text:
    MORRISON, Plaintiff-Appellee, v. MORRISON, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4522.
    Decided January 4, 1951.
    Henry A. Reinhard, Columbus, for plaintiff-appellee.
    Jack F. Young, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order dismissing the appeal on law and fact for the reason that the appellant has failed to file an appeal bond as required by §12223-6 GC. The motion will’ be sustained but this cause will be retained for determination on questions of law only, and the appellant will be granted permission to perfect the appeal in accordance with Supplement to Rule VII of this Court.

MILLE’R, PJ, HORNBECK and WISEMAN, JJ, concur.

ON LAW APPEAL FROM THE JUDGMENT OF THE COURT

No. 4522.

Decided June 6, 1951.

OPINION

By THE COURT.

This is- a law appeal from the judgment of the Court of Common Pleas, Division of Domestic Relations, awarding a decree of divorce to the plaintiff-appellee upon the ground of gross neglect of duty. The Court also awarded the appellee the custody of the child and support money in the amount of $60.00 per month. It also awarded her all the household goods and effects and permanent alimony in the amount of $1200.00 payable $40.00 per month, unless she remarried or died prior to the completeion of said installment payments.

The errors assigned are that the .Court erred in awarding a divorce to the appellee, and also that the alimony award is against the weight of the evidence.

We have carefully examined the entire record in this case and find that there is substantial evidence properly corroborated tending to establish gross neglect of duty on the part of the defendant-appellant; for example, such as his quarrelsome disposition and failure to provide for the appellee and their child. Where the issue is one of gross neglect of duty the trial court has a broad discretion which will not be disturbed by a reviewing court unless there has been an abuse of the same. 14 O. Jur. 394; Coleman v. Coleman, 68 Oh Ap 410.

Upon "the question of failing to provide counsel for the appellant has argued outside of the record, urging that those who temporarily cared for the wife and child were indebted to him, but we can only give consideration to that which is contained in the record.

We are of the further opinion that the Court properly exercised his discretion in granting the award of alimony, taking into consideration the appellant’s remaining property and the fact that he was earning approximately. $300.00 per month. Under §11990 GC the Court was required to make the appellee an alimony award upon the granting of the divorce for the aggression of the husband.

Under all of the facts presented we think that the alimony awarded the wife was not unreasonable.

Finding no error in the record the judgment will be affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    BOARD OF EDUCATION OF TERRACE PARK, Plaintiff-Appellant, v. GUCKENBERGER, Aud. et, Defendant-Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 7454.
    Decided May 8, 1951.

      Robert G. McIntosh, Cincinnati, for appellant.
    Robert L. Black, Jr., Cincinnati, for appellees.
   OPINION

By THE COURT:

In this appeal, on questions of law and fact, the facts are stipulated.

A portion of the Village of Indian Hill lies within the boundaries of a local school district, known as the Terrace Park School District, which school district includes all of the Village of Terrace Park as well as other territory not included within the boundary of any other municipality. The residents of such portion of Indian Hill, pursuant to the provisions of §4831-15 GC, initiated an election, resulting in a vote in favor of detaching such area within the Village of Indian Hill from the Terrace Park local School District, and including the same within the School District of Indian Hill.

“The Board of Education of Terrace Park” filed a petition in which it is stated that the plaintiff “is the duly elected, organized, and acting Board of Education of the Village of Terrace Park, Ohio (emphasis added); that said Board of Education is a local board of education under the law.”

In the petition, after alleging the facts herein previously stated, it is alleged that the transfer of the area covered,by the election is about to be transferred according to §4831-15 GC, and the petition prays for an injunction against such transfer, it being alleged that there is no authority in law for such election and transfer.

Reference to §4831-15 GC, shows that a remedy other than that provided for in §4831-14 GC, is accorded to school districts described in §4831-15 GC. That such districts might have other alternative remedies is beside the point. Obviously, §4831-14 GC, does not afford such remedy to the districts herein involved, for they are not described therein. The language of §4831-15 GC, is peculiarly significant: — “In addition to — and supplementary to the provisions of §4831-14 GC.” The instant situation is one certainly in addition to the remedy provided for in §4831-14 GC. It is manifest that the legislature contemplated an alternate and additional procedure where school districts containing two municipalities were involved. Obviously, the municipalities as such could not overlap each other, hence, it is clear that the legislature had in mind the very situation here involved, that is, where a local school district including a municipality also included the area of another municipality. Although the transfer of territory could be accomplished by use of the provisions of other sections of the code, the legislature deemed it wise (and with its wisdom courts have no concern) to provide an alternative remedy. It must be admitted that the legislature could have employed a better designation of the school districts involved, but it seems clear that the situation here involved falls within the contemplation of the legislative intent, and it is the duty of this court to give effect to such intent, if it is possible so to do, without deleting employed terms, or inserting 1¿hat which has not been written. Wachendorf v. Shaver, 149 Oh St, 231.

Reference to the definitions of “Local School District” §4830-1 GC, and §4830-2 GC, “Exempted Village School District” §4830-7 GC, indicates that these school districts fall within the meaning of the terms used in §4831-15 GC, “which is a part of a school district of another municipality.”

It will be noted in reading §4830-1 GC, that a school district, including a City, is defined as a City School District, and becomes % local school district when the City becomes a Village. So that a school district of another municipality could be either one including a city or a village.

As previously noted, it is perfectly obvious' that a restricted meaning of such terms would render the section futile for any purpose because it is manifest that a school district of a municipality, if limited to its territorial boundaries, could not extend into another municipality.

Although the language employed in §4831-15 GC, might not be extended to school districts not including municipalities within their territorial limits (which we do not hold) and so result in advantage of alternate remedy to one area not accorded another, such so-called discrimination by the legislature is not ground for denying a specific right definitely accorded by legislative enactment to areas selected by that body. It should be noted also that there is no discrimination in any class of districts, but rather between classes of districts.

In closing, it is interesting to note the designation of the plaintiff contained in the petition and previously quoted, and that while it is stated in- the petition that it is a locál board of education, that still the plaintiff is “The Board of Education of the Village of Terrace Park,” not the Board of Education of the' School District of Terrace Park.

A decree similar to that of the trial court may be presented in this Court, and the temporary restraining order of this Court dissolved.

HILDEBRANT, MATTHEWS & ROSS, JJ, concur.


author: By BADER, J.

text:
    REBISSO, Inc. v. FRICK et.
    Common Pleas Court, Hamilton County.
    No. A-126583.
    Decided October 1, 1951.

      Walter K. Sibbald, Cincinnati, for plaintiff.
    Leonard H. Freiberg, Cincinnati, for defendant Marcella M. Frick.
    Paxton & Seasongood, Cincinnati, for defendant Emil G. Stoll.
    C. Watson Hover, Pros. Atty., Francis X. Schwegmann, Asst. Pros. Atty., Cincinnati, for Auditor & Treasurer, Hamilton County.
   OPINION

By BADER, J.

The plaintiff, Rebisso, Inc., brings this action to foreclose a mechanic’s lien recorded in Mechanics Lien Book 63, page 92 in the Office of the County Recorder on the real estate of the defendant, Marcella M. Frick, which real estate is described in plaintiff’s petition. Defendant Marcella M. Frick, in her answer to plaintiff’s petition, admits many of thé allegations and as a defense says that the petition does not state facts which constitute a cause of action against her and denies all the other allegations of the petition not in the answer admitted to be true.

The plaintiff was the plumbing contractor and purchased a septic tank from one 6. C. Adams to be used on the Frick premises. The evidence is clear that the tank came in three sections and the cover for the tank, and the same was lowered into a hole which was dug by the Tri-State Sanitation Company for the plaintiff. The sections were “set” and cemented together with cement mixed on the premises by men employed by O. C. Adams and placed in position.

