author: By McLAIN, J.

text:
    YOBE, Plaintiff-Appellant, v. SHERWIN-WILLIAMS COMPANY et, Defendants-Appellees.
    Common Pleas Court, Trumbull County.
    No. 63278.
    Decided June 11, 1954.

      Herschel Kriger, Canton, for plaintiff-appellant.
    C. William O’Neill, Atty. Geni., John W. Hardwick, Asst. Atty, Geni., Columbus, for Administrator and Board of Review, Bureau of Unemployment Compensation.
   OPINION

By McLAIN, J.

This is an appeal to the Court of Common Pleas of Trumbull County, Ohio, from the decision of the Board of Review of the Bureau of Unemployment Compensation rendered on the 24th day of December, 1953, wherein this claimant was denied unemployment compensation.

The claimant was employed by The Sherwin-Williams Company at Hubbard, Ohio, and commenced work on April 15, 1953. The production workers of the plant were given their annual vacation periods, pursuant to a union contract, from July 20, 1953, to August 3, 1953.

The claimant herein was not entitled to vacation pay under the terms of a collective bargaining agreement which.was in effect between the employer and the union of which this claimant was a member during his employment.

Article VII of the agreement provided, in substance, that those with over a year’s service were entitled to a week’s vaca-' tion pay per year; those with three years’ service, two weeks’ vacation with pay, and those with fifteen years’ service, three weeks’ vacation with pay. The claimant was of course not entitled to a vacation with pay inasmuch as he did not have the requisite one year’s service.

Said Article VII contained a further provision which indicates that it was the intention of the parties to the contract that those who did not have the necessary period of service to qualify for vacation would be employed, insofar as possible, as part of a maintenance crew at such jobs as might be available. The exact language is as follows:

“. . . The company may, at its option, shut down the plant in June, July, August or September for the vacation period. Notice of such shutdown shall be given the employees by April 1st of the year in which the shutdown occurs. The company shall have the right to select a maintenance crew to work during the shutdown and to receive their vacations at other times. Those employees who do not qualify for a vacation at the time of the shutdown may be scheduled to work at such jobs as may be available . . .”

The transcript shows that some employees did work during that time including some not entitled to vacations, and others who took their vacations later. This work was performed on maintenance only, cleaning windows, painting, and so forth, there being no production work done at the plant from July 20th to August 3rd.

The record also shows that the claimant asked the supervisor for maintenance work such as cleaning windows and. so forth. The record further shows that during this period, the claimant did actively seek work in other industrial plants in the area.

The Referee in this case reasons as follows in arriving at his decision which was, in effect, adopted by the Board of Review in disallowing the claimant’s application for benefits:

“The question to be determined at this time is whether claimant was voluntarily or involuntarily unemployed during the period covered by the weeks ending July 25, and August 1, 1953. In substance, the contractual agreement existing between the bargaining agent of the employees and the management of the company establishes that the company may, at its discretion, shut down the plant for vacation purposes during the month of June, July, August or September. When a company and a union which is the bargaining agent for all employees, whether members of the union or not, agree to a shut down during a period chosen by the employer for the purpose of granting employees vacation, there can be no doubt but what the employees agree not to work in that place of employment during that period. The question of whether or not they are eligible for vacation pay for all or part of the period is of a secondary nature. Some of the employees, because of the length of their service, may receive pay for the entire period, others for part of the period, while still others receive no pay at all. There is not, in cases of this character or, in fact, in this case, a severance of the employer-employee relationship existing between the workers of the company, the worker knowing that at the expiration of the vacation period he will be returned to his job and continued thereon. In the present instance, that is exactly what happened. After the vacation period was over claimant did return to his employment ....
“In line with the foregoing, it is apparent, therefore, that claimant, through the contract of his bargaining agent, agreed to the vacation period and, consequently, for the weeks in question was not involuntarily but voluntarily unemployed, and does not thereby meet the statutory requirements with regard to eligibility for unemployment compensation . . .”

In other words, the position taken by the Board was that the claimant was voluntarily unemployed during the shutdown for the vacation period and, therefore, not entitled to unemployment compensation.

This issue has been before the Courts in a number of cases in various states since the enactment of unemployment compensation laws, and authority can be found to support both the position of the Bureau of Unemployment Compensation, and the position of the claimant in this case.

In view of this fact, since this question has not been decided by the Supreme Court of the State of Ohio, it appears to be the duty of this Court to determine which line of authority is based upon the sounder reasoning.

The case of Reid v. Board of Review, 155 Oh St 6, a case which originated in this county, is not in point. The Court held in that case that the claimant, being on a paid vacation at the time she filed her application for unemployment compensation was, in effect, still employed and, therefore, was not then eligible for unemployment compensation under the provisions of §1345-6 GC.

An entirely different factual situation exists in this case in which the claimant was unemployed, actively seeking employment and was not on a paid vacation because of a lack of eligibility due to his brief period of service.

The Supreme Court of Ohio has expressly held in the case of Leonard v. Board of Review, 148 Oh St 419, as follows:

“It is generally held that no hard and fast rule as to what constitutes availability for work can be adopted: that availability depends in part on the facts and circumstances in each case.”

In interpreting the statutes of Ohio, §1345-1 through §1346-4 GC, the Legislature has also issued a directory to the Courts as follows:

“Sec. 1345-33 GC. Sec. 1345-1 through §1346-4, inclusive, GC, should be liberally construed to accomplish the purposes thereof.”

It should also be borne in mind that the purpose of unemployment compensation legislation, which has been adopted by the Legislatures of so many states, is not only to avoid the serious conditions of economic insecurity suffered by the individual, but likewise is part of a plan to assist in the stabilization of unemployment conditions in the interests of the general welfare, and such legislation is entitled to a fair and liberal interpretation not only by virtue of the express direction of the Legislature but also to effect the plain purposes of the legislation itself.

These principles are plainly recognized by the Supreme Court of Ohio in the case of Leonard v. Board of Review, 148 Oh St 419.

In the case of American Bridge Company v. Review Board, et al., (Ind.) 98 N. E, (2d) 193, under similar facts, the Court stated:

“One of the express purposes of the Indiana Employment Security Act is to provide for employees who are unemployed through no fault of their own. There is nothing within the provisions of the union contract which would give rise, even inferentially, to a reasonable construction that employees who were not eligible for vacations were affected in any way by the designation of the vacation period for eligible employees. Certainly, the employees who were not eligible for vacation have not by any reasonable interpretation to be placed upon the terms of sect. 11c (2) of the bargaining agreement consented to any action by the company which would permit the designation of a’ period of vacation without pay for them . . , .
“Appellant advances the further argument that since the express purpose of the Employment Security Act is to avoid the serious menace of economic insecurity, that a vacation without pay is not economic insecurity within the compass of the legislative declaration of public policy. To the worker who depends upon his weekly paycheck for his daily bread, it would appear to be tortuous reasoning indeed to say that a vacation without pay does not constitute ‘economic insecurity.’ ”

This same case also answers the question raised that there was no severance of employment. There is no provision whatsoever in the Ohio statutes that requires a severance of employment. The Indiana Court stated on that question as follows:

“Since the ‘encouragement of desirable stable employment’ is contained within the legislative declaration of policy and purpose of the Indiana Employment Security Act, it can hardly be seriously contended that the Legislature intended to adopt any doctrine of a necessity for permanent severance of the employment relation. In order to have stabilization of employment, both for industry and workers, the fact that a worker expects to resume his previous employment should and does not, under the Indiana Employment Security Act, constitute a bar to his being unemployed, under the act, and entitled to benefits if otherwise qualified.”

The matter of the severance of employment is also answered in the case of Golubski v. Unemployment Compensation Board of Review, Superior Court of Pennsylvania decided October 1, 1952, and reported in 91 Atlantic, 2d Series, page 315.

The Court in that case passed on a number of cases classified in two groups. One, those who under a union contract were entitled to one week vacation pay, and one week lay off status while the plant was closed for taking inventory.

The Court held this, group not entitled to unemployment compensation for the week that the employees were not paid for the reason that said week constituted the waiting period required by the Pennsylvania Act. However, the Court held in respect to the second group, those who were ineligible for a vacation and were placed on a lay-off status for two weeks, were entitled to unemployment compensation.

The Court stated that the fact the employees desired to return to work with the company after lay-off did not deprive them of the right to unemployment compensation.

The conclusion, under the circumstances existing in our case, that the claimant is entitled to compensation is also supported by the Supreme Court of Errors of Connecticut in the case of Schettino v. Administrator, Unemployment Compensation Act, et al., 83 Atlantic Reporter, 2d Series, page 217, the Court said:

“Where employee was out of work because his regular job was not open to him due to the act of employer in shutting down the plant, an employee registered for work with employment service, and was physically and mentally able to work, he did all that reasonably could have been expected of him to expose himself to the labor market, and was entitled to unemployment benefits.”

The Court in that case reasoned that availability for work in order to receive benefits of unemployment compensation must be arrived at under a subjective test of eligibility. To be available for work within the meaning of the Unemployment Statute, one must be ready, willing, and waiting to accept suitable employment and must be exposed unequivocably to the labor market.

