author: By MR. JUSTICE BRENNAN.

text:
    LOCAL 24 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, et al, Petitioners, v. REVEL OLIVER, A. C. E. TRANSPORTATION CO., INC., and INTERSTATE TRUCK SERVICE, INC.
    U. S. Supreme Court.
    No. 49.
    Decided January 19, 1959.

      David Previant, Detroit, Mich., for petitioners.
    Stanley Denlinger, Akron, for respondent Revel Oliver.
    Charles R. Iden, Akron, for respondents A. C. E. Transp. Co., Inc., and Interstate Truck Service, Inc.
   OPINION

By MR. JUSTICE BRENNAN.

As the result of multiemployer, multistate collective bargaining with the Central States Drivers Council, comprising local unions of truck drivers affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, a collective bargaining agreement, the “Central States Area Over-the-Road Motor Freight Agreement,” effective February 1, 1955, and expiring January 31, 1961, was entered into by the locals and motor carriers in interstate commerce who operate under the authority of the Interstate Commerce Commission in 12 midwestern States, including Ohio. Article XXXII of this collective bargaining agreement prescribes terms and conditions which regulate the minimum rental and certain other terms of lease when a motor vehicle is leased to a carrier by an owner who drives his vehicle in the carrier’s service. The Ohio courts enjoined the petitioner, Ohio’s Teamsters Local 24 and its president, and the respondent carriers, A. C. E. Transportation Company, Inc., and Interstate Truck Service, Inc., Ohio employers, from giving effect to the provisions of Article XXXII. The Ohio courts held that the Article violates the Ohio antitrust law, known as the Valentine Act. The question is whether the fact that the Article was contained in an agreement which was the fruit of the exercise of collective bargaining rights under the National Labor Relations Act precluded the Ohio courts from applying the Ohio antitrust law to prohibit the parties from carrying out the terms of the Article they had agreed upon in bargaining. No claim is made that Article XXXII violates any provision of federal law.

The Article is in express terms made applicable only to a lessor-driver when he himself drives his vehicle in the business of the lessee-carrier. §1. The Article at least in words, constitutes the lessor-driver an employee of the carrier at such times: “The employer [the carrier] expressly reserves the right to control the manner, means and details of, and by which, the owner-operator performs his services, as well as the ends to be accomplished.” §4. His wages, hours and working conditions are then to be those applied to the carrier’s drivers of carrier-owned vehicles, and he has “seniority as a driver only.” §2. He must operate his vehicle at such times “exclusively in * * * [the carrier’s] * * * service and for no other interests.” §1. The carrier “agrees to pay * * * social security tax, compensation insurance, public liability and property damage insurance, bridge tolls” and various other fees imposed on motor freight transportation, except “that the owner-driver shall pay license fees in the state in which title is registered.” §10. The lessor-driver must be compensated by “separate checks * * * for driver’s wages and equipment rental.” §6. The wage payment must be in the amount of “the full wage rate and supplementary allowances” payable to carrier drivers similarly circumstanced who drive carrier-owned vehicles. §12(a). The equipment rental payment must be in an amount not less than the “minimum rates” specified by the Article which “result from the joint determination of the parties that such rates represent only the actual cost of operating such [leased] equipment. The parties have not attempted to negotiate a profit for the owner-driver.” §12 (b). All leases by union members who drive their vehicles for carriers in effect on the operative date of the collective bargaining agreement are to “be dissolved or modified within thirty (30) days” to conform to the terms and conditions of the Article. §15. The parties declare that “the intent of this clause [the Article] * * * is to assure the payment of the Union scale of wages * * * and to prohibit Ta carrier from] the making and carrying out of any plan, scheme or device to circumvent or defeat the payment of wage scales provided in this Agreement. * * * [and] to prevent the continuation of or formation of combinations or corporations or so-called lease of fleet arrangements whereby the driver [of his own vehicle] is required to and does periodically pay losses sustained by the corporation or fleet arrangement, or is required to accept less than the actual cost of the running of his equipment, thus, in fact, reducing his scale of pay.” §16.

The respondent, Revel Oliver, a member of the union, is the owner of motor equipment which, at the time the collective bargaining agreement was negotiated, was subject to written lease agreements with the carrier respondents, A. C. E. Transportation Company, Inc., and Inter- - state Truck Service, Inc. The terms and conditions of the leases, particularly in regard to rental compensation, differ substantially from those provided in Article XXXII.

Oliver brought this action on January 20, 1955, in the Court of Common Pleas, Summit County, Ohio, for an injunction restraining the petitioners and the respondent carriers from carrying out' the terms of Article XXXII. He obtained a temporary restraining order upon sworn allegations. At the trial the respondent carriers joined with Oliver in making the attack on the Article. The petitioners defended on the ground that the State could not lawfully exercise power to apply its antitrust law to cause a forfeiture of the product of the exercise of federally sanctioned collective bargaining rights. The union justified the Article as necessary to prevent undermining of the negotiated drivers’ wage scale said to result from a practice of carriers of leasing a vehicle from an owner-driver at a rental which returned to the owner-driver less than his actual costs of operation, so that the driver’s wage received by him, although nominally the negotiated wage, was actually a wage reduced by the excess of his operating expenses over the rental he received. The Court of Common Pleas held in an unreported opinion that the National Labor Relations Act could not “be reasonably construed to permit this remote and indirect approach to the subject of wages,” and that Article XXXII was in violation of the State’s antitrust law because “there are restrictions and restraints imposed upon articles [the leased vehicles] that are widely used in trade and commerce. * * * land] preclude an owner of property from reasonable freedom of action in dealing with it.” On the petitioners’ appeal to Ohio’s Ninth Judicial District Court of Appeals that court heard the case de novo and affirmed the judgment of the Court of Common Pleas, adopting its opinion. The Court of Appeals entered a permanent injunction perpetually restraining the petitioners and the respondent carriers d) “from entering into any agreements * * * or carrying out the * * * requirements * * *of any such agreement, which will require the alteration” of Revel Oliver’s “existing lease or leasing agreement;” (2) “from entering into any * * * agreement or stipulation in the future, or the negotiation therefor, the * * * tendency of which is to * * * determine in any manner the rate to be charged for the use of” Revel Oliver’s equipment; (3) “from giving force and effect to Section 32 Tsic] of the Contract * * * or any modification * * * thereof, the * * * tendency of which shall attempt to fix the rates” for the use of Revel Oliver’s equipment. Petitioners’ appeal to the Ohio Supreme Court was dismissed for want of debatable constitutional question, 167 Oh St 299, 4 O. O. (2d), 344, 147 N. E, (2d), 856. We granted certiorari to consider the important question raised of the interaction of state and federal power arising from the petitioner’s claim that the Ohio regulation abridges rights protected by federal statute. 356 U. S. 966, 78 S. Ct. 1007, 2 L. Ed. (2d), 1073.

Article XXXII did not originate with the 1955 agreement. The carriers and the union have disputed since 1938 the terms of a carrier’s hire of a lessor’s driving services with his leased vehicle. The usual lease is by the owner of a single vehicle who hires out his services as driver with his vehicle. A carrier’s representative who has participated in all contract negotiations since those leading to the 1938 agreement testified to the history. According to him, the nub of the union’s position over the two decades has been that the carriers abuse the leasing practice, particularly by paying inadequate rentals for the use of leased vehicles, with the result “that part of the men’s wages for driving was being used for the upkeep of their vehicles * * *. They Fthe union] claimed that the leased people were breaking down the rate structure * *

The union’s demands for contract provisions to safeguard against the alleged abuse were designed also to “secure a living wage [for the lessor] plus an adequate rental for his equipment.” A minimum rental clause first appeared in the 1938 agreement which also contained provisions comparable to §§8, 10 and 14 of present Article XXXII. In 1939, after the union claimed that “there was a lot of people that was transferring their title into other people’s name to avoid the conditions of the contract,” §3 was added to provide that “certificate and title to the equipment must be in the name of the actual owner.” When the dispute brought the parties to the verge of a strike in 1941, the note to §1 and §§13, 15, 16, 17 and 18 came into the agreement. But by 1946 the controversy reached a pitch where the union demanded agreement from the carriers to abolish the leasing practice: “the unions were going to refuse the addition of any individual owners, and the unions also desired to make certain restrictions on the use of owner-operators, again claiming that the * * * company operators were taking advantage of certain provisions of the contract.” This demand was comprised by the addition of §19 restricting leasing to carriers “who will agree to submit all grievances pertaining to owner-operators to joint Employer-Union grievance committees in each respective state”; the section “represented the compromise between the union position that it should abolish all owner-operators and the companies’ contention there should be no limitation.”

First. The Ohio courts rejected the petitioners’ contention that the evidence conclusively established that Article XXXII dealt with subject matter within the scope of “collective bargaining” in which federal law gave petitioners the right to engage. The state courts rested their judgments principally on the minimum rental regulations of §12 of the Article. The principal discussion occurs in the opinion of the Court of Common Pleas. These regulations were held to constitute the Article a price-fixing arrangement violating the Ohio antitrust law in that they evidenced “concerted action of the Union combining with a non-labor third party in a formal contract. * * * [the] effect [of which] is to oppress and destroy competition. * * * [and] preclude an owner of property from reasonable freedom of action in dealing with it.”