Phillip Kessler, who did business as the Atlas Construction Company, was the general contractor. Prior to the completion of the plumbing work as contracted for between Phillip Kessler and the plaintiff, the former abandoned the construction of the dwelling and left for parts unknown. The plaintiff received half of the contract price before Kessler left the city.

Plaintiff asks, among other things, for the foreclosure of the mechanic’s lien and that the property be sold and the proceeds applied to the payment of the various liens in the order of their priority.

Sec. 8312 GC provides in part as follows:

Page 609.

“Statement of original contractor to owner before payment; affidavit. The original contractor shall, whenever any payment of money shall become due from the owner, part owner, or lessee, or whenever he desires to draw any money from the owner, part owner, or lessee, under such contract, or upon the written demand of any mortgagee, make out and give to the owner, part owner, lessee or mortgagee, or his agent, a statement under oath, showing the name of every laborer in his employ who has not been paid in full and also showing the name of every subcontractor in his employ, and of every person furnishing machinery, material or fuel, and giving the amount, if any, which is due or to become due to them, or any of them, for work done, or machinery, material or fuel furnished to him, which statement shall be accompanied by a certificate signed by every person furnishing machinery, material or fuel to him, * *

Page 611.

“Statement of dues to subcontractors, laborers and material men. And the original contractor shall also deliver to such owner, part owner, lessee, or mortgagee, similar sworn statements from each subcontractor, accompanied by like certificates from every person furnishing machinery, material or fuel to such subcontractor. * * *

“No right of action or lien against owner until statements furnished. Until the statements provided for in this section are made and furnished in the manner and form as herein provided, the contractor shall have no right of action or lien against the owner, part owner, »or lessee, on account of such contract, and the subcontractor shall have no right of action or lien against the owner, part owner, lessee or contractor, until he shall have furnished such statements, * • 8.”

O. C. Adams is listed in the subcontractor’s affidavits as a material man* Defendant Marcella M. Prick contends that he is not a material man but a subcontractor, and as such would have been required to give certain affidavits as is set forth in §8312 GC quoted above and that by reason thereof the mechanic’s lien is void and of no effect and the petition of plaintiff should be dismissed.

The question before the Court is whether or not O. C. Adams is a material man or a subcontractor, and if he is a subcontractor, has the plaintiff complied with the mechanic’s lien law in order to give it a good and subsisting lien on the real estate of the defendant, Marcella M. Prick.

There seems to be a very fine distinction between a material man and a subcontractor. The duties of a material man and subcontractor differ. Material men give certificates whereas subcontractors are required to give affidavits similar to that of the original contractor.

In §8323-9 GC the word “material man” is defined as: “* * * all persons by whom any machinery, materials or fuel are furnished in, or for any construction, erection, alteration, repair, or removal * * * upon which the improvements contemplated by this act are made.”

The word “subcontractor” is defined by the statute as: “* * * any person, firm, or corporation who undertakes to construct, alter, erect, improve, repair, remove, dig, or drill any part of the structures or improvements mentioned herein under a contract with any person other than the owner.”

It appears from reading the legal definition of a “material man” that if one merely furnishes material for the purposes mentioned in the General Code and furnishes no labor on the premises where the construction is being or is about to be carried on then he is a “material man.” On the other hand it appears from reading the legal definition of a “subcontractor” that one who furnishes material and does any work or labor on the premises, either with his own hands or by his employees, is a “subcontractor.”

In 26 O. Jur. page 805 the following is found: “The criterion seems to be, .did the material furnisher install or erect the materials furnished on the job?”

And on page 806: “Where a person furnishes not only material, but also some labor in the use of the material in the building being erected, or its installation therein, be is no longer a material man, but thereby becomes a contractor or subcontractor. But if, on the other hand, such person only constructs or assembles 'the material in his own factory, or furnishes the raw material without any fabrication, and- takes no part in its installation in the building or structure, but simply sells and delivers the material, either in its raw or its fabricated state, to a contractor or subcontractor, who in turn furnishes the labor to install it in the building or structure, in that event such person is not a contractor or subcontractor, but is a material man only.”

In DeWitt on Ohio Mechanics Liens, Section 21 at page 64 may be found the following: “It is not the labor used in the manufacture of fabricated material which converts one, who would otherwise be a material man, into a subcontractor; but it is the labor used in the installation of such materials in the building being erected that fixes his status as a subcontractor.”

In the case at bar O. C. Adams, who was listed in plaintiff’s affidavit, testified that he installed the septic tank on the premises but brought it to the building site in four sections for his convenience and that he used two laborers on the premises in doing so.

Counsel for the plaintiff sets forth in his memorandum that O. C. Adams is not a subcontractor because plaintiff ordered a seven hundred gallon septic tank, the same to be delivered by Adams to the job from his plant near Hamilton, Ohio. He also claims that "because of the great weight of an assembled tank, Mr. Adams, for his own convenience, delivered the four parts to the Frick site, and there assembled the tank by fitting the three sections together and cementing the joints so as to make the tank water tight.”

There can be no question that before a valid mechanic’s lien can be established there must be a strict compliance with the definite procedural requirements imposed by the statute. See Mahoning Park Co. v. Warren Home Development Co., 109 Oh St 358, Syl. 1, 142 N. E. 883; Marcum v. Home Loan & Building Ass’n, 45 Oh Ap 237, Syl. 1, 186 N. E. 920; In re Kinnane Co., Bankrupt, 14 Ohio Law Rep. 531, Syl. 2; Frisch v. Ammon, 34 Oh Ap 447, Syl. 1, 171 N. E. 247.

In the case of C. C. Constance & Sons v. Lay, 122 Oh St 468, at page 469, 172 N. E. 283, the Court said: “Our mechanic’s lien law contains the provision that the same shall be liberally construed in so far as it is remedial, but this does not justify the relinquishment of a mandatory requirement of the law respecting the perfection of a lien. This statute confers an extraordinary right in derogation of the common law, and, though liberality with reference to errors in procedure is permissible, the steps prescribed by statute to perfect such lien must be followed, and in that respect the law is strictly construed and applied.”

There can be no question that if the assembled product is delivered and no work is done on the premises where it is to be used by. the person furnishing it, the furnisher would be classified (as a material man by reason of the definition set forth in the statutes.

In the case of Matzinger v. Harvard Lumber Co., 115 Oh St 555, 155 N. E. 131, the Court held: “2. Whether materials furnished by a dealer to a contractor to be used in the process of the erection of a building were selected from the stock of the dealer or made by him in his own establishment or procured from another for the particular purpose, such dealer, having nothing to do relative to the installation of said materials or the fabrication thereof into the structure, is a material man and not a subcontractor.”

Plaintiff suggests in its memorandum that if Adams is a subcontractor and he assembled the tank on the site all of his employees at his plant in Hamilton would be entitled to perfect a lien on the premises.

The Court, in the Matzinger case, 115 Oh St on page 559, 155 N. E. on page 132, referring to the contention of plaintiff’s counsel that the employees in a factory from which completed equipment was furnished and delivered to site without any labor being performed at the site would have a right of lien, said: “The construction of these statutes, contended for by counsel for plaintiff in error, would lead to rather absurd consequences, for, if a dealer constructs oral fcers' any door or sash, or even reduces lumber in his stock to the size specially required to meet the specifications of a particular building, he would thereby become a subcontractor, and the employees in his own establishment would be entitled to perfect liens for labor upon the building for which such materials were furnished. The words ‘construct’ and ‘erect’ have reference to the actual combination of materials on the building site to constitute the structure, and not to the manufacture of such materials, which later may be somewhere combined with others to make a building.”

