text:
    SCHUMACHER, Plaintiff-Appellant, v. SMITH et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Monroe County.
    No. 328.
    Decided January 16, 1950.
    Matz & Matz, Woodsfleld, for plaintiff-appellant.
    Moore & Moore, Woodsfleld, for defendants-appellees.
   OPINION

By PHILLIPS, PJ.

Plaintiff is the owner in fee simple, and, by a series of assignments, defendants on May 25, 1945, became the assignees of leases to nine oil and gas producing wells on two parcels of land, of which defendants are now in possession, situated in Monroe county, Ohio, containing 51 and 80 acres respectively, which plaintiff’s predecessors in title leased originally on April 22, 1905, and June 29, 1905, and on which lands since those dates gas and oil wells situated thereon have been in continuous operation.

The original three year lease provided, among other things, that during that period of time, and as long thereafter as oil and gas was produced, lessees, their heirs and assigns, should deliver to lessors, their heirs and assigns, in pipe lines one eighth of all oil produced thereon, and pay the owners $200.00 per annum for each gas well from which gas was marketed; and that lessees were to have sufficient fuel gas to operate such leases, and lessors sufficient gas for domestic purposes.

Plaintiff sued defendants in the court of common pleas for $2400.00, the alleged amount due at $200.00 per annum for gas produced on four wells for the three years since they acquired such leases; and by supplemental petition sought a judgment for an additional $800.00 gas rental allegedly due for another year.

The jury returned a verdict for the defendants, upon which the trial judge subsequently duly entered judgment. Plaintiff appealed from that judgment to this court on questions of law.

The owners of the land never received, and never made claim for, any compensation for gas produced by any well during the existence of such lease, although they were in possession of all facts relative to the operation of the wells during the •existence of such lease that the operators thereof possessed.

There is evidence, properly admitted, that during the time ■defendants operated the wells, which were the subject of litigation in the trial court, which is the only time in which we are interested in this appeal, that for a period of many years such wells could be, and now are being, operated on a financially successful basis as oil wells only by shackling them with other wells, all totaling forty-eight wells, which is, and was, the common practice in Monroe County, and which practice was used by their assignors; that the gas they produced, none of which was marketed, was commingled in a common line with gas from other wells owned and operated by defendants, which is used for the operation of all such wells, including plaintiff’s, and for heating and lighting buildings, other than those of the plaintiff situated on the leased lands; that defendants’ wells other than those which were the subject of litigation in the trial court produced as much or more gas as such wells did.

On the question of custom this court in the case of Weisant v. Follett, 17 Oh Ap 371, said:—

“When the term of a lease was to continue ‘as long as oil may be found in paying quantities,’ and the shackling of a large number of wells together, located on different leaseholds, operated by a single power plant, was in general use in the vicinity at the time of the making of the lease, it may toe presumed that the parties contemplated such use and test, and their rights may be so determined.”
In that case, speaking for the court, Judge Roberts said: “The plaintiff lived upon the leased land and saw the lessee and the succeeding owners install and continue in operation this method of pumping, without complaint,” as did the appellant in this appeal until he sued defendants in the court of common pleas.

This court followed the reasoning of Judge Roberts in the unreported Monroe County case of Woodsfield Building and Loan Company, a corporation, appellant, v. George M. Thornberry, William H. Pickens, O. Lucas, and Alonzo Bartenschlag.

It is the duty of counsel for plaintiff to direct the attention of this court by oral argument, or brief, to the specific evidence they claim was admitted to defendants’ prejudice. However, in this case we have read the reasonably lengthy bill of exceptions, and carefully noted all objections made “by counsel for plaintiff,” and we find no error prejudicial to plaintiff, as he urges, in the admission of evidence of custom and common practice in the operation of oil and gas wells in Monroe County.

In his second assigned ground of error plaintiff contends that the trial judge erred to his prejudice in refusing to charge the jury in writing before argument that:—

“2. A ‘custom’ as applied to usage which is embodied in a contract is something which has the force and effect of law by usage and consent of the people, and it must be uniform and universal within its sphere of action and so ancient that the memory of man runneth not to the contrary. (Swan v. Churchill, 155 Ill. App. 505.)
“3. You are instructed that loose, variable custom or discretionary practice does not rise to the dignity of a ‘custom’ so as to control interests of parties to a contract if usage leaves some material element to right of exercising options or decisions of one of the parties. (Martin v. State Highway Board, 180 S. E. 614, 616; 50 Ga. App. 856; King v. Shelton, 252 S. W. 194, 195.)”

Without further word under the evidence in this case, which has been read and studied carefully, we conclude that the trial judge did not err to plaintiff’s prejudice in refusing to so charge the jury.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, BUCKLEY, J, concurs in judgment.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    STATE ex MELVIN, Relator-Appellee, v. JONES, etc., et, Respondents-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4418.
    Decided May 25, 1950.
    Waymon B. McLeskey, Columbus, for relator-appellee.
    Hon. Herbert S. Duffy, Atty. Genl., Joseph F. Ford, Asst. Atty. Genl., Robert A. O’Neil, Asst. Atty. Genl., Columbus, for Commissioners, respondents-appellants.
    Ralph J. Bartlett, Pros. Atty., Harry Dunn, Asst. Pros. Atty., Columbus, for Franklin County Child Welfare Board.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, Ohio, allowing a writ of mandamus against the respondents, Gertrude Jones and Carl Smith, Civil Service Commissioners of the State of Ohio, directing them to change the final grade of said relator, Carl Melvin, on a Civil Service examination and to amend the eligibility list of applicants for the position of Superintendent of the Children’s Home of Franklin County, Ohio, as certified by the State Civil Service Commission. Relator also sought, and the trial court issued, an injunction against the respondents, the members of the Franklin County Child Welfare Board, enjoining them from considering the eligibility list of applicants certified by the State Civil Service Commission and from making an appointment to that position. After the appeal was perfected, a like restraining order was issued by this Court.

