author: By HUNSICKER, J.

text:
    STATE, ex rel. THE 12501 SUPERIOR CORPORATION, Relator, v. EAST CLEVELAND (City) et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24608.
    Decided May 20, 1959.

      Merkel, Campbell, Dill & Zetzer, for relator.
    Stanley G. Webster, Director of Law, for respondents.
    (DOYLE, PJ, STEVENS and HUNSICKER, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.

This is an original action in mandamus, by The 12501 Superior Corporation, herein called “corporation,” the operator of a coin-operated automatic laundry, against the City of East Cleveland and various officials thereof, herein called “city,” wherein the corporation asks this court to order the city to issue a use permit free from any restrictions.

The corporation, on January 9, 1958, by letter to the Zoning Board of Appeals of East Cleveland, sought a permit to operate an “automatic Philco-Bendix laundry store, similar to others that are now in East Cleveland.”

On January 28, 1958, the corporation, by letter, was “granted authority to establish an automatic laundry store on the premises known as 12501 Superior Avenue * * The laundry was then established, and operated seven days a week, 24 hours a day.

Thereafter, pursuant to complaints registered in writing by residents in the vicinity of 12501 Superior Avenue, East Cleveland, the city engineer of East Cleveland requested the Board of Zoning Appeals to review the application for an automatic laundry on the premises known as 12501 Superior Avenue.

A review of the application was had before the Board of Zoning Appeals, with representatives of the corporation present to present evidence in behalf of a full seven-day-a-week, 24-hour-a-day, operation. At the conclusion of this hearing, it was determined by the board that:

“* * * the appeal of the Cleaners Service Company for an automatic laundry store on the premises known as 12501 Superior Avenue, which is in a U-3 use district, be granted, providing all construction is in accordance with the plans showing proper ventilation and the plans conformed to the Building Code and further that, if the night operation becomes a nuisance to any of the people living in the neighborhood, the city will reconsider the appeal; that as a condition to this action of approval the store must at all times close at midnight Saturday and open no earlier than midnight Sunday.”

An appeal by the corporation to the City Commission of East Cleveland resulted in the following conclusion by that body in sustaining the Board of Zoning Appeals:

“1. We find the applicant George Frieden, did not, in the original hearing, advise the Board of Zoning Appeals that a Sunday operation was contemplated. The operation was compared to existing operations in East Cleveland, which were closed on Sunday.
“2. It is our finding that the laundry being in operation 24 hours per day, six days a week, should provide ample time for servicing the neighborhood.
“3. Residents of the neighborhood have filed a protest against the Sunday operation and have indicated that they feel that Sunday operation is not desirable or necessary.
“4. To approve Sunday operation would condone a violation of the state Sunday closing law.
“5. Inasmuch as two other similar laundry operations in East Cleveland are closed on Sunday, it would be unfair and unjust to permit this laundry to be open on Sunday.
“6. This Sunday operation would be contrary to the best interests and welfare of the community.”

The corporation having exhausted all of its procedural steps to secure a reversal of this latter conditional permit, and, having failed to obtain a nonlimited permit, thereupon filed this action, seeking to compel the issuance to it of a permit that would allow them to operate the automatic laundry seven days a week, and 24 hours a day.

In our discussion of the legal problems arising herein, we should first note that the zoning ordinance (Ordinance 4761, with its various amendments) does not provide for the operation of such a business within “Class U-3” (local retail stores), the district within which this automatic laundry is located.

The city zoning ordinance does provide (Section 12.000) for conditional uses; this section of the ordinance being as follows:

“A permit for a conditional use in any use district may be granted upon favorable action by the Board of Zoning Appeals and the City Commission in the manner hereinafter prescribed in Sections 38.100 to 39.300. Applications for conditional use permits shall be submitted to the Board of Zoning Appeals in writing. Such a permit for a particular use in a specific location shall be granted only in such cases and upon such conditions and restrictions as will assure that such use is in harmony with the general intent of the ordinance and will secure the general welfare and substantial justice in the promotion of the public health, comfort, convenience, morals, safety and general welfare of the City of East Cleveland.”

The zoning ordinance herein was enacted as a result of the affirmative vote of the electors of East Cleveland, who, at a special election held for that purpose, adopted an amendment to the city charter of •East Cleveland, authorizing such ordinance. This authorizing ordinance said, in part, that:

“Districting and Zoning shall include provisions to regulate, restrict and specify the locations of trades, industries, and apartment houses, dwellings and other use of property, the number of square feet of lot area per family, the size of buildings or parts thereof, the location and size of side, front and rear yards, and the height of buildings; shall provide for the division of the city into use districts, height districts and area districts; shall provide for the alignment or setback of buildings and other structures; and shall provide maps showing said districts and structure alignment or setback.”

The principal question we have to consider is, May a municipality, by means of a zoning ordinance, restrict the days of operation of a business, which business seeks to operate in a use district that does not provide for such business, and which business consequently may operate only as a result of a permit granted under authority of the ordinance?

It would not help us in this discussion to review the history of zoning. Mr. James Metzenbaum, in his work on the Law of Zoning, has reviewed such history at some length in Volume 1, Chapter 1, of the Second (1955) Edition. The validity of, desirability for, and the necessity of, zoning ordinances are now firmly established. Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 71 L. Ed. 303, 47 S. Ct. 114. The legal questions which do arise, however, bear particularly on the constitutionality of various provisions of zoning ordinances. It is in this sphere that the instant problem is placed.

The rule in determining the constitutional validity of municipal legislation is stated in Stary v. City of Brooklyn, 162 Oh St 120, at page 134, as follows:

“Legislation passed by the legislative body of a municipality can not be overthrown by the court unless such legislation is clearly arbitrary, unreasonable or unrelated to the public health, morals, safety or welfare. It is not for the courts to determine the wisdom of the legislation, but is constitutional validity, and a court will not substitute its judgment for that of the legislative body as to necessity for or wisdom of the legislation.”

Drastic regulation of private business has been frequently held constitutionally valid. Marmet v. State, 45 Oh St 63, 12 N. E. 463; Phillips v. State, 77 Oh St 214, 82 N. E. 1064; Sanning v. City of Cincinnati, 83 Oh St 142, 90 N. E. 125; Allion v. City of Toledo, 99 Oh St 416 (regulation by ordinance of weight of loaf of bread); Leonard, Jr., v. State, 100 Oh St 456: Dunn v. State, 122 Oh St 431.

The Sunday closing law, §3773.24 R. C., has been declared to 'be a valid, constitutional and enforcible enactment. State v. Kidd, 167 Oh St 521.

Thus, it is seen that occupations of various kinds are subject to reasonable regulation, where such regulation is adopted for the protection of the public health, safety, morals or general welfare.

It must be remembered, in the instant case, that the use of 12501 Superior Avenue for an automatic, coin-operated laundry business was not provided for by any regulation of the zoning ordinance. The short operation of such business, under the original permit, did not classify it as a nonconforming use. The use of these premises as a laundry was by permit issued pursuant to provisions of the ordinance. A permit issued under the conditions found herein cannot establish a vested right to continue its operation, notwithstanding the desire of the city authorities to require it to conform to the closing regulations imposed upon other and similar permittees within the same use district.

The permit herein is in the nature of a special privilege. It is not a contract between the city and the corporation. It does not confer a vested, permanent or absolute right, but only a personal privilege, to be exercised subject to restrictions lawfully imposed.

Although we find no specific provision in the zoning ordinance for revocation of a conditional use permit, nevertheless, the City Commission, after hearing, may repeal any part of the ordinance after hearing, had. There was a full hearing, in the instant case, on the subject of changing the permit to include a Sunday closing restriction.

The fact that the city did not include automatic, coin-operated laundry business within a class U-3 district is a matter of legislative policy, and is not a matter generally for judicial interference. City of Euclid v. Lakeshore Co., 102 Oh Ap 96; State, ex rel Kangesser Co. v. Beachwood Village, 72 Abs 73.

We have found no case directly in point, but other jurisdictions have spoken on matters related to the problem herein. See; “Legal and Administrative Aspects-of Conditional Zoning Variances and Exceptions,” by John W. Reps, 2 Syracuse Law Review 54.

In the case of Lough v. Zoning Bd. of Review of Town of North Providence, 74 R. I. 366, 60 A. 2d 839, it was determined that a zoning board, in passing on an application for an exception, is controlled by the language of the ordinance. In that case, a Sunday closing of a repair garage was deemed a proper protection of the public when a use permit was granted to operate a gas station and repair garage partly in a residence zone.

Provisions governing the granting of use permits are generally upheld if they are reasonable. 101 C. J. S., Zoning, Sec. 65, and authorities there cited; 58 Am. Jur., Zoning, Sec. 214, and authorities there cited.

In the case of State, ex rel Snyder, v. Yoter, Bldg. Insp., 65 Oh Ap 492, 30 N. E. 2d 558, the Ninth District Court of Appeals, two of the members thereof now sitting in the instant ease, said, with respect to the granting of a building permit which the trial court had declared to be unreasonable, that a requirement that the building inspector issue a permit to build, if a new type of construction met the required safety standards given under the direction of the inspector, was a valid provision of the building code.

