree appealed from is superseded by a bond in the amount and with the conditions provided in §§2505.09 and 2505.14 R. C., and unless such bond is filed at the time the notice of appeal is required to be filed.”

Thus it is the intendment of this section that the bond contemplated shall be filed as of the date of the notice of appeal. Whether or not the filing of such bond could be made within the time within which the appeal could be perfected query? By the statute and by adjudication the filing of the appeal bond is a prerequisite to the perfection of an appeal on questions of law and fact. Sec. 2505.05 R. C. Damar Co. v. City, 140 Oh St 432; 45 N. E. 2d 209.

The appeal bond is the same in form as the supersedeas bond. Sec. 2505.09 R. C. This latter provides in substance:

No appeal shall operate as a stay of execution except as hereinafter provided until a supersedeas bond' is executed by the appellant to the adverse party with sufficient surety * * * conditioned as hereinafter provided in §2505.14 R. C.

The emphasized part of the §2505.09 R. C. is convincing that it is essential to the bond that it be executed on the part of the appellant as well as by the sureties. The bond under consideration does not conform to the requirements. We find no provision in the statute which authorizes this Court to permit a new bond to be given or an insufficient bond to be amended and a new one substituted after the time within which the appeal on questions of law and fact must be perfected.

The case cited by counsel for appellee, State v. Crippen, 1 Oh St 399, supports, in part at, least, her contention that the bond as filed is invalid.

The motion to dismiss the appeal on questions of law and fact will be sustained and the appeal may proceed as upon questions of law, as provided by Supplement to Rule 1 of Rules of Practice .of this Court. Appellants will be given 30 days after the filing of the Entry journalizing this opinion within which to file assignment of errors, brief and bill of exceptions; appellee 15 days for answer brief and appellants 5 days thereafter for reply brief.

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


author: By HURD, PJ. By KOVACHY, J.

text:
    KISH, Plaintiff-Appellee, v. CLEVELAND (City) (Transit System), Defendant Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22669.
    Decided March 2, 1953.
    Coleman Kiss, Albert Kiss, Cleveland, for plaintiff-appellee.
    Robt. Mooney, E. Sheldon Wirtz, Cleveland, for defendant-appellant.
   OPINION

By HURD, PJ.

In this action for personal injuries growing Out of a collision between an automobile operated by the plaintiff, and a street car operated by defendant’s motorman, which occurred at the right angle intersection of East Ninth Street and Carnegie Avenue in the City of Cleveland, a verdict was returned in favor of the plaintiff upon which judgment was rendered.

The record shows that the trial court refused the request of the defendant made at the conclusion of the general charge to “charge the jury on the element of contributory negligence and to define the> term and explain its- legal significance” although the court had granted a special request of the defendant to charge on the subject of contributory negligence before argument as follows:

“Charge No. 3. Members of the Jury, I charge you as a matter of law:
“If you find from the evidence that Benjamin Kish was guilty of negligence in the slightest degree directly contributing to the collision, then he cannot recover, and your verdict must be for the defendant, the City of Cleveland.”

It will be observed that this special charge does not define the term “contributory negligence.”

In the general charge, the court omitted entirely any reference to contributory negligencec and refused to charge or define the term.

Upon examination of the entire record, we are of the opinion that an issue of fact was presented in the evidence as to whether or not the plaintiff was guilty of contributory negligence. The court’s refusal to charge on this subject and to define the term constitutes prejudicial error. We reach this conclusion on the authority of:

Welsh, minor, v. Canton City Lines, 142 Oh St 166; Beers v. Zettlemeyer, 155 Oh St 520; Gross v. Ake, 154 Oh St 84, and Pesta v. Ruf, 38 Abs 67.

We find no other errors in the record. For the reasons stated the judgment is reversed and the cause remanded for further proceedings according to law. Exceptions noted. Order see journal.

SKEEL, J, concurs.

KOVACHY, J, dissents. (See dissenting opinion.)

DISSENTING OPINION

By KOVACHY, J.

I do not concur. The evidence in this case is clear cut but contradictory.

The street car proceeding south on East 9th Street, entered the intersection of Carnegie Avenue, either on the green light or the top red, or stop, light. The jury by its verdict must have found the latter. The plaintiff, therefore having the green light in his favor, and “being entitled to rely upon the observance of the signal by all persons against whom the signal is operating” (Henderson v. Cleveland Railway Co., 123 Oh St 468), had the right, under the law, to start his automobile and proceed easterly on Carnegie Avenue. The street car crashed the light, and without abating its speed (Record, page 172), collided with plaintiff’s automobile, all in the matter of a few seconds.

1 am of the opinion that such a factual situation does not require the giving of a charge on contributory negligence to a jury.

See also: Cleveland Railway Co. v. Goldman, a minor, 122 Oh St 73, paragraph 1 of the syllabus.

It appears to me that substantial justice has been done to the defendant appellant, in view of the facts as shown by the record and in the light of the law applicable thereto.


author: By HORNBECK, J.

text:
    GORMAN, d. b. a. KITTY KAT KLUB, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4779.
    Decided February 16, 1953.

      Paul F. Ward, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., Ralph N. Mahaffey, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court affirming the action of the Board of Liquor Control suspending for thirty days appellant’s Class D-5 permit.

The charge against the appellant was that on May 26, 1951, at or about 2:58 A. M. she allowed beer and whiskey to be consumed on her permit premises in violation of the provisions, of the Liquor Control Act and the Regulations of the Board of Liquor Control.

The specific Regulation involved is 49 of the Board of Liquor Control which provides in so far as applicable:

“No beer or intoxicating liquor shall be sold or be permitted to be consumed on weekdays on tire premises of a D-3a or D-5 permit holder between the hours of 2:30 A. M. and 5:30 A. M.”

Three errors are assigned. First, that the order of the Board of Liquor Control is against the manifest weight of the evidence. Second, that Regulation 49 of the Board of Liquor Control is unreasonable, and contrary to law; and the third, that the judgment is contrary to law.

There is direct conflict in the testimony on behalf of appellees and appellant but the Board had discretionary right to determine the credibility of the witnesses. It is asserted that there is conflict and variation between the two witnesses who testified in support of the charges, in that, Investigator Kopan said that he did not see any patrons drinking after he entered the permit premises, but Investigator Cmich testified, that he observed five men at the bar drinking and two couples at a table near the bar consuming drinks after he had entered the premises. This is not conflicting testimony. Investigator Kopan made the observation to which he testified from the outside of the premises while looking through a window. His testimony and that of Investigator Cmich was identical upon the material question. The fact that Investigator Kopan did not see drinking after he entered the premises did not contradict the testimony of Investigator Cmich that patrons were indulging in drinking after the entrance into the permit premises.

