author: By CONNELL, J.

text:
    DWORKEN, Plaintiff, v. BOARD OF EDUCATION (Cleveland), Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 604888.
    Decided June 13, 1950.
    Dworken & Dworken, Cleveland, for plaintiff.
    Lee C. Howley, Director of Law, Charles W. White, Asst. Director of Law, Cleveland, for defendant.
   OPINION

By CONNELL, J.

This is an action by a citizen and taxpayer against the Board of Education of the Cleveland City School District wherein injunctive relief is sought against “enforcing and carrying out” a certain resolution of the Board respecting alleged “loyalty oaths” and against the expenditure of any funds in connection therewith.

, The case is submitted on the pleadings, an agreed statement of facts, and briefs filed by the parties. On leave to intervene, ■ a brief Amicus Curiae was also filed by the National Lawyers Guild by Russell N. Chase, attorney, to “cover questions involving the United States Constitution and the Constitution of the State of Ohio.” The agreed statement of facts is as follows:

“1. Plaintiff is a citizen of the United States of America and the State of Ohio, and is a taxpayer of the Cleveland City School District, Cuyahoga County, Ohio, and as such taxpayer he has an interest in the subject matter of this suit in his own behalf as well as on behalf of other taxpayers, teachers and other .persons in said School District who may wish to join him in this proceeding.

2. Defendant, Board of Education of the Cleveland City School District, is a body corporate and politic, and that Norma F. Wulff, Franklin A. Polk, Carl F. Shuler, Alfred A. Benesch, Charles A. Mooney, Joseph M. Gallagher and Robert H. Jami-son compose said defendant Board, and that it has power to manage and control all of the public schools of the Cleveland City School District, to hire and discharge all employees and teachers necessary to operate said schools and to make such rules and regulations as it deems necessary for its government and the government of its employees and pupils of said School District.

3. That at a regular meeting of said defendant, to-wit; on Monday, May 23, 1949, the following Resolution was presented, acted upon and approved, and thereby became a part of the rules and regulations of said defendant:

No. 25918 — -Mr. Mooney.

FILING OF LOYALTY OATHS BY EMPLOYEES

WHEREAS, the entire American School System owes its existence to the supreme law of the land — the Constitution of the United States of America; and

WHEREAS, this is true of the Cleveland Public School Sytem, now, therefore, be it

RESOLVED, by the Board of Education of the Cleveland City School District that hourly employees excepted, all new employees be required and all present employees be requested:

1. To execute an math to support and defend the Constitution of the United States; and

2. To execute an oath that he or she is not a Communist, and is not a member of any organization advocating any seditious practice or overthrow of the United States Government.

Resolved also, that said oaths shall be substantially in the form required by the United States of all government employees, and be filed with the employment records of each individual at the Cleveland Board of Education.

Motion by Mr. Mooney, seconded by Mr. Gallagher that Resolution No. 25918 be adopted.

Adopted — Ayes—Benesch, Gallagher, Jamison, Mooney, Polk,

Shuler, Wulff.

Nays — None.

4. That thereafter at a regular meeting of said defendant, towit: on Monday, June 6, 1949, the following motion was made and entered upon the Minutes of said Defendant Board:

OATHS AND AFFIDAVITS OF LOYALTY

Upon motion the following oath and affidavit was given to the members of the Board of Education, the Clerk-Treasurer, the Superintendent of Schools and the Business Manager.

I do solemnly swear (or affirm) that

A. OATH OF OFFICE

I will support and defend the Constitution of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely without any mental reservation or purpose of evasion; that I will well and faithfully discharge the duties of the office to which I am appointed. SO HELP ME GOD.

B. AFFIDAVIT AS TO SUBVERSIVE ACTIVITY AND AFFILIATION

I do not advocate nor am I a member of any organization that advocates the overthrow of the Government of the United States of America by force or violence or other unconstitutional means, or that seeks by force, violence, or other unconstitutional means to deny other persons their rights under the Constitution of the United States of America, including without limiting the generality of the foregoing, organizations such as Communist, Fascist, and Nazi. I do further swear (or affirm) I will not so advocate, nor will I become a member of such organization during the period that I am an émployee (member) of the Cleveland Board of Education.

The signed oaths and affidavits were filed with the Clerk-Treasurer.

That all of the aforementioned members of said defendant actually took and signed said oaths and affidavits as herein-before set forth.

5. That thereafter in compliance with Resolution No. 25918 heretofore referred to, the following blank form was printed by said defendant and distributed to the teachers and other employees of said defendant:

CLEVELAND BOARD OP EDUCATION LOYALTY OATH and AFFIDAVIT

I-, do solemnly swear (or affirm) that A. OATH OF OFFICE

I will support and defend the Constitution of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely without any mental reservation or purpose of evasion; that I will well and faithfully discharge the duties of the office to which I am appointed. SO HELP ME GOD.

B. AFFIDAVIT AS TO SUBVERSIVE ACTIVITY AND AFFILIATION

I do not advocate nor am I a member of any organization that advocates the overthrow of the Government of the United States of America by force or violence or other unconstitutional means, or that seeks by force, violence, or other unconstitutional means to deny other persons their rights under the Constitution of the United States of America, including without limiting the generality of the foregoing, organizations such as Communist, Fascist, and Nazi. I do further swear (or affirm) I will not so advocate, nor will I become a member of such organizations during the period that I am an employee (member) of the Cleveland Board of Education.

Signature of Appointee

Subscribed and sworn before me this — day of-A. D. 19 At--

City State

Notary Public

(SEAL) « My Commission expires-

6. That 7500 forms of the oath and affidavit were printed at a cost of $33.63; that approximately 4800 blanks were distributed through the school mail together with the following form:

OFFICE OF THE CLERK-TREASURER CLEVELAND, OHIO

June 24, 1949.

TO THE EMPLOYEE IN CHARGE:

In accordance with Resolution No. 25918 dated May 23, 1949, all new employees and all present employees, HOURLY EMPLOYEES EXCEPTED, are requested to execute a copy of the attached Loyalty Oath and Affidavit. Kindly see that each employee affected receives a copy of the attached blank.

Please forward a copy of this form to any employee at your building or office who may be absent at the present time.

The Loyalty Oath and Affidavit should be completed before a Notary Public and returned WITH YOUR NEXT PAYROLL to the office of the Clerk-Treasurer, Room 403, Headquarters, Cleveland Board of Education, Cleveland 14, Ohio.

MICHAEL WACH

Clerk-Treasurer

By Alex L. Szabo

Chief Clerk-Payrolls.

OFFICE OF CLERK-TREASURER CLEVELAND, OHIO

June 17, 1949.

SPECIAL NOTICE TO THE PRINCIPAL:

Kindly see that a copy of the enclosed Loyalty Oath & Affidavit is furnished to each teacher at your building. This includes substitute teachers in open positions, teachers on an hourly rate, and tutors. Do not include clerks at this time.

The Loyalty Oath and Affidavit should be completed before a Notary Public and returned as soon as possible to the Office of the Clerk-Treasurer, Room 403, Headquarters, Cleveland Board of Education, Cleveland 14, Ohio.

S/ Michael Wach

MICHAEL WACH

and that approximately 4168 have been returned signed and sworn to.

7. That there are 150 schools in the Cleveland School District, and as of April 29, 1949, there were 100,714 pupils enrolled.

8. The Cleveland School Board employs in the Cleveland School District 3898 teachers and principals who must have the required education and certificate to teach as provided by law; that all other personnel of all classes employed in said School District number 2,631.”

The petition alleges that the defendant is a body politic with power to manage and control all its schools in the District, to hire and discharge employees and teachers necessary to such system, and to “make such rules and regulations as it deems necessary for its government and the government of its employees and pupils of said school district.”

The petition further alleges that the Board adopted the regulation quoted in the agreed statement of facts requiring “a loyalty oath and affidavit” from its employees, and it alleges that under §4842-12 GC this defendant can terminate the contract of a public school teacher for willful and persistent violation of the reasonable regulations of the Board. It alleges that such regulation is null and void for nine separately stated reasons involving the Declaration of Independence, the Constitution of the United States, the Constitution of the State of Ohio, and various statutes of the State of Ohio.

The petition further states that the Board has thus entered a field withdrawn by both the Constitutions from the “vicissitudes of political controversy,” and the petition further relates that the “right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, * * * do not depend * * * on the whims * * * of defendant Board.” The petition further states that such regulations will “lead to great confusion and contention, demoralize the teaching staff and undermine the prestige and stability of the public schools,” etc.

The answer admits the existence of the Board and its legal capacity; it admits the adoption of the resolution but denies generally the claims of plaintiff with reference to its legal effect.

It is the contention of plaintiff in its brief that the Board does not possess the legal power to promulgate and enforce the regulation with reference to its employees as set forth in paragraph 3 of the agreed statement of facts or to comply with its 'own motion as set forth in paragraph 4 thereof.