Certainly a provision in a permit which restricts the full use of property is not invalid when it has. as is the case of the instant permit, a reasonable relation to the public health, safety and welfare

We have discussed the problem herein solely from the standpoint of the reasonableness of the restriction and its validity. There are, however, equally cogent reasons why the writ prayed for herein should not be issued. To grant an unrestricted permit would, by inference, permit operation on Sunday, which is contrary to the statutes. In addition, to order the city to issue a permit for the purpose sought, in a district which does not provide for the business of the corporation, would be the exercise of the discretion vested in the city administration.

We also conclude that there is an adequate remedy at law by virtue of the Administrative Appeals Act, §2506.01 et seq, R. C., State, ex rel. Oliver, v. State Civil Service, etc., 168 Oh St 445.

We therefore determine that the writ asked for herein should be denied. The parties will prepare the proper journal entry in conformity with this opinion.

Writ denied.

DOYLE, PJ, STEVENS, J, concur.


source: Caselaw Access Project

author: By SKEEL, J:

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. GINNIS, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24648.
    Decided May 27, 1959.

      King A. Wilmot, Director of Law, Robert J. Grogan, Asst. Police Pros., Cleveland Heights, for plaintiff-appellee.
    Ernest J. Easton, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a judgment entered for the plaintiff on the return of a verdict of guilty by the iury impaneled to try the case. The charge was founded upon the alleged violation of the provisions of §3773.24 R. C.

Sec. 3773.24 R. C., provides:

“No person who is over fourteen years of age shall engage in common labor or open or cause to be opened, a building or place for transaction of business, or require a person in his employ or under his control to engage in common labor on Sunday. In prosecutions under this section complaints shall be made within ten days after a violation.
“This section does not apply to work of necessity or charity, and does not extend to persons who conscientiously observe the seventh day of the week as the sabbath, and abstain thereon from doing things prohibited on Sunday.
“This section does not prevent emigrating families from traveling, watermen from landing their passengers, or keepers of toll bridges, tollgates, or ferries from attending them on Sunday.”

As originally set out in the Revised Statutes and the General Code, the second and third paragraphs of §3773.24 R. C., were found in separate sections. In the General Code, the first paragraph of §3773.24 R. C., which contains the prohibition against conducting business and common labor on Sunday, was §13044 GC. Secs. 13045 and 13046 GC, provide the exceptions such as works of necessity and charity, and the conscientious observance of the seventh day of the week as if it were Sunday.

The affidavit upon which the warrant was issued for the defendant’s arrest and upon which the trial was conducted was as follows:

“The State of Ohio, County of Cuyahoga, City of Cleveland Heights. In the Municipal Court of the City of Cleveland Heights, before me. Raymond C. Noonan, Clerk of the Municipal Court of the City of Cleveland Heights, personally came Edward Hach who being duly sworn according to law deposes and says that on or about the 27th day of April, 1958. at the said city, county and state, one Irving Ginnis did violate §3773.24 R. C., by wilfully, intentionally and with knowledge of said §3773.24 R. C„ open or cause to be open a store known as Irv and Joe’s Delicatessen. 13466 Cedar Road, for the transaction of business and sale of merchandise, April 27, 1958, being a Sunday, said transaction of business' and sale of merchandise not being a work of necessity or charity and said work not being within the saving clauses of §3773.24 R. C., contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio; that the said Irving Ginnis was charged and convicted of the same offense in the Police Court of the City of Cleveland Heights on April 14, 1957, and that, therefore, the said Irving Ginnis is charged with a second offense. Signed Edward Hach. Sworn to and subscribed before me, this 29th day of April, 1958. Signed Raymond C. Noonan, Clerk of the Municipal Court of the City of Cleveland Heights, Ohio.”

The evidence is undisputed that this defendant and his partner, Joseph Kaplan, are owners of a delicatessen shop located at 13466 Cedar Road, Cleveland Heights, Cuyahoga County, called “Irv and Joe’s.”

Mr. Kaplan testified in answer to a question of “What do you sell in this store * * *?” — “Well, we are mainly a delicatessen but we have several items; we have a little bit of everything for the convenience of our customers, such as groceries, dairy products, milk, butter, everything pertaining to a food store, but our main business is the delicatessen business.”

The defendant and his partner also conduct a restaurant in the same store. They hold a restaurant license, as provided by law. The defendant testified in respect to the operation of his delicatessen business that his store was open for business, both on April 26, 1958 (Saturday) and April 27, 1958 (Sunday). He stated he had operated his delicatessen business on a seven day a week basis for a considerable period of time prior to his arrest. It was stipulated that he had been convicted of the violation of the same section of the Revised Code on April 14, 1957. He was charged in this action, as indicated by the affidavit as above set out, as a second offender.

Two police officers testified; one, that he made a purchase of a can of peanuts on Saturday, April 26, 1958, and the other, that on Sunday, April 27, 1958, he purchased a can or jar of jelly. Both officers testified that when they made their respective purchases, there were other customers in the store and they observed the defendant and others waiting on trade as in a normal grocery store and that the customers were buying groceries, such as coffee, catsup, sliced corned beef, luncheon meats wrapped in wrapping paper, bread, milk, canned foods and the like.

Some of the defendant’s witnesses testified that they patronized Irv and Joe’s Delicatessen on April 27, 1958 (Sunday) and at many other times, and purchased some of the items above mentioned. Such items could not be described by any other designation than “groceries.” Therefore, the evidence of both the State and the defendant clearly tends to support the fact that on Sunday, April 27.T958, the defendant opened and attended to the operation of his delicatessen store serving customers with grocery items as requested and there is not a word of evidence to the contrary. Nor is there any evidence that the defendant observed the seventh day of the week as the sabbath and abstained thereon from doing what was prohibited on Sunday.

The greater part of the evidence of the defendant received hr offered, most of which was excluded by the court, seemed to be for the purpose of supporting the claim that many other grocery stores in the vicinity were operating on Sunday and that Sunday operation of grocery stores is a convenience the public demands.

At the conclusion of all the evidence, the plaintiff requested and the court gave the following instruction or charge before argument:

“1 charge you as a matter of law that the sale of a jar of jelly, such as that sold to the witness, Hach, on Sunday, does not constitute a work of necessity within the meaning of the term ‘necessity’ as used in the text of §3773.24 R. C.”

The defendant claims the following errors:

“A. The Trial Court erred in charging the Jury before argument on a question of fact.
“B. The Trial Court erred in not explaining the legal meaning, and failing to give the definition of ‘greater weight of the evidence,’ in its final supplemental charge to jury.
“C. The Trial Court erred in the irregularity of its proceedings, and in failing to clearly and adequately explain to Juror 8, in answer to his question as to whether or not the Jury could have a copy of law §3773.24 R. C., in the Jury room; and further erred in what followed thereafter.
“D. The Trial Court erred in connection with his charge that the exception of ‘work of necessity’ constituted an affirmative defense which the Defendant had to establish by the greater weight of the evidence— by refusing to permit Defendant and his witnesses sufficient latitude so far as the law was concerned, and preventing them from testifying in support of and in order to prove Defendant’s affirmative defense by the greater weight of the evidence.”

The first assignment of error challenges the accuracy of the special charge given at the request of the plaintiff before argument. While the charge is open to criticism, it cannot have been prejudicial to the defendant when considered in the light of the record presented in this case. The defendant produced evidence in his defense that he was operating his delicatessen store as charged in the affidavit and there is no dispute in the evidence but that groceries were sold to customers on Sunday. Furthermore, although most of the items sold could be classified as food, such food was not to be consumed on the premises in defendant’s restaurant, but rather to be taken out by the purchaser. There is no dispute but that the defendant did sell the police officer a jar of jelly, which he paid for and took with him as he left and that when the sale was made, there were other customers making purchases of food which they took with them on leaving the store. The law is well established that §3773.24 R. C., is a constitutional exercise of the police power. State v. Kidd, 167 Oh St 521, 150 N. E. 2d 413, and that the general operation of a grocery store is not a work of necessity coming within the exception defined in §3773.24 R. C. The defendant did not attempt to show any special circumstances that would bring the purchase of jelly into the exception as a work of necessity or charity. We hold, therefore, that while the giving of this charge was in error, the defendant was not prejudiced thereby.

The second claim of error must .be overruled. It deals with the claim that the court’s instruction on the meaning of the “greater weight of the evidence” was not complete. The court’s charge was as follows:

“I further charge that the exception of work of necessity or charity constitutes an affirmative defense which the defendant must establish by the greater weight of the evidence.”

The defendant did not request the court to go into greater detail on this subject. Certainly the instruction is complete and accurate and. without doubt, coming directly to the point, was clearly understood by the jury.