The second assignment of error is that Regulation 49 is so unreasonable that it should not be enforced and that the promulgation of the Regulation is beyond the power or authority of the Board.

We are satisfied that under the provisions of §6064-3 GC, the rule is well within the authority therein delegated.

But it is insisted that to require that there be no sale of beer or intoxicating liquors in a night club between the hours of 2:30 A. M. and 5:30 A. M. coupled with the requirement that such liquor shall not be consumed between those hours is unreasonabie because of the provisions of §6064-21 GC, which prohibits a permittee of a night club to permit a purchaser to remove intoxicating liquor from the premises. That the enforcement of the rule in conjunction with the law would permit a sale of liquor up to 2:30 A. M. in which event the purchaser would have no time whatever in which to consume the drink.

It should be noted, that the case which is thus presented is not the case which was before the Board nor that is before us on this appeal. Whether or not such a situation as argued would make the law unreasonable and arbitrary, we need not discuss. The question is: is the rule in the light of the facts here developed so unreasonable and arbitrary as that it should be declared to be illegal? We think not. The consumption under consideration here occurred by nine patrons at least 28 minutes after the time when the last sale could have been regularly made. Certainly it could not be urged that any patron who purchased his drink before 2:30 A. M. should not be required to consume it within 28 minutes after it is purchased.

Wide latitude must be accorded to the Board to make regulations which will effectuate the broad purpose and intent of the Liquor Control Act. If there may be no restriction placed upon the time when liquor lawfully sold may be consumed a manifest purpose to control trafficking in liquors would be defeated.

We are' satisfied that Rule 49, as, involved on the charge here under consideration is valid and enforceable.

We find no assignment of errors well made.

The judgment must be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By THE COURT. By WISEMAN, PJ.

text:
    SCIACCA, Plaintiff-Appellee, v. SCIACCA, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4778.
    Decided July 25, 1952.
    Horace S. Kerr, Columbus, for plaintiff-appellee.
    S. Myron Gurevitz, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellant seeking an order commanding the plaintiff-appellee to pay alimony and expense money to her during the pendency of the appeal. We are referred to §8003-15 GC which the appellant urges authorizes this Court to make such allowances pendente lite. This section provides:

“On notice to the opposite party of the time and place of the application, the court, or a judge thereof, in vacation, may grant alimony to either of the parties for his sustenance and expenses during the suit, and allowances for the support of minor children of the marriage or by adoption during the pendency of the action for divorce, or alimony alone. When an appeal is taken by either party to the court of appeals, that court, or a judge thereof in vacation, may grant like alimony and support during the pendency of the appeal, upon like notice.”

The appellee is contending that the applicable part of the above is identical with former §11994 GC, which has peen declared inapplicable to law appeals. Citing Riebel v. Riebel, 15 Abs 254 and Davis v. Davis, 41 Abs 189. These cases were grounded upon the fact that §11994 GC preceded the enactment and effective date of the new procedural act and held that the word “appeal” as there employed contemplated only appeals on questions of law and fact. But §8003-15 GC only became effective August 28, 1951, so the basis for the prior decisions has been removed. The meaning of the word “appeal” as now used must be in accordance with the definition as found in §12223-1 GC and which includes law appeals as well as those on law and fact.

Decided February 9, 1953.

We therefore hold that this Court is now authorized to grant alimony to either of the parties for sustenance and expense during the litigation.

Next, considering the motion on its merits, the Court is of the opinion the same is well taken and orders that the appellee pay the appellant the sum of $100.00 as and for expense money pending the appeal.

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

SCIACCA, Plaintiff-Appellee, v. SCIACCA, Defendant-Appellant.

No. 4778.

OPINION

By WISEMAN, PJ.

This is a law appeal from the Court of Common Pleas, Division of Domestic Relations, Franklin County, in which the defendant-appellant was denied a decree of divorce and alimony on her cross-petition, the petition of the plaintiff for a decree of divorce having been dismissed at the end of the plaintiff’s case.

The defendant in her cross-petition charged the plaintiff with gross neglect of duty and extreme cruelty. The trial court in the judgment entry found that there was insufficient corroborating evidence to support the allegations in the cross-petition. With this conclusion we disagree. The testimony of the defendant supporting both charges was corroborated not only by other witnesses but, also, by the testimony of the plaintiff on cross-examination. There is no charge made that there was collusion and, therefore, the testimony of the plaintiff in which he admitted the truth of many of the charges made by the defendant should be given great weight.

The undisputed evidence is to the effect that plaintiff failed to provide for the family, struck the defendant many times, and several times in the presence of other persons, constantly falsely accused the defendant of infidelity and was extremely jealous of the defendant which gave rise to repeated charges of infidelity and family discord. On the basis of the evidence the defendant is entitled to a decree of divorce as a matter of law.

In the final judgment the trial court, having denied the defendant a decree of divorce, also denied the defendant an award of alimony. This Court may not determine this question on appeal.

The cause will be remanded to the trial court which is directed to enter a decree of divorce for the defendant on her cross-petition.

The judgment is reversed and the. cause remanded for further proceedings according to law with respect to alimony and other related matters.

Judgment accordingly.

MILLER and HORNBECK, JJ, concur.


author: By BARTLETT, J.

text:
    STICKLEY et, d. b. a. STICK’S PLACE, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Common Pleas Court, Franklin County.
    No. 189232.
    Decided November 19, 1954.
    Isadore Topper, Columbus, James W. Williamson, Wauseon, Robert N. Gorman, Cincinnati, Hugh Jenkins, Leonard Stern, Columbus, for appellants.
    C. William O’Neill, Atty. Genl., Kiehner Johnson, Robert Krupansky, Asst. Attys. Genl., Columbus, for appellees.
   OPINION

By BARTLETT, J.

BOARD OF LIQUOR CONTROL ORDER (SUSPENDING FOR 15 DAYS APPELLANT’S CLASS C-2 and D-l PERMIT), REVERSED.

This is an appeal from an order of the Board of Liquor Control, suspending the Class C-2 and D-l permits of appellants for 15 days.

The suspension was for the alleged violation of the Liquor Control Act and Regulation 53 of the Board of Liquor Control, based on two counts: 1. exhibiting a gambling device on the permit premises, to-wit: a Bally Beach Bingo Type Pinball Machine, 2. allowing gambling on the permit premises, to-wit: playing of said pinball machine, which resulted in the delivery of free games or plays.

