author: By BLYTHIN, J:

text:
    VETERANS OF FOREIGN WARS et, Plaintiffs, v. SWEENEY, Sheriff et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 626355.
    Decided January 10, 1952.

      Phillip Bartell, Cleveland, for plaintiffs.
    Joseph Sweeney, Sheriff, Frank T. Cullitan, County Pros. Atty., Cleveland, for defendant.
    Roland A. Baskin, Cleveland, for defendant James Topping, Mayor and George Dickman, Chief of Police.
   OPINION

By BLYTHIN, J:

This is an action brought by Brookpark Post No. 3345, Veterans of Foreign Wars, and two individuals personally and as officers of said Post against the Sheriff of Cuyahoga County and the Mayor and Chief of Police of the Village of Brook Park. The headquarters of said Post is within said County and Village.

Plaintiffs allege that said Post, by resolution of its membership, has authorized the initiation of this action, such membership being composed of veterans of foreign wars organized to promote the general welfare of the membership, their families and members of the armed forces, past and present; to promote love of country and to assist certain worthy persons; to aid families in unfortunate circumstances and, generally, to be a force and center for public philanthropy.

■ It is further alleged that for the carrying out of the purposes stated the plaintiffs have occupied a headquarters and meeting place at 13315 Brookpark Road within said Village since 1949 and that they have there conducted and promoted an activity known as “Bingo.” The game and its operation are then described in careful detail and with sufficient clarity and frankness to leave one without the slightest ground to believe the game to be anything other than a game of chance and a lottery. It is asserted that “the element of chance is made subordinate to the objective of bringing the participants into a collective whole for social purposes.”

It is further alleged that said “Bingo” operation is conducted for the purpose of raising funds to carry out the purposes already recited, and that all the income derived from the operation, after deduction for gifts to contributors, after payment for labor, rent, supplies and similar expenses, had been and would be turned over to an individual acting as Post Treasurer for charitable purposes and that no net proceeds so realized are used for payment to any individual person for his own benefit or profit and that all such net proceeds are retained by said Post and used for eleemosynary purposes of the nature already mentioned and for aid to convalescing soldiers, scholarships and general philanthropy.

It is still further alleged that as a result of said operations many members of the Post and their families have been given employment; economic distress to such persons has been averted and that to date there has (from proceeds) been created a building fund of approximately $24,500.00 for the purpose of building a permanent home for the Post, particularly for recreational purposes, and eventually for establishing within the home a place for refreshment, recreation and rest for -the members of the armed forces — generally known as a “Canteen.” It is asserted that many deserving persons have been aided by Post donations and that the Post is ever alert to aid unfortunate persons, such as inmates of the Crile Veterans’ Hospital, and that other public-spirited activities and purposes have benefitted by the conduct of said Bingo. Having so described their bingo activities and laudable pur- ■ poses, plaintiffs say that a court ruling within the county to the effect that the city of Cleveland was and is without authority to license Bingo games has led the defendants, Sheriff of the County and Mayor and Chief of Police of the Village, to harass plaintiffs in their efforts to conduct their bingo games and led them to threaten to arregt plaintiffs if they continue said games and that defendants have declared their intentions to make such arrests if such games are continued, and without regard to the disposition or use of the proceeds thereof for charitable or eleemosynary purposes and without respect to the provisions of §13084 GC. It is then claimed that there exists a justiciable controversy between the parties and that plaintiffs are uncertain as to their rights and that they are without an adequate remedy at law unless their rights can be stated and determined by a declaratory judgment and by an order at the hands of this court restraining defendants from interfering with them in the conduct of their bingo operations for the specific purposes set forth.

Plaintiffs seek to have the Court declare:

1. That the promotion of bingo as described in the Amended Petition, not for the profit of plaintiffs, is not a penal offense under §13064 GC.

2. That the purposes mentioned in the Amended Petition are not for the promoters’ own profit, nor for the profit of the plaintiffs.

3. That no criminal offense results from promotion by plaintiffs of the activities described in the Amended Petition.

4. That the equipment used in the described activities, when such use is in connection with said described activities of plaintiffs, is not gaming device use, as described in §13066 GC, nor included within the penal provisions thereof.

5. That when such promoters are engaged as described, they are entitled to be free from harassment and interference by Sheriff or other administrative or ministerial officers under the provisions of §13064 GC, unless such activities are for the persons’ or plaintiffs’ or promoters’ or participants’ own profit.

6. That when engaged as in numbers 1 to 5 inclusive, immediately preceding, to-wit: Promoting or participating in Bingo not for profit of such promoters, plaintiffs or participants, under §13064 GC, none of such parties are “wagering” as defined in §13059 GC.

Plaintiffs then seek to have the Court issue, on the basis of such declarations, a restraining order enjoining the defendants from interfering with them in their operations, so described, provided such operations are not for the profit of the plaintiffs.

To this Amended Petition the defendants demur on the general ground that it does not allege facts which entitle the plaintiffs to either of the reliefs prayed for.

ARE PLAINTIFFS ENTITLED TO A DECLARATORS JUDGMENT?

Declaratory judgments are authorized in Ohio under the provisions of §12102 et seq., GC. Our Supreme Court has furnished in clear terms the conditions into which a controversy must fit to justify a declaratory judgment.

Radaszewski v. Keating, 141 Oh St, 489. They are in subtance:

(1) It must be within the terms of the Declaratory Judgment Act.

(2) It must disclose a real controversy presently existing between the parties.

(3) It must appear to be necessary to afford speedy relief to protect some rights.

(4) The judgment, when rendered, must terminate the controversy.

See also American Life and Accident Ins. Co. v. Jones, Admr., 152 Oh St, 287.

The statutory provisions do not specifically confine the right to a declaratory judgment to civil cases. Some text writers seem far more anxious than courts to have such provisions extended or construed to include criminal cases and in their enthusiasm must be said to claim more for some of those cases than the courts actually pronounced. Most of the cases cited are those which cannot possibly be said to be simply criminal cases. They are chiefly cases of claimed violation of some rules, regulations or statutory provisions encountered in the conduct of a perfectly legitimate business and which leave a citizen in doubt, as between himself and some agency of his government, as to what he may or may not legally do in the conduct of his business. As soon as the controversy between the businessman and the regulating or law-enforcing agency is decided the entire controversy is terminated. The rules which must be observed in the conduct of the business are settled. That is not the situation in this cause. The best that can be stated here is that plaintiffs claim that an activity expressly prohibited by the Constitution of the State has not been included within the provisions of any punitive statute, and that the combined effect of the fact that the Constitution is not self-executing and the failure of the statutes to provide punishment results in a legal operation. Not at any point are we dealing with anything other than an activity clearly prohibited by the Constitution and one which, therefore, cannot be affirmatively legalized by any legislative enactment. While some courts in a few states have issued declaratory judgments in cases of the special and particular types mentioned we have not found that any court in Ohio has rendered such a judgment in any case involving merely a claimed, possible or prospective, violation of the criminal laws of the State. Every reported case has been one involving civil or contractual rights and genuine disputes arising out of them.

In any event it is difficult to find how the instant case could qualify for a declaratory judgment. Where is the real controversy between the parties? There is no relationship between the parties to this cause differing from the relationship of every citizen in the community with the defendants, Sheriff, Mayor and Chief of Police. Plaintiffs say that the officer defendants will arrest them if they engage in certain activities which the officials believe to be violative of the criminal laws of the State. The law imposes upon the Sheriff, Mayor and Chief of Police the duty of arresting or causing the arrest of any citizen engaging in activities which they believe to be violative of the criminal laws. The Constitution and laws of the State have provided the means of protecting the rights of the citizen against his officials by adjudication of them in the courts when the official brings the citizen to the courts under formal charge. This is not oversimplifying the situation because the process is simple, thoroughly established as well as tested by time, is fully protective of the rights of free citizens and can well be said to be a vital part of the genius of democratic functioning.

The State of Ohio is plaintiff in all criminal proceedings under our penal statutes. It is not a party in this cause and the defendants have invited the Court’s attention to that fact and claim it to be a fatal defect. The Court would not dispose of this cause on the basis of that defect — if defect it be. It would, or course, permit the making of new parties if that would, in its judgment, entitle plaintiffs to the relief sought. There is no existing controversy between the parties, even though the State of Ohio had been included as a defendant. It is not claimed that any “Bingo” games are being played. The plaintiffs merely want to know if, in the future, they conduct certain operations they will be subject to arrest and prosecution. Harrassment is often (especially in connection with gambling activities) used to express arrest and the term has been carried into the cases decided in foreign jurisdictions because of the fact that some legitimate business was involved and enforcement of some law, rule or regulation, claimed to be of doubtful validity, would amount to harassment. In the cases mentioned, almost without exception, acts claimed to be illegal in connection with a legal business are involved. In the instant case, acts forbidden by the Constitution and therefore clearly illegal within themselves are sought to be legalized.

The Court holds that there is not in this case any real controversy between the parties within the contemplation and requirements of the declaratory judgment statute.