The third assignment of error deals with the failure to grant a request of a juror that a copy of §3773.24 R. C., be given to the jury during their deliberations. The argument that follows this assignment of error in defendant’s brief ends with this statement — “Under the law certainly Juror 8 was entitled to a more reasonable and comprehensive explanation.” We know of no rule which requires the court to place a copy of the statute upon which the prosecution is based into the hands of the jury during their deliberations and if the defendant or a juror desired a more complete explanation of any legal term used in the court’s charge, he should make a request for such explanation. We find that the defendant’s third claim of error is not sustained.

The final assignment of error deals with the court’s instruction to the jury that the exception of work of necessity or charity is an affirmative defense requiring the defendant to establish that his activities came within the exception by the greater weight of the evidence, and the refusal of the court to permit evidence tending to establish that defense.

This court in the case of State v. Haase, 97 Oh Ap 377, 116 N. E. 2nd 224, held, in dealing with a similar situation:

“1. The hardware business operated under normal circumstances is not a work of ‘necessity’ within the meaning of §3773.24 R. C.
“2. The fact that the operators of some businesses within the jurisdiction of the court, operating on Sunday in violation of §3773.24 R. C., have not been prosecuted, is no defense in the case of one prosecuted under the provisions of such statute, and the rejection of evidence as to the conduct of others claimed to be in violation of the Sunday closing law is not prejudicial to the rights of the defendant.
“3. An information which sets forth- all the elements of the crime defined in §3773.24 R. C., of operating a business (other than those excepted by the statute) on Sunday but which does not negative the exceptions as set forth in such statute is sufficient, the exceptions constituting an affirmative defense.”

On page 383, quoting in part from Straka v. State, 16 N. P. (N. S.), 554 (opinion by Judge Lieghley, formerly of this Court), it is said:

“It is my opinion that ‘necessity,’ as comprehended by this section of the statute, with few exceptions, arises from conditions or circumstances caused by an agency, either in whole or in part, over which man has no control. P’or instance, it has been held that the distribution of milk on Sunday is a necessity in view of the fact that the production of fresh milk is by nature’s decree daily, and therefore daily distribution of the same is necessary (58 Kans., 328-30). Again, it would doubtless be regarded as a necessity that probably all stores might be open on Sunday, temporarily, following a castastrophe like the Dayton flood, or the Collingwood tragedy. For other instances, see authorities cited above.’
“We are, therefore, compelled to conclude that the state produced sufficient evidence to make out a case against the defendant under §3773.34 R. C., in opening his hardware store for regular business on Sunday, and if it was the defendant’s claim that what he was doing at the time of his arrest comes within the exception of necessity, such claim constitutes an affirmative defense which the defendant must establish by the greater weight of the evidence. This he did not attempt to do.”

The headnote of the Straka case, supra, is as follows:

“The keeping open of a bakery on Sunday is a violation of §13044 R. C., notwithstanding only fresh bread stuffs are sold and the community is in the habit of procuring from such bakery on Sunday its supply of fresh bread stuffs for use on that day.”

The grocery business does not come within the exception as a business of necessity without some special circumstances being shown. In 38 O. Jur., para. 36, at page 364, it is said:

“Sale of Groceries. The keeping open of a grocery store or stores on Sundays for the sale of groceries is not a work of necessity. The fact that the grocers of Ohio almost universally do not carry on business more than six days in the week would lead to the inference that they find no necessity to do otherwise. Special sales made by grocers under certain circumstances on Sunday might come within the classification of a necessity, but to keep the store open for the purpose of selling to all who may come is in law considered not to be a necessity. It is not a necessity to buy anything on the first day of the week which, by the exercise of proper care, could be purchased on the day previous. Sales, in order to be a matter of necessity, must be of things which reasonable foresight would not require to purchase on some other day, such as drugs and medicines.”

In the case of State v. Kidd, supra, the second paragraph of the syllabus is as follows:

“2. 'Work of necessity or charity’ is exempted from the operation of §3773.24 R. C. The word, ‘necessity,’ is an elastic one, and what constitutes work of necessity is often a question of fact dependent on the circumstances surrounding the particular case.”

B;it here the defendant did not proffer a word of evidence that would support a claim that the business transactions of selling groceries on April 27, 1958, as detailed in the record, were made under such special circumstances as to come within the exception set forth in the statute. The claimed error designated number four is, therefore, overruled.

For the foregoing reasons, the judgment of the Municipal Court of Cleveland Heights is affirmed.

HURD, PJ, KOVACHY, J, concur.


author: By SCHNEIDER, J.:

text:
    KUHLMAN, Plaintiff, v. MINGES el, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-155740.
    Decided January 30, 1958.
    Goodman & Goodman, for plaintiff.
    Richard T. Carroll, Norbert J. Bunke, c/o Carroll & Bunke, for defendants.
   OPINION

By SCHNEIDER, J.:

Under a contract dated August 19, 1952, plaintiff was employed by defendants as their sole agent to procure a purchaser for 317.50 acres, known as Minges Poultry Farm, located between East Miami River Road and the Big Miami River, for the sum of $150,000.00. This contract further provided:

“In consideration of your efforts to procure a purchaser, I/we agree to pay you 6% the rate of commission as established by The Cincinnati Real Estate Board, said commission to be paid when binding contract for the sale is executed, and further agree that you shall have the exclusive right to sell said Real Estate for a period of six months, and that you shall be entitled to your commission if the Real Estate is sold or exchanged by you, or the undersigned, or any other person, at any price acceptable to the undersigned, during the existence of this contract.
“The sale or exchange of the Real Estate described above, to any person to whom the broker shall have offered the same during the terms of this contract, if such sale or exchange is consummated within thirty days after its termination, shall be considered a sale effected by said broker and shall entitle him to the commission herein agreed to be paid.”

According to the terms thereof, this contract expired February 19, 1953. While it is not set forth in the contract, the evidence indicates that the owner of the property considered that it was suitable for industrial purposes but the plaintiff was unsuccessful in interesting any prospects for industrial use. The plaintiff then suggested to the owners that the property might be available for gravel production, a portion thereof having already once been operated as a gravel pit by the owners, and suggested to the owners that the Ohio Gravel Company might be interested inasmuch as this company was, at the time, operating gravel pits nearby and probably adjoining the property of defendants. Defendants indicated that it would not be possible because they themselves tried to interest the Ohio Gravel Company on several occasions without success. However, they authorized the effort and the plaintiff conferred with the President of the Ohio Gravel Company, as a result of which an option (Exhibit 2) was purchased by the Ohio Gravel Company for the sum of $1,000.00, for approximately 60 acres constituting a portion of the real estate included in the selling agency contract (Exhibit 1). The Ohio Gravel Company proceeded to make tests on these 60 acres as provided for in the option, referred to as “clam shell excavations.” The option expired December 20, 1952. The option was not exercised by the Ohio Gravel Company and it forfeited to defendants the $1,000.00. The parties were notified of the decision not to exercise the option, approximately on December 12, 1952.

Thereafter the plaintiff did nothing more except, as he relates, he had a call from Mr. Minges on March 13, 1953, as to which he does not recall the purpose. On May 1, 1953, he submitted a plat of the property to another prospect and on July 9, 1953, he had a call from a possible prospect and on October 10, 1953, a call from Mr. Carroll, the Attorney for Minges, wanting to know who got the $1,000.00 on the Minges option and, quoting the plaintiff: “That is where my notes stop” and he had not done “anything in reference to it following October, 1953.”

The next thing that called plaintiff’s attention to this property was an announcement in the newspapers that the Ohio Gravel Company had purchased a large tract of land from defendants.

The evidence discloses that some time prior to February of 1955, The Ohio Gravel Company and the defendants renewed negotiations, apparently at the suggestion of Mr. Minges, as a result of increased activity in the building of public roads at or near the property in question and on the theory that the location of the Minges property had become more desirable for gravel purposes because of this increased road building activity in the vicinity. Under date of February 24, 1955, defendant executed an option (Exhibit 7) which option culminated in the purchase by the Ohio Gravel Company from defendants of 123 acres at a purchase price of $168,000.00. The testimony is to the effect that' this purchase included only a small portion of that particular parcel which was the subject of the original option for 60 acres in October of 1952, and that “most of the 60 acres is still there and the Gravel Company never considered it.”

The option of October 1952, which was executed well within the period of the exclusive agency contract, contains the following language:

“In consideration of the services of Egbert W. Kuhlman, Realtor, in securing a purchaser for the property described in the within option, Grantors herein agree that if the property is sold in accordance with the terms of the within option, or any extension, renewal or modification thereof, Grantors will pay Egbert W. Kuhlman a commission of 6% on the sale price of $65,000.00 or on the amount for which said property may be sold.”

The question to be determined is, therefore, did the option of March 24, 1955, constitute an extension, renewal or modification of the option of October 20, 1952?

The period of time which elapsed between December 12, 1952, when the first option was turned down by the Gravel Company, and February 24, 1955, when the second option was executed, is two years and two months (26 months).

