text:
    STATE, EX COATNEY, Plaintiff, v. HORSTMAN, Chairman et, and MONTGOMERY COUNTY BOARD OF ELECTIONS, Defendant.
    Common Pleas Court, Montgomery County.
    No. 108284.
    Decided May 13, 1955.

      Myers, Mills, Boesch & Cline, Dayton, for relator.
    Mathias H. Heck, Montgomery County Prosecutor, By: John P. McHugh, Edward J. Graef, Jr., Dayton, as Agent and Attorney for other detaching petitioners.
   OPINION

By McBRIDE, J.:

This is an original action in mandamus for a writ against the Board of Elections to require the Board to order an election on what is described as the Coatney petition for detachment from Kettering. The matter was argued and submitted on demurrer.

The petition alleges as a fact that the Coatney petition contained the essentials required by §709.39 R. C. It further alleges that the Board met on April 29, 1955 and found that, as alleged,

“* * * on the basis of the confusion in the map due to boundary lines being drawn in different colored pencils and on the basis of the uncertainty as to what maps were- circulated with the petitions, the Board finds that Mr. Coatney’s petition does not comply with §709.39 R. C. and *.* *.”

The additional reason based upon the Supreme Court decision in the census case has been decided on demurrer in State, ex rel, Graef, Jr., v. Board, No. 2342 of the Court of Appeals, May 6th, 1955, and there is, therefore, no doubt on that phase of the law. Refusal to act on moral, rather than legal grounds is an abuse of discretion by the Board. In the instant case, the Board did perform the duty required by law. It found, according to the petition, adversely to the relator as to the accuracy and preparation of the petition and, having so found, it had a mandatory duty under §709.39 R. C. to refuse the election and proceed no further.

Relator alleges in the final paragraph that in doing so the Board committed a gross abuse of discretion and illegally failed to perform a duty. This is a pure conclusion not supported by the facts alleged. The demurrer tests the legal sufficiency of facts properly set forth in the petition. For this purpose only, the demurrer admits that which is well pleaded; it does not admit conclusions of law or of fact which are not proper in the pleading.

Authority to decide such issues is placed by law in the Board and not in the courts. The courts may compel, but not control such decisions, unless there is alleged, or proven, if heard on the merits, facts which establish either an abuse of discretion or a violation of statute. In Sullivan v. State, 125 Oh St at page 392, the Supreme Court said:

“By the repeated declarations of this court, allegations of fraud, corruption, or. abuse of discretion must be specific.”

No allegations of this character appear in the instant petition.

Sec. 709.39 R. C. provides:

“If a majority of the ballots cast at such election ¡are cast against detachment, no further proceedings shall be had in relation thereto for a period of two years.”

It is only necessary to indicate that complications that might arise from judicial control of elections are sufficient to justify the wisdom of the legislature which placed the responsibility for the decision to call an election for detachment with the Board of Elections. In this instance, the Board allowed one petition, involved in this Court in Case No. 108,273, and disallowed the other, with which we are concerned in this case.

The allegations of the 'petition are not legally sufficient to constitute a cause of action. Demurrer sustained.


source: Caselaw Access Project

author: By NICHOLS, J.

license: Public Domain

text:
    FERNBERG, d. b. a. KINKY DINKS, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL et, etc., Appellees-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5095.
    Decided November 4, 1954.

      John B. Freiden, Cincinnati, for appellant-appellee.
    Hon. C. William O’Neill, Attl. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellees-appellants.
    (MONTGOMERY, PJ, of the Fifth District, and GRIFFITH and NICHOLS, JJ, of the Seventh District, sitting by designation.)
   OPINION

By NICHOLS, J.

This cause is in this Court on an appeal on questions of law from a judgment of the Court of Common Pleas of Franklin County, reversing the decision of the Board of Liquor Control wherein the Board affirmed a rejection by the Director of Liquor Control of a renewal application of the plaintiff for a Class D-5 permit, the permit holder having appealed to the Board from the decision of the Director and such appeal having been heard by the Board upon the evidence adduced before it. Upon the hearing on such appeal the Board found that numerous instances of disorderly conduct have taken place on the premises of.the permit holder; that she had knowingly and wilfully allowed upon the permit premises, without any attempt to suppress the same, improper conduct and improper disturbances, to wit, drunkenness, brawls and fighting among the patrons, and that a great number of arrests with subsequent convictions for drunkenness, disorderly conduct, carrying concealed weapons, and prostitution had been made on the premises of the permit holder and that by reason thereof such permit holder is not entitled to the renewal of a Class D-5 permit. From the decision of the Board of Liquor Control, Mae Fernberg, doing business as Hinky Dinks, S. E. Corner Third and Sycamore Streets, Cincinnati, Ohio, appealed to the Common Pleas Court of Franklin County wherein such Court reversed the action of the Board of Liquor Control and ordered that the permit be renewed, the Common Pleas Court finding that there was in the record no reliable, probative and substantial evidence, to support the decision of the Board of Liquor Control. The question before this Court of Appeals is whether the record of the testimony and exhibits taken before the Board of Liquor Control presents reliable, probative and substantial evidence upon which to refuse renewal of the permit and whether such renewal would prejudice good order, decency and sobriety.

Sec. 4301.27 R. C., provides that the Board of Liquor Control may revoke or cancel any permit on its own initiative or on complaint of the Department of Liquor Control, after a hearing at which the holder shall be given an opportunity to be heard and upon such notice as prescribed by the Rules and regulations of the Board.

Sec. 4301.28 R. C., provides that any person aggrieved may appeal to the Board of Liquor Control from the action of the Department of Liquor Control in refusing to issue a permit.

Sec. 4301.03 R. C., authorizes the Board of Liquor Control to adopt and promulgate, repeal, rescind, and amend, in the manner required by this section, rules, regulations, standards, requirements, and orders necessary to carry out Chapters 4301 and 4303 R. C., Including:

“Rules, regulations, and orders providing in detail for the conduct of any retail business authorized under permits issued pursuant to such chapters, with a view to insuring compliance with such chapters and laws relative thereto, and the maintenance of public decency, sobriety, and good order in any place licensed under such permits.”

Sec. 4301.04 R. C., provides, among other powers of the Board of Liquor Control, that it “may suspend, revoke and cancel permits.”

Sec. 119.12 R. C., a part of the Administrative Procedure Act, provides that any party adversely affected by any order of an agency issued pursuant to an adjudication denying the issuance or renewal of a license, may appeal to the Court of Common Pleas of Franklin County. The Court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire, record, that the order is supported by reliable, probative and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative and substantial evidence and is in accordance with law. The decision of the Court shall be final and conclusive unless reversed, vacated, or modified on appeal. Although the Supreme Court of Ohio, under date of February 10, 1954, in case Miller v. Bureau of Unemployment Compensation, 160 Oh St 561, held that there was no authority for the prosecution of an appeal by an administrative agency to the Court of Appeals, it is apparent that the Supreme Court at the time of such decision did not have knowledge of the fact that the Legislature by amendment effective October 21, 1953, had expressly provided for an appeal by the administrative agency. This Court of Appeals had so previously held in the case of State of Ohio, ex rel. Argonne Post No. 545, American Legion, Department of Ohio, Toledo, Ohio, v. Board of Liquor Control, decided November 30, 1953, in an opinion written by the author of the opinion in the present case. From an analysis of the applicable provisions with reference to the duties of the Director of Liquor Control and the Board of Liquor Control, the jurisdiction and authority of the Court of Common Pleas upon appeal, as well as the jurisdiction of the Court of Appeals upon review of a judgment of the Court of Common Pleas, it is apparent that the Court of Appeals may reverse the judgment of the Common Pleas Court if the Court of Appeals upon the entire record shall find that the action of the Board of Liquor Control in refusing to renew the permit of a licensee is founded upon evidence having a probative and substantial relation to the establishment and maintenance of sobriety and good order upon the permit premises and its environs, and is conducive to the establishment and maintenance of public decency, sobriety and good order generally.

