author: By BLYTHIN, J:

text:
    PARTAIN et, Plaintiffs, v. BROOKLYN (City) et al., Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 676617.
    Decided December 2, 1955.

      Norman C. Schwenk, Roland A. Baskin, for plaintiffs.
    N. C. Brinsky, for defendant City of Brooklyn.
    Calfee, Fogg, McChord & Halter, Cleveland, for defendant The Lam-son & Sessions Company.
   OPINION

By BLYTHIN, J:

This is an action brought by three plaintiffs as residents, property owners and taxpayers of the City of Brooklyn, a municipal corporation operating under a charter adopted by its electors, effective as of January 1, 1952. Stated simply and in a word, the aim is to have the Court declare unconstitutional and ineffective an amending ordinance, No. 1955-59, passed by the Council of said city as an emergency measure on the 24th day of August, 1955, rezoning a section of the Westerly side of Tiedeman Road, so as to remove it from the “A” use classification (dwelling house) to the “E” use classification (industrial), designated in the general zoning and planning ordinance (No. 1940-19) of the city passed November 25th, 1940, amended from time to time, but still in effect as amended.

The petition sets forth the official connections of defendants John M. Coyne and Joseph E. Murphy as Mayor and Director of Public Safety, respectively, of said city and alleges defendant The Lamson and Sessions Company to be an Ohio corporation, private and for profit.

Plaintiffs allege in substance that said city has in effect a zoning ordinance, No. 1940-19, passed on November 25, 1940, dividing the municipality into use districts etc., except that some detail amendments have been adopted since 1940, and that under it there were established five zones or districts expressive of uses to which premises may be put, as follows:—

“A” Dwelling House District.
“B” Apartment House District.
“C” Retail District.
“D” Commercial District.
“E” Industrial District.

That the city of Brooklyn has an area of approximately 5% square miles and a growing population of approximately 10,000 people; is bounded on its North, East and West by the city of Cleveland, and on its South by the city of Parma, .the dividing line being Brookpark Road.

That Memphis Avenue and Biddulph Road run through said city in an Easterly and Westerly direction; that Ridge Road runs in a Northerly and Southerly direction through said city from Brookpark Road North to the city of Cleveland and that Tiedeman Road runs in a general Northerly and Northeasterly direction from Brookpark Road North to Memphis Avenue, and that said thorofares serve said municipality as ingress to and egress from its principal centers and growing and developing areas.

That under said ordinance certain Class E districts have been designated within the city as shown on the zoning map and that the remainder of the territory within the city is zoned for residential use, meaning thereby single and two family dwellings, churches, schools, public libraries, parks, Hospitals and farms, except (1) a parcel 2000 x 1000 feet at the Northwest corner of Ridge Road and the Belt Line Railroad zoned for commercial use; (b) certain small areas zoned for retail purposes for the convenience and accommodation of the residential areas, and (c) a parcel 2000 x 1000 feet North of and adjoining Biddulph Road between the city of Cleveland and Ridge Road, zoned for apartment use.

That except for two small retail districts at the intersection of Tiedeman Road and Memphis Avenue; Tiedeman Road and Biddulph Road, the development of Tiedeman Road north of the Belt Line Railroad is entirely residential in character and that about 59 modern residences abut Tiedeman Road; that 18 of them were there prior to passage of the zoning ordinance, No. 1940-19, in 1940, and that 41 have been erected since and that the area is ideal for residential purposes; that the plaintiffs own their homes on said section of Tiedeman Road and that the values of their individual homes are $35,000 and $60,000.

That within 1955 defendant The Lamson and Sessions Company purchased a parcel of unimproved land bounded on the East by the Westerly line of Tiedeman Road; on the South by the Northerly line of the Belt Line Railroad; on the North by the home property of plaintiffs Partain and on the West by the boundary line between the city of Brooklyn and the city of Cleveland. The parcel has a frontage of about 1000 feet on Tiedeman, a varying depth averaging about 2600 feet and contains 61 acres.

Said parcel adjoins, as indicated, the Partain property and is near other homes on Tiedeman Road.

That opposite said Lamson and Sessions parcel, across Tiedeman Road, is a golf course and other property especially suitable for residential purposes.

That on August 24, 1955, the Council and officers of said city of Brooklyn rezoned the parcel of The Lamson and Sessions Company from the “A” Residential District to the “E” Industrial District by Ordinance No. 1955-59, passed as an emergency measure, thereby cutting off the right of referendum without just cause.

That said city of Brooklyn and its officers have issued a permit to said The Lamson and Sessions Company to erect an industrial structure on its parcel according to a plan for a factory and office building presented, which structure is to cost approximately $4,500,000.00; and that the change of zoning was approved by the Planning Commission.

That the zoning change has no relation to the public peace, health, safety or public welfare for the reason that its effect will be to decrease the value of all property on and about Tiedeman Road for residential purposes and that it does violence to the zoning plan originally adopted for the municipality and continued in effect until the present time, with the exception of the change now in issue in this cause, and is unfair to plaintiffs and others who have been encouraged to invest their money in valuable homes relying on the zoning regulations in effect.

That since the year 1940 there have been no changes in the Lamson and Sessions parcel, nor in the surrounding property such as to warrant a rezoning of any from a residential to an industrial use and that Ordinance 1955-59 constitutes spot zoning and discriminates in favor of The Lamson and Sessions Company and was passed for its economic advantage and private benefit in disregard of the public interest.

That the Belt Line Railroad is a natural barrier between the industrial section to the South of it and the residential section to the North of it and that there has never heretofore been established an industrial district immediately North of it, and that to create one now will destroy the barrier and create an industrial district without any necessity therefor due to the fact that there now exists ample industrially zoned property available within the city.

That even though The Lamson and Sessions Company parcel adjoins land within the City of Cleveland zoned for industrial use there is, in fact, no such use being made thereof.

Due to the facts alleged and reasons stated the plaintiffs claim Ordinance No. 1955-59 to be unconstitutional and void and aver that they are without an adequate remedy at law and will be irreparably damaged unless the Court declares said ordinance void and grants them the relief to which they would be entitled upon such declaration.

In its answer the city of Brooklyn admits generally the facts stated by plaintiffs in their petition anent the city, its territory and the fact that the municipality has been zoned since 1940, with periodical amendments, and that Ordinance 1955-59 was passed by the Council of said city. It denies the allegations of the petition directed to the claim of invalidity of Ordinance No. 1955-59, raising issue squarely on that question.

In its answer The Lamson and Sessions admits, with slight deviations of no vital importance, the facts admitted by the city of Brooklyn and denies any invalidity or irregularity in the proceedings of the Council of said city or in the actions of its officials, thereby joining the city of Brooklyn in joining issue on the validity of Ordinance 1955-59.

The parties have entered into a stipulation, filed herein, admitting authenticity of certain documents and exhibits presented without necessarily admitting their effect but not including much of an important character additional to the pleadings or that which has been fully covered by oral evidence as shown by the record.

The Court will not here burden this memorandum with a recital of the stipulations, but deems it necessary to mention the following:

Stipulation 3. As no issue is raised as to the notice referred to in this stipulation it was not deemed necessary by the Court, on trial, to formally produce any proof of same.

Stipulations 11 and 13 disclose that defendant The Lamson and Sessions Company purchased, in addition to the 61 acres in the city of Brooklyn, and simultaneously, an additional and adjoining parcel of 31 acres within the city of Cleveland, thereby making a total purchase of 92 acres by deed, Exhibit E, and that the 31 acre parcel within the city of Cleveland is zoned for industrial use.

Stipulation 12 discloses that The Lamson and Sessions Company has deeded to the city of Brooklyn a parcel of its land 25 feet in width on the Westerly side of Tiedeman Road and extending back, or Westerly, of equal width to the Westerly line of the City and being the Northerly 25 feet of said 61 acre parcel. See Exhibit F. This 25 foot parcel is claimed by the city to be, and has been referred to as, a buffer zone between the newly created industrial district and the private property immediately North of it.