Assuming that there existed a real controversy, and all proper elements and parties were present, would it be possible that such controversy could be terminated in this case by the rendition of a declaratory judgment. This Court not only finds it difficult but impossible to determine just how any judgment could terminate the controversy. The plaintiffs allege, in principle, their proposed operation. Assuming a judgment on the case as stated, would the honest belief of defendants, or either of them, that the operation as actually conducted on some future date varied in some particular from the operation declared legal justify him or them in making an arrest? Or, would the official be justified in overlooking the entire matter lest he incur some liability or find himself in contempt of this Court? This observation or query probably belongs more properly in connection with the second phase of the issue and the relief sought.

As indicated, we have not found a single case in Ohio in which the Court entered a declaratory judgment in a cause involving merely the criminal law and for the purpose of avoiding the recognized processes for the enforcement of it. Especially interesting is a case within our own jurisdiction (Cuyahoga County). Lakewood v. Farren, 27 Abs 351. (Court of Appeals of Cuyahoga County.)

Mrs. Parren, for pay, entertained in her home a few preschool age children and used her automobile for transporting the children to and from their homes. The City of Lakewood sought a declaratory judgment and a restraining order to prohibit her from so driving said children without first having secured a chauffeur’s license.

Syll. 2. “The restraining of defendant from driving ner automobile without a chauffeur’s license in conveying children to and from her home where she cared for them and entertained them for compensation is not a subject for the application of the declaratory judgment law.”

The case was one in which the defendant was engaged in what is surely a lawful business.but, in its detail conduct was doing something which the public authorities believed to be a violation of law but which the lady claimed was perfectly legal. The public officials deemed it wise to avoid arrest (harassment) and to seek guidance by a declaratory judgment. The Court denied the relief even though it was sought by public officials for their own protection as such officials.

See also: League for Protection of Civil Rights etc., v. City of Cincinnati, 64 Oh Ap 195; and Driskill v. City of Cincinnati, 66 Oh Ap 372.

ARE THE PLAINTIFFS ENTITLED TO A RESTRAINING ORDER?

It would be nothing short of sophistry to believe that the game of bingo as described in the amended petition is anything short of a lottery, a game of chance and a species of gambling. In briefs and arguments able counsel for the plaintiffs claims the operation evades illegality because of its character as a lottery and the amended petition admits the presence of the element of chance. Art. XV, Sec. 6, of the Constitution of Ohio is as follows:

“Lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this State.”

The Supreme Court of Ohio, in State v. Parker, 150 Oh St, 22, held this provision not to be self-executing, and also held that §13064 GC is constitutional. Sec. 13064 GC is as follows:

“Penalty for promoting lottery or scheme of chance. Whoever, for his own profit, establishes, opens, sets on foot, carries on, promotes, makes, draws or acts as “backer” or “vendor" for or on account of a lottery or scheme of chance, by whatever name, style, or title denominated or known, whether located or to be drawn, paid or carried on within or without this state, or by any of such means, sells or exposes for sale anything of value, shall be fined, etc., etc."

Plaintiffs urge as a basis of legality of their proposed bingo operations the fact that the constitutional prohibition is not self-executing; the additional fact that §13064 GC, supra, has been declared to be constitutional and provides for punishment only of him who operates “for his own profit,” and, finally, that lotteries are treated specially by §13064 GC, and do not come within the provisions of the sections of our Code dealing with gambling generally. They therefore urge and conclude that inasmuch as lotteries are prohibited or to be punished only when conducted for “one’s own profit” they may be conducted with impunity for charitable purposes. To sustain that conclusion they must read into §13064 GC, and into the decision of the Supreme Court in the State v. Parker case, supra, something not to be found in either. First; they must conclude that §13064 GC authorizes or legalizes a lottery for charity just because it prohibits lotteries for one’s “own profit.” Second; they must conclude that when the Supreme Court declared §13064 GC constitutional it was holding, at the same time, that to conduct a lottery for a purpose other than for one’s “own profit” was permissible. Neither conclusion is justified. Sec. 13064 GC, merely provides a penalty for engaging in a lottery for one’s “own profit.” The Supreme Court simply held such a statute constitutional. The Court was careful to make clear that the statute was constitutional as far as it went. The statute does not even mention lotteries for charity and it has no place in any discussion of the conduct of a lottery for charitable purposes. There is nothing in §13064 GC to justify any belief that it legalizes a lottery for charitable purposes. If it was an attempt to do that it would clearly be unconstitutional.

This Court will not undertake to shackle law enforcement officials in their efforts to enforce the laws of the state, nor will it assume that they will make arrests without reasonable grounds to believe that those arrested are engaged in activities violative of the penal laws.

In a free government the right to exercise authority must be placed with a great degree of certainty and such exercise must be reasonably free from interference by any persons or officers to whom it is not specifically delegated. The duty of maintaining the public peace under our laws is definitely placed and the processes available to those charged with the duty are clear and have become generally known and effectively established by usage over many years of time. In Ohio the Sheriff of the county and the Mayor of a city or village are elected officials directly responsible to the people. The Chief of Police is under the direct supervision of the Mayor and is the superior officer of every other member of the police force.

Sec. 2833 GC:

“Each Sheriff shall preserve the public peace and cause all persons guilty of breach thereof, within his knowledge or view, to enter into recognizance * * * and commit them to jail in case of refusal * * *.”

Sec. 4255 GC:

“* * * He (the Mayor) shall be the chief conservator of the peace within the corporation * *

Sec. 4378 GC:

“The police force shall preserve the peace, protect persons and property and obey and enforce all ordinances of council and all criminal laws of the state and of the United States

In addition to being a court of law this Court is clothed with general equitable jurisdiction but it is necessary to ever keep in mind that equity is intended to supply deficiencies in law and is not to be exercised as a substitute for law but to supplement it and to furnish relief in those cases in which speed may be necessary or disorder or irreparable injury may result from the necessity of following the ordinary course of the law. Equity will not usurp the functions of the law and certainly will not interfere in the enforcement of the criminal law where a complete defense is available at law. Such interference would result in untold mischief and would remove causes from the tribunal in which they are to be tried under our Constitution and laws.

The,, general rule is stated in Snyder v. City of Alliance, 41 Oh Ap 48; Lyons v. City of Cincinnati, 55 Oh Ap 458. In the latter case reference is made to 7 R. C. L., 1048, in which the general rule is discussed at some length. .

In 28 Am. Jur. page 413, Sec. 233, et seq., the general rule is stated to the effect that on sound principle of public policy the courts ought not to interfere with the representatives of the public in their efforts to enforce the law, and that it has become a well established rule that equity will not enjoin criminal proceedings or attempt to stay the hands of peace officers in enforcing criminal laws except where the law attempted to be enforced is unconstitutional and void and the enforcement will result in irreparable injury to vested property rights.

Bingo is a simple operation not involving any paraphernalia of a cumbersome, extensive or expensive character, and it cannot possibly be successfully claimed that the intervention of a court of equity is necessary to protect those threatened with arrest for promoting it or indulging in it, whether for charity or otherwise. This action involves nothing in fact beyond the fear of the plaintiffs that they will be arrested and successfully prosecuted if they resume their bingo operations. If such operations are resumed and arrests made, the issues will be joined in a court of law and there decided under the rules applicable in such court to the trial of such issues.

Able counsel for the plaintiffs will undoubtedly feel hurt by the apparent disregard by the Court of the exhaustive briefs filed in this cause and the authorities therein cited. The Court has perused them carefully and fully appreciated them but takes the view that the relief sought by the amended petition cannot be granted in this cause and that, therefore, the right or lack of right of plaintiffs to engage in the operation of bingo games for charity is not reached. The briefs and labors of counsel are eloquent testimony to the broad issues which a court of equity would have to inquire into and decide to afford to plaintiffs the relief which they seek — issues which are to be, and easily can be, determined in a court of law without risk or injury to plaintiffs or others beyond those risks and injuries, if such they may be termed, which are the lot of any citizen who engages in activities believed by law-enforcing officials to be violations of the criminal laws.

The Court has made his own exhaustive and careful search of the authorities in our own state and in other jurisdictions on the two questions involved in this cause (the right to a declaratory judgment and the right to a restraining order) and is quite convinced that the amended petition does not state facts which entitle the plaintiffs to any relief at the hands of this Court.

A decree will be entered on the Journal as of this date sustaining the demurrers to the amended petition and dismissing the amended petition at the costs of the plaintiff. Exceptions will be noted, and bond for appeal will be fixed at $200.00.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    VETERANS OF FOREIGN WARS et, Plaintiff-Appellants, v. SWEENEY, Sheriff et, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22457.
    Decided June 23, 1952.
    (HUNSICKER, PJ, DOYLE, J, of the 9th District; METCALF, J, of the 4th District, sitting by designation in the 8th District.)
    Phillip Bartell, Cleveland, for plaintiff-appellants.
    Saul S. Danaceau, Roland Baskin, Cleveland, for defendantappellee.
   OPINION

By THE COURT:

This is an action for declaratory judgment, whereby plaintiffs sought to have their rights determined in the operation of a “Bingo” game and to restrain the defendants from interfering with the operation thereof.

Defendants demurred to the amended petition, which demurrer was sustained by the Common Pleas Court and the amended petition was dismissed. From this judgment the appeal stands on questions of law.