Proceeding now to investigate the evidence which was before the Board of Liquor Control and which was the same evidence upon which the appeal was prosecuted to the Common Pleas Court of Franklin County, we find conditions existing upon the permit premises of Mae Fernberg, d. b. a. Hinky Dinks, the evidence of which was so sordid that the Common Pleas Court felt it improper to recite the same and this Court will not go into detail in a recitation of the occurrences upon such premises which, in our opinion, establish these premises as a place where common prostitutes were accustomed to frequent, plying their trade in the premises, inviting men to go with them to rooms where sexual, intercourse was indulged, and where upon such premises there were many brawls, where patrons were sitting at tables in a drunken condition, with intoxicants in front of them, where patrons were found with dangerous weapons upon their persons and where apparently from the evidence and the frequency with which the police officers had been called to the permit premises to make arrests and where upon such arrests the persons arrested were convicted in the Municipal Court of Cincinnati of various crimes charged against them, and from all of the evidence shown in the record it is clear to this -Court that the business operated at the place known as Hinky Dinks constituted a bawdy house of the worst character, and as to which the proprietor of the business or her agents or employees made little or no effort to suppress the sordid conduct carried on therein, although from the frequency of such conduct the proprietor and her employees could not have failed to' be cognizant. This Court finds specifically that there is abundant evidence shown in the transcript of the testimony before the Board of Liquor Control of probative, reliable and substantial nature which properly and legally authorized the Board to deny the renewal of an application for the permit, as shown by its decision, and that the Common Pleas Court was in error in reversing the judgment of the Board of Liquor Control and in enjoining the Board from interfering with the business conducted at the place known as Hinky Dinks.

The judgment of the Common Pleas Court is therefore reversed, held for naught and the injunction issued by that Court is dissolved.

MONTGOMERY and GRIFFITH, JJ, concur,


author: By McBRIDE, J.:

text:
    STATE, ex HECK, Pros. Atty., Plaintiff, v. GRILLOT et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 108508.
    Decided August 1, 1955.
    Mathias H. Heck, Prosecuting Attorney, by John P. McHugh, Assistant Prosecuting Attorney, Dayton, for plaintiff.
    Charles P. Pfarrer, and Horace J. Boesch, Dayton, for defendants.
   OPINION

By McBRIDE, J.:

This case is pending on the application of the State of Ohio for a temporary order to enjoin the defendants, owners and operators of the South Dayton Dump, from using the premises for the accumulation, open burning and unsanitary disposition of public garbage, refuse and industrial wastes for the reason that said private business operation constitutes a public nuisance and endangers the lives, health and property of the community. Twenty witnesses were heard and the matter- submitted on the testimony and oral arguments.

The testimony is undisputed that the South Dayton Dump receives and burns approximately half of the non-segregated garbage and household trash privately collected in the City of Kettering, all of the household trash from the municipal collections of the City of Oakwood, and most of the industrial and commercial wastes created within the City of Dayton and Montgomery County.

The operation at the dump includes the burning of customary industrial and builders wastes, metals, paints, cans, furniture, rubber, old tires and similar articles of every description which produce sharp, obnoxious and aggravating odors, fly and burning ashes, and smoke which is carried by the prevailing winds usually into residential and other areas in the City of Dayton. The extent of the defendants’ operation is apparent from their estimate that they dispose of approximately three-fourths of a million cubic yards of materials per year, only ten per cent of which is solids used for filling rather than burning.

The defendants conceded in testimony and argument that the South Broadway Dump constituted a public nuisance prior to their taking over its operation about five years ago.

The court observes that the defendants have improved the physical appearance and usefulness of the area in front of the dump and have adopted a plan of rotating dumping and surface burning so that through the constant daily and multiple burning larger infrequent conflagrations are avoided. These efforts improved physical appearances without effecting any improvement over the ancient but offensive and unsanitary method of open burning disposal. No scientific improvement or modern disposal method has been adopted. The large increase in volume disposed of through burning in recent years as a result of residential and industrial expansion has extended the injurious effects of the smoke, odors and other incidents of a burning dump in spite of defendants’ more frequent burning.

The defendants’ distinction between the prior admitted nuisance operation and existing conditions is without any substantial difference.

It is sufficient to note here that this court, as early as 1934, held that the dumping of garbage, even without burning, by the City of Dayton, constituted a nuisance. Pansing v. Lightner 32 ONP (NS) 376. A collection of garbage and similar putrescent material is a nuisance per se when accompanied by open dumping or unsanitary disposal. Accumulated in' quantities along with burnable and non-burnable general household rubbish, the mixture is equally a nuisance when disposed of in an open fire. A dump, non-putrescent refuse and smoke are not nuisances per se, but when accompanied by constant burning, obnoxious burning odors and rats, particularly near a populated area, the operation of a burning dump is a public nuisance, irrespective of the existence of other nuisances in the area. In this respect the large, unsanitary garbage pit or fill operated by the City of Dayton without cover equally appears to be a public nuisance.

The systematic burning of certain industrial waste has also been declared to be a nuisance. Kepler v. Industrial Disposal Company, 84 Oh Ap 80, 39 OO 11. While the defendants have partially endeavored to reduce the garbage and odor producing industrial wastes, such as rubber, metals and the like, the record indicates that they are present in substantial quantities and ignited six. days a week.

This court has for many years found nuisances to exist in the indifferent and unsanitary public and private disposal methods practiced in this county. The basic solution of the problem is still neglected. It is argued that in spite of the nuisance the services of the privately operated South Dayton Dump are so essential that its closing should not be ordered. Followed to its logical conclusion, this argument would justify the sacrifice of private and public rights and renunciation of the law and the function of the court.

' The court finds that the State of Ohio has clearly established that the systematic dumping and burning of huge quantities of garbage, refuse and industrial wastes on the premises produces noxious, obnoxious and offensive smells, odors, fly and burning ash, smoke, and harbors rats, all of which is injurious to the health, comfort and property of the community, and that this unsanitary condition constitutes a public nuisance; that great, irreparable public injury will result unless a temporary order is issued as urged by the plaintiff and by the Montgomery County Health Comissioner.

The court has recently experimented with restricted operation of dumps. Restrictions protect and encourage the nuisance and create constant contempts by individuals unwilling or unable to meet the public problem.. Failure of the County Health Department to adopt general regulations or any other public authority to provide strict controls is another factor that makes restricted operation of burning by court order an impossibibity in unsupervised disposal areas.

ORDER

IT IS THEREFORE ORDERED BY THE COURT that a temporary injunction be, and the same is hereby granted restraining the defendants, and each of them, from depositing, or permitting others to deposit, dump or burn garbage, refuse, industrial and other wastes upon the premises involved herein after Wednesday, August 31st, 1955. Those portions of the premises heretofore used for dumping or burning shall remain fenced and treated daily continuously for two weeks with an adequate supply of rat poison and completely covered with earth.

It is further provided, however, that after August 31st, 1955, garbage, refuse and industrial wastes and other materials may be BURIED on the premises on the following conditions:

(1) All such materials must be completely covered daily and at the end of each day’s operation;

(2) Such operations must be carried on without any burning on the premises;

(31 All materials must be buried according to the trench or cell method of sanitary landfill as approved by State and Federal Public Health authorities, or according to any other general regulations adopted by the Montgomery County Board of Health or other lawful authorities.

PURPOSE AND MODIFICATIONS

It is the purpose of the court to permit the defendants to continue without restrictions until September 1st, 1955, after which time the burning of garbage and household refuse from every source is prohibited. Thirty days is a reasonable time within which to require the defendants to convert to a sanitary landfill for disposal of garbage and household refuse, or, in the alternative, to enable private haulers and disposal operators to meet the problem.

It is also the purpose of the court, if strict public or private supervision can be obtained, to thereafter permit the defendants to continue to burn industrial and builders wastes until November 1st, 1955.

Provision may thus be made to give priority to the urgent problem of disposal of public garbage and refuse prior to meeting the problem of disposal of industrial wastes.