Plaintiff claims the Board does not possess such legal power, that such acts are void and in contravention of the Declaration of Independence, the Constitution of United States and the Constitution of the State of Ohio, and that for such reasons the defendant had no right to cause to be printed and distributed the forms signed by 4168 of the defendant’s employes, and no right to expend the $33.63 involved in their cost.

Before discussing the legality of Resolution 25918, we shall first determine what it undertakes to do. It first acknowledges the debt of our school system to the Constitution of the United States, and it then “requests” its present employes to take an oath to support and defend that constitution; it “requires” new employees to do likewise, and excepts hourly employees entirely from the regulation. So it is apparent that the Board desires that its teaching employees express a love of, and respect for, the fundamental law of the land.

The regulation contains an additional oath that one “is not a Communist, and is not a member of any organization advocating any seditious practice or overthrow of the United States Government.” So it is apparent that the Board desires that those teachers who have the privilege of • molding the minds of our children and one of whose primary duties is to teach them love of America and to inculcate in their little minds a sense of fairness, duty, decency, loyalty, charity, and all the virtues susceptible of being properly taught in a public school, shall not themselves be anti-American or personally actuated by motives contrary to the very ideals which they are expected to teach and inculcate by both their precept and their good example.

While the regulation is in the nature of a request of certain of those already employed, and a requirement of those who may be later appointed, it nevertheless carries no penalty for a refusal to comply, nor any implied threat thereof. And while the resolution is nearly a year old, no mention has here been made that if any employee has failed to comply his failure has had any consequences; in fact, it is apparent from a reading of the resolution that it contains no act of implementation whatsoever.

Plaintiff contends that by the instrumentality of this resolution the defendant attempts to increase the grounds for which it may remove its employes. Since the regulation contains no act of implementation, it is apparent that such is not the defendant’s intention, and that such is not the fact. The statutes of Ohio are controlling on this subject. Sec. 4842-12 GC gives ample protection to our school teachers under any and all conditions. Sec. 486-17-a GC does likewise for civil service employees.

Sec. 4834-5 GC gives this defendant Board the duty and power to “make such rules and regulations as it deems necessary for its government and the government of its employees and the pupils” of the schools. Thus the law gives a school board broad discretion in the determination of its policies and with that discretion no court will interfere unless the regulation involved is contrary to the letter and spirit of our law.

Has the Board here acted in contravention of law? Is it contrary to our law to request of a school teacher, on just one occasion during his tenure, to declare that he will: “support and defend the Constitution of the United States?” Is such a request contrary to the spirit of our law and so offensive to the sensibilities of public servants as to deprive them of some right of liberty, or free speech?

This plaintiff says it is contrary to the letter and spirit of our constitutions and laws. Plaintiff says it violates the Constitution for which the teacher proclaims his love and admiration. When a member of the military service takes an oath in support of his country, is he being deprived of his right of free speech? When a public officer swears to uphold the Constitution, is there some compulsion in that oath which offends his inner sensibilities? What is there about this phase of the oath which offends the plaintiff? Could any one who really loves the Constitution or his country have an objection to such an oath? what is plaintiff’s real objection? Would a teacher who objected to taking that oath be qualified sincerely to lead his class in the pledge of Allegiance to our Flag by which there is so frequently and beautifully engendered in the minds of our school children a love of this country?

When we were given the privilege, and it was a very great privilege, of practicing law before the courts of Ohio, and when we took an oath to support and defend its Constitution, did we hesitate because in the taking of that oath we felt that we were being deprived of the right of free speech? Can an assertion of love of the sacred instrument, which gives us our guarantee of free speech, constitute a denial of that same free speech? Would one who really loves our Constitution object to the expression of another’s love for it? Is there one teacher in all Cleveland who failed to get a justifiable thrill of pride in and love for his country when he took' the oath to which this plaintiff objects? Is it really the Constitution which this plaintiff here seeks to protect? If it is, he but complains that those who love it are willing to say so. And if it is not, then it could hardly be that proportion of the $33.63 which it will cost him as a taxpayer.

In determining its policy, and in the formation of its rules and regulations for the government of our schools, the Board is not circumscribed by any limitations other than that which is in contravention of our Constitutions and laws. There is here no implementation. But if there were, the Board would still have a right to formulate such policy as would not violate the Constitutions or the law.

In formulating such policy the Board is not limited only to those considerations of which a Court may take Judicial Notice, but it may go farther and protect our children from any dangers of which it may take reasonable perception and apprehension. And it has a right to take cognizance of any situation, any literature, any history, any information, .any chain of events, local, national, or international, which is brought to the attention of its members by any channel of ■communication whatsoever. Into its decisions as to policy may go the sum total of all of the experience, knowledge, and wisdom possessed by the members of the Board; and if a danger which it apprehends, or a condition which it fears is one concerning which some other people differ, the Board still has the duty of protecting our children by any rules and regulations for the government of our schools which it deems best, so long as constitutional guaranties and statutory limitations are not infringed upon.

The Board has a right to consider the general evils of Communism: its past efforts to control the education of the country and to indoctrinate the next generation with its notions: its efforts to Communize our college students; the college professors whom it has duped. It may consider the repeated efforts of the local Communist Party to get representation on our School Board. It may consider the propensity of Communism to degrade, deprave and pervert the human mind ;and to destroy the human will wherever it has any success: it may consider how all of its slaves lose their God-given right to think and to choose to do what is right.

It may consider how governmental agencies, which have tolerated Communists and Communism, have caused our country to suffer. It may consider that it took seven years for our government locally to order the deportation of Communist Balint; that it took seven years for our courts to convict Communist Bridges; that it took a years trial to convict eleven men in New York City who would overthrow our government; "that we have been very lenient with those who would overthrow our government; that when Communist Browder was convicted and imprisoned, our chief executive gave him freedom; that through the intercession of a member of the family of our chief executive, one Eisler gained entrance to these United States and was for years its topmost Communist; that through the leniency of a court which gave him a low bail, he escaped to Europe and is now chief propagandist for Russia in West Germany. It may consider that after Communist Anton Gubitchev had been entertained for years at our expense as an employee of the United Nations, and was convicted for his treacherous conduct to the United States, we arranged to send him back to Europe on a luxury liner for fear that his imprisonment would offend the Russians, who thanked us within a few days by destroying an unarmed American plane with ten Americans aboard over one of the little countries which once had our guarantee of freedom. The Board might consider that after Adolph A. Berle, Jr., Assistant Secretary of State and Ambassador William C. Bullock had advised our Chief Executive that Alger Hiss, was a Communist and Soviet spy, that Hiss was nevertheless taken as the President’s advisor to the Yalta conference where Marshal Stalin approved him as Secretary General of the San Francisco Conference which drafted the U. N. Charter,, which gave Russia the Veto Power by which she now negatives the free world. The Board might consider that two members, of the Supreme Court of the United States testified for Hiss; the Board might consider that the Secretary of State who-demoted Berle, after Berle had tried to protect his country, continues now to defend Hiss. They might consider the trade of half the world and our own future safety, for Stalin’s fleeting rubber smile, which trade was kept secret even from our succeeding president.

The Board may have remembered what happened in Berlin after we gave the Russians the honor of believing they won the town.

The Board might consider that perhaps one of the greatest sacrifices in men and material this country ever made went into the manufacture of a powerful bomb; and that every benefit we might have derived from that sacrifice was lost through the hiring of a single traitor into our midst. Dr. Klaus Fuchs, of whose Communistic connections we had been given ample notice by the Canadian government; that to date no action of any kind has been instituted against any of those responsible in this country for making the loss of that sacrifice possible through permitting Dr. Fuchs to enter and steal our secret.

The Board might consider that the sixth column has had more toleration from our topmost officials than was either proper or safe; though it never had such toleration from our people; that members of our Executive and State Departments seem to have less realization of our immediate danger than is possessed by our average workman: that no Eisler, Balint, Bridges, Browder, Fuchs, or Gubitchev could last seven minutes in any organization of American workingmen, though it takes seven years for the government to defend itself against their cold treachery. That they are forever being justified by those who give lip service to the Constitution. The Board might consider they have not committed treason for the one and only technical reason that the country is not actively engaged in a shooting war as such wars were originally defined: the Board might consider that the danger created to this country by their conduct is far greater because with the progress of the science of destruction whoever is so depraved as to make the first sneak attack becomes well-nigh the winner, and such sixth columnists constitute a constant preparation for such sneak attacks, under the unceasing pressure and motivation of a century-old fanaticism that would enslave the world, though if it ever does, those who gave lip service to our sacred instruments will not be at the handle end of the whip as they so rapturously now envision themselves.