Stipulation 19. Plaintiffs objected to the relevancy and competence of Exhibits H, and I, as evidence of values. The Court deems the objection valid and gives them no consideration in this cause.

The testimony in this case, while in considerable detail, does not add much to what is perfectly apparent from the pleadings, stipulations and exhibits.

The claim of invalidity of Ordinance 1955-59, asserted by plaintiffs, is based on the following grounds:—

(1) The ordinance was passed as an emergency measure, thereby defeating the right of referendum.

(2) It does violence to the original planning and zoning of the municipality as contemplated by Ordinance 1940-19 and greatly decreases the values of the properties of plaintiffs and others affected by the change.

(3) There has been no change in the Lamson and Sessions parcel since 1952 (92 Oh Ap 351); and ordinance 1955-59 constitutes spot zoning.

It is not claimed that the provisions of law were in any wise violated in the steps necessary to the enactment of Ordinance 1955-59 except as above recited so that no issue of mechanics is raised. The real issue is one of principle and authority.

For reasons already indicated the Court will not comment in detail on the evidence at this point, but will deal with the questions raised in their order.

(1) THE ORDINANCE WAS PASSED AS AN EMERGENCY MEASURE, THEREBY DEFEATING THE RIGHT OF REFERENDUM.

It was asserted by defense counsel, upon argument, that there has in fact been a referendum, in effect, in this case. The issue was used in the political scrimmage of the municipal election of November 1955 and the people of the city returned to office the people who brought about the zoning change. This is not, of course, the right of referendum claimed to have been violated. If it amounted to a referendum at all it was a partial and mixed one at best, and certainly cannot be said to have been conclusive on any issue here.

It is important to note that the plaintiffs do not allege or claim fraud, collusion, or dishonest conduct, nor is there any evidence that citizens were not given an opportunity to be heard. They were heard in open meeting with the Mayor and all members of Council present. They also disclosed to the officials their possession of a petition signed by some 150 or more citizens voicing objection to the change. The members of Council passed the ordinance by a vote of six to one.

Secs. 731.29 and 731.30 R. C., specify the matters subject to referendum and, inter alia, §731.30 R. C., provides that excluded from such matters are:

“emergency ordinances or measures necessary for the immediate preservation of the public peace, health or safety in such municipal corporation, shall go into immediate effect. Such emergency ordinances or measures must, upon a yea and nay vote, receive a two-thirds vote of all the members elected to the legislative authority, and the reason for such necessity shall be set forth in one section of the ordinance or other measure.”

Ordinance No. 1955-59 is in evidence by a certified copy, Plaintiff’s Exhibit B, and from it we find that about ten changes have been made since the original zoning (1940); seven of those changes being to E (industrial) use, one to A, one to B and one to C use. A glance at the zoning map as originally adopted, Exhibit Kl, and at the map reflecting the changes, including the one here in issue, Exhibit K8, shows the effect of these changes — most of them being in the general area of the parcel here in question.

The ordinance, No. 1955-59, recites the claimed reason for the emergency feature.

The courts have spoken clearly on the subject of emergency legislation and the Supreme Court of Ohio has, in effect, eliminated the emergency clause as a ground of illegality even in those cases where it is disclosed that no emergency actually exists.

Syllabus 4 of Youngstown v. Aiello, 156 Oh St 32, is as follows:—

“4. Where a purported emergency ordinance enacted by the council of a municipality does not comply with the mandatory provisions of §4227-3 GC, and therefore does not go into immediate effect and no proceeding to institute a referendum or other challenge is made until after the expiration of the time limited for such attack, such ordinance takes effect in the same manner as other regular ordinance. (Vansuch. Dir., v. State, ex rel. Fetch, 112 Oh St 688, approved and followed.)

The period within which a referendum petition might have been filed on the ordinance here in question has long since expired; no petition has been filed and it follows that the ordinance is now immune from successful attack on the emergency clause feature.

(2) IT DOES VIOLENCE TO THE ORIGINAL PLANNING AND ZONING OF THE MUNICIPALITY AS CONTEMPLATED BY ORDINANCE NO. 1940-19 AND GREATLY DECREASES THE VALUES OF THE PROPERTIES OF PLAINTIFFS AND OTHERS AFFECTED BY THE CHANGE.

Zoning is a practice born within our own time in the United States, and, like all restrictions and reforms in a free government is a matter calling for reasonable stability without absolute rigidity. It is not like the laws of the Medes and Persians — immutable. He would be a wise person indeed who could have foreseen in 1940 what the Brooklyn Village of that day would be in 1955. Brooklyn as a Village of that day and the Brooklyn that is now a city had and has authority under constitutionally delegated powers to develop and plan its territory and affairs in the manner thought to be in the best interests of its inhabitants, their property and general welfare. Those interests, however, are subject to variation, shifts, enhancement or contraction by factors moving beyond the geographical limits of Brooklyn. Movements within the metropolitan community of which Brooklyn is a part can well be such as to prompt the city, through its representatives, to adjust regulations within the city to bring them into a reasonable degree of harmony with the conditions surrounding the city and which, like the weather, bear down on all alike. Not in the history of our nation has there been a decade to equal the last decade in expansion of travel, industry and common interests or in the decentralization of what theretofore had seemed to be centrally and permanently fixed in the core of metropolitan centers. Public officials must recognize these movements and courts, in passing judgment on the conduct of such officials, must be permitted, to some extent, to take judicial notice of them. Brooklyn, located on the Southwesterly edge of the city of Cleveland, has seen a mammoth center of industry move out just beyond its borders on the West in particular, and it is not only rational but probably essential that Brooklyn periodically re-examine its position in the light of the events and of their effects upon it, its citizens and their interest. Memphis Avenue and Brookpark Road are the only main thorofares running through the city of Brooklyn in an Easterly and Westerly direction, and it is a matter of common knowledge that Brookpark Road has within the last decade become a thorofare of importance far beyond the most optimistic prognostications of the wisest seers in the community. This community importance is not caused by Brooklyn alone, but Brooklyn, ité thorofares, its traffic problems and its general community interests are affected by it.

In evidence in this cause, Exhibits K1 to K8, both inclusive, are the zoning maps in order as to date and reflecting the zoning as originally established in 1940 and as changed from time to time to the present date.

Brookpark Road forms the Southerly boundary of the city of Brooklyn. To the North of it, and running generally, not actually, parallel with it about 1000 feet to the North is the Belt Line, so-called, of the New York Central Railroad. Under the original ordinance, No. 1940-19, the entire frontage on Brookpark Road, and extending the total distance back to the Railroad, was zoned for A (residential) use excepting a small parcel at the Westerly end of the then Village zoned for E (industrial) use, a small parcel approximately half-way between Ridge Road and Tiedeman Road zoned for D (commercial) use and the corners of Ridge-Brookpark and Ridge-Tiedeman zoned for C (retail business) use. These variations in the original ordinance undoubtedly did nothing more than recognize the then existing uses of the excepted parcels. See Exhibit K.l.

Since that time the entire frontage of Brookpark Road from the Westerly limits of the City, and extending back to the Belt Line Railroad, to the intersection of Tiedeman Road has been changed to an industrial use zone and the section zoned for such use midway between Ridge and Tiedeman Roads has been more than doubled. The residential character of Brookpark Road has been completely changed by developments in the general area and it is rational to believe that .the entire frontage of Brookpark Road within the city of Brooklyn and extending back to the Belt Line Railroad will be rezoned to industrial use as rapidly as acceptable industry offers to locate on it.