Therefore, it is provided further, that because of the “immediate emergency,” as described by Dr. Pansing, now existing as a result of the increase in residential and industrial construction; and the proportionate increase in garbage, refuse and waste burning in recent years, and because forthwith execution of this order may precipitate a serious crisis, the court will consult with public officials and the parties for the purpose of securing temporary strict supervision which will insure performance of this order and also the possibility of future modifications of this order for the purpose of permitting:

(a) for a period until November 1st, 1955, the burning at the South Dayton Dump of materials other than garbage and household refuse.

(b) for an indefinite period, the use of a pit fill or modified land cover in lieu of a sanitary landfill for household refuse, other than garbage, if strictly separated at the source. This involves only the separated refuse, other than garbage, from Oakwood, which the testimony reveals is not strictly separated as required;

(c) for an indefinite period the supervised burning in separate areas of brush, trees and wood, but not paper, after inspection and approval of the material involved. Since all residential garbage is wrapped in paper in this community, it would be dangerous to permit the promiscuous burning of paper, especially near landfill operations.

      . This action was one of a series of such cases instituted against operators of burning dumps in Montgomery County, Ohio. Initially they were filed in the name of the State of Ohio, ex rel. Dr. Pansing as Health Commissioner under authority of the case of State, ex rel. Pansing v. Lightner, 32 O. N. P. (NS) 376, however, subsequent cases were all filed on relation of the county prosecutor pursuant to §§3767.03 and 3767.13 B. C., formerly §§6212-3 and 1264-6 GC. Nine such actions have been filed. Three voluntarily closed, two, including this case, were tried on the application for a temporary order, and four agreed to temporary or permanent orders.

      . Restrictions imposed in earlier cases included regulation of time, days and method of burning, rat extermination, prohibition against shooting rats, material and fire control and the like.

      . Operators involved in earlier cases were given four and five months within which to convert. For economic reasons the same conversion date was ordered for ¿11 operators involved.

      . The City Manager of Dayton testified that, if the South Dayton Dump were closed and it became necessary, the City of Dayton would within ninety days accept and dispose of all industrial waste created in the city and that such materials would be disposed of without open burning, probably by landfill rather than incineration.
      To carry out this modification the county commissioners authorized employment of an additional deputy sheriff for the purpose of enforcing the modifications of -“this order until November 1, 1955 and the commissioners authorized a nuisance inspector under the statute to enforce the other provisions of this and other orders issued by the court.


author: By FULTON, J.

text:
    BEACHWOOD (VILLAGE), Plaintiff-Appellee, v. LEUSER, Defendant-Appellant.
    Common Pleas Court, Cuyahoga County.
    No. 64890.

    Decided June 6, 1955.
    Wilmot, Baskin, Lausche & Kelley, Cleveland, for plaintiff-appellee.
    Horan & Bell, Cleveland, for defendant-appellant.
   OPINION

By FULTON, J.

This is an appeal by defendant-appellant from a conviction for violation of an ordinance, as amended, of the plaintiff Village. The ordinance provided for licensing those who “sell, or offer for sale, hawk, peddle, or vend goods or merchandise, produce of any kind, upon the streets * * * or to the residence”.

Defendant was agent and employee of Quaker Hill, Inc., of Newark, New Jersey, sellers, planners and by inference producers of landscaping shrubbery.

The question is the validity of the ordinances. The original ordinance (1949-23) contained four sections. Section 2 was amended by Ordinance 1953-54. This Court judicially notes the ordinances since the lower Court had knowledge of them. Cross v. Hodge Company, 132 Oh St 607; Strongsville v. McPhee, 142 Oh St 534; Cleveland v. Keah, 157 Oh St 332. The several sections including amended Section 2 of the later ordinance follow.

“Section 1: No person, .firm or corporation shall sell or offer for sale, hawk, peddle or vend any goods or merchandise, produce of any kind, upon the streets and highways, or public places, or to the residence of the Village of Beachwood, Ohio, unless he shall first have obtained a license so to do, provided in this ordinance.”

“Section 2: The marshal of the village, as the executive head of the Police Department of the Village, is hereby authorized to issue a license to sell, hawk, peddle, or vend to such applicants as are found by him to be of good reputation both as to the applicant and to the goods, produce, or services proposed to be sold. The marshal or officer in charge shall fingerprint every such applicant and shall investigate the reputation of the applicant, his financial responsibility, his prior activity, the goods, produce or service which he proposes to sell and such other matters as in the opinion of the marshal or the officer in charge of the Police Department may be deemed by him necessary for the protection of the peace, safety and welfare of the residents of the Village of Beachwood. If the marshal or officer in charge shall find that the type of service or method of selling or distribution may be hazardous, dangerous or a nuisance to the residents of the Village or may be detrimental to the peace, safety or welfare of the residents of the Village or that the reputation, previous record or financial responsibility of the applicant are unsatisfactory he shall refuse to issue a license. If, upon such examination, the marshal or officer in charge of the Police Department shall be of the opinion that the applicant is entitled to a license to sell, hawk, peddle, or vend the item of goods or merchandise, or services for which application is made, the marshal or the officer in charge of the Police Department shall, not sooner than two weeks from the date of the application, issue a license limited in time, as said marshal or officer in charge of the Police Department-may determine, to such applicant, which license shall be effective for such time as the marshal or the officer in charge of the Police Department shall determine, and shall be subject to renewal thereafter under the same conditions are provided herein.”

“Section 3: Any person, firm or corporation who is aggrieved by the decision of the marshal or the officer in charge of the Police Department in reference to the decision made relative to the issuance or denial of a license as provided in Section 1 hereof, may within ten days after the decision so made by the marshal or the officer in charge of the Police Department, appeal the decision so made to the Mayor of the Village. Such appeal shall be made in writing and shall state the grounds upon which the applicant claims the decision of the marshal or the officer in charge of the Police Department is erroneous or contrary to the facts in the case presented. The mayor shall thereupon, within thirty days, hold a hearing thereon, at which hearing he shall make inquiry into the facts as presented by the applicant as to his reputation and as to the goods, services or product he proposes to sell, and shall make inquiry from the marshal or the officer in charge of the Police Department as to the basis upon which the applicant was denied a license, and upon final hearing, of such facts presented and upon investigation as to such other matters or facts as the Mayor may find to be in the public interest, he shall, after consideration of all the issues presented, either affirm the decision of the marshal or the officer in charge of the Police Department, or overrule the same and grant a license under such terms and conditions as he may in his judgment prescribe as being in the interest, health, safety and welfare of the Village of Beachwood, and his decision shall be final.”

“Section 4: Penalty. Defendant Leuse-r worked for this Nursery Company of Newark, New Jersey, whose business was ‘primarily one of designing and soliciting orders * * The company’s product was sold on open account. On taking an order (Ex. A) no delivery was made. The delivery followed later by various inter-state means, namely, parcel post, railway express and freight.”

Defendant, in the course of his employment, was at a customer’s house when arrested. At this particular house he was seeking to replace some shrubbery earlier sold and delivered to the householder. He had solicited at another house before this on the day of his arrest. He stated that the business was conducted entirely in the customers’ houses.

While, as stated, the validity of the ordinances is presented the question of such validity and claim, at first, was on several grounds. There remains now only one asserted ground of invalidity. That ground is well stated in defendant-appellant’s brief:

“We agree that the sole issue herein is whether or not the ordinances in question, which require a license before solicitation of orders, are invalid and unconstitutional as to defendant’s interstate commerce business activity or otherwise.”

These ordinances, it seems, embrace subject matter contained in both §§715.63 and 715.64 K. C. and those statutes as well as these ordinances on other matters than “interstate commerce burdens” present interesting practical as well as legal and constitutional questions. None except the question of interstate commerce need be considered.

Therefore, this case will be decided without reference to the validity of these ordinances (1) on other than the question of interstate burden; and, again, without reference (2) to their applicability to those engaged in strictly “intrastate business”; and moreover (3) as affecting only this defendant-appellant under the particular facts of this case.

As applied to this defendant, who is an agent for and carrying on the interstate business of his principal and based upon and limiting it to the facts herein this ordinance is invalid because it places an undue burden on interstate commerce in violation of Article VIH of the Constitution of the United States. The extent, amount, velocity or volume of interference is immaterial. Impact thereon and against interstate commerce is enough.