In the formulation of this regulation the Board had a right to consider these and any other matters it chose to consider on the subject; to believe or disbelieve whatever came to its attention from any source or from any channel of communication whatsoever, and then to use that judgment and discretion for the possession of which the people of Cleveland elected the Board, in the formulation of its regulation, so long as it violated no law. This regulation of The Cleveland Board of Education, which lacks the implementation it really should •have had, has not legally violated any one of our sacred instruments. The only thing it has violated is the sensibilities of those who do not wish their treachery in embryo to be noticed; because those who would create danger to our nation are incensed whenever their motives are exposed. The one hundred thousand children our Board of Education must protect are entitled to its protection: and they are the primary concern of the Board, the people and the Court.

Thus, in the formulation of this regulation, the Board undoubtedly had two things in mind; one was receiving a positive expression of some employees that they who had the privilege of teaching our children love of country would themselves uphold and defend the United States Constitution which is the foundation of our rights; the other was the negative ■expression that those who had such privilege were not in any wise connected with, or sympathetic towards, the motives of the one and only country in the world which now endangers ours and which, if it succeeds in the fanatic determination ■of the last century to control the world in accordance with the doctrines of Karl Marx, will deprive us and our posterity of every right we possess, and as an incident thereto, destroy forever the Declaration of Independence, the Constitution of the United States, the Constitution of the State of Ohio, the State of Ohio, the City of Cleveland, the School Board defendant, the right of our teachers to teach our children the love of America, along with the right of parents and churches to teach them religion, along with the legion of other rights more precious than life itself which only we in America now possess.

This Court therefore presumes that the Board considered that this is one way of protecting our Constitution and our children through the positive assertion in the first part of' this oath.

That part of the second oath to the effect that one “is not. a member of any organization advocating any seditious practice or overthrow of the United States Government” requires no discussion here.

Courts now take judicial notice that whoever is a Communist is by reason of that fact a member of an organization the international purpose of which is to destroy the government of these United States. While our courts were slow to come to the view, and the higher the court the slower it came, our courts now nevertheless recognize and take judicial notice of this fact of which our people universally took recognition long before.

So our ultimate question is: Does this regulation violate the Declaration of Independence or the Constitution of the United States or State of Ohio in asking a school teacher if he is a Communist?

If he is not, he will be happy to answer, and offended only if he has no chance to answer.

No school teacher here complains.

Plaintiff is no school teacher.

Plaintiff can hardly be said to complain on behalf of the-teachers who were glad to take the oath. Plaintiff does complain on behalf of those whose “sensibilities” might be offended.

Many courts and legislative bodies have recently considered this very question. All Communists resent being asked the question because their effectiveness as agents of a foreign power which would destroy us evaporates when their admission becomes public. The decisions on the question have gradually though slowly changed as our courts have taken notice of what the people always knew. The Supreme Court of the United States has recently upheld the contempt findings against certain movie writers who refused to answer the same question put by a congressional committee. Such writers had used the privilege allowed them in a free country for the purpose of propagandizing the American mind with Communistic ideas because it is one of the indicia of this particular fanaticism that it seeks through every possible channel of communication to influence the thinking of others to the point where they will permit a so called “state” to do their thinking for them.

This country was a long time arriving at a self-defensive mechanism to prevent those who would destroy us from increasing their numbers for our destruction, and our courts Were slow to take the view that it is lawful to inquire as to whether one is numbered among those thus committed to our destruction. Nevertheless the courts finally did understand what the people always knew and have come to that viewpoint. Thus, in the case of Fawick Airflex Company, Incorporated, Plaintiff-Appellee, v. United Electrical Radio & Machine Workers of America, Local 735, et al, Joseph Kres, Defendant-Appellant, No. 21486, in an opinion rendered March 6, 1950 by the Court of Appeals of Ohio, Cuyahoga County, 8th District, Judges Conn, Hunsicker, and Doyle, sitting by designation (56 Abs 419), such court decided, with reference to the propriety of a witness being asked whether he was a Communist that:

“it was a proper field of inquiry to examine into the question of the witness’ membership or nonmembership in the present Communist Party in America.”

The Court further said:

“Certainly, in this year of 1950, judges of the courts of America cannot shut their eyes to things well known to every intelligent layman.

“The Communist Party abroad, with its American counterpart, is presently the powerful force which has caused and is causing the destiny of nations to hang in the balance in the ideological struggle between the communist-thinking and democratic-thinking peoples of the world; the party in the struggle for power would make ‘merchandise of * * * American principles’ and, in the process of forging ahead, it is well known that the sanctity of the truth and an oath may be, and is, pushed aside with impunity if warranted by the occasion.”

The Court made a further statement which is of some cogency in the matter before us, to this effect, and referring to membership in the Communist party:

“if the witness were not a member, no ignominy would touch him because of that connection. If he were a member, his membership in the intransigent group was of his own choosing, and, as such member, he could not complain on the ground of being degraded in the eyes of the community.”

Such reasoning applies equally well here.

In a sister case to the foregoing, No. 21497, of the same name, involving the same events, Judge Lee E. Skeel of our Court of Appeals of the 8th District of Ohio, wrote an opinion of the court in which was stated the following:

“Gradually the fundamental principles of the Communist Party have become matters of public knowledge. Their social and political theories are vastly different than those understood and supported by the loyal citizens of our democracy. Our fundamental beliefs are held at naught and have no binding effect in directing their social relations. It has been demonstrated times without number in recent years in trials and hearings before constituted public committees and bodies the fact that a member of the Communist Party is not bound by his oath under any circumstances. They feel no binding forcé to the sanctity of an oath. Judges and courts will not shut their minds to truths that all others can see and understand. It therefore is clearly demonstrated that the question of membership in the Communist Party is competent where there is some background for it to test the credibility of a witness.”

It would seem to this Court that a Board of Education might very properly consider that the molding of the minds of its youth, as well as the safety and perpetuation of the nation we inherited, are not to be outweighed by any consideration of the so-called “sensibilities” of those who would overthrow us.

The plaintiff here contends that the Board’s regulation is in the nature of a Bill of Attainder. He cites in favor of his contention the case of Cummings v. the State of Missouri, 4 Wallace (U. S.), 277.

This case has been rather exhaustively analyzed in a recent opinion of Judge Reynolds, of the Court of Common Pleas of Franklin County, Ohio, cause No. 178,255, which decision was rendered in March, 1950, in a case quite analogous to the instant case, which by a coincidence was filed by the same plaintiff, Jack B. Bworken, against Frank J. Collopy, as Administrator of the Bureau of Unemployment Compensation of Ohio (58 Abs 513). Judge Reynolds decided that case contrary to plaintiff’s contention. Plaintiff had there claimed, as plaintiff and as counsel, that §1345-6, Section 4, paragraph 2-a GC, was also invalid and contrary to the Declaration of Independence, contrary to the Constitution of the United States, and contrary to the Constitution of the State of Ohio, because such statute denied certain unemployment benefits to those who advocated the overthrow of our government. There, too, this plaintiff claimed that the right to “life, liberty, property, free speech, and the right to them” did not depend on the “whims of officials.”

Of course, plaintiff was not there a workingman seeking any unemployment compensation; he was there interested, as he says, as a taxpayer and as one who is concerned with protecting the Declaration of Independence, the Constitution of the United States, and the Constitution of the State of Ohio. It is unnecessary to quote at length from Judge Reynold’s analysis of the inapplicability of the Cummings case to that situation, though it applies equally well to this. Suffice it to say that the legislation there involved had to do with administering a punishment by an ex post facto law against a man in his profession as a legislative reprisal for having served on the losing side in our Civil War. Plaintiff would here ignore the very definition of a bill of attainder which is a legislative act which inflicts punishment without a judicial trial.

Needless to repeat, since no implementation appears in the Regulation at issue, no punishment is here involved. Plaintiff’s argument that the several thousand teachers who have already taken this oath are “condemned” and “branded” and “punished without trial” or “disqualified from following their professions” is as illogical as the argument that being asked to assert a love of the Constitution is tantamount to its violation.

Plaintiff further argues that to request such an oath is a “monstrous perversion of American democratic freedom.” He then asserts that membership in a religious organization or adherence to religious belief is not sufficient ground on which to dismiss teachers. No one has here claimed it was. No one has introduced the subject of or referred to religious belief except plaintiff himself in his brief.

What perversity of human nature causes men to pretend to love a Constitution when they really love those who would destroy it? Or to defend religion when they take the side of those who have destroyed it in the lives of 700,000,000 people?Or to identify themselves as lovers of freedom and lackeys of those who deny all freedom?

The Declaration of Independence was written by God-fearing men who meant what they said. The Constitution of these United States was written by men, most of whom were lawyers, and all of whom meant what they said. The Bill of Rights was first written by Archbishop Langton of England whose statue graces this very court house, and who successfully defied a tyrannical king in 1215 for the protection of the rights of the people, and who also meant what he said. These three papers which are so sacred to men who love America were all written by men who meant what was therein related.