It seems to us that in considering whether the Article deals with a subject matter within the scope of collective bargaining as defined by federal law the Ohio courts did not give proper significance to the Article’s narrowly restricted application to the times when the owner drives his leased vehicle for the carrier, and to the adverse effects upon the negotiated wage scale which might result when the rental for the use of the leased vehicle was unregulated at these times. Since no claim was presented to the Ohio courts that the petitioners sought to apply these regulations to Revel Oliver’s arrangements with the respondent carriers except on the very infrequent and irregular occasions when Oliver drove one of his vehicles for a carrier, we take it that the Ohio courts’ opinions and judgments relate only to the validity of the Article as applie<J at such times. This would necessarily be the case as the text of the Article, and that text as illumined by its history, conclusively establishes that the regulations in no wise apply to the terms of lease of a vehicle when driven by a driver not the owner of the vehicle; the wages, hours and working conditions to be observed by contracting employers of non-owner drivers are governed by the general provisions in that regard found in other articles of the colletive bargaining agreement.

In the light of the Article’s history and purpose, we cannot' agree with the Court of Common Pleas that its regulations constitute a “remote and indirect approach to the subject of wages,” outside the range of matters on which the federal law requires the parties to bargain. The text of the Article and its unchallenged history show that its objective is to protect the negotiated wage scale against the possible undermining through diminution of the owner’s wages for driving which might result from a rental which did not cover his operating costs. This is thus but an instance, as this court said of a somewhat similar union demand in another case, in which a union seeks to protect lawful employee interests against what is believed, rightly or wrongly, to be “a scheme or device utilized for the purpose of escaping the payment of union wages and the assumption of working conditions commensurate with those imposed under union standards.” Milk Wagon Drivers’ Union, Local No. 753, International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America v. Lake Valley Farm Products, Inc., 311 U. S. 91, 98-99, 61 S. Ct. 122, 126, 85 L. Ed. 63. Looked at in this light, as on the evidence it must be to determine its relevance to the collective bargaining rights under the Federal Act, the point of the Article is obviously not price fixing but wages. The regulations embody not the “remote and indirect approach to the subject of wages” perceived by the Court of Common Pleas but a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure established by the collective bargaining contract. The inadequacy* of a rental which means that the owner makes up his excess costs from his driver’s wages not only clearly bears a close relation to labor’s efforts to improve working conditions but is in fact of vital concern to the carrier’s employed drivers; an inadequate rental might mean the progressive curtailment of jobs through withdrawal of more and more carrier-owned vehicles from service. Cf. Bakery and Pastry Drivers and Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U. S. 769, 771, 62 S. Ct. 816, 86 L. Ed. 1178. It is not necessary to attempt to set precise outside limits to the subject matter properly included within the scope of mandatory collective bargaining, cf. National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U. S. 342, 78 S. Ct. 718, 2 L. Ed. (2d), 823, to hold, as we do, that the obligation under §8 (d) on the carriers and their employees to bargain collectively “with respect to wages, hours, and other * * * conditions of employment” and to embody their understanding in “a written contract incorporating any agreement reached,” found an expression in the subject matter of Article XXXII. See Timken Roller Bearing Co., 70 N. L. R. B. 500, 518, reversed on other grounds, 6 Cir., 161 F. (2d), 949. And certainly bargaining on this subject through their representatives was a right of the employees protected by §7 of the Act.

Second. We must decide whether Ohio’s antitrust law may be applied to prevent the contracting parties from carrying out their agreement upon a subject matter as to which federal law directs them to bargain. Little extended discussion is necessary to show that' Ohio law cannot be so applied. We need not concern ourselves today with a contractual provision dealing with a subject matter that the parties were under no obligation to discuss; the carriers as employers were under a duty to bargain collectively with the union as to the subject matter of the Article, as we have shown. The goal of federal labor policy, as expressed in the Wagner and Taft-Hartley Acts, is the promotion of collective bargaining; to encourage the employer and the representative of the employees to establish, through collective negotiation, their own charter for the ordering of industrial relations, and thereby to minimize industrial strife. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45, 57 S. Ct. 615, 628, 81 L. Ed. 893; National Labor Relations Board v. American National Ins. Co., 343 U. S. 395, 401-402, 72 S. Ct. 824, 828, 96 L. Ed. 1027. Within'the area in which collective bargaining was required, Congress was not concerned with the substantive terms upon which the parties agreed. Cf. Terminal Railroad Ass’n of St. Louis v. Brotherhood of Railroad Trainmen, 318 U. S. 1, 6, 63 S. Ct. 420, 423, 87 L. Ed. 571. The purposes of the Acts are served by bringing the parties together and establishing conditions under which they are to work out their agreement themselves. To allow the

application of the Ohio antitrust law here would wholly defeat the full realization of the congressional purpose. The application would frustrate the parties’ solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here. Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty, Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U. S. 448, 77 S. Ct. 923, 1 L. Ed. (2d) 972; and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide, see Allen Bradley Co. v. Local Union No. 3, International Brotherhood of Electrical Workers, 325 U. S. 797, 65 S. Ct. 1533, 89 L. Ed. 1939; cf. United States v. Employing Plasterers’ Ass’n of Chicago, 347 U. S. 186, 190, 74 S. Ct. 452, 454, 98 L. Ed. 618. We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties’ agreement can provide to the problems of wages and working conditions. Cf. State of California v. Taylor, 353 U. S. 553, 566, 567, 77 S. Ct. 1037, 1044, 1045, 1 L. Ed. (2d), 1034. Since the federal law operates here, in an area where its authority is paramount, to leave the parties free, the inconsistent application of state law is necessarily outside the power of the State. Hill v. State of Florida, ex rel. Watson, 325 U. S. 538, 542-544, 65 S. Ct. 1373, 1375, 1376, 89 L. Ed. 1782. Cf. International Union of United Automobile, Aircraft and Agricultural Implement Workers of America v. O’Brien, 339 U. S. 454, 457, 70 S. Ct. 781, 782, 94 L. Ed. 978; Amalgamated Ass’n of Street, Electric Railway & Motor Coach Employees of America, Division 998 v. Wisconsin Employment Relations Board, 340 U. S. 383, 71 S. Ct. 359, 95 L. Ed. 364; Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 U. S. 953, 70 S. Ct. 491, 94 L. Ed. 588. The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S. 301, 307-312, 69 S. Ct. 584, 588-590, 93 L. Ed. 691. Of course, the paramount force of the federal law remains even though it is expressed in the details of a contract federal law empowers the parties to make, rather than in terms in an enactment of Congress. See Railway Employes’ Dept. v. Hanson, 351 U. S. 225, 232, 76 S. Ct. 714, 718, 100 L. Ed. 1112. Clearly it is immaterial that the conflict is between federal labor law and the application of what the State characterizes as an antitrust law. “* 4 * Congress has sufficiently expressed its purpose to * * * exclude state prohibition, even though that with which the federal law is concerned as a matter of labor relations be related by the state to the more inclusive area of restraint of trade.” Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 481, 75 S. Ct. 480, 488, 99 L. Ed. 546. We have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce. If there is to oe this sort of limitation on the arrangments that unions and employers may make with regard to these subjects, pursuant to the collective bargaining provisions of the Wagner and Taft-Hartley Acts, it is for Congress, not the States, to provide it.

Reversed.

MR. JUSTICE WHITTAKER, believing that respondent Oliver, while driving his own tractor in the performance of his independent contract with the respondent carriers, was not an employee of those carriers, but was an independent contractor, United States v. Silk, 331 U. S. 704, 67 S. Ct. 1463, 91 L. Ed. 1757, and that, as such, he was expressly excluded from the coverage of the Labor Management Relations Act by 61 Stat. 137(3), 29 U. S. C. §152(3), 29 U. S. C. A. §152(3), would affirm the judgment of the Court of Appeals for the Ninth Judicial District of Ohio.

The Chief Justice, MR. JUSTICE FRANKFURTER and MR. JUSTICE STEWART took no part in the consideration Gr decision of this case.

Appendix

Article XXXII of the Central States

Area Over-the-Road Motor Freight Agreement

Owner-Operators

Section 1. Owner-operators (See Note), other than certificated or permitted carriers, shall not be covered by this Agreement unless affiliated by lease with a certificated or permitted carrier which is required to operate in full compliance with all the provisions of this Agreement and holding proper ICC and state certificates and permits. Such owner-operators shall operate exclusively in such service and for no other interests.

(Note: Whenever “owner-operator” is used in this article, it means owner-driver only, and nothing in this article shall apply to any equipment leased except where owner is also employed as a driver.)

Section 2. This type of operator’s compensation for wages and working conditions shall be in full accordance with all the provisions of this Agreement. The owner-operator shall have seniority as a driver only.

Section 3. Certificate and title to the equipment must be in the name of the actual owner.

Section 4. In all cases, hired or leased equipment shall be operated by an employee of the certificated or permitted carrier. The employer expressly reserves the right to control the manner, means and details of, and by which, the owner-operator performs his services, as well a,s th? ends to be accomplished-

Section 5. Certificated or permitted carriers shall use their own available equipment, together with all leased equipment under minimum thirty-day bona fide lease arrangements, on a rotating board, before hiring any extra equipment.

Section 6. Separate checks shall be issued by the certificated or permitted carriers for driver’s wages and equipment rental. At no time shall the equipment check be for less than actual miles operated. Separate checks for drivers shall not be deducted from the minimum truck rental revenue. The driver shall turn in time direct to the certificated or permitted carrier. All monies due the owner-operator may be held no longer than two weeks, except where the lease of equipment agreement is terminated and in such cases all monies due the operator may be held no longer than thirty (30) days from the date of the termination of the operation of the equipment.

Section 7. Payment for equipment service shall be handled by the issuance of a check for the full mileage operated, tonnage or percentage, less any agreed advances. A statement of any charges by the certificated or permitted carrier shall be issued at the same time, but shall not be deducted in advance.