The parties were favored with an exhaustive and well written opinion by the trial court, and this court adopts the reasoning and conclusions therein reached. See also: Driskill v. City of Cincinnati, 66 Oh Ap 372, and that part of Borchard’s Declaratory Judgments, page 40, quoted with approval on page 375 of the Driskill case.

None of the four separate assignments of error are well made; there is no prejudicial error herein, and the judgment is affirmed. Exceptions noted. Order see journal.

HUNSICKER, PJ, DOYLE, J, METCALF, J, concur.


author: By HORNBECK, PJ:

text:
    STEPHEN, Adoption, In re: STEPHEN et, Petitioners-Appellants, v. MILSTEAD, Respondent-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 702.
    Decided March 27, 1952.
    Spidel, Staley & Hole, Max Harley, Greenville, for appellants.
    Bowen & Duning, Richmond, Indiana, for appellee.
   OPINION

By HORNBECK, PJ:

This is an appeal on questions of law from a judgment of the Probate Court dismissing appellants petition for adoption of a child, Barbara Ann Clevenger, of whom the appellee is the mother and Russell Clevenger is the father. The father consented, in writing, to the adoption as prayed and the petition alleged that the written waiver of the mother was not required because she had willfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition.

The matter came on to be heard upon the latter averment. Respondent was called as upon cross-examination and petitioners offered their evidence in chief and rested. At the conclusion of their case appellee moved for a dismissal of the petition for the reason that petitioners had failed to establish their essentials of proof. This motion was sustained and judgment entered accordingly.

Four errors are assigned the first of which is that the Court erred in refusing to admit evidence offered by the petitioners * * *, This assignment has been abandoned as there is no specification of the testimony proffered which it is claimed the Court refused to accept.

The other three assignments are directed to the correctness of the action of the Court in granting respondents motion to dismiss.

Appellants urge that they made a prima facie case in their behalf which was sufficient against the motion for a dismissal that upon such motion the evidence must have been resolved most favorably to them. Hamden Lodge v. Gas. Co., 127 Oh St 469. The rule announced in the third syllabus of this case is not applicable. Here the judge was not only the trier of the law but also of the issues of fact. Upon the determinative issues of fact, under the statute §8004-6 (B) (4) GC the burden was upon the petitioners. If they had not met that burden when they rested, it would have been a vain and useless procedure to require the defendant to offer her testimony. The case which plaintiffs had made when they rested must have been sufficient to preponderate in their behalf on all material issues and this required the weighing of the evidence by the trier of the facts.

It is not necessary to draw any fine distinction as to the extent of the obligation of proof upon the petitioners at the time that the motion was made because as to certain material facts essential to petitioners case, there is complete failure of proof.

The applicable §8004-6 GC provides that:

“No final decree of adoption shall be entered by the court unless written consents to the adoption shall be filed with the court.

“(B) By each of the living parents * * * except as follows:

“(4) If it is alleged in the petition that one or both of the parents have willfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition.”

The record discloses the failure of the petitioners to support the essentials of their proof in four particulars.

1. —That defendant was under legal obligation to support the minor during the full period of more than two years prior to the filing of the petition.

2. —-That the time during which the defendant did not support the child covered the period required by the statute, viz: more than two years prior to the filing of the petition.

3. —That the failure of defendant to support the child was willful. Gates, In re, Parr, et al v. Gates, 53 Abs 315; Poet v. Rosinski, 60 Abs 513.

4. —The ability of respondent to support the child. Sec. 8002-3 GC. In re Goodfleisch, 73 Oh Ap 17.

The petition for adoption was filed September 10, 1951. Thus, the two year period involved began prior to September, 1949. 1. — Under the statute 88002-3 GC, the defendant was not required to support her minor child until and unless the father was unable to do so. Not only was the father primarily liable for the support of the child by statute, he also was expressly charged with that obligation by court order made sometime in the summer of 1946. This order was subsisting at all times involved in this action. 2. — It is undisputed that the father of the child recognized his obligation of support and with but two exceptions for short periods of time met that obligation. Mrs. Stephen, to whom the father sent the support money for the child testifies that he fully complied with the court order in 1948, 1949 and until December, 1950. Manifestly, the father was providing support for the child during the greater part of the two year period prior to the filing of the petition for adoption.

The father suffered an accident in December, 1950, which incapacitated him until July, 1951 when he returned to work and presumably was able to continue his payments under the support order of the court. Thus, it clearly appears that the only period during the two years prior to the filing of the petition that the defendant could conceivably have been liable for the support of her child was from December, 1950, until July, 1951, seven months in all. 3. — The parents were separated and divorced in February, 1946. The father of the child remarried and the mother remarried twice, moved to California in November, 1948 and lived there until February, 1950, when she returned to Indiana.

The Court had a right to find that it did not appear that the defendant knew that the father of the minor was not observing the support order or that he was unable to do so. So that there is an absence of proof that even for the time when the respondent should have been providing for the minor the failure could be held to be willful.

The action of the Court in sustaining the motion to dismiss was not against the weight of the evidence, nor contrary to law.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By MILLS, J.

text:
    BRODNICK v. MUNGER et.
    Common Pleas Court, Montgomery County.
    No. 102530.
    Decided October 22, 1951.
    Pickrel, Schaeffer & Ebeling, Dayton, for plaintiff.
    Mathias H. Heck, Pros. Atty., Dayton, by Pierce Wood, Special Pros. Atty., Dayton, for defendant.
   OPINION

By MILLS, J.

This matter was submitted to the court upon the pleadings, an agreed statement of facts, and briefs of counsel.

The petition recites as follows:

“Plaintiff brings this action under §12102-1 to §12102-16, inclusive, GC, known as the Uniform Declaratory Judgments Act, for the purpose of obtaining by this court a declaration of the rights, status and duties existing between the parties hereto, and other persons similarly situated and residing in trailers in Montgomery County, Ohio.

“Plaintiff says that the defendants, Harry J. Munger, John E. Brumbaugh and John F. Ahlers, comprise the regularly elected and acting Board of County Commissioners of the County of Montgomery and State of Ohio; that the defendant, Dayton Power and Light Company, is a public utility corporation engaged in the business of supplying electrical power and natural gas to the county of Montgomery and various other localities; that the defendant, Robert Gray, is the duly appointed building inspector of Montgomery County, Ohio, appointed by the said Board of County Commissioners of Montgomery County, Ohio, and acting under the authority delegated to him by the said Board of County Commissioners.

“Plaintiff further alleges that on June 17th, 1947, the Board of County Commissioners, composed of the said Harry J. Munger, John E. Brumbaugh and John F. Ahlers, adopted by resolution a code of building regulations known as the Building Code for Unincorporated Areas of the County of Montgomery, State of Ohio, by virtue of authority contained in §2480 GC.

“Plaintiff further says that at all times hereinafter alleged he was the owner of a 1948 Kozy Coach House Trailer; that on or about July 10th he placed the said trailer upon a tract of land known as 2836 Horlacher, Van Burén Township, Montgomery County, Ohio, which tract was owned by the father of this plaintiff and adjacent to his father’s residence; that said trailer was parked on the said premises described, resting upon the two wheels of said trailer, the front end of said trailer being supported by cement blocks; that a foundation of.cement blocks was built extending from the ground to the floor level of said trailer; that said house trailer was intended to be used as a home for the plaintiff and his Wife; that he brings this action for the benefit of himself and other residents of Montgomery County, Ohio, residing in trailers and located in the unincorporated areas of Montgomery County, Ohio.

“Plaintiff further alleges that on or about June 30th, 1950, he requested the defendant, the Dayton Power and Light Company, to connect electrical power to his trailer; located at 2836 Horlacher in Van Burén Township from existing power lines in the vicinity; that this plaintiff was told by an official of said defendant corporation that such a connection could not be made until he had obtained a permit from the Montgomery County Building Inspector, authorizing said connection; that on the same day the plaintiff called at the office of the Building Inspector, Montgomery County, Ohio, for the purpose of obtaining a permit which would enable him to obtain electrical service; that at that time this plaintiff was informed by the defendant, Robert Gray, acting in his official capacity as building inspector for Montgomery County, Ohio, that he would not authorize the inspection required as a prerequisite for the issuing of such a permit for the reason that a trailer is a residential building within the meaning of the Building Code for Unincorporated Areas of the County of Montgomery, and that since said trailer did not comply with said Building Code for want of a permanent foundation, in accordance with specifications outlined in said code, no permit could or would be issued for the reason that said trailer could not be used for a residence in any event and irrespective of the result of said inspection of the wiring.

“Plaintiff further alleges that trailers are constructed primarily of metal; that most trailers are not flat on the bottom thereof and afford no means of affixing same to a cement foundation as required by the Building Code in a manner which would assure its remaining on said foundation under adverse weather conditions.”

This plaintiff further says that the pertinent sections of the Building Code for Unincorporated Areas of Montgomery County, Ohio, pertaining to electrical installations are found in Chapter 13 of said Code, Section 1302 of which reads as follows:

“(a) New Buildings — No person engaged in the business of transmission or sale of electricity shall make any installation connecting service lines with electric wiring and apparatus in any building, or furnish electricity to any building, until an inspection of such wiring and apparatus is made by the County Building-Inspector or the Bureau approved by him and a certificate of approval issued. A copy of the certificate shall be forwarded to the person making the service connection.