There is a new ideology now extant in the world which does not mean what it says, and which generally means the opposite of what it says, and it is that particular ideology concerning which this Board desires from school teachers the negative assertion, namely, that a teacher whose sacred task is to mold the minds of our young and to teach them to love their country will not himself be a member of an organization which hates this country, and would overthrow us to misrule and enslave the world, all on the hypocritical pretense that its desire is to free the world.

That the Declaration of Independence was written by God-fearing and God-loving men was indicated by the recognition they gave to God in the very writing, while the Communistic ideology denies His existence. The Declaration acknowledged Him in five of its separate phraseologies:

1. In the language — “And to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature’s God entitle them.”

2. “We hold these truths to be self-evident, that all men are créated equal;” (Who alone can create?).

3, “that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”

4. In the concluding paragraph: “appealing to the Supreme Judge of the world for the rectitude of our intentions,”

and

5. In the final sentence: “And, for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.”

Thus did those brave men, from who we inherit our rights, signify belief in the God who gave us our rights.

The men who framed our Declaration and our Constitution lived in a world of men who made war when they were so constrained, and who made peace as soon as they could thereafter. That was before the invention of the sneak attack and the hypocrisy of what is now called a “cold war.” Men did not then pervert their minds or surrender their wills to the false god of statism. Lawyers then loved the Constitution they framed, gloried in so telling the world, and entertained no shame-complex to their sensibilities in the telling. Our forefathers adopted the national motto “In God we Trust,” and never anticipated that any of their educated posterity would ever look to a handful of hoodlum slavers which controlled an alien despotism to take God’s place. Nor could they ever anticipate that the flag would be most furiously waved by, or the Constitution most glibly and sanctimoniously memorized by those whose fondest hopes would be the destruction of both.

The inconsistency of it all is that this alien despotism is committed to a fanatical crusade to enslave the world, including us. That it uses every method susceptible of influencing a human mind to accomplish its purpose; that it uses a sixth column in these United States and finds dupes willing to betray us. The United States has no similar designs on them; we do not undertake to change their methods of thinking; we are sorry for the twelve million slaves whom they have imported and for their own two hundred million people who are likewise enslaved, but we have no century-old plans for changing anything within their boundaries as they have for us. We enrage them because we choose to retain the rights which our forefathers gave us, to which their sixth columnists give hypocritical lip-service. It is their fanaticism that to accomplish their purpose they will overthrow our government; we have no interest in overthrowing theirs. This accounts for their daily insults to our government and their studied brutality towards our consular representatives everywhere.

Ours is a God-fearing republic; theirs is an atheistic despotism. With their conduct in Russia we have no legal concern, but the Board is sufficiently concerned with their fanaticism' in America to protect our children from any possibility of its effects.

Since our thinking differs from theirs, the Board has a right and duty to protect our children from the possibility of being influenced by theirs in any degree, if it chooses so to do.

Our civilization is to a great extent based on the law of reverence; theirs on the law of fear. Through them, fear has acquired new techniques and one half of mankind now lies under the daily imminence of a terror such as it has not known for seventeen hundred years. They have resurrected and expanded the slave state and it could engulf the world. Their people have lost their two great gifts, intelligence and will, to their State, or the thirteen men who became their state. Their heritage can now be slavery only, it can be only the Law of Fear. Ours is freedom and the law of reverence. We reverence three great instruments and open and close our very Declaration of Independence with an appeal to the God whose gifts were life and liberty. We said in the Declaration that governments “secured” these rights but that God alone gave them. They deny God and assert that intelligence and will come from and belong to the State.

Since our inception we were a country of free men’s law. We originated the repudiation of the law of fear. That was easy for us because our forefathers had the religious conscience which is the first element of citizenship. They were rebels but not anarchists. When they said that their rights came from God and when they bravely and humbly asked His help in founding this nation, they were but recognizing that it is through the religious concept that there first came reverence for law. And that reverence is so sacred we preserve it humbly and quite silently within our hearts unless it is used as a “straw-man” for the benefit of disbelief.

We alone invented a holiday on which to give thanks to the Almighty and we may properly resent those who would ignore Him as a Reality and who would self-servingly pretend to defend Him at the same time.

All of this, the Board had a right to consider in forming policy and rules. That it had no implementation is the regret of this Court; it should have. If every teacher, lawyer, official, and citizen who loved an Atheistic Despotism, and hated our own beloved country, was removed, disfranchised, disbarred and deported, we would do them no injustice because by their conduct they have repudiated their heritage, and are entitled no longer to endanger us or our posterity. They are against a “perfect union,” they desire no “domestic tranquility,” they would destroy our “common defense” and our “general welfare,” they would steal away the “blessings of liberty” intended for our “posterity,” they have forfeited the right to live under the law of reverence; and they, too, are entitled to a free trip on the luxury liner, where they can live happily ever after under the law of fear. That it is the responsibility of every American to preserve our own heritage has been well asserted by Judge Reynolds in the Dworken case, supra, to the following effect:

“With the present threats to democratic principles, and the freedom provided by our Constitution, it is high time that in our zeal to protect the rights of individuals, we give some attention to the general welfare, which was also included in the purposes which were announced as the reason for the adoption of that constitution. It is high time that we take protective steps to insure, that the philosophy of the Declaration of Independence to the effect that governments are instituted among men to secure the sacred rights of life, liberty and the pursuit of happiness shall be perpetuated, and that our Government, which was so instituted and which has been continued for such purposes shall not ‘perish from the earth.’

“As Lincoln said in his first inaiigural address, this Government is ‘the last best hope of earth.’ It is even truer today than when he uttered those prophetic words.

“Our Legislature has sensed a real danger to our democracy in the persons of those, some citizens, many aliens, as well as established organizations, who seek by force to destroy this ‘last best hope of earth,’ this citadel of political and religious liberty and when that Legislature has seen fit to impose as a condition for the receipt of government largess that the recipient thereof shall satisfy the giver that he is not an avowed enemy of the donor, courts should not interfere.

“The time to thwart the enemies within our gates is now and not at some future time when their power has become so strong as to amount to a still greater menace. Let us not be guilty of awaiting the theft of the horse before we lock the stable door.

“Let those who mayhap sincerely espouse the cause of disloyalty in whatever guise, search their consciences and determine whether or not in their desires to assist those who seek to undermine and destroy the foundations of our institutions they have not overlooked the greater good for the greater number, and lost sight of what is best and most expedient for the ‘general welfare.’ ”

Therefore if any person within our borders chooses to forfeit that heritage, and prefers not to preserve it for posterity and works to overthrow it, what that person has become talks louder than anything he may have to say.

And if the Board ever entertained any doubt as to what is really in the Communist mind, it might go to the Bible of American Communism, “Toward Soviet America,” written by William Z. Foster, published in 1932, available on the shelves of the Cleveland Public Library and which contains the blue-print by which our three sacred writings are to be forever destroyed. The Board here had a right to consider that its author, William Z. Foster, has been Chairman of the Communist Party of the United States since the removal of Earl Browder from that position in 1944; that he was one of those indicted in New York City with the group recently tried before Judge Medina; that he is now the Kremlin’s topmost representative in America; that his predecessor was removed because he claimed during the recent war that Communism and capitalism were reconcilable and could work together to win the war.

What Foster says explains the conduct of the sixth column in these United States for the last two decades; it is irreconcilable with our three sacred writings, our ideology, our philosophy, and our entire way of life. It explains why everything American is always under attack by the lovers of all things Communistic, and why everything Communistic is always praised. It explains the attack by counsel on the American Legion, the Veterans of Foreign Wars, the Catholic War Veterans, and the Jewish War Veterans, all of whom made the country safe by their deeds, to the benefit of men of words; it likewise explains counsel’s praise of Communist Robeson who does love to sing Russian songs.

If the diabolism of this Marxian pipe-dream for America ever reaches its successful culmination, its doctrines will be substituted for the Declaration of Independence and the Constitution of the United States. As we read its contents, let us consider whether if a teacher worshipped at the shrine of such Baal, the Board and parents ought not to know; and whether if a teacher so believed, he had sensibilities for which we should be solicitous; and whether if a teacher so perverted his own intelligence, the Court should so enjoin the Board as to give the teacher a chance to pervert the intelligence of our children. For the following, our sacred writings are to be forever destroyed and for this all of our rights are to be taken away: — On the pages indicated will be found the following:

Page 113: “Religion, which Marx called, 'the opium of the people’, has been a basic part of every system of exploitation that has afflicted humanity — chattel slavery, feudalism, capitalism * * *. Such a monstrous system of dupery and exploitation is totally foreign to a Socialist society * *

From page 269:

“From capitalism to Communism, through the intermediary stage of Socialism; that is the way American society, like society in general, is headed.”