Therefore, this ordinance as applied to this defendant in carrying on the interstate business of his master or principal, is invalid. This ordinance is regulatory and not prohibitory as in Beard v. Alexandria, 341 U. S. 622. A similar prohibition in this case might be upheld under the police power; but here the village does not invoke its police power (which necessarily should 'be consistent with State law) to prohibit a nuisance but the Village interferes with interstate commerce by the rein of licensure. The rein itself is a burden upon interstate commerce. This burden is accentuated by the two-weeks delay in licensure issue.

By reason of the foregoing the judgment and sentence of the lower Court is reversed, the appeal bond is released and discharged and the cost of the proceeding including cost of the Bill of Exceptions herein, is now assessed as part of the costs and adjudged against the Village of Beachwood.


author: By Mr. Justice FRANKFURTER. By Mr. Chief Justice WARREN. By Mr. Justice DOUGLAS.

text:
    AMALGAMATED CLOTHING WORKERS OF AMERICA et, Petitioners, v. RICHMAN BROTHERS.
    U. S. Supreme Court.
    No. 173.
    Decided April 4, 1955.

      William J. Isaacson, for petitioners.
    Luther Day, Cleveland, for respondent.
    Philip Elman, Washington, D. C., for N. L. R. B. amicus curiae by special leave of court.
   OPINION

By Mr. Justice FRANKFURTER.

In Weber v. Anheuser-Busch, Inc., 348 U. S. —, 75 S. Ct. 480, decided last Monday on writ of certiorari to the Missouri Supreme Court, we considered the jurisdiction of a state court to enjoin conduct which in one aspect brought it within exclusive federal authority under the TaftHartley Act and in another constituted a violation of a state statute against restraint of trade. In this case we have to decide the question whether, under similar circumstances, a union has open to it, without resorting to the appellate procedures of the state and eventually of this court, jurisdiction of a federal district court to enjoin the employer from pursuing his action in the state court.

Petitioner, an unincorporated association of clothing workers, was responsible for peaceful picketing of a number of respondent’s retail stores, presumably to compel its factory employees to join the union. Respondent, an Ohio corporation engaged in the manufacture and sale of men’s clothing in interstate commerce, filed suit in the Court of Common Pleas for Cuyahoga County, Ohio, alleging that the union’s conduct constituted a common-law conspiracy as well as a statutory and common-law restraint of trade. It prayed for temporary and permanent injunctions. The union brought proceedings to remove the case to the United States District Court for the Northern District of Ohio, claiming that the employer’s petition alleged facts bringing the case within the original jurisdiction of the District Court as a civil action arising under the Taft-Hartley Act, 29 U. S. C. A. §141 et seq. 28 U. S. C. §1337, 28 U. S. C. A. §1337. That court remanded the action to the state court on the ground that if, as the union contended, the complaint in effect alleged a violation of §8(Id) (1) (A) of the Taft-Hartley Act, under, the decision in Garner v. Teamsters, Chauffeurs and Helpers Local Union, No. 776 (A. F. L.), 346 U. S. 485, 74 S. Ct. 161, 98 L. Ed., 228, only the National Labor Relations Board had jurisdiction of its subject matter. Richman Brothers Co. v. Amalgamated Clothing Workers of America, D. C., 114 F. Supp. 185, rehearing denied, D. C., 116 F. Supp. 800.

Upon remand, the union invoked the ground taken by the District Court in denying its jurisdiction in a motion to dismiss the action in the state court. This motion was denied without opinion. The union then filed this complaint in the same District Court seeking an injunction which would require the employer to withdraw the action commenced in the state court. Jurisdiction was based on 28 U. S. C. §1337, 28 U. S. C. A. §1337. This provision confers jurisdiction on federal courts over any civil action arising under any Act of Congress regulating interstate commerce. The union also relied on 28 U. S. C. §1651, 28 U. S. C. A. §1651, the all-writs section. The District Court held that under 28 U. S. C. §2283, 28 U. S. C. A. §2283, which prohibits federal injunctions against state court proceedings, it was without power to grant the requested relief, inasmuch as the action did not come within any one of the exceptions to that general prohibition. The Court of Appeals for the Sixth Circuit unanimously affirmed, 211 F. 2d 449. The jurisdictional question is plainly important in this area of federal state relations and we granted certiorari, 348 U. S. 813, 75 S. Ct. 43.

Subsequent to the affirmance by the Court of Appeals, the Ohio Court of Common Pleas ruled favorably on the employer’s motion for a temporary injunction. Richman Brothers Co. v. Amalgamated Clothing Workers of America, Ohio Com Pl., 51 O. O. 145, 116 N. E. 2d 60.

1. Under the decision in Weber v. Anheuser-Busch, Inc., we may assume that the conduct in controversy is subject to whatever relief the Taft-Hartley Act may afford, and therefore is outside state authority. The question is whether a federal court may, before complaint has been entertained byv the board and at the request of one of the private parties, enjoin the attempt to secure relief through state proceedings.

We need not reexamine the series of decisions, prior to the enactment of Title 28 of the United State Code in 1948, which appeared to recognize implied exceptions to the historic prohibition against federal interference with state judicial proceedings. See Toucey v. New York Life Ins. Co., 314 U. S. 118, 62 S. Ct. 139, 86 L. Ed. 100. By that enactment, Congress made clear beyond cavil that the prohibition is not to be whittled away by judicial improvisation. Former §265 of the Judicial Code.provided:

“The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” 36 Stat. 1162.

The 1948 enactment revised as well as codified. The old section was thus embodied in the new §2283:

“A court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

In lieu of the bankruptcy exception of §265, Congress substituted a generalized phrase covering all exceptions, such as that of the Inter-pleader Act, 28 U. S. C. §2361, 28 U. S. C. A. §2361, to be found in federal statutes. Two newly formulated exceptions to the general prohibition deal with problems of judicial administration which had earlier been the subject of the series of decisions dealt with in the Toucey case. If confirmation of the comprehensive scope thus revealed on the face of the enactment were necessary, it is to be found in the reviser’s notes, which state:

“An exception as to Acts of Congress relating to bankruptcy was omitted and the general exception substituted to cover all exceptions.”

In the face of this carefully considered enactment, we cannot accept the argument of petitioner and the board, as amicus curiae, that §2283 does not apply whenever the moving party in the District Court alleges that the state court is “wholly without jurisdiction of the subject matter, having invaded a field preempted by Congress.” No such exception had been established by judicial decision under former §265. In any event, Congress has left no justification for its recognition now. This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions.

We are further admonished against taking the liberty of interpolation when Congress clearly left no room for it, by the inadmissibility of the assumption that ascertainment of preemption under the TaftHartley Act is self-determining or even easy. As we have noted in the Weber case, “the areas that have been preempted by federal authority and thereby withdrawn from state power are not susceptible of delimination by fixed metes and bounds.” 348 U. S. at page —, 75 S. Ct. at page 487. What is within exclusive federal authority may first have to be determined by this court to be so.

2. We turn, therefore, to the specific exemptions contained in §2283. The first of these permits an injunction to issue “as expressly authorized by Act of Congress.” In the present case we are directed to no “express” authorization within even the most attenuated meaning of the term. Of course no prescribed formula is required; an authorization need not expressly refer to §2283. But the only “express” authorization, in the freest use of the word, to be found in the Taft-Hartley Act does not help the petitioner. Congress has provided an administrative agency to pass on claims that rights granted by the act are denied or that restrictions imposed by the act are disregarded. Only after the board has found such claims to be well-founded and has formulated remedies for their vindication does the jurisdiction for review by the Court of Appeals come into being. However, injunctive relief or a temporary restraining order may be obtained by the board from the appropriate District Court, pending final adjudication by the board, “upon issuance of a complaint” by the board or when there is “reasonable cause to believe” in the truth of a charge that a party “has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B), or (C) of section 8(b).” Congress explicitly gave such jurisdiction to the district courts only on behalf of the board on a petition by it or “the officer or regional attorney to whom the matter may be referred.” §10'(j) (1) 61 Stat. 149, 29 U. S. C. §160 (j, 1) 29 U. S. C. A. §160 (j, 1). To hold that the Taft-Hartley Act also authorizes a private litigant to secure interim relief would be to ignore the closely circumscribed jurisdiction given to the District Court and to generalize where Congréss has chosen to specify. To find exclusive authority for relief vested in the board and not in private parties accords with other aspects of the act. See Amalgamated Utility Workers v. Consolidated Edison Co. of New York, 309 U. S. 261, 60 S. Ct. 561, 84 L. Ed. 738. Such was the authority recognized in Capital Service Inc. v. National Labor Relations Board, 347 U. S. 501, 74 S. Ct. 699, 98 L. Ed. 887.