The Court is of the opinion that the employees of a factory where a part of a building is fabricated have no right of lien on the premises to which it has been delivered and used unless the same employees did some work or performed some labor on the premises.

The Court is also of the opinion that if a septic tank is delivered to the premises in sections where it is to be used, whether delivery in sections is for the convenience of the builder of the tank or not, and work is performed on the premises by the manufacturer himself or by his employees, in the erection of same he is a subcontractor and not a material man.

Accordingly the Court finds that O. C. Adams was a subcontractor and that when the plaintiff listed him as a material man in the affidavit he did not eonfply with the mechanic’s lien law of the State of Ohio, and the purported mechanic’s lien on the premises of Marcella M. Frick is not a good, valid and subsisting lien, and the petition of the plaintiff should be dismissed.

All other matters and issues in .this case, including the claims of the other defendants, should be continued for further consideration of the Court.


text:
    SMILEY, Plaintiff-Appellee, v. DEPARTMENT OF LIQUOR CONTROL, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4458.
    Decided May 29, 1951.
    John T. Feighan, Jr., Fred W. Garmone, Anthony J. Trivison, Cleveland, for appellee.
    C. William O’Neill, Atty. Geni., Thomás R. Lloyd, Asst. Atty. Geni., Columbus, for appellant.
   OPINION

By THE COURT.

This is an appeal upoñ questions of law from the judgment of the Common Pleas Court of Franklin County reversing an order of the Board of Liquor Control which sustained the Director of the Department of Liquor Control in rejecting an application for renewal' of a Class D-5 permit by Emmett Smiley, appellee. An appeal was taken by the Director of Liquor Control.

.The evidence is undisputed that Ollie Smiley, the father of the permit-holder, was convicted of a felony, to wit, bribery. There is ample evidence to support the claim that the father acted as manager of the business in the absence of the son who, due to an affliction, was unable to take personal charge of the business during long periods of time. There is strong evidence to support the claim of the Department that the father had a financial interest in the business. The permit-holder made false statements in the application for renewal relative to the father’s conviction and his father’s interest in the business. The Department was warranted in rejecting the application for renewal. See §§6064-17 and 6064-25 GC.

In a hearing on application for renewal of a permit the record of the applicant is subject to review by the Department and in the instant case it was proper to introduce evidence of violations occurring prior to a previous citation of the applicant before the Board of Liquor Control. A review of the record of the applicant is essential in order that the Department may properly exercise its discretion in the matter.

The judgment of the Common Pleas Court is reversed and the order of the Board of Liquor Control in sustaining the Department of Liquor Control in rejecting thé application should be and is hereby affirmed.

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


author: By WATTERS, J.

text:
    RALEIGH et, Plaintiff, v. YANKO et, Defendants.
    Common Pleas Court, Summit County.
    No. 184176.
    Decided May 15, 1952.

      Robert E. Shuff, Akron, for plaintiff.
    Paul Taylor, Akron, for defendants.
   OPINION

By WATTERS, J.

This matter was tried to the court on stipulated facts read into the record and upon other oral testimony or evidence, exhibits, etc. 'Plaintiff’s Exhibit “A” attached to the petition was admitted in evidence as a true copy of the agreement signed by the parties.

FINDINGS OF FACT AND LAW.

The plaintiff union represents the waiters, bar tenders and similar employees, and the defendants, Nick Yanko and his wife, are partners, doing business as the Bubble Bar at 846 West Market Street, Akron, Ohio, where they conduct a restaurant and bar business, and have for many years.

On March 29, 1951, the interior of the building occupied by defendants on lease was gutted by a fire which necessitated vast repairs and reconditioning in the amount of some Fifty Thousand Dollars over the fire insurance paid of more than the same amount.

The place, after repairs, opened formally on November 10, 1951, business being suspended in the meantime during repairs.

On October 22, 1951, Mrs. Raleigh, an officer in plaintiff union, approached Mr. Yanko about unionizing the business. He gave no answer, and she returned for his'answer the next day, October 23, 1951. He still did not commit himself. So on the next day, 'October 24, 1951, the union placed a picket at the premises. In the meantime the A. F. of L. was notified that trouble was expected at the Bubble Bar. Upon the posting of the picket, the other A. F. of L. workers, to-wit, plumbers, carpenters, etc. engaged in getting the premises ready for business, walked off their jobs, refusing to cross the picket line of the plaintiff union, a customary and natural reaction.

On October 24, 1951, Mr. Yanko, defendant, and the plaintiff, C. E. Raleigh, representing the union, met in Attorney Paul Taylor’s office, who represented the defendants. There Plaintiff’s Exhibit “A” was signed up, the so called “Recognition Agreement.”

The defendant, Nick Yanko, signed the agreement for defendants. He claims he signed it involuntarily in order to get the workers back and the work done in his place, so he could open on time. He did not see fit to refuse to sign and test the matter out on the theory that he had no workers or employees in the restaurant business then; as it was not open and in operation as a going business.

However the court finds no coercion or duress or undue, influence in the legal sense. As a practical matter Yanko knew that as long as the picketing by the plaintiff union continued, the other A. F. of L. trade workers, carpenters, plumbers and the like, would not stay on the job. He wanted to keep going and to get his business opened. So, knowing presumably what he was doing, he voluntarily signed the agreement.

However the picketing probably was premature, as defendants were not actually in operation, and had no definite contracts of employment with waiters, etc., although the evidence shows that defendants had many employees lined up, so to speak, to commence work.

Many of these workers had been approached by Yanko, or had approached him. Many were employees of the defendants’ before the fire and wanted to come back. Some were members of plaintiff union, in good standing, others were still on the union roster but had not kept up their dues and were subject to suspension if the union saw fit.' Many were subject to good standing by paying a fine or other arrangement satisfactory to the union.

At the time of the signing of Exhibit “A” a tentative understanding was reached that all fines would be , waived and each employee or prospective employee would be approved upon the payment of five dollars.

This court feels certain that had Yanko sought equitable relief at that time, instead of signing the agreement, that a court would in equity have had full legal right to discontinue the picketing until the defendants’ business was in full operation, to-wit -until November 10, 1951, the day it opened. In this court’s opinion, at that time, November 10, 1951, assuming conditions had not changed, there would have been and was a labor dispute between the union and the defendants, even though there was present no dispute between the employers and' their employees. And accordingly the union, under the doctrine of freedom of speech, adopted by our United States. Supreme Court in A. F. of L. v. Swing, 312 U. S. 321, and Meadowmoor Dairies Inc. 312 U. S. 287, and other cases, would have had the legal right to peacefully picket to acquaint the community and those concerned, with said dispute.

The same is true now concerning the present picketing now in progress.

For a further discussion of this law the court will refer to the Iacomini Restaurant case decided by this branch of this court and appearing in Ohio Law Reporter March 14, 1949, and 38 Ohio Opinions, and 85 N. E. Rep. (2nd) 534, 54 Abs 33.

This court was sustained therein by our Ninth District Court of Appeals in its unreported case No. 3964 decided in 1949.

Discussion of Plaintiff’s Exhibit “A” designated Union House or Bar Card Contract which the parties hereto signed on October 24, 1951, under the circumstances discussed above.

Under the designation above mentioned appears this language: “This agreement contains the conditions under which the Union House or Bar Cards of the Hotel and Restaurant Employees and Bartenders International Union can be displayed or utilized for any purpose.”