“(b) Existing Buildings — No person engaged in the business of transmission or sale of electricity shall continue furnishing-electricity to any building after being notified in writing by the County Building-Inspector or the Bureau approved by him that the wiring system is defective, has been altered or added to and is not in accordance with the provisions of this Code. All such wiring, material, apparatus and/or equipment shall comply with the requirements of this Code and inspection of such additional wiring apparatus and feeders shall be made and approved as provided in Section 1302 (a). A copy of the certificate of approval of such inspection shall be forwarded to the person furnishing the electricity.”

The pertinent Section regulating footings and foundation walls is Section 718-1 of the Building Code, which reads as follows:

“Section 718-1 — Footings and foundation Walls.

“(a) Footings of all foundation walls shall be of poured concrete. The base areas of all footings and foundations shall be proportioned as specified in Section 605(c).

“(b) Solid masonry foundation walls and those of concrete block shall be not less in thickness than the wall immediately above and in no case less than 8 inches thick.

“(c) When the stresses due to earth pressure, surcharges and superimposed loads exceed the maximum working stress permitted by this Code for the materials used, and the additional stresses are not otherwise provided for, the wall thickness shall be increased to bring the stresses within the required limits.

“(d) All foundation walls shall extend below the level of frost action and in no case less than 30 inches below finished grade excepting non-residential buildings of 600 square feet or less in area may have a minimum depth of 12 inches.

“(e) Ventilators shall'be provided in foundation walls for the space between wood constructed floors and the ground surface where such space is not utilized as a basement and otherwise ventilated. Not less than two (2) ventilator openings aggregating one (1) square foot of area for each 25 lineal feet of exterior wall shall be provided. Such openings shall be covered with gratings or wire mesh in which the mesh openings are not larger than one-half inch in any direction.”

Section 636, Sub-section (o), of said Code, further provides that all said foundations shall be concrete, 18 inches between the ground level and any wood portion of. said building. It reads as follows:

“(o) In basementless spaces ground level shall be at least 18 inches below the bottom of all joists, beams and griders. Where it is necessary to provide access for maintenance and repair of piping, etc., in the under floor space, a minimum clearance of 24 inches below bottom of lowest wooden member shall be provided. Where the interior ground level in basementless spaces is below outside finish grade or if the grade is lowered under beam or girder, adequate precautionary measures shall be taken to assure positive drainage at all times.”

Section 201-8 of the Building Code defines a building as follows:

“Section 201-8 — Building.

“Any construction built or 1 used in whole or in part for the shelter or enclosure of persons or chattels, and any part of such construction divided by required fire separations. The term ‘building’ shall be construed as if preceded by the word ‘residential’.”

Plaintiff further alleges that house trailers are not excepted from any of the provisions of said Code; that if the defendant County Commissioners and the County Building Inspector can force owners of trailers to erect permanent foundations under trailers when they are used as a residence, they can likewise enforce all other Sections of said Code against trailers which they cannot meet, with the result that no trailer could be used as a residence in Montgomery County, under the existing Building Code..

That the following are a number of the Sections of said Code which no trailer can meet:

“Section 402 — Lighting and Ventilating of Rooms.

“(3) Room sizes.

“(a) In every building hereafter erected or substantially altered, all rooms, except water closet compartments and bathrooms, shall contain at least 80 square feet of floor area and. no such room shall be in any part less than 8 feet wide. The foregoing provisions shall not apply to one kitchenette in any apartment of a multiple-dwelling, nor to one dining alcove in each apartment suite or group of rooms in any building.”

The above quoted Section requires the width of each room to be eight feet wide. However, §7248-2 GC provides that no vehicle shall be operated upon the public highways whose over-all width is in excess of *&6 inches. For this reason it is impossible, under Ohio law, to have a trailer room eight feet in width on the inside thereof.

Section 402(3) provides as follows:

“Section 402 — Lighting and Ventilating of Rooms.

“(3) Room Sizes.

“(b) In every building hereafter erected or substantially altered there shall be in each apartment, suite or group of rooms at least one room containing not less than 132 square feet of floor 'area.”

Very few trailers, if any at all, contain a room with 132 square feet floor area, as most trailers consist of a living room, kitchen and bedroom, and the square foot area of each is substantially less than 132 square feet.

Section 402(4) provides as follows:

“(4) Room Heights.

“No room in any building hereafter erected or substantially altered, shall be in any part less than 7' 6" high from the finished floor to the finished ceiling. Attic rooms, used for living purposes in dwellings shall be not less than 4 feet high at any point and shall be not less than 7 feet six inches in height for at least one-half of the floor area. In no case shall any room in residential occupancy contain less than 600 cubic feet of air space.”

This requirement that no room shall be in any part less than seven feet, six inches high from the finished floor to the finished ceiling, rules out all trailers manufactured in the past and now being manufactured, for the reasons that all trailers’ room heights range from 6' 6" to 6' 8" in height.

Section .722(b) of the Building Code, in reference to flue lining, contains the following requirement: “Flue linings — Flue linings shall be manufactured from fire clay or other suitable refractory clays, either natural or compounded, adapted to withstand reasonable high temperatures and flue gases, and shall have a softening point not lower than 1994° fahrenheit (Seger Cone 03). Flue linings shall be a standard commercial thickness, but not less than % inch. They shall be carefully bedded one upon another in fire clay mortar with all joints left smooth on the inside. * * *”

There are no fire clay flue linings in trailers manufactured at this time as all of said trailers contain metal flues.

Section 1405 of the Building Code, pertaining to downspouts, has the following requirement: “All buildings shall be provided with downspouts which will conduct roof water so as to prevent damage to buildings, walls, foundations and ajoining property.”

No trailer is equipped with downspouts and it is obvious from an examination of the same that the same are not needed or required.

Section 1409 of the Building Code, in regard to toilet compartments, has the following requirement:

“Toilet Compartments and Partitions:

“Compartments enclosing individual water closets shall be not less than 7 feet high in the clear and not less than 2 feet 6 inches wide. The minimum length shall be 4 feet for compartments enclosing wall tank type closets and 3 feet for compartments enclosing flush valve type. * * *”

Here, again, the T height limit precludes a trailer from complying with this section.

Plaintiff further says that there are other sections of the said Building Code which no house trailer now manufactured can meet, and the above sections are quoted as examples of the unreasonableness of the application of said -Building Code when applied to house trailers, and the impossibility of a house trailer meeting said requirements.

Plaintiff further says that if said Building Inspector attempts to enforce the provisions of the Building Code against his trailer and against other trailers in Montgomery County, Ohio, great numbers of people will be forced to abandon said trailer homes or leave Montgomery County, and irreparable injury will result.

If the said Building Inspector can force the erection of foundations for trailers, he can enforce Section 106 of said Building Code which provides as follows: “It shall be unlawful to maintain, occupy, or use a building, which has been erected or altered in violation of the provisions of this Code.”

Plaintiff states that if a trailer is a residential building under the terms of §2480 GC, and subject to the Building Code for Unincorporated Areas of Montgomery County, Ohio, then the Building Inspector would be authorized to prevent occupancy of a trailer in Montgomery County for any period of time whatsoever.

Plaintiff further states that said Building Code purports to be enacted under authority of §2480 GC, and that the pretended actions of the Building Inspector of Montgomery County, Ohio, to require foundations under trailers as a condition precedent to obtaining an electrical permit, is unlawful, null and i void.

Plaintiff further alleges that the authority given to the County Commissioners under §2480 GC, to “enforce regulations * * * pertaining to the erection, construction, repair, alteration and maintenance of residential buildings” does not include house trailers, for the reason that a trailer is not a residential building within the meaning of the said §2480 GC.

Plaintiff further states that if the court finds that a house trailer is a residential building under §2480 GC, then the subject Building Code adopted by the Board of County Commissioners of Montgomery County, Ohio, is unlawful as being unconstitutional, is unreasonable, confiscatory, and discriminatory for the reason that said Code, as drawn, does not set up standards for trailers but, in effect, prohibits trailers from being used as a residence in any portion of Montgomery County, Ohio.

Wherefore, plaintiff prays the judgment and direction of the Court in the following respects:

“1. Is a house trailer a ‘residential building’ within the meaning of said §2480 GC, so as to authorize the Montgomery County Building Inspector to refuse to make the inspection required .to obtain a permit for electrical connection for the reason that said trailer has no permanent foundation, as required in said Building Code, and could not be used as a residence?

“2. If a house trailer is a residential building under §2480 GC, is the existing Building Code for Unincorporated Areas of Montgomery County, Ohio, containing the provisions enumerated herein, among others, a valid exercise of the power given by §2480 GC, or is same unlawful or unconstitutional, as unreasonable, confiscatory or discriminatory?”