The facts were on July 16, 1953, an agent of the Liquor Control Department accompanied by one of its investigators, entered Stick’s Place in Wauseon, the premises of the appellants, the holders of the C-2 and D-l permits in question. The agent found a pinball machine in the tavern. He inserted a nickel in the machine, obtained five balls which he played without any result. He then inserted a second nickel, obtained five more balls and after playing it this time, the machine registered that he was entitled to four free games. Without inserting any other nickels, he played one of the free games. He did not at any time receive any cash, tokens, merchandise, any monetary or other compensation or award from anyone. After playing the game, the agent identified himself to one of the proprietors, and later a citation was issued against the permit holders for violation of the Liquor Control Act and Regulation 53 of said Board, and the machine was seized by the Department. This was all the factual evidence presented' at the hearing before the Board, all of which is not denied by appellants.

There was some testimony by a licensed electrical and mechanical engineer and professor of Electrical Engineering at Ohio State University, who was permitted to toy with the machine, who related the results of his experiments with the machine.

The sole question is whether a pinball machine that permits “free plays” if a high score is achieved is a gambling device, or merely an amusement device.

The testimony of the engineer and professor as an alleged expert offered little of interest or value, if any; and does not indicate that he was as much of an expert as even the agent who, no doubt, knew more about such machines. This Court is of the opinion that the testimony of the engineer-professor did not qualify him as an expert. Tully v. Mahoning Express Co., 161 Oh St 457.

Sec. 2915.16 R. C., defines a gambling device, and being of a penal nature, the rule of strict construction applies. No criminal case has been called to the Court’s attention wherein this statute has been construed relative to the subject matter, of whether the mere privilege of free plays obtained for high scores makes the machine a gambling device where no tangible article, such as a token, is delivered. The criminal court is the proper forum for such a determination.

It is argued by counsel for the Board that the mere privilege of free play, resulting from the player’s manipulation of the machine, affords additional amusement which is a thing of value; that if the privilege of the free play is exercised by merely putting the machine in further motion, this is a game of chance played for the gain of a thing of value, which constitutes gambling rather than pure amusement; and that, consequently, the machine is a gambling device rather than an amusement device.

It is a novel theory at least, that if this machine affords moré amusement, it ceases to be an amusement device, and thereby becomes a gambling device.

This argument is based upon a refinement of reasoning that calls for fine spun distinctions without any real differences, which cannot be sustained under the canons of strict construction of penal statutes and regulations.

The Court’s attention has been called to the decision in the case of Ferguson, et al. v. City of Columbus, et al., No. 187,169, on the dockets of this Court, wherein Harter, J„ upheld the constitutionality of the Columbus City Ordinance, as a valid exercise of police power, in prohibiting expressly the possession or exhibition of so-called pin ball game devices, “which tends to encourage gambling or which registers odds or a score, or which is adapted or may readily be converted into such machine, device,” etc.

The enactment of such an ordinance would indicate that the City Council realized the necessity for such supplemental legislation, due to the inadequacy of the Criminal Code of the state governing such devices, either because the statutes of the state do not prohibit such devices, or the difficulty the city law enforcement agencies found in securing convictions therefor under the state laws.

“Generally, the power of municipalities to enact and enforce police regulations within their boundaries is only limited by general laws in conflict therewith.” Myers v. City of Cincinnati, 128 Oh St 235, 238;

“A charter city may validly legislate by ordinance with respect to lotteries and schemes of chance * * * provided such ordinances are not in conflict with general laws or the Constitution.” City of Columbus v. Barr, 160 Oh St 209.

The City Council of a municipality is endowed with legislative power, but an Administrative Board is a mere creature of the General Assembly and does not possess- legislative authority to supplement and supply omissions in laws enacted by its creator, the General Assembly. Like the courts, such agencies lack authority to supply, extend or improve the provisions of a statute to meet a situation not provided for. State ex rel. v. Evatt, 144 Oh St 65.

It is claimed that the pinball machine in question violates Regulation 53, Section II of said Board of Liquor Control, which prohibits the possession or use on the permit premises of any device which may or can be used for gaming or wagering, since this machine affords the privilege of free play or plays, based on the players’ score, even though no token or other tangible article is delivered to the player.

Such Regulation 53 is based upon the power of the Board to adopt regulations, “with a view to insuring * * * the maintenance of public decency, sobriety and good order in any place licensed under such permits,” issued pursuant to the Liquor Control Act. Sec. 4301.03 (C) R. C.

It requires a rather vivid stretch of one’s imagination to accept a belief that the mere privilege of a free play, or even the exercise thereof, afforded by the pinball machine in question, would impair the maintenance of public decency in a place of business operated under a permit issued by the Department of Liquor Control, let alone its possible effect on the maintenance of sobriety and good order in such place of business. If it reasonably may be said that the privilege of such free play, or the exercise thereof, afforded by the machine in question, constitutes an impairment of public decency, or threatens the maintenance of public decency, then the inspectors and agents of the Department should refrain from playing such devices. There is no justification or need for one clothed with authority to enforce the police power of the sovereign state, to become a criminal himself in his zeal to enforce the law on others. Such a course of conduct causes disrespect for so-called law enforcement.

The Court’s attention has been directed to the decision of Clifford, J., in the case of Cavalier v. Board of Liquor Control, No. 188,177, Dockets of this court (69 Abs 4), wherein it was held, the mere fact that free plays were given as the result of the achievement of the player did not make the machine a gambling device, or the exercise of the right, gambling. Also the earlier decision to the same effect by Bell, J„ in the case of Westerhaus Company, Inc., v. City of Cincinnati, etc., et al., No. A-129,385, Dockets of Hamilton County (68 Abs 293), Common Pleas Court.

“The doctrine of stare decisis, however, comes into, operation, and makes a court disinclined to overrule a former decision. It has been said to be a general rule and practice for a judge of the Common Pleas Court to follow the former decisions of that court that are unreversed, .even though made in a different case.” 11 O. Jur. Courts, Sec. 128, p. 774; Heintz v. Coldwell, 18 O. D. N. p. 725, 6 O. L. Rep. 45; Merrick, et al. v. Merrick, et al., 57 Abs 49.