The respondents-appellants contend that the trial court erred in finding that relator should be given credit for six and one-half years of farm experience. The examination was in three parts: Experience, Practical Questions and Oral. On the experience phase of the examination the relator was given credit for six years and seven months as Superintendent of the Columbus Workhouse and Franklin County Children’s Home. At both institutions farms were operated and the trial court found that the relator should have been given credit for his farm experience at these institutions and that the refusal constituted arbitrary action on the part of the Commissioners. In point of time the farm experience for which relator claims credit ran concurrently with his experience as superintendent of the institutions, for which full credit was given. As superintendent the relator was required to give time to many different types of institutional work, viz.: administration, farm, hospital, purchasing, plumbing, child care, child placement, etc. These are incidental functions of the institutions which would necessarily fall under the direct or indirect supervision of the superintendent. Relator contends that his service as superintendent at the institutions should be broken down into several different types of experience and that he is entitled to credit for each type of experience. If this were done a duplication of credits would result. We do not believe that an experience credit can or should be allowed on this basis. The duties of a superintendent of an institution such as a workhouse or children’s home are many and varied and it is not an exercise of arbitrary power to refuse to allow credit for each and every phase of work incident to his duties as superintendent, in addition to a credit for experience as a superintendent. The judgment of the trial court was erroneous in finding that the relator was entitled to credit for farm experience and also in determining that the relator was entitled to an additional grade of 8.75% on the experience phase of the examination. If an additional grade should have been given the Commission is entitled to exercise its discretion, taking into consideration various factors, in determining the grade. The court cannot substitute its judgment for the judgment of the Commission in a matter in which the Commission is permitted to exercise a broad discretion.

The appellants contend that the court erred in finding that the grade given relator by one of the three examiners on the oral phase of the examination should be eliminated as being arbitrary and. of no value and that the grade for such oral examination should be computed by using only the grades of the other two oral examiners and further that the relator was entitled to a grade of 90% on the oral phase of the examination. The record shows that the ratings given relator by the oral examiners were 55, 44 and 25. The grade on the oral examination is ascertained by combining the ratings of the three oral examiners. The grade of the relator on the oral examination was 74.58%. The trial court found that the lowest rating (25) should be entirely eliminated as being arbitrary and of no value and that the grade for the oral phase should be computed by using only the two highest ratings; that relator was entitled to a grade on the oral examination of 90%. To so compute the grade of the relator was certainly unfair to other examinees whose grades were computed by averaging the three ratings. The disparity in the ratings given relator by the three examiners does not in itself show good cause for the elimination of any one of the ratings in computing the grade. It would be just as logical to eliminate the highest rating and compute the grade on the two lowest ratings. The record shows that a like disparity between ratings exists with respect to other examinees. There is no factual basis for concluding that the oral examiner who gave relator a rating of 25 abused his discretion. On this issue the judgment is erroneous.

For their third and fourth assignments of error the appellants claim the court erred in finding that the Commissioners exercised arbitrary power and abused their discretion in giving greater weight to the written phase of the examination than that given to the experience phase of the examination, and in finding that each of the three phases of said examination, to wit: experience, oral and written, should be given equal value in arriving at relator’s final grade. The fact that the-values given to different phases of the examination varied does'.not ‘constitute an exercise of arbitrary power or show an ‘ abuse of discretion. In such matters the Commissioners exercise a broad discretion. So long as their discretionary powérsare fairly and reasonably exercised the court will not intervene to substitute its judgment for that of the Commissioners.' Five points were given for practical questions, three for oral and two for experience. In our opinion the Commissioners did not act arbitrarily or abuse their discretion in determining the points allowed for the three phases of the examination. The judgment of the trial court on these two issues was'erronéous.

-Finally, for their fifth, sixth- and seventh assignments of error appellants contend that the trial court erred in ordering and directing the Commissioners to change the final grade of the relator from 65.97% to 93.66%, and to amend the eligibility list accordingly; that the judgment is contrary to law; and other errors apparent on the face of the record. Because of the position taken on other issues already discussed, it necessarily follows that the judgment of the court in directing the Commission to change the grade was erroneous; and therefore the judgment was contrary to law. No other errors apparent on the face of the record are brought to the attention of the Court.

The relator, not having received a passing grade of 70%, was not entitled to an additional per cent of his total grade for military service. See. 486-10 GC.