Section 8. The owner-operator shall have complete freedom to purchase gasoline, oil, grease, tires, tubes, etc., including repair work, at any place where efficient service and satisfactory products can be obtained at the most favorable prices.

Section 9. There shall be no deduction pertaining to equipment operation for any reason whatsoever.

Section 10. The Employer or certificated or permitted carrier hereby agrees to pay road or mile tax, social security tax, compensation insurance, public liability and property damage insurance, bridge tolls, fees for certificates, permits and travel orders, fines and penalties for inadequate certificates, license fees, weight tax and wheel tax, and for loss of driving time due to waiting at state lines, and also cargo insurance. It is expressly understood that the owner-driver shall pay the license fees in the state in which title is registered.

All tolls, no matter how computed, must be paid by the Employer regardless of any agreement to the contrary.

All taxes or additional charges imposed by law relating to actual truck operation and use of highways, no matter how computed or named, shall be paid by the Carrier, excepting only vehicle licensing as such, in the state where title is registered.

Section 11. There shall be no interest or handling charge on earned money advanced prior to the regular pay day.

Section 12 (a) All certificated or permitted carriers hiring or leasing equipment owned and driven by the owner-driver shall file a true copy of the lease agreement covering the owner-driven equipment with the Joint State Committees. The terms of the lease shall cover only the equipment owned and driven by the owner-driver and shall be in complete accord with the minimum rates and conditions provided herein, plus the full wage rate and supplementary allowances for drivers as embodied elsewhere in this Agreement.

(b) The minimum rate for leased equipment owned and driven by the owner-driver shall bo;

Per Mile

Single axle, tractor only __________________________________9%c

Tandem axle, tractor only ------------------------------- 10c

Single axle, trailer only----------------------------------- 3c

Tandem axle, Trailer only--------------------------------- 4c

75% of the above rates to apply for dead-heading, if and when ordered, provided, however, that the 75% rate will apply only on first empty dispatch away from the home terminal; thereafter the full equipment rental rate to apply until driver is redispatched from home terminal; the above rates to be based on 23,000-pound load limit. On load limits over 23,000 pounds, there shall be one-half (V2) cent additional per mile for each 1,000 pounds or fraction thereof in excess of 23,000 pounds. There shall be a minimum guarantee of 24,000 pounds for leased equipment owned and driven by the owner-driver. Nothing herein shall apply to leased equipment not owned by a driver.

The minimum rates set forth above result from the joint determination of the parties that such rates represent only the actual cost of operating such equipment. The parties have not attempted to negotiate a profit for the owner-driver.

Section 13. Driver-owner mileage scale does not include use of equipment for pickup or delivery at point of origin terminal or at point of destination terminal, but shall be subject to negotiations between the Local Union and Company. Failure to agree shall be submitted to the grievance procedure.

Section 14. There shall be no reductions where the present basis of payment is higher than the minimums established herein for this type of operation. Where owner-operator is paid on a percentage or tonnage basis and the operating company reduces its tariff, the percentage or tonnage basis of payment shall be automatically adjusted so that the owner-operator suffers no reduction in equipment rental or wages, or both.

Section 15. It is further understood and agreed that any arrangements which have heretofore been entered into between members of this Union, either among themselves or with the Employer or with the aid of the Employer, applicable to owner-driver equipment contrary to the terms hereof, shall be dissolved or modified within thirty (30) days after the signing of this Agreement so that such arrangements shall apply only to equipment of the owner-driver while being driven by such owner-driver. In the event that the parties cannot agree on a method of dissolution or modification of such arrangement to make the same conform to this Agreement, the question of dissolution or modification shall be submitted to arbitration, each party to select one member of the arbitration board, and the two so selected to choose a third member of said board. If the two cannot agree upon the third within five (5> days, he shall be appointed by the Joint State Committee. The decision of said board to be final and binding.

Section 16. It is further agreed that the intent of this clause and this entire Agreement is to assure the payment of the Union scale of wages as provided in this Agreement and to prohibit the making and carrying out of any plan, scheme or device to circumvent or defeat the payment of wage scales provided in this Agreement. This clause is intended to prevent the continuation of or formation of combinations or corporations or so-called lease of fleet arrangements whereby the driver is required to and does periodically pay losses sustained by the corporation or fleet arrangement, or is required to accept less than the actual cost of the running of his equipment, thus, in fact, reducing his scale of pay.

Section 17. It is further agreed that if the Employer or certificated or permitted carrier requires that the “driver-owner-operator” sell his equipment to the Employer or certificated or permitted carrier, directly or indirectly, the “driver-owner-operator” shall be paid the fair true value of such equipment. Copies of the instruments of sale shall be filed with the Union and unless objected to within ten (10) days shall be deemed satisfactory. If any question is raised by the Union as to such value, the same shall be submitted to arbitration, as above set forth, for determination. The decision of the arbitration board shall be final and binding.

Section 18. It is further agreed that the Employer or certificated or permitted carrier will not devise or put into operation any scheme, whether herein enumerated or not, to defeat the terms of this Agreement, wherein the provisions as to compensation for services on and for use of equipment owned by owner-driver shall be lessened, nor shall any owner-driver lease be cancelled for the purpose of depriving Union employees of employment, and any such complaint that should arise pertaining to such cancellation of lease or violation under this section shall be subject to Article X.

Section 19. (a) The use of individual owner-operators shall be permitted by all certificated or permitted carriers who will agree to submit all grievances pertaining to owner-operators to joint Employer-Union grievance compiittees in each respective state. It is understood and agreed that all such grievances will be promptly heard and decided with the specific purpose in mind of

(1) protecting provisions of the Union contract;

(2) prohibiting any and all violations directly or indirectly of contract provisions relating to the proper use of individual owners;

(3) prohibiting any attempts by any certificated or permitted carrier in changing his operation which will affect the rights of drivers under the terms of the contract, and generally the certificated or permitted carriers agree to assume responsibility in policing and doing everything within their power to eliminate all alleged abuses in the use of owner-drivers which resulted in the insertion of Section 19 (Article XXXIII) in the original 1945-47 Over-the-Road contract;

(4) owner-driver operations to be terminal to terminal, except where no local employees to make such deliveries or otherwise agreed to in this contract;

(5) the certificated or permitted carriers agree that they will, with a joint meeting of the Unions, set up uniform rules and practices under which all such cases will be heard;

(6) it shall be considered a violation of the contract should any operator deduct from rental of equipment the increases provided for by the 1955 Amendments or put into effect any means of evasion to circumvent actual payment of increases agreed upon effective for the period starting February 1, 195.5, and ending January 31, 1961.

(b) No owner-operator shall be permitted to drive or hold seniority where he owns three or more pieces of leased equipment. This provision shall not apply to present owner-operators having three or m.ore pieces of equipment under lease agreement, but such owner-operator shall not be permitted to put additional equipment in service so long as he engages in work covered by this Agreement or holds seniority. Where owner-operator drives, he can hold seniority where he works sixty (60) per cent or more of time.

      . Certificates of convenience and necessity are issued to common carriers pursuant to §§206-208 of the Interstate Commerce Act, 49 Stat. 551, 552, as amended, 49 U. S. C. §§306-308, 49 U. S. C. A. §§306-308; permits are issued to contract carriers pursuant to §209, 49 Stat. 552, as amended, 49 U. S. C. §309, 49 U. S. C. A. §309.'

      . The agreement covers between 3,000 and 3,500 employers and between 45,000 and 50,000 truck drivers. Those covered in Ohio consist of approximately 500 employers and 6,000 drivers. Upwards of 90% of the Ohio drivers drive equipment owned by carriers who operate under I. C. C. certificates or permits. The rest of the covered drivers own their own equipment, usually one vehicle, but since they are not holders of I. C. C. certificates or permits, they lease their equipment to, and drive it for, certificated or permitted carriers.

      . For the text of Article XXXII, see Appendix.

      . For details of I. C. C. regulations governing the relationship between certificated carriers and the lessors of motor vehicle equipment, see the discussion in AMERICAN TRUCKING ASS’NS, INC. v. UNITED STATES, 344 U. S. 298, 73 S. Ct. 307, 97 L. Ed. 337.

      . The specific provision involved, §1331.01 R. C., provides as follows:
      “As used in §§1331.01 to 1331.14 inclusive, R. C.:
      “(A) ‘Person’ includes corporations, partnerships, and associations existing under or authorized by any state or territory of the United States, or a foreign country.
      “(B) ‘Trust’ is a combination of capital, skill, or acts by two or more persons for any of the following purposes:
      “(1) To create or carry out restrictions in trade or commerce;
      “(2) To limit or reduce the production, or increase or reduce the price of merchandise or a commodity;
      “(3) To prevent competition in manufacturing, making, transportation, sale, or purchase of merchandise, produce, or a commodity;
      “(4) To fix at a standard of figure, whereby its price to the public or consumer is in any manner controlled or established, an article or commodity of merchandise, produce, or commerce intended for sale, barter, use, or consumption in this state;
      “(5) To make, enter into, execute, or carry out contract, obligations, or agreements of any kind by which they bind or have bound themselves not to sell, dispose of, or transport an article or commodity, or an article of trade, use, merchandise, commerce, or consumption below a common standard figure of fixed value, or by which they agree in any manner to keep the price of such article, commodity, or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of an article, commodity, or transportation between them or themselves and others, so as directly or indirectly to preclude a free and unrestricted competition among themselves, purchasers, or consumers in the sale or transportation of such article or commodity, or by which they agree to pool, combine, or directly or indirectly unite any interests which they have connected with the sale or transportation of such article or commodity, that its price might in any manner be affected.
      “A trust as defined in division (B) of this section is unlawful and void.”