From page 270:

“This means that in such a highly-industrialized country as the United States the industrial base for Socialism is already at hand. The great problem before the workers is to get the political power. * * * In the United States, the problem of the American working class in achieving Socialism may be summed up, as Browder has put it, as the present American industrial technique plus Soviets.”

From page 270:

“The sum of all which is that the period of transition from capitalism to Socialism in the United Soviet States will be much shorter and easier than in the U. S. S. R.”

From page 271:

“The building of Soviets is begun not after the revolution but before. When the eventual revolutionary crisis becomes acute the workers begin the establishment of Soviets. The Soviets are not only the foundation of the future Workers’ State, but also the main instruments to mobilize the masses for revolutionary struggle. The decisions of the Soviets are enforced by the armed Red Guard of the workers and peasants and by the direct seizure of the industry through factory committees. A revolutionary American working class will follow this general course, which is the way of proletarian revolution.

The American Soviet Government will be organized along the broad lines of the Russian Soviets. Local Soviets, the base of the whole Soviet State, will be established in all cities, towns and villages. Local Soviets combine in themselves the legislative, executive and judicial functions. Representation, based on occupation instead of residence and property, comes directly from the shops, mines, farms, schools, workers’ organizations, army, navy, etc. The principle of recall of representatives applies throughout. Citizenship is restricted to those who do useful work, capitalists, landlords, clericals and other non-producers being disfranchised.

The- local Soviets will be combined by direct representation into county, state, and national Soviets. The national Soviet government, with its capital in Chicago or some other great industrial center, will consist of a Soviet Congress, made up of local delegates and meeting annually, or as often as need be, to work out the general policies of the government.”

From page 275:

“Likewise, will be dissolved all other organizations that are political props of the bourgeois rule, including chambers of commerce, employers’ associations, rotary clubs, American Legion, Y. M. C. A., and such fraternal orders as the Masons, Odd Fellows, Elks, Knights of Columbus, etc.”

From page 314:

“The chief aims of bourgeois culture, so far as it is directed towards the working class, are to develop the workers into, (1) slave-like robots who will accept uncomplainingly whatever standards of life and work the owners of industry see fit to grant them; (2) unthinking soldiers who will enthusiastically get themselves killed off in defense of their masters’ rulership; (3) superstitious dolts who will satisfy themselves with a promise of paradise after death as a substitute for a decent life here on earth.”

From page 316:

“Among the elementary measures the American Soviet government will adopt to further the cultural revolution are the following: > the schools, colleges and universities will be coordinated and grouped under the National Department of Education and its state and local branches. The studies will be revolutionized, being cleansed of religious, patriotic and other features of the bourgeois ideology. The students will be taught on the basis of Marxian dialectical materialism, internationalism and the general ethics of the new Socialist society. Present obsolete methods of teaching will be superseded by a scientific pedagogy.

“The churches will remain free to continue their services, but their special tax and other privileges will be liquidated. Their buildings will revert to the State. Religious schools will be abolished and organized religious training for minors prohibited. Freedom will be established for anti-religious propaganda.”

A reading of the above will give some lucid explanation of some of the past and recent conduct of the sixth column in America, but considering the condition of the slavery which Russia has introduced to its twelve million slaves imported within its borders, and what is learned from those who return, the following is of interest as indicating how the American prison system will be improved by imitation of the Russians as follows:

From page 322:

“In the new Russian prisons, for example, the prisoners have the right to marry and to live with their families; they are taught useful trades and are paid full union wages for their work; there are no guards or walls or bars; the discipline is organized entirely by the prisoners themselves. The prisoners are also allowed freely to visit their friends in other towns.”

Did they pay the Doolittle Tokyo flyers they imprisoned?

The foregoing from the Disciple of the Law of Fear sounds like a strange panacea to offer those who inherited the Law of Reverence.

Therefore, in the consideration of all the information the Board possessed, from whatever the source, it had the right to formulate the rule involved for the government of the schools. The justice, wisdom or necessity of the rule belongs solely where the legislature placed it, — on the Board. The Board has here acted fully within its rights, powers and duties.

No teacher here complains. As Judge Reynolds said of this plaintiff in the other Dworken case, and which bears apt repetition here “Those directly affected seem to have voiced no disapproval. If they are satisfied it would seem that there is no need for interference by those who set themselves up as guardians of liberty and monitors of the actions of our lawmakers and administrators.”

The Board’s regulation has here suggested that the oath utilized be substantially in the form required by the United States government of its employees. When the government first devised the oath in its own self-defense, the claim was made that it would not work successfully because the Communists would not tell the truth. The actual experience was that many who did not tell the truth were later exposed and convicted through the splendid work of the Federal Bureau of Investigation; the anti-Communist oath has to date been a useful devise of self-defense for our government. By this devise the Communist Party of these United States has learned that the official emblem of the United States is no longer the duck. The Board had a right to here consider the success of our government’s action.

Some of the opponents of the anti-Communist oath have contended that it is unnecessary in the educational field. Should it later develop that it here was unnecessary then no harm will have been done. Meanwhile, the Board decided that it was necessary and through its experience to date it is apparent that no teacher has considered his sensibilities affected. In fact the plaintiff alone has been affected, and plaintiff is not called upon to give the oath.

The Board has been designated by law as the source from which rules shall emanate for the government of our schools, and, with its sincere and laudable efforts to protect our children from the susceptibility of such harm, no court should interfere. The Board well knew that its teachers would be deterred from ever attempting to teach any religion in our public schools by the law to that effect. Because our teachers respect the Law of Reverence. But it devised the instrumentality of this regulation as one possible method of prospective defense against any teacher who might believe in Atheistic Communism, because it knew that whoever would succumb to that fanaticism would not obey the law. ■ Such a teacher would be motivated by the Law of Fear and flaunt the law it hated. Apparently, since the child in public school cannot he legally instructed about its Creator, the Board desires to protect it from learning of Lenin’s idea that “Every notion of God is unspeakable vileness.” Since the child cannot be told what’s in the Old Testament or the New, the Board wishes to protect it from Foster’s Abomination of ’32.

With the right of the Board to express tribute to our Constitution we shall not interfere; with its right, power, and duty to accept such expression from its teachers, we shall not interfere.

Such expressions never harmed the sensibilities of the Presidents, Governors, Senators, Congressmen, Judges, Mayors, or other public officers privileged to take them, nor will they harm the teachers whose precept and good example will influence the future public officers who take them.

The Petition of the plaintiff is therefore dismissed at his costs with exceptions to him. A Journal Entry will please be prepared accordingly.


source: Caselaw Access Project

author: By ROSS, PJ.:

license: Public Domain

text:
    FERGUSON, Plaintiff-Appellee, v. BUDDENBERG et, Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7225.
    Decided May 15, 1950.
    Albert M. Freiberg, Cincinnati, for plaintiff-appellee. Ginocchio & Ginocchio, Cincinnati, for defendants-appellants.
   OPINION

By ROSS, PJ.:

This appeal upon questions of law is from a judgment of the court of common pleas of Hamilton County, predicated upon a verdict in favor of the plaintiff, which was by remittitur reducéd from $2250.00 to $1000.00. Such verdict included a sum for punitive damages.

The action, if any exists, is predicated upon fraud — that is, upon false representations as to the existence of an intention to personally use the premises rented to plaintiff, and that relying solely upon such representations, he was induced by defendant to relinquish a right of occupancy therein, which right was secured to him by law.

Only by virtue of the Federal Housing and Rent Act could such an alleged relinquished right be shown to exist. The plaintiff, a tenant from week to week, has no common law right to occupy the premises longer than the landlord desires. There is no state statutory inhibition against the eviction of the plaintiff.

What right did the Housing Act confer? Simply the right to be free from “an action or proceeding to recover possession.” The defendant simply served a notice to vacate the premises. The plaintiff voluntarily acquiesced in the request to vacate.

He had a valid defense against any possible later unlawful action to evict.

If the defendant was guilty of an abuse of process, the plaintiff would have, upon proof of same, had an adequate remedy at law.

Plaintiff claims that the right of plaintiff to remain in the premises was a “status imposed upon them by Federal Law.”

The Federal Law merely protected plaintiff from an unlawful action or proceeding. There is no inhibition in the Federal Act against a request by the landlord to the tenant to leave the premises. The statement that such acquiescence in such request would prevent resort to legal proceedings had no force, since such proceedings could not be unlawfully maintained.

No protest of any kind was made by the plaintiff. As far as the evidence shows he may have been perfectly content in any event to seek other and better quarters.

To permit the maintenance of the present action would open the door wide to a recourse to the courts, whenever after voluntary change of quarters, the vacating tenant discovered that the landlord had rented such vacated quarters for an additional amount.