It is claimed here that there has heretofore been no industrial use zone North of the Belt Line Railroad and South of Memphis Avenue between Ridge Road and Tiedeman Road and that the Belt Line Railroad forms a natural barrier between the Brookpark Road industrial zone and the residential zone North of the Belt Line. The evidence is to the effect that the Belt Line Railroad is on a raised bank 15 or 20 feet above the ground level of the land immediately adjoining it on the North. A railroad must certainly be classed as an industrial operation and it can hardly be claimed to be an inviting feature to any person or persons seeking a location for a residence. It was also established that in the 15 years which have elapsed since the passage of Ordinance 1940-19 not a single application has been filed for a permit to erect a residence on the 1000 or 1100 feet of frontage on the Westerly line of Tiedeman Road of the parcel herein under special notice and it is not claimed that there is any residence of any kind across the road (Tiedeman) from it. Quite a sizeable parcel on the Northerly side of the Belt Line Railroad and fronting on Ridge Road was a commercial use zone in 1940 and still is. See Exhibit K.l and K.8.

A glance at Exhibit K.8, and at the parcel here involved in particular does not in and of itself indicate violence to the original plan and, while it is not the Court’s function to do any planning, it can well be that both sides of the Belt Line Railroad for some distance North will naturally develop into industrial and commercial use. The parcel now in issue does not actually break “into” any residential occupancy— it merely comes to it from a railroad occupancy and to assume and say that it is more damaging to the residential section to the North than the railroad would be to dwellings that might be erected on the parcel would be to assume something that could furnish material for a very honest difference of opinion and develop to be highly debatable. If that be true the decision is for legislative authority and not for the courts.

It is claimed that to devote the Lamson and Sessions parcel to industrial use would reduce the value of the properties of the plaintiffs. Values are not, in and of themselves, the test of validity of á zoning regulation. They may be factors for a legislative body to consider in arriving at its conclusions on the total merits in the interest of the community welfare as distinguished from the rights and interests of any one or more particular individuals. See 8 McQuillin on Municipal Corporations, Page 82, Section 25.44. Also The Cleveland Trust Co. v. The Village of Brooklyn, 92 Oh Ap 351.

In order to justify a court in invalidating an ordinance on a claim that there was violent diminution or complete destruction of value the proof would have to be of a high order. While not conceding value to be a test the evidence on that point in this case is most meager. It is uncontradicted. It consists of the opinion of two property owners who testify as owners, without being experts, that the values of their properties will be diminished. Plaintiffs allege in their petition that “they bring this action for themselves and on behalf of all other property owners, taxpayers and residents of said municipality similarly situated and affected by the allegations herein set forth;” but it is interesting to note that no property owner, taxpayers or resident came before the court to support the three owners (plaintiffs) of two dwellings when the record discloses the fact that there are about 60 dwellings on Tiedeman Road between the parcel in issue and Memphis Avenue. The presumption of validity which attaches to the acts of legislative bodies would certainly not be upset or offset by the evidence as to values shown on the record here.

3. THERE HAS BEEN NO CHANGE IN THE LAMSON AND SESSIONS PARCEL SINCE 1952 (92 Oh Ap 351) AND ORDINANCE No. 1955-59 CONSTITUTES SPOT ZONING.

Plaintiffs argued that there has been no change in the Lamson and Sessions parcel since the decision of the Court of Appeals in relation to it and reported in 92 Oh Ap 351. and that Hurd, J., deals with that subject and establishes the necessity for a change in the parcel before there can be a valid change in its zoning. This is what Judge Hurd stated, Page 365:—

“Up to the present time there have been no changes in the conditions and circumstances surrounding plaintiff’s property which would justify judicial interference with the legislative process.” (Emphasis supplied.)

The changes referred to do not necessarily happen to any particular parcel, but are, and perhaps must be, changes in the surroundings, the area or the entire community. It is made perfectly clear in the opinion that the judicial judgment is not to be substituted for the legislative judgment in any case in which the issue or matter is fairly debatable. This is a well recognized general rule, and thoroughly wholesome In the light of the march of industry into the Brooklyn area and the neighboring communities, the changes in the area, and those which must still come, it cannot possibly be said that the future of a strip of land, wholly undeveloped, adjoining a railroad, is not a subject for wide difference of opinion and genuinely honest debate. It is interesting to note that a member of this court who heard the evidence in Cause No. 610,039, involving this very parcel, found it to be wholly unsuitable for residential use and suitable for industrial use. That decision was not reversed in 92 Oh Ap 351, because the court’s views were erroneous but because it was without authority to legislate. The trial court in that case decided that the parcel in issue here should — beyond debate — be zoned and used for industrial purposes. Its views, after full hearing, is a powerful indication that the issue is at least debatable. If debatable it is not for the courts. Is this spot zoning? The fact that only one parcel or ownership is involved does not ipso facto make the grade as spot zoning.

Yokely on Zoning Law and Practice, Vol. 1, page 202, Sec. 90:—

“The term ‘spot zoning’ is ordinarily used where a zoning ordinance is amended re-classifying one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith.”

Higbee et al., v. Chicago, Burlington & Quincy R. R., 292 N. W., 320 (1940):

In this case it was held by the Supreme Court of Wisconsin that to re-zone a two acre parcel in a first class single family dwelling district might be classified as “spot zoning” but was not in this case due to the facts and circumstances there involved.

Bartram v. Zoning Comm., 68 A. (2) 303, Conn:

In this case the court held that to re-zone a lot in a residential district for erection of a shopping center was not “spot zoning” since it served the community interest.

It is clear from all the cases on spot-zoning that the test is still the general welfare of the community and that all the facts must be weighed. Each case must be judged on its own merits. In the instant case we do not have a small lot or area — 61 acres are involved in one parcel, adjoining a railroad and adjoining another parcel zoned for industrial use in a section rapidly changing in character and with no residences adjoining the parcel other than on one side. While spot-zoning is invalid as a general proposition its invalidity, when found, must be based on all the facts of the situation and on a clear violation of established rights of others. We have no situation here which could justify a court in declaring Ordinance 1955-59 to be an invalid spot-zoning.

The Court has examined all the authorities cited on the hearing of the cause, and some additional, and in the light of those authorities and the facts in this cause is wholly unable to arrive at the conclusion that the question involved is not a debatable one and, therefore, one for the legislative authority of the city. Judge Hurd, in 92 Oh Ap 351, has cited and brought together the important authorities on the issue here involved and has discussed them with perfect clarity. Following the rules discussed, the conclusions reached, and giving to the claim and evidence of the plaintiffs in this cause the most favorable view possible, the Court must hold that the re-zoning involved here was on a debatable matter, was not arbitrarily done and was a valid exercise of power vested in Council,

For the reasons stated the petition of the plaintiffs will be dismissed at their costs and an entry to that effect will be filed this date, and exceptions noted.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    BAKER, Plaintiff-Appellant, v. PERMANENT INSURANCE CO., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2293.
    Decided April 5, 1955.
    Herbert M. Eikenbary, Jack H. Patricoff, Dayton, for plaintiff-appellant.
    Pickrel, Schaeffer & Ebeling, Dayton, By William H. Selva, of Counsel, for defendant-appellee.
   OPINION

By THE COURT:

This is an action brought under the terms of a policy of insurance to recover for a loss coming within its provisions. One of the duties imposed upon the assured by its express provisions required that proof of loss be filed with the company “within sixty days after the occurrence of loss, unless such time is extended in writing by the company * *

The trial court in a separate finding of facts found that the plaintiff had suffered the loss complained of, but that the terms of the policy requiring notice to the insurance company had not been complied with, in that “plaintiff failed to introduce any notice or proof of loss to the defendant company.” A judgment was rendered in favor of the defendant which we find is in accordance with law. See National Fire Ins. Co. v. Frees, 2 Abs 444; Independent Directory Corp. v. Vandenbrock, 57 Abs 313; 22 O. Jur. 729.

The question of waiver or estoppel is not presented for the reason that no attempt was ever made to notify the company or any of its agents of said loss; hence, it performed no act which could constitute a waiver of the limitation clause. The record discloses that only the mortgagee with an insurable interest was notified, who was not an agent of the insurance company.