      . Involved are §§7 and 8 of the National Labor Relations Act, as amended and reenacted by the Labor Management Relations Act, 61 Stat. 140, 29 U. S. C. §§157, 158, 29 U. S. C. A. §§157, 158. Section 7 is as follows:
      “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (8).”
      Sections 8(a) (5) and 8(b) (8) require employers and labor organizations to bargain collectively. Section 8(d), in pertinent part, provides:
      “For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party * *

        . Oliver is rather unusual among Ohio owner-drivers because he owns not one vehicle but a fleet, six trucks and four trailers, each of which is under a lease agreement with one or the other of the carrier respondents. Oliver drove only occasionally, “every month or so for A. C. E. and every 8 months or so for Interstate” and Article XXXII applied to his leases only as to the vehicle he drove on those occasions.

      . Accordingly, §15 of Art. XXXII required the carriers to take steps to modify both agreements. The Interstate Truck Service lease with Oliver was for a fixed term, but contained a five-day cancellation clause. The agreement between A. C. E. and Oliver was not for any fixed term and was brought into effect by the issuance of individual waybills and manifests for particular hauls,

      . The restraints entered by the judgment and order of the Court of Appeals filed September 30, 1957, are:
      “(a) That’the defendants-appellees, A. C. E. Transportation Co., Inc., Interstate Truck Service Inc., and defendant-appellants, Local No. 24 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers and each of them, their agents, representatives and successors or persons, acting, by, through or for them, or in concert with each other, are hereby perpetually restrained and enjoined from entering into any agreements one with the other or carrying out the effects, requirements or terms of any such agreement, which will require the alteration, cancellation or violation of plaintiff-appellee’s [Revel Oliver] existing lease or leasing agreement or any such agreement hereafter renewed or renegotiated and entered into, and
      “(b) That the defendants-appellees, A. C. E. Transportation Co., Inc., Interstate Truck Service, Inc., and defendants-appellants, Local No. 24 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers and Kenneth Burke, President and Business Agent of said Local and each of them and the successor of each and those acting in concert with said defendants-appellees and appellants are hereby perpetually enjoined and restrained from entering into any combination, arrangement, agreement or stipulation in the future, or the negotiation therefor, the purpose, intent or tendency of which is to fix or determine in any manner the rate to be charged for the use of plaintiff’s equipment, leased by said plaintiff-appellee to the defendants-appellees, A. C. E. Transportation Co., Inc., and Interstate Truck Service, Inc., and
      “(c) That the said defendants-appellees, A. C. E. Transportation Co., Inc., Interstate Truck Service, Inc., and defendants-appellants, Local No. 24 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers and Kenneth Burke, President and Business Agent of said Local and each of them and the successors of each are hereby perpetually enjoined from giving force and effect to Section 32 [SIC] of the Contract between them as is fully set forth in this court’s finding, or any modification or alteration thereof, the import, effect or tendency of which shall attempt to fix the rates and the use of plaintiff-appellee’s equipment or to fix or determine the return for plaintiff-appellee’s capital investment in said equipment.”

      . In Algoma, state law was allowed to operate to restrict a provision of a collective bargaining contract only after it was found after an exhaustive examination of the legislative history of the Wagner Act that Congress intended to leave the special subject of the legality of maintenance of membership clauses up to the States through §8(3) of that Act, 49 Stat. 452. Questions of the nature that we consider today were expressly left open. 336 U. S., at page 312, 69 S. Ct. at page 590.


source: Caselaw Access Project

author: By ALLEN, Chief Judge.

license: Public Domain

text:
    LOMBARD CORPORATION, Appellant, v. QUALITY ALUMINUM PRODUCTS CO., Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 13450.
    Decided December 8, 1958.

      Franklin B. Powers, Youngstown (Donald J. Libert, of Manchester, Bennett, Powers & Ullman, Youngstown, on the brief), for appellant.
    Frank H. Feingold, Max A. Samolar, of Persky & Loeb, Cleveland, for appellee.
    Before ALLEN, Chief Judge, and SIMONS and MILLER, Circuit Judges.
   OPINION

By ALLEN, Chief Judge.

This appeal seeks reversal of a judgment of the District Court finding that defendant, who sold to plaintiff an aluminum extrusion press, had breached the implied warranty of fitness under §1315.16 (F) R. C., and awarding damages therefor.

The material facts are not in dispute and are as follows:

Defendant, a designer and builder of heavy equipment, in 1953 sold plaintiff a hydraulic aluminum extrusion press weighing about 85 tons and having a 1,500 ton capacity. The reasonable or expected life of the machine was ten years. The amount paid was $114,494. The installation of the press at plaintiff’s plant was supervised by defendant’s erecting engineer, who for a week instructed plaintiff’s employees how to operate the press.

The machine is capable of exerting a force of 1,500 tons on a billet inserted therein for extrusion. The operation of the press may be briefly described as follows: an electric motor drives pumps which pump oil through pipes into a cylinder in which a ram or piston moves back and forth. The pressure of the oil against the piston creates a force on the cross-head which moves forward and engages a heated billet, causing the billet to swell and fill the billet container, from which it passes into the die.

Parts of the press particularly important here are the cylinder housing in the middle rear part and a platen located in the front. The force tends to move the front platen slightly away from the cylinder housing. In order to limit this motion four tie rods or columns, each weighing some 3,300 pounds, are located on the machine, two at the top and two at the bottom, extending from the cylinder housing to the front platen. The tie rods combined have a resisting force of 1,500 tons. The various parts of the press must be properly aligned and centered. The faces of the cylinder housing and of the platen must be parallel. Also, the load must be applied on the exact center of the tie rods. Among other things the stem, the billet container and the die must at all times be maintained on the exact center of the press. If concentric loading and proper alignment exist at all times the force will be equally distributed between the four tie rods.

Each rod is threaded at both ends and is attached to the platen by four nuts, the two outside nuts being locked during the operation. The diameter of the rods is 8% inches on the outside and 8 inches at the root of the threads. The rods are constructed of Society of Automobile Engineers 41-40 quality steel. 41-40 is a symbol adopted by the Society of Automobile Engineers to designate a medium carbon alloy steel containing manganese, chromium and molybdenum plus carbon, with a yield point of 70,000 pounds per square inch. The yield point is the critical point at which, due to continued and recurring stresses and strains, the metal takes on permanent deformation and eventually may fracture. The unit load was computed to be approximately 14,900 pounds per square inch of cross-sectional area. It was therefore calculated that the 41.40 steel employed in the rods with its 70,000 pound yield point afforded a safety factor of 4.7 to 1.

Plaintiff introduced evidence that it operated the machine normally in accordance with defendant’s instructions and this was conceded by defendant’s witnesses. For some nine months the press operated satisfactorily and then two of the tie rods broke, the break occurring at the root of the threads where the surface of the nut and the surface of the front platen engage. Defendant’s expert witness stated that the root of the thread is always considered the weakest part of the rod and defendant’s counsel concedes that this is the point where the tie rod would be expected to break.

As defendant was unable promptly to deliver replacement rods and plaintiff had many orders requiring prompt delivery, plaintiff remachined the original rods, shortening them, attaching half of a nut on each end, and replacing the rods in the same location as before. The outside nuts could not be locked, as they were originally, but by maintaining a vigilant check on alignment the press was operated satisfactorily for some ten months, the alignment being adjusted three or four times. Then two of the rods broke, the break again occurring at the root of the threads. It was shown that if one tie rod broke, the press could not function. A new set of rods was built and installed, not by defendant but by another manufacturer. The new installation in all respects, including diameter of the rods, location, etc., conformed to the same design as that of the original machine except for the fact that the new rods were made of S. A. E. 43-40 steel. This has a higher tensile strength than 41-40 steel and it was conceded that it would afford a higher safety factor. Fifteen months later two of the new rods broke, the break once more occurring at the roots of the threads at the face of the platen where the nut meets the platen.

Plaintiff had made known to defendant the purpose for which the machine was to be used, namely, the constant extruding of aluminum, and relied upon defendant’s superior skill and judgment. Therefore plaintiff based its action upon the implied warranty existing in such cas&s, that “goods shall be reasonably fit for” the purpose for which they were bought. Sec. 1315.16(A) R. C. An express warranty of material and workmanship made between the parties at the time of the sale had expired before the first breaking of the tie rods. Plaintifi conceded that there was no substantial defect in the material or workmanship of the rods. In the lower court defendant contended that the express warranty excluded the implied warranty under the terms of the Sales Act and the applicable law. However, the district court held that the implied warranty of fitness was not inconsistent with the express warranty as to material and workmanship and that, therefore, under 81315.16(F) R. C., the implied warranty was in force. See 164 A. L. R. 1346, which states that, generally speaking, the express warranty against defective materials and workmanship “will not be held to exclude an implied warranty of fitness * * John A. Roebling’s Sons Company v. Southern Power Company, 142 Ga., 464, 83 S. E., 138, L. R. A. 1915B, 900; J. B. Colt Company v. Asher, 239 Ky., 235, 39 S. W. (2d), 263; National Cash Register Company v. Layton, 207 Mo. App., 454, 232 S. W., 1091. The court declared in effect that the tensile strength, both of the original and of the new rods, was inadequate to withstand the concentration of stresses at the roots of the threads during normal operation of the press and resulting metal fatigue, and that this constituted faulty design in violation of the warranty of fitness.

We do not discuss at length defendant’s contention below, that the express warranty excluded the implied warranty, for in this court defendant concedes that there may be instances where an implied warranty governs, even though an express warranty of materials and workmanship exists. However, defendant contends that here the express warranty does negative the implied warranty of fitness, §1315.16 (F) R. C., because the defect in design, if it existed, arose from a defect in material or workmanship, causing the rods to break. Freedom from defects in material and workmanship was the subject of the express warranty.