The issue in this case is also discussed in the Compensator. Third Quarter, 1947, published by the Bureau of Unemployment Compensation and referred to in 6 CCH Unemployment Compensation Service (Ohio) par. 1901.01:

“An individual is not eligible for benefits during any period of bona fide vacation, that is, during any period in which he voluntarily refrains from working with the consent of his employer and at the expiration of which he expects to return to work. At such time the assumption is that the individual is voluntarily unemployed and is not avaifable for work. Very few vacations provided by contract fall within this class. Generally, the contract provision is for a plant shutdown for a designated period, for which period workers are paid in proportion to their length of service or earnings. Such a shutdown is held to be a temporary law-off and employees unemployed during a vacation shutdown and who receive no vacation pay, or pay in an amount less than their weekly benefit amounts, are eligible for benefits.

It appears in this case that the claimant’s unemployment during the shutdown period or vacation period was not due to a genuine rest period, but due to an insufficient amount of work to employ him during that period under the terms of the contract.

A similar conclusion has been reached by the Courts of New York State. See Levy et al. v. Todd Shipyards Corporation, 110 New York Supplement, 2d series, page 612.

The foregoing cases, and others not here considered, appear to constitute the decided weight of authority on the issue in this case.

Contrary thereto are several Common Pleas Court decisions in Ohio. In the case of Arrells. et al. v. The Board of Review of the Bureau of Unemployment Compensation, Case No. 619521, in the Common Pleas Court of Cuyahoga County, the Court' said:

“The idea of something for nothing has grown in this country to exaggerated proportions in recent years and certainly, we believe, should not be encouraged by the Court’s attempting to write into legislative enactments and into contracts something which does not exist and which was never intended to exist.
“To hold that the appellants (claimants) are correct in their contentions would create a situation most undesirable both to labor and management. There would be no incentive or reason on the part of the employer to bargain with the employee concerning paid vacations inasmuch as all vacations, regardless of length, would be paid from the Unemployment Compensation Fund.”

The statement in the foregoing case that there would be no incentive or reason on the part of employer to bargain with the employee concerning paid vacations inasmuch as all vacations, regardless of length, would be paid from the Unemployment Compensation Fund seems entirely beside the point for the reason that there is no contention about paid vacations that question having already been decided by the Supreme Court of Ohio in the case of Reid v. Board of Review, supra.

Furthermore, the enactment of unemployment laws has been widespread. It is unlikely that there has been legislative intent to merely provide for legalized handouts, although unemployment benefits do afford some personal relief to distressed individuals, the broader purpose of such benefits is to, in some measure, guard against the impact of unemployment on the general economy.

Such laws should be given full force and effect as enacted, and it is not conducive to the general welfare that any one should be deprived of the benefits of unemployment compensation who comes fairly within the intendment of the act.

The case of Moen v. Director of Division of Employment Security, et al„ Supreme Court of Massachusetts, 85 North Eastern 2d Series, page 779, probably represents the minority view. The Court in that case held:

“Under collective bargaining agreement that employees who had been with employer for a certain time were eligible for vacations with pay, and that temporary shutdown in any department was authorized for such vacation period, unemployment during vacation period of an employee who was not yet eligible for vacation with pay was ‘voluntary,’ and he was therefore not eligible for unemployment benefits under Employment Security Law.”

There is, however, a very important and controlling factual difference in the Massachusetts case as it does not appear that the employer therein agreed to provide work for those who were ineligible because of insufficient service on maintenance crews during the shutdown period.

It will also be observed that §1345-6 GC, sets forth in great number and detail, situations wherein benefits are not payable. Therefore, under the well recognized doctrine of statutory construction inclusio unius est exelusio alterius, it could well be reasoned that said section does not evince any legislative intent to deny benefits to those ineligible for vacation pay.

It seems hardly necessary to engage in such speculation, however, because of the broad principle that those who have complied with the terms of the Unemployment Compensation Act of Ohio are eligible under §1345-6 GC, should be allowed compensation.

There is also an absence in the Massachusetts statute of the provision found in §1345-9 GC, to wit,

“No agreement by an employee to waive his right to benefits under this act shall be valid.”

Otherwise, the Supreme Court of Massachusetts could not have found that the claimant’s rights were surrendered to the union, and that he was bound by any agreement made on his behalf.

It is the purpose of the Unemployment Compensation Act of Ohio to insure, in limited measure, against unemployment of individuals regularly attached to the labor market where the unemployment is not occasioned with their consent or by their fault.

It is a fair statement in this case that the contract between the employee and the union did not contemplate that those ineligible for paid vacations should be voluntarily unemployed for the reason that the contract itself states that the employer would attempt to provide employment on maintenance or other work for those not entitled to vacation benefits, and it was plainly the unavailability of that work that resulted in the claimant being unemployed.

Therefore, after a consideration of the record, statutes applicable thereto, and the authorities, this Court has reached the conclusion that the claimant was not voluntarily unemployed during the two week period in question; that the union contract specifically contemplated that employment on maintenance would be made available to this claimant during the vacation shutdown; that he sought such employment and also employment elsewhere in the area; that for the foregoing reasons, his unemployment was not due to the vacation period but was caused by the inability of the employer to furnish him employment and not, therefore, being voluntarily unemployed, he is entitled to the benefits of unemployment compensation, and the decision of the Board of Review being contrary to law, the same is hereby reversed.


source: Caselaw Access Project

author: By BURTON, J. DOUGLAS, J,

license: Public Domain

text:
    PLUMBERS AND STEAMFITTERS UNION et, v. GRAHAM et.
    United States Supreme Court.
    No. 86.
    Decided March 16, 1953.
    Herbert S. Thatcher, Washington, D. C., for petitioners.
    Richmond Moore, Jr., Richmond, Va., for respondents.
   OPINION

By BURTON, J.

The pasic question here is whether the Commonwealth of Virginia, consistently with the Constitution of the United States, may enjoin peaceful picketing when it is carried on for purposes in conflict with the Virginia Right to Work Statute. A question also before us is whether the record in this case justifies the finding, made below, that the picketing was for such purposes. We answer each in the affirmative.

A bill of complaint was filed September 25, 1950, in the Law and Equity Court of the City of Richmond, Virginia, by respondents, doing a general contracting business there They named as defendants Local Union No. 10, United Association of Journeymen, Plumbers and Steamfitters of the United States and Canada of the American Federation of Labor, here called the Plumbers Union, three other local unions, the business agents of each of the unions and the Richmond Building & Construction Trader Council. The complaint alleged in substance that respondents had begun work under their contract with the City of Richmond to build the George Washington Carver School, that early completion of the school was urgent, that respondents had made contracts with all necessary subcontractors, that some of the subcontractors employed only union, labor while others employed nonunion as well as union labor, that in July certain of the defendants had requested that all nonunion labor on the project be laid off and had said that, unless that were done, “every effort would be made to prevent any union labor employed * * * on that project from continuing work thereon,” that on September 25 certain of the defendants had picketed the project, carrying a sign reading “This Is Not a Union Job. Richmond Trades Council.” that as a result of such picketing, union members on the job had refused to continue to work there and that, therefore, the project had “slowed to a standstill.” The complaint further alleged that the foregoing demands sought to induce respondents to take action which would subject them to criminal and civil liabilities under the Virginia Right to Work Statute and to break respondents' contracts with such of their subcontractors as did not employ all union labor. Finally, it alleged that the objectives of defendants in making such demands and conducting such picketing were to prevent nonunion employees from working on the project. On the strength of such allegations, the trial court granted respondents the temporary injunction they sought and the picketing ceased. A'motion to dissolve the injunction was denied, an answer was filed, depositions were taken and the temporary injunction was continued in effect until July 17, 1951. On that date, the trial court made the injunction permanent. The court rendered no opinion but included the following statement in its decree:

“[I]t appearing to the Court that the picketing complained of was conducted and carried on by the defendants, except for those defendants hereinafter noted,, and for aims, purposes and objectives in conflict with the provisions of the Right to Work laws of the State of Virginia and, therefore, illegal, that a permanent injunction is necessary to prevent irreparable harm and.damage to the complainants, and that complainants have already been damaged to the extent of One Hundred and Ninety ($190.00) Dollars, the Court doth so find; * * (Emphasis supplied.)

January 23, 1952, the Supreme Court of Appeals of Virginia, also without opinion, refused to hear an appeal but said in its order “the court being of opinion that the said decrees Lof the trial court] are plainly right, doth reject said petition and refuse said appeal and supersedeas, the effect of which is to affirm the decree of the said law and equity court.” Because of the importance of the issue in the practical administration of labor law, we granted certiorari. 344 U. S. 811, 73 S. Ct. 16. Respondents filed no brief here other than that in opposition to the petition -for certiorari and submitted their case without oral argument.

A few days before our grant of certiorari, the Supreme Court of Appeals of Virginia, in another case, reached a result which petitioners claim is in conflict with its judgment in the instant case. Painters & Paperhangers Local Union No. 1018 v. Rountree Corp., 194 Va. 148, 72 S. E. 2d 402. We find that decision helpful as upholding the constitutionality to the Right to Work Statute and interpreting its meaning, but we do not find it inconsistent with the result below. See also, Edwards v. Commonwealth of Virginia, 191 Va. 272, 60 S E. 2d 916; Finney v. Hawkins, 189 Va. 878, 54 S. E. 2d 872; American Federation of Labor v. American Sash Co., 335 U. S. 538, 69 S. Ct. 258, 260, 93 L. Ed. 222; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 69 S. Ct. 251, 93 L. Ed. 212.