If the plaintiff had any rights in the premises, he voluntarily released and waived such rights by vacating the premises without protest.

While some authority without this State is shown contrary to these conclusions, in no case in Ohio has such an action as the instant proceeding been countenanced. The adequate protection of the Federal Housing Act being in derogation of the common law rights of the defendant should not be extended beyond its clearly expressed scope.

The motion of the defendants for an instructed verdict, made at the conclusion of all the evidence, should have been granted, and this Court will enter the judgment for the defendants which the trial court should have rendered.

Having so concluded, it becomes unnecessary to pass upon the claims of the defendant, which would induce this court to set aside the judgment for passion and prejudice in the verdict, and because such verdict is against the manifest weight of the evidence.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: By THE COURT.

text:
    LEONARD et, Plaintiffs-Appellees, v. SEABOARD OIL COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4319.
    Decided March 6, 1950.
    Vorys, Sater, Seymour & Pease, James A. Gorrell, of Counsel, Columbus, for plaintiffs-appellees.
    Bricker, Marburger, Evatt & Barton, Ralph E. Marburger, of Counsel, Columbus, Vinson, Elkins, Weems & Francis, Allen C. Hutcheson, Jr., of Counsel, Chicago, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court in favor of the plaintiffs and holding that they as preferred stockholders of the defendant company are entitled to be paid the fair cash value of their shares and ordering an appraisement under the statute.

We have carefully considered the questions presented on this appeal and fully and capably argued in briefs of counsel for the parties. We also have the written opinion of Judge Gessaman in the trial court. We are in accord with his conclusions and the reasons stated therefor in his opinion which we adopt in affirming the judgment.

Like the trial judge, we have concluded that the plaintiffs are entitled to the relief sought by reason of the fact that the reorganization resolution of defendant by its terms comes within the expressed provision of (2) and (3) of §8623-14 GC. They are, therefore, entitled to invoke the provisions of §8623-72 GC.

The judgment will be affirmed.

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


author: By BUCKLEY, J.

text:
    MARTIN, Plaintiff-Appellant, v. TRUSTEES OF BEAVER TOWNSHIP, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3247.

      John Ruffalo, Jr., Youngstown, for plaintiff-appellant. William A. Ambrose, Pros. Atty., Harold H. Hull, Asst. Pros. Atty., Youngstown, for defendant-appellee.
   OPINION

By BUCKLEY, J.

This appeal came on to be heard upon questions of law arising out of the sustaining of a demurrer by the trial court on the ground that the petition as filed herein does not state a cause of action. The plaintiff-appellant upon the sustaining of the demurrer declined to plead further, and the court entered judgment for the defendant-appellee against the plaintiff-appellant.

From this order the plaintiff-appellant files the following assignments of error, to-wit:—

“First: The court erred in sustaining defendant-appellee’s demurrer, and in rendering a judgment upon such verdict for the defendant-appellee.

“Second: That the sustaining of the demurrer and directing judgment for the defendant-appellee is contrary to law.

“Third: That the court erred in depriving the plaintiff-appellant the right of trial by jury, guaranteed to him under the Constitution of the United States and the Constitution of the State of Ohio.

“Fourth: That the court erred in depriving the plaintiff-appellant his rights, privileges and immunities under the laws and Constitution of the State of Ohio, and under the laws and the Constitution of the United States.

“Fifth: The court committed a grievous error in usurping the power or province of the jury in the determination of the cause.

“Sixth: Other errors apparent on the record.”

In considering the third, fourth and fifth assignments of error this court does not find that there was any deprivation of a right of trial by jury or of privileges and immunities guaranteed under the Constitution and laws of the State of Ohio and of the United States. We find that there was no violation or usurping of the power or province of the jury in the determination of the cause; because first and foremost before being legally in court to seek the remedies under the law it is necessary that the plaintiff-appellant present to the court a petition properly • stating a cause of action as the same is defined and set forth under the laws of the State of Ohio and the Constitution of the United States.

Coming now to the first and second assignments of error, to-wit: That the trial court erred in sustaining defendantappellee’s demurrer, and in rendering a judgment for the defendant-appellee; and that the sustaining of the demurrer and directing judgment for the defendant-appellee is contrary to law. This court is of the opinion that such assignments of error are not well taken.

Sec. 3298-17 GC provides as follows:—

“Each board of township trustees shall be liable, in its official capacity for damages received by any person, firm or corporation, by reason of the negligence or carelessness of said board of trustees in the discharge of its official duties.”

From the provisions of the foregoing section of the General Code it is the opinion of this court that the acts, or failure to ' act, in a given set of circumstances must be in the official capacity of the board of township trustees; and that the petition, to be proper, must allege that the action of the township trustees, or its failure to act, must be in its official capacity.

This conclusion seems to be the law as laid down in the case of Gause v. Peeler, 41 Oh Ap 192, wherein the court of appeals for Richland county stated:—

“It is charged that his (Gause) injury is the direct result of the failure of the township trustees to perform the duties imposed upon them by law, and that in their failure to perform these duties they were negligent.”

It is the opinion of this court that the opinion in the case cited above states concisely the allegations which must of necessity appear in a petition in order to give it a valid standing and to state a cause of action. In the petition filed in this case, to which the demurrer was sustained, these allegations do not appear; and for this reason it is the opinion of this court that the demurrer was properly sustained on the ground that the petition did not state a cause of action.

It is true that the trial court sustained the demurrer on other grounds holding that the duty of the township trustees to keep a road in repair related only to the travelled portion of the road and the use of it by the travelling public. This court is not prepared in this case to rule on this proposition, as it does not believe the question to be presented at this time.

If the proper allegations, as the same were set forth in the Gause case, were in the petition being reviewed we might then come to the reasoning of the trial court; but since it is not necessary to go beyond the allegations of the petition to determine that the demurrer was properly sustained we will not proceed beyond the boundaries of the corners of the petition.

It is the opinion of this court that since the instant petition fails to allege that the damages claimed by the plaintiff were the direct result of the failure of the township trustees to perform the duties imposed upon them by law and that they were negligent in their official capacity in the performance of these duties that the demurrer was properly sustained by the trial court.

The judgment of the trial court is hereby affirmed.

NICHOLS, J, Concurs.

PHILLIPS, PJ, Concurs in Judgment.


author: By THE COURT: By THE COURT:

text:
    MIAMI SAVINGS & LOAN COMPANY, Liquidation of, In re. Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2066.
    Decided February 8, 1950.
    Mason Douglass, Dayton, for Miami Savings and Loan Company.
    Shocknessy, Summers & Denton, Columbus, for Shelby Building & Loan Co.

      Decided February 21, 1950.
   OPINION

By THE COURT:

Submitted on motion of appellee for an order affirming the judgment upon the ground that no bill of exceptions has been filed, the time within which the bill of exceptions may be filed having expired, and that the errors assigned can not be exemplified except by a bill of exceptions.

This Court has before it all of the proceedings, the report of the Master Commissioners which consists of a separate findings of fact and conclusions of law, the decision of the lower court rendered upon the report of the Master Commissioners, and the judgment entry. While the report of the Master Commissioners cannot be regarded as a bill of exceptions, it is an original paper in the cause. Lawson v. Bricker, 20 Abs 643. Since the report is an original paper it may be considered by this Court in determining whether the law was properly applied to the facts set forth in such report.

After an examination of the assignments of error filed by the appellant the Court is of the opinion that certain questions of law are raised which do not require a bill of exceptions for determination.

Motion overruled.

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

ON APPLICATION FOR REHEARING

No. 2066.

By THE COURT:

The application for rehearing is hereby denied.

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


author: By HARE, J.

text:
    DUMMERMUTH AND HORN, d. b. a. D. & H. ELECTRIC COMPANY, Plaintiffs, v. HYKES et, Defendants.
    Common Pleas Court, Tuscarawas County.
    No. 29778.
    Decided July 19, 1950.
    Arthur L. Limbach, New Philadelphia, Fred L. Syler, Dover, for plaintiffs.
    Herschel Kriger, Canton, for defendants, Orren Hykes and A. D. Hykes.
    Cletus A. Fisher, New Philadelphia, for defendant, Boulevard Building Corp.
   OPINION

By HARE, J.

This cause was submitted to the court upon the pleadings, evidence, arguments of counsel and memorandums submitted by them.

The relief sought by the plaintiffs, a partnership, is a permanent injunction enjoining the defendants, A. D. Hykes and Orren Hykes, and each of them from interfering in any manner with the person or persons of the plaintiff or its employees, or from patrolling or picketing the premises of the Boulevard Building Corporation on Iron Avenue, Dover, Ohio, or displaying a banner on or near said premises as to said job being unfair to electricians or any other craft, or from acts inducing contractors or their employees from carrying on the work on the Boulevard Building Corporation’s building, or from precluding this plaintiff from performing its contract with the owner, and to leave the premises and other equitable relief.