Then follows the name of the plaintiff local union — “Local Union No. 118, Car$ No. 120055 is hereby issued to The Bubble Bar, Akron, Ohio, on this 24th day of October, 1951, upon the following terms and conditions:”

“FIRST — That the party or parties to whom this card is issued will employ from this date on only members in good standing of the Hotel and Restaurant Employees and Bartenders International Union; when such employees are eligible to membership in said International; and that all employees shall always be and remain in- good standing with said International and shall be hired through the office of Local Union No. 118 or the Local Unions affiliated with the Local Joint Executive Board of Akron, Ohio.”

“SECOND — That the party or parties to whom said card is issued shall sell Union Labeled Goods whenever possible.”

“THIRD — That the party or parties to whom said card is issued shall display the Union House or Bar Card in a conspicuous place and that the card will be used only in The Bubble Bar " *

“FOURTH — That the said Union .House or Bar Card is now and always remains the property of the Hotel and Restaurant Employees and Bartenders International Union, and that the said * * * Card will be returned * * * on demand of Local Union * *

Note there are other provisions in said Exhibit “A” not particularly pertinent having to do further with regulations concerning the shop card. '

There is no evidence before the court that the card was actually issued and turned over to the defendants, although the contract speaks of its issue and designates its number, etc.

It will be noted that there is no definite time fixed as to defendants’ obligation to employ only members in good standing of the union, except from this time on. (See paragraph marked “First” above.)

The question is immediately raised, do the defendants in Exhibit “A” herein agree to recognize the union for the purposes of collective bargaining, and for a union shop, and the like, or is this only the shop card contract which is issued to an .employer who has a union shop agreement and has worked out all the details thereof, and the card is evidence to the world that the union has put the union stamp of approval on him and his business?

The card when issued would no doubt carry the provision that the union had sole property rights therein and could remove it at will, as the contract states, or at least where any dispute whatsoever arose.

That this is true see Foutts v. Barbers Union, 155 Oh St. 573 (CP 55 Abs 537), which arose in this court, wherein this branch of the court and the Court of Appeals held that the union card could not be removed, but the Supreme Court held it could be where a dispute arose between the employer and the union, although the employer had all union barbers and no dispute with them'at all.

It will be noted in the contract, Exhibit “A” here that the union does not agree to do anything, except it indicates that the union has issued the Union Card, and as stated above, the union is given the absolute right on demand, for no reason at all, to remove the union card and cancel the contract.

The evidence shows by stipulation and otherwise, that at the time of signing Exhibit “A” there was discussion by the parties that after the business opened and the employees were at work, the union and the defendants would get together and discuss such matters as wages, hours and the like, with a view to agreeing upon a working agreement. This proposed working agreement in writing was gone over by those present at Attorney Taylor’s office on October 24, 1951, but nothing was arrived at. Since then nothing has been done and the instant case was filed March 15, 1952.

Counsel for the Union claims that under the so called recognition contract, Exhibit “A,” the defendants can be compelled to hire only union labor, that the court shall enjoin defendants from employing or keeping in their employ any non union employees, and that in effect defendants will have to conduct and operate a union shop, and if the employees will not join up, they should be fired and replaced with union employees.

The defendants deny further that the contract is a union recognition contract, and say that whatever it is, it is unenforcible, as the plaintiff union does not agree to do anything, and because plaintiff union can demand and get the “Union House Card” at will, and thus cancel the whole agreement, and that the same is void for want of lack of mutuality. It is also contended that the agreement is unenforcible due to indefiniteness as to duration and termination, and calls for union employment, but is indefinite and uncertain as to hours, wages and the like.

Prom the case of Polaner, etc. Plaintiff, v. Gold Medal Grill, decided by Judge Reynolds of Franklin County, Common Pleas Court, July 2,1951 (unreported), which decision plaintiff’s counsel cites in full, I quote in part: (underscoring by this court)

“In this action plaintiff is seeking a mandatory injunction to compel the performance of the terms of a contract entered into between the Hotel, Restaurant and Bartenders Union Local 505 A. F. of L. and Frank Kutak, owner of Gold Medal Grill.

“On September 5, 1950, the contract was entered into by the terms of which Kutak agreed among other things, that for one year beginning on September 4, 1951, it would hire and retain in its employ only members in good standing in the local union, and that in the event non-union members were employed that they would become members within fifteen days from the time of employment.

“There is no question but that the contract was a valid and binding agreement enforcible against either of the parties thereto.”

The court granted the injunction against the defendant assignee of the original owner compelling performance of the contract to employ union workers.

The court has searched the authorities, as has counsel, for cases where the court has granted specific performance of an employer’s contract to employ only union labor, but excepting Judge Reynolds’ decision discussed just above, we have found none.

Many cases can be found sustaining the validity of such contracts, but apparently the unions have adopted the policy of striking to enforce the contract rather than asking specific performance, and it may be that that is the proper and only remedy. Then if the court determines the contract valid, the strike and the right to lawfully picket is sustained.

As an example see Thorn v. Foy, et al, Sup. Ct. Mass. (Jan 31, 1952) 103 N. E. Rep. 2nd 416, Syllabus (5) and discussion on page 417 (subdivision 5). (Feb. 27, 1952 Advance Sheets.)

It. will also be noted in the decision in the Ohio case above, the following:

“At the time the contract was entered into, the Gold Medal Grill was opened by Frank Kutak, who in May of this year sold the business to Gold Medal Grill Inc., a corporation, which corporation proceeded to discharge the union employees and hire non-union ones.” (Emphasis by this court.)

It is obvious to this court, in the instant case, that the contract • involved there, considered by Judge Reynolds, was a contract of definite and certain terms as to duration, wages, hours and the like, mutually binding on all parties. In fact the contract was in operation, the employees were union members, and the new (assignee) owner sought to discharge the union employees and hire non union employees. And it may be too, if all the facts were known, that the corporation that became the assignee was created to avoid the contract obligation.

Exhibit “A,” the contract in our instant case provides as follows:

“This agreement contains the conditions under which the Union House or Bar Cards of the Hotel and Restaurant Employees and Bartenders International Union can be displayed or utilized for any purpose.”

In other words the parties are agreeing upon and acknowledging the terms and conditions under which the card is issued and under which it can be displayed or used. Naturally if an employer did not employ union labor and conduct a union establishment, he could not have any right to che Union Shop Card or the right to display it, as that would be a false representation to the public.

The so called “recognition contract” is in law and in fact a license to the employer to have issued to him a union shop card, which license is revocable at the will of the union, internationally or locally.

The union does not bind itself to do anything except that it acknowledges the issuance of the union card. There is a total lack of mutuality. If binding upon the employer, it is not binding at all upon the union. It is like a lease which would attempt to bind the landlord but allow the tenant to terminate the lease at will.

The remedy of the union here at the most would be the revocation of the issuance of the union card and cancellation of the same, and defendants would have no right to display it, and the Union would be and is entitled to possession thereof on demand.

See Foutts v. Barbers Union, 155 Oh St 573 cited above.

The contract fails for want of definiteness as to terms of duration and otherwise.

Suppose the court had the power here to order the defendants to negotiate a union contract as to wages, hours and other employment conditions. The question would immediately arise as to what the conditions to be ordered would be, and for how long a period of time, and like questions.

As to the question of the necessity of mutuality of remedy as a condition precedent to specific performance see:

9 O. Jur., Sec. 79, page 309; 37 O. Jur., Sec. 35, page 48; 37 O. Jur., Sec. 50, pages 50 and 52 (par. 39).

As to the question of certainty as to time -and other conditions as a condition precedent to specific performance see:

9 O. Jur., Sec. 110, page 329; 37 O. Jur., Sec. 22, page 30.

It is not within the authority of this court to order the defendants to sit down with the union and attempt to negotiate even though I believe that if they did, their differences might be settled.