In the Rountree case, 194 Va. at 154, 72 S. E. 2d .at 405, the highest court of Virginia holds that the Statute does not prohibit peaceful picketing “unless * * * for an unlawful purpose.” It adds that “a purpose to compel the complainants to discharge the non-union painters or to compel the painters to join the union as a condition of their continued employment” would be an unlawful purpose, but it fails to find the existence of such a purpose. On the other hand, in the instant case, the same court states that the injunctive decrees of the trial court “are plainly right.” It thereby sustains the trial court’s finding that “the picketing complained of was * * * carried on by the defendants * * * for aims, purposes and objectives in conflict with the provisions of the Right To Work laws of the State of Virginia * ” The Rountree case thus reflects an instance of picketing so conducted as not to be in violation of the Right to Work Statute, whereas the facts in the instant case reflect conduct that is in conflict with the provisions of that Statute. However innocent the picketing appeared while in progress, the Virginia courts found that it was combined with conduct and circumstances occurring before and during the picketing that demonstrated a purpose on the part of petitioners that was in conflict with the Right to Work Statute.

In a case of this kind, we are justified in searching the record to determine whether the crucial finding by the state courts had a reasonable basis in the evidence. The record consists of the depositions of nine witnesses taken six to nine months after the events described. There is some conflict in the testimony as to what took place July 27, 28, and September 25, 26. The record contains, however, ample grounds for sustaining the crucial findings of the trial court. Those grounds appear particularly in the testimony of respondent O. J. Graham and his general manager, J. Q. Aeree, as to what was said during their conversation, on July 28, 1950, with J. F. Joinville, business agent of the Plumbers Union and president of the Richmond Building & Construction Trades Council, together with Henry Cochran, business agent of the Engineers Union and Secretary and Treasurer of the same Trades Council.

It is undisputed that the picketing lasted from 8 a. m., September 25, until stopped by injunction the following noon. The picketing, was peaceful in appearance. There usually was but one picket and there never were more than two pickets on duty at a time. There was no violence and no use of abusive language. Each picket walked up and down the sidewalk adjoining the project carrying a sign bearing substantially the language quoted in the complaint. September 25, the picketing was done consecutively by the respective business agents of the Painters, Plumbers, Plasterers and Ironworkers unions. The premises picketed were frequented by few except the construction workers. The project was in its earliest stages. Before the picketing began, there were not more than fourteen men at work. Of these, three union carpenters worked about one hour on September 25. They left the project when the picketing began and returned a few days after the picketing stopped. Two union ironworkers or rodmen gave notice on the preceding Saturday that picketing was to begin on Monday, September 25, and that, therefore, they would not come to work. They never returned and the contractor was delayed several days while seeking to replace them. A nonunion plumber was assisted by a helper, who, oddly enough, belonged to a printers union. The plumber did not stop work but his helper left when the picketing began.

The others present were six or seven laborers whose status as union men was not clear. They did not quit but the work on the project as a whole came to a substantial standstill during the week of September 25, because the principal activity then called for was that of pouring concrete which required the services of rodmen as well as those of laborers.

The effect of the picketing was confirmatory of its purpose as found by the trial court. Petitioners here engaged in more than the mere publication of the fact that the job was not 100% union. Their picketing was done at such a place and in such a manner that, coupled with established union policies and traditions, it caused the union men to stop work and thus slow the project to a general standstill. Such conduct, furthermore, was conditioned upon the fact that some of the work on this job, particularly the plumbing, was being done by a subcontractor who employed nonunion labor, whereas Join-ville had demanded of the general contractor that the job be “one hundred per cent union.”

The policy of Virginia which is expressed in its Right to Work Statute is summarized as follows by its highest court:

“It provides in substance that neither membership nor non-membership in a labor union shall be made a condition of employment; that a contract limiting employment to union members is against public policy; and that a person denied employment because he is either a member of a union or not a member of a union shall have a right of action for damages.” Finney v. Hawkins, 189 Va. 878, 880, 54 S. E. 2d 872, 874.

Based upon the findings of the trial court, we have a case in which picketing was undertaken and carried on' with at least one of its substantial purposes in conflict with the declared policy of Virginia. The immediate results of the picketing demonstrated its potential effectiveness, unless enjoined, as a practical means of putting pressure, on the general contractor to eliminate from further participation all nonunion men or all subcontractors employing nonunion men on the project.

Assuming the above conclusions to have been established, petitioners still contend that the injunction in this case was inconsistent with the Fourteenth Amendment to the Constitution of the United States. On the reasoning and authority of our recent decision, we reaffirm our position to the contrary. Building Service Union v. Gazzam, 339 U. S. 532, 70 S. Ct. 784, 94 L. Ed. 1045, 42 O. O. 76; International Brotherhood of Teamsters etc., Union v. Hanke, 339 U. S. 470. 70 S. Ct. 773, 94 L. Ed. 995, 42 O. O. 69; Hughes v. Superior Court, 339 U. S. 460, 70 S. Ct. 718, 94 L. Ed. 985, 42 O. O. 80; Giboney v. Empire Storage Co., 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834; Thomas v. Collins, 323 U. S. 516, 537-538, and 543-544, 65 -S Ct. 315, 325-326. 328, 329, 89 L. Ed. 430 (concurring opinion); Bakery & Pastry Drivers Local v. Wohl, 315 U. S. 769, 776-777, 62 S Ct. 816, 819-820, 86 L. Ed. 1178 (concurring opinion); Carpenters Union v. Ritter’s Cafe, 315 U. S. 722, 62 S. Ct. 807, 86 L. Ed. 1143; Carlson v. People of State of California, 310 U. S. 106, 60 S. Ct. 746, 84 L. Ed. 1104; Thornhill v. State of Alabama, 310 U. S. 88, 103-104, 60 S. Ct. 736, 744-745, 84 L. Ed. 1093; Senn v. Tile Layers Union, 301 U. S. 468, 479-481, 57 S. Ct. 857, 862-863. 81 L. Ed. 1229. See also, International Brotherhood of Electrical Workers v. National Labor Relations Board, 341 U. S. 694, 705, 71 S. Ct. 954, 960, 95 L. Ed. 1299.

The judgment of the Supreme Court of Appeals of Virginia accordingly is affirmed.

Affirmed.

BLACK, J, dissents.

DOUGLAS, J,

dissenting.

If this union used the coercive power of picketing to force the contractor to discharge the nonunion men who were employed on the job, Virginia could issue the injunction For it is within the police power of the state to Keep opportunities for work open to both nonunion and union men. See Giboney v. Empire Storage Co., 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834; Building Service Union v. Gazzam, 339 U. S. 532, 70 S. Ct. 784. 94 L. Ed. 1045. But if the union did no more than advertise to union men and union sympathizers that nonunion men were employed on the job, the picketing would be privileged.

Picketing is a form of free speech — the workingman’s method of giving publicity to the facts of industrial life. As such it is entitled to constitutional protection. Thornhill v. State of Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093. No court would be entitled to prevent the dissemination of the news “This is not a Union Job,” whether it be by radio, by newspaper, by pamphlets, or by picketing. A picket carrying that sign would be proclaiming to all union men to stay away. Yet as Mr. Justice Münton, dissenting in International Teamsters Union v. Hanke, 339 U. S. 470, 481, 482, 70 S. Ct. 773. 779. 94 L. Ed. 995, 42 O. O. 69, stated, peaceful picketing when used “as an instrument of publicity” is a form of speech protected by the First and Fourteenth Amendments. It is entitled to that protection though it incites to action. For it is the aim of most ideas to shape conduct.

The line between permissible and unlawful picketing will therefore often be narrow or even tenuous. A purpose to deprive nonunion men of employment would make the picketing unlawful: a purpose to keep union men away from the job would give the picketing constitutional protection. The difficulty here is that we have no findings of fact. We have only the recitation in the decree that the picketing conflicted with the Virginia statute.

There is a dispute in the testimony as to the purpose of the picketing. The contractor testified that the aim was to coerce him to replace nonunion men with union men The union official testified unequivocally that that was not the purpose, that the aim was to inform union men that non union men were on the job. Perhaps the trial judge believed the contractor. Perhaps he deemed it irrelevant to resolve the conflict. Certainly 1 cannot resolve it from this cold record. I believe the case should be remanded for specific findings. We spoke in Thornhill v. State of Alabama, supra. 310 U. S. at page 105, 60 S. Ct. at page 745, 84 L. Ed. 1093, of the importance of a “narrowly drawn” picketing statute, of the danger of one that condemned picketing indiscriminately. The same dangers are inherent in cases where there are no findings and yet where the unlawful purpose must be found before the picketing can be enjoined. If Virginia is to enjoin this-form of free speech, I would require her to show precisely the reasons for it. Unless we are meticulous in that regard, great rights will be lost by the absence of findings, by the generality of findings, or by the vagueness of decrees. There is more than suspicion that that has happened here. For the decree permanently enjoins defendants “from carrying on their picketing or other activities in front or or around” the construction site. This decree was not “tailored to prevent a specific violation” of state law. Building Service Union v. Gazzam, supra, 339 U. S. at page 541, 70 S. Ct. at page 789, 94 L. Ed-. 1045, 42 O. O. at page 80. It is a broadside against all picketing, the kind of general assault condemned by Thorn-hill v. State of Alabama, supra. It illustrates the evil consequences that flow from a failure to be utterly painstaking in isolating the precise evils in picketing which the state may regulate.