The answer of the defendants, the County Commissioners of Montgomery County, Ohio, reads as follows: “For their answer to plaintiff’s petition, Harry J. Munger, John E. Brumbaugh and John F. Ahlers, as the Board of County Commissioners of Montgomery County, Ohio, and Robert Gray, as Montgomery County Building Inspector, admit that they hold these offices, as alleged in the petition; admit the adoption of the Code of Building Regulations known as the Building Code for Unincorporated Areas of the County of Montgomery; admit that defendant, Gray, refused to authorize the inspection of plaintiff’s house trailer as a prerequisite for the issuance of a permit to the Dayton Power and Light Company to connect electrical power to said trailer; admit that this refusal was on the ground alleged in the petition, and admit that the various sections of said Building Code set forth in the petition were enacted as so set forth.

“Further answering, these defendants deny each and every allegation in said petition set forth.

“Wherefore, these answering defendants pray that the plaintiff’s petition be dismissed at its costs.”

The matter being at issue, counsel has filed the following agreed statements of facts.

“It is stipulated by and between the parties hereto, as follows:

“1. Plaintiff is the owner of a 1948 Kozy Coach House Trailer, which, on or about July 10, 1950, he placed upon a tract of land known as 2836 Horlacher, Van Burén Township, Montgomery County, Ohio, which tract is owned by plaintiff's father and is adjacent to the latter’s residence.

“2. Said trailer is parked upon said premises resting upon the two wheels of said trailer, the front end being supported by cement blocks. A foundation of cement blocks has been built, extending from the ground to the floor level of the trailer. Said foundation serves only as a wind break. It does not bear any of the weight of the trailer and is not physically connected with it.

“3. The plaintiff and his wife, intend to use the trailer as a home.

“4. Trailers are constructed primarily of metal. Most trailers are not flat on the bottom and afford no means of affixing same to a ce'ment foundation, as required by the County Building Code, in a manner which would assure the trailer remaining on the foundation under adverse weather conditions.

“5. Very few trailers, if any, contain rooms with 132 square feet of floor area, most trailers consisting of a living room, kitchen and bedroom, each of which has substantially less than 132 square feet of floor area.

“6. No trailer can comply with Section 402 of the Montgomery County Building Code, (31 (a) requiring rooms eight feet in width in residential buildings, and still remain in compliance with §7248-2 GC, limiting vehicles traversing highways to 96 inches in over-all width.

“7. The distance from the finished floor to the finished ceiling in all standard trailers ranges between six feet, six inches, and six feet, eight inches.

“8. Standard trailers do not have fire clay flue linings, but rather have metal flues.

“9. No trailer is equipped with downspouts.

“10. No standard trailer has a clearance of seven feet from ceiling to floor in its toilet compartments.

“11. If all applicable sections of the Montgomery County Building Code were rigidly enforced, it would be illegal to maintain any standard form of house trailer within the unincorporated areas of Montgomery County. The Montgomery County Building Inspector has not attempted to enforce those sections of the Code relating to floor areas and ceiling height, room width and other dimensional requirements, in the case of house trailers, limiting rather his enforcement to that section of the Code requiring residential buildings to be affixed to permanent foundations and only in those cases where trailers are being used as permanent homes outside regularly established trailer courts but- by virtue of said Building Code, authority is given to said Building Inspector to enforce all sections thereof.

“12. A copy of the Montgomery County Building Code is attached hereto and made a part of the record of this case in its entirety.

“It is further agreed by and between the parties that this cause be submitted to the court for its decision and judgment upon the two issues set forth in plaintiff’s petition, as follows:

“I. Is a house trailer a 'residential building’ within the meaning of §2480 GC, so as to authorize the Montgomery County Building Inspector to refuse to make the inspection required to obtain a permit for electrical connection for the reason that said trailer has no permanent foundation, as required in said Building Code, and could not be used as a residence?

“2. If a house trailer is a residential building under §2480 GC, is the existing Building Code for Unincorporated Areas of Montgomery County, Ohio, containing the provisions enumerated herein, among others, a valid exercise of the power given by §2480 GC, or is same unlawful or unconstitutional, as unreasonable, confiscatory or discriminatory, insofar as it applies to house trailers?

“It further is agreed by and between the parties that the plaintiff will submit his brief within thirty days from date hereof, and the defendants within twenty days thereafter.”

The first question for the court to consider is: “Is a house trailer a ‘residential building’ within the meaning of §2480 GC, so as to authorize the Montgomery County Building Inspector to refuse to make the inspection required to obtain a permit for electrical connection for the reason that said trailer has no permanent foundation, as required in said Building Code, and could not be used as a residence?”

The County Commissioners were authorized under §2480 GC entitled “Regulation of construction, eta», of buildings in unincorporated portion of county; appeal; penalty for violation,” which reads: “The board of county commissioners of any county, in addition to the powers already granted by law, may adopt, administer and enforce regulations pertaining to the erection, construction, repair, alteration and maintenance of residential buildings within the unincorporated portion of any county. In no case shall said regulations go beyond the scope of regulating the safety, health and sanitary conditions of such residential buildings. * * *”

Pursuant to the enactment of §2480 GC and on June 17, 1947, the County Commissioners of Montgomery County, Ohio, adopted a Building Code, Section 102 of which, entitled “Scope,” reads as follows: “(a) All matters concerning, affecting or relating to the erection, construction, alteration, repair, removal, demolition, equipment, use and occupancy, location and maintenance of residential buildings in the unincorporated areas of Montgomery County shall be included in this Code and all reasonable rules and regulations adopted in furtherance thereof, and in conformity therewith, except residential buildings owned, used or occupied by farmers;” and then the County Commissioners proceeded to enact by resolution, and adopted a building code in conformity with §2480 GC.

The court has been referred to numerous cases in regard to trailers in the briefs of counsel, but the court has no precedent to follow in any of the cases cited nor in any case the court has found by research in any of the various state reports. The Supreme Court of the State of Ohio, in Renker v. Village of Brooklyn, 139 Oh St 484, 40 N. E. 2d 925, 929, passed upon the constitutionality of an ordinance passed by the Village of Brooklyn, Cuyahoga County, Ohio, regulating so called trailers and licensing and regulating trailer camps within the municipality. However, the issues in that case are somewhat different from the issues in this case, but the court upheld the constitutionality of the ordinance passed by the Village of Brooklyn, holding: “While under the police power, legislative bodies may regulate persons and property in the interests of public health, public morals and public safety, this power is limited by constitutional protection so that a citizen may not unreasonably, arbitrarily, or without due process of law, be deprived of his life, liberty and property. This constitutional right of a citizen cannot be abridged or destroyed under the guise of police regulation. Legislative bodies cannot by mere declaration make that a nuisance as a matter of law which is not a nuisance as a matter of fact but may become so only by reason of circumstances.” This is, however, from thfc dissenting opinion of Judges Hart and Williams. The court, in the dissenting opinion, goes on further to say:

“Personal liberty which includes the right of a citizen to choose his place of abode is one of the natural rights which has been protected by its inclusion as a guarantee in all the constitutions of this country. (Citing cases.)

“The right of personal liberty includes the power of locomotion, of changing situation, or removing one’s person to whatever place one’s inclination may direct without any restraint except by due process of law. * * *

“By reason of being a citizen of the United States, one automatically becomes a citizen of the state and the municipality in which he chooses to reside. A person’s right to live in the place of his choice does not depend upon the style or architecture of his abode. So long as he commits no crime and is obedient to reasonable regulations relating to the general welfare, the public health and safety of the community in which he lives, there he may remain.”

And quoting from Edwards v. People of State of California, 314 U. S. 160, 62 S. Ct. 164, 86 L. Ed. 119: “There appears to be nothing unusual about living in a trailer. The petition alleges that 600,000 trailers were manufactured in this country in 1937.”

If that were true in 1937, it is a question of how many more trailers have been manufactured and are in ■ use in all the states of the union, there being close to five thousand now being used in Montgomery County, Ohio. (Continuing) “If this is a fact, it is obvious that there must be a great demand for this kind of housing, and whether the demand arises from the standpoint of economy, the quest of pleasure from travel, the demands of health, or the shifting needs of employment, no reason can be assigned as to why the occupants of a trailer should be forced out of any municipality for a particular period of time for the sole reason that they occupy a trailer.”

Therein the above named judges dissented from the opinion of the majority. This court quotes from the language of that opinion merely for the purpose of reasoning. Times have changed considerably since 1937; there has been World’War Two, and now another war in which the United States of America is involved, under the police powers of the United Nations. This community, and other like communities of the state of Ohio, and all other states of this union, are in the process of manufacturing war materials and munitions, which involves the expenditure of millions of dollars, and employment of millions of men and women in this industry. People migrate from far off communities, artisans, mechanics of different trades; all necessary to the execution of this magnanimous project to be accomplished in a short space of time. It is apparent to everyone that there is a limitation of housing facilities in this and every other like community. Without permanent or temporary housing facilities this great work for the preservation of this nation and for world peace cannot be accomplished.