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

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


author: By THE COURT.

text:
    CAFE TIA JUANA, INC., Appellant-Appellee, v. STATE DEPARTMENT OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5433.
    Decided April 18, 1956.
    Leonard J. Stern, Columbus, for appellant-appellee.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee-appellant.
   OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order dismissing the appeal for the reason that no bill of exceptions has been signed, allowed and filed in accordance with §2321.06 et seq, R. C. The record discloses that the decision of the trial court is entered on the record which exemplifies some of the errors set forth in the appellant’s assignment of errors. Under §2321.05 R. C., a bill of exceptions is not required under such circumstances. See In re Estate of Anderson, 71 Abs 126; Hoffman Candy Co. v. Dept of Liquor Control, 56 Abs 257; Harlem v. Board of Liquor Control, 62 Abs 355.

The motion is overruled. The appellant’s motion for leave to present oral argument is also overruled.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By McLAIN, J.

text:
    NILES (City), Plaintiff, v. EVANS et, Defendants.
    Common Pleas Court, Trumbull County.
    No. 63918.
    Decided August 15, 1955.

      Mitchell F. Shaker, City Solicitor, Niles, for the plaintiff.
    Lewis L. Guarnieri, Warren, W. P. Barnum, Youngstown, for the defendants.
   OPINION

By McLAIN, J.

In 1926, The Mahoning Valley Sanitary District, consisting of the City of Youngstown in Mahoning County and the City of Niles in Trumbull County, was organized under §§6602-34 to 6602-106 GC (§6115.01 to §6115.99 R. C.).

Since that time, the district has been engaged in supplying water to the member cities and surrounding area by virtue of sales contracts between the users and the cities of Youngstown and Niles.

In the year 1950, with the approval of the court of jurisdiction, the district, being desirous of obtaining additional raw water from what is known as Berlin Reservoir, a body of water maintained and operated by the United States Army situated about nine miles distant from Meander Reservoir, and for the purpose of constructing a pipe line between the two bodies of water together with an enlargement of the Mahoning Valley Sanitary District’s present facilities at a cost of about $6,000,000.00 set up a plan designated as Amendment No. 1, and a board of appraisers was appointed for the purpose of valuing land to be taken for and damaged by the proposal, and for the purpose of evaluating the benefits which would accrue under the amendment.

Hearings were held and a report filed by the board of appraisers and, on September 22, 1952, exceptions to the report, which were filed by the City of Niles, Ohio, plaintiff herein, were overruled, and the report of the appraisers which apportioned the benefits by allocating 35% of the cost of the total improvement on the basis of tax duplicates and 64% on the basis of water consumption, which resulted in apportioning 81.85% of the cost to the City of Youngstown and 18.148% of the cost to the City of Niles, was adopted.

Thereafter, on March 10, 1953, the court of jurisdiction set aside the order of September 29,1952, and ordered the appraisers to submit a second amended report.

Thereafter, on March 19, 1953, the second amended report of the appraisers having been filed, pursuant to the directions of the court, in which the cost of the improvement was so weighted on the basis of tax duplicates and water consumption that it resulted in an allocation of 83% of the cost to the City of Youngstown and 17% of the cost to the City of Niles. This report was approved and adopted by the court and, thereafter, the City of Niles appealed from each of the foregoing orders.

The Court of Appeals dismissed the appeals for the reason that the controlling statutes made no provision for the appeals taken.

A motion to certify the record was allowed by the Supreme Court of Ohio, and the decision of the Court of Appeals of the Seventh District was affirmed by the Supreme Court of Ohio.

Thereafter, the City of Niles Filed a petition for a writ of certiorari in the Supreme Court of the United States which petition was dismissed by that Court.

The plaintiff then filed an action in this Court seeking an injunction, under §§2723.01 and 2723.02 R. C., seeking to enjoin and forever restrain the levy of the assessments upon the following grounds:

(a) The report of the Board of Appraisers filed in Case No. 58478 of the Mahoning County Sanitary District Court, and approved by said order, was not made in accordance with the law and the provisions of the Ohio Sanitary District Act.

(b) The Special Common Pleas Court was without any authority or right to allocate or apportion the total benefits of Amendment No. 1 of the Official Plan of the Mahoning Valley Sanitary District between the Cities of Niles and Youngstown as it attempted to do in said order.

(c) Said Special Court was without any right or authority to approve recommendation of the Board of Appraisers that areas outside the Ma-honing Valley Sanitary District to which is distributed water of said Sanitary District are, or have been, made, should not be made a part of the Mahoning Valley Sanitary District, as said Court did in said order.

(d) The Special Court of Common Pleas was without any right or authority to approve a report of the Board of Appraisers, notice of which had not been published as required by law.

(e) The Special Common Pleas Court was without any right or authority to approve a report of the Board of Appraisers, wherein on the basis of the tax duplicate of the City of Niles, said City and its taxpayers would be required to pay over twice the assessment per One Thousand Dollars ($1,000.00) of tax valuation as would the taxpayers of the City of Youngstown.

(f) The Special Common Pleas Court and the defendants herein are without authority to levy assessments against the City of Niles and the City of Youngstown unless the areas outside of said cities receiving benefits of Amendment No. 1 be also assessed for said improvement.

(g) The Special Common Pleas Court, having previously made a final order on the 29th day of September, 1952, approving a report of the Board of Appraisers in connection with Amendment No. 1 of the Official Plan of the Mahoning Valley Sanitary District, was without authority to make any further orders in that matter.

The case was submitted to this Court upon an agreed statement of facts. Defendants have set up the defense of res judicata. This defense will be first considered for the reason that if it has been established, it would be dispositive of the entire controversy.

It has long been the established law of this state that an existing final judgment or decree rendered upon the merits, and without fraud or collusion by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties or their privies in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction. O. Jur. Judgment Section 739. Quinn v. State, ex rel., 118 Oh St 48.

It is equally apparent, under the views expressed many times by the Supreme Court of Ohio, that where the issue has been joined on a material fact in an action, and the issue judicially determined by a court having jurisdiction of the action, the parties to such action are concluded by said finding until the judgment is reversed or set aside and the fact thus established cannot be re-tried by the same parties in any subsequent action IDENTICAL or DIFFERENT. (Emphasis added.) Norwood v. McDonald et al., 142 Oh St 299. Hixon v. Ogg, 53 Oh St 361.

This rule has even been extended to any other matters which, under the rules of practice and procedure, could have been determined. This doctrine is founded on the theory that there should be reasonable finality to litigation, and that parties should not be vexed and subjected to continuous litigation involving the same issues.

Since there is no evidence of fraud or collusion whatsoever and, in fact, such is not claimed or asserted, it appears there are only two necessary inquiries in the determination of the validity of the defense of res judicata to this action.

It is apparent from the agreed statement of facts submitted that all of the questions raised by the plaintiff in this action were also raised before the Board of Jurisdiction of the Mahoning Valley Sanitary District. Although this is an action in equity, all the matters at issue are common to both this proceeding and the one had before the Court of Jurisdiction.

It is equally apparent that these issues were judicially determined by a court of competent jurisdiction. Sec. 6115.07 R. C., provides as follows:

“Immediately after the filing of the petition provided for in §6115.05 R. C., the clerk of the court with whom such petition is filed shall give notice by publication, in accordance with the suggested form in division (A) of §6115.79 R. C., of the pendency of the petition and of the time and place of the hearing thereon. Such clerk shall cause such notices to be served personally upon the clerk of each political subdivision within the proposed district.
“The court of common pleas of the county in which the petition was filed shall thereafter for all purposes of §§6115.01 to 6115.79, inclusive, R. C., except as otherwise provided in such sections, maintain and have original and exclusive jurisdiction coextensive with the boundaries and limits of said district and of lands and other property proposed to be included in said district or affected by said district, without regard to the usual limits of its jurisdiction.”