The Court has concluded that the option executed between the parties on March 24, 1955 (Exhibit 7), was an extension, renewal or modification of the option of October, 1952 (Exhibit 2), and this conclusion is based upon the principle of law established in the case of Richter v. First National Bank, 82 Oh Ap, page 421, namely: that when no time is stipulated in a contract the law implies a reasonable time and what constitutes a reasonable time depends upon numerous factors, one of which would be a consideration of the difficulty of finding a purchaser because of the peculiar type of property involved and the usages to which it would be put and that in such case it might be reasonable to anticipate that it would take five or six years to find a purchaser. The case of Bowman v. Hartman, 6 O. C. C. (N. S.) 264, is further authority for this rule.

The next question to be determined is whether the plaintiff has a right to a commission upon all of the property ultimately sold by defendant to the Gravel Company.

There can be no question but that the plaintiff herein was the procuring cause of the original option which covers specifically 60 acres of land. This option supersedes the original contract between the parties which was for the sale of 317.5 acres. The rights of plaintiff are defined within the terms of this first option which limits the right of plaintiff to recover a commission on 60 acres only, inasmuch as it is apparent that the purchaser was, at that time, interested only in that amount of acreage. The fact that conditions and circumstances changed to the extent that by the time the final transaction was consummated, the purchaser was interested in 123 acres rather than 60 acres, does not entitle plaintiff to a commission on the entire acreage sold by defendant.

On the other hand, the mere fact that the final selection by the purchaser of 123 acres out of the original 317.50 acres offered for sale by defendants, included only a portion of the 60 acres for the sale of which defendants agreed to pay plaintiff a commission, does not deprive plaintiff of his right to the commission for 60 acres of land sold.

The Court is of the final opinion, therefore, that the plaintiff is entitled to a commission of six per cent on the sale of 60 acres of land at the price of $65,000.00, namely, an amount of $3,900.00.

An entry may be presented in accordance with this finding.


text:
    STONE BOWLING COMPANY, Appellant, v. BOWERS, Tax Commr., Appellee.
    The Board of Tax Appeals, Department of Taxation, State of Ohio
    No. 35192.
    Decided January 9, 1958.
    George W. Byers, Cincinnati, for appellant.
    William Saxby, Atty. Geni., By John M. Tobin, Asst. Atty. Geni., for appellee.
   OPINION

This cause and matter came on to be considered by the board of tax appeals upon a notice of appeal filed herein under date of September 4, 1957, by the appellant above named from a final order of the tax commissioner dated August 23, 1957, in and by which final order the tax commissioner denied appellant’s application for review and redetermination of an increased personal property tax assessment for the year 1957.

The cause was submitted to the board of tax appeals upon the notice of appeal, the statutory transcript supplied by the tax commissioner, the testimony and evidence presented at a hearing before the board of tax appeals in Cincinnati, Ohio, November 21, 1957, and the briefs supplied by counsel.

The appellant omitted from Schedule 4 of its 1957 Personal Property Tax Return a $14,000.00 item representing the installation charge on leased Pinspotters. Thereafter, upon audit of appellant’s books, the tax commissioner added this $14,000.00 item to said schedule.

The question for decision is whether the standard installation cost paid to the owner-lessor by the lessee-appellant is an item which is subject to taxation to appellant as tangible personal property?

The facts are not in dispute and may be summarized as follows:

The Stone Bowling Company is an Ohio corporation for profit organized in February of the year 1939. In the year 1954 the appellant entered into a lease with AMF Pinspotters, Inc. covering the installation and rental of 28 AMF Automatic Pinspotters in appellant’s bowlihg alleys in Cincinnati, Ohio. Under the terms of the lease appellant paid an installation charge of $500.00 per machine for the installation óf each of the 28 machines. The total amount of $14,000.00 was placed upon appellant’s books in an account titled “AMF Pinspotters Inc.” This amount was not treated on the books of the appellant as an asset, and the amount is being written off appellant’s books at the rate of 10% per year over a 10-year period for Federal Income Tax purposes. Under the terms of the lease no provision is made for a refund of any part of the $14,000.00 installation charge in the event the lease is terminated. The pinspotting machines were delivered to appellant’s bowling alleys in a “knocked down” condition in crates, boxes and packages. The $500.00 installation charge is a standard charge made by AMF Pins-spotters, Inc. and is said to cover transportation or freight and the labor of installing the pinspotters on the job site. The actual installation of the machines is performed by subcontractors employed by AMF Pin-spotters, Inc., who pay the contractors for the installation. Although installation of the machines is done under the supervision of an employee of AMF Pinspotters, Inc., the adjustments on the machines are made by its employees. AMF Pinspotters pays the personal property tax on the machines and subsequently invoices this amount to The Stone Bowling Company, who, in turn, pays the lessor.

From the above stated facts it is evident that the only tangible personal property involved in this appeal has already been listed for 1957 taxation by its owner, AMF Pinspotters, Inc., and that the tax thereon has been paid. This board can find no justification in the statutes for requiring the appellant to list as tangible personal property the installation charge paid to the owner of the pinspotters. Under the circumstances in this case the $14,000.00 was a deferred charge on appellant’s books and not subject to taxation to appellant as tangible personal property.

The final order of the tax commissioner is, therefore, reversed.


author: By SKEEL, J.

text:
    HOYE et, Plainfiffs-Appellees, v. SCHAEFER et, Defendants-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    Nos. 5806, 5807, 5808, 5809, 5810.
    Decided March 17, 1959.

      George, Greek, King & McMahon, for plaintiffs-appellees.
    Thomas W. Applegate, C. Richard O’Neil, for defendants-appellants.
    (HURD and SKEEL, JJ, of the Eighth District, sitting by designation in the Tenth District.)
   OPINION

By SKEEL, J.

This appeal comes to this court on questions of law and fact from a decree entered for the plaintiffs upon trial of the issues in the Court of Common Pleas of Franklin County. The court, before trial and by agreement of the parties, consolidated five cases in which the plaintiffs were all seeking the same relief against this defendant. The decree hereinafter rendered, will therefore be entered in each of the five cases.

The plaintiff’s action is one seeking to enjoin the County Recorder of Franklin County from making a record of the proceedings of the trustees of Franklin Township, seeking to incorporate the Village of Franklin Heights, the proceedings in this action being brought under the authority of Chapter 707 R. C.

The petition bases the claim for an injunction on the grounds and by the authority of the provisions of §707.20 R. C., which incorporates within its provisions §§707.11 to 707.14 R. C., §707.20 R. C., provides:

“Upon compliance with §§707.15 to 707.19 inclusive, R. C., the municipal corporation shall then be a village under the name adopted in the petition, with all power and authority given to villages by Title VII R. C. No injunction shall be brought, as provided in §707.11 R. C., unless such action is instituted within ten days from the filing of the papers by the board of township trustees with the county recorder. The right of petition to the court of common pleas for error shall exist as provided in §§707.11 to 707.14 inclusive, R. C.’’

Sec. 707.12 R. C., provides for the procedure to be followed in seeking an injunction. Sec. 707.13 R. C., sets out the manner of filing, docketing and hearing the claims for injunction.

Sec. 707.14 R. C., then provides:

“If error is found in the proceedings under §§707.01 to 707.08 inclusive, R. C., or if the boundaries are found to be sg inaccurately described as to render indefinite or uncertain the limits or extent of the proposed municipal corporation already in existence in this state, or if the court of common pleas finds that the limits of the proposed municipal corporation are unreasonably large or small, or that it is not right, just, or equitable that the prayer of the petition presented to the board of county commissioners be granted, the court shall make an order enjoining the county recorder from making the record. Such order shall not be a bar to subsequent applications to the board for the purpose of effecting incorporation. The court shall render such judgment as to the payment of the cost incurred in such proceeding for injunction as is just and equitable.”

The claim of the appellant that the only inquiry permitted to the plaintiff in such an action is to examine the record for procedural errors, is not well taken. By incorporating all of the provisions in the section included within the provisions of §707.20 R. C., it seems clear that in an injunction proceeding the plaintiff is not only privileged to claim error in the procedural steps but persons interested may also question the accuracy of the boundaries as filed, or the accuracy of the map, or the name to be given the new village, or that the proposed corporation is unreasonably large or small or that it is not right, just, or equitable that the prayer of the petition presented to the board should be granted. In examining the statutes providing for incorporating a village by petition filed with the township trustees, it is clear that such trustees are without power to give consideration to the merits of the petition but must grant the prayer of the petition and set an election if the allegations of the petition are in full compliance with the statutory requirements and the petitioner establishes by proof that the allegations of such petition are true (§707.16 R. C., before the amendment of 1955). The question of the reasonableness of the limits of the proposed corporation, whether unreasonably large or small, or whether it is right, just, or equitable, or that the prayer of the petition be granted, is no where to be considered except by the action seeking an injunction as provided by the sections incorporated in §707.20 R. C. (Secs. 707.11, 707.12, 707.13 and 707.14 R. C.) In the procedure provided for incorporation of villages by petition to the county commissioners, the commission must pass on the reasonableness of the proposal and whether it is equitable and just. Their duties are legislative in character but this is not true as to the duties of township trustees in incorporation proceedings. The voters likewise are required only to “assent” to the granting of the petition. We. therefore, conclude that the appellant is in error in attempting to limit the scope of this court’s consideration of .the evidence here presented, to only as it exemplifies the procedure used in presenting the petition for incorporating Franklin Heights Village to the trustees of Franklin Township and the procedural steps taken by them in the matter. We will consider the evidence as it applies to all of the other questions presented by appellees as did the court from which this appeal is taken .