“It is very evident that the simplest justice to our predecessors as well as the public, should prevent us from interfering with decisions deliberately made, merely because a difference of opinion might exist between them and us upon a doubtful and difficult question of construction.” Ranney, J., delivering the opinion of the Court, Kearney v. Buttles, 1 Oh St 362, 366; 11 O. Jur. Courts, Sec. 138, p. 786.

This branch of the Court might well have differed with the opinion of Clifford, J., at the time, in the Cavalier case, supra; but the Appellee Board in the instant case, acquiesced in that opinion, and did not see fit to appeal therefrom, and cannot in good grace request this branch of the court to overrule the opinion of a colleague in a recent case, involving a very similar set of facts.

The Court of Appeals of Butler County, in the case of Bradford v. Calhoun, 72 Oh Ap 333, held that “a- pinball machine is not a gambling device per se.” In other words, the question of whether it is a gambling device depends not on its construction but on how it is used.

In the final analysis, the question of whether the right of free play or the exercise thereof, makes the machine in question a gambling device rather than a pure amusement device, depends on whether the additional amusement afforded by a high score must be considerd “a thing of value” within the meaning of §2915.16 R. C. In the light of the decisions of our courts, this “twilight zone” between amusement devices and gambling devices, must necessarily rest on an express declaration by the General Assembly of Ohio, just as the Columbus City Council acted to clear its doubt thereon; but the Board of Liquor Control not having been endowed with legislative authority, like the courts, themselves, should not make their function of rule-making a cloak for supplying something omitted by the General Assembly. Such Board must not undertake to supply any omission or to improve the provisions of any statute to meet a situation not provided for by law.

The Court, upon consideration of the entire record, fails to find that the order of the Board is supported by reliable, probative and substantial evidence, and in accordance with law; and, therefore, reverses said order and sustains said appeal therefrom. «


author: By BADER, J.

text:
    VAUGHN v. MELZER, d. b. a. MELZER’S GARAGE.
    Common Pleas Court, Hamilton County.
    No. A-121400.
    Decided October 26, 1951.
    Thorndyke & Thorndyke, Cincinnati, for plaintiff.
    Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for defendant.
   OPINION

By BADER, J.

This case comes before this court to be heard on the demurrer of the plaintiff to defendant’s supplemental answer. In the supplemental answer defendant sets up the defense of estoppel and res adjudicata, and alleges that in cause No. 472703 of the Municipal Court of Cincinnati the defendant in this cause of action was the plaintiff and the plaintiff in this cause of action was the defendant and that a jury in that case returned a verdict of $653.13 for damages sustained to a wrecker automobile of this defendant. The judgment of the Municipal Court was affirmed by the Common Pleas Court and that judgment is final.

The defendant further alleges that the “same occurrences” as are alleged in the petition in this case at bar were alleged in the Municipal Court case.

By demurring to the supplemental answer of the defendant, plaintiff admits the former litigation in the Municipal Court but denies that it is res adjudicata or that he is estopped from proceeding in this case. The plaintiff in this case seeks to recover $30,000.00 for personal injuries which arise out of the same set of facts and circumstances which were considered by the Municipal Court jury and which resulted in a verdict for the defendant in this case, who was the plaintiff in the Municipal Court case, in the amount of $653.13.

The plaintiff in this case claims that he has a right to proceed in this action by reason of the authority set forth in §1558-10 GC and that the judgment of the Municipal Court is not a defense to the present action.

Sec. 1558-10 GC, reads as follows:

“(Amount of judgment; remittitur.) When the amount due to either party exceeds the sum for which the municipal court is authorized to enter judgment, such party may remit the excess, and judgment be entered for the residue. A defendant need not remit such excess, and may withhold setting it out. A recovery for the amount set off and allowed, or any part of it, shall not be a bar to his subsequent action for the amount withheld.”

The plaintiff in this case had the right as defendant in the Municipal Court case to elect not to assert his claim in that court “* * * and may optionally file a separate action in the tribunal having adequate jurisdiction * * *” (31 O. O., page 154, syl. 1). The defendant, in the above cited case, recovered a judgment against the plaintiff in the Municipal Court on an account in the sum of $215.64, which amount was later paid into court in satisfaction of the judgment. The defendant against whom the judgment was rendered brought an action in an entirely different matter than that of breach of contract and asked for $1700.00 as damages, which amount was in excess of the jurisdiction of the Municipal Court of Cincinnati. This he had a right to do under the facts of the case. He elected not to assert his claim in the Municipal Court, which right was given to him by reason of §1558-10 GC. (See above.)

If the defendant in the above cited case had elected to set up a counterclaim or setoff for $1700.00 he could have done so and if he had been successful in his setoff or counterclaim he could have received a judgment for the limit of the jurisdiction of the Municipal Court which would not have been a bar to a subsequent action. (Oglesby Granite Quarries v. The Schott Monument Co., 4 O. O., page 289, syl. 3 and 4.)

In the case at bar the facts presented are the same as those presented in the Municipal Court, and it is clear that the rights of the parties based on the facts presented have been determined and established.

There can be no question that the Municipal Court had jurisdiction when Edwin G. Melzer sued Lowell Vaughn, plaintiff and defendant respectively, in the Municipal Court case.

There is nothing in this case to indicate that the plaintiff, Lowell Vaughn, did not have a fair trial in the Municipal Court. It is apparent, however, he did prosecute his appeal to the Common Pleas Court and that that judgment is final in the case in the Municipal Court.

In the case of Hixson v. Ogg, 53 Oh St, page 361, syl. 1, the court held:

“Where issue has been joined on a material fact in an action, and the issue judicially determined and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is reversed or set aside. And the fact thus established cannot be retried by the same parties in any subsequent action, whether the second action is upon the same or a different subject-matter from the first. In this respect it is immaterial that one of the actions may have been ex contractu and the other ex delicito.”

The court, on page 368, said:

“And if, in such case, the common and material fact has been judicially ascertained in the action first tried, it should be regarded as established in respect of the other action, so long as the judgment remains in force.”

In the case of Cromwell v. County of Sac, 94 U. S., page 351, last sentence of the 1st syl. it was held:

“* * * But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.”

Public policy demands that litigations shall not be interminable (53 Oh St, 369) and in the case at bar the facts presented have been determined by a jury in a previous case between the same parties and it would be a deprivation of defendant’s rights if he were not permitted to set up as a defense the doctrine of estoppel or res adjudicata.