The union on the other hand, in order to accomplish that which the court cannot order under the agreement in question, as a further remedy, can, as' stated above, under their constitutional rights of freedom of speech, peacefully picket the defendants’ business, providing they proceed lawfully. Counsel on both sides know what I mean in this connection from the court’s ruling on the law in the Iacomini case cited above and from the Appellate Court’s decision affirming same.

See also Anderson Sons Co. v. Union, 156 Oh St 541, (1) Syllabus and first paragraph at top of page 561. (Feb. 18, 1952 Ohio Bar.)

The defendants, through Mr. Yanko, have indicated their feeling not to oppose their employees joining the union if they wish to do sp.

The. court has suggested to counsel and the parties that they should continue their friendly relationship and discussion with a view of working out their problem if possible.

The court will refuse plaintiff’s prayer for injunction, which seeks an order enjoining defendants from employing any non-union help at the restaurant.

A decree will be prepared in accordance with the court’s opinion, with exceptions to all parties.


text:
    HARLEM BILLIARD AND MEETING CLUB, Plaintiff-Appellant, v. BOARD OF LIQUOR CONTROL, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4448.
    Decided July 6, 1950.
    Richard A. Morris, Cincinnati, Walter L. Tarr, Cincinnati, for plaintiff-appellant.
    Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for defendants-appellees.
   OPINION

By THE COURT.

Submitted upon motion by the appellee seeking an order dismissing the appeal on questions of law for the following reasons:

(1) Appellant has failed to file a bill of exceptions within the time allowed by statute.

(2) Appellant has failed to properly prosecute the appeal in that it failed to file assignment of errors and brief in accordance with Rule VII of this court.

The record discloses that notice of appeal was filed on April 14, 1950; that up to the time of filing of this motion, to wit, on June. 14, 1950, neither bill of exceptions, assignment of errors nor brief had been filed. A period of approximately sixty-six days has elapsed since the filing of the notice of appeal. The time lor the filing of a bill of exceptions under §11564 GC has expired and it is now too late for its filing, as the time fixed for the filing of a bill of exceptions by the General Code is mandatory. Department of Liquor Control v. Alessandro, 56 Abs 554. However, the filing of a bill of exceptions is not essential to the perfecting of an appeal. Any error disclosed by the pleadings or transcript of docket and journal entries may be considered by the reviewing court. Hoffman Candy Co. v. Department of Liquor Control, 56 Abs 257. The. failure to comply with Rule AÜII of this court is sufficient ground for the sustaining of the motion. Doe v. Roe, 54 Oh Ap 145; Parrott v. Parrott, 42 Abs 413; Rosenthal v. Smith, 35 Abs 629.

The motion will be sustained.

MILLER, PJ, and WISEMAN, J, concur.

HORNBECK, J, not participating.


author: By McClelland, pj.

text:
    SHEELER, Admrx., Plaintiff v. BURKHART et, Defendants.
    Probate Court, Franklin County.
    No. 141871.
    Decided July 24, 1951.

      Frank H. Ward, Columbus, for administratrix.
    B. F. Levinson, Columbus, for certain heirs.
    Charles A. Eberly, Columbus, for certain heirs.
   OPINION

By McClelland, pj.

This is an action filed by the administratrix of the Estate of Harry E. Towns, deceased, to determine his heirs, said decedent having died intestate.

At the hearing the names of all possible heirs and their relationships were disclosed, but counsel for the administratrix is in doubt as to how the statutes of descent and distribution will operate in this case.

The heirs come under paragraph 8 of §10503-4 GC, all being lineal descendants of grandparents.

The nearest surviving relatives of the decedent on the paternal grandparents’ side are two first cousins. There were also four other first cousins who are deceased, but they left issue surviving the decedent. Under said section of the General Code, therefore, the one-half of the estate which descends to the lineal descendants of the paternal grandparents is to be divided into six parts, one-sixth part going to each of the two surviving first cousins, and one-sixth part going to the issue of each of the four deceased first cousins, per stirpes, each of the four deceased first cousins being the root from which their living issue take. Snodgrass v. Bedell, 134 Oh St 311.

The brief of counsel for the administratrix sets forth the names of the lineal descendants of the paternal grandparents and the proportions in which they take, so there is no need for us to set them forth.

The one-half of the estate which descends to the lineal descendants of the maternal grandparents, however, presents a more complicated situation due to the fact that the maternal grandmother was married twice, and of both unions there are issue living. The nearest surviving relatives of the decedent on the maternal grandparents’ side are first cousins. The maternal grandmother’s maiden name was Eleanor Shepherd and her first marriage was to. Henry C. Walton. The lineal descendants of this union who survive the decedent are two first cousins and one child of a deceased first cousin. The second marriage of the maternal grandmother was to James Hadaway, and of this union there are surviving seven first cousins of the half blood and two children of a deceased first cousin of the half blood. The decedent was a lineal descendant (grand-child) of the first union, i. e. Eleanor Shepherd and Henry C. Walton.

It is the position of counsel for the administratrix that the one-half of the estate which descends to the lineal descendants of the maternal grandparents is to be divided into eleven parts, and that no distinction is to be made between the first cousins of the wholq blood and the first cousins of the half blood. With this position of counsel we agree.

We must confess that this situation existing among the lineal descendants of the maternal grandparents gave us no little concern. While the case of Shepard, Ádmr., v. Wilson 61 Oh Ap 191, which was approved and followed in In Re Estate of Stevenson, 48 Abs 624 (P. C.) holds that the first cousins of the half blood share the same as first cousins of the whole blood, we at first, were not satisfied with the holding in that case. We had considerable difficulty 'in coming around to the position taken by the Court in that case that no significance should be attached to the use of the plural form of grandparent, where paragraph eight provides for descent to the lineal descendants “of such deceased grandparents.'’ The court quoted §10213 GC as applicable to the word “grandparents” as used in the paragraph. It was our feeling, at first, that only the joint lineal descendants of the decedent’s grandparents was intended by the statute. If this situation arose under the wording of paragraph eight of the 1932 Probate Code, there would be no question but what the first cousins of the half blood would take as the statute then read “to the lineal descendants, if any, of such grandparent or grandparents.” It is our feeling likewise, that no particular significance should be attached to the use of the words “of such grandparent or grandparents” as used in said paragraph of the 1932 Probate Code. That section of the code was not very carefully drawn. *What motivated the Legislature in 1935 in amending paragraphs seven and eight of §10503-4 GC, was the decision of the Court of Appeals of Cuyahoga County, in the case of Oakley v. Davey, 49 Oh Ap 113, decided November 5, 1934, wherein it was held that nothing in those two paragraphs indicated an intention that an estate was to be divided equally between the paternal and maternal branches. The Legislature, upon the recommendation of the Probate Code Committee of the Ohio State Bar Association, amended the section so that the two paragraphs provide for an equal division between the paternal and maternal branches. That was the purpose of the amendment and since the estate was to be divided in halves the wording of the amendment of necessity had to refer to the lineal descendants of each set of grandparents and not the lineal descendants of just one grandparent.

The civil law of descent is followed in Ohio and under that law kindred of the half blood are recognized. A good statement' of the civil law may be found in Vol. 14 O. Jur., page 192, which cites Lyon v. Lyon 1 C. C. (NS) 246. See also Stone v. Doster, 7 C. C. (NS) 8, and Oldiges v. Osborn, 11 O. O. 506 (P. C.).