The relator-appellee has filed within rule assignments of error as authorized by §12223-21a GC, which must be passed upon in the event the judgment is reversed in whole or in part. The appellee claims the court erred in finding that the refusal of the Commission to permit relator to inspect the examination papers of other applicants was improper but not prejudicial to the relator; in finding that there is no way to determine whether the time allotted to the relator in which to take the oral examination was or was not prejudicial to him; in finding that the final grade of relator should be 93.66% whereas, in fact, said court should have found that said grade was such as to place said relator among “the top three applicants”; in failing to find that in refusing to permit the relator to see his own papers the Commission was guilty of conduct prejudicial to relator; in failing to find that in ignoring the protest and supplement thereto filed by the relator the Commission was guilty of conduct prejudicial to relator; that the aforementioned conduct on the part of the Commission amounted to a taking of relator’s property without due process of law, and a denial to him of the equal protection of the law within the meaning of Article I, Sections 1 and 19, of the Ohio Constitution, and the Fourteenth Amendment of the Constitution of the United States.

Several of the errors assigned by the appellee in a large measure have been disposed of in our rulings on the issues raised by the appellant and we do not deem it necessary to discuss categorically each error assigned by appellee. We approve the judgment of the trial court on the matters here raised by the appellee and find no errors assigned by the appellee well made.

The relator was entitled to examine his own and the papers of other applicants under Section 7 of Rule 5 of the Rules and Regulations of the Commission. However, there is a conflict in the evidence as to what happened when the request was made. The trial court could not find, and we are unable to find, wherein the relator was prejudiced by the act of the Commission in this respect. There is also some conflict in the evidence regarding the time allotted the relator in taking the oral examination. Under the state of the record we cannot find that the relator was prejudiced. Likewise, we fail to see how the relator was prejudiced by failure of the Commission to act on his protest. In our opinion the relator’s constitutional rights have not been violated.

The motion heretofore filed on behalf of the appellants-respondents to vacate the restraining order heretofore issued by this court is hereby sustained.

Judgment affirmed in part and reversed in part.

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


author: By RANDALL, J.

text:
    SIDELL, In re.
    Common Pleas Court, Franklin County.
    No. 171785.
    Decided December 30, 1948.

      Roscoe R. Walcutt, Alfred J. Henney, Columbus, on behalf of the appellant.
    Richard W. Gordon, City Atty., Columbus, on behalf of the appellee.
   OPINION

By RANDALL, J.

This case is an appeal on questions of law from an order of the Civil Service Commission of Columbus, Ohio, sustaining the order of the appellee, Charles C. Cole, Director of Public Safety, cancelling the alleged temporary appointment of appellant to the position of captain.

Since the facts were well summarized in the brief of appellee, and inasmuch as the facts are really not in dispute, we adopt the statement of facts in said brief, as follows:

As a lieutenant in the Fire Department, Sidell took and passed a promotional examination for captain and was placed on an eligible list. This list became effective on April 22, 1943, containing twelve names. Sidell was twelfth on such list.

Ordinance No. 37-45, in effect during the period of time involved in this appeal, provided for 36 captains. As of April 1. 1945, all 36 positions had been filled by appointment. Thirty-four of these captains were on active duty and two, Barr and McDonald, had been granted leaves of absence by reason of entry into the armed forces. On April 1, 1945, two lieutenants, Raymond Ely (originally 11th on eligible list) and Sidell (originally 12th on eligible list) were appointed temporary captains. As shown by exhibits B-l, B-2, B-3 and B-4, the certification of the Civil Service Commission and the appointment of Sidell were only for the temporary position of captain because of the absence of the inclumbent due to military service. After the appointments of Ely and Sidell there were 36 permanently appointed captains and 2 temporary captains, 2 of the permanent captains being absent from their duties due to military service.

On April 12, 1945, a vacancy in the permanent rank of captain was created due to the honorable discharge of Max Stuart. On April 21, 1945, Ely, who had been serving as temporary captain and who originally had stood 11th on the eligible list, was appointed to fill this vacancy.

On April 22, 1945, the eligible list for captain, then containing only the name of Sidell, having been in existence for two years, expired by virtue of state statute.

On April 22, 1945, James B. Logan was given an emergency provisional appointment as temporary captain to fill the temporary position formerly held by Ely. After this appointment there were again 36 permanently appointed captains and 2 temporary captains, one of the latter being provisional.

On May 20,1945, another vacancy was created in the permanent rank of captain due to the honorable discharge of Walter B. Parysch. This vacancy arose subsequent to the expiration of the eligible list, such list having expired on April 22, 1945. This vacancy was not filled, leaving 35 permanently appointed captains and 2 temporary captains.

On November 16, 1945, Barr returned from military service.

On January 18, 1946, Logan, who on April 22, 1945, had been given an emergency provisional appointment as a temporary captain, was honorably discharged.

On January 22, 1946, McDonald returned from military service, completing the return of all captains absent with military leave.

On March 1, 1946, Sidell was dropped as temporary captain by order of the Director of Public Safety of February 28, 1946. (Ex. F-l).

In summary, at all times until the honorable discharge of Parysch on May 20,1945, there were, including the two captains on military leave, 36 regularly appointed permanent captains completing the quota authorized by ordinance. After May 20, 1945, there were 35 such permanent captains with 36 being authorized by ordinance, but there, was no existing eligible list for promotion to captain, such list, then containing the name of Sidell only, having expired on April 22, 1945. From April 21, 1945, to April 22, 1945, Sidell. was the only name remaining on the eligible list, Ely (No. 11 on list) having been appointed a permanent captain on April 21, 1945. No vacancy occurred between Ely’s appointment on April 21, 1945, and the expiration of the eligible list the next day.