The territory of Franklin Township, which the petitioners seek to incorporate, contains twenty-two and six-tenths square miles (one-half the size of Columbus) which is in the form of a U completely around the westerly end of the City of Columbus. The greater part of its territory is used for agriculture. There are three or four widely separated sections in which home development has taken place. There has been some industrial development, including two or three large establishments. There are about twelve thousand inhabitants in the territory and on the day of the special election, there were about four thousand registered voters. The Election Board has provided eleven polling places for the use of • the voters at previously held general elections. In its order directing the special election on the question of incorporation, the Board of Township Trustees ordered that the voting place should be at a fire house located at 2195 Franklin Avenue, which is about in the center of the southeasterly leg or end of the U comprising Franklin Township. The statute (§707.16 R. C.), in force on the date of the order, provided that the township trustees should direct in its order for the election, that it be held “at a convenient place therein named.” These words could not be understood as limiting the trustees to the designation of but one place where the voters could exercise the right to approve or disapprove the incorporation of the township into a village. To attempt to require almost four thousand voters to exercise the right to vote in one place where eleven places are required in general elections and at a location clearly to the disadvantage of a majority of the voters, as was here done, constituted an abuse of discretion on the part of the board, invalidating such order. It is significant, and the fact must be noted, that that part of §707.16 R. C., was amended effective 10/5/55, whereby the duty to fix a convenient place for the voters to cast votes in an incorporation proceeding, as imposed upon township trustees, was taken out of the statute.

We also find that the map filed with the petition was inaccurate. The appellant tries to refute this claim by stating that the basic map was correct, having been obtained from the Franklin County Regional Planning Commission. The fact that the map, as procured from the Planning Commission, is accurate, is not in dispute. The petitioners proceeded to make the boundaries of that part of Columbus which protrudes westerly into the unincorporated part of Franklin Township, as shown on the map, more prominent by shading that part of the map blue. In doing so, they included ninety-two one-hundredths of an acre, which was, in fact, not a part of the City. They also shaded that part of the map representing the unincorporated part of Franklin Township in red, which did not include the ninety-two one-hundredths of an acre mistakenly colored blue. There was no shading at all on part of the unincorporated part of Franklin Township fronting on, and including, the island in the Scioto River to the south and west of Columbus. Colors have long been the method used by map makers to designate and distinguish specific areas included within one map, particularly as here, where a legend on the map explains the use of colors. One examining this map should not be compelled to decide which of the designations of separate political divisions was correct. The statute requires an accurate map. From the undisputed evidence, the contradictions contained in the map filed with the petition by reason of the methods employed to designate Columbus from the unincorporated part of Franklin Township and the failure to include all of the unincorporated part of the township in one color, we must conclude the map was, in fact, not accurate.

The proposed village of Franklin Heights would be U shaped completely circumscribing almost the entire western development of the City of Columbus. Its shape will, of necessity, make the providing of the usual public services both difficult and expensive. One expert testified that the difficulty in providing sanitary sewers would, under the circumstances, be hard to overcome and the expense of such work would be almost prohibitive. While there is some evidence to the contrary, it is not sufficiently clear to overcome the facts contended for on this question by the appellees. Many other almost insurmountable difficulties in the administration of the affairs of a village of such size, shape and state of development, with small dwelling areas widely separated by farms and some industry, would become apparent were this large territory to become a village. A village is defined by Webster as “any small aggregation of houses in the country, less in number than a town or city and more than in a hamlet.” Black’s Law Dictionary, Third Edition, defines village as “any small assemblage of houses for dwellings or business, or both, in the country, whether they are situated upon regularly laid out streets and alleys or not.” Farmers are not in need of the services which city dwellers require and which can be furnished with some fair degree of economy only where there are many users close together.

We conclude that because the territory sought to be incorporated is U shaped (comprising over twenty-two square miles) and in its present state of development, its limits are unreasonably large and also because of the fact that it almost completely circumscribes the westerly part of Columbus, whereby further development would be retarded until the village could afford to provide public services to, at least, the greater part of the village, without which further development is impossible, it would not be just, right and equitable to grant the petition filed with the Township Trustees of Franklin Township, seeking to incorporate its territory into a village.

We have not given consideration to the question of whether the plaintiffs are “interested parties” for the reason that it seems so obvious, from the uncontradicted evidence, that they are interested persons, that further consideration of the question is unnecessary.

A decree may be entered enjoining the County Recorder from receiving for record the petition for the incorporation of the Village of Franklin Heights.

HURD, PJ, DUFFY, J, concur.


author: By DANACEAU, J.

text:
    STATE, ex rel. BOTT, Relator, v. PETRO et, Respondents.
    Common Pleas Court, Cuyahoga County.
    No. 714260.
    Decided June 15, 1959.
    Hemple & Gordon, Lakewood, for relator.
    George E. Fedor, Cleveland, for respondents.
   OPINION

By DANACEAU, J.

The relator, Ralph W. E. Bott, is a widower, whose late wife, Florence S. Bott, had been a member of the Police Department of the City of Lakewood and had retired in 1951 after twenty-five years of service. During her retirement and until her death in 1957 she was the beneficiary of allowances from the Police Relief Fund of which the respondents are the trustees. In October of 1947 said Florence S. Bott elected to be governed by the rules and regulations of the Police Relief Fund of the City of Lakewood.

The relator claims that he is entitled to receive a pension from the said fund as the “widow” of the said Florence S. Bott, and, his request being denied, demands that a writ of mandamus issue commanding the respondents to authorize the payment to him of such widow’s pension.

The pertinent part of Section No. 2 under the heading of “Beneficiaries” of the Rules and By-laws governing the Board of Trustees of the Police Relief Fund of the City of Lakewood as amended August 1, 1944, reads

“When any member of said Police Department or retired member on pension thereof, dies, from any cause whatever, and leaves a widow, child or children under eighteen years of age, the Board of Trustees shall authorize the payment to such widow, while unmarried, and the child or children under eighteen years of age, monthly, from the Relief fund, the sum provided in Section 3 of this Act in accordance with the provisions set forth in Section 1 of this act, or if any member shall have a dependent father or mother, upon such satisfactory proof that such father or mother was dependent upon such deceased member of the Police Departmet, the Board of Trustees shall authorize the payment to such father or mother monthly, from the Relief Fund, the sum provided in Section 3 of this Act in accordance with the provisions set forth in Section 1 of this Act, provided, no pensions shall be paid to the father or mother of the deceased member who leaves a widow and if the widow of any deceased member shall re-marry, her pension shall cease, and when the child or children of any deceased member shall reach the age of eighteen years or if the widow shall re-marry before the child or children reach the age of eighteen years, their pension shall cease. In the event of the death of the widow before the children reach the age of eighteen the sum provided in Section 3 of this Act shall be paid to the legally appointed guardian of said children. And further provided if any member of the Department shall be married after being retired and placed on the pension list, neither his widow or his children by said marriage shall participate or be entitled to any benefits accruing from said pension in case of death of said retired member.”

The pertinent part of §4631-1 GC, in effect in October, 1947, read:

“Sec. 4631-1 GC. ELECTION TO RECEIVE BENEFITS AND PENSIONS. Persons who, on the effective date of this act, have been contributing two per cent of their annual salary to a police relief and pension fund may elect to receive benefits and pensions from said fund in accordance with the rules and regulations governing the granting of pensions and benefits therefrom, in force on the first day of April, 1947. Such election must be in writing and filed with the trustees of said fund within sixty days after the effective date of this act. Provided, however, such person shall be required to contribute to the fund in the manner and in the amount provided for in §4625 GC.”

The statute and the rules clearly authorize allowances to a widow, child or children under eighteen years of age while the widow remains unmarried, such allowance to terminate if the widow of any deceased member shall remarry. There is no such provision with respect to a surviving husband.

Is the relator a “widow”? Webster’s Dictionary (New Collegiate Edition 1958) defines “widow” as “(a) a woman who has lost her husband by death; the female survivor of a marital union, (b) a woman who has not remarried after the death of her husband.” Widower is defined as, “a man who has lost his wife by death, and has not married again.”

The word '“widow,” popularly and legally, means a woman who has lost her husband by death and has not remarried; the surviving lawful wife of a decedent. Montclair Trust Co. v. Reynolds, 141 N. J. Eq. 276.

The common meaning of the word “widower” is a man whose wife his died and has not remarried. Canal National Bank of Portland v. Bailey, 142 Me. 314, 51A 2d 482, 483.

Reference is made to §1.10 R. C., which reads in part

“As used in the Revised Code, unless the context otherwise requires: (B) Words in the masculine gender include the feminine and neuter genders.”