The Board of Jurisdiction of a conservancy district has been plainly defined as a common pleas court. Miami County v. City of Dayton. 92 Oh St 219.

It was pointed out by the court in that case that a hearing is involved, a trial upon certain issues made by the petition, and the objections thereto, and certain findings made by the Court of Common Pleas in that behalf, all of which are essentially judicial in their nature.

An examination of the opinion of the Supreme Court of Ohio in the case of City of Niles, Appellant, v. Mahoning Valley Sanitary District, Appellee, 161 Oh St 259, clearly establishes the jurisdiction of the Court to determine the issues herein raised under §6602-65 GC. (§6115.36 R. C.) The Court in that case held:

“If it appears to the satisfaction of the court after having heard and determined all said exceptions that the estimated cost of constructing the improvement contemplated in the official plan is less than the benefits appraised, then the court shall approve and confirm the appraisers’ report as so modified and amended, and such findings and appraisals shall be final and incontestable.” (Emphasis added.)

The Supreme Court, in the foregoing case, points out that there is no inherent right of appeal from the judgment of a court, and such right must be conferred by the constitution or statute, and that although Section VI, Article 4 of the Ohio Constitution and §2505.03 R. C., provides that every final order, judgment, or decree of the court may be reviewed, unless otherwise provided by law, as provided in §§2505.4 to 2505.45 R. C.: §6115.36 R. C., making the findings of a sanitary district court of the provisions of a report of a board of appraisers, as modified and amended, final and incontestable, constitutes a prohibition of an appeal as provided by statute,

The Court is not unmindful of the fact that this proceeding is in equity, but courts of chancery cannot disregard statutory provisions. Equity courts are bound by positive provisions of a statute equally with courts of law.

While equity may remove impediments which are in the way to legal right or help where the legal remedy is incomplete by enforcing a recognized right in a manner unattainable at law and on principles of equality and fairness will sometimes soften the rigor of the law, a court of equity cannot create a remedy in violation of law.

Thus, wherever the rights of parties are clearly defined and established by law, whether it is common or statutory law, equity has no power to change those rights and, in such an instance, the maxim, “equitas sequitur legem,” is strictly applicable.

Neither can a court of equity, under this doctrine, where there exists positive governing statutes, apply an equitable interpretation of such statutes even to avoid a seemingly undesirable result. Longworth v. Mitchell, 26 Oh St 334. In other words, positive statutes govern courts of equity the same as courts of law.

Likewise, it was early decided in this state that equity follows the law as a matter of course in giving effect to judgments of common law courts. Star v. Star, 1 Ohio 321. Also:

“The maxim, ‘equitas sequitur legem,’ is strictly applicable in all cases where the rights and situation of litigants are clearly defined and established by law and, hence, in all such cases equity is powerless to change the rights or unsettle the situation.” Hedges v. Dixon County, 150 U. S. 182.
“Where the Legislature has prescribed a rule of law which governs the rights of parties, equity, equally with courts of law, is bound and cannot disregard such provisions.” Giberson v. First National Bank, 136 Atlantic, 323.

The plain language of the governing statutes discloses a clearly evinced legislative intent to clothe the court of jurisdiction of a sanitary district with plenary, complete, and final jurisdiction in respect to both the organization of the district as well as the determination of changes in the boundaries thereof, and the approval of benefits and appraisals. Secs. 6113.04 and 6115.36 R. C.

This conclusion is also strengthened by the application of an elementary principle of statutory construction. Legislative enactments in respect to a particular subject prevail over general legislation which may include the same subject. 37 O. Jur. 140.

A recent expression by the Supreme Court of Ohio is found in the case of Eggers et al., Appellees, v. Morr et al., Appellants, decided February 9, 1955, 162 Oh St 527:

“We have held again and again that a special statutory provision which applies to a specific subject matter constitutes an exception to a general statutory provision covering other subjects as well as the specific subject matter which might otherwise be included under the general provision. Acme Engineering Co. v. Jones, Admr., 150 Oh St 423, 83 N. E. (2d), 202; State, ex rel. Elliott Co., v. Connar, Supt., 123 Oh St 310, 175 N. E. 200; State, ex rel. Steller et al., Trustees, v. Zangerle, Aud., 100 Oh St 414; 126 N. E. 413.”

This is particularly true when special provisions are of a later date. Sec. 2723.01 R. C., under which this action is brought, is a recodification of §12075 GC, which was formerly §5848 R. S., passed by the Legislature in 1856. 53 O. L. 173. The Sanitary District Act, formerly §6602-34 GC, was enacted in 1919. 108 O. L. (Part One) 634.

For the foregoing reasons, this Court is of opinion that the issues herein raised were judicially determined by the Board of Jurisdiction of the Mahoning Valley Sanitary District, and this Court is without jurisdiction in this action.

The petition of the plaintiff is, therefore, dismissed at the plaintiff’s costs. Counsel may prepare a journal entry in accordance herewith.


author: By CASE, J.

text:
    TIPTON, Plaintiff, v. DIFFENDAL et, Defendants.
    Common Pleas Court, Fayette County.
    No. 22128.
    Decided August 2, 1956.
    David H. Bailie, Dayton, for plaintiff.
    Pickrel, Schaeffer & Ebeling, Dayton, for defendant, Fleet Maintenance Company.
   OPINION

By CASE, J.

On May 23, 1956, plaintiff filed his petition herein which states in part as follows:

“Plaintiff further says that he is attaching interrogatories to his petition and prays Defendant Fleet Maintenance Company be required to answer interrogatories under oath.”

The files and records show that no interrogatories were filed by plaintiff until June 13, 1956.

On July 5, 1956, defendant, Fleet Maintenance Company, filed its answer to plaintiff’s petition and simultaneously therewith filed its demurrer to the interrogatories so filed by plaintiff on June 13, 1956.

Said defendant’s demurrer reads as follows:

“Comes now defendant, Fleet Maintenance Company, and demurs to plaintiff’s interrogatories.”

Defendant’s memorandum in support of said demurrer reads as follows:

“Plaintiff requires this defendant to answer interrogatories attached to its petition, but there are no interrogatories attached to the copy of the petition served upon this defendant and we understand there are no interrogatories attached to plaintiff’s original petition.
“Under the circumstances, the demurrer should be sustained.”

Obviously, said defendant’s demurrer raises a question of law as to whether the interrogatories, filed separately by plaintiff on June 13, 1956, were annexed to plaintiff’s petition, which was previously filed on May 23, 1956, within the meaning and intent of §§2309.43 and 2309.44 R. C.

The provisions of §2309.43 R. C. read:

“A party may annex to his pleading, other than a demurrer, interrogatories pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath by the party to whom they are propounded, or if such party is a corporation, by the president, secretary, or other officer thereof, as the party propounding requires.” (Emphasis by the court.)

And the provisions of §2309.44 R. C. read:

“When annexed to a petition, the interrogatories provided for by §2309.43 R. C., shall be answered within the time limited for answer to the petition; when annexed to the answer, within the time limited for a reply; and when annexed to the reply, within the time allowed for an answer. Further time may be allowed in all cases by the court, or a judge thereof in vacation.” (Emphasis by the court.)

Since said statutes are related to the same subject matter, they should be construed in pari materia (Warner v. Ohio Edison Co., 152 Oh St 303).

In ascertaining the manifest intention of the legislature, as indicated by the clear, plain, obvious, and natural import of the language used in said statutes, it is necessary to first consider and determine the ordinary and usual definition and use of the words “annex to” and “annexed to” as expressly stated and set forth in the provisions above quoted.