If the plaintiff in this case had been successful in the Municipal Court case in which he was the defendant he could have proceeded as he has now done in the case at bar and the defenses set up in the supplemental answer would not have been available to the defendant. Accordingly the court is of the opinion that the demurrer of the plaintiff to defendant’s supplemental answer is not well taken and the same should be overruled.


author: By EARHART, J.

text:
    CORN, Plaintiff, v. CHILDERS et, Defendants.
    Common Pleas Court, Lawrence County.
    No. 33658.
    Decided March 1, 1954.
    E. L. Riley, Ironton, for plaintiff.
    Richard Eisnaugle, Portsmouth, for defendants.
   OPINION

By EARHART, J.

This case is before the court on- application of plaintiff, D. E. Corn, for a temporary injunction restraining the defendants, Helen Childers, Láveme Deering, Jean Gannon, Irene Morgan, Lorraine Christy, Betty McCloud, Amanda Price, Louise Smith, Nell Lyons, Mary Coe and Marie Coe, and Hotel & Restaurant Employees & Bartenders Union, Local No. 865 from picketing his place of business known as the Colonial Inn and located in Ironton, Ohio.

The plaintiff in his petition states that he employs thirty-nine persons including cooks, waitresses, bartenders, janitors, maintenance men, office clerk and cashiers, and says that the defendants since Wednesday, February 17, 1954, have been engaged in unlawful picketing of the plaintiff’s place of business, that they trespass on the plaintiff’s property, blocking the driveways from the public street across the sidewalks to the plaintiff’s parking lot, that they stop automobiles entering the premises, that they carry signs and banners with false and libelous slogans printed thereon, designed to injure his business.

Plaintiff says that he has received no communication and has no knowledge as to whether a substantial number, or any of his employees, are members of any duly organized and qualified union, and at no time has there been presented to him any notice from the Labor Board or any other board' designating authorized bargaining representatives, and, insofar as he knows, there is no union existing among the employees of his business.

Plaintiff says that the defendant, 'the Hotel and Restaurant Employees & Bartenders Union, Local No. 865, through one, William O. Royalty, International Representative, has caused the other defendants named herein to picket the place of business and interfere with the plaintiff’s business for the purpose of forcing the plaintiff to coerce his employees to become members of said union, and to name local 865 as bargaining agent on behalf of plaintiff’s employees. Plaintiff says that the conduct of the defendants above described constitutes a nuisance and is of a continuous nature, and is intended to injure the plaintiff’s business, and says tha„t he has no plain, adequate and complete remedy at law, and that unless the defendants are restrained from continuing their unlawful acts, plaintiff will suffer irreparable damage.

Plaintiff asks for a temporary restraining order against the picketing and unlawful conduct, and upon a final hearing, that the injunction be made permanent, ordering the defendants to discontinue their interference with the plaintiff’s business.

An answer was filed on behalf of the Hotel and Restaurant Employees and Bartenders Union, Local No. 865, in which they admit that the plaintiff, D. E. Corn is the owner and operator of a business described as the Colonial Inn, and in effect, deny all the other allegations of the plaintiff’s petition, and ask that the petition of the plaintiff be dismissed.

The plaintiff testified that he is the owner of the Colonial Inn where he employs a staff of thirty-eight or thirty-nine persons which include waitresses, bartenders, cooks and other employees, and that of these thirty-eight or thirty-nine, twenty-two are full time employees, the balance being employed only on a part time basis. The plaintiff testified that prior to January 28, 1954, none of his employees belonged to a union, and that he was never advised by any of the employees that they were members of any union, or had any grievances concerning their hours of employment, working conditions, or any other dispute over the terms of their employment. He testified that on February 16, he found it necessary to reduce his staff of waitresses by four and asked for volunteers. Upon receiving no volunteers, Corn thereupon laid off defendants Louise Smith, Helen Childers, Láveme Deering and Amanda Price, all of whom were members of Local No. 865. The following day, February 17th, according to Corn’s testimony, eleven of the defendants, all members of the union, commenced picketing his place of business.

The plaintiff testified that he sent a notice for these employees to report for work on the following Saturday night which they refused to do and were therefore fired. The remaining seven defendants were also fired when they failed to report for work.

Defendant, Amanda Price, testified that she had reported to Com that she and some of the other waitresses had grievances, that the salary of $19.00 per week and tips was not sufficient, that they were paying menu prices for their meals, and that they could not pay for their uniforms out of the salary which they received. This defendant claimed that she conferred with Corn for over an hour in his office and received no assurance that these grievances would be adjusted. She claims that she also informed Corn that she had joined the union. Corn denies that any such conversations took place, and denied that he had any knowledge that the defendants had joined the union, or had any grievances until the picketing commenced.

The defendants introduced in evidence two letters received by Com from the union. The first under date of February 11, 1954, advising him that the union represented a group of employees and requesting a meeting for the purpose of negotiating a contract covering wages, hours and conditions of employment, said meeting to be not later than Wednesday, February 17th, 1954, and requested a reply as to a meeting date. This letter went unanswered and on February 17, a second letter was mailed to plaintiff by the union, stating that since they had received no reply to their first letter, they were intending to take the necessary steps to inform the public that Corn refused to confer with them. These letters were introduced in evidence together with registered return receipts, indicating receipt by Corn of these letters. On February 17th, the defendants commenced their strike of the plaintiff’s place of business.

Corn also testified to the effect that the pickets had been disorderly, “unlady like,” and that they had prevented food delivers to his establishment, had blocked the driveways to prevent patrons from coming into the Colonial Inn, and had threatened prospective customers. These acts are denied by the defendants and the evidence is conflicting. At any rate, whether these acts were engaged in by the pickets or not, the court set down rules pertaining to future picketing at the place of business.

It is the contention of the plaintiff that the defendants have no right to picket his place of business because no labor dispute exists, that the union representative has not been recognized as the official bargaining agent by the National Labor Relations Board, that before calling the strike at plaintiff’s business, a vote was not taken amongst the employees, that only eleven out of thirty-eight have indicated that they desire to join the union, and that since less than 51% belong to the union, the strike is illegal.

The defendants contend that they do not come under the regulation of the National Labor Relations Board since the plaintiff’s place of business is not engaged in interstate commerce, that this being true, the courts of Ohio have permitted picketing in cases of this kind, that a labor dispute does exist, and that they have a right under the Constitution of the United States to notify the public that a labor dispute exists between it and the employer by carrying banners and picketing.

There are actually only two questions presented in this case; (1) Does a bona fide labor dispute exist between plaintiff and defendant employees? (2) If a labor dispute does exist, are the pickets engaged in illegal picketing?