The provisions involved herein refer only to a widow and the context will not permit the word “widow” to include “widower.” It is also to be noted that §1.10 R. C., does not provide that the feminine gender includes the masculine.

In Young v. O’Keefe, 69 N. W. 2d 534, the Supreme Court of Iowa had before it the question of whether or not a widower of a deceased feminine member of the Sioux City Police Force had the same survivor’s right to benefits as allowed to the widow of a deceased male member of said police force. The Court held on page 536,

“Had the legislature so intended, it would have been easy and natural to have provided, simply and clearly, that the word “widow” shall include “widower.” Certainly that is not the meaning expressed here.”

and on page 538,

“It is of course possible the members of the 45th General Assembly, had it been called to their attention, might have made the same provision for surviving widowers of deceased female members as was made for widows of deceased male members.
“But it is at least equally plausible that the legislature, as defendants suggest, deliberately omitted doing so, considering financial dependency (as typified by the wife and children rather than by the husband and father) to be the ‘primary and essential’ qualification to entitle a survivor to benefits.”

The Supreme Court of Iowa held that under a pension statute providing that the term “widow” should mean only such surviving spouse of marriage contracted prior to the retirement of the deceased member or of marriage of retired member contracted prior to effective date of act, the phrase “such surviving spouse” meant “widow” and did not have effect of enlarging term “widow” to include “widowers.”

Chretien v. Amoskeag Mfg. Co., 87 N. H. 378, 180 A. 254, was an action under the Workmen’s Compensation Act by an administrator to recover compensation for the husband of a woman who died as a result of compensable injuries, the husband alleging that he was wholly dependent upon her earnings. The pertinent part of the statute provided (Page 254)

“If the workman leaves any widow, children or parents, at the time of his death, then wholly dependent on his earnings, a sum to compensate them for loss, * * *”

In the opinion of the court (Page 255) it is said

“But a statute requiring that words denoting the masculine gender shall include females 'will not authorize us to read the word widow as including widower.’ ”
“The Legislature, having twice considered the question of recovery of dependents of a deceased employee, presumably gave careful thought to the definition of the class of dependents who were to benefit by the act. The inclusion of widows and the failure to name widowers therefore becomes especially significant. If the Legislature had intended to include widowers, it seems probable that they would have inserted the word, or at least would have adopted the general designation of ‘spouse’ for ‘widow’ in the same manner as they used ‘children’ instead of ‘son or daughter,’ and ‘parents’ instead of ‘father and mother.’ ”

In Rourke v. Russell, 91 Conn. 76, 98 A. 718, the court had before it the question of whether or not the Probate Court had authority to make an allowance to a surviving husband out of the estate of his deceased wife for his support during the settlement of the estate under a statute authorizing such allowances “for the support of the widow or family of the deceased.” The court held (Page 719).

“This phraseology on its face excludes a surviving husband. ‘Ex-pressio unius, exclusio alterius.’ ” * * *
“The appellee invokes the rule of construction expressed in section 1 of the General Statutes that words imputing the masculine gender may be applied to females; but that will not authorize us to read the word ‘widow’ as including ‘widower.’ ”

The Supreme Court of Connecticut disallowed the claim of the surviving husband.

In John Stone v. Board, 119 N. J. L. 211, 195 A. 617, affirmed by the Court of Errors and Appeals of New Jersey in 120 N. J. L. 184, the court had before it the claim of a surviving husband for a pension by reason of the service of his wife as a jail matron and a member of the Sheriff’s Employees’ Benefit Fund under a statute providing that the “widow” of any sheriff’s employee shall receive a pension so long as she remains unmarried. It was urged that the word “widow” was intended to include “widower.” The court held (195 A. 617).

“The court is asked to say that the word ‘widow’ was intended by the Legislature to include ‘widower.’ We think the language and the context plainly bar any such construction. The word itself, in common and universal usage, connotes a female. The statute speaks of an employee who loses his life in the performance of his duty, and the pension goes to the widow so long as she shall remain unmarried. It would be a strange application of the statute to say that if a surviving husband, assumed to be entitled, should remarry, he should lose the pension because of having assumed the burden of supporting a second wife;”

A widow of a police officer, left with minor children is confronted with problems of support quite different from those which ordinarily touch a widower. The community at large is justifiably apprehensive and such apprehension has found its way into the statutes and the rules adopted. There is no corresponding apprehension for a surviving husband.

Should the widow remarry the pension would cease, presumably on the theory that financial support was no longer needed. Should a widower remarry, and the construction urged by the relator applied, it would be strange indeed to stop an allowance because the husband now has the burden of supporting a second wife. The differences in the respective situations are apparent and clearly warrant the distinctions made by the statute and rule.

Relator complains that his late wife contributed the same rate as the men did. That would be true also of the many unmarried officers who contributed equally with the married men, yet cannot possibly receive the benefits that relator seeks.

The Police Relief Fund was not created exclusively by the contributions of the officers. A substantial portion comes from taxation. The fund is not exclusively the concern of the officers. It is also of great concern to the public. As stated by Judge Stewart in State, ex rel. Hall, v. Board, 149 Oh St 367, 376, “The police relief fund is a public fund.” The first syllabus in that case reads

“A municipal police relief fund established under the law is a public trust and can be disbursed only by clear authority of the law. The trustees thereof are authorized to pay from such fund only in accordance with the rules adopted by such trustees pursuant to law, and any payments not in accord with such rules are illegal and unlawful and cannot 'be considered as an interpretation of the rules.”

In the instant case the total contributions of Florence S. Bott from November 1, 1926 to November 1, 1951 was $1201.51. From the date of her retirement in 1951 to the date of her death on August 28, 1957, she received from the fund the sum of $14,866.68. In addition there were pension payments accrued which had not been paid to her, but which have been paid to her estate after her death in the amount of $3715.11. ft also appears that the fund is still indebted and there is due the estate the sum of $557.73. The total amount paid or payable to Florence S. Bott and her estate is $19,139.52. The public contribution and concern in and for the Police Relief Fund is here well illustrated.

The needs of the widow and orphan are of concern to the general public as well as to the persons involved and there is a good and sound basis for the classifications found in the statute and the rules. The classjfication was inserted into the law with design and being reasonable does not exceed constitutional limitations.

It is the opinion of this court that the word “widow” means a woman who has lost her husband by death and who has not remarried and that by intent and design the statute and the rules and regulations do not include a widower.

Mandamus is an extraordinary remedy available to command the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station. The relator must show a clear legal right to the relief sought as a condition precedent to the issuance of a writ.

The court has before it the stipulation of agreed facts and the briefs of counsel. On consideration thereof the court finds that the relator has not established a clear right to the relief demanded and that the respondents have quite properly refused his demand.

The writ of mandamus is denied. O. S. J.


author: By THE COURT:

text:
    PETTY, Plaintiff-Appellant, v. DAYTON MUSICIANS’ ASSN., Local 101, A. F. of M., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2473.
    Decided September 18, 1958.
    Guy E. Miller, Dayton, for plaintiff-appellant.
    Frederick W. Howell, Dayton, Merritt E. Schlafman, Fairborn, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County sustaining defendant’s motion for judgment on the pleadings.

Plaintiff operated as a sub-b.ooking agent under the license of a qualified broker. This relationship was terminated by the Musicians’ Union and notices were sent to the members of the union instructing them not to negotiate or enter into contracts with the plaintiff. Plaintiffs claims damages, by reason of the termination of said relationship and also because of the distribution of said notices to the members of the union. The defendant in its answer admits publication of the notice and distribution of said notices to its members; alleges that such was a privileged communication between the members and the defendant organization; alleges that the plaintiff’s relationship as a sub-booking agent was terminated; that defendant acted in accordance with its rules and regulations. The reply denies certain allegations in the answer.

The defendant filed a motion for judgment on the pleadings. While the motion was pending, in a subsequent term of court, and without leave of court, the plaintiff filed a second amended petition. In this petition plaintiff alleges that the notices were distributed not only to members of the defendant union but also to “other persons.” Subsequently plaintiff filed a motion for leave to re-file the second amended petition or leave to file another amended petition.

In the entry sustaining the motion for judgment on the pleadings, the court stated that it had disregarded the second amended petition since it was filed without leave of court. However, the court in the entry noted that the second amended petition did not state any new facts, except the allegation that the notices had been distributed not only to the members of the union but also to third parties. In a separate entry the court overruled the motion of plaintiff for leave to file a second amended petition.

Plaintiff’s notice of appeal is directed to the judgment rendered on March 24, 1958, the day on which the entry was filed sustaining the motion for judgment on the pleadings; the entry overruling plaintiff’s motion for leave to file a second amended petition was filed the same day. During the oral argument of this case counsel for appellant, upon being interrogated on this matter, stated that the appeal was from the order granting judgment on the pleadings, although in the brief of counsel for appellant the only matter discussed is the action of the court in overruling plaintiff’s motion for leave to file the second amended petition.