Appellant contends, first, that as a matter of law his appointment as captain was a permanent appointment, subject to cancellation only upon the return of the person in the military service whose position he had been appointed to fill. Secondly he contends that the Director of Public Safety was without power -to demote him from his position as captain by reason of the return of a veteran to his former position after said veteran had already been restored to his former position.

Appellee on the contrary insists, first, that no vacancy existed in the permanent rank of captain at any.time when Sidell stood at the head of any eligible list; and Sidell was never appointed to the permanent rank of captain, and secondly, that even if Sidell had been appointed, to the permanent rank of captain, the return from military service of the only two incumbents in said service, would have necessitated his reduction to lieutenant.

We will briefly state our conclusions on" the issues thus made by the parties in their respective briefs. In form, at least, the appointment of appellant to the captaincy was temporary in nature. The certification by the Civil Service Commission of his name was for “vacancy due to military leave,” indicating that the permanent position was still held by the one in military service, else the term “leave” would not have been employed.

Furthermore, the second paragraph of the letter from the director, advising appellant of his appointment, very definitely limited the appointment to a temporary one in the following words: “This appointment made from municipal civil service certification No. 387, is a temporary one due to the absence of an incumbent in that position in the military service.”

It is claimed, however, that as a matter of law under the circumstances the appointment had to be and was permanent subject to being vacated upon the request of the returned veteran if no other permanent position as captain was open when he returned. On the other hand, appellee cites ordinance No. 500-42 of the city of Columbus, which provides that employes who enter the military service shall be granted a leave of absence for the duration of the emergency and that appointments to fill their position shall be temporary and only for the period during which such employees on.such leave are serving in the employ of the United States during the national emergency.

This ordinance further provides that said temporary appointees shall be returned to their original positions at the end of said leaves of absence. The ordinance further provides that such persons so appointed to fill vacancies of persons on leave of absence in the military service shall hold their positions only until the end of the period of leave of absence from which such vacancy resulted and such employe returns to his position.

Appellant contends that ordinance No. 500-42 is void for the reason that it is in conflict with the state civil service laws and §486-16a GC relating to civil service employes absent in the military service.

Apparently in making the appointments to fill vacancies because of military absence, the Director of Public Safety did follow the provisions and terminology of the ordinance above referred to. Furthermore, we recognize the principle that any legislation of a city pertaining to the appointment of members of a fire department which is in conflict with the state law is void and of no effect. However, if the ordinance is but an interpretation of the state law and does not offend against the provisions thereof, the manner and form of the appointment and the subsequent demotion of appellant, if not in violation of the statute, would be valid notwithstanding the particular words which were employed in the certification and the appointment.

The objective of both the state legislature and the city council in enacting the statute and ordinance respectively was to guarantee that when the veteran returned his position would be open and available to him if he desired it. In our opinion there is no essential difference between the statute and the ordinance in so far as the provision for appointment to fill the vacancy is concerned. The so-called permanent appointment by the terms of the statute was not in fact permanent, but subject to cancellation upon the return of the veteran and upon his request. Furthermore, the state law provides that when the veteran has been restored to his position, the former incumbent who hasn’t entered the military service shall be demoted to the next lower rank and the youngest classified employee in point of service in the next lower rank shall be demoted and so on down until the youngest employe in point of service has been reached, who shall be laid off, if necessary.

The words “shall be demoted” are mandatory in character and in our opinion may not be considered to mean that the appointing authority may in the alternative permit the former incumbent to remain in a like position and with like rank if there is a vacancy. That might have been provided by statute, but it was not. Appellant, however, contends that the statute provides in effect that the former incumbent shall be demoted only if necessary. He quotes in part §486-16a GC, and would construe the antecedent of the words “if necessary” to be the words “shall be demoted to the next lower rank.” However, the more reasonable construction of the statute is that the antecedent of said words “if necessary” are the words immediately preceding, to wit, “who shall be laid off.” This interpretation is not only in accordance with proper legal rules of construction as pointed out in Stevens v. Illinois Central Railway Co., 306 Ill. 370, 137 N. E. 859, cited by appellee, but to construe it otherwise would do violence to the plain context. The words “if necessary” would be awkward and disjunctive if construed as referring to the mandatory words “shall be demoted to the next lower rank.”

It appears, therefore, that the plain duty of the director was to follow the statute and demote the appellant or appoint him to a vacancy as captain if he was in a position on. an eligible list to be so certified. The eligible list, however,, had expired when the first vacancy occurred after appellant’s; temporary appointment. At no time prior to the discharge of Captain Parysch was appellant at the head of an eligible list for appointment as captain and at that time the entire eligible list, including the appellant, had expired.

Since the state law provided not only that the appointment should be subject to cancellation upon return of the veteran, but that upon the return of the veteran, the person holding his position should be demoted to the next lower rank, it would seem that although the statute does not employ the word “temporary,” that nevertheless by the very terms of the law it was temporary in character. The mere fact, therefore, that the city ordinance characterized the appointment to fill such a vacancy as a temporary appointment is unimportant. There is in fact no irreconcilable conflict between the ordinance and the statute since by the terms of both, the appointment to fill a position in the civil service because of military absence was in fact temporary.