But the argument is made that to permit the state courts to proceed unchecked in their incursion upon a federally preempted domain dislocates the federal scheme as a whole. This argument is only a rephrasing of the suggestion that whenever Congress is found to have preempted a field by legislation §2283 must yield. But its thrust is deeper in the particular circumstances of this case. If the employer’s use of the judicial process of the state does not amount to an unfair labor practice, and if the board is without power to seek an injunction before a complaint is filed with it, the federal mechanism will not be invoked and federally protected rights may be denied until the injunction is lifted. The employer, who might have brought a charge of an unfair labor practice before the board, has chosen to ignore his remedy under the Taft-Hartley Act. The temporary injunction which has been issued is not, under Ohio law, appealable, and the appellate procedures which will be available if a permanent injunction is issued are necessarily time-consuming. Thus, so the argument runs, unless the federal court can intervene, delay will not only undercut the legislative scheme, but opportunity for effective union activity may be diminished if not lost.

The assumption upon which the argument proceeds is that federal rights will not be adequately protected in the state courts, and the “gap” complained of is impatience with the appellate process if state courts go wrong. But during more than half of our history Congress, in establishing the jurisdiction of the lower federal courts, in the main relied on the adequacy of the state judicial systems to enforce federal rights, subject to review by this court. With limited exceptions it was not until 1875 that the lower federal courts were given general jurisdiction over federal questions. During that entire period, the vindication of federal rights depended upon the procedure which petitioner attacks as so grossly inadequate that it could not have been contemplated by Congress. The prohibition of §2283 is but continuing evidence of confidence in the state courts reinformed by a desire to avoid direct conflicts between state and federal courts.

We cannot assume that this confidence has been misplaced. Neither the proceedings in this case, nor the history of state court actions since the decision in Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776 (A. F. L.), 346 U. S. 485, 74 S. Ct. 161, 98 L. Ed. 228, demonstrate recalcitrance on the part of state courts to recognize the rather subtle line of demarcation between exclusive federal and allowable state jurisdiction over labor problems. In its effort to define what has been withdrawn from the states and what has been left them, the opinion in Garner, decided just last term, was hedged with qualifications, even in a case which dealt only with state court enforcement of a state labor policy as such.

Misapplication of this court’s opinions is not confined to the state courts, nor are delays in litigation peculiar to them. To permit the federal courts to interfere, as a matter of judicial notions of policy, may add to the number of courts which pass on a controversy before the rightful forum for its settlement is established. District Court’s assertion of equity power or its denial may in turn give rise to appellate review on this collateral issue. There may also be added an element of federal-state competition and conflict which may be trusted to be exploited and to complicate, not simplify, existing difficulties.

3. The exception to §2283 which permits the District Court to issue injunctions “where necessary in aid of its jurisdiction” remains to be considered. In no lawyer-like sense can the present proceeding be thought to be in aid of the District Court’s jurisdiction. Under no circumstances has the District Court jurisdiction to. enforce rights and duties which call for recognition by the board. Such nonexistent jurisdiction therefore cannot be aided.

Insofar as protection is needed for the board’s exercise of its jurisdiction, Congress has, as we have been, specifically provided for resort, but only by the board, to the District Court’s equity powers. Since the very presupposition of this proceeding is that jurisdiction of the subject matter of which the employer complained was in the board and not in the state court, any aid that is needed to protect jurisdiction is the aid which the board may need for the-safeguarding of its authority. Such aid only the board could seek, and only if in a case pending before it, it has satisfied itself as to the adequacy of the complaint.

It is urged that an.employer may deliberately prevent board action by going into a state court. For one thing, it has not yet been determined that, if an employer resorts to a státe court in relation to conduct that is obviously taken over by the' Taft-Hartley Act and outside the bounds of state .relief, it may not under appropriate circumstances give ground for a finding of an unfair labor practice. In any event, if resort to a state court may not be circumvented by the power of the board to entertain such a complaint, we are bound to repeat that, insofar as a penumbral region must remain between state and federal authority touching industrial relations until finally clarified by definitive rulings here or further legislation by Congress, state litigation must, in view of §2283, be allowed to run its course, including the ultimate reviewing power in this court.

Affirmed.

Mr. Justice HARLAN took no part in the consideration or decision of this case.

Mr. Chief Justice WARREN, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS concur, dissenting.

DISSENTING OPINION

By Mr. Chief Justice WARREN.

There can be no doubt from the limitations of 28 U. S: C. §2283, 28 O.S. C. A. §2283, that the District Court had jurisdiction under 28 U. S. C. §1337, 28 U. S. C. A. §1337 to issue the injunction sought by the union in this case. This court so held in Capital Service, Inc. v. National Labor Relations Board, 347 U. S. 501, 74 S. Ct. 699, 98 L. Ed. 887. It is true that the plaintiff in Capital Service was the National Labor Relations Board, but §1337 is general in terms and makes no distinction between public and private plaintiffs.

Thus, as in Capital Service, the question is whether §2283, on the facts of this case, precludes the exercise of jurisdiction under §1337. In Capital Service, the court stated, 347 U. S. at page 505, 74 S. Ct. at page 702: '

“In view of our ruling, we find it unnecessary to consider whether, apart from the specific exceptions contained in §2283, the District Court was justified in enjoining this intrusion on an exclusive federal jurisdiction. Cf. Bowles v. Willingham, 321 U. S. 503, 510-511, 64 S. Ct. 641, 645, 88 L. Ed. 892.”

That question is now here.

In the Willingham case, a landlord had obtained a state court injunction restraining the price administrator from issuing certain rent orders under the Emergency Price Control Act. The price administrator brought an action in a federal district court to enjoin enforcement of the state court injunction. Exclusive jurisdiction to determine the validity of rent orders, the administrator argued, was vested by Congress in the Emergency Court of Appeals. This court upheld the Administrator’s position. As one ground for its decision that §265 of the Judicial- Code — the predecessor of §2283 — was no bar to the injunction sought by the Administrator, the court stated, 321 U. S. at page 511, 64 S.Ct. at page 645:

“Congress thus preempted jurisdiction in favor of the Emergency Court to the exclusion of state courts. The rule expressed in §265 which is designed to avoid collisions between state and federal authorities (Toucey v. New York Life Ins. Co., supra) thus does not come into play.”

Thus stood the law in 1948 when §265 was succeeded by the present §2283.

Contrary to the suggestion of the majority opinion, §2283 is not broader in scope than its predecessor, §265. Indeed, the express purpose of §2283 was to contract — not expand — the prohibition of §265. The reviewers stated that “An exception as to Acts of Congress relating to bankruptcy was omitted and the general exception substituted to cover all exceptions.” (Emphasis added.) The only substantive change noted by the-revisers was an overruling of this court’s decision in Toucey v. New York Life Ins. Co., 314 U. S. 118, 62 S. Ct. 139, 86 L. Ed. 100. The Toucey decision held that §265 barred a federal court from enjoining a state court in personam proceeding involving a claim previously adjudicated by the federal court. The revisers, expressly approving the Toucey dissent, stated that “the revised section restores the basic law as generally understood and interpreted prior to the Toucey decision. Changes were made in phraseology.” By enacting §2283, Congress thus rejected the Toucey decision and its philosophy of judicial inflexibility. However imprecise may be the language of §2283, its legislative history makes it abundantly clear that the provision was not intended to repeal preexisting exceptions to §265.