      . “1. Section 1. It is hereby declared to be the public policy of Virginia that the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization.
      “Section 2. Any agreement or combination between any employer and any labor union or labor organization whereby persons not members of such union or organization shall be denied the right to work for said employer, or whereby such membership is made a condition of employment or continuation of employment by such employer, or whereby any such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be against public policy and an illegal combination or conspiracy.
      “Section 3. No person shall be required by an employer to become or remain a member of any labor union or labor organization as a condition of employment or continuation of employment by such employer.
      “Section 4. No person shall be required by an employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment.
      “Section 5. No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization.
      “Section 6. Any person who may be denied employment or be deprived of continuation of his employment in violation of section three, four or five or of one or more of such sections, shall be entitled to,recover from such employer and from any other person, firm, corporation or association acting in concert with him by appropriate action in the courts of this Commonwealth such damages as he may have sustained by reason of such denial or deprivation of employment.
      “Section 7. The provisions of this act shall not apply to any lawful contract in force on the effective date hereof but they shall apply in all respects to contracts entered into thereafter and to any renewal or extension of an existing contract.” Va. Acts, Extra Session, 1947, c, 2, Va. Code, 1950, Secs. 40-68 to 40-74, inclusive.
      See also, recognition of such state legislation in the TaftHartley Act:
      “Sec. 14. * * *
      “(b) Nothing in this Act [National Labor Relations Act, as amended] shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” 61 Stat. 151, 29 U. S. C. (Supp. V.) §164(b), 29 U. S. C. A. §164 (b).

      . The unions named were Local Union No. 1018, Brotherhood of Painters. Decorators and Paperhangers of America; Local Union No. 64, Cement Finishers and Operative Plasterers International Association; and Local Union No. 147, Internationa) Union of Operating Engineers, each affiliated with the American Federation of Labor.

      . The decree dismissed the complaint against Local Union No. 147 and its business agent, but enjoined the remaining defendants “from interfering with, molesting or otherwise carrying on their picketing or other activities in front of or around the site of construction of George Washington Carver School in the City of Richmond, Virginia.”
      Petitioners now object to the breadth of the terms of the injunction. That objection was not presented in their petition for certiorari and is not considered here.

      . “* * * it is of prime importance that no constitutional freedom, least of all the guarantees of the Bill of Rights, be defeated by insubstantial findings of fact screening reality. That is why this Court has the ultimate power to search the records in the state courts where a claim of constitutionality is effectively made. ❖ *

        “* * * We have not only his [the master’s] findings but his findings authenticated by the state of Illinois speaking through her Supreme Court. We can reject such a determination only if we can say that it is so without warrant as to be a palpable evasion of the constitutional guarantee here invoked.” Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 293, 294, 61 S. Ct. 552, 555, 85 L. Ed, 836.

      . For example, O. J. Graham testified:
      “A. * * * he [Joinville] finally got into the question of this particular job at the George Washington Carver School and Mr. Joinville said he wanted us to make it one hundred per cent union job and I told him we couldn’t do that, that we had already let sub-contracts that were union and non-union and we weren’t making any distinction between the two generally speaking, unless something was wrong or unless we didn’t think the sub-contractor could perform like we wanted him to; that we let the contract to the lowest bidder, whether he was union or non-union, and Mr. Joinville then said about this plumbing and heating contract he wanted me to cancel the contract with Talley and I told him we couldn’t do that, that a .contract with a non-union man was just as valid as one with a union man, and that led on into a discussion of the general policy of the Richmond Trades Council.
      “The way that came up was I asked Mr. Joinville why pick out this job, that a number of other contractors were operating the same as we were now and we had been very friendly with the unions, hadn’t had any trouble with them and sometime past we had worked probably ninety per cent union on some jobs and our relations up to this time had been very good. ‘Well,’ he said, ‘from now on, we are not'going to permit the things we have been permitting in the past and if a job isn’t one hundred per cent union, the union labor is not going to work on it; it has got to be one hundred per cent union.’ If it wasn’t — talking about this particular job together with any other jobs in the future, not only of ours, but other people’s as well, that they would just have to take what came from the union as a result of not being one hundred per cent union, and we did discuss to some degree the right-to-work law and the effect that it had had or should have on labor and I told him I didn’t see how we could comply with the law and make any job one hundred per cent union. ‘Well,’ he said, ‘nobody else is paying any attention to the right-to-work law; I don’t see any reason why Graham Brothers should be so concerned about it.’ ”

      . I have expressed elsewhere my views concerning the line between sanctity of speech and the unlawful use of the coercive power of unions. See Bakery & Pastry Drivers Local v. Wohl, 315 U. S. 769, 775-777, 62 S. Ct. 816, 819-820, 86 L. Ed. 1178; Thomas v. Collins, 323 U. S. 516, 543-544, 65 S. Ct. 315, 328-329, 89 L. Ed. 430.

      . Mr. Joinville testified:
      “Q. Now Mr. Graham has alleged that you came to talk with him as business representative for Local No. 10 and that you renewed your request of July 27, 1950, that all non-union labor on the job project be laid off or discharged. Did you make that request? A. No.
      “Q. Were you interested in all the nonunion labor on the project being laid off? A. I was only interested in furthering the interests of union labor. As to the standing and who was on the job and what crafts, I didn’t know and didn’t know until I talked to Mr. Graham and got it from him direct.
      “Q. Did you in your conversation with him request him to lay off or fire or discharge anybody? A. No. Mr. Graham definitely told me he intended to go through with it and I asked him to give his contracts to some of the boys — some of the contractors whom he had let his contracts to in the past. He said definitely he had made commitment to Mr. Talley and he intended to hold Mr. Talley to his commitment and see that Mr. Talley completed that job, and knowing the contracting business, I know that.
      “Q. You have testified that you went to see him [Mr. Graham] for the purpose of getting him to use some of your union subcontractors, is that correct? A. That is my job, to promote subcontractors and my membership wherever possible.
      “Q. He refused to do just that, didn’t he? A. He said he had already let the contract to a non-union, — as 1 assume, I had no relationship with him — to a contractor by the name of Talley and he had no intention of violating that contract with Talley, and 1 agreed with him.
      “Q. Then he denied your men the right to work for him, didn’t he? A. He definitely did.
      “Q. Mr. Joinville, did Mr. Graham refuse to employ any of your local union men? A. He definitely took the stand he wouldn’t have anyone but Talley on that job.
      “Q. Did you ask Mr. Graham to cancel his contract with Talley? A. No. I have been in this construction business long enough and business agent for twenty some years and I know when a contract is signed and delivered nobody cancels them.
      “Q. That would have nothing to do with the State Law, would it? A. That is right.”

      . See also, Hughes v. Superior Court, 339 U. S. 460, 70 S. Ct. 718, 94 L. Ed. 985, where we upheld the validity of an injunction which restrained the defendants from “picketing * * * for the purpose of compelling plaintiff to do any of the following acts:
      “(1) the selective hiring of negro clerks, such hiring to be based on the proportion of white and negro customers who patronize plaintiff’s stores; * * This purpose was declared unlawful by the California courts and we sustained the injunction directed against that unlawful purpose. Cf. Hotel & Restaurant Employees’ Local v. Wisconsin Board, 315 U. S. 437, 62 S. Ct. 706, 86 L. Ed. 946, involving an administrative order prohibiting picketing. It was undisputed that the picketing had erupted into violence. We accepted the Wisconsin court’s determination that the order was directed only against such unlawful conduct and did not reach out to strike down peaceful picketing for a lawful purpose.


author: By REYNOLDS, J.

text:
    DECKER CONSTRUCTION CO., Plaintiff, v. MATHIS, Defendant.
    Common Pleas Court, Franklin County.
    No. 188329.
    Decided November 10, 1953.
    R. T. Boehm, Columbus, for plaintiff.
    Arnold, Wright, Purpus, Morris, Columbus, for defendant.
   OPINION

By REYNOLDS, J.

Defendant’s demurrer to the second cause of action in plaintiff’s petition is sustained.

In this case plaintiff seeks to recover from defendant the increased amount of premiums it has been and will be compelled to pay by reason of the awards made under the Workmen’s Compensation Act, resulting from deaths and injuries to several of plaintiff’s employees and which deaths and injuries were caused by defendant’s negligence.

Plaintiff is a contributor to the State Insurance Fund and by reason of the awards and payments made under the Ohio Workmen’s Compensation ■ Act plaintiff’s assessments or premiums are materially increased.

Defendant’s demurrer is based on the claim that the second cause of action in plaintiff’s petition does not state facts which constitute a cause of action and reliance is had on the case of Truscon Steel Co. v. Trumbull Cliffs Furnace Co., 120 Oh St 394 in which case the court held that

“An employer, whether a self-insurer or otherwise, cannot recover from any source any sum to reimburse an amount paid under the Workmen’s Compensation Law to injured employees, whether the injury results from the negligence of some third party or otherwise.”

Plaintiff differentiates the instant case in that in that case the employer was a self insurer and sought to recover from a third party an award for injuries to an employee, due to the negligence of that third party, while in the instant, case the employer is a contributor to the Workmen’s Compensation Fund. Reliance is had on the case of Midvale Coal Co. v. Cardox Corp., 152 Oh St 437, in which the court held that

“3. Where a third party negligently injuries an employer’s employee and suo-h injury is a direct result of a breach of contract which the third party had with employee’s employer, and as a direct result of such breach the employer suffers damages, such damages are recoverable by the employer against the third party in an action for breach of contract.”