It is fundamental that if a labor dispute actually exists, the defendants have the right to picket, so long as they do in a peaceful manner. If no labor dispute exists, then the picketing is unlawful, whether peaceful or otherwise, and will be enjoined.

For this reason then, it must first be determined whether or not a bona fide labor dispute exists.

The right of labor to strike was first recognized in this country by the state of Massachusetts in 1842. Since that time, the rights of labor to strike and picket have received varying and contradictory interpretations by the courts. In 1921 the United States Supreme Court in the case of American Steel Foundries v. Tri-City Council, 257 U. S., p. 184, fully recognized the right to strike as a basic and fundamental right of labor. The U. S. Supreme Court now takes the position that members of a union have the right to picket a place of business to make known the facts of a labor dispute because of the provision in the U. S. Constitution guaranteeing the right of freedom of speech, provided that the purpose of the strike is not to coprce other employees to join the union or for other illegal purposes, and provided the picketing is done in a peaceful manner. (See Building Service Employees International Union v. Gazzam, 339 U. S. 532, 42 O. O. 76; International Brotherhood of Teamsters Union, Local 309 v. Hanke, 339 U. S. 470, 42 O. O. 69. This being the basic doctrine governing the right of labor, we must presume therefore, that a strike is legal until shown to be otherwise. The Ohio courts seem to hold to the principle that there must be a labor dispute existing between the employer and employee before a strike and picketing is lawful.

Having reviewed these basic principles, we can now proceed to examine the facts in this case. It is the claim of the plaintiff that the defendant union has not been duly recognized as a bargaining agent of the National Labor Relations Board, that under the Labor Management Relations Act (commonly known as the Taft-Hartley Act) the defendant union has not carried out the conditions precedent before calling a strike. The union representative admitted in his testimony that the defendant union had not been recognized as a bargaining agent by the N. L. R. B., and that no conditions precedent under the Taft-Hartley Act had been carried out before calling the strike at the Colonial Inn. The union contends however that it is not subject to the Taft-Hartley Act because the employer in this case is not engaged in interstate commerce, and that where the employer is not engaged in interstate commerce, the Taft-Hartley Act has no application.

The plaintiff has the burden of showing that the Colonial Inn is engaged in interstate commerce. No evidence was presented to this effect, therefore the court finds that the Colonial Inn is not engaged in interstate commerce. This being true, the Labor Management Relations Act has no application to this case, and the rights of the parties depends upon the law of Ohio.

Having determined that the Labor Management Relations Act has no application to this case, we must therefore examine the Ohio cases on this question. The Ohio courts have recognized that both employer and employee have certain fundamental rights. The employer has a right to prevent strikers from trespassing on his property, he may enjoin picketing when it is accompanied by force, violence, coercion, threats, or physical interference with other employees, or with customers, tradesmen, or other persons who desire to come onto the employers premises, or who enter the premises at the request of the employer. If the purpose of the strike and resulting picketing is to coerce the employer to hire union members to the exclusion of others who do not desire union membership, such picketing, whether peaceful or otherwise is illegal. This is clearly the law of Ohio as set forth in the case of Crosby v. Rath, 136 Oh St 352, 16 O. O. 496. The United States Supreme Court has also followed this rule.

In this case there is no question of the coercion of other employees to join a union. There is no evidence in the record indicating that any employee was coerced to join the union. The only request made by the union to Corn was that he confer with them relative to a union contract, and the strike was called and picketing, commenced because of Corn’s refusal to confer with this representative. The plaintiff claims that the purpose of the strike was to force union membership upon his other employees, and if this were true, the strike would be illegal, for a person is just as free not to join a union as he is to join. The defendant waitresses claim that the purpose of the strike was to negotiate with Corn over matters of salary, working conditions, hours of labor, etc. Whether this was the purpose or not, there is certainly no evidence that any employee was coerced to join the union. It is therefore my opinion that the strike and resulting picketing at the Colonial Inn was not illegal in this respect.

I find no reported cases directly in point in this state except Bell v. Rogers, reported in 107 N. E. (2nd) p. 136, where the Common Pleas Court of Summit county held that where an employer refuses to conduct negotiations with a union which represents some of its employees, a labor dispute exists and the members of the union have the right to engage in peaceful picketing.

The evidence in this case indicates that a dispute existed between Corn and some of his employees who were members of this union. Defendant Amanda Price testified that she had asked Corn for an increase in salary, either by way of actual monetary increase or by furnishing the waitresses uniforms, that she be allowed to have her meals while on duty, at less than menu prices and that all of these requests were refused. Defendant Láveme Deering testified that she had requested overtime pay for long hours on New Years Eve which had been refused. Defendant Price also testified that she conferred with Corn for more than an hour on behalf of herself and other of the defendants over certain grievances they had. These conversations Corn denies, and claims that never at any time did defendants request any change in salary or hours. The court finds from the evidence that these demands were made upon the plaintiff. This being true, can it be said that no labor dispute existed between plaintiff and defendants? There was no evidence that any of the defendant waitresses had made any demand for a “closed shop,” asked others to join the union, or attempted any coercion of other employees in any respect. Under the circumstances as shown by the evidence, I find that a labor dispute did exist between the plaintiff and defendants and that since a labor dispute did exist, the defendants had a right to engage in picketing under the laws of this state, subject of course, to the limitation that picketing be done in a legal manner.

In the case of W. E. Anderson Sons Co. v. local Union 311, 156 Oh St 541, 46 OO 460, decided by the Supreme Court of Ohio on February 13, 1952, I find the following at page 561:

“Court decisions now seem to firmly establish the rule that picketing or bannering as a means of the exercise of the right of free speech will be afforded constitutional protection so long as it is lawfully conducted, but if it becomes unlawful then it falls within the category of a civil wrong and must be governed by the law of torts. In other words, the constitutional guaranty of the right of free speech is predicated upon the lawful exercise of such right and if, through conspiracy or unlawful conduct the result of its exercise unlawfully injures another in his property rights, the guaranty ceases and the exercise of the claimed right by such means may be enjoined or prohibited.”

Another contention of the plaintiff is that only eleven out of thirty-nine employees had joined the union and that the remaining twenty-eight had executed signed statements that they did not desire union membership, that since less than 51% did not indicate a desire for union membership, the strike was illegal. It is true that had Mr. Corn negotiated with the union, and had the union then demanded that others join the union as a condition of further employment that Mr. Corn could reject this demand without subjecting his place of business to a strike, for the law recognizes very definitely the right of an employee to reject union membership, but in this case, no such demand was made because no negotiations were ever conducted. The question of accepting or rejecting union membership was not in issue at this time, the only demand being that plaintiff confer with a union representative. The strike was called because Corn refused to negotiate with the union representative designated by the eleven defendants who had joined the union.