To read §2283 literally — as the majority opinion does — ignores not only this legislative history but also over a century of judicial history In addition, for the reasons pointed out by Mr. Justice Douglas in his dissenting opinion, such a literal interpretation seriously frustrates a comprehensive regulatory scheme established by Congress for the resolution of the kind of labor dispute involved here. The board, although clearly having exclusive jurisdiction of the subject matter, cannot adjudicate the dispute as long as the employer does not file an unfair labor practice charge; and the employer has no incentive to do so as long as the state court injunction is outstanding. I would reverse.

Mr. Justice DOUGLAS, with whom the Chief Justice and Mr. Justice BLACK, concur, dissenting.

DISSENTING OPINION

By Mr. Justice DOUGLAS.

“A court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by the Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” So reads 28 U. S. C. §2283, 28 U. S. C. A. §2283. So read, apart from exceptions not relevant here, former §265 of the Judicial Code.

The purpose of the law, as explained in Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U. S. 4, 9, 60 S. Ct. 215, 218, 84 L. Ed. 537, was “to prevent needless friction between state and federal courts.” It is, however, construed and applied today in a way which can only defeat a federal regulatory scheme. Por today’s decision allows state courts to intrude in a domain where the federal agencies, i. e., the National Labor Relations Board and the District Court, have been granted primary and exclusive jurisdiction, without leaving the aggrieved party any effective relief.

This is not a case where the state court has concurrent jurisdiction with the federal agencies. The matter on which the state court takes hold has been preempted by the Congress and placed as firmly and completely in the federal domain as if Congress by express words had forbidden state courts to intrude. The addition of an express exception to §2283 would not make the congressional purpose any clearer.

Where Congress has made clear that federal agencies have exclusive jurisdiction of a controversy, that legislation should be taken to qualify §2283 pro tanto. That has been the view up to this time. The Removal Acts, starting with 1 Stat. 73, 79, allowed cases to be removed from state to federal courts, and provided that a case once removed passed beyond the jurisdiction of the state courts. Those acts were construed to qualify the predecessor of §2283. Dietzsch v. Huidekoper, 103 U. S. 494, 26 L. Ed. 497; Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239, 245, 25 S. Ct. 251, 253, 49 L. Ed. 462. The same construction was given an act of 1851 which limited the liability of shipowners and provided that, after a shipowner transfers his interest in the vessel to a trustee for the benefit of the claimants, “all claims and proceedings against the owner or owners shall cease.” 9 Stat. 635, 636. The court held in Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 600, 3 S. Ct. 379, 393, 617, 27 L. Ed. 1038, that despite the predecessor to §2283, the Limited Liability Act ousted the state courts, since otherwise the act would be thwarted

Those cases showed no clearer need for the qualification of §2283 pro tanto than does the Taft-Hartley Act.

The court has been ready to imply other exceptions to §2283, where the common sense of the situation required it. Thus, if the federal court first takes possession of a res, it may protect its control over it, even to the extent of enjoining a state court from interfering with the property. That result flies in the face of the literal words of §2283. Yet the injunction is allowed to issue as the preferable way of avoiding unseemly clashes between state and federal authorities. See Hagan v. Lucas, 10 Pet. 400, 403, 9 L. Ed. 470; Kline v. Burke Const. Co., 260 U. S. 226, 229, 235, 43 S. Ct. 79, 81, 83, 67 L. Ed. 226. Another illustration, as The Chief Justice points out, is Bowles v. Willingham, 321 U. S. 503, 64 S. Ct. 641, 88 L. Ed. 892, where the case for exclusive jurisdiction of the federal authorities was no stronger than the one now presented.

A like exception is needed here, if the state suit is not to dislocate severely the federal regulatory scheme. Under the present decision, an employer can move in the state courts for an injunction against the strike.^ The injunction, if granted, may for all practical purposes settle the matter. There is no way for the union to transfer the dispute to the federal board, for it seems to be assumed by both parties that the employer ljas committed no unfair labor practice. By today’s decision the federal court is powerless to .enjoin the state action. The case lingers on in the state court. There can be no appeal to this court from the temporary injunction. Montgomery Building & Construction Trades Council Union v. Ledbetter Erection Co., 344 U. S. 178, 73 S. Ct. 196, 97 L. Ed. 204. It may take substantial time in the trial court to prepare a record to support a permanent injunction. Once one is granted, the long, drawn-out appeal through the state heirarchy and on to this court commences. Yet by the time this court decides that from the very beginning the state court had no jurisdiction, as it must under the principle of Garner v. Teamsters, Chauffeurs and Helpers Local Union, No. 776 (A. F. L.), 346 U. S. 485, 74 S. Ct. 161, 98 L. Ed. 228, a year or more has passed; and time alone has probably defeated the claim.

• That course undermines the federal regulation; it emasculates the federal remedy; it allows one party to a labor-management controversy to circumvent the law which Congress enacted to resolve these disputes.

The federal regulatory scheme cries out for protection against these tactics of evasion. No one is in a position to seek the protection of the federal court, except the federal board or a party to the dispute who is aggrieved. Either should be allowed standing under the principle of Capital Service, Inc. v. National Labor Relations Board, 347 U. S. 501, 74 S. Ct. 699, 98 L. Ed. 887, to invoke the jurisdiction of the federal court. Certainly a suit to protect the exclusive jurisdiction of federal agencies under the Taft-Hartley Act is a suit “arising-under any act of Congress regulating commerce” within the meaning of 28 U. S. C. §1337, 28 U. S. C. A. §1337. See Capital Service, Inc. v. National Labor Relations Board, supra, 347 U. S. 504, 74 S. Ct. 701.

      . H. R. Rep. No. 308, 80th Cong., 1st Sess. A-182. Petitioner and the Board, as amicus curiae, emphasize the statement in the reviser’s notes that “the revised section restores the basic law as generally understood and interpreted prior to the Toucy [sic] decision.” Even if taken to mean that, despite the revised wording, the section is to derive its content from uncritical language in some decisions prior to 1948, it does not serve as precedent for the present proceeding. See note 2, infra. Moreover, in context it is clear that the quoted phrase refers only to the particular problem which was before the Court in the Toucey case.

      . The statement in Bowles v. Willingham, 321 U. S. 503, 511, 64 S. Ct. 641, 645, 88 L. Ed. 892, 28 O. O. 180, that “Congress thus preempted jurisdiction in favor of the Emergency Court to the exclusion of state courts. The rule expressed in §265 which is designed to avoid collisions between state and federal authorities * * * thus does not come into play,” must be read in the context of the scheme of the Emergency Price Control Act of 1942, 56 Stat. 23, and particularly the authority in that Act for resort by the Administrator of the Office of Price Administration to injunctive relief under the circumstances there presented. §205(a), 56 Stat. 33. It is also to be noted that this observation was made prior to the revision of 1948.

      . A temporary injunction which merely serves to preserve the status quo pending- the hearing on a request for a permanent injunction is not a final order appealable under §§2505.02, 2505.03 of Page’s Ohio Rev. Code 1954. May Co. v. Bailey Co., 81 Oh St 471, 91 N. E. 183; Tipling v. Randall Park Holding Co., 94 Oh Ap 505, 52 O. O. 278, 114 N. E. 2d 279.

      . With the exception of the short lived “Midnight .Judges” Act of February 13, 1801, 2 Stat. 89, repealed on March 8, 1802, 2 Stat. 132, the so-called federal specialties, and specific ad hoc grants of jurisdiction, enforcement of federal rights was confined to the state courts prior to the Act of March 3, 1875, 18 Stat. 470. See 13 Cornell L. Q. 499, 607-609.

      . We have been referred by petitioner to decisions in the lower federal courts under 28 U. S. C. §1651, 28 U. S. C. A. §1651, and its antecedents holding that the Court of Appeals may resort to writ of mandamus or prohibition “in aid of its jurisdiction” to prevent a district court from acting in a manner which would defeat the Court of Appeals’ power of review. These decisions might be more relevant had the injunction been sought from the Court of Appeals. Only that court has power to review decisions of the board. In any event, it has never been authoritatively suggested that this example of injunctive aid to a potential jurisdiction, which finds roots in traditional concepts of the relationship between inferior and superior courts of the same judicial system, has any relevance where the offending action sought to be enjoined is insullated by two intervening and essentially unrelated systems, one of an administrative rather than judicial nature, the other the manifestation of a distinct sovereign authority.