The difficulty with this contention is that no evidence of defective material or workmanship appears. Plaintiff’s admission that the material and workmanship were not defective is supported by the record. A defect in material is a defect in quality. The steel in the tie rods was of excellent quality. A defect in workmanship is a defect in the way some part of the machine is- constructed. The construction of the rods was not shown to be improper.

Design, on the contrary, involves the over-all plan of construction and operation. Here the basis asserted for the action was that, due to faulty design, a press which defendant in open court stated was capable of extruding 1,500 tons for “continuous duty,” was not adequate to execute the purpose for which it was bought. It was claimed that defendant had not properly figured the tensile strength, either in the diameter of the rods or in the type of steel used, necessary -to develop a safety factor high enough so that the machine would withstand the continuous recurring strains and stresses of the extrusion. The district court based its judgment upon this point and substantial evidence supports its conclusion.

The coincidence in the periods which existed between each of the three breaks is significant. The design, the over-all plan of construction and operation, had not been changed after the second break. Also, the over-all plan in effect was the same in material respects even after the first break. The material and workmanship being satisfactory, the design was shown to be connected with the breaks. The selection of the proper diameter for the rods and of the proper type of steel for the rods was, in fact, a part of the design of the machine.

Defendant urges that the district court’s conclusion that the breaks were caused by faulty design is not in accord with the facts. It claims that, since the machine operated satisfactorily for nine months, the condition of unfitness did not exist at the time of the sale, when the implied warranty, if applicable, arose. However, defendant’s own witnesses testified that a condition making for excessive strain might exist for a period prior to the fracture of some part. The breaking might be gradual. If, as found by the district court, the design was actually faulty, this condition existed at the time of the installation, for the diameter of the rods was not changed and the arrangement or plan of the construction in which they operated was not changed, not even when plaintiff secured rods from another manufacturer than defendant.

Substantial evidence, mainly undisputed, supports this conclusion. Plaintiff’s president, Silver, a qualified engineer, examined the rods after the first break. He testified that the rods were sufficiently strong, but the fact that the stresses were tight against the platen face caused a concentration of stress on a very small area, which was not sufficient to stand the stress at that point. He said that the steel in the middle of the rod had a safety factor of “six or seven or eight” but that at the threads there was possibly a safety factor of not more than one and a half to one. In the course of operation the metal, being pushed and pulled, being put under tension and relieved, then again repeatedly put under tension and relieved, became fatigued. Silver pointed out that the outside-layer of fibers carries the maximum load,.that the outside fibers were stretched more than the inside fibers, in case of any eccentric loading or misalignment which always exists, he said, to a very slight degree. He testified that the outside fibers suffer fatigue due to the fact that they are roughly machined; that the rod hangs with no support between the front platen and the rear platen and by deflection bends “a little bit.” The engineer, Silver said, must allow enough safety factor to take into account the fact that the outside fibers become fatigued. The break was caused, in his opinion, because the safety factor allowed for in designing the machine was not adequate to protect against the fractures that were reasonably to be expected from the normal use of the machine. If the threads had been made bigger in diameter at the end, Silver testified, the rods would not have broken. He said the rods should have been about 914 inches in diameter at that point.

This statement was supported by Poleschuk, a sales engineer of the manufacturer who built the third set of rods. This manufacturer produces an extrusion press of 1,400 tons capacity, slightly smaller than the press involved here. Poleschuk said it was the view of his company that a rod of 914 inches was “the minimum size that we could put in.” Defendant itself testified that an increase of one inch at the root of the rod would increase the safety factor by 20% to 25%.

It was shown that a higher grade of steel with more tensile strength would withstand a much heavier stress than the 41-40 steel. Such a material is the 5-H-50 Heppenstahl steel.

While defendant stated- that its design was adequate, it did not specifically controvert the facts upon which plaintiff’s president based his conclusions. Although defendant’s vice president examined the machine after the first break, he said that he did not know what had caused the fracture. The operation was manual, requiring manipulation of seven levers by the operator. Defendant pointed out that, if any lever was operated in wrong sequence or otherwise improperly, misalignment or eccentric loading would result, but no evidence of such occurrences at plaintiff’s plant was presented.

Defendant also urges that the judgment requires it to be an insurer of the operation. This was not the conclusion of the court. It was not disputed that the expected life of the machine was ten years. The court concluded, and defendant concedes, that the time covered by the implied warranty is a reasonable time. In effect the court found that the machine did not operate, in light of all the circumstances, for a reasonable time. It declared that the parties did not contemplate the sale or purchase of a press equipped with tie rods incapable of resisting the stresses of normal operation for more than nine months.

Defendant attacks the court’s holding on this point upon the ground that the contemplation of the parties cannot be resorted to in decision of the question; But the statute specifically makes the contemplation of the parties material, for it provides that the implied warranty of fitness arises where the buyer makes known to the seller the purpose for which the machine is to be used and relies upon the seller’s superior skill and judgment. Bearing in mind the sale price of the press, $114,494, we think the finding was amply sustained by the evidence.

All questions presented have been considered but we deem it unnecessary to discuss them further. The court did not err with reference to the measure of damages applicable to the case presented. Williston on Sales III, Section 613, pages 366-7; §1315.16 R. C.

The judgment of the district court is affirmed.

      . The parties will be denominated as in the court below.


author: By KOVACHY, J.

text:
    HILLTOP REALTY, INC. et, Plaintiff-Appellees, v. SOUTH EUCLID (City) et, Defendant-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 25053.
    Decided January 22, 1960.
    E. A. Plazer, for plaintiff-appellees.
    Chester Nikodym, Thomas M. Callaghan, for defendant-appellants.
   OPINION

By KOVACHY, J.

This is an appeal on questions of law from a judgment entered in the Court of Common Pleas of Cuyahoga County restraining and enjoining the County Board of Elections from preparing ballots for a “referendum relating to Ordinance No. 15-58 of the City of South Euclid for an election to be held on November 3, 1959, or on any' subsequent date.”

The facts were stipulated in the trial court. Only facts essential for our consideration here are stated.

On December 15, 1958, plaintiff-appellees acquired fee simple title to a parcel of vacant land in South Euclid, which property at the time was zoned in the single family use classification under a general and comprehensive zoning ordinance enacted some years before. On March 9, 1959, South Euclid City Council, upon the application of plaintiffs, rezoned the property to a multi-family use classification by amending the comprehensive zoning ordinance. Such amendment is designated Ordinance No. 15-58. All statutory requirements with respect thereto were fully met. This amendatory ordinance was vetoed by the Mayor, but was repassed over the veto by the Council. A referendum petition, proper in statutory form and containing the proper heading and the requisite number of valid signatures of electors of the city of South Euclid as required by statutes relating to initiative and referendum, was then filed with the city auditor. The auditor, as was his duty, certified the same to the County Board of Elections for placement upon the ballot for the general election to be held November 3, 1959, and plaintiffs filed their petition praying that the referendum be enjoined. The trial court rendered the judgment indicated above in favor of the plaintiffs, from which the defendants here appeal.

Defendant appellants claim that the trial court was in error in holding that the amendatory zoning ordinance was not amenable to referendum procedures.

The controlling question presented therefore is: Is a zoning ordinance passed by the Council of a municipal corporation that amends a comprehensive zoning ordinance subject to referendum?

Article VIII, Section 1 of the Charter of the city of South Euclid reads:

“Initiative, Referendum and Recall.

“Section 1. Initiative and Referendum.

“Ordinances and other measures may be proposed by initiative petition and adopted by election, and ordinances and other measures adopted by the Council shall be subject to referendum, to the extent and in the manner now or hereafter provided by the Constitution or the haws of Ohio.” (Emphasis ours.)

We must therefore look to the constitution and the laws of Ohio to determine to what “extent” “ordinances and other measures adopted by the Council” of South Euclid are subject to referendum.

Article II, Section If, Ohio Constitution, reads:

“The initiative and referendum powers are hereby reserved to the people of each municipality on all questions such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.”

The legislative authority of the city of South Euclid — Article II, Section 1, of the Charter — is vested “in a Council of seven members elected at large.” Under §713.07 R. C., the legislative authority of a municipality is empowered to pass on legislation necessary to establish and carry out a comprehensive zoning plan for the municipal corporation and such legislative authority, under §713.10 R. C., is empowered to “amend or change the number, shape, area, or regulations of or within any district * * It seems plain to us that the Council of the city of South Euclid when passing this amendatory ordinance, changing plaintiffs’ property from a single family use classification to a multi family use classification, was concerned with a question authorized by law to be controlled by legislative action. If this be true, such legislative action comes within the purview of Article II, Section If, Ohio Constitution, and is therefore subject to a referendum.

Plaintiffs concede that a comprehensive zoning ordinance is subject to referendum but contend that a zoning ordinance of a city that amends an existing comprehensive zoning ordinance is not a legislative act but rather a matter of administration, since it merely serves to put into execution a previously enacted law, and as such is not amenable to the referendum procedures. They cite a case decided by the Supreme Court of Nebraska, Kelley v. John, 162 Neb. 319, 75 N. W. (2d) 713, in support of this contention. We have read this case. We are neither persuaded by its reasoning nor convinced that the applicable laws of Nebraska and Ohio are analogous, as claimed by the plaintiffs.