Also an extensive discussion of the civil law may be found in 26 Corpus Juris Secundum, and from page 1044 we quote the following:

“it is a rule that remote collaterals’ of the half blood are entitled to share with those of the whole blood in real, as well as personal property, or even to take in preference to kindred of the whole blood of a more remote degree,”.

The brief of counsel for the administratrix sets forth also the names of the lineal descendants of the maternal grandparents and the proportions in which they take, so there is no need for us to set them forth. One of them Irwin Walton, had been missing for several years when the petition was filed but turned up later to claim his share, so we no longer have that question to deal with.

It is to be observed that here again, we have a case where the descendants of the intestate are on an equal degree of consanguinity to the intestate, being first cousins on both the paternal and maternal grandparents’ sides. We were- confronted with the question whether §10503-7 GC would apply to a situation of this kind in the case of Reimber v. Finnegan, 32 O. O. 391. We held in that case that §10503-7 GC would have to yield to §10503-4 (8) GC, and that the estate was to be divided into halves in accordance with paragraph 8 of §10503-4 GC. In that case we cited Snodgrass v. Bedell 134 Oh St 311, as authority for the manner in which each one-half of the estate was to be distributed among the lineal descendants of each set of grandparents.

Counsel for the administratrix also argues that the half and half statute (§10503-5 GC) does not apply in this case. The decedent died possessed of a one-half interest in a parcel of real estate which he inherited from his wife. It is clear that this one-half interest descends directly under the half and half statute, as follows: one-half to the heirs of the decedent, and the other one-half to his deceased wife’s brothers and sisters or their lineal descendants.


author: By NICHOLS, J.

text:
    STATE, Appellant, v. TANCER, d. b. a. FRANK’S TAVERN, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4622.
    Decided November 14, 1951.

      C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Richard L. Canter, Asst. Attys, Geni., Columbus, for appellant.
    Edwin M. Tuttle, Columbus, for appellee.
    (NICHOLS, J, of the Séventh District, sitting by designation.)
   OPINION

By NICHOLS, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court reversing a decision of the Board of Liquor Control'and directing that Board to issue a D-5 permit to Frank V. Tancer, dba Frank’s Tavern, Salem, Ohio,

For a proper determination of this appeal it is necessary first to consider the function of the Common Pleas Court on appeal thereto from the decision of the administration agency. It is now definitely settled that the “appeal” provided for in §154-73 GC, provides only for an appeal on questions of law. This was perfectly understood by the appellant (appellee here) as his notice of appeal is based upon the claim that the Board erred in its orders in the following respects:

“1. That the order of the Board of Liquor Control was confiscatory under the circumstances and an abuse of discretion.

“2. That the order of the Board of Liquor Control resulted from the refusal of the Department of Liquor Control to renew appellant’s D-5 Permit after permitting operation for one year on questions erroneously and illegally raised by said Department of Liquor Control.

“3. That the order of the Board of Liquor Control in sustaining the Department of Liquor Control was an abuse of discretion.

“4. For admission of evidence over objection and refusing to permit appellant to introduce evidence over objection.

“5. For other manifest errors in the record amounting to an abuse of discretion.”

It is observed that there is no claim that the decision of the Board is against the manifest weight of the evidence, nor did the Common Pleas Court so find. What, the Common Pleas Court held is shown by its journal entry, as follows:

“This day this cause came on to be heard upon appeal from a decision of the Board of Liquor Control rejecting appellant’s application for renewal of a D-5 liquor permit, and the Court heard the same' upon the record, statements of counsel and memoranda filed. The Court found that said appeal was well taken, and that the- order of the Board of Liquor Control should be reversed.

“WHEREFORE, it is hereby ordered and decreed that the order of the Board of Liquor Control shall be reversed and a D-5 permit directed to • be issued to the appellant. It is further directed that a certified copy of this entry be directed to the Board of Liquor Control by the Clerk of Court of this County.”

Such entry does not set forth any specific ground upon which the Board “should be reversed.” Standing alone, in the absence of any stated error and from that portion of the entry which purports to direct the Board to issue a D-5 permit to the appellant, it seems that the Court attempted to substitute its judgment for that of the Board'. This it was powerless to do upon such appeal. Sec. 154-73 GC, defines the power of the Court upon appeal from the decision of an administrative agency. It “may affirm, reverse, vacate or modify the order of the agency” when it is found that the agency did not follow the applicable law, and its order is subject to review upon questions of law by the Court of Anneals.

In the case of Farrand, Appellee, v. State Medical Board, Appellant, 151 Oh St 222, Judge Turner, at page 224 states: “The purpose of the General Assembly in providing for administrative hearings in particular fields was to facilitate such matters by placing the decision on facts with boards or commissions composed of men equipped with the necessary knowledge and experience pertaining to a particular field. In providing for an appeal from the decision of such a board of commission, the General Assembly did not intend that a court should substitute its judgment for that of the specially created board or commission but did intend to confer a revisory jurisdiction on the court.”

And it is held in the syllabus to the cited case:

“1. The word, ‘appeal’ as used in §154-73 GC, means the proceedings whereby a court reviews the action or decision of an administrative agency and affirms, reverses, vacates or modifies an order of the agency complained of in the appeal. The court may not substitute its judgment for that of the agency but is confined to determining the rights of the parties in accordance with the statutes and other law applicable.

“2. The word ‘appeal,’ as used in §154-73 GC, does not authorize a trial de novo of the matter which was before an administrative agency.”

Sec. 6064-8 GC, reposes in the Board of Liquor Control the power to grant or refuse permits and so long as it does so in accordance with the statute and other law applicable its decision is final and conclusive.

The power of the reviewing court was, therefore, confined to a determination whether the action of the Board was authorized by the statutes and other law applicable. Thus we must look to the claims of the applicant as set forth in his assignments of error filed in the Common Pleas Court, as above quoted, and to a proper determination thereof a review must be made of the facts before the Board at the time of the hearing upon the application for a renewal of the permit, as shown by the record.

Because of the potentialities for harm there can be no doubt of the power of the General Assembly to regulate or prohibit the sale of intoxicating liquors. There is no debatable constitutional question involved in this proceeding. The broad power vested by the General Assembly in the Board of Liquor Control to grant or refuse permits to sell intoxicating liquors authorizes that Board to receive and act upon any facts tending to establish and protect the welfare of the inhabitants of the State, unless the Board is prohibited by law from the consideration thereof. The Board is mandatorily required to refuse to issue permits and to cancel them in certain instances prescribed. There is no property right in a permit holder which is not subject to cancellation when authorized by the Act. By §6064-17 GC, a permit holder cannot sell or assign his permit without the consent of the Board. An applicant takes the permit and makes his investment in the business at his own risk and cannot complain that his property has been confiscated without due process of law if renewal of his permit is refused in accordance with the control Act. Nor can any abuse of discretion on the part of the Board in refusing a permit or the renewal thereof be claimed so long as it proceeds in accordance with the law and not arbitrarily. There is no showing here of bias or prejudice upon the part of the Board which could characterize its action as arbitrary,’or an abuse of discretion.

As shown by the record, the Board had before it upon consideration of the application for the renewal of a permit to Tancer the fact, among others, that at the time the original permit was applied for by him there was located directly across the street and within much less than 500 feet from the location for which the permit was requested, a church known as the Assembly of God Tabernacle; that upon such original application notice was served upon the church authorities on January 4, 1949, such notice stating that the church had ten days in which to object; that on January 7, 1949, without opportunity for the church to file its objections and without any hearing on objections thereto, the permit was issued to Tancer; that immediately after obtaining knowledge that the permit had been issued the ehureh did object; that there were in the Department’s files church objections to a permit at this location, dating back as far as 1945, and there had been previous rejections at this location.