However, the distinction between that case and the Truscon case was that in the MIDVALE case the court based its finding on the fact that the third party who caused injury to an employee of plaintiff, by its negligence, at the same time caused an injury to the plaintiff by a breach of its contract and in its opinion the court said

“Defendant relies, inter alia, upon the well considered case of Northern States Contracting Co. v. Oakes, 191 Minn., 88, 253 N. W„ 371, 92 A. L. R., 1201. In a syllabus by the court in that case it is stated:
“ ‘Increased workmen’s compensation insurance premiums which plaintiff had to pay in consequence of an employee’s death caused by a negligent act of defendant, a subcontractor, are too remote and indirect results of such wrongful act as to be recoverable.’
“That case would be most persuasive if it were applicable to the instant case, but in the Northern States case the workman was killed by the negligence of a third party, and, although that negligence was a breach of duty by the party guilty of it toward the one who was killed, it was not a breach of any duty owed to the employer of the killed employee.
“The A. L. R. report of the Northern States case is followed by an annotation, and all the cases there considered involved attempts to recover for torts committed where the tort-feasor owed no duty to the one seeking recovery.”

In the Northern States case, the court, in quoting from another case, said:

“ ‘The injury inflicted by him was upon McLemore, against his personal rights; that it happened to injure the plaintiff was an incidental circumstance, a remote and indirect result, not necessarily or legitimately resulting from the act of killing.’
“If, in the instant case, plaintiff’s employee had been injured through the negligence of a third party, which party owed no duty to plaintiff, it could well be argued that any damages which plaintiff suffered as a result of the injury to his employee would be too remote for plaintiff to recover. In such a situation the breach of duty by the third party would be toward only the person of plaintiff’s employee by one who owed no duty to plaintiff. Such was the situation in the Truscon case.” (Emphasis ours.)

The court is of the opinion that the Midvale case not only does not support plaintiff’s right to recover, but on the other hand is authority against that right.


author: By SKEEL, PJ.

text:
    JONES, Estate of, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22593.
    Decided December 1, 1952.

      Robert Merkle, Cleveland, for complainee, appellant.
    Russell N. Chase, Cleveland, for complainant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered for the complainant by the trial court. The action is one seeking to recover concealed assets of the estate of Isabel S. Jones, deceased, which the complainant alleges to be in the possession of the complainee.

The complainant, administratrix of the estate of Isabel S. Jones, filed a complaint (under the provisions of Section 10506-67 of the Probate Code) in the common pleas court of Cuyahoga county, against the complainee wherein it is charged that said complainee is concealing the proceeds of two bank accounts belonging to the estate of the deceased, in the total sum of $10,800.44. Upon trial, at the conclusion of taking all the evidence, the court directed a verdict for the complainant for $9438.97, which in addition to the balance in the bank accounts, included a ten percent penalty as provided by §10506-73 GC, and entered judgment thereon.

The complainee claims the following errors:

“1. That the court erred in holding that the appointment of a guardian for Isabel S. Jones on the 17th day of July. 1951, terminated the agreements which Lee Hamilton had with Isabel S. Jones, concerning the joint and survivorship bank accounts.
“2. It was error to direct a verdict against the complaineeappellant.
“3. It was error to direct a verdict against the complaineeappellant without a motion thereto.
“4. It was error to sustain objections to the evidence showing contracts between the complainee-appellant and the decedent by the terms of which complainee-appellant became absolutely entitled to the money in the bank accounts.
“5. The court erred in disregarding the entire line of decisions of the courts re the vested rights of the parties, by contract, in joint and survivorship bank accounts.
“6. It was error to fail to direct a verdict for the complaineeappellant, the court having arrived at the conclusion that he was not guilty of any wrongful or criminal conduct.
“7. It was error to prevent counsel for the complaineeappellant from cross-examining an important witness called by arid examined on behalf of, the complainant-appellee.
“8. It was error to overrule the motion for judgment notwithstanding the verdict and the motion for new trial.
“9. The judgment is not supported by the evidence.
“10. The judgment is contrary to law.
“11. Other errors apparent in the record.”

The undisputed facts are as follows:

The deceased, Isabel S. Jones, died at the age of 83 years on July 24, 1951, at Glencliff Sanitarium. The complainee, Lee Hamilton, was a nephew of the deceased. Prior to 1947 he and his wife, who was a practical nurse, lived near at hand to the residence of deceased and rendered service in her care for a long time. On July 31, 1946, without the knowledge of the Hamiltons, the deceased deeded her home to Lee and Jessie Hamilton, reserving a life estate in herself, Because of the fact that circumstances required the Hamiltons to move their place of residence, the deceased during September 1947, told them that she had conveyed the property to them and asked them to build certain additions and make certain repairs to the property and then come to live with her. The Hamiltons carried out her wishes, made the repairs, moved into the house and continued to care for her.

The deceased at this time had two bank accounts, one in the Society for Savings in the amount of $7167.86 (as of Feb 12, 1948) the other in South Euclid Sayings & Loan Association in the amount of $3596.57 as of September, 1947. When the Hamiltons came to live with her, the deceased changed both these accounts to joint and survivorship accounts with the right of either to draw, naming Lee Hamilton as the joint owner.

The Hamiltons continued to care for the deceased, withdrew certain funds from South Euclid Savings & Loan Association to defray actual expenses, including nurse hire, until June, 1951, when her condition became critical. Upon the advise of her doctor, the deceased was taken to Glencliff Sanitarium on June 23, 1951.' Thereafter, Lee Hamilton on July 20, 1951, was appointed guardian of her person, the application being filed in probate court of Cuyahoga county, it being alleged in the application that deceased was without assets. On July 20, 1951, Lee Hamilton (not as guardian) withdrew the balance of both accounts, the amount withdrawn from the Society for Savings being $7522.40 and from South Euclid Savings & Loan Association $1058.49, or a total of $8580.89 which, with ten percent of such amount added, equals the amount of the judgment entered by direction of the court. There is no claim that complainee failed to carry out in full his obligation of support or to take care of funeral expenses.

The complainee alleges by answer, and by attempting to offer evidence to prove such claims, that the deceased, without his knowledge, arranged to transfer the bank accounts, naming him joint owner with the right of either to draw, into joint and survivorship accounts. The first he knew of it was when the signature cards were presented to him. He further claims that at that time, in addition to the contract with the banks for joint and survivorship accounts, either having the right to draw, with complete ownership in the survivor, the deceased and the Hamiltons entered into an agreement that he, Hamilton, should pay all of her bills and funeral expenses and care for her until her death, and whatever is not needed for such purposes during her life, should be used to compensate Lee and Jessie Hamilton for their services in caring for her.

Upon the trial, the court refused to permit the complainee to introduce evidence in support of his claim of such contract for services and care to be paid from the money on deposit in the joint accounts of the deceased and Lee Hamilton. The court’s ruling on this question was based presumably upon the provisions of §11493 GC, because the adverse party was an administratrix. In this, the court committed prejudicial error. The record shows that the complainantadministratrix, called Lee Hamilton for cross-examination and examined him concerning the bank accounts. Aside from the fact that the complainant filed the complaint for concealing assets, she also called him as a witness on the subject of title to the money in the bank accounts. This fact alone required the court to permit the complainee to present his testimony in support of his alleged contract for care and support and right to the funds in the bank accounts, after other expenses were paid. The citing of the complainee under §19506-67 GC, which requires him to appear for examination on a claim of concealing assets of an estate, permits him as a matter of right, to testify in support of his defense to the claim of the administratrix. In the case of Robertson v. Polter, 58 Oh Ap 209 (motion to certify overruled Feb. 9, 1939), this precise question was before the court. The court held, in the syllabus:

“Sec. 11495 GC prohibiting a party to an action from testifying in certain instances, has no application to proceedings had upon a citation made upon complaint of an executor under §10596-67 GC relative to discovery of concealed or embezzled assets and does not prohibit the party so cited from testifying as to transactions with the executor’s decedent.”

And at page 206 of the opinion Judge Lloyd says:

“It is contended that the property given to Polter was placed with him for safekeeping, but no evidence apears in the record justifying such a finding. It is contended that §11495 GC, precludes Polter from testifying as to what the decedent said or did in relation to the claimed gift. It would be strangely incongruous if a person who is suspected of having ‘concealed, embezzled or conveyed away or of being, or having been in the possession of any’ of the property described in §10506-67 GC and, by authority thereof, is mandatorily cited into court to be examined with respect thereto, were prohibited from speaking in his own defense. It is apparent that §11495 GC, is not applicable to proceedings had under this statute.”

See also, In re Estate of Evans, 71 Oh Ap 127.

It is further contended by the complainant that the appointment of a guardian for the deceased just prior to her death, terminated the contract creating the joint and survivorship accounts and the deceased was thereby reinvested with title to the money, clear of any claims of the complainee They rely on the case of Abrams v. Nickel, 50 Oh Ap 500. This case is not authority for such claim, nor does it support their contention. The syllabus provides:

“The adjudication of lunacy and appointment of a guardian of one of the two parties to a joint and survivorship account terminates the agreement and as each had a complete interest in the entire account, equity requires, in the absence of extraordinary circumstances, an equal division of the account between the parties involved as of the time the guardian was appointed.”