In Commissioners v. Mannix, 9 Ohio Dec. Reprint 189, at page 191, the court stated in part as follows:

“* * * Tlle wor¿ ‘attached,’ as used here, is equivalent to the word ‘annexed,’ which has received legal construction, meaning simply, physically joined’to. * * *”

In Elliott v. County Board of School Trustees, 76 Southwestern Reporter 2nd 786, at page 789, the court stated in part as follows:

«* * * Tlae worcjs ‘annex’ and ‘attach’ are synonyms. As ordinarily understood ‘annex’ means to make an integral part of something larger. While ‘annex’ implies physical connection or physically joined to, yet the word may not necessarily be confined to a narrow and strict sense. Physical connection may be dispensed with, and things may be annexed without being in actual contact, when reasonably practicable. * * *”

It therefore appears that, in order to annex or attach interrogatories to a pleading within the meaning and intent of said statutory provisions, a pleader would not be required to have the same physically joined to such pleading, but that it would be sufficient and reasonably practicable to merely file such interrogatories simultaneously with the pleadings described and referred to in the provisions of said statutes.

This court having determined that these statutes should be construed in pari materia, it next becomes necessary to determine whether the exercise of the right to file interrogatories was intended to be connected in time with the filing of such pleadings as designated and described in said statutory provisions.

The phrase “when annexed to,” which repeatedly appears in §2309.44 R. C., expressly and specifically limits and fixes the time within which pertinent and properly filed interrogatories shall be answered. The time limits so fixed are specific and identical with the respective time limits fixed by statute for filing an answer or reply to the pleading to which such interrogatories are authorized to be annexed. Therefore, a reasonable, sensible, and fair construction of the legislative intent, with respect To the time at which such interrogatories should be filed in order to enjoy and exercise such right to propound and thereby compel answers from the party to whom they are propounded, compels this court to conclude that where, as in the instant case, twenty days elapsed between The filing of plaintiff’s petition and the filing of certain interrogatories, which plaintiff purported to attach to and make a part of his petition, said interrogatories were not annexed to plaintiff’s petition within the meaning and intent of §§2309.43 and 2309.44 R. C.

Upon the authorities above cited and referred to and for the reasons herein above set forth, this court finds that said demurrer herein filed on behalf of defendant Fleet Maintenance Company is well made and should be sustained.

Counsel for said defendant should prepare an entry accordingly with appropriate exceptions therein noted on behalf of plaintiff, and submit same to counsel for plaintiff and to this court for approval by, on, or before August 16, 1956.


author: Per CURIAM:

text:
    OSWELL, Plaintiff-Appellant, v. SMOYER et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22606.
    Decided December 8, 1952.
    Boer, Mierke, Thomas, McClelland & Handy, for plaintiff-appellant.
    Thompson, Hiñe & Flory, Squire, Sanders & Dempsey, for defendantsappellees.
    (NICHOLS, PJ, PHILLIPS and GRIFFITH, JJ, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

Plaintiff sued defendants, Olive Vine Smoyer and her daugter Ellen R. McMillan, in the Court of Common Pleas to recover for loss of services of, and expenses incurred by him in connection with personal injuries sustained by his minor son, Bruce Oswell, by being struck by an automobile operated allegedly, carelessly and negligently by defendant, McMillan, in the city of Cleveland.

Plaintiff based his right to recover damages from both defendants on the ground that at the time of the collision defendants were engaged in a joint enterprise because defendant Smoyer was holding defendant McMillan’s baby in the back seat of the McMillan automobile while defendant McMillan was operating it and because defendant McMillan said she would have granted any reasonable request made by defendant Smoyer, and that the relationship of principal and agent existed between defendants Smoyer and McMillan.

The trial judge sustained the motion of defendant Smoyer to direct the jury to return a verdict in her favor made at the close of plaintiff’s case, overruled a like motion as to defendant McMillan, directed the jury’ to return a verdict for defendant Smoyer and entered judgment accordingly.

Plaintiff dismissed his action against defendant McMillan and appealed to this court on questions of law from the judgment of the trial court entered upon the verdict of the jury directed for defendant Smoyer.

There is no evidence to support the claim of control or right of control of the automobile on the part of defendant Smoyer which disposes of plaintiff’s claim of joint enterprise on authority of Bloom v. Leech, Admr., 120 Oh St 239, 166 N. E. 137. As to agency, it is neither pleaded, nor is there any evidence to support such claim.

The judgment of the Court of Common Pleas is affirmed. Exceptions noted. Order See Journal.

NICHOLS, PJ, PHILLIPS and GRIFFITH, JJ, concur.


text:
    REIBOLD et, Plaintiffs-Appellees, v. HAINES, Aud., Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2346.
    Decided January 17, 1956.

      Marshall & Smith, Dayton, By P. Eugene Smith, of Counsel, for plaintiffs-appellees.
    C. William O’Neill, Atty. Geni., W. E. Herron, Asst. Atty. Geni., CoJumbqs, for The Board of Tax Appeals,

      Mathias H. Heck, Pros. Atty., By W. Edmund Shea, of Counsel, Dayton, for defendants-appellants.
    (COLLIER, J, of the B’ourth District, sitting by designation in the Second District.)
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, allowing a reduction in the valuation of real property listed for taxation in the county auditor’s record in the name of Frank B. Reibold as fixed by the county auditor and affirmed by the County Board of Revision. The parties will be referred to hereafter as the appellants and the appellees as they appear in this Court.

Pursuant to the provisions of §5713.01 R. C., the County Auditor of Montgomery County in 1951 reappraised all the real estate in said County for purposes of taxation. The Auditor placed a value on the land in question as follows: Land, $1,027,560.00; building, $685,920.00; total, $1,713,480.00. On March 20, 1952, the owners of the fee in this real estate joined with the tenant, The Elder and Johnston Company, and filed a complaint before the Board of Revision of Montgomery County, alleging that the land in question was over-valued by the Auditor in the sum of $198,310.00 and that the building erected upon said land was overvalued in the sum of $185,920.00. On July 14, 1952, the County Board of Revision denied the reduction sought by the complainants, and on August 12, 1952, the complainants filed notice of appeal to the Common Pleas Court of Montgomery County. On April 25, 1955, a final judgment of the Court of Common Pleas was journalized in which the valuation of said property was determined to be as follows: Land, $830,976.00; building, $587,920.00; total valuation, $1,418,904.00. Said property was listed for taxation in 1950 in the total sum of $1,459,630.00.

The property in question is described as follows:

“Situate in the State of Ohio, County of Montgomery, city of Dayton, and being known as Part Lot No. 205 and Lot No. 206 of the revised and consecutive numbers of Lots on the plat of the City of Dayton, Ohio.”

The land is located at the southwest corner of Fourth and Main Streets, Dayton, Ohio. The building on the land was constructed in three different units. The first unit was constructed in 1896, the second in 1904, and the third in 1914. The units are all joined and accessible, one from the other, and are in reality one building eleven stories high. The first six floors are used as a department store by the appellee, The Elder and Johnston Company, and the other five floors are used for offices and are occupied by lawyers, dentists, insurance agents, etc. The entire building is under lease from the owners by The Elder and Johnston Company and has been so leased since 1936.

Under the terms of the lease the lessee has contracted to pay the taxes and said lease will not expire until 1961. The appellants, the County Auditor and the Board of Revision of Montgomery County, set forth seven assignments of error, which will be taken up in order.

In their first assignment of error appellants contend that bcause one of the owners of record of the real estate, when called as a witness, stated he did not know whether the real estate appraisal for tax purposes was too high, the trial court should have sustained appellants’ motion to dismiss the appeal. It often appears in the trial of a law suit that a party to the suit is unable to support his claim with his own testimony, but must rely upon the testimony of others who are qualified to give such testimony. We know of no rule which requires the supporting testimony of a party to an action in order to be entitled to the relief sought, when there is other competent evidence to establish his claim. We find no merit in this contention.