Without question, the court properly held that the amended petition which the court considered in rendering judgment on the pleadings failed to state a good cause of action. We approve of the conclusions of the trial court set forth at length in the judgment entry and the reasons assigned therefor.

We question whether the action of the court in overruling plaintiff’s motion for leave to file a second amended petition is embraced in this appeal. However, this Court has no hesitancy in passing on this matter inasmuch as it was briefed and presented in oral argument.

Whether the plaintiff should have been accorded the privilege of filing a second amended petition rested within the sound discretion of .the trial court. Unless this Court finds an abuse of discretion on the part of the trial court a case of reversible error is not presented.

In passing on the motion for leave to file a second amended petition the trial court held that the additional allegation in the second amended petition to the effect that notices had been sent to “other persons” did not strengthen plaintiff’s case. There was no allegation identifying such other persons, or what relationship existed between the plaintiff and such other persons. In our opinion the trial court did not abuse its discretion in overruling the motion for leave to file the second amended petition.

Finding no error in the record prejudicial to the rights of the plaintiff the judgment is affirmed.

Counsel will draw the proper entry.

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


author: By FORD, J.

text:
    CENTURY FOOD MARKETS CO., Plaintiff, v. NATIONWIDE MUTUAL INSURANCE CO. et al., Defendants.
    Common Pleas Court, Mahoning County.
    No. 151528.
    Decided April 17, 1958.
    George M. Jones, for plaintiff.
    Pf'au & Pfau, for defendants.
   OPINION

By FORD, J.

This is an action for a declaratory judgment brought by Century Food Markets Company against Nationwide Insurance Company and Mike Stanish praying for a determination that Nationwide defend an action brought by Stanish against Century for personal injuries, Nationwide having at the time in force a policy of liability insurance covering Stanish’s automobile.

Stanish had parked the automobile on Century’s premises while he made purchases at the market. An employee of Century delivered the purchases to the automobile and while doing so Stanish sustained injuries to his hand claimed to be due to the employee’s negligence in closing the automobile door. Century was protected by a policy of public liability insurance issued by the Manufacturers & Merchants Indemnity Company which covered the accident. Century gave prompt notice of the accident to Manufacturers whose represenatives handled the claim up to February 13, 1957, when Century, at Manufacturers instance, requested Nationwide to assume the defense, Century having learned of the Nationwide policy from Stanish’s counsel.

In the Nationwide policy, the word “insured” is defined to include not only the named insured but any other person using the automobile with the permission of the named insured. The policy also contained the usual requirement of written notice to Nationwide as soon as practicable.

Nationwide defends on the grounds (1) of lack of notice as required by its policy and (2) no coverage.

The first defense is without merit. Whether notice as required by the policy was or was not given is a question of fact for the jury. The facts as stated in the agreed statement are not such that I can determine the question as one of law. Nationwide, if held to cover plaintiff’s claim can raise the question of notice in the usual way if it should defend under a reservation of rights and a supplemental petition is filed under §3929.06 R. C.

The question of coverage has not been settled in the decided cases. In none of the authorities cited to support coverage by the Nationwide policy was the one seeking recovery the named insured under the policy; on the other hand, three of the authorities cited as against coverage all depend upon the language of a Massachusetts Statute. The fourth case is in point. It is a trial court decision, Johnson v. Employee’s Liability Assurance Corp., 285 N. Y. S. 574.

To say the least, for a named assured to make claim under a policy issued to protect him, on the ground that it covers the liability of another using the car by loading it with his permission is inconsistent with the position of the named assured for whose protection the policy was primarily issued; especially since action was taken against Nationwide at the instance of a representative of Manufacturers which covered the public liability of Century to Stanish.

The issue is, however, unnecessary to decide. The petition prays for an order declaring that Nationwide should take over and defend the action by Stanish against Century. Even if Nationwide were held to have covered the accident, it was also covered by the policy to Manufacturers. The provisions in the latter’s policy relating to other insurance merely concern the sharing of liability. An obligation to defend is still upon Manufacturers. I, therefore, decline to make a determination which in effect would throw the entire burden of defense upon Nationwide.

The petition for a declaratory judgment is dismissed at plaintiff’s costs.


text:
    GOTTLIEB, a Taxpayer, Plaintiff, v. KRYZAN, Mayor et al., Defendants.
    Common Pleas Court, Mahoning County.
    No. 150147.
    Decided November 8, 1957.
    Williams & Osborne, for plaintiff.
    Felix Mika, Law Director, Frank J. Battisti, Asst. Law Director, for defendants.
   OPINION

By FORD, J.

This case involves the legality oí the appointment by the defendant Kryzan, Mayor of Youngstown, of the defendant Sheetz as manager of the Youngstown Municipal Airport, a position within the classified Civil Service. Pending an examination by the city Civil Service Commission, the mayor provisionally appointed Sheetz on April 1, 1954. The examination was held on December 10, 1954. Two persons successfully passed the examination, Sheetz failing to attain the minimum grade. An eligible list containing the names of the two persons was prepared and certified to the mayor, who refused to appoint either of the candidates on the ground that §143.20 R. C., requires the certification of three names. See State, ex rel. Chapman v. Lesser, 94 Oh St 387. He continued Sheetz in office until a new eligible list following a further examination could be created.

For reasons which do not appear, no further examination was held until April 26, 1956 when eight persons attained the minimum grade, Sheetz standing sixth in order of relative excellence. The Commission, in accordance with §143.20 R. C., certified to the mayor the names of the first three in order of relative excellence as eligible for appointment as Airport Manager. The mayor did not make an appointment but later obtained withdrawal waivers from the first two, as well as from candidates standing 4th and 5th on the eligible list, whose names had not yet been certified to him for appointment.

Four months later, on August 27, 1956, the mayor sent a letter to the Commission requesting the certification of a second list for appointment. He enclosed written waivers from the four candidates on the eligible list which he had obtained, those standing first, second, fourth and fifth in order, and requested certification of the remaining names so that an appointment could be made. The same day, the Commission certified the names of the third, sixth and seventh on the eligible list. Thereupon Sheetz was appointed.

Two questions are involved (1) Was the mayor bound to appoint a candidate whose name was certified on the first list on April 26, 1956? If so he had no occasion or right to request a second certified list and his appointment of Sheetz from that list was invalid. (2) If the mayor had the right to request a second certified list, was a sufficient number of waivers shown by the evidence to be invalid, so that the name of Sheetz should not have been on that list? If not, Sheetz was entitled to the appointment irrespective of his rank on the list, the mayor having discretion to select any name validly on the list. I take up these questions in inverse order.

There is no question but that any candidate who is on the whole eligible list may withdraw his name from consideration, and waive his right to appointment. But such withdrawal or waiver is invalid if the appointing officer by means of threats or coercion induces such waiver. This is made clear by §143.45 R. C., which forbids anyone holding public office to do so. Even without that provision, the consent to withdraw must exist in fact and if the waiver was made under such circumstances of pressure that its voluntary nature was in effect destroyed, the waiver is invalid.

Civil Service in Ohio was established by an amendment to the State Constitution in 1912 adopted by vote of the people and by a law enacted in 1913 in response to the amendment. Both the amendment and the law (now §143.01 ff R. C.l, provide “Appointments in the Civil Service of the State, the several Counties and Cities shall be according to merit and fitness, to be ascertained, as far as practicable, by competitive examination.” The Youngstown city charter, section 52, adopts the law.

The Mayor’s own testimony leaves no doubt that from the beginning he intended to appoint Sheetz as the one in his opinion best qualified, if there was any legal way he could accomplish his purpose. This attitude of mind is clearly contrary to the basic intent of the Civil Service Law, in view of the language of the constitutional amendment and the law (§143.03 R. C.), that appointments shall be according to merit and fitness to be ascertained by competitive examination. The practicability of examination has not been questioned in this case; in any event it would be for the Commission to determine, not the mayor. The only discretion given to the mayor by the law is to appoint one of the three candidates certified to him, irrespective of their rank upon the list (§143.20 R. C.). To this extent only can he judge their qualifications.

Nevertheless if the mayor had the right to request a second certified list for appointment, he had the right to appoint Sheetz provided that there were three valid waivers of candidates who ranked higher on the eligible list, Sheetz being sixth on the list.

The taxpayer plaintiff has the burden of proof to establish the invalidity of any waiver. Quaranto, the first candidate on the list, waived. He did not testify at the trial, having previously died. Bakolik, the fourth candidate, was out of the county and did not testify. The only evidence as to the circumstances under which their written waivers were given was that they purported to be voluntary and were given at the mayor’s instance and persuasion.

Taddei, who ranked second, and who waived, did testify. He is and was an employee of the City in the collection department, Division of Water, and under Civil Service. He was twice requested by the mayor to withdraw but refused to do so. Later he signed a waiver at the instance of the City Law Director who showed him the written waivers of three other candidates. It is clear from his testimony that he withdrew only because he concluded he had no chance to be appointed, without reference to any other pressure to which he was or might have been subjected.