We cannot agree that an amendment to a comprehensive zoning ordinance by a legislative body under Ohio law is administrative in nature. The change of the classification of the parcel of land here from a single family use to multi family use, in our view of the matter, was a legislative act of the same nature and character as was the enactment of the original ordinance because:

1. Council was specifically authorized by statutory law to act in the matter with respect to each ordinance;

2. Council was called upon to make and declare a rule of conduct in the use of this particular parcel of land with respect to each ordinance by the exercise of independent discretion and judgment;

3. Council had to determine in each case whether the use classification decided upon promoted the public safety, health, morals, convenience, prosperity and welfare of the city;

4. Council was required to follow the procedures provided by statutory law with respect to each ordinance and the procedures are alike in substance;

5. Each ordinance was subject to the veto by the Mayor.

The Supreme Court in State, ex rel. v. Arnold, 138 Oh St 259, 34 N. E. (2d) 777, states in syllabus two:

“2. A municipal council, acting under §§4366-7 to 4366-11 GC (§713.06 to 713.12 R. C.), may not amend or change the number, shape, area or regulations of, or within, any zoning district without following the procedure provided in §4366-11 GC.”

Under these circumstances, it seems illusory to characterize the enactment of Ordinance No. 15-58 by the Council of the City of South Euclid as administrative and not legislative.

The ordinance lays down a new rule of conduct as to the use of this land which every person, including the officials of the city administration, must follow and in no sense, as far as such land is concerned, does it execute or administer a previously enacted law with respect to it. It was a legislative act performed by a legislative body pursuant to and in accordance with powers granted it by the statutory laws of the State of Ohio.

Whitbeck v. Punk, Auditor, 12 P. (2d) 1019 (140 Ore. 70) (Supreme Court of Oregon), headnate five states:

“5. Test of what is legislative within constitutional provision reserving referendum on municipal legislation to voters of municipalities, and what administrative is whether ordinance makes new law or executes existing law.”

R. I. Home Builders v. Budlong Rose Co., 74 A. (2d) 237 (77 R. I. 147) (Supreme Court of Rhode Island), headnote- one states:

“1. When city council undertakes to enact or amend zoning ordinance pursuant to its delegated police powers under the enabling act, it is performing a legislative function and is governed by provisions of the enabling act.”

Appeal to the Catholic Cemeteries Association, 379 Pa. 516, 109 A. (2d) 537; Campbell v. City of Eugene et al., 116 Ore. 264, 240 P. 418; Hayes v. City of Yonkers, 143 N. Y. S. (2d) 699; Jackson v. Denver Producing and Refining Co., 96 F. (2d) 457; Monahan v. Funk, 137 Ore. 580, 3 P. (2d) 778; People v. Centralia et al., 117 N. E. (2d) 410, 1 Ill. App. (2d) 228; State, ex rel. Hunsicker, v. Pulliam, 37 P. (2d) 417, 168 Okla. 632; 101 Corpus Juris Secundum, 857, Section 102.

The people of Ohio not only reserved the power of referendum for themselves with respect to legislation passed by the General Assembly but also for the people of each municipality on questions which such municipalities may “* * * be authorized by law to control by legislative action; * * *” (Article II, Section If, Ohio Constitution). And the- Supreme Court has stated that these powers should be liberally construed to effectuate the rights so clearly expressed. State, ex rel. v. Commission, 140 Oh St 368, 44 N. E. (2d) 459, syllabus one:

“1. The provisions of the state Constitution authorizing and providing the manner of submission of municipal ordinances to a referendum vote should be so construed as to permit rather than preclude the exercise of the right conferred. The object clearly sought to be attained by such provisions should be promoted rather than prevented or obstructed.”

Moreover, the Legislature of Ohio has passed statutes which specifically confer the right to a referendum on the people of unincorporated territories in relation to amendments and supplements to zoning regulations adopted by the county commissioners. Sec. 303.12 R. C. It would seem from such legislation on the part of the General Assembly that the policy of the State is in accord with an optional referendum with respect to ordinances of a municipality amending a comprehensive zoning ordinance.

It necessarily follows from the above that an ordinance amending a comprehensive zoning ordinance enacted by a municipal legislative body is as clearly subject to a referendum as is the original ordinance.

We hold, accordingly, that the judgment of the trial court restraining and enjoining the Board of Elections from preparing ballots for a referendum relating to Ordinance No. 15-58 of the city of South Euclid is contrary to law and should be and herewith is reversed and final judgment rendered herein for the appellants, and the cause remanded to the trial court with instructions to set the date of the election for such referendum. Johnston v. City of Claremont, 323 P. (2d) 71 (49 Cal [2d] 826) (Supreme Court of California), headnote one:

“1. City Council, in adopting rezoning ordinance which amended general zoning ordinance of city of sixth class by changing plaintiffs’ property from single family residence to commercial acted in a legislative capacity, and rezoning ordinance was subject to referendum,”

Reversed and final judgment, and remanded to set date of election. Exceptions. Order see journal.

SKEEL, J, HURD, PJ, concur.


author: By DULL, J.

text:
    ETTER, Plaintiff, v. VON ASCHEN et, Defendants.
    Probate Court, Miami County.
    No. 40165.
    Decided May 27, 1959.
    Forrest L. Blankenship, Troy, for plaintiff.
    J. Richard Gaier, Piqua, for defendants.
   OPINION

By DULL, J.

This is an action for a declaratory judgment. The parties have requested the court to determine whether a certain set of facts and circumstances established an alleged common law marriage or failed to establish such a marriage.

A certain Florence M. Von Aschen, hereinafter referred to as the deceased, died on or about April 1, 1958, leaving a will. The three defendants are adult children of the deceased. The plaintiff is the alleged common law husband and alleged surviving spouse of the deceased. On or about April 19, 1958, the will of the deceased was offered for probate in the Probate Court of Miami County, Ohio, without notice being given to the plaintiff as required by law to be given a surviving spouse. Thereafter, on or about June 27, 1958, the defendant Roger J. Von Aschen, filed an application to be appointed the executor of the estate of the deceased in the same court again without notice being given to the plaintiff. Then the present action was filed in the Probate Court of Miami County, Ohio.

The plaintiff lived in the home of the deceased in Piqua, Ohio, almost continuously from some time in November of 1949, until the death of the deceased. There were no children born of this union. The plaintiff claims that he lived at this residence during this period as the common law husband of the deceased. The defendants claim that the plaintiff during this period lived there only as a boarder and roomer. Thusly is the pivotal question presented: which was he?

One of the leading cases on common law marriage in Ohio is In re Estate of Redman, 135 Oh St 554. Therein the court set up the elements of a common law marriage and the degree of proof necessary at page 558 of the opinion. “The essential elements of a common-law marriage in this state were announced in the case of Umbenhower v. Labus, 85 Oh St 238, 97 N. E., 832. The following essential requirements for such a marriage are stated in the syllabus of that case: “An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law, and a child of such marriage is legitimate and may inherit from the father.”

So-called common-law marriage contravenes public policy and should not be accorded any favor; indeed, it is quite generally condemned. It is well settled in Ohio that to establish a common-law marriage, all the essential elements of such a relationship must be shown by clear and convincing evidence.”

The later case of Markley v. Hudson, 143 Oh St 163, restates the requirements for a common law marriage. The syllabus of the case states: “1. An agreement to marry in praesenti, made by parties competent to contract, accompanied and followed by cohabitation, as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage. 2. While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.”

The plaintiff was not permitted to testify because of the restriction of §2317.03 R. C., the so-called “dead mans” statute which provides: “A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person except:---”

This court takes the same position as the court in Lynch v. Romas et al, 74 Abs 1, which is set out in Item 1 of the syllabus: “1. In a proceeding for determination of heirship brought by the administrator wherein the defendants are the children of decedent and one claiming to be the surviving spouse by virtue of a common law marriage, such claimant is an adverse party to the heirs and the administrator and is prohibited from testifying as to facts tending to establish the alleged common law marriage where objection is made by the children as heirs of decedent. (Sec. 2317.03 R. €.)”

There is no dispute in the present action that the plaintiff and the deceased were competent to contract. The deceased was a widow whose husband had died sometime prior to November of 1949. There being no evidence to the contrary, it can be assumed that the first marriage of the deceased was a statutory and ceremonial one. There was no evidence that plaintiff had ever been married before.

Further, the evidence is clear and convincing that plaintiff and deceased cohabited as husband and wife. They lived almost continuously at the same residence in Piqua, Ohio, for a period of approximately twelve years.

But the testimony and evidence are somewhat conflicting as to whether or not the plaintiff and deceased were treated as husband and wife and were reputed to be sueh in the community of Piqua, Ohio.

Several witnesses testified that plaintiff and deceased were seen often together in the community driving to church or to the grocery or going fishing or to a bingo game. There was testimony that when plaintiff and deceased went to a grocery store plaintiff paid for the groceries and that on several occasions the plaintiff paid the utility bills for the residence where plaintiff and deceased resided. However, there was no testimony that plaintiff actually attended church with the deceased. One witness testified that the deceased treated the plaintiff like she (the witness) treated her own husband: the deceased referred to the plaintiff as “mister” and ate at the same table with plaintiff. But on cross-examination this witness said that she never considered the plaintiff and deceased as husband and wife. One of the exhibits in the case was a posed studio photograph of the plaintiff and deceased which the deceased told one witness that it “might” be her wedding picture. On the back of the picture this same witness identified the letters “W-E-D” from the words “Wed. Picture from Florence.” However, she failed to identify such letters as being in the deceased’s handwriting. This picture was kept in the residence of the deceased and was seen on different occasions by several witnesses: Another of the exhibits was a plain gold ring similar to a wedding ring, which the deceased wore. But there was no definite testimony as to who gave it to the deceased or when or where or for what purpose. Another exhibit was a gold ring set with a blue stone similar to an engagement ring which both the deceased and the plaintiff wore at different times. But again, there was no definite evidence as to who gave it to either or when or where or for what purpose. One witness testified that the deceased called plaintiff “Butch” and that she had received cards from them signed “Florence and Butch.” But another witness testified that she had received a card from the deceased signed “Florence Von Aschen.” Four neighbors of the plaintiff and deceased (one for twenty years and one for fourteen years) testified that they considered plaintiff a boarder and roomer in the residence of the deceased. One witness who rented a room from the deceased in 1949 testified that when plaintiff first came to the residence of the deceased he came as a roomer and that plaintiff and deceased occupied different bedrooms. One witness who did some work for the deceased (and also for the defendants) testified that the deceased told him that plaintiff was a boarder and not her husband. Further, one exhibit, an automobile club insurance policy of the plaintiff named the deceased as the beneficiary as “Florence Von Aschen” referring to her as his landlady. Still further, three exhibits, the income tax returns of the deceased for the years 1955, 1956 and 1957, were made in the name of “Florence Von Aschen.” The witness who made out these tax returns testified that she always knew the deceased as “Von Aschen.”