      . In W. T. Carter and Brother, 90 N. L. R. B. 2020, the board has held that an employer’s action in procuring a state court injunction prohibiting federally protected employee activities constitutes a violation of §8 (a) (1) of the Act which designates as an unfair labor practice an employer’s restraint of employees in the exercise of rights guaranteed under §7. The board now argues that this case is limited to situations in which the employer’s resort to the state court is part of a bad faith scheme to defeat union organization and the underlying union conduct which has been enjoined is protected under the Taft-Hartley Act.

      . Section 2283 provides:
      “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

      . Section 1337 provides:
      “The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies,”

      . Section 265 provided:
      “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.”

      . See also Hale v. Bimco Trading, Inc., 306 U. S. 375, 378, 59 S. Ct. 526, 527, 83 L. Ed. 771; Wells Fargo & Co. v. Taylor, 254 U. S. 175, 183, 41 S. Ct. 93, 96, 65 L. Ed. 205.

      . H. R. Rep. No. 308, 80th Cong., 1st Sess., p. A181.

      . Id., p. A182.

      . See Moore’s Commentary on the U. S. Judicial Code 407, 410 (1949); Note, 48 Nw. U. L. Rev. 383 (1953).

      . See Hart and Wechsler, The Federal Courts and The Federal System, 1075-1076 (1953); Moore’s Commentary on the. U. S. Judicial Code 395-407, 410 (1949).


author: By MILLER, J.: By HORNBECK, J,

text:
    STATE, ex EVANS, Plaintiff, v. ECKLE, SUPT., LONDON PRISON FARM, Defendant.
    Ohio Appeals, Second District, Madison County.
    No. 192.
    Decided October 7, 1954.
    Nelson Lancione, Columbus, for plaintiff.
    Hon. C. William O’Neill, Attorney General, Hugh A. Sherer and Thomas R. Lloyd, Assistant Attorneys General, Columbus, for defendant.
   OPINION

By MILLER, J.:

This is an action in. habeas corpus wherein the relator is seeking his release from the Ohio Penitentiary for the alleged reason that the trial court had no jurisdiction to hear and determine his case without the intervention of a jury.

The record reveals that the relator, William Evans, was indicted for murder in the first degree, with deliberation and premeditation, during the April, 1930, term of court; that on September 4, 1930. he appeared m open court with counsel and “retracts his plea of not guilty heretofore entered, and for plea to said indictment, pleads guilty to homicide generally, * * that the Court then examined the witnesses and heard the evidence adduced by the State and relator, relating to the commission of the crime in order to determine the degree of the offense committed: that upon being fully advised in the premises the Court found the relator guilty of murder with mercy extended and sentenced him to life imprisonment in the Ohio Penitentiary. It is admitted that no written waiver of a jury trial was signed and filed in the case in compliance with §13442-4 GC. The pertinent part of this section provides:

“In all criminal cases pending in courts of record in this state, the defendant shall have the right to waive a trial by jury, and may, if he so elects, be tried by the court without a jury. Such waiver and election by a defendant, shall be in writing, signed by the defendant and filed in said cause and made a part of the record thereof.”

The relator is relying upon the case of State, ex Christopher v. Amrine, 59 Abs 295, wherein this Court held that although a plea of guilty to “unlawful homicide” is synonomous with a plea to guilty of murder, the trial judge is without jurisdiction to determine the degree of guilt or to pronounce sentence in the absence of a written waiver as provided in §13442-4 GC. The plea in the instant case, it will be noted, was “guilty to homicide generally”. As was held in the Christopher case, supra, such a plea is synonomous with the plea of guilty of murder. Since the Christopher case was decided by this Court the Supreme Court has passed differently, we think, upon the question in the case of State, ex Scott v. Alvis, 156 Oh St 387, the syllabus of which provides:

“A three-judge trial court has jurisdiction, upon a plea of guilty by an accused charged with unlawfully and purposely killing another while in the perpetration of a robbery, to determine the degree of the offense and to sentence the accused, even though no written waiver of trial by jury is filed as is provided for by §13442-4 GC.”

Upon the authority of this case we must hold that the trial judge did not exceed his legal authority in hearing the cause and pronouncing sentence even though the relator did not sign and file a waiver of his right to a jury trial, this right being lost upon his plea of guilty. It will be noted that since the date of trial and sentence, to wit, September 4, 1930, §13442-5 GC was amended effective October 18, 1933, requiring the cause to be submitted to three judges instead of one, when the offense charged is punishable with death. This amendment, however, does not affect the question presented in this case.

The application will be denied.

WISEMAN, PJ, concurrence.

SPECIAL CONCURRENCE

By HORNBECK, J,

Special Concurrence:

The question of waiver of a jury and how it can be accomplished by defendant in a criminal case, either misdemeanor or felony has been the subject of many decisions by our Supreme Court.

Sec. 13448-2 GC has been the law since 1835, 33 O. L. 39, R. S. 7316, §1369-2 GC. It provided “and if such person is convicted by confession in open court the court shall proceed by examination of the witnesses in open court, to determine the degree of crime, and shall pronounce sentence - accordingly.”

As early as Dailey v. State, 4 Oh St 57, it was held that in the prosecution for illegally selling intoxicating liquors the record showing that the accused “did not demand a jury” sufficiently shows a waiver of the trial by jury and that a statute authorizing such procedure was constitutional. The opinion cited even an earlier case, Miller v. State, 3 Oh St 475. But in Williams v. State, 12 Oh St 622, it was held that in a charge of the commission of a felony the defendant could not upon a plea of not guilty, in any manner waive a jury and that such attempted procedure was unconstitutional. Thereafter throughout the years followed Goodwin v. State, 16 Oh St 345, where it was held that there was a waiver where the defendant represented by counsel waived trial by jury in writing in defendant’s own hand and that he was properly tried without a jury. Later Billingheimer v. State, 33 Oh St 435 and Craig v. State 49 Oh St 418. R. S. 7316 provided, in part, then, as now, if the offense charged is murder, and the accused is convicted by confession in open court, the court shall examine witnesses, determine the degree of the crime, and pronounce sentence accordingly.”

In Hoffman v. State, 98 Oh St 154, decided April 2, 1918, the majority held that waiver appeared but in a vigorous dissent by Judge Donahue and Chief Justice Nichols it was asserted that the defendant had been denied his constitutional rights. In State ex Warner v. Baer, 103 Oh St 585, Chief Justice Marshall, in his characteristic manner, discussed the whole field of agreements, waivers, and stipulations in criminal cases and even though it was necessary to go beyond the journal entry, held that the defendant had waived his right to a jury.

All of these cases were decided after R. S. 7316 was enacted, later §1369-2 GC and §13448-2 GC and all decided before §13442-4 GC and §13442-5 GC were enacted. It is but logical to conclude that the mass of adjudication had some part in prompting the legislature as an expression of public policy to define the requisities of a waiver. The result was the enactment of §13442-4 GC and §13442-5 GC part of the same act, 113 O. L. 123. The former provided that in all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury.” The section then sets out the form of the waiver to be signed by the defendant and provides that “such waiver * * *, shall be in writing, signed by the defendant.” Sec. 13442-5 GC, as enacted in 115 O. L. 531, provided “in any case where defendant waives his rights to trial by jury and elects to be tried by the judge of such court as provided in the next proceeding section, any judge of the court in which such cause is pending shall have jurisdiction to * * * and shall proceed to hear, try and determine such cause in accordance with the rules and in like manner as if such cause were being tried before a jury” (Emphasis ours). Inasmuch as the defendant, petitioner here could have been tried by the authority of 13442-5 GC, as well as by 13448-2 GC, the language of which we have just quoted and as this section vests jurisdiction only when compliance with §13442-4 GC has been observed, it follows that without a written waiver the court does not have jurisdiction where it is to exercise the function of a jury as contemplated in the Ohio Constitution. This was the basis of the opinion of this court in Christopher v. Amrine-Supt., 59 Abs 295.