The record further discloses that Mr. Tancer is the son-in-law of Stefen Cosgarea and Elizabeth Cosgarea; that previous to the location of the church across the street Elizabeth Cosgarea had operated at this location under a D-5 permit which had been revoked by the Board for cause; that Stefen Cosgarea had applied for a permit for the same location on June 27, 1945, and his application had been rejected upon objection by the mayor of the city of Salem; that Tancer and his wife bought the premises from her father and mother, Stefan and Elizabeth Cosgarea; that the application on which the permit was issued to Prank V. Tancer in 1949 was filed September 2, 1947, and that a previous application filed by him had not been allowed because of quota restrictions; that after the revocation of the permit held by Elizabeth Cosgarea the church moved to its present location because of its former location being in proximity to the Black Horse Tavern.

Our examination of the record fails to disclose an objection by applicant to the admission of any testimony,' or that any evidence offered by applicant was rejected. The Board considered evidence of the war record of applicant and evidence by way of affidavits and signed petitions in his behalf and testimony to the effect that he had conducted the business at this location for the year beginning January 7, 1950, in a satisfactory fashion.

The only legal question involved in this proceeding arises under the provisions of §6064-16 GC, which was in effect when the permit to Tancer was first granted. This section is as follows:

“Applications for regular permits authorized by this act may be filed with the department of liquor control at any time after this act becomes effective. No permit shall be issued by the department under authority of this act until fifteen days after the application therefor is filed, except in the case of an application from a permit holder for a permit of the same class and for the same location.” '

The record discloses that on January 26, 1950, a hearing was had before the Director of the permit division of the Liquor Board, as a result of the objections of the church to the renewal of Taneer’s permit, and the following was decided by the Director:

“I find under the circumstances that despite the previous issuing of the permit without hearing, and despite the hardship imposed on the applicant, it would be inadvisable to issue permit for Class D-5 premises for this location due to the exceptional proximity to the church and due to the fácti the church had previously moved to escape the proximity of a tavern.”

. The Board of Liquor Control sustained and affirmed the foregoing order of the Director rejecting the application for a Class D-5 permit for such location.

Prom his opinion it may be observed that the Common Pleas Court stated:

“From the record it appears that appellant was issued a permit in January 7, 1949, and apparently operated for a year without objection from the church, or anyone else. There is no claim but that appellant operated without any apparent irregularity or unlawful manner.

“It is to be noted that the statute does not prohibit the granting of a permit within five hundred feet from a church, but simply provides for the submission of the question upon a hearing of objections by church or other authorities within the prescribed area.

“After a permit has been in use for a year or more, upon an application for a renewal by the same person for the same kind of a permit in the same place, the statute does not require notice to a church which may be within 500 feet of the permit premises.

“The Court concludes that this appellant having operated for the previous year without objection and without any irregularities or illegalities and seeking the same kind of a permit in the same premises, should have had his permit renewed.

“The order of the Board of Liquor Control is therefore reversed and a permit directed to issue to appellant.”

The Common Pleas Court was in error in stating there was no objection from the church, as the record clearly discloses that immediately after obtaining knowledge that the permit had been issued the church did object. It did not take action by way of mandamus to compel a hearing on its objections nor injunction to restrain the operation at that location, but such failure would not create an estoppel against its future insistence upon its objections to the renewal of the permit, if the original permit was illegal and void.

The Common Pleas Court was technically correct in stating that the statute does mot prohibit the granting of a permit within 500 feet from a church, but in mandatory language the statute does prohibit the granting of a permit until written notice is given to a church located within 500 feet and opportunity provided for a full and complete hearing before the Director upon the subject of the advisability of the issuance 'of such permit. The statute says that “no permit shall be issued” without compliance with the required notice and hearing.

It being positively shown that no opportunity had been provided the church for a full and complete hearing before the Director, and that the church immediately upon obtaining knowledge that the permit had been issued did object, can it be held that this applicant is a legal permit holder coming within the exception set forth in the last sentence of §8064-16 GC?

This Court holds that the Board of Liquor Control was without any authority to issue the permit to Frank V. Tancer on January 7, 1950, because of the failure to comply with the mandatory requirements of the statute and that the permit then issued was illegal and absolutely void and of no effect; that the requirement of the statute is not merely directory but is mandatory and without compliance therewith “no permit shall be issued” by the Board; that Frank V. Tancer did not come within the exception set forth in the statute.

Having considered all the errors assigned by applicant in his notice of appeal filed in the Court of Common Pleas and finding no error intervened to his prejudice in the. proceedings before the Director or the Board of Liquor Control upon his application for renewal of the permit, or the decision to refuse such permit, the judgment of the Common Pleas Court is reversed and held for naught and the decision of the Board of Liquor Control is affirmed.

Without encumbering this opinion therewith, we refer to the opinion rendered by the Attorney General of the State of Ohio, No. 1212, under date of November 17, 1949, published in the 1949 edition of Opinions of the Attorney General, beginning at page 848, wherein are set forth in detail the authorities, as well as the reasoning, upon which we arrive at our conclusions.

We are not now concerned with any questions which may arise as to the disposition of the money paid by applicant for the permit, or whether he may be found guilty of operating without a valid permit. Perhaps all interested parties will be content to “let sleeping dogs lie.”

HORNBECK, PJ, MILLER, J, concur.


text:
    STATE, Appellant, v. TANCER, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4622.
    Decided March 24, 1952.

      C. William O’Neill, Atty. Geni., Brown W. Pettit, Asst. Atty. Geni., Columbus, for appellant.
    Nelson Lanci'one, Edwin M. Tuttle, Columbus, Joseph N. Bernabei, Canton, for appellee.
   OPINION

By THE COURT.

Submitted on motion for rehearing. The present rules of court do not provide for a motion or application for rehearing. However, the court will give the motion such attention as the contents require.

A different test is applied in determining whether action taken constitutes “an abuse of discretion” or was against the “manifest weight of the evidence.” Steiner v. Custer, 137 Oh St 448; Shearer v. State Medical Board, 58 Abs 561, 564.

This Court recently held that the Board of Liquor Control may appeal an adverse ruling from the Common Pleas Court to the Court of Appeals. Barn Cafe & Restaurant, Inc., v. Board of Liquor Control, Case No. '4637, Franklin County, decided January 24, 1952.

Nothing is presented in support of the motion which would require a rehearing.

Motion for rehearing overruled.

HORNBECK, PJ, MILLER, J, and NICHOLS, J, (NICHOLS, J, of the Seventh District, sitting by designation), concur.


text:
    MILLER, Plaintiff-Appellee, v. DILLARD, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4416.
    Decided September 13, 1950.
    W. N. Postlewaite, Columbus, for plaintiff-appellee.
    Walter R. Hill, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a motion to dismiss the appeal for the reason that no assignment of errors or brief has been filed and more than fifty days have elapsed from the date of the filing of the judgment entry. The record supports the ground set forth and the motion is therefore well taken.

The appellee further seeks an allowance of $50.00 as damages for the reason that there was no reasonable ground for the appeal. We have examined the entire record and are of the opinion that there was reasonable ground for the same. The mere fact that the appeal was later abandoned should not be controlling. This branch of the motion will be overruled.

The appeal will not be dismissed, but the judgment will be ordered affirmed, as we think this is the proper procedure.

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


author: By MERRICK, J.

text:
    MASETTA, Plaintiff, v. NATIONAL BRONZE & ALUMINUM FOUNDRY COMPANY, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 602697.
    Decided October 22, 1951.
    Morton D. Barrisch, Cleveland, for plaintiff, Russell Masetta.
    Miller & Hornbeck, Cleveland, for defendant, National Bronze & Aluminum Foundry Co.
   OPINION

By MERRICK, J.