What we have said with reference to the nature of the appointment in question is equally applicable to the second contention of appellant that when the veteran has returned and has been restored to his position, there is then no authority to demote him. As we have demonstrated from the express language of the statute, there was not only authority to demote the appellant, but a specific mandatory requirement that he be demoted. The words “if necessary,” as employed in the fifth paragraph of §486-16a GC, plainly refer back to the words “until the youngest employee in point of service has been reached, who shall be laid off.”

Furthermore, if, in fact, the city ordinance under which appellant was appointed to an alleged temporary position was invalid, it would then be reasonable to assume that no valid appointment of any character was in fact made.

The record discloses also that the appellant was allowed to serve as captain for a period of more than a month after the time when he should have been demoted because of the return of the veteran to his position. This fact in our opinion does not operate to cause the temporary appointment to ripen into a permanent one.

In conclusion, we find no error in the proceedings of the appellee, the Director of Public Safety, cancelling the appointment of appellant as temporary captain, and the same will be affirmed.

Since appellant and appellee have agreed that the decision in this case shall operate as a decision on like appeals in ■cases numbers 171,783, 171,784 and 171,786, appropriate journal ■entries may be presented sustaining the order of the director in said cases, as well as in the instant case.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. JOHNSON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2093.
    Decided May 20, 1950.

      Mathias H. Heck, Pros. Atty., William H. Wolff and Lloyd H. O’Hara, Asst. Pros. Attys., Dayton, for plaintiff-appellee..
    Jacobson & Durst, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

An application for rehearing has been filed in this case, without suggestion as to any particular question which was considered in our original opinion or the citation of any authority. In this situation under our present rules effective January 1, 1949, an application for rehearing is not appropriate. Our interpretation of this rule and the conditions under which we will entertain the application are set out in Nickerson v. Nickerson, 85 Oh Ap 374, Ohio Bar, November 14, 1949. Inasmuch as it is not contended that we failed to pass upon all questions raised in the assignments of error, or that we overlooked any applicable and controlling authority, there is nothing to consider on the application' and it will be denied.

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

ON MOTION FOR AN ORDER

No. 2093. Decided August 14, 1950.

Mathias H. Heck, Pros. Atty., Lloyd H. O’Hara, Asst. Pros. Atty., Dayton, for plaintiff-appellee.

Herbert M. Eikenbary, Dayton, for defendant-appellant.

By WISEMAN, J:

Submitted on motion of defendant for an order suspending the execution of sentence and admitting the defendant to bail “during the pendency of his appeal unto the Supreme Court of Ohio, he having duly filed notice of said appeal together with the requisite motions to perfect said appeal in said tribunal.”

It has been held that the Court of Appeals has discretionary authority to suspend sentence pending appeal in that Court, but no original authority to fix bail on appeal after conviction. State v. Cook, 70 Oh Ap 1, 44 N. E. (2d) 474; State v. McGee, 13 O. O. 123, 27 Abs 578, 31 N. E. (2d) 171. These cases were decided before the enactment of §13459-8 (a) GC, which provides as follows:

“The court of common pleas, court of appeals, or supreme court of Ohio, or any judge thereof, to which court an appeal is taken from an inferior tribunal, shall have the same power and authority to suspend the execution of sentence during the pendency of such appeal and admit the defendant to bail as is provided for by law in respect to said inferior tribunal.” c

Under this section the Court of Appeals, or a judge thereof, is given power and authority to suspend the execution of the sentence and admit the defendant to bail “during the pendency of such appeal.” The words “during the pendency of such appeal” refers to the pendency in the same court in which the suspension of sentence and admission to bail is sought. The appeal must be pending, otherwise the court lacks power and authority to suspend the sentence or admit to bail.

Is the appeal pending in this Court? The defendant was duly tried, convicted and sentenced in the Common Pleas Court for the crime of assault with intent to commit rape. An appeal was taken to this Court which, on the 21st of June, 1950, affirmed the judgment. A mandate was issued to. the Common Pleas Court for execution of judgment. Notice of appeal to the Supreme Court has been duly filed.

After a case is remanded to the trial court, the reviewing court is without jurisdiction to entertain a motion to suspend the sentence and admit the defendant to bail. The appeal is no longer pending in the reviewing court. New York Central Rd. Co. v. Francis, 109 Oh St 481, 143 N. E. 187; C. E. McCune Co. v. Warndorf, 55 Oh Ap 279, 283, 9 N. E. (2d) 709; McDowell v. State, 33 Oh Ap 319, 322, 169 N. E. 463. See also Vol. 2, O. Jur., Part 2, page 1772, section 950. The rights of the defendant under such circumstances are controlled by §13453-2 and §13459-8 GC.

Motion overruled.

MILLER, PJ, and HORNBECK, J, concur.


author: By McClelland, pj.

text:
    BERGER, Estate of, In re; CLAYTON, Exr., Plaintiff, v. UNITED STATES OF AMERICA, WASHINGTON, D. C., et.
    Probate Court, Franklin County.
    No. 129770.
    Decided June 13, 1950.
    Guy Martin, Columbus, for Guilford T. Clayton, executor.
    Thomas C. Flanigan Jr., Asst. Atty Geni., Loren G. Windon, Asst. U. S. Attorney, Columbus.
   OPINION

By McClelland, pj.