We also decided State ex rel. Scott v. Alvis, unreported, Franklin County, No. 4516, May 9, 1951 which was affirmed in 156 Oh St 387 upon which the majority relies in refusing the Writ of Habeas Corpus. In affirming the Scott case the Supreme Court said “A three-judge trial court has jurisdiction, upon a plea of guilty by accused charged with unlawfully and purposely killing another while in the perpetration of a robbery, to determine the degree of the offense and to sentence the aecused even though no written waiver of trial by jury is filed as is provided for by §13442-4 GC.” The court in this syllabus is employing verbatim the language of a part of 13442-5 GC.

In the Scott case he was charged with first-degree murder, viz, the purposeful killing while in the commission of a robbery. He entered a plea of guilty as charged in the indictment. This was a plea of guilt of first-degree murder. In this case the plea is not guilty of first-degree' murder, but guilty to “homicide generally”. Therein is found the difference between the Scott case, the Christopher case and the case at bar. In the Christopher case the charge, murder with deliberation and premeditation, upon the plea permitted of a finding of guilt of any of the three degrees of murder, clearly a function of a jury. In the Scott case there were no degrees of the crime which could have been found less than the one charged and to which he pleaded guilty, viz, first-degree murder. The right to accord him mercy was not a function of a jury as was contemplated in our constitution assuring him the right to a jury trial.

Sec. 13442-5 GC, as we view it, covers three situations: One: A waiver of the right by the defendant to his right to a trial by jury in all cases except upon a charge of first-degree murder. Under this authority a judge of the court in which the indictment was returned may proceed under a plea of not guilty. The second authorizes the accused to waive a jury, if he is charged with an offense punishable with death and here the court is given jurisdiction to find him guilty of any offense charged in the indictment, namely, murder in any of its degrees or to acquit him. There is nothing in this section to prevent a plea of guilty to homicide. The third provision applies to a plea of guilty of murder in the first-degree in which the court can only make determination whether or not mercy shall be extended to the defendant. How can it be said, if a defendant pleads guilty to murder in the first degree that the court may disregard this admission and find him guilty of a lesser degree of homicide.

Sec. 13448-2 GC deals primarily with authorization for a finding of guilt of lesser degrees when they are included in the charge against the defendant or of an attempt if such attempt is an offense at law. This added provision should be construed in connection with §13442-4 GC and §13442-5 GC with which it is in pari materia. Although it provides for the trial of a defendant if he is convicted by confession in open court and “the court shall examine the witnesses to determine the degree of the crime and pronounce sentence accordingly,” if read with the other sections the court is only authorized to do that provided if a jury is waived according to the applicable law. Sec. 13448-2 GC was in the statutes long before §13442-4 GC and §13442-5 GC were enacted.

We have held In re Knight, 73 Oh Ap 547, 41 Abs 89, that §13448-2 GC which contemplated a trial by one judge was in pari materia with §13442-4 GC and §13442-5 GC and modified by the provision of §13442-5 GC which requires a trial to be had by a three judge court. The section being silent as to waiver is controlled by §13442-4 GC and §13442-5 GC which ar¿e specific as to waiver.

In Turk v. State, 48 Oh Ap 489, the defendant was charged with the commission of first-degree murder in perpetration of arson. The trial court refused to charge that he could be convicted of a lesser offense. The court held that purpose and intent to kill must be shown to support the charge and reduced the finding to manslaughter. The Supreme Court 129 Oh St 245, by an evenly divided court, Judges Matthias and Johnson dissenting, affirmed the judgment and held that the trial court erred in refusing to charge the jury as requested.

In the instant ease, as in the Christopher case, the defendant, if the evidence supported, could have been found guilty of murder in the first-degree, second-degree or manslaughter, all degrees of murder the determination of which was clearly the function of a jury. In this situation it would seem that the intendment of §13442-4 GC, as originally enacted should have been given application in the trial of Evans.

We recognized that much of §13442-4 GC and §13442-5 GC was not effective for three years after relator was tried but their subject matter does not weaken the dominant purpose of the earlier legislation to require a written waiver of a jury in all criminal cases to be tried by the court only.

We are not unmindful that Chief Justice Marshall in two cases, one of which is State ex rel. Baer, supra, has said that the deprival of a defendant in a criminal case of a right to a jury trial is but an irregularity which constitutes error but does not present a jurisdictional question. However, we cannot find that the court has adopted this proposition.

It follows from what has been said that but for the language of the syllabus in the Scott case, this member of the court would hold that the relator is entitled to the relief sought. We interpret the syllabus as' a mandate to this court and, of course, follow it.

We hope that the Supreme Court either in this case or in some other will elucidate its opinion of the full meaning of the sections of the code involved.


author: By MILLER, PJ.

text:
    EAST TOLEDO SOCIAL CLUB, Appellee, v. BOARD OF LIQUOR CONTROL, Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5194.
    Decided February 15, 1955.
    Harry Mee, Toledo, for appellee.
    Hon. C. William O’Neill, Attorney General, Kiehner Johnson, Assistant Attorney General, Columbus, for appellant.
   OPINION

By MILLER, PJ.

This cause comes into this Court bn appeal on questions of law by the Board of Liquor Control from a judgment of the Common Pleas Court. It involves an administrative appeal from an order of the Board of Liquor Control which affirms the rejection by the Department of Liquor Control of an application for the renewal of a Class D-4 permit. The judgment' appealed from reverséd this order and ordered the permit issued.

The record reveals that the applicant had a D-4 permit for premises located at 4310 Monroe Street, Toledo, Ohio, which expired on August 13, 1953; that on July 14, 1953, an application for a renewal was filed for the same premises; that on July 28, 1953, the applicant was evicted from the premises, located at 4310 Monroe Street and a new location was not obtained until November 6, 1953, when a lease was secured for the premises at 3419 Collingwood Avenue. Based upon these facts the Department rejected the application on September 10, 1953. An appeal was prosecuted to the Board of Liquor Control; the same came on for hearing on January 13, 1954, and on January 27, 1954, the order of the Department was affirmed as follows:

“This cause coming on for hearing on an appeal of East Toledo Social Club, 4310 Monroe Street, Toledo, Ohio, from an order of the Director of Liquor Control rejecting an application for a Class D-4 permit, was submitted to the Board of Liquor Control on the evidence, and on consideration thereof said Board finds that the appellant does not have a location for the permit in question, as provided by §4303.27 R. C., and therefore said application for renewal of a Class D-4 permit should be rejected.

“It is therefore ordered that the within appeal be, and the same hereby is, dismissed.”

Prom this record it appears that when the Department rejected the application, the applicant did not have a suitable location, for it did not acquire the new location until November 6th.

In the case of State, ex rel. Socotch, v. Bryant, 158 Oh St 249, our Supreme Court held that a purported permit which contains only the name of the person to whom it was purportedly issued, together with the name of the city and county but with no designation of the place for which it was issued, was invalid. Therefore, under the facts presented the Department was unable on September 10, 1953, to issue a valid permit and the application was therefore properly rejected. Counsel for the appellee urges that at the time of the hearing on appeal before the Board of Liquor Control, on January 13, 1954, the applicant did have a location. This fact, however, cannot aid the applicant for at the hearing before the Board the sole question was as to the propriety of the Director’s order and not whether the appellee then had a location. The Board had before it only the question whether the Director as a matter of fact and law properly refused the issuance of the renewal permit. The question as to the suitability of the new location was never presented to the Director. The authority to grant or refuse the issuance of permits for the sale of intoxicating liquor and beer is vested in the Department of Liquor Control by §4301.10 R. C. This administrative authority is exercised solely by the Director of Liquor Control under §4301.09 R. C.

In Scaravilli v. Board of Liquor Control, 61 Abs 515, this Court said:

“Without laboring the question, we are satisfied that the Director by virtue of §6064-7 and 6064-8 GC, is given the power to issue or refuse permits in the first instance.”

See, also, State, ex rel. Jones v. Bryant, 159 Oh St 59.

The judgment will be reversed and the order of the- Board of Liquor Control will be ordered affirmed.

HORNBECK and WISEMAN, JJ, concur.