The testimony and the evidence as to an agreement of the plaintiff and deceased to marry in praesenti are more conflicting.

There was no direct testimony or evidence of any agreement to marry in praesenti. Much of the testimony and evidence considered as relative to the treatment of the plaintiff and deceased as husband and wife and their reputation as such in the community of Piqua, Ohio, is pertinent to this element of a common law marriage. Especially is this true of the testimony and evidence in connection with the exhibits of the posed studio photograph, the ring similar to a wedding ring and the ring similar to an engagement ring. From such an agreement in praesenti might be inferred. Further, one witness testified that the deceased told her that she couldn’t let “the boys” (meaning the defendants) know everything she did because they would then criticize her and cause trouble. From this, too, an agreement in praesenti might be inferred. The living together of the plaintiff and the deceased in the same residence for approximately twelve years, their eating together at the same table, their being seen together at various times and places in the community, the treatment of the plaintiff as her husband by the deceased (in the opinion of one witness) all form some basis in fact from which an agreement in praesenti might be inferred. But the testimony of the four neighbors to the effect that the plaintiff was considered a boarder and roomer of deceased and the declaration of the deceased that she considered the plaintiff a boarder and not her husband creates an inference that no agreement in praesenti was ever entered into. Further, the fact that the plaintiff named the deceased as Florence Von Aschen in his automobile club insurance policy and referred to her as his landlady again creates an inference of no agreement in praesenti. Still further, the fact that the income tax returns of the deceased were made in the name of Florence Von Aschen creates a definite inference of no agreement in praesenti whatsoever.

Hence, it is the considered opinion of this court that although the parties were competent to contract and cohabited as husband and wife, the evidence falls short of being clear and convincing that they were treated and reputed as husband and wife in the community in which they resided and falls even shorter of being clear and convincing they ever made an agreement to marry in praesenti. As stated by the court in Brastein v. Sedivy, 78 Abs 481, on page 483 of the opinion.

“The evidence of marriage here is not such as would enable the Court to say firmly and with conviction that these people were, or considered themselves to be married. There is entirely too much conflict in the evidence. Too many questions remain unanswered.---”

“There was no mutual agreement, in the present, to assume the obligations as well as the privileges, of marriage. The law recognizing common law marriage is provided primarily to protect the innocent. There are no innocent here. Said law should never be used to establish the survivor of such a relationship as a spouse and this Court cannot so use it in this case.”

Therefore, it is the finding of this court that no common law marriage existed between the plaintiff and the deceased and that the plaintiff is not the surviving spouse of the deceased.

Counsel for the defendants may prepare a judgment entry accordingly.


author: Per CURIAM:

text:
    ADAMS, Plaintiff-Appellant, v. GILMORE, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24783.
    Decided October 7, 1959.
    Francis E. Picklow, H. E. Elliott, for plaintiff-appellant.
    George J. McMonagle, for defendant-appellee.
    (DOYLE, PJ, HUNSICKER, J, of the Ninth District, GRIFFITH,- J, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

The following errors are assigned in the instant appeal:

“1. The decision of the court was contrary to the weight of the evidence.

“2. The decision of the court was contrary to law.”

Upon our examination of the record, we find these claims of error without merit.

It was the right of the trial judge to determine the credibility of the witnesses as evidenced by their testimony, and to draw reasonable inferences therefrom. The burden of proof was, under the pleadings, upon the plaintiff to prove the defendant his debtor, and not upon the defendant to prove a gift of money.

The court’s conclusion that the defendant should prevail, we find to be within the evidence and the law; and, as a consequence, the judgment should be affirmed.

Judgment affirmed.

DOYLE, PJ, HUNSICKER and GRIFFITH, JJ, concur.


author: By SMITH, J.

text:
    LEIPHART LINCOLN-MERCURY, INC., Appellant, v. BOWERS, Tax Commr., Appellee.
    Ohio Appeals, Sixth District, Lucas County.
    Decided April 7, 1958.

      Boggs, Boggs & Boggs, Toledo, for appellant.
    William Saxbe, Atty. Geni., John M. Tobin, Columbus, for appellee.
   OPINION

By SMITH, J.

This is an appeal from a decision of the Board of Tax Appeals affirming an order of the Tax Commissioner, appellee herein, in a sales tax assessment, under the provisions of §5717.04 R. C. The facts before us in the record are undisputed.

On February 5, 1957, appellee made an assessment against appellant in the total amount of $5,738.50, which consisted of a sales tax assessment of $4,990 plus a 15 per cent penalty of $748.50, for an audit period from January 1, 1956, to June 30, 1956. Statutory notice of the assessment was received by the appellant on February 6, 1957. After receipt of the notice of the assessment, and without knowledge or consent of appellant’s president and treasurer, the office manager and bookkeeper of appellant, Robert N. Bare, on March 4, 1957, wrote appellee. In this letter there is set forth the results of his examination of appellant’s sales tax records for the entire year 1956 and determination that a deficiency of $726.64 existed for the year. With the letter he enclosed a check of appellant for that amount. The letter further offers the following explanation:

“The discrepancy in our stamp purchases for the period ending June 30, 1956, was the result of an accounting classification error in our records. An item in the amount of $4,990 was incorrectly classified as prepaid tax stamps and the person preparing the detail for the return being inexperienced failed to reconcile the purchase receipts for the amount shown in the stamp account. In addition, auto sales in the amount of $75,210.00 were incorrectly reported as non-taxable and total sales were over-stated $37,370, said amount representing items of service and parts sales between departments within the organization. The net result of these classification errors was to offset the error in our stamp purchases for the period in question, so that it was not apparent until after the return had been submitted to your department. It is hoped that the foregoing will be sufficient to clarify the discrepancy which resulted in your assessment, — N-646.”

On March 6, 1957, appellee, by letter, acknowledged receipt of Bare’s letter of March 4, 1957, and appellant’s check for $726.64, which letter reads as follows:

“This will acknowledge receipt of your letter along with your check No. 5977 in the amount of $726.64.

“We have applied this amount to your assessment No. F645, which leaves a balance of $5,011.86. If this balance is not paid within thirty days from the receipt of the assessment by you, it will be placed in Judgment and certified to the Attorney General for collection.

“We are enclosing herewith a petition for reassessment, which you may complete, notarize and return to us before the expiration of the thirty-day period from your receipt date of the assessment.

“Hoping this information is satisfactory, we are

“Very truly yours.”

Thereafter, on March 16, 1957, more than thirty days after receipt by the appellant of the assessment, the appellant filed a petition for reassessment on the form provided by the Tax Commissioner, appellee herein. In the space provided for items objected to in the assessment, the following language is observed:

“Our objections have been set forth in our letter of March 4, 1957, a copy of which is in your files. We wish this letter to be attached to this petition and used as our objections.”

On March 20,1957, the Tax Commissioner made the following finding and order:

“This cause came on to be considered upon the records of the Department of Taxation and the Tax Commissioner, being duly advised in the premises, finds that:

“The petition for reassessment filed by the assessee on March 16, 1957, was not filed pursuant to the provisions of §5739.13 R. C., and that said assessment became conclusive on March 9, 1957.

“It is, therefore, ordered that the assessment stand as issued by default as follows:

“Assessment Penalty Total

“Sales $4,990.00 $748.'50 $5,738.50.”

It will be noted that appellant had abundant notice of the time within which to file its petition for reassessment as appears in the printed form of the assessment and again in the letter of the Tax Commissioner quoted above.

The appellee, the Tax Commissioner, based his order on that part of §5739.13 R. C. (126 Ohio Laws, pp. 723, 724), which reads as follows:

“Unless the vendor or consumer, to whom said notice of assessment is directed, files within thirty days after service thereof, either personally or by registered or certified mail a petition in writing, verified under oath by said vendor, consumer, or his authorized agent, having knowledge of the facts, setting forth with particularity the items of said assessment objected to, together with the reasons for such objections, said assessment shall become conclusive and the amount thereof shall be due and payable, from the vendor or consumer so assessed, to the treasurer of the state.”

On April 18, 1957, the appellant filed a notice of appeal to the Board of Tax Appeals from the order of the appellee. Under date of September 30, 1957, the Board of Tax Appeals affirmed the order of appellee upon the ground that appellant “has failed to avail himself of the remedy given by statute to avoid the conclusiveness of the assessment dated February 5, 1957.” It is obvious that the Tax Commissioner had no alternative but to dismiss the purported petition for reassessment which was filed with him subsequent to the 30-day limitation set out in the statute.