From the authorities I have examined, the presumption is that a strike is legal under the Constitutional provision of freedom of speech, unless the strike is for an illegal purpose, which I do not find present here.

Having decided that the defendants had the right to strike from the evidence presented at the trial, we must now review the evidence as to whether or not the picketing was done in a peaceful manner.

The plaintiff testified that the pickets at the Colonial Inn had been stopping cars by standing in front of them and holding up their signs, that they had turned away twenty or thirty car loads of people who sought to enter the plaintiff’s place of business, that they had prevented a driver for Swift and Company from delivering meat to the premises, and claimed also that a beer truck had been turned back. It was further the testimony of the plaintiff that the pickets had behaved in an unlady like manner, had engaged in dancing and boistrous conduct while on the picket line. It is the testimony of the plaintiff that the pickets opened car doors and told the occupants that a strike was on and asked them not to patronize the Colonial Inn, but to go to the Hudson Brothers Post of the American Veterans of Foreign Wars. Similar testimony was given by Mr. Nazal, who appears to be the manager of the establishment, his testimony corroborating most of the testimony of the plaintiff. Defendants Helen Childers, Láveme Deering, and Amanda Price were called and denied that there had been any improper activity, denied that they had stopped the Swift and Company truck or any beer truck or had opened the doors of any cars, and advised patrons not to patronize the establishment of the plaintiff. They specifically denied telling patrons to go to the Hudson Brothers Post, denied any misconduct on the picket line, and a stipulation was entered into between attorneys for the plaintiff and the defendant that if the remaining defendants were called they would testify to the same facts as the three who were called.

Although the evidence is in conflict as to what actually took place on the picket line, the court upon a hearing ordered the pickets to cease and desist the improper picketing, if the same was going on. The court at that time limited the picketing to two pickets, instructed them not to block the means of ingress or egrees of motor vehicles of patrons or trucks seeking to make deliveries and the pickets were further instructed not to coerce, intimidate or block the means of ingress or egress of other employees who desired to work. There have been no complaints since the order of the court relative to picketing indicating that any of the courts rules as to the picketing at the Colonial Inn have been violated. If there was unlawful picketing at the Colonial Inn, it has now ceased and the picketing is apparently being carried on in accordance with the order of the court heretofore made. The court finds therefore, that the picketing is not now being carried on in an unlawful manner and must assume that the picketing is being carried on pursuant to the order of this court

Labor disputes of this kind are difficult of solution, but must be decided upon the basis of the law of this state as the court finds it to be. Personal sympathies for one side or the other should not properly enter into the court’s decision in any case, and the court has made an honest effort to decide this case upon the decisions of the higher courts in this state, and based also upon the many conflicting and some times confusing decisions of the United States Supreme Court. To the best of my ability, I have reached this decision solely upon the basis of the law as I find it to be.

The application of the plaintiff for a temporary injunction is hereby denied. An entry may be prepared accordingly.


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    CHURCH BUDGET ENVELOPE CO. et., Appellants, v. CORNELL, Admr., Bureau of Unemployment Compensation, Appellee.
    Common Pleas Court, Franklin County.
    No. 188130.
    Decided April 28, 1954.
    Frank J. Collopy, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., John Hardwick, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By CLIFFORD, J.

This is an appeal from the decision of Ernest Cornell, Administrator of the Ohio Bureau of Unemployment Compensation, entered July 20, 1953. The pertinent part of the Administrator’s decision reads:

“Since a partnership is not a legal entity separate and distinct from the individuals who constitute it, and, since the Budget Press and the Church Budget Envelope Company are owned and operated by the same individuals the Admin-' istrator finds that under the Ohio Unemployment Compensation Act the two partnerships would be deemed one employer and therefore entitled to one rate in determining the contributions due.”

There is- no dispute on the facts which are as follows:

The facts show that prior to December 3, 1948, these two partnerships were composed of different members. " Subsequent to the death of John T. Burns, a partner in both the Budget Press and the Church Budget Envelope Company, on December 3,1948, two new partnerships were created composed of common members.

The proportion of ownership in each partnership is as follows:

James A. Pidgeon, Sr. 35% 50%

James A. Pidgeon, Jr. 31%% ■ 24%

Joseph A. Pidgeon 31%% 24%

Lois E. Pidgeon 2% 2%

These two partnerships are located in the- same building, have the same address, have the same telephone number and have the same management. Both firms are engaged in the printing business.

After the creation of the two new partnerships in December 1948, each partnership was given a separate employer account number by the Bureau of Unemployment Compensation and the two partnerships have had separate accounts.

On May 7, 1953 the two partnerships were advised by the-Bureau of Unemployment Compensation that the accounts had been combined and that in the future they would be required to report as a single employer. This new determination of liability and merit rate has been protested by both ■ the Budget Press and the Church Budget Envelope Company.

The only question involved is whether one legal entity exists or two separate legal entities exist under the provisions of the unemployment compensation act.

Sec. 4141.01(A) R. C. (§1345-l-b-[l] GC), so much as is applicable, provides:

“ ‘Employer’ means any individual or type of organization including any partnership, association, trust, estate, joint stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or the successor thereof, or the legal representative of a deceased person who subsequent to December 31, 1936, had in employment three or more individuals at any one time within a calendar year; * * * All individuals performing service for an employer of any person in this state, who maintains two or more establishments within this state, shall be deemed to be employed by a single employer for the purpose of the unemployment compensation act.”