It would be most unusual if the appointing of a guardian of one of the parties to an agreement could in any way deprive the other party to the agreement, which agreement was valid when made, of property rights already vested thereunder. The case cited held that where the agreement was a joint and survivorship account, and a guardian was appointed for one of the parties, thus ending the relationship created by such account, without some extraordinary circumstances, an equal division of the funds should be made. In other words, a question is then presented as to the property right of each of the parties to the joint and survivorship accounts in the funds then held in their joint names. The holding that the joint survivorship accounts must end because of the appointment of a guardian is not completely accurate. Suppose, for example, that it was the purpose of the agreement creating the accounts, as was true in this case, that the party whose name was added to the accounts agreed to render services in the care of the other party until his death, and the accounts were made joint, either party having the right to draw with right to the balance in the survivor, at the death of one of the parties. The accounts were made joint so that the party rendering the services could withdraw funds for necessary expenses, the amount to be paid for such services being measured by what was left at the death of the other party, could it possibly be contended that the party owing the obligation of care would be relieved of his promise to render care because a guardian was appointed for the party to whom the services were due? It must be concluded, therefore, that where the contract for a joint and survivorship account is only a part of the whole agreement between the parties, the provisions of which require one party to render services to the other and by the agreement is to be paid out of the account in the amount remaining at time of death, and such services were rendered continuously as called for by the agreement, the party who owes the obligation of care has a vested interest in the accounts and the appointment of a guardian can in no way disturb such interest, or impair the obligation of the contract.

Nor can it be contended, as was held by the trial court, that the alleged agreement was testamentary in character. The interest of Hamilton in the accounts, if such interest is established, was the result of his contract to perform services for the deceased which services were to be performed, with the exception of the funeral costs, during her lifetime. The result of the contract contended for by Hamilton, would be a debt due him for services to be paid out of the joint accounts It is not claimed that he was to be a beneficiary of the estate of the deceased upon her death. The principle here involved is the same as was decided by the supreme court in the case of Streeper v. Myers, 132 Oh St 322. This was a case involving a gift. The supreme court sustained the gift of bank stock to donor’s sons where the donees were not to enjoy the use of the gift property until after the death of the donor, it being provided that he was to have the income from the stock during life. Paragraph 5 of the syllabus provides:

“Where there has been a completed gift of property the reservation by donor to himself during his lifetime of the earnings thereof will not invalidate the gift.”

In the case before us we have a contract to be performed during the life of one of the parties by rendering services in her care, the amount to be paid therefor to be determined by the balance in the bank accounts at the time of her death.

We conclude, therefore, that the trial court committed error prejudicial to the rights of complainee, in rejecting his evidence tending to establish his alleged contract relationship with the deceased concerning services rendered and to be rendered and to be paid out of the joint survivorship bank accounts, in holding the appointment of a guardian terminated the interest of the complainee in such accounts, and in holding the intention of the deceased in giving Hamilton the right to draw money for his services were testamentary in character. We therefore sustain the appellant’s claims of error Nos. 1, 2, 3, 4, 5, 7 and 10, and we overrule claims of error Nos. 6, 9 and 11. We overrule the 9th claim of error, based on the weight of the evidence only because the court excluded a great deal of competent evidence so that that question should not be considered until all of the competent evidence is before the court.

For the foregoing reasons the judgment is reversed and the cause is remanded for further proceedings.

Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By SKEEL, J:

text:
    FIRST BANCREDIT CORPORATION, Plaintiff-Appellee, v. GAUDREAU, Admx. et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22768.
    Decided June 15, 1953.
    Moss & Eckstein, Cleveland, for plaintiff-appellee.
    Wm. C. Bracken, for defendants-appellants.
   OPINION

By SKEEL, J:

This appeal on questions of law comes to this Court from a judgment entered for the plaintiff in the Municipal Court of Cleveland.

The action is founded on a cognovit negotiable note, the interest and discount charges being included in the face value of the note. The note was dated March 18, 1949, and signed by defendants, Eva M. Gaudreau and her husband, Noble P. Gaudreau, now deceased. Noble P. Goudreau died May 4, 1951, and Eva M. Gaudreau was appointed Administratrix of his estate. A judgment by confession was entered against both defendants on December 22, 1949, in the sum of $2521.12. The defendants made 20 payments on the debt evidenced by the note, to plaintiff in the total amount of $1358.00 the last payment being made May 2, 1951. Five payments of $76.40 each were made prior to the date judgment was entered so that on the face of the record the judgment taken was for more than was then due.

On July 28, 1952, the defendants filed a petition to vacate the judgment in which it was alleged (1) that such judgment was taken on a warrant of attorney for more than was due. and (2) that the note upon which judgment was taken was procured by fraud.

On Sept. 3, 1952, the court stayed further proceedings on the judgment, and an answer and cross-petition was filed by leave of court, and praecipe for service on the cross-petition issued. An attempt to make the United States of America a party defendant failed or was refused, although as is shown by the record, the plaintiff sold its judgment to the United States under an F. H. A. insurance agreement on November 5, 1951, the endorsement of the note being:

“All right, title and interest of the undersigned is being assigned (without warranty, except that the note qualifies for insurance) to the United States of America.
Nov. 5, 1951. First Bancredit Corporation ”

It should be noted, however, that the assignment of the judgment to the United States does not appear of record on the journal of the court.

The defendant’s answer alleged that the judgment entered by confession on Dec. 22, 1949, had been assigned to the United States; that Noble P. Gaudreau died May 4, 1951; that Eva M. Gaudreau was appointed and is now acting as Administratrix of his estate and asks that she, as Administratrix, be substituted as a party defendant in his stead. (The court did not enter the Administratrix as a party defendant until January 3, 1953.) The defendants’ answer further alleges that the judgment was taken for more than was due; that Joseph L. Newman, who confessed judgment against the defendants under the provisions of the cognovit note, did so without authority; that plaintiff was not a holder in due course because the note is made out to a fictitious person (Midwest Home Improvement Company) and was endorsed by one M. Schuster whose name does not appear on the face of the instrument and the note bears no other endorsement.

The second defense alleges that defendants delivered the note which is the subject of this action and on which Midwest Home Improvement Company was payee, together with a completion certificate to pay for certain improvements under an F. H. A. financed contract with Midwest Homes Improvement Company, a partnership consisting of M. Schuster and Hugh F. Ennis, the financing to be done through the plaintiff and to be held until the contractor had completed the work, and that the plaintiff secured the contractor’s endorsement on said note and paid over the money to the contractor without authority from these defendants and before any part of the work was done. The cross-petition seeks the return of the payments made to plaintiff by defendants under the F. H. A. improvement contract, the debt being evidenced by the note above described, for the reason that the plaintiff wrongfully paid the proceeds of the F. H. A. improvement loan to Midwest Home Improvement Company before the work was done.

Plaintiff’s answer to the cross-petition puts in issue all of the defendants’ claims, alleging that it is a holder in due course but admitting that its claim was assigned to the United States as alleged by the defendants.

Upon retrial of the issues joined, by the plaintiff’s petition and the answer and cross-petition of Eva M. Gaudreau. and Eva M. Gaudreau, as Administratrix of the estate of Noble P. Gaudreau, and the plaintiff’s answer to the cross-petition, the court first completely vacated the judgment entered by confession which had been' entered on December 22, 1949 and upon considering the evidence taken on rehearing, rendered judgment for the plaintiff on its petition for $1504.00 and found for the plaintiff on defendants’ cross-petition.

The defendants claim the following errors:

“1. The court’s decision is against the weight of the evidence and is contrary to law.
“2. The court erred in not granting a judgment in favor of the defendants on their cross-petition.
“3. The court erred in overruling defendants’ motion for a new trial.
“4. The court erred in admitting evidence over the objection and exception of the defendants.
“5. Other errors occurring at the trial to the manifest prejudice and rights of the defendants.”

Under the allegations of the pleadings and the evidence, it is clear that at the time the action was retried, the plaintiff had no right, title or interest in the claim against the defendants set forth in its original petition. It is difficult to understand why the United States was not made a party and how service on the United States could fail, but that is the record so that the court should have entered final judgment for the defendants on plaintiff’s petition for the reason that the plaintiff is not the real party in interest, it being noted that such judgment could in no way jeopardize the rights of the United States against the defendants in any action that may subsequently be brought.

The only other question left is as to the judgment for plaintiff on defendant’s cross-petition. The basis of defendants’ claim is that the plaintiff was not authorized to make the payment of the proceeds of the loan to the contractor until it determined that the work was satisfactorily completed. There is no doubt but that the full amount of the loan, less discount of $2392.00 was paid by plaintiff on March 18th to the contractor and that defendants thereafter repaid $1358.00 to plaintiff on the loan, the first payment being made May 18, 1949, one month after the date of the note, and in the amount of the installment due on that date and the last payment was made May 2, 1951, just two days before the death of Noble P. Gaudreau. During the two-year period these payments were made, defendants knew full well no work had been done to remodel their kitchen.

The defendants introduced into evidence the contract between them and Midwest Home Improvement Company, calling for the kitchen improvements, the work to be done for $2658.00 payable monthly over a period of three years at the rate of $76.40 per month, said contract being dated January 25, 1949. Also executed on the same date was an F. H. A. “cash down payment certificate” showing a down payment of $266.00 signed by the defendants and also by Midwest Home Improvement Company, by M. Schuster, and a credit application under F. H. A. of the same date signed by both defendants. The execution of these papers is admitted. Also introduced by the defendants was a borrowers completion certificate signed by Noble P. Gaudreau and Deslers Completion Certificate, on the opposite side of the same paper signed by Midwest Home Improvement Company by M. Schuster, dated March 18,1949. The defendants also introduced the note above described as the instrument upon which this action was founded. It is dated March 18, 1949 and signed by both defendants. The execution of these papers are admitted. It is the claim of defendants that these papers were entrusted to a representative of plaintiff who attended their execution at defendants’ home and he was to hold them until the work was done. This the plaintiff denies.