Certain affidavits were filed by the defendants, Orren Hykes and A. D. Hykes at the time said hearing on the temporary injunction was issued as prayed, and later the said defendants, Orren Hykes and A. D. Hykes filed an Answer in which they make certain denials and admissions, as fully set forth in said Answer, praying that plaintiffs’ Petition be dismissed and for such further relief to which they or either of them may be entitled in the premises.

The defendant, the Boulevard Building Corporation, as intervenor, filed its Petition praying that it be protected by the equity powers of the court, and be granted such relief in the premises as would permit the construction work on the building to proceed without further delay in fulfillment of its construction contracts and for such other relief as would be just and equitable.

It was stipulated by Herschel Kriger, as attorney for the defendants, A. D. Hykes and Orren Hykes, that the Answer filed to the Petition in this case shall also be the Answer to the Intervening Defendant’s Petition.

It is not necessary for the court to repeat the different allegations of the pleadings.

The Court, by temporary injunction did restrain the defendants as prayed for in plaintiffs’ Petition.

The case came on for hearing upon its merits as to whether the facts and evidence entitled the plaintiffs to a permanent injunction against the defendant, A. D. Hykes as business manager of Local Union No. 540 of the International Brotherhood of Electrical Workers, located in Canton, Stark County, Ohio, and the defendant, Orren Hykes, employed by said defendant, A. D. Hykes, to patrol back and forth in front of said owners premises with a banner with writing on it, “This job unfair to electricians’ L. U. 540.”

The plaintiffs are a partnership, and during the trial of said cause upon its merits, filed with the Clerk of Courts of this county, proper registration, pursuant to the statute for such case made and provided. The plaintiffs, Jacob E. Dummermuth and David A. Horn are partners doing business as the D. and H. Electric Company.

The intervening defendant, the Boulevard Building Corporation is a corporation, being the owner of a certain tract of land in the city of Dover, Ohio directly across from the Union Hospital and upon which tract of land said owner-corporation is constructing a medical building known as “Medical Center” for the treatment of medical and surgical patients.

On April 25th, 1950 the said defendant-owner and the plaintiffs, the D. and H. Electric Company entered into and consummated a contract whereby the plaintiff-partnership was to perform certain labor of trained electricians, which employees are alleged to be under contract with plaintiff to perform said services. There are numerous contractors supposed to do certain work, who also have entered into a contract with the defendant-owner, to do plumbing, plastering, bricklaying, roofing and general construction work, and that' these contractors, excepting the plaintiffs, have employed employees who are properly affiliated with union crafts of the American Federation of Labor. On or about May 4th, 1950 the defendants picketed said premises and that Robert Coleman, the alleged owner and proprietor of the United Plumbing Company of Galion, Ohio, a contractor of said owner to install the plumbing on said building, when said plumbing was being installed would not cross the picket line and perform his said services and the general construction of said bu'lding progressed as far as possible. The masonry construction continued until it was impossible to proceed without the progress of the plumbing work. About 25% of the building had been finished by the general contractor and 5% to 10% of the electrical work was completed and about 5% of the plumbing at the time of the start of the picketing on or about May 4th, 1950.

It is conceded that there is no strike and that there is no violence at or near such construction work. Further, there is no labor dispute between the plaintiffs and said partnership’s employees, but the labor dispute exists between A. D. Hykes, as business manager and representative of the International Brotherhood of Electrical Workers, Local Union No. 540 of Stark County, Ohio, and Orren Hykes, a member of said Local Union No. 540, and the one who was picketing said premises, with said plaintiffs’ employees who áre performing said electrical work upon said premises. This dispute, arising due to the fact that the said plaintiff-contractor and said plaintiffs’ employees are non-union and not affiliated with the American Federation of Labor and being the only craft upon said construction work not so affiliated; that said employees have formed a local organization known as The Tuscarawas County Brotherhood of Electrical Workers, and which organization has not completed any steps to become affiliated with the American Federation of Labor and thereby causing disruption of work among other crafts upon said job and being unfair to electricians’ Local Union No. 540.

It is significant, as shown by defendants’, A. D. Hykes and Orren Hykes, exhibit No. 9, which is the minute book of “Tuscarawas Co. Local Electrical Union,” that said organization was formed on May 18, 1950, which, of course, was after the starting of the picketing by said defendants, which picketing was commenced on or about May 4th, 1950.

The evidence shows that there are electricians within Tuscarawas County, Ohio and within the jurisdiction of Local Union No. 540, who are members of Local Union No. 540 and an ample number (of whom are available for work upon said job.

Further, by the testimony of Steven Cush, a resident of the city of Uhrichsville, Tuscarawas County, Ohio, a member of Local Union No. 540, that he is employed as an electrician on the new addition to Union Hospital across the street from the Medical Center and receives $2.25 per hour for his work.

The evidence further shows by the testimony of Mr. Horn, plaintiff-employer, that he is paying his journeyman electrician employee on the Medical Center $1.40 per hour and his apprentice employee is getting about 75c per hour.

The evidence shows that said employees of the plaintiffs have been approached in a friendly and peaceable manner, without any coercion, to become affiliated with Local Union No. 540; and the said plaintiffs have also been approached to employ members affiliated with American Federation of Labor Union No. 540, and refusals have resulted and thereby causing said labor dispute.

The evidence further shows that said non-union electrical employees of the plaintiffs have only filed an application with William Green during the process of this trial by letter to become affiliated with the American Federation of Labor as a Tuscarawas County craft, but no steps have been taken to complete said affiliation and it is highly improbable that further steps will ever be taken to complete said affiliation as a separate Tuscarawas County labor organization and further, it is not probable if such steps were taken in the future that such non-union organization will ever be admitted as a ■craft within the American Federation of Labor.

The evidence in this case shows that there was one picket •on the job, namely, the defendant, Orren Hykes, and the said picketing was performed in a very quiet, orderly and lawful fashion, without any coercion or interference in any manner with any persons or crafts upon said construction job. The defendant, Orren Hykes, carried a banner with the words ■thereon, “This job unfair to electricians’ L. U. 540.”

It is contended by the plaintiffs and the defendant-owner that the picketing will induce a breach of- contracts of employment.

THE LAW

In the case of LaFrance Electrical Construction and Supply ■Co. v. Electrical Workers Local Union etc. (108 Oh St 61) the company claimed that the union had entered into a con.spiracy to ruin its business and compel the plaintiff to operate its business as a closed union shop. In that case the court permitted peaceful picketing. This would indicate that the ■closed shop demand is not an illegal purpose in this.State.

As stated in the case of Iacomini’s Restaurant, Inc. v. Hotel and Restaurant Employees and Bartenders Local No. 118, et al. (38 O. O. 552, 54 Abs 33,) decided August 24, 1948, that the 108 Oh St page 61 is a very thorough opinion and that there are many enlightening discussions all through that opinion. In said ■case, citing also 22 Oh Ap 265, Clark’s Lunch Co. v. Union Waiters.

The LaFrance case, 108 Oh St affirms the right of peaceful picketing even though the fact may be to induce breach of •contracts of employment.

The 22 Oh Ap 265 case, just cited, affirms the right of peaceful picketing, immateriality of non-existence of employee .relationship, immateriality of fact that employer’s business and contractual relationships may be adversely affected.

The Court cites also to the same effect, the case of McCormick & Fisher v. Union, 13 C. C. N. S. 545; also Lubbers v. Hurst, 36 O. O. 495, covering all the foregoing issues, including ■definite statement that rule of Crosby v. Roth (136 Oh St 352) is no longer the law; also Iacomini’s Restaurant case holds the .same.

The Court cites the case of Foutts v. Journeymen Barbers Local No. 105, etc. Common Pleas Court, Summit County, decided October 11, 1949, 55 Abs 537, which is to the effect and holds:

“A labor union has the right to picket peacefully the place of business of an employer providing there exists a lawful' labor dispute between the union and the employer and providing the union does so in a manner which honestly and, truthfully has for its purpose the informing of the public-as to the dispute.”

The conclusion of the court in this case, in part, is as follows:

“It is the duty of the court in the instant case to interpret' the law of this state and the law of the United States as it now is as evidenced by the Swing case supra (312 U. S. 321) and by the Cafeteria Union v. Angelos case supra (320 U. S. 293).”

The court stated that under the freedom of speech doctrine, it may peaceably picket or by advertisement, etc. acquaint the-public fully with the true dispute as it exists and likewise plaintiff would also enjoy the freedom of speech and the press to put forth their side of the argument.

The Court also stated in its conclusion.

“If we once destroy this mutual right of all to exercise this' freedom of speech, we will destroy one of the greatest rights our people enjoy under our democratic form of government.”