Sec. 4141-24 R. C. (§1345-4-[C]-[l]-A GC), so much as is applicable, provides

“The administrator of the bureau of unemployment compensation shall maintain a separate account for each employer and shall credit such employer’s account with all contributions which'he has paid on his own behalf; * * *”

The administrator’s legal conclusion, that under the provisions of the above quoted statutes the two partnerships herein involved “would be deemed one employer and therefore entitled to one rate in determining the contributions due,” seems to us to be a proper legal conclusion. Byers v. Schlupe et al, 51 Oh St 300, 38 N. E. 117; DuPont de Nemours Powder Co. v. Jones Bros., 200 Fed. 638, 200 F. R. 638; Vrabel v. Acri, 156 Oh St 467, 103 N. E. 564; Jamison v. Stout, 28 O. O. 502, 14 Ohio Sup. 71: The Eiber Realty v. Administrator of the Bureau of Unemployment Compensation of Ohio, 84 Oh Ap 532, 82 N. E 2d 565, 22 A. L. R. 2d at page 686. We find in 48 American Jurisprudence, page 531, Section 26 the following pronouncements of law:

“Control or Ownership by Same Interests—The principal problem of construction in connection with these affiliated or common control clauses is the determination of whether one Employing unit owns or controls another, or whether two or more employing units are owned or controlled by the same interests so as to come within the purview of the clauses. The words ‘control’ and ‘ownership’ in the acts, it is held, are to be given their normal and common meaning. The acts regard corporate organization objectively and realistically, and deal with substance rather than form; if there is a substantial unification of two or more enterprises, controlled by the same individuals, the enterprises are to be taxed under the acts as a single, employing unit. If the employing unit is a corporation, the test of ownership or control will be, it is said, who holds title to the corporate stock, although in some instances the decision apparently is based, in part at least, on proof of joint control in” addition to the common ownership of stock. If the employing unit is a partnership or other business, the test will be who holds title to the property; there must be a community of interest in the employing unit.” (Emphasis ours.)

Said pronouncements of law are supported by 142 A. L. R. 918 et seq.; also, see 158 A. L. R. p. 1242 et seq.

The Court finds that the decision of the Administrator of the Ohio Bureau of Unemployment Compensation is supported by reliable, probative and substantial evidence and is in accordance with law. The order of the Administrator is affirmed.


text:
    MORTON v. BOARD OF LIQUOR CONTROL et.
    Common Pleas Court, Franklin County.
    No. 188874.
    Decided April 22, 1954.

      Charles T. Kaps, Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By CLIFFORD, J.

This is an appeal from an order of the Board of Liquor Control rejecting the renewal application of the appellant for Class D-l, D-2 and D-3 permits for the reason that he had been convicted of a felony, i. e. a violation of Section 3, Title II of The National Prohibition Act on October 29, 1929, which rejection was based upon §4303.29 R. C., which reads in part as follows:

“No person heretofore convicted of any felony shall receive or be permitted to retain any permit; nor shall such person have an interest, directly or indirectly, in any permit.”

In this cause appellant raises two questions:

(1) Was the crime for which he was convicted a felony?

(2) Was he pardoned for this crime by virtue of his military service?

The record discloses that appellant was convicted of a violation of Section 3, Title II of The National Prohibition Act, Volume 41 Statutes at Large, page 305, 27 U. S. C. A. §12, the pertinent part of which reads:

“No person shall * * * manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act * *

In volume 45 Statutes at Large, page 1446, Chapter 473, approved March 2, 1929, the penalty for violation of The National Prohibition Act was amended and reads in pertinent part:

«* * * wherever a penalty or penalties are • prescribed in a criminal prosecution by the National Prohibition Act, as amended and supplemented, for the illegal manufacture, sale, transportation, importation, or exportation of intoxicating liquor, * * * the penalty imposed for each such offense shall be a fine not to exceed $10,000 or imprisonment not to exceed five years, or both. Provided, That it is the intent of Congress that the court, in imposing sentence thereunder should discriminate between casual or slight violations and' habitual sales of intoxicating liquor, or attempts to commercialize violations of the law.”

Section II.

“This Act shall not repeal nor eliminate any minimum penalty for the first or any subsequent offense now provided by the said National Prohibition Act.”

The definition of the term “felony” as provided by Federal Statute may be found in volume 35 Statutes at Large, page 1152, chapter 321, approved March 4,1909, and reads as follows:

“Sec. 335. All offenses which may be punished by death, or imprisonment for a term exceeding one year, shall be deemed felonies. All other offenses shall be deemed misdemeanors.”

This section has been in effect since 1909, and although amended and recodified in volume 46 Statutes at Large, page 1029, the definition of felony has remained unchanged.

The record reveals, by way of indictment of the appellant, that the alleged acts of sale of intoxicating liquor to which appellant pleaded guilty took place subsequent to the amendment of The National Prohibition Act increasing the punishment. With this increase in punishment and the definition of the term felony by the Federal Statute, it must be concluded that appellant was guilty of a felony, as found by the Board of Liquor Control. And, there can be no doubt but that a violation of a Federal Statute is within the purview of §4303.29 R. C. See In re Raab, 156 Oh St 158, 101 N. E. 2d 294.

In view of the fact that appellant was convicted of a felony, no significance can be given to the fact that the Ohio Legislature has in the past seen fit to amend the predecessor section, §6064-17 GC. Appellant comes within the clear prohibition that no person convicted of any felony shall receive any permit.

The second question relates to whether appellant was pardoned of this felony by the operation of the presidential pardon granted to persons who served in World War Two. This proclamation was effective December 24, 1945, and is cited as Proclamation 2676, 10 Federal Register 15409, volume 60 Statutes at Large, part II, p. 1335. This proclamation reads in part as follows:

“* * * Whereas subsequent to July 29, 1941, there were inducted and enrolled in the armed forces * * * persons who had prior to their entry, induction or enrollment been convicted of offenses against the laws of the United States, * * *; and
“Whereas it appears that such convicted persons who have or shall hereafter be honorably discharged or separated from the armed forces, * * * after serving in active status for not less than one year ought to have restored to them the political, civil, or other rights of which they were deprived by reason of such conviction and which may not be restored to them unless they are pardoned:
“Now, Therefore, 1, Harry S. Truman, President of the United States of America, do hereby grant a full pardon to all persons convicted of violation of any law of the United States * * *, who on or after the twenty-ninth day of July, 1941, and prior to the date hereof, entered, enrolled in, or were inducted into the armed forces of the United States and who after serving in active status for not less than one year have been or shall hereafter be honorably discharged or separated therefrom, or separated under honorable conditions from active service therein: * *

The presidential pardon clearly sets out two requirements for persons to qualify therein. First, the person must have entered the armed forces after the 29th day of July 1941, and prior to the date of the proclamation. Secondly, the clear and unambiguous language of the proclamation requires that the person be honorably discharged or separated from the armed forces, “after serving in active status for not less than one year.” A careful reading of the proclamation requires the conclusion that this one-year period of service must be subsequent to the individual’s entrance in the armed forces after the dates specified. The purpose of the proclamation clearly is limited to service during World War II. In the instant case the appellant served only seven months during the required period of World War II, and only by counting prior military service can he show more than one year’s active service, Appellant does not qualify for a pardon.

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

      . Now 18 U. S. C. A. §1.