The legislature, in enacting §2480 GC states specifically the word “building.” They must have had in contemplation and before them at the time the knowledge of the existence of these thousands of trailers in the State of Ohio, and their locations, and their necessity in using the term or they would have included the word “trailers.” If they intended in the regulation of buildings to include trailers, they would include the word “trailers” in §2480 GC. The legislature must also have had in mind the fact that the height, breadth and length of trailers are limited, in order for them to be transported from one place to the other upon the roads of the State of Ohio. They must have taken into consideration the fact that no trailer, because of its dimensions, would be required to have permanent foundations as required by the ordinary building code for permanent buildings; that they did not have chim■neys and room dimensions and other regulations more specifically set forth in the building codes adopted by various county commissioners in the State of Ohio, or to be adopted by them, and the county commissioners of Montgomery County, when they adopted their building code, were confronted with the same knowledge of the existence of, close, to five thousand trailers in Montgomery County, and could not have been oblivious to the fact that trailers could not come up to many of the specifications as required in the code as adopted.

The commissioners of the various counties of the State of Ohio, acquire their authority in adopting their own code in their particular communities from §2480 GC, and it is so stated in the code adopted by the commissioners of Montgomery County, because the wording in their code is not dissimilar to the wording in §2480 GC. The owning, maintaining and the use of a trailer is a semi-nomadic way of life, especially in these times and in this community. The court, however, cannot disregard the reasoning of some of the learned judges in determining whether a trailer is a building in cases that have come before them.

The court held in Aetna Life Ins. Co. v. Aird, 5 Cir., 1939, 108 F. 2d at page 136, 125 A. L. R. 1436, that a house trailer was a building, under the conditions of that case and for the purpose of determining double indemnity for one who lost his life in a house trailer.

Judge Crawford, of this court, passed upon the case of State of Ohio v. Arthur Reay, No. 100485, on February 23, 1950, where Arthur Reay was convicted in the Court of the Justice of the Peace of Mad River Township on February 15, 1949, on a charge of having used for living quarters a trailer located in other than an approved trailer camp in violation of Section 401 (3) (f) of the Building Code for unincorporated areas in the County of Montgomery Ohio, under authority granted the County Commissioners by §2480 GC. Judge Crawford held:

“In no case shall said regulations go beyond the scope of regulating the safety, health and sanitary conditions of such buildings.”

“To go further and attempt to determine the place or places where the-trailers may be used for residential purposes is to exceed the scope of a building code and enter the field of zoning.”

Judge Crawford discharged the appellant, stating that the section of the Montgomery County Code was unlawful, unreasonable and therefore, unconstitutional.

Secs. 6290, 6292-2 GC, on imposing a use tax on house trailers for human habitation, hold: “7a. ‘House trailer’ means any self-propelled and nonself-propelled vehicle so designed, constructed, reconstructed, or added to by means of accessories in such manner as will permit the use and occupancy thereof for human habitation whether resting on wheels, jacks or other foundation and used or so constructed as to permit its being used as a conveyance upon the public streets or highways.” § 6290.

Sec. 7248-2 GC limits vehicles traversing the highways to ninety six inches.

It is apparent that a house trailer ninety six inches in width could not comply with all the regulations as provided in the building code adopted by the commissioners of Montgomery County, and the regulation of house trailers under this code must not have been in contemplation of the commissioners of Montgomery County in enacting their code because no house trailer could come up to the specifications required there. It is evident they are regarded by the state legislature as personal property and not places for permanent habitation.

The agreed stipulation of facts in this case says the trailer in question is resting upon two wheels, the front end being supported by cement blocks which serve only as a windbreak and do not bear any of the weight of the trailer and are not physically connected with the trailer.

The defendant, Robert Gray, acting in his official capacity as Building Inspector of Montgomery County, Ohio, refused to authorize the inspection required as a prerequisite to the issuing of a permit to the Dayton Power and Light Company for the reason that a trailer is a residential building within the meaning of the Building Code for Unincorporated Areas of the County of Montgomery and that since said trailer did not comply with said Building Code for want of a permanent foundation, in accordance with specifications outlined in said code, no permit could or would be issued for the reason that said trailer could not be used for a residence in any event and irrespective of the result of said inspection of the wiring.

The court is taking judicial notice that the location of said trailer is not in a trailer camp, and that to affix said trailer to a foundation as required by the code would be unauthorized.

The court, therefore, comes to the conclusion that under §2480 GC and the Building Code of Montgomery County, Ohio, a house trailer is not a residential building within the meaning of said sections, and therefore, no authority is given to the Montgomery County Building Inspector to regulate house trailers in any manner, either by provisions of §2480 GC, or the Building Code for Unincorporated Areas of Montgomery County, Ohio; as adopted by the County Commissioners of Montgomery County, Ohio, June 17th, 1947.

The court is not of the opinion, however, that the legislature of the State of Ohio cannot pass laws regulating house trailers used for human habitation.


text:
    BRODNICK, Plaintiff-Appellee, v. MUNGER et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2174.
    Decided April 3, 1952.
    Pickrel, Schaeffer & Ebeling, Dayton, for plaintiff-appellee.
    Mathias H. Heck, Pros. Atty., Pierce Wood, Special Pros. Atty., Dayton, for defendants-appellants.
    Victor Jacobs, Dayton, Amicus Curiae.
   OPINION

By THE COURT:

The question presented by this appeal is whether a house trailer is “a residential building” within the meaning of §2480 GC, and subject to the Building Code regulations duly adopted by the Board of County Commissioners of Montgomery County under the provisions of said act. The case was submitted to the trial court upon an agreed statement of facts and which are fully set forth in its opinion'. From these facts it appears that the house trailer was one of the usual type placed upon private property and used by the plaintiff and his wife as a permanent home, It also appears that the building regulations adopted by the Board of County Commissioners were of such a nature that a house trailer could not meet the requirements. The Court assigned two principal reasons for holding that it was not a residential building within the purview of the statute: (1) If house trailers were intended to be included in the act the Legislature would have so stated since it was fully aware of the fact that there were many thousands of them in use in the state; (2) That §6290 GC defines a house trailer as a vehicle which may be propelled and is so constructed as to permit occupancy for human habitation, etc. Judge Mills in a well considered opinion, consisting of some twenty pages, has so well expressed the reasons for his conclusions that we think nothing further need be added.

The judgment will be affirmed.

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


author: By SKEEL, PJ.:

text:
    STATE ex rel. McGOWAN, Relator, v. BOARD OF ELECTIONS OF SUMMIT COUNTY et, Respondents.
    Ohio Appeals, Ninth District, Summit County.
    No. 4291.
    Decided April 8, 1952.

      Paul C. Laybourne, Akron, for relator.
    Alva J. Russell, Pros. Atty., W. A. Spencer, R. E. Mohler, Asst. Pros. Attys., Akron, for respondents.
    (SKEEL, PJ, HURD, J, THOMPSON, J, of the Eighth District sitting by designation in the Ninth District.)
   OPINION

By SKEEL, PJ.:

The cause came on to be heard as an original action in mandamus seeking an order of this court to direct the defendants constituting the Board of Elections of Summit County. Ohio, to place the name of the relator on the ballot of the Democratic Party as a candidate at the primary election to be held May 6, 1952 for Congress from the 14th Congressional District of Ohio and also, to place the name of relator on the ballot of the Democratic Party as a candidate at said primary election for the office of State Central Committee Woman for the 14th Congressional District of Ohio.

The relator alleges that she is a member of the Democratic Party, an elector having her voting residence in Akron, Ohio which is within the 14th Congressional District of Ohio. She further alleges that she registered as a qualified elector with the Board of Elections of Summit County, October 2, 1930. She further alleges that she filed her Declaration of Candidacy and petition for Candidate and paid the required fee as a candidate for nomination by the Democratic Party for the office of Congressman for the 14th Congressional District of Ohio and that she also took all procedural steps necessary to file as a candidate for State Central Committee Woman of the Democratic Party for said 14th Congressional District.

The petition further alleges that on February 16, 1952 a protest was filed against said candidacies, charging that she was not an elector of Summit County or the 14th Congressional District which protest was based on the claim that Mary E. McGowan misstated her place of birth in her sworn application for registration.

The petition then alleges that there was a hearing on said protest before the Board of Elections prior to March 4, 1952 at which time certain evidence was presented in support of the claim that Mary E. McGowan was born in Ireland, although the registration card indicated that she was a native-born citizen, her place of birth being listed as Akron, Ohio.

The relator testified before the Board as alleged by her petition that to the best of her knowledge and belief, she was born in Akron which testimony was supported by other witnesses. She also introduced evidence that her father entered the United States from Ireland May 29, 1884 and on November 8, 1890 he filed a declaration of intention to become a citizen and by an order of the Probate Court of Summit-. County on November 8, Í892 became a citizen of the United States. The date of birth of the relator was shown by the evidence to be May 25, 1885.

The answer of the respondents admits the cancellation of relator’s registration as an elector of Summit County after hearing on a protest filed against her candidacies in the Democratic Party primary to be held May 6, 1952 for the offices of Congressman from the 14th Congressional District of Ohio and as Central Committee Woman of the Democratic Party from said 14th District and the refusal of the respondents as the Board of Elections of Summit County to accept the relator’s Declaration of Candidacy and Petition for Candidate for the offices above referred to. The other material allegations of the petition were denied by the answer.