This matter is presented to the Court on an Application for Authority to Distribute the remainder of the Estate of the deceased. By agreement of the parties a Statement of Facts has been submitted upon which facts the Court is asked to determine who is entitled to a small amount of money representing the amount foi distribution in the estate of the decedent. The pertinent facts are as follows:

Daniel Berger and Angie Berger were husband and wife. On or about the 5th day of July 1938, the said husband and wife having qualified to receive assistance under the old age pension law of Ohio, and being the owners of the property hereinafter mentioned, executed a deed to said property which contains the following language:

“KNOW ALL MEN BY THESE PRESENTS: That Angie Berger and Daniel Berger, Husband and Wife, of the Township of Clinton, County of Franklin and State of Ohio, in consideration of the money to be paid to Angie Berger and Daniel Berger, as a recipient of aid for the aged, as provided in §1359 GC, et seq., by the Division of Aid for the Aged in the Department of Public Welfare of the State of Ohio, through the Division of Aid for the Aged of Franklin County, do hereby Grant, Bargain, Sell and Convey to the said Division of Aid for the Aged in the Department of Public Welfare of the State of Ohio, as Trustee, its assigns and successors in trust, forever, the following Real Estate, situated in the County of Franklin, in the State of Ohio, and in the Township of Clinton and bounded and described as follows: (here follows description of property)”

This deed was duly witnessed and executed before a notary public and was filed for record on August 5, 1938, and recorded on August 31, 1938 in the record of mortgages of Franklin County, Ohio, Vol. 974, page 205.

The deed hereinbefore mentioned was executed and delivered to the Division of Aid by virtue of the provisions of §1359-6 GC, the first three paragraphs of which are as follows:

“Any applicant for or recipient of aid, or his or her spouse, who is the owner of any interest in real or personal property, excepting household goods, clothing and other personal effects, may convey, transfer or assign such property to the division of aid for the aged in trust, reserving to the recipient of aid and his or her spouse the right to use or reside upon any such real property for life; and upon the death of either, leaving a surviving wife or husband who is eligible for aid, the right of the survivor likewise to use or reside upon said real property for life. All taxes and assessment on such real property and all necessary expenses of keeping it in good condition and repair shall be paid by the person using or residing upon it.
“All property conveyed, transferred or assigned to and held by the division in trust, upon the death of the person or persons entitled to use or reside upon such property as above provided, may, in the discretion of the division, be sold by the division at public sale, and the proceeds applied in the following order; first, the cost of sale; second, all valid taxes and assessments and other secured claims which were a lien upon said property at the time it was conveyed, transferred or assigned in trust to the division; third, repay to the treasurer of state for the general revenue fund all amounts paid under this act to the person who conveyed, transferred or assigned the property to the division and all such amounts paid to his or her spouse; fourth, all other valid debts in order according to law; and the balance, if any, to be distributed to the heirs or other persons by law entitled thereto.
“Provided, however, that after the death of a recipient of aid, upon the request of his surviving spouse, and heir, or other person lawfully entitled thereto, and when reimbursed to the full amount of aid paid as aforesaid, the division shall reconvey or transfer the property, or cancel and release the assignment and lien thereon, to said surviving spouse, or heirs or other persons by law entitled thereto.”

The foregoing statute has been amended since the above date, but the foregoing text is as it existed at the time of the deed.

From the Statement of Facts it appears that the Division of Aid began their payments to the above named recipients in August, 1936. These payments continued to December, 1943, at which time the husband died. Up until that time the Division of Aid had paid to those recipients the sum of $2059.56, plus a funeral award in the amount of $125.00, making a total sum of $2184.56.

Angie Berger survived her husband and died on or about July 16, 1948. She received assistance from the Division of Aid from September 1938 to July 19, 1948, in the amount of $3485.80, plus $200.00 for expenses of last illness, and also another sum of $78.68, making a total sum of $3764.48.

When Daniel Berger died intestate Angie Berger was the sole and only heir to receive the entire interest in the property. Therefore when Angie Berger died she was the sole owner of all the interest which either or both of them had in the property.

Angie Berger left a will by the terms of which she bequeathed and devised all of her property to Guilford J. Clayton, and also named him the executor of her will. She also gave him power of sale of her personal property and real estate. The real estate was inventoried in her estate at a value of approximately $1700.00.

The claim of the United States of America arises out of the following facts. Subsequent to the death of Daniel Berger, Angie Berger his wife, contracted with The Storm King Company for certain improvements on the house on the property hereinbefore described, for the sum of $203.04, and gave her note for same. The note eventually became the property of The Morris Plan Bank of Cleveland, Ohio.

Angie Berger also on July 9th, 1946, signed an F. H. A. promissory note to the Modern Roofing and Siding Company for the sum of $494.28, and this note finally became the property of the First Discount Corporation and was later assigned to the United States Government.

Angie Berger also on August 23, 1946, executed another F. H. A. promissory note to a certain roofing company in the sum of $185.04, which note was later assigned to the United States Government.

The executor named in the will, acting under his apparent power, sold the real estate hereinbefore mentioned for the sum of $1000.00. Neither of the claimants are raising any question as to the sale. Certain debts have been paid with the approval of both claimants. Both claimants have filed their claims in compliance with the statutes of Ohio with reference to the filing of claims against decedents estates. There is left from the sale price of said property the sum of $311.55. The State of Ohio claims this money by virtue of its mortgage or trust deed. The United States Government claims the property by virtue of 31 U. S. C. A. page 191, which reads as follows:

“Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.”