The record includes five letters written by Noble P. Gaudreau before his death, seeking extensions of time in which to make payments and explaining defaults, in which letters there is not to be found a single word about plaintiff having breached any promise to either defendant to hold said papers until the work was done.

The failure to claim fraud on the part of the plaintiff at an earlier date, and the making of payments on the debt, even though defendants knew the work had not been done at the time payments were made, is said by the defendants to have been induced because of the fear that unless payments were made by defendant, Noble P. Gaudreau would lose his employment as a U. S. Meat Inspector. This, with all other questions of fact, were submitted to the trial court by the parties.

While the testimony of the parties on the issues is in conflict, we cannot say that the conclusions of the trial court are against the manifest weight of the evidence.

The judgment for plaintiff on defendants’ counter-claim is therefore affirmed.

Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, concur.


author: By BELL, J.

text:
    WESTERHAUS COMPANY, Inc., a Corporation, Plaintiff, v. CINCINNATI (City) et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-129385.
    Decided July 21, 1953.

      Loyal S. Martin, Cincinnati, for plaintiff.
    Henry M. Bruestle, City Solicitor, James W. Farrell. Jr.. Asst. Solicitor, Ralph E. Cors, Asst. City Prosecutor, Cincinnati, for defendants.
   OPINION

By BELL, J.

This is an action for a declaratory judgment against the City of Cincinnati, a municipal corporation (hereinafter called the City); W. R. Kellogg, the City Manager (hereinafter called Manager); George C. Schiele, City Treasurer (hereinafter called Treasurer); Oris E. Hamilton, Director of Safety (hereinafter called Director); and Stanley Schrotel, Chief of Police (hereinafter called Chief).

The petition alleges in substance that plaintiff is a corporation organized and doing business under the laws of the State of Ohio with its principal place of business in Hamilton County; that it is engaged in lawful business, including the selling, leasing, renting, operating or exhibiting certain amusement devices known as pinball machines in the City under licenses issued by the City; that the licenses are issued by the Treasurer pursuant to an ordinance of the City; that the officers named as defendants, individually and collectively, threaten to seize, confiscate and destroy the licensed amusement devices, known as pinball machines, without court order or court procedure; that defendants claim the right to determine for themselves whether such amusement devices are or are not gambling devices and that the defendants threaten to revoke the permits and licenses of plaintiff as distributor and exhibitor. The prayer of the petition is for a temporary restraining order and a declaration of the rights of the parties.

The answer of defendants admits that plaintiff is a corporation engaged in the business as set forth in its petition; that the distribution and exhibition of pinball machines in the city is governed by Chapter 731 of the Code of Ordinances of the City of Cincinnati. Section 731-1 of the Ordinance reads as follows:

“No person, firm or corporation shall engage in the business of selling, leasing, renting, operating or exhibiting pinball machines, without first obtaining a license so to do and conforming to the regulations provided for such business in accordance with the provisions of this chapter.”

Several sections of the ordinance are set forth in the answer; that it is the duty of defendants to enforce the ordinance and that the amusement devices, known as pinball machines, are being operated as gambling devices contrary to law.

A temporary restraining order was issued which was later modified.

The cause was heard upon the pleadings and the evidence.

The first question to be considered is whether an' action under the Uniform Declaratory Judgment Act is a proper proceeding to raise the questions which plaintiff seeks to have determined.

Sec. 12102-1 GC, reads as follows:

“Declaratory judgments, when granted, force and effect. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.”

Sec. 12102-2 GC, reads as follows:

“Construction and validity of instrument, etc. may be determined, when. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.”

Sec. 12102-12 GC, reads as follows:

“Purpose of act. This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.”

In the instant case, under the provisions of the quoted sections of the Uniform Declaratory Act, it is the opinion of the Court that this proceeding was properly instituted.

Before proceeding to a consideration of the other legal questions presented certain general observations should be noted:

1. There is no claim that any of the amusement devices are located within three, hundred feet of any school building or grounds;

2. There is no, claim that any person under the age of twenty-one years has been permitted to play or use the devices;

3. There is no claim that there has been a pay off of money or other tangible property.

The answer contains an allegation that the devices are being used as gambling devices. No evidence was offered to support such a claim. The notice to plaintiffs (Ex. 1) sets forth that any pinball machines on free play will be confiscated and destroyed and the exhibitor’s license revoked for one year.

In the brief of defendants it is stated that three questions are presented:

“1. Whether the machines in question constitute gambling devices.

2. The constitutionality of Section 731-23 of the Code of Ordinances of the City of Cincinnati, authorizing the seizure and destruction of pinball machines operated contrary to the provisions of the laws of the State of Ohio or the ordinances of the City of Cincinnati.

3. Right of the city treasurer to revoke licenses for the violation of provisions of the Code of Ordinances governing the operation of pinball machines without any judicial determination as to such violation.”

The defendants’ claim to justification for the proposed action is that by the player making a certain score he or she may win the right to play one or more additional games, commonly called “free play” without the insertion of additional coins into the device.

Stated in another fashion the main question presented is whether “free play,” ipso facto, constitutes the devices involved herein as gambling devices per se. If the devices are not gambling devices per se, or are not being used for gambling purposes, then neither the Statutes of Ohio nor the Ordinance of the City of Cincinnati are being violated.

The defendants rely strongly on two decisions of the Supreme Court, namely,

Myers v. City of Cincinnati, 128 Oh St 235; and Kraus v. City of Cleveland, 135 Oh St 43,

In the Myers case the Court was reviewing a criminal case after conviction of the defendant in the Municipal Court of Cincinnati. The question presented was whether the ordinance of the city relating to slot machines was constitutional and the Court answered that question in the affirmative.

In the Kraus case the Court was considering the question of the validity of an ordinance of the City of Cleveland relative to the licensing of slot machines. The Court held that the city was without power to pass an ordinance granting a license to exhibit a gambling device In that case the skill of the player could in no way affect the result. In commenting upon that feature of the case the Court, at pages 45 and 46. used the following language:

“The language in the ordinance, ‘whether accompanied by the return of tokens, slugs or any other evidence of the result of such operation or not,’ makes the device so returning tokens or slugs licensable, though the return and the number of tokens returned and the frequency of such return be left wholly to the automatic or mechanical operation of the device. Nowhere in the ordinance is it provided that the machines be so constructed as to place the operation thereof under the control of the skill of the player. Under the terms of the ordinance, it is perfectly proper for the automatic or mechanical operation of the device, without the intervention of the skill of the player to determine the result of the game. Where the result of a game is determined by the automatic or mechanical operation of the device upon which the game is played, and not subject to the control of the player, it is a result determined by chance.” (Emphasis added.)

As I read and construe the last mentioned case, the above quoted language is the foundation upon which the decision rests.

Both those cases involved slot machines; the Kraus case was decided under the statute then in force. The Court does not consider either of those cases as determinative of this controversy. .

The ordinance here in question is found in Chapter 731 of the Code of Ordinances of the City of Cincinnati. No useful purpose would be served by setting forth the ordinance in its entirety. Sections 731-9, 731-21 and 731-23, involved in the instant case, are hereinafter quoted.

Before proceeding to the examination of the statutes it should be noted that devices such as are here in controversy, lately have been the subject of much legislation and also much litigation. Several states have, in the past few years, enacted statutes specifically exempting “free play” pinball machines from the operation of gambling laws within these states, to wit: Arkansas, Kentucky, Louisiana, Massachusetts. Mississippi, South Carolina and, most recently, Illinois. In those states the question of whether “free play” pinball machines are gambling devices has been laid to rest.

The decisions in various jurisdictions are too numerous to mention. Citation of only a few will suffice to disclose the general trend of the decisions.

In re: Wigton, 30 A 2352 (Pennsylvania); State v. Betti, 42 A 2-640 (New Jersey); Gaver v. Whelan, 138 P 2-763 (California) ; State v. Waite, 131 P 2-708 (Kansas); Commonwealth v. Kling, 13 A 2-104 (Pennsylvania); State v. One Pinball Machine, 224 SW (2d) 854 (Missouri); Washington Coin Machine Assn. v. Callahan, 142 F 2-97; Davies, et al v. Mills Novelty Co., 70 F 2-424; Mills Novelty v. Farrell, 64 F 2-476.

The case which the Court has been able to discover which most nearly touches upon the proposition which is of major importance is the case of Deed v. Stoutamire, et al decided by the Supreme Court of Florida in 1951, which case will be discussed later.

The General Assembly in 1951 repealed §13066 GC and passed the present §13066 and §§13066-1, 13066-2, 13066-3 and 13066-4 GC.

Sec. 13066 GC now reads as follows:

“Exhibiting gambling device for gain, exceptions. Whoever keeps or exhibits for gain or to win or gain money or other property, a gambling table, or faro or keno bank, or a gambling device or machine, other than as is defined in §§13066-1, 13063, 13064 GC, or keeps or exhibits a billiard table for the purpose of gambling or allows it to be so used, shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than ninety days, and shall give security in the sum of five hundred dollars for his good behavior for one year.”