Upon hearing the Board of Elections by resolution determined that:

“On motion of Walter Scheu and seconded by E. E. Leonard, it was unanimously resolved by the Board after hearing evidences and arguments of counsel on the protest of S. S. Phillips against the Candidacy of Mary E. McGowan who filed Declaration of Candidacy and Petition for the Democratic Nomination as a member of State Central Committee of the 14th Congressional District of Ohio that:

“1. False statements as to material matter, namely, as to her place of birth and nativity were made by said candidate in her registration form with knowledge of their falsity and that by reason thereof she was not registered as provided by law and that she has not complied with the law relating to Primary elections;

“2. That said candidate is not an elector of the 14th Congressional District of Ohio;

“3. That the Declaration of Candidacy and Petition of said candidate are determined to be invalid and are hereby rejected and the protest of S. S. Phillips is hereby sustained;

“4. And that the name of Mary E. McGowan, Democratic Candidate for the office of Member of State Central Committee is ordered not to appear on the Democratic Primary Ballots, May 6, 1952, and she be notified by letter of this action. Motion carried, all voting aye.”

“On Motion of Walter Scheu and seconded by E. E. Leonard' it was unanimously resolved by the Board after hearing evidences and arguments of counsel on the protest of S. S. Phillips against the Candidacy of Mary E. McGowan who filed Declaration of Candidacy and Petition for the Democratic nomination to the office of Congress of the 14th Congressional District of Ohio that;

“1. False statements as to material matter, namely, as to her place of birth and nativity were made by said candidate in her registration form with knowledge of their falsity and that by reason thereof she was not registered as provided by law and that she has not complied with the law relating to Primary elections;

“2. That said candidate is not an elector of the 14th Congressional District of Ohio;

“3. That the Declaration of Candidacy and Petition of said candidate are determined to be invalid and are hereby rejected and the protest of S. S. Phillips is hereby sustained.

“4. And that the name of Mary E. McGowan, Democratic Candidate for the office of Congress of the 14th Congressional District of Ohio is ordered not to appear on the Democratic Primary Ballots, May 6, 1952 and she be notified by letter of this action. Motion carried, all voting aye.”

The evidence presented in this proceeding was by stipulation the transcript and exhibits as presented before the respondents upon the hearing of the protest. The evidence was directed to the question of whether or not the relator was born in Akron or Ireland and as to the relator’s father becoming a naturalized citizen at a time when relator was under twenty-one years of age.

As to the first question, the evidence is in dispute, but there is no credible evidence which challenges the relator’s claim that her father was naturalized in 1892 when she was seven years of age. This fact being true, then she was a citizen of the United States from the date of her father’s naturalization under the statutes of the United States.

It therefore becomes a question of law as to whether or not the answers contained in the relator’s application for registration that she was born in Akron and was native born are material as affecting her right to exercise the privilege of franchise.

The duty of the Election Board is to see to it that only those who are privileged by law to vote are permitted to exercise that sovereign right. It is equally their duty not to deprive one who is by the constitution and laws of the United States and State of Ohio an elector of the right to vote or run for public office.

There is no evidence in this record that even attempts to show that Mary McGowan wilfully or corruptly made a misstatement of fact in her application to register as an elector in 1930. The Board in 1950 in considering the legality of relator’s registration found in her favor on exactly the same question as is here presented. If the issue of the legality of the relator’s registration as an elector had been tried before a court of law, a judgment entered upon trial upon the issues legally presented would have settled the question for all time and there could not be a subsequent proceeding in which the same issues could be retried. It would seem that where the Board of Elections by law is granted quasi judicial powers and in a proper proceeding in the exercise of such powers enters a finding after trial, the statute providing that in such matters “its determination shall be final” such finding should end the Board’s right to retry the same question.

In any event, if the answers which the Board now holds to be inaccurate and for which the relator’s registration as an elector was cancelled were the only basis upon which her right to be an elector could be based, then this Court could not in any way alter the finding of the Board, but where upon the face of the record the right of the relator to be an elector is shown without dispute, the fact that she may have been inaccurate in the statement of the facts upon which such right was based in her application for registration is not a sufficient cause upon which to deprive her of her rights of citizenship. Upon the face of the record as a matter of law, the relator is entitled to the writ as prayed for directing the Board of Elections to vacate the cancellation of her registration under the election laws of Ohio and to placing her name on the ballot of the Democratic Party as a candidate for Congress of the 14th Congressional District of Ohio at the primary election to be held May 6th, 1952 and also, as a candidate for State Central Committee Woman of the Democratic Party from the 14th Congressional District of Ohio.

Exceptions noted.

HURD, J, THOMPSON, J, concur.


author: By JONES, Chief Judge.

text:
    CARLSON v. GLENN L. MARTIN CO. et.
    United States District Court, N. D. Ohio, E. D.
    No. 26519.
    Decided February 14, 1952.

      Harley J. McNeal, Parker Fulton, Cleveland, for plaintiff.
    McKeehan, Merrick, Arter & Stewart, Edward D. Crocker, M. C. Harrison, Cleveland, Francis D. Butler, St. Paul, Minn., for defendants.
   OPINION

By JONES, Chief Judge.

This is a motion by defendant, Glenn L. Martin Company, to compel the joinder of Liberty Mutual Insurance Company of Boston, Mass., as an additional party plaintiff. Liberty Mutual is the compensation insurer of decedent’s employer. It has assumed and paid compensation benefits to plaintiff pursuant to the provisions of the Workmen’s Compensation Law of Massachusetts. Under the Massachusetts Act, Ann. Laws of Mass. c. 152 § 15, it is subrogated to the right of action plaintiff now asserts to the extent of its payments. Defendant contends, therefore, that it is a real party in interest in this litigation and should be joined.

The decision by the United States Supreme Court in U. S. v. Aetna Casualty & Surety Co., 338 U. S. 366, 70 S. Ct. 207, 94 L. Ed.. 171, makes it clear that a partial subrogee is a real party in interest under Rule 17 (a), whose joinder can be compelled under Rule 21. Fed. Rules Civ. Proc. 28 U. S. C. A. Joinder is contingent, of course, on the new party being subject to the jurisdiction of the court.

Defehdant has demonstrated that Liberty Mutual is subject to the jurisdiction of the court as to both service of process and venue, and that it can be made a party without depriving the court of jurisdiction of the parties now before it. It is not entirely clear, however, that the statutory assignment under Massachusetts law can be given effect in this action. It is upon that assignment that the status of Liberty Mutual as a real party in interest depends.

The present action is a diversity suit under the Wisconsin Wrongful Death Statute. St. 1949, §§ 331.01, 331.03. To when a right of action under the Wisconsin statute is accorded is a matter of local law which this court is required to follow in a diversity suit. Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed. 1188. The right of action established, however, the court is free to invoke the federal rule requiring the owner of the right to sue in his own name, this being a matter of procedure. Gas Service Co. v. Hunt, 10 Cir., 183 F. 2d 417.

The law of the forum for present purposes is the law of Ohio.

Rights under foreign death statutes may be enforced in Ohio. Sec. 10509-166 GC. In suits under such statutes, the Ohio courts look to the law of the state whose statute is invoked to determine questions relating to the rights and liabilities thereunder. Louisville & Nashville Rd. Co. v. Greene, 26 Oh Ap 392, 160 N. E. 495; Ford Motor Co. v. Barry, 30 Oh Ap 528, 165 N. E. 865; Restatement of the Conflict of Laws § 391. A federal court sitting in Ohio in a diversity suit must do likewise. Klaxon v. Stentor Electric Mfg., 313 U. S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477.

It is not clear from the decisions of the Wisconsin courts whether they would recognize an assignment of rights under their death statute accomplished by a foreign statute. It is their general practice, however, to give extraterritorial recognition to the statutes of another state if those statutes do not contravene the public policy of Wisconsin. Hughes v. Fetter, 257 Wis. 35, 42 N. W. 2d 452.

In Bernard v. Jennings, 209 Wis, 116, 244 N. W. 589, and Anderson v. Miller Scrap Iron Co., 176 Wis. 521, 182 N. W. 852, 187 N. W. 746, the highest court of Wisconsin refused to recognize an assignment under the Wisconsin Workmen’s Compensation Act in a suit under the death statute of another state. An examination of these cases reveals, however, that the persons receiving payment under the Wisconsin Act were the dependents of the deceased, while the person accorded the right of action under the foreign statute was the administrator. The holdings go no further than to decide that the dependents could not assign the right of action of the administrator under the foreign statute even though they might ultimately receive benefits under such statute.

The State of Wisconsin has a provision in its own Compensation Act, Wis. Statutes, 102.29 (2), similar to the assignment provision in the Massachusetts Act. This is a fact of importance to one attempting to determine what Wisconsin policy would be toward a Massachusetts assignment. No doubt it would have a strong influence upon a Wisconsin court.

The decisions and other factors discussed lead me to believe that the courts of Wisconsin would recognize a Massachusetts assignment. In this view of the matter, the joinder of Liberty Mutual Insurance Company will be ordered.

Motion granted.


author: By SKEEL, PJ.

text:
    VEST, Plaintiff-Appellant, v. KRAMER, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 22194, 22196.
    Decided July 2, 1951.