The reports of the United States Supreme Court contain a large number of decisions construing the foregoing statute. The United States Government is the claimant on the notes hereinbefore mentioned by virtue of the assignment thereof to The Federal Housing Administration.

The Supreme Court of the United States in the case of United States v. Summerlin, reported in 310 U. S. page 414, and also in the case of United States v. Remund, reported 330 U. s. page 539, have held such a claim becomes a claim of the United States of America.

There is a long line of decisions holding that the priority of the United States takes precedence over tax claims of the various states and other subdivisions. There is also a number of decisions of the U. S. Supreme Court involving the claims of the United States and the priority thereof in Assignment for the benefit of creditors and in receiverships of insolvent debtors.

In our search of the authorities we have not been able to find a court decision on all fours with the question now before the Court. We do believe, however, that the fundamental principles have been established by the decision of the Supreme Court of the United States in the case of Illinois v. Campbell, reported in 329 U. S. page 362. The Court, on page 375, after discussing a great many cases summarizes the circumstances which must exist in order that the priority of the United States might be defeated. The Court uses the following language:

“The long-established rule requires that the lien must be definite, and not merely ascertainable in the future by taking further steps, in at least three respects as of the crucial time. These are (1) the identity of the lienor, United States v. Knott, 298 U. S. 544, 549-551; (2) the amount of the lien, United States v. Waddill Co., 323 U. S. at 357-358; and (3) the property to which it attaches, United States v. Waddill Co., supra; New York v. Maclay, supra. It is not enough that the lienor has power to bring these elements, or any of them, down from broad generality to the earth of specific identity.”

Now, applying these characteristics to the case now before the Court; there is no question as to the identity of the lienor, and there is no question as to the property to which it attaches. The recipients of the amounts paid by the Division of Aid gave a deed to the Division of Aid in order to secure the payments falling due in the future. A second element hereinbefore named is the only one in which there might be any doubt, and that is the amount of the lien. The relief paid to the recipients according to the law of Ohio is paid in monthly payments. The State of Ohio at any minute knew exactly the amount of money advanced which was secured by the trust deed. Had either or both of these recipients died, the records of the Division of Aid would show definitely the amount of money that had been advanced. In this respect this case differs from another case decided by the Supreme Court of the United States where the United States of America was claiming priority over obligations owed to the State of Ohio for payroll taxes.

It is our opinion that the State of Ohio, through the Department of Aid for Aged, at all times knew definitely the amount of its claim, and therefore the second element as hereinbefore mentioned was present.

This Court has also examined the case of Postmaster General v. Robbins, reported in 19 Federal Cases, being Case Number 11314, in which decision we find the following language:

“In these cases it has been decided that the priority given by the law does not create a lien on the debtors estate, but merely makes the debt of the United States a privileged debt against the general assets of the debtor in the hands of his assignees or administrator, and rendering them personally liable, provided any other debt is paid before that due to the United States. * * * If the statute does not create a lien, it would seem it will not remove or supersede an existing lien, and this opinion is strongly intimated in the last case (Conrad v. Atlantic Ins. Company, 1 Pet. (26 U. S. 386) in which these acts have been brought to the notice of the supreme court. * * *”

From Vol. 28 American Jurisprudence, under the subject “Insolvency” at page 819, Section 73, we find the following:

“It is well settled that the priority statute does not create a lien upon the debtor’s property in favor of the United States, but merely confers upon the government a right of priority in payment out of that property in the hands of the debtor’s assignees or other representatives, under the conditions specified in the statute. It follows that if, before the right of priority of the United States accrues under the statute, the debtor parts with his property, either absolutely or conditionally by way of mortgage or other liens, or involuntary liens are acquired against the property, the priority of the United States does not attach to such property, and the claims of the transferee,, mortgagee, or other lienee- are superior to that of the United States; at least where the lien so created or acquired is a specific lien upon specific property as contra-distinguished from a lien upon all the property of the debtor. * * •”

It seems also that the time element or sequence of events should have some bearing on the mind of the Court in this matter. These two recipients began to receive their aid in 1936. They gave their deed in 1938. The husband did not die until 1943. At the time of his death the State had advanced over $2000.00. The obligations purchased by the United States of America, through the F. H. A. were not incurred until the year 1948. Almost the entire amount of the funds represented by the State of Ohio were furnished long before the claims of the United States of America came into existence.

It is therefore the opinion of this Court that the claim of the State of Ohio is prior to the claims of the United States of America and that the State of Ohio is entitled to the amount of money left for distribution in this estate.