The notice of appeal from the order of the Board of Tax Appeals to this court sets forth- the errors complained of, as required by §5717.04 R. C., which are as follows:

1. The decision of the Board of Tax Appeals is contrary to law in affirming the final order of appellee, the undisputed evidence before said board clearly establishing that appellant received no notice of the time and place of hearing on the petition for reassessment filed by it as provided by §5739.13 R. C.

2. The Board of Tax Appeals erred in affirming the final order of appellee when the undisputed evidence clearly established that the amount of the assessment as set forth in the final order of appellee dated March 20, 1957, was erronéous.

3. The Board of Tax Appeals erred in refusing to admit evidence offered by appellant pursuant to the provisions of §5717.02 R. C., application having been made by applicant pursuant thereto requesting that the Board of Tax Appeals order the hearing of additional evidence.

4. The decision of the Board of Tax Appeals is erroneous in holding that the sole question before it on appeal from a final order of appellee was whether or not the petition for reassessment was filed in accordance with the provisions in §5739.13 R. C.

5. The decision of the Board of Tax Appeals was erroneous in that said board refused to order the hearing of additional evidence, application having been duly made therefore by appellant pursuant to the provisions of §5717.02 R. C.

6. The Board of Tax Appeals erred in affirming the final order of appellee, the undisputed evidence showing that the assessment against appellant by appellee was erroneous, the same being based on a sales tax return of appellant which was incorrect and of which facts appellee had knowledge prior to the final order of March 20, 1957.

The assignments of error are all predicated upon the meaning and interpretation to be accorded §§5703.02(E), 5717.02, 5717.03 and 5739.13 R. C.

The powers and duties of the Board of Tax Appeals applicable to the instant case are defined in §5703.02(E) R. C., to wit:

“Exercise the authority provided by law to hear and determine all appeals including appeals from the actions of county budget commissions, decisions of county boards of revision, and actions of any assessing officer or other public official, including appeals from any tax assessments, valuations, determinations, findings, computations, or orders made by the tax commissioner or any correction or redetermination made by him; and hear and determine applications for review of rules of the department of taxation adopted and promulgated by the tax commissioner.”

In §5717.02 R. C., the procedure for appeal to the Board of Tax Appeals from a final determination by the Tax Commissioner of the final assessment is prescribed as follows:

“Such appeals shall be taken by the filing of a written notice to that effect with the board and with the commissioner within thirty days after notice of the tax assessment, reassessment, valuation, determination, finding, computation, or order by the commissioner has been given or otherwise evidenced as required by law. The notice of such appeal shall set forth, or have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the taxpayer of the final determination complained of, and shall also specify the errors therein complained of.

“Upon the filing of such notice of appeal the commissioner shall certify to the board a transcript of the record of such proceedings before him, together with all evidence considered by him in connection therewith. Such appeals or applications may be heard by the board at its office in Columbus or in the county where the appellant resides, or it ' may cause its examiners to conduct such hearing and to report to it their findings for affirmation or rejection. The board may order the appeal to be heard upon the record and the evidence certified to it by the commissioner, but upon the application of any interested party the board shall order the hearing of additional evidence, and it may make such investigation concerning the appeal as it deems proper.”

With reference to the decisions of the Board of Tax Appeals, §5717.03 R. C., provides in part as follows:

“The decisions of the board may affirm, reverse, vacate, or modify the tax assessments, valuations, determinations, findings, computations, or orders complained of in the appeals or applications determined by it, and its decisions shall become final and conclusive for the current year unless reversed, vacated, or modified as provided in §5717.04 R. C.

That part of §5739.13 R. C., chapter under the heading of Sales Tax, quoted above, prescribes the procedure whereby the vendor may file a petition for reassessment with the Tax Commissioner, and unless such petition for reassessment is so filed as provided, the “assessment shall become conclusive.”

The appellant did not file the appeal as afforded by §5717.02 or by 5739.13 R. C. More than thirty days elapsed after notice of assessment, before any steps were taken under either section. It appears that appellant elected to follow the procedure provided by §5739.13 R. C., and the petition for reassessment was not filed by appellee within thirty days after notice of assessment.

The courts of Ohio have fully recognized as fundamental and elementary that a litigant has no inherent right of appeal or review, that there is no common law right of appeal, which right is purely statutory, and that to have jurisdiction of an appeal provisions of law providing the method of appeal must be complied with. Gregg v. Mitchell, 99 Oh Ap 350, 133 N. E. 2d 645; Atsaroff v. Evatt, Ohio Bd. of Tax App., 9 Ohio Supp. 141; In re Wilson, 14 Abs 417; Auditorium Realty Co. v. Hussman, 14 Abs 727; In re Mahoning Valley Sanitary Dist., 161 Oh St 259, 119 N. E. 2d 61; American Restaurant & Lunch Co. v. Glander, 147 Oh St 147, 70 N. E. 2d 93.

The Department of Taxation is an administrative agency and is a tribunal of limited jurisdiction. Administrative officers and agencies have no common-law or inherent powers other than have been granted to or conferred on them by law. As a creature of statute, it is without power to exercise any jurisdiction beyond that conferred by statute. The applicable sections of the Revised Code set out above are statutory, jurisdictional prerequisites as to the time for doing an act, and without compliance therewith the administrative agency is without power or authority. The jurisdiction of such officials and tribunals must be invoked in the manner prescribed by statute, and their proceedings must be in accordance with valid statutory requirements. They are authorized to act only in the mode prescribed by statute and can not dispense with the essential forms of procedure which condition their statutory powers, or have been prescribed for the purpose of investing them with power to act. 1 O. Jur. (2d), 487, 488, Section 88; 73 C. J. Public Administrative Bodies and Procedure §§48, 49 and 74, pp. 367, 369, 400-401; American Restaurant & Lunch Co. v. Glander, supra; Zier v. Bureau of Unemployment Compensation, 151 Oh St 123, 84 N. E. 2d 746.

The case of American Restaurant & Lunch Co. v. Glander, supra, 147 Oh St 147, 70 N. E. 2d 93, involved the provisions of §5611 GC, now §5717.02 R. C., here under consideration, as to procedural steps. In the first paragraph of the syllabus, it is held:

“Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred.”

And, in the second paragraph of the syllabus, it is held:

“* * * Compliance with these specific and mandatory requirements governing the filing of such notice [of appeal] is essential to confer jurisdiction upon the Board of Tax Appeal's.”

The American Restaurant & Lunch Co. case was approved and followed in Zier v. Bureau of Unemployment Compensation, supra, involving statutory requirement in another administrative agency, as stated in the first paragraph of the syllabus, to wit:

“An appeal, the right to which is conferred by statute, can be perfected only in the mode prescribed by statute. The exercise of the right conferred is conditioned upon compliance with the accompanying mandatory requirements.”

In the second paragraph of the syllabus it is reiterated that compliance with mandatory statutory requirements “is essential to invoke jurisdiction.” See Moore v. Foreacher, 156 Oh St 255, 102 N. E. 2d 8; State, ex rel. Byrd v. Sherwood, 140 Oh St 173, 181, 42 N. E. 2d 889; Thirst Quenchers of Ohio, Inc v. Glander, Ohio Bd. of Tax App., 68 N. E. 2d 671.

Both counsel in this case cite the case of Daiquiri Club, Inc. v. Peck, 159 Oh St 52, 110 N. E. 2d 705, wherein the provisions of what is now §5739.13 R. C., came within the purview of the court. Neither counsel has cited, nor has any case come to the attention of the court, wherein particular facts are presented as to the legal consequences of failure to file a petition for reassessment with the Tax Commissioner within thirty days after notice of assessment. The Daiquiri Club case, however, does emphasize the procedural aspect of that section in the first paragraph of the syllabus as follows:

“The provision of §5546-9a GC [now §5739.13 R. C.], that a sales tax assessment against a vendor ‘shall become and be deemed conclusive' unless within thirty days after service of notice of such assessment such vendor files a petition setting forth the items thereof objected to and the reasons for such objection, is a limitation of time within which an aggrieved vendor may protest such assessment and seek further consideration thereof by the Tax Commissioner.”

In the opinion, 159 Oh St 55 and 56, 110 N. E. 2d 705, Matthias, J., states:

“The above-quoted portion of §5546-9a GC [now §5739.13 R. C.], by its clear terms relates only to matters of procedure. Following the statement of the requirement as to giving notice of the assessment is a specific statement of what must be done by the vendor if he would avoid the conclusiveness of that assessment. That portion of the section relates only to the procedure which may be pursued by the vendor. He must within thirty days after service of notice of that assessment file a petition setting forth the items of the assessment objected to, together with the reason for his objection. If the vendor does not pursue a remedy thus proffered him the assessment is conclusive. * * *”

Neither appellant’s letter of explanation, not notarized, nor the attempted incorporation of the same in the petition for reassessment, filed too late, can be construed to be a compliance with the statute. The appellee having no jurisdiction, appellant was not entitled to a notice of a hearing by appellee making such order.

Nothing in the record indicates that appellant was conferring with counsel with reference to its timely filing of the notice of appeal within thirty days of notice of tax assessment as provided by §5717.02 R. C., or a petition for reassessment with the Tax Commissioner within thirty days after notice of assessment as provided by §5739.13 R. C. Failure of appellant to comply with the provisions of either section precluded the required jurisdiction of the Tax Commissioner and also of the Board of Tax Appeals. Therefore, the order of the Tax Commissioner, and the' affirmance thereof by the Board of Tax Appeals, was proper in denying hearing or consideration on the merits, if any, of appellant’s claim. This conclusion disposes of all assignments of error as not being well taken.

The decision of the Board of Tax Appeals is affirmed.

DEEDS, PJ, FESS, J, concur.