Under assignment of error No. 2, appellants contend that the Common Pleas Court was without jurisdiction on the appeal from the adverse decision of the Board of Review for the reason the wrong method of appeal was pursued from that decision. Appellants contend that the appeal from the decision of the Board of Review should have been to the Board of Tax Appeals under §5717.01 R. C., as a taxpayer, rather than under §5717.05 R. C., which provides for such appeal by the person in whose name the property is listed. Sec. 5717.01 R. C., so far as is pertinent to this question, provides:

“An appeal from a decision of a county board of revision may be taken to the board of tax appeals * * * by * * * any person * * * authorized by §5715.19 R. C. * * * to file complaints * * *.”

Appellants’ contention is that The Elder & Johnston Company, as a lessee, has no right to appeal under §5717.05 R. C., since this section provides a remedy only for the benefit of the owner of record. Sec. 5715.19 R. C., referred to in §5717.01 R. C. above quoted, reads in part as follows:

“Any taxpayer may file such a complaint as to the valuation or assessment of his own or another’s real property, * *

The record shows that both the owner of record, Frank B. Reibold, and the lessee-tenant, The Elder & Johnston Company, filed their joint complaint with the County Board of Revision and that in the same manner they filed their notice of appeal to the Common Pleas Court, and that both parties appeared at the hearing in the Common Pleas Court, with the same counsel, and prosecuted the appeal together. While this action was pending in the Common Pleas Court the said Frank B. Reibold deceased, and the action was revived in the’ name of his heirs and executor. If this appeal had been attempted by The Elder & Johnston Company alone as a lessee and tenant of said real estate, this assignment of error apparently would be well taken. However, we are not called upon to decide that question for the reason one of the appellants from the decision of the Board of Revision was the person in whose name the property was listed, Frank B. Reibold. We find no error in the lower court’s ruling overruling appellants’ motion to dismiss the appeal on this ground.

In their third assignment of error appellants contend that the lower court erred when it decreed the reappraisement was illegally made because the County Auditor did not personally make the appraisement as required by law. The County Auditor admits that he did not personally view the premises, take measurements, etc., and that as authorized by §5713.01 R. C., a private company engaged in the business of appraising real estate was employed by him to do the actual work in making the appraisal; that the County Auditor adopted the report of this private appraisement company on valuation for purpose of taxation. The trial court found as one of its separate conclusions of law that the reappraisal was illegal and in violation of §5713.01 R. C., which requires the County Auditor to make the appraisal personally. Said section provides in part as follows:

“The auditor shall assess all the real estate situated in the county at its true value in money. The auditor shall view and appraise each lot or parcel of real estate and the improvements located thereon at least once in each six-year period beginning with the year 1943.”

This statute further provides:

“The auditor, with the approval of the board of tax appeals, may appoint and employ such experts, deputies, clerks, or other employees as he deems necessary to the performance of his duties as assessor * * *.
“Such experts, deputies, clerks, and other employees, in addition to their other duties, shall perform such services as the auditor directs in ascertaining such facts, description, location, character, dimensions of buildings and improvements, and other circumstances reflecting upon the value of real estate as will aid the auditor in fixing its true value in money.”

It is true that this statute does provide that “the auditor shall view and appraise each lot or parcel of real estate and the improvements located thereon,” but it also provides that the auditor may employ experts, deputies and clerks who shall perform such services as the auditor directs in ascertaining description, location, character and dimensions of buildings and improvements and determine other circumstances reflecting upon the value of real estate. It seems clear that the Legislature did not intend that the auditor be given the impossible task of personally viewing and appraising each lot or parcel of real estate and the improvements located thereon, when in the same statute it is further provided that he may employ experts and deputies in ascertaining such facts as will aid the auditor in fixing its true value in money. So far as we are able to determine, this statute has never been construed by a reviewing court in Ohio. However, in Smith v. Board of Revision of Washington County, 138 Oh St 564, the Supreme Court, in affirming a decision of the Board of Revision, quoted from the report of a private Company which made the appraisal and thus, tacitly at least, gave approval to such method of appraising real estate. It is a general rule of statutory construction that “the General Assembly will not be assumed, or presumed, to have intended to enact a law producing unreasonable or absurd consequences.” 37 O. Jur., Statutes, Section 352, p. 643. To require the county auditor to actually view each lot and parcel of land in Montgomery County would certainly produce unreasonable and absurd consequences. In our opinion, this statute is not that exacting in its requirements. The statute expressly provides for the appointment of deputies, experts and clerks to do the actual work in making the appraisement under the direction of the auditor and, when the auditor adopts the findings of the appraisers who have workd under his direction, the requirements of the statute have been complied with and a valid appraisement has been made.

The trial court erred in its conclusion of law under this assignment of error, but such conclusion is not reversible error because of the nature of this appeal. Sec. 5717.05 U. C., which provides the remedy of an owner of real estate to appeal to the Common Pleas Court from an adverse decision of a Board of Revision, enjoins a duty upon the Common Pleas Court in such appeal to “determine the true value in money of the property whose valuation or assessment for taxation by the county board of revision is complained of, and the court shall determine the liability of the property for assessment for taxation * *

Although in error as to the legality of the reappraisement, the trial court correctly proceeded to make that determination, i. e., of the true value in money of the property in question.

The 4th, 5th, 6th and 7th assignments of error listed present the controlling question whether the final order of the Common Pleas Court results in a fair reappraisal of the appellees’ property. Appellants contend in these four assignments of error that the lower court erred when it increased the functional depreciation of the building owned by the Reibolds from 30% allowed in the reappraisal to 40%; that the court erred when it decreed the property was not appraised with due regard to all factors which influence and determine the value of the property and that the auditor and Board of Revision acted unreasonably and contrary to law; that the lower court erred when it decreed that the valuation was not the product of the application of an equal and uniform rule; and that the lower court erred in ordering a refund to appellee in the years 1952 and 1953 in the amount stated in the judgment entry.

Obviously, the lower court was in a much better position to determine the true value in money of this property than was the County Auditor and the Board of Revision for the reason that court had the benefit of the testimony of expert witnesses called by both parties, who laid before the court a complete picture of the property in question as to the location in relation to other property in the central business district of Dayton, comparative valuations placed on nearby parcels of real estate, the physical condition of the property as to modernization, trend of progress in volume of business, available parking space, suitability of the property for business purposes, income on investment, and all such matters as influence and determine the value of property.

The lower court, in its thirty-seven separate findings of fact, gave full consideration to about every pertinent factor to be considered in determining the value of real estate. In our opinion the court was well justified in increasing the functional depreciation of the building from 30% allowed by the appellants to 40%. Also, the lower court was justified in finding that the reappraisement was not the product of the application of an equal and uniform rule. The property in question is located in the southern portion of the central business district of Dayton and the evidence discloses that the business trend is in a northerly direction. In our opinion, the appellants did nor give due consideration to this fact, and did not allow enough for obsolescence of appellees’ property.

The appellees continued to pay taxes on the valuation fixed by the County Auditor and Board of Revision during the pendency of this appeal, and the trial court correctly ordered a refund for the years 1952 and 1953 on the basis of the value determined by that court.

As suggested on page 12 of appellants’ brief, “true value of real estate in money is nothing, nor can it ever be, but opinion.”

Reviewing courts are reluctant to disturb a verdict or finding based on a mere difference of opinion. In the case of Fosdick v. Cincinnati, 19 Abs 574, it is said:

“In no case is the court authorized to reverse on the ground of the weight of the evidence excepting when it is able to say that reasonable minds could not differ. In a case where the issue is one that is not susceptible of exact knowledge and rests wholly in opinion and judgment, there is, added reason for having regard for the determination of the jury.”

See also Gano v. Railway Co., 33 Oh Ap 142, 168 N. E., 566; Batterman v. Cleveland, 18 C. C. (NS), 446, and Maxa v. Cleveland Union Terminal Company, 2 Abs 661.

Por the reasons above set forth the judgment of the Court of Common Pleas in this cause is affirmed.

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


author: By GARY, J.

text:
    STATE, ex rel. MARSHALL, Complainant, v. STEINBAUGH, Defendant.
    Juvenile Court, Muskingum County.
    No. 304.