Now, discussing again, the Lubbers v. Hurst case, decided December 23, 1946, there was a temporary injunction granted in said case, which permitted the defendants to maintain one' representative, who was to remain moving, for the purpose of informing the public orally or by a sign that plaintiff does not employ all union help. This temporary injunction issued in that case provided further that the picketing was to’ be conducted in a quiet, orderly and lawful manner and so as not to interfere in any manner with persons desiring to enter or leave plaintiff’s place of business for any purpose whatever. In this case, the presence of the picket had curtailed the delivery to the plaintiff of certain merchandise sold by him therein. In this case there were two other local unions in which attention was directed at the picket line informing their members of the fact that they are not permitted to patronize any firm that has been declared unfair and we do not patronize. In this case there was a claim of boycott in that there existed an old legitimate trade dispute between their employees.

The case of Anderson Sons Company v. Local Union No. 311 (Franklin County Court of Appeals) is a case which covers ■ all the issues in point with the case at bar. In this case, '-which was decided May 1st, 1950, it was held as follows:

“Picketing-Employer-Employee . Relationship Not a Prerequisite to Right to Picket.—

“The absence of an employer-employee relationship between the persons picketing and the party picketed does not constitute a basis for the granting of injunctive restraint against peaceful picketing. The constitutional guarantee of free speech protects peaceful picketing in a dispute between -an employer and a union even though the employer’s employees, are not in controversy with him.”

“Secondary Boycott — Picketing in Locality of Dispute — Incidental Effect on Third Party. — A union has the right to .picket an employer in order to call attention to his use of non-union employees; picketing for that purpose may be done at the site of the project where the non-union employees are at work and is not enjoinable merely because it has the incidental effect of putting pressure on a third party not involved in the dispute.

“A union picketing a subcontractor at the site of a construction job in order to call attention to his use of non-union ■employees on the job is not subject to injunctive restraint ..merely because the picketing has the incidental effect of inducing the employees of another subcontractor on the same .job to refuse to work.”

In the case of Iron Moulders Union v. Greenwald, 4 N. P. N. S. 161, affirmed in 77 Oh St 618, to the effect that intention ‘to injure employer’s business is immaterial.

In the case of Belleview Brewing Co. v. Union, 12 N. P. N. S. 257, to the effect that statement that employer is “unfair” ■does not constitute threat or coercion.

On the fact that the use of the term “unfair” is proper and •noncoercive, may be cited the case of S. A. Clark Lunch Co. v. Union, 22 Oh Ap 265, and Angelos v. Mesevich, 320 U. S. 293, also 301 U. S. 468 and 312 U. S. 219.

On the general status of peaceful picketing as related to the ■constitutional guarantee of free speech may be cited the following:

Senn v. Tile Layers Protective Union, 301 U. S. 468, 1 Labor Cases 17023;

Thornhill v. Alabama, 310 U. S. 88, 2 Labor Cases 17059; Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 3 Labor Cases 51111; Carlson v. California, 310 U. S. 106, 1 Labor Case 17060; Baker and Pastry Drivers v. Wohl, 315 U. S. 769, 5 Labor Cases 51136; A. F. of L. v. Swing, 312 U. S. 321, 3 Labor Cases 51112; Angelos v. Mesevich, 320 U. S. 293, 7 Labor Cases 51167; State of Washington ex rel. v. Superior Court, 164 P. 2nd 662; Milk Wagon Drivers Union v. Lake Valley Farm Products, 311 U. S. 91, 3 Labor Cases 51104; U. S. v. Hutchson, 312 U. S. 219, 3 Labor Cases 51110; In re Blaney, 184 P. 2nd 892, 13 Labor Cases 64039 (Calif Sup. Court).

On immateriality of employer-employee relationship may be cited 312 U. S. 543, the Swing case; also Baker and Pastry Drivers Local v. Wohl, 315 U. S. 769, and Angelos v. Mesevich, 320 U. S. 293.

The plaintiffs cite three Supreme Court decisions, which Attorney Limbach claims completely overrules A. F. of L. v. Swing, and other cases cited. Such is not the opinion of this-Court. These cases cited can be distinguished as follows:

Hughes v. Superior Court, merely holds that a state can prohibit picketing where the purpose is to enforce racial discrimination in favor of negroes to the same extent that picketing would be permissible to advertise discrimination against, negroes. In that case the court specifically stated:

“The California Supreme Court suggested a distinction between picketing to promote discrimination, as here, and picketing againt discrimination: ‘It may be assumed for the purposes of this decision, without deciding, that if such discrimination exists, picketing to protest it would not be-for an unlawful objective.’”

With this conclusion the court agrees. It is not inconsistent-with A. F. of L. v. Swing and other cases.

Another case cited by Mr. Limbach is the case known as International Brotherhood v. Hanke, which merely holds-that because the public policy of the state of Washington is-to frown on insistence on self-employed persons to join a union, picketing for such purposes is improper. That situation is not before us in this case. However, the court did' hold that even the public policy of Washington is subject to-constitutional limitations, the court saying:

“A state’s judgment on striking such a balance is of course-subject to the limitations of the Fourteenth Amendment.”

With this conclusion the Court agrees. It is not inconsistent, with the Court’s position.

The other case cited by Mr. Limbach is Building Service-Employees v. Gazzam and which merely holds that efforts to coerce an employer to violate the Washington labor relations law are unlawful, also a situation not involved in our ■case. In fact the court noted:

“The Washington statute has not been construed by the Washington courts in this case to prohibit picketing of -workers by other workers.”

This case likewise is not inconsistent with the Court’s position.

CONCLUSION

The plaintiffs in this case obtained a temporary restraining ■order, enjoining all picketing pending final hearing on the merits of this case. There is no strike, no violence, no ■coercion and in fact no boycotting and there is no labor .dispute or disagreement in this case between the plaintiffs-employers and plaintiffs’ employees. However, there is a dispute between the defendant, A. D. Hykes as representative and business manager of the International Brotherhood of Electrical Workers, Local Union No. 540 of Stark County, ■Ohio, affiliated with the American Federation of Labor, with the plaintiffs-employers and the plaintiffs’ employees for the reason that said employees have merely formed a non-union unaffiliated organization, known as The Tuscarawas County Brotherhood of Electrical Workers.

This court holds that a labor dispute may exist in the absence of a disagreement between an employer and his ■employees, and picketing to publicize that controversy is entitled to free speech, as long as there is no evidence of violence, but even in that case if there were, certain limitations may be imposed upon future picketing, and in support of "this opinion, the court cites Jones Inc. v. Internationl Association of Machinists, 490 L. A. page 97. The state cannot exclude workingmen from peacefully exercising their right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him citing American Federation of Labor v. Swing. By this doctrine the right of free speech guaranteed by the Fourteenth Amendment rendered a state court powerless, notwithstanding the absence of a labor dispute, to enjoin peaceful picketing, citing Bakery Drivers v. Wohl, 315 U. S. 769. However, this right is not an absolute grant of free speech and is subject to reasonable limitation. For example, peaceful picketing may be enjoined If carried on for an unlawful objective, or if it lacks some rational connection with the dispute; Carpenters and Joiners; Union v. Ritter’s Cafe, 315 U. S. 722 (1942); Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740 (1942).

The confused thinking of the Ohio courts may be traced, directly to the Crosby v. Rath case where the Supreme Court, sustained an injunction and held that a trade dispute does not exist when members of the picketing union are neither-employees nor former employees.

The court recognizes the rule to be that Local Union No. 540 has the right of free speech and the right to picket, even in the absence of a labor dispute. However, the court has reached the conclusion that there is a labor dispute here as indicated. The court thinks it proper and so orders that a-limitation on future peaceful picketing should be entered’ in this case, in order that all parties may be protected without-destroying the right to picket peacefully.

The court has reached the conclusion that the picketing in the instant case has a lawful objective and has a rational connection with the dispute existing between Local Union No. 540 and plaintiffs and their employees.

Wherefore, the Court holds that the plaintiffs are not entitled to an injunction against these defendants, Orren Hykes and A. D. Hykes, notwithstanding that there may be some-economic injury to the defendant-owner, the Boulevard Building Corporation, which, as the cases cited hold, is immaterial,, as regrettable as it may be, and that Local Union No. 540 is entitled to picket the premises of the owner for the lawful purpose of calling attention to said labor dispute and to-' inform the other crafts on said premises, who are members of the American Federation of Labor, and to inform the world' of the position of Local Union No. 540.

Therefore, the court orders, adjudges and decrees that the-temporary injunction heretofore issued, be and hereby is vacated and dissolved, with the understanding that if said Local Union No. 540 desires to picket, that said picketing be limited to one picket who shall keep moving and only for the. purpose of informing the public orally or by a sign that said plaintiffs are unfair to Local Union No. 540.

It is ordered that the plaintiffs pay the costs of this action,, taxed herein at $-.

A journal entry shall be drafted in accordance herewith.