This action comes before the Court on the motion of defendant to dismiss for want of jurisdiction. For the reasons stated in- the motion, such pleading must be considered as a demurrer and is always timely, even though an answer has theretofore been filed. See. 11311 GC. Bozzelli v. Industrial Commission, 122 Oh St 201.

A demurrer searches the entire record. Holthouse v. Akom, 370031; 51 Abs 176. The plaintiff is attempting to secure some relief in equity upon a claim for breach of an employment contract made for his benefit and the benefit of others similarly situated through the medium of membership in a labor union which actually made the contract with the defendant.

Plaintiff seeks relief through a four pronged prayer, which divested of verbiage asks the court:—

1. To discharge workmen who are holding the jobs formerly filled by plaintiff and his former co-workers;

2. To order the defendant to re-hire plaintiff and his former co-workers;

3. To account to plaintiff and his former co-workers for wages and emoluments of employment lost by reason of their discharge or lay-off.

4. For money judgment by way of damages.

This Court had had a similar question to the one raised by the relief sought by paragraphs enumerated, one, two and three above in the case of International Union, et. al. v. Champion Forge Company; being case No. 612-884 on the docket of this Court which has this day been decided by the embodiment of some of the conclusions reached herein.

This is an effort to compel performance of a contract for personal services,, so far as the equity phase of the case is concerned. Relief of that character has always been regarded as impracticable and as an invasion of one’s natural liberty, involuntary servitude being prohibited by the Constitution. Where the contract was one for unique or extraordinary personal services, requiring special knowledge or peculiar skill, such as singing or acting, and the agreement was to perform such services for a particular person, and not to perform them for anyone else for a stated period, courts of equity have enjoined those agreeing to perform such professional services from performing like services for others during the time covered by the contract but Courts of equity have never attempted to compel the affirmative performance of even an agreement to sing or act. So far as we know, a Court of equity has never attempted to compel a person to perform personal services, nor to compel an employer to accept the personal services of any person or to continue the personal services of an employee. The reason is obvious. It would be impracticable to enforce the relationship of master and servant against the wish of either. Lundoff—Bicknell v. Smith, 24 Oh Ap 301; Sterling and Welch v. Duke, 33 O. O. 482; 67 N. E. 2nd 24.

The remedy for a discharge from employment is at law for a breach of contract, and not in equity to enjoin the discharge. Boyer v. Western Union Telegraph Company, 124 F. 246; General Petroleum Corporation v. Beanblossom, 47 F. 2nd 826.

Following this reasoning this Court is of the opinion that plaintiff’s cause of action in equity must fail and we must look to the pleadings to ascertain whether a cause of action at law for money damages has been stated.

The question of whether or not plaintiff could bring this action as a class suit was passed upon previously in this Court by another Judge who ruled adversely on a motion seeking to non-suit the cause as a class action. This ruling was made while the equity features were still in the case and in the memorandum of the trial Judge, he quotes from a textbook on equity jurisprudence and cites cases, all of which were brought in equity. In this motion and other attacks on the pleadings previously made, the jurisdictional question was not raised.

The writer is of the opinion that with the equity side of the case removed, the Judge who passed upon the previous motion would have had no difficulty in determining that an action such as this, asking for money damages only, could not be brought as a class suit.

We are inclined to follow the reasoning of our Supreme-Court in the case of Davies v. Columbia Gas Corporation, 151 Oh St 417. In this case, plaintiff sought general equitable relief and an accounting but also sought money damages. The opinion of Judge Zimmerman contains this very potent reasoning. (Page 422)

“Here, the primary object of the action is the- recovery of money in the form of damages for all those who were allegedly defrauded by the claimed deceitful practices of the defendants during a specified number of years. The total damages sought would be arrived at by combining the amounts found due each----, and such amounts would depend upon the peculiar facts surrounding the particular person or to the facts which pertained to a group similarly affected in a particular area. The relief of an equitable character prayed for is secondary and ancillary_____ (Emphasis supplied.) Because of the diverse conditions and circumstances referred to, it cannot be said that there is a community of interest plus a right of recovery based on the same essential facts between plaintiff and those he assumes to represent_____and it is likewise apparent that all those whom plaintiff undertakes to represent do not have a common or identical interest with him or that they are in accord with what, he seeks_____”

It is interesting to note that the opinion from which the above excerpts are taken seems to stress the inference that with the equitable theory being secondary, a class suit cannot lie. The lower court (51 Abs 372) had ruled that the provisions of §11257 GC apply to actions of a legal as well as those of an equitable nature. This theory of the case was not carried into the syllabi by the Supreme Court but the opinion of Judge Zimmerman indicates a disagreement with this approach. The Court of Appeals was reversed and the Common Pleas Court was affirmed in holding that it could not be brought as a class suit.

A very interesting discussion is found in the case of Trustees v. Thoman, 51 Oh St 285. This was an action to recover taxes alleged to have been illegally assessed and was brought by plaintiff as a class action. On page 298 we find this language in the opinion of Judge Thad A. Minshall:—

“----there is no rule of pleading or practice by which he for himself and the others can prosecute an action to recover back the money so paid. A suit to recover back is quite different in the grounds upon which a recovery can be had, from a suit to enjoin a tax. In the latter case, each is not only interested in the question involved, but a judgment may be rendered in favor of' all as a class, upon substantially the same case, and terminate the litigation. Not so in an action to recover back money paid_____ In such case the judgment must --------be for each according to the amount due him;____”

The rule is uniform that, in order to maintain a suit by one for the benefit of himself and others, there must be community of interest as well as a right of recovery by reason of the same essential facts. Stevens v. Times Star, 72 Oh St 154; Trustees v. Thoman, supra; Duncan v. Willis, 51 Oh St 433.

In the case of Platt v. Colvin, 50 Oh St 703, a reading of the syllabus would give a first blush reaction that an action for money damages might be brought as a class suit as a general rule. This case has been cited by other courts and textbooks. (O. Jur., Vol. 30, P, 741.) However, a careful reading of this ease brings to light the real import of its reasoning. This was an action by a partner brought on behalf of the partnership to recover a money judgment for the partnership. The entity is styled an unincorporated joint Stock Company but the decision of the Court applies the principles of a partnership suit. Likewise the Court accentuates in the opinion that the judgment is to be rendered for the company or partnership and not the individuals contemplated in the classification of the plaintiff or plaintiffs. By statute and practice of modern code pleading this question is disposed of by statute. Sec. 11260 GC.

This Court has been very much impressed by the opinion of Judge Frank S. Day, late of this Court rendered in the case of Kuligowski v. Hart, 23 O. O. 213. All aspects of the law touching on the right to bring a class suit are thoroughly analyzed in that opinion and the writer cannot expand upon it and certainly is not equipped to improve upon it. The question involved is identical with the one at hand.

The writer is of the opinion that actions by workmen for breach of contract wherein money damages is the only relief sought cannot be brought in a class suit. There are so many elements that would vary in the circumstances surrounding the claims of the individuals that one cloak of legal coverage could not comprehend or litigate them in a single action. Likewise it is fair to assume that jury trials would be compulsory where not waived and the defenses and elements of damages would be too varied to permit litigation in a single action without disastrously confusing-results.

Whether plaintiff and his former co-workers have any rights under the United States Labor Management Relations Act is not encompassed in the instant action..

The motion to dismiss the Amended Petition is granted. The plaintiff may file a further amended petition predicating his claim as an individual for damages for breach of contract. If plaintiff indicates that he does not desire to thus proceed further, a judgment for costs in favor of the defendant may be entered. '