Under these circumstances, I cannot say that he signed the waiver under threats or coercion or under such pressure that there was no actual consent to withdraw. That is also true of the two other candidates who did not testify. Merely because the mayor took the initative in obtaining their waivers and persuaded them to do so does not in and of itself destroy the reality of their consent, nor amount to threats or coercion.

Cook, fifth on the list, who waived, also testified. It is not necessary to determine whether the waiver he gave was invalid or not. Even though I held it invalid, the only practical effect would be to place the name of Sheetz as third on the second certified list rather than second and the mayor could have appointed him, so long as his name was rightfully on the list.

The other question necessary to determine is, as I have stated, was the mayor bound to appoint a candidate whose name was certified on the first list on April 26, 1956? If so, he had no occasion or right to request a second certified list and his appointment of Sheetz from that list was invalid.

Appointments are governed by §143.20 R. C. It provides in part “The head of a department office or institution in which a position in the classified service is to be filled, shall notify the Commission of the fact, and the Commission shall . . . certify to the appointing officer the names and addresses of the three candidates standing highest on the eligible list . . . Appointments to all positions in the classified service, that are not filled by promotion, transfer or reduction . . . shall be made only from those persons whose names are certified to the appointing officer. The appointing officer shall notify the commission of such position to be filled and he shall fill such position by appointment of one of the three persons certified to him . . .”

The mayor, on April 26, 1956, received the certified list containing • the names of Quaranto, Taddei, and Magrini. He did not make an appointment and on August 27th he requested a further certification for appointment, attaching thereto four waivers including those of Quaranto and Taddei, the waivers being dated August 23. Thus for nearly four months, he failed to follow the mandatory language of the statute that he “shall fill such position by appointment of one of the three persons certified to him,” one of whom, Magrini, did not waive.

This situation was totally unlike his failure to appoint in 1954 where only two names were certified. On that occasion, he did not have the opportunity of choosing between three candidates; in April 26, 1956, and thereafter he had that opportunity. Both of the withdrawals were induced by him and he can thus not by his own action reduce the certified list to one name and then take the position that he has no choice between three candidates.

Having failed to follow the mandatory provision of the statute, the mayor had no right to request a second certified list or to appoint from it. To decide otherwise would not only be contrary to the spirit of the Civil Service laws but contrary to its letter and would give the mayor power by his own conduct to avoid his mandatory duty.

That it is the intent of the Civil Service law to require strict compliance with its mandatory provisions is made plain by the provisions of §143.46 R. C., that conviction of a wilful violation of any section of the law by the holder of public office renders such office vacant. I do not of course pass upon the question of whether the mayor’s failure to follow the mandatory provision of §143.20 R. C., was wilful, but cite the provisions of §143.46 R. C., as illustrative of the intent of the legislature to require strict compliance with the whole law.

It is not necessary to decide what would have been the situation if the withdrawals from the first list had not been induced by the mayor, or whether Magrini, who did not withdraw should have been appointed under the circumstances as they were. I simply hold that the mayor was bound to make an appointment from the list first certified to him and that he had neither the right to request nor to appoint from a second list. His appointment of Sheetz was therefore invalid.

As to relief, this being a taxpayer's action, under §733.59 R. C., upon failure of the Law Director to apply for an injunction to restrain the misapplication of public funds of the city under §733.56 E. C., I confine myself to an order of permanent injunction restraining the defendant Bernard as Finance Director of the city, from paying the salary of Sheetz. Costs will be adjudged against the defendants, other than the members of the Civil Service Commission.

Counsel will prepare to submit a form of journal entry in the usual way.


author: By MILLER, J.

text:
    MODERN FINANCE COMPANY, Plaintiff-Appellee, v. REYNOLDS, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5225.
    Decided November 25, 1958.
    Luther M. Long, Columbus, for plaintiff-appellee.
    Raymond W. Kilbourne, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Municipal Court of Columbus decreeing the foreclosure of a certain chattel mortgage issued by the defendant-appellant, Inez Reynolds, to the plaintiff-appellee, Modern Finance Company, as security for the payment of a promissory note issued by this defendant and one Oscar McCoy.

The cause is submitted to this court upon the separate findings of fact and conclusions of law found by the trial court which may be epitomized as follows:

(1) That on October 21, 1949, Modern Finance Company made a certain loan to one Oscar McCoy in the amount of $740.00; that the loan was acknowledged by a note of even date executed by the said McCoy and the defendant, Inez Reynolds, and at which time the said McCoy executed a certain chattel mortgage on his 1941 Buick automobile as security for his obligation under the note. Likewise, at the same time, the defendant, Inez Reynolds, executed a certain chattel mortgage to this plaintiff upon her household goods and furniture in order to secure her obligation under the aforesaid note. The foreclosure of her chattel mortgage is the subject of this litigation. •

(2) That on or about November 14, 1951, McCoy consented to the plaintiff repossessing the Buick automobile for the purpose of sale and applying the proceeds against the indebtedness on the note.

(3) That the plaintiff notified the aforesaid McCoy that said Buick automobile would be offered for sale on the 24th day of November, 1951, for not less than $374.53, but which sale was not held because plaintiff believed said automobile would not sell for as much as $374.53; subsequent thereto, after receiving three bids upon said automobile of $15.00, $20.00 and $25.00, said plaintiff sold said automobile on the 4th day of March, 1952, to the highest bidder for $25.00, and the proceeds therefrom were credited to the aforesaid note.

(4) That this defendant, Inez Reynolds, was not notified of the proposed sale of the McCoy automobile on the 24th day of November, 1951, nor of the resulting sale on the 4th day of March, 1952.

(5) That on the 9th day of July, 1952, in case No. 358091, Municipal Court, a cognovit judgment in the amount of $382.14 was taken by the plaintiff on the aforesaid note against the makers thereof, McCoy and Inez Reynolds. That, subsequent thereto, McCoy made payments to the plaintiff on this judgment with the knowledge thereof of the defendant, Inez Reynolds.

(6) - That this action is brought by the plaintiff against the defendant, Inez Reynolds, solely for the foreclosure of her chattel mortgage, the condition of which has been broken.

The court found in its conclusion of law that the chattel mortgage was valid in all respects; that the conditions therein had been broken, rendered absolute, and that the plaintiff was entitled to the balance due on the judgment and ordered the property described in the chattel mortgage sold and the proceeds applied.

The first assignment of error urges that the cognovit judgment, which is a deficiency judgment, is contrary to law for the reason that the plaintiff had failed to comply with the provisions of §1319.07 R. C., in that the plaintiff did not give the required ten-day notice to McCoy of the postponed date of sale of the Buick, and that the defendant herein never received any notice of the private sale of the Buick automobile. It is, therefore, contended that the deficiency cognovit judgment was invalid. It is to be noted that McCoy is not a party to this proceeding; hence, his right to notice under this section will be given no consideration. The only question presented here is whether or not this defendant was entitled to the ten-day notice under §1319.07 R. C., when the Buick was repossessed and sold by the plaintiff.

An examination of the statute under consideration reveals that it requires only that notice be given to the mortgagor whose property is being seized and sold before a deficiency judgment may be taken. This defendant was not the mortgagor of the Buick automobile; hence, notice was not required to be given to her. The pertinent part of §1319.07 R. C., provides:

“* * *_ This section does not apply if the mortgagee, * * *, gives at least ten days’ written notice to the mortgagor, his executors, * *

The action herein is only for the foreclosure of the mortgage given by this defendant which was given to secure payment of the note upon which a cognovit judgment was rendered in case No. 358091, Municipal Court, and no deficiency judgment is sought in this action.

We, therefore, conclude that the statutory notice was not required to be given to the defendant prior to the seizure and sale of the Buick automobile.

It should also be noted that the defendant herein is now making a collateral attack upon the prior deficiency judgment which may not be done as the prior judgment, at most, could only be said to be voidable and not void.

It is said in 31 O. Jur, (2d), 710, Section 253:

“In the absence of fraud, * * *, a judgment upon the merits, rendered by a court of competent jurisdiction, is a final determination or adjudication of the claims and rights of the parties; of the fact and amount of indebtedness and remedies of the parties; * * *, of questions which might have been litigated therein, but not of those matters which could not have been adjudicated therein. Such a judgment is conclusive and binding as between the parties and privies, though subject to vacation or modification, while the judgment remains in force — that is to say, unless an appeal has been taken, or until the judgment is reversed or set aside by a direct proceeding for that purpose in a court of competent jurisdiction.” (Emphasis ours.)

Therefore, if any attack is to be made upon the deficiency judgment, it must be by direct attack and not a collateral one.

The second assignment of error urges that there is error in the amount of judgment, contending that the plaintiff did not use due diligence to obtain a fair price of the Buick automobile. This requires a factual finding which was not made by the trial court and, having no Bill of Exceptions, we are not in a position to pass upon this alleged error. If the cognovit judgment was taken for more than the amount due, the attack should be made directly upon that judgment and not in this collateral proceeding.

We find no prejudicial error in the record and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.