Sec. 13066-1 GC, reads as follows:

“Gambling device defined; exceptions. As used in §13066-2 and §13066-3 GC, the term ‘gambling device’ means any slot machine or any other machine or mechanical device, other than as is defined in §13063 and 13064 GC, an essential part of which is a drum or reel with insignia thereon which when operated may deliver as the result of an element of chance, any money, property, or other thing of value or by the operation of which a person may become entitled to receive as the result of the application of an element of chance, any money, property, or other thing of value; or any machine or mechanical device, other than as is defined in §13063 and §13064 GC, designed and manufactured to operate by means of insertion of a coin, token, or similar object so that when operated it may deliver as the result of the application of an element of chance, any money, property, or other thing of value; or any sub-assembly or essential part intended to be used in connection with any such machine or mechanical device.”

Sec. 13066-2 GC, reads as follows:

“Ownership, possession, exhibition of ‘gambling device’ unlawful; exceptions. It shall be unlawful to own, possess, or exhibit any gambling device, other than as is defined in §13063 and §13064 GC. Nothing contained herein shall be construed to prohibit the possession of a gambling device during the act of and for the sole purpose of transportation except as prohibited by §13066-3 GC.”

Present §13066 GC is very similar to prior §13066 GC. Sec. 13066-1 GC, for the purpose of construction of §13066-2 and §13066-3 GC, defines the term “gambling device.” Sec. 13066-2 GC, makes the ownership of any gambling device unlawful except for the sole purpose of transportation; and §13066-3 GC makes it unlawful to transport any gambling device for delivery within the State of Ohio.

Section 731-9 of the Code of Ordinances of the City of Cincinnati reads as follows:

“Mechanical Requirements. It shall be unlawful for an exhibitor or other person to exhibit, operate or have in his possession a pinball machine which is so constructed as to make possible, either directly, or by the use of an adjustment, the return of cash, tickets, discs or other tokens or certificates of any kind to a player operating the same, whether or not such tokens or certificates have a value of any kind or authorize further playing or other privileges. Only machines operated exclusively for the amusement provided by the operation thereof shall be licensed. (Sec. 179-5, Ordinance 95-1942.)”

Section 731-21 of the Code of Ordinances reads as follows:

“Revocation of License. Should any distributor or exhibitor violate or fail to comply with any of the provisions of this chapter, it shall be the duty of the city treasurer to revoke his license. In case of the revocation of an exhibitor’s license, the licenses of all machines operated by him or on his premises, shall be revoked and such machines removed from the premises within 24 hours thereafter. A distributor or exhibitor whose license has been revoked shall not be eligible to apply for or receive a new license within the period of one year after the revocation. (Sec. 179-12, Ord. 95-1942.)”

Section 731-23 of the Code of Ordinances reads as follows:

“Seizure and Destruction of Pinball Machines. If any pinball machine is used as a gambling device or is otherwise operated contrary to the provisions of the laws of the state of Ohio, or of this chapter, such machine may, in the discretion of the city manager, be seized and destroyed, as in the case of gambling devices. (Sec. 179-13, Ord. 95-1942.)”

To be violative of Section 731-9 of the Ordinance the machine must return “cash,” “tickets,” “discs” or other “tokens” or “certificates.” The devices in the instant case do not return “cash,” “tickets,” “discs” or other “tokens” or “certificates” and hence do not violate Section 731-9 of the ordinance.

This case, therefore, must be resolved by a determination of the question whether the operation of these devices violate any state statute.

The sections of the statutes heretofore quoted have been held constitutional. (Dodson v. City of Urbana, No. 131, Court of Appeals Champaign County.)

' In the instant case the plaintiff introduced evidence which disclosed substantially the following facts: That the city had issued licenses for pinball machines of the character here involved for a number of years prior to 1951; that all of the pinball machines owned and exhibited by plaintiff were licensed by the city and that all license fees had béen fully paid; that on or about June 27th, 1951, the Treasurer advised the plaintiff that the City Solicitor had made a ruling that pinball machines which granted “free play” were gambling devices per se; that effective July 1st, 1953, the ruling would become effective and plaintiff’s property thereafter would be seized and destroyed and its licenses revoked.

The ruling of the City Solicitor (Ex. 2) apparently was made upon authority of a judgment of the Municipal Court of Cleveland. (Zelles v. Matowitz, 22 O. O. 261.) A later decision by the Court of Appeals of this district apparently was overlooked. The Court of Appeals held, “A pinball machine is not per se a gambling device.” (Brafford, Appellant v. Calhoun, Chief of Police, Appellee, 72 Oh Ap 333.)

A pinball machine of the character owned and exhibited by plaintiff, and licensed by defendants, was offered in evidence and plaintiff sought and was permitted to introduce testimony to prove that the result of the game and the score attained by the player was not controlled by the mechanism of the device but by the skill of the player. The demonstration clearly disclosed that from the time each of the five balls, the playing of which constitutes a game, is put in motion by the player until it came to rest is, at all times, under the control of the player. Where those ñve balls came to rest determines the score and where each ball comes to rest is dependent upon the skill of the player and is not controlled by the mechanism of the device.

The machine returns no money, property, tickets, discs, tokens or certificates. When the game is completed if the player has scored a sufficient number of points he may play one or more games without the insertion of additional coins, depending on the total score. If the player does not score sufficient points and desires to again play, he or she must insert another five cent coin.

There is no evidence or even a claim (except an allegation in the answer that the devices were being used for gambling purposes) that any of the devices have ever been used for gambling purposes.

The defendants in this case offered no evidence, although defendants had full opportunity to show that the result attained was dependent upon the mechanism of the device.

The defendants chose to stand upon the proposition that these pinball machines are gambling devices per se and hence they have the right to seize and destroy them and to cancel plaintiff’s licenses.

As demonstrated these devices could be likened to a billiard game or the bowling of ten pins. It is a matter of common knowledge that all of those games contain some element of chance but the result is almost entirely controlled by the skill of the player. Let us assume that the proprietor of a billiard hall would offer a free game if the player made twenty-five points consecutively in a billiard game, or that the proprietor of a bowling alley would offer a free game to any bowler who made a score of 250 or more in one bowling game.

In my judgment it would be a bold man who would assert that either of those proprietors were engaged in gambling— or that the billiard table or the bowling alley were gambling devices per se. Where a court is called upon to construe and apply statutes or ordinances such as those involved in the instant case the purpose to be accomplished is one of the pole stars of construction. Here the purpose of the statutes and the ordinance is to suppress gambling and to punish violators.

There is a clear distinction between devices for amusement and devices for gambling purposes. The licensing by a municipality of amusement devices is a proper exercise of the police power. A municipality is without power to license gambling devices. (See Bauer v. Cleveland, 135 Oh St 143.) Often the difficulty in such cases is in determining whether the device in question is an amusement or a gambling device. To determine that question the courts consider the construction of the device and the purpose to which it has been put.

In the instant case there is no mechanism which controls the play, nor is the device designed for gambling purposes. There is no evidence that the devices owned by plaintiff have ever been used for gambling purposes. As has been stated the evidence makes it perfectly clear that the player controls the ball from the time it is put in motion until it comes to rest.

Reverting again for the purpose of emphasis to the Myers and Kraus cases, supra, it is my opinion that those cases are not applicable to the problem here presented.

In the Myers case the defendant had been tried and convicted of exhibiting a gambling device; the only question presented and decided was the constitutionality of the ordinance.

In the Kraus case the only question presented and decided was the power of a municipality to pass an ordinance permitting the licensing of gambling devices.

Devices such as here in evidence offer the opportunity to play a game, primarily one of skill, with little element of mechanical chance and so long as the devices are not used for gambling purposes they are not gambling devices per se merely because the player may win the right to play a free game.

The Florida case heretofore referred to involved a “free play” miniature bowling game, the outcome of which game depended upon the skill of the player. The Court held that the device was not a gambling device.

Coming now to a consideration of questions 2 and 3 as stated in defendants’ brief. Courts will always indulge a strong presumption in favor of the constitutionality of legislation but will not pass upon the constitutionality of a statute or ordinance unless and until it becomes necessary so to do in order to dispose of the case presented. Village of Strongville v. McPhee, 142 Oh St 534. That principle was reiterated in American Cancer Society, Inc., et al v. City of Dayton, 160 Oh St 114. The answers to questions 2 and 3 as stated by defendants are not necessary to a disposition of this case and have not been considered or decided.

To summarize, the Court finds and declares that:

1. The plaintiff is a corporation organized and existing under the laws of the State of Ohio.

2. That plaintiff is engaged in the business of owning and exhibiting amusement devices.'

3. That plaintiff has complied with the ordinances of the city with reference to licensing such devices.

4. That the city issued licenses for devices of the character offered in evidence. (Exhibit 4.)

5. That after accepting the license fees and, during the life of the licenses, the City threatened to seize and destroy plaintiff’s property and to revoke its license as a distributor.

6. That the device offered in evidence (Exhibit 4) is an amusement device and not, as claimed by defendants, a gambling device per se.

7. That the game played upon such device is one primarily of skill with little element of mechanical chance.

8. That such devices (Exhibit 4) do not violate the statutes of the State of Ohio or the ordinance of the City of Cincinnati, Ohio.

9. That the City is without power or authority to seize and destroy such devices, or to cancel plaintiff’s license as an exhibitor, unless and until the City can prove that such devices are being used for gambling purposes with the knowledge or consent of the exhibitor.

A decree may be prepared in accordance with the above findings and declarations.