      Beach & Warner, Cleveland, for plaintiffs-appellants.
    Hauxhurst, Inglis, Sharp & Cull, Cleveland, for defendantsappellees.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered for defendant in the common pleas court of Cuyahoga County. The plaintiff, a minor of twelve years of age, brings this action by his father and next friend against the defendant, seeking damages for personal injuries suffered in an accident which occurred March 16, 1948.

There was also joined in this appeal the loss of services case of the father of David Vest. The court having entered a judgment against the plaintiff in that case, for the same reasons, and the errors upon appeal being the same, the results herein reached will apply to both cases, although the opinion is written as though it applies only to the case of David Vest, a minor.

The plaintiff, David Vest, a minor, was a member of Boy Scout Troop No. 214 in Berea. The defendant was assistant Scout Master of the troop. The troop was engaged in collecting waste paper to raise money for troop activities. The boys had collected and taken paper procured from homes, to the curb lawn. The defendant procured a two-wheel trailer, the bed of which was eight feet long and about four feet wide with side-boards about ten to twelve inches high. He attached the said trailer to the rear bumper of his automobile and with the help of the boys from the troop, including the plaintiff, loaded the paper into the trailer to take it to the Fair Grounds from which point it was to be sold. The paper was loaded on to the trailer until it was “filled and over-heaped.” Several of the boys, including the plaintiff, with the knowledge and approval of the defendant, climbed on top of the over-heaped papers for the purpose of riding to the Fair Grounds to unload them and also to hold the papers down enroute so that they would not slip or fall off.

The plaintiff’s opening statement was then, in part, as follows:

“* * * and after moving a short distance the overheaped papers became insecure and some fell off and defendant was advised thereof, and slowed down the speed of his automobile, and while this plaintiff, after replacing the dislodged papers was climbing aboard said moving trailer, defendant suddenly and without warning caused his auto and said trailer to move forward with increased speed and this plaintiff lost his grip and balance, whereupon his right foot became caught in one of the wheels of the trailer and in turn he was thrown under the wheels of said trailer and his left leg was twisted over his shoulder and broken and his right foot was badly bruised, wrenched and twisted, while defendant continued forward with said automobile and trailer. And we claim that, and expect to prove, that it caused David Vest, this minor plaintiff, severe and lasting injuries to his person.”

Upon the conclusion of plaintiff’s opening statement, which incorporated the allegations of his petition, the defendant moved for a directed verdict on the ground that the plaintiff at the time he was injured was a “guest” of the defendant in riding on the trailer attached to his (the defendant’s) automobile, and there being no claim that the plaintiff was injured by the wilful or wanton misconduct of the defendant, under the provisions of §6308-6 GC, a cause of action was not stated. The court granted said motion, dismissed the plaintiff’s petition and entered judgment for the defendant.

The plaintiff assigns the following errors:

“1. The trial court erred in granting the motion of defendant appellee for judgment in his favor upon the pleadings.

“2. The trial court erred in granting defendant’s motion for judgment in his favor upon the opening statement of counsel.

“3. The trial court erred in-granting defendant’s motion for judgment in his favor upon the pleadings and upon the opening statement of counsel.

“4. That the trial court erred in dismissing plaintiff-appellant’s petition and rendering judgment for defendant.”

The “guest” statute provides as follows:

“Sec. 6308-6 GC. Liability of owners and operators of motor vehicles to guests. The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”

In considering the plaintiff’s claims of error, two questions are presented.

1. Is the type of trailer admittedly used by the defendant to haul scrap paper and which was not designed to carry passengers, said to be a ‘motor vehicle’ within the meaning of that term as used in the ‘guest’ statute?

2. Was the plaintiff a ‘guest’ as the term is used in §6308-6 GC, while engaged with the defendant in the task of collecting scrap paper for Scout Troop No. 214, in which the plaintiff was a member and defendant an assistant Scout Master, the project being one in the interest of the troop? To create the relationship of host and guest to come within the meaning of the guest statute, the privilege of riding afforded the guest must be entirely gratuitous. No benefit, as compensation, for the ride, can flow to the host other than the pleasure of the guest’s company during the trip.

In the case of Hasbrook v. Wingate, 152 Oh St 50, at pages 56 and 57 the Court says:

“The general rule is that if the transportation of a rider confers a benefit only on the person to whom the ride is given, and no benefits other than such as are incidental to hospitality, good will or the like, on the person furnishing the transportation, the rider is a guest; but, if his carriage tends to promote the mutual interest of both himself and the driver for their common benefit, thus creating a joint business relationship between the motorist and his rider, or where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or services to the driver on a trip which is primarily for the attainment of some objective of the driver, the rider is a passenger and not a guest. 60 Corpus Juris Secundum, 1012, 1913, Sec. 399 (5); Scholz v. Leuer, 7 Wash. (2d) 76, 109 P. (2d) 294; Peery v. Mershon, 149 Fla. 351, 5 So. (2d) 694. See: Chaplower v. Powsner. 119 Conn. 188, 175 A. 470, 95 A. L. R. 1177; Eubanks v. Kielsmeier, 171 Wash. 484, 18 P. (2d) 48; Clendenning Admr. v. Simerman, 220 Iowa 739, 263 N. W. 248; Liberty Mutual Ins. Co. v. Stitzle, 220 Ind. 180, 41 N. E. (2d) 133.”

The facts stated by the plaintiff in his opening statement were to the effect that the defendant was directing the plaintiff and other boys in a Boy Scout activity. The plaintiff was under the supervision and care of the defendant. The defendant, in effect, stood “in loco parentis” with the plaintiff in providing for his safety, while engaged in Scout activities under his direction. As Scout Master, in directing the activities of the members of his troop, wherein the use of his motor vehicle became essential in carrying on such activities, he has the duty to exercise ordinary care in providing for the safety of the Scouts who become his passengers. The guest statute does not apply under such circumstances. The parties under these facts are each acting for their joint benefit in a common enterprise.

In the case of Woodman et al v. Hemet Union School District, etc. 136 Cal. App. 544, 29 P (2d) 257, the court had for consideration almost this precise question and held that a boy who had applied for membership in a Scout Troop, paid dues and was attending meetings and functions, was not a “guest” in a truck operated by another Boy Scout on a trip to procure rock and sand for fireplace at Scout Barracks, within rule requiring proof of gross negligence or wilful misconduct as a basis of recovery of damages for injuries sustained as the result of permitting the use of the truck in a dangerous state of repair. We conclude therefore that the plaintiff was not a guest under the provisions of §6308-6 GC.

Coming now to the question as to whether the trailer is to be classed as a motor vehicle under the provisions of the guest statute, §6308-6 supra, GC, the description of the “utility trailer” in the pleadings and the opening statement shows conclusively that it was designed for the carrying of property and not for passengers or guests. The box was about 8' x 4' by 8 or 10" deep with no provision for passengers. The term “motor vehicle” and the term “trailer” and “semi-trailer” is defined at the beginning of the chapter on motor vehicles in paragraphs 2, 7 and 8 of §6290 GC, as follows:

“2. ‘Motor vehicle’ means any vehicle propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires, except road rollers, traction engines, power shovels, power cranes and other equipment, used in construction work and not designed for or employed in general highway transportation, well drilling machinery, ditch digging machinery, farm machinery, threshing machinery, hay bailing machinery and agricultural tractors and machinery used in the production of horticultural, agricultural and vegetable products.

“7. ‘Trailer’ means any vehicle without motive power designed or used for carrying property or persons wholly on its' own structure and for being drawn by a motor vehicle, and means and includes any such vehicle when formed by or operated as a combination of a ‘semi-trailer’ and a vehicle of the dolly type such as that commonly known as a ‘trailer-dolly.’

“8. ‘Semi-trailer’ means any vehicle of the trailer type without motive power so designed or used with another and separate motor vehicle that in operation a part of its own weight or that of its load, or both, rests upon and is carried by such other vehicle furnishing the motive power for propelling itself, and the vehicle herein referred to, and shall include, for the purpose only of registration and taxation under the provisions of this chapter, any vehicle of the dolly type, such as a ‘trailer-dolly’ designed or used for the conversion of a ‘semitrailer’ into a ‘trailer.’ ”

These sections make a clear distinction between a trailer or semi-trailer designed for use for carrying property and one designed for carrying persons. This distinction is also made in the definition sections of the Traffic Code (§6307-2 GC). If these sections are to be considered in any way applying to the guest statute it is clear that a trailer designed exclusively for use in carrying property and not persons cannot be a motor vehicle within the meaning of the guest section.

. If the theory of the guest statute is to visit upon a guest who is riding upon or in a motor vehicle of another without being obliged to pay therefor, the obligation of assuming the ordinary perils of traffic and thus relieving the motorist on the grounds of common justice from injuries sustained by such guest because of the driver’s negligence, a motor vehicle owner or operator who attaches a utility trailer designed exclusively for carrying property should not expect the protection of the guest statute nor should such statute be so interpreted as to relieve him from his own negligence in knowingly permitting a boy twelve years of age to ride on such a trailer, particularly when it is overloaded and there is no place of reasonable safety for such rider.

We conclude, therefore, that the court committed reversible error in directing a verdict for the defendant.

The judgment is reversed and cause remanded for further proceedings according to law. Exc. Order see journal.

HUED, J, THOMPSON, J, concur.