      Leasure & Micheli, for complainant.
    Ross Johnson, for defendant.
   OPINION

By GARY, J.

This case arises out of a paternity action which was filed in this Court on the 13th day of November, 1939. Defendant was found by the Jury to be the father of complainant’s child at a hearing on November 24, 1939. Judgment was rendered upon the verdict finding the defendant to be the reputed father of complainant’s child and complainant was awarded $327.00 for payment of costs incident to childbirth, and defendant was also ordered to pay $3.50 per week support beginning the 25th day of November, 1939. The defendant paid a total of $45.00 to complainant during the time from November 25, 1939 until December 13, 1955, at which time he paid the support from December 13, 1955, until May 1, 1956, being the time the said child became eighteen years of age.

This matter now is heard on the motion of complainant to reduce the support installments to a lump sum judgment together with judgment for $327.00 which had been allowed for expenses. The defendant has filed an answer in which he set up three defenses. The first defense is that the court is without jurisdiction to render a judgment in this case. The second defense is a general denial and the third defense is a plea of the Statute of Limitations in that the support order was made on November 24, 1939, and that the court is without jurisdiction to grant a judgment at this time due to the Statute of Limitations. We will consider the defenses in the order presented.

In regard to the first defense it has been held by the Supreme Court in the case of Roach v. Roach, 164 Oh St 587, that a Court has jurisdiction in a divorce action to reduce installments payments to a lump sum judgment. The Court of Appeals in the case of State, ex rel. Niven v. Tomblin, 82 Oh Ap 376, has held that the same jurisdiction applies to orders in cases of illegitimate children that applies to modification of orders in divorce actions. In view of the clear holding of the courts in these cases I believe there is no question that the court has continuing jurisdiction in the present case and that the motion of complainant to reduce the delinquent installments to a lump sum judgment is properly filed herein.

The second defense is a general denial. In as much as all of the matters in question are a matter of record in this Court and the Court’s findings are based upon the previous order and records of support payments, of all of which the Court can properly take judicial notice, the general denial is obviously not a good defense and of no avail.

The third defense raises a point of novelty and one which the Court is unable to find having been raised in any reported cases.' The Statute of Limitations in this State normally applies only to the commencement of an action. This is clearly stated in §2305.03 R. C. The general section for relief not provided elsewhere is §2305.14 R. C., and provides a 10 year Statute of Limitations. It is apparent that if such 10 year Statute applies the present action would be barred. However, it is the opinion of the Court that the Statute of Limitations has no bearing whatever on the present case since the Court has continuing jurisdiction and has authority to modify its order at any time while the child is still of an age that requires support. The child in this case did not become 18 years of age until May 1, 1956, and the motion to modify the order by reducing the support payments to a lump sum was filed on March 8, 1956. It is therefore clear that the court had jurisdiction at the time the motion was filed and that the Statute of Limitations is not a valid defense.

Judgment is rendered in favor of complainant in the sum of $2,867.00 with interest from March 8, 1956, and for the sum of $327.00 with interest from November 24, 1939, and for costs in this Court.


author: By FESS, J.

text:
    WOODARD, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5294.
    Decided November 28, 1955.
    Alfred J. Henney, Lewis F. Byers, Columbus, for plaintiff-appellant.
    Hon. C. William O’Neill, Atty. Geni., Paul Tague, Jr., James M. Videan, Asst. Attys. Geni., Columbus, for defendant-appellee.
    (FESS, J, of the Sixth District; NICHOLS, PJ, GRIFFITH, J, of the Seventh District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeal on questions of law from a judgment upon a verdict finding that plaintiff is not entitled to participate in the State Insurance Fund.

During the trial defendant’s counsel was permitted to read to the jury copies of letters and entries in the Veterans Administration files concerning claims which plaintiff had had with that Administration. This material had been marked as exhibits at the hearing before the referee, but had been excluded upon plaintiff’s objection thereto. The exhibits were not included in the transcript certified by the secretary of the Commission nor do they appear in the record on this appeal. After defendant rested plaintiff renewed his objection to the exhibits on the ground that they contained interlineations and contained incompetent, irrelevant and immaterial matter prejudicial to the plaintiff. The Court said: “The objection is overruled with the exception that the exhibit has been changed somewhat by interlipeation, and I am going tp allow counsel to read it and not let it go to the jury for their examination. It is admitted for the purpose of reading to the jury.”

Thereupon the exhibits were read to the jury.

The exhibits are not in the record for examination by this Court, but it is conceded in the briefs that they directly contradict the evidence of plaintiff that he had been in good health before his alleged injury.

Counsel for plaintiff did not object to the introduction of the exhibits on the ground that they were not a part of the record before the Commission, and no doubt the trial court was unaware of their inadmissibility on that ground. Although §4123.51 R. C. prior to its amendment provided that the court might admit in evidence such competent, material, or relevant evidence as was excluded by the Commission during rehearings, over objection of the party offering the same, nevertheless the exhibits in question were not made a part of the record. Therefore their admission at the trial constituted error prejudicial to the plaintiff.

Error is also assigned to the testimony of an attorney for the Cincinnati Regional Office of the Veterans Administration regarding proceedings on a claim for pension filed by plaintiff, and the admission of such records as exhibits. Incident to the admission of this testimony and exhibits there was no compliance with the provisions of §12102-23 GC (§2317.40 R. C.) with respect to testimony of a custodian thereof as to its identity and mode of preparation, etc. The admission of such hearsay evidence was prejudicial to plaintiff.

Other errors assigned are found not well taken or nonprejudicial.

The judgment of the Common Pleas Court is reversed and the cause remanded thereto for a new trial.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By DOYLE, J.

text:
    CLEVELAND TRUST CO., Trustee etc., Appellee, v. MANCHESTER et al, Appellants, et al.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23231.
    Decided February 1, 1956.
    Baker, Hostetler & Patterson, for appellee.
    Van Aken, Whiting, Arnold & Nash, Amerman, McHenry, Jones & Morgan, for appellants Ida Austin Manchester, et al.
    Jamison, Ulrich, Hope, Johnson & Burt, for appellant Fred O. Burk-halter, Guardian ad Litem for Robert Mack, a minor, etc., et al., etc.
    Arter, Hadden, Wykoff & Van Duzer, for appellants Ida Stewart Austin, et al.
    (Judges of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.

It appears that in the above-entitled cause several motions or pleadings have been filed since the original hearing. This memorandum shall be the authority for the inclusion of these findings in a journal entry or journal entries.

1. Application for a rehearing by Austin family defendants, in which it is requested:

(a) That the decision be modified to provide for a majority decision in arbitration instead of the requirement of a unanimous vote.

(b) That the decision be modified to permit accumulated dividends to follow the stock.

A rehearing will be denied. However, upon further consideration of the point under (a) above, the former ruling that all arbitrators must concur in their work of arbitrating will be modified to allow an arbitration to be made upon the concurrence of a majority thereof.

Under (b) above, the motion for modification will be overruled.

2. Application of Ida Austin Manchester, et al., for a rehearing, in which they claim that:

“1. The ‘fair and reasonable’ value of the trust shares furnishes a different standard or guide for price than does ‘market value.’
“2. That settlors did not intend the use of one standard by the trustee, and another, entirely different, by the arbitrators.
“3. As indicated by the opinion, the settlors did not intend the use of ‘market’ value as a standard of price by the trustee.”

In respect to this motion, a rehearing will be denied.

The phrases “fair and reasonable value” and “fair market value” are used in the finding of this court as synonymous, and have a definite legal meaning.

It is further ruled that the Manchester exhibits 1-D and 2-D will not be admitted in evidence.

3. Other motions than those noted above which appear of record in this case are overruled, and the various applications are denied.

Counsel will prepare a journal entry embodying the findings of this court.

STEVENS, PJ, HUNSICKER, J, concur.