An order may be drawn accordingly.


text:
    JACKSON IRON & STEEL COMPANY v. GLANDER.
    Board of Tax Appeals.
    No. 16875.
    Decided February 20, 1950.
    Bricker, Marburger, Evatt & Barton, Columbus, for appellant.
    Herbert S. Duffy, Atty Genl., W. H. Annat, Asst. Atty Genl., Columbus, for appellee.
   This is an appeal from a final order of the Tax Commissioner under date of September 19, 1949, wherein a prior order was modified and as modified confirmed a sales tax assessment of $1364.92 with a penalty of $204.74, total $1569.66; and a use tax assessment of $226.50 with penalty of $33.99, total $260.49, all totaling $1830.15. The matter now comes on for final determination upon the notice of appeal, the Commissioner’s transcript, a record made before an attorney examiner on November 29 last and briefs of counsel. It is suggested that the issue presents a minor one of fact. However, upon examination of the evidence found within the record, it is established by uncontradicted proof that Mine No. 2 is and will be operated as is Mine No. 1. Such being true, the minor question of fact disappears, leaving only a question of law for solution. The facts necessary to display the legal query are as follows.

Appellant is engaged in the production of what is known as silvery pig iron, which is a high silicon iron having a carbon content of 2 to 3 per cent. It is said to be produced by only two firms, both of which are in Jackson County, Ohio, and only by the use of Jackson County coal. The Company buys coke, which is mixed with its coal in a proportion of 5 to 1, and added to iron ore and limestone, produces silvery pig iron. The reason for the results obtained by the use of Jackson County coal is unexplainable. The taxpayer operates three mines in close proximity to its plant, one of which is a strip mine, the entire output of which is used by the appellant in the manufacturing of its particular pig iron product. No coal mined from this strip mine is sold. The Jackson Company’s other two mines are shaft operations producing the same grade or quality of coal. It uses 64.23 per cent of their entire output in the production of silvery pig iron. The balance of the output of these two shaft mines, that is, 35.77 per cent, is nut, pea and slack coal which is not usable in the production of its product and is sold for resale by the purchasers. In the course of its mining operations appellant purchased certain mine machinery and equipment which it is using in the production of all the coal it is producing in these three mines’ operation. It is upon this machinery and equipment that the sales and use tax assessment is made. By the order made, the Department of Taxation has recognized as nontaxable that portion of the percentage of the cost of machinery and equipment used in the production of the coal mined for sale from the two shaft mines, to wit, 35.77% (§§5546-1 and 5546-25); but has assessed at 3% the total cost of machinery and equipment used in the stripping operation, and 64.23% of the cost of machinery and equipment used in the two shaft mines. The order in effect finds that appellant’s purchased and used equipment devoted to producing coal for sale is not taxable, and that devoted to production of coal used by it in the production of pig iron is taxable. The question, therefore, is, as stated by appellant;

“Whether or not purchases of mining equipment to be directly used in mining coal for use and consumption by the purchaser of such equipment in manufacturing pig iron for sale is subject to sales and use taxes in Ohio?”

Secs. 5546-1 and 5546-25 GC were under consideration in Bailey v. Evatt, 142 Oh St 616, wherein, at page 620, the court had this to say concerning their purpose:

“The primary purpose of the statute here under consideration is to encourage the production of more valuable tangible personal property for sale, itself subject to the sales tax, by exempting (excepting) from the operation of such tax the purchases of property used and consumed by the producer in the production of such ultimate tangible personal property, and at the same time to avoid a species of double taxation. Hence the statute exempts (excepts) sales of tangible personal property in which the purpose of the consumer is to incorporate by manufacturing, assembling, processing or refining .the things transferred into tangible personal property for sale, or to use or consume the thing transferred directly in the production of tangible personal property for sale, by manufacturing, processing, refining, mining. * *

Sec. 5546-2 GC states, in its first paragraph, that the purpose of the act is to levy an excise tax “on each retail sale made in this state of tangible personal property” with certain exceptions. Sec. 5546-1 GC defines “retail sales” with certain exception. It reads in part:

“ ‘Retail sale’ and ‘sales at retail’ include all sales excepting those in which the purpose of the consumer (The Jackson Company) is (a) to resell the thing transferred in the form in which the same is, or is to be, received by him; or (b) to incorporate the thing transferred as a material or a part, into tangible personal property to be produced for sale by manufacturing, assembling, processing or refining, or to use or consume the thing transferred directly in the production of tangible personal property for sale by * * * mining, * *

Sec. 5546-25 GC employs the same language in its application to the assessment of use taxation. Appellant contends that these sections, in so far as the exceptions herein emphasized are concerned, as distinguished from exemptions, are entitled to be construed liberally; that to do otherwise can but lead to absurd consequences and double taxation, and a departure from long established administrative practice, examples of which are given and among which are found the failure or omission to tax farm machinery used to produce unsold farm crops which are thereafter fed to live stock. It is true that it was said in the opinion in Kroger Grocery & Baking Co. v. Glander, 149 Oh St, 120, (129 & 130), that a liberal construction must be given to exceptions in a definition of “retail sales.” Be that as it may, the pertinent provisions of §§5546-2 and 5546-26 GC, provide:

Sec. 5546-2 GC:

“For the purpose of the proper administration of this act and to prevent the evasion of the tax hereby levied, it shall be presumed that all sales made in this state are subject to the tax hereby levied until the contrary is established.”

Sec. 5546-26 GC:

“For the purpose of the proper adminstration of this act and to prevent the evasion of the tax hereby levied, it shall be presumed that tangible personal property purchased on or after January 1, 1936, by any person for delivery in this state is purchased for storage, use, or other consumption in this state.”

See The Cleveland-Cliffs Iron Co. v. Glander, Tax Commr., 145 Oh St 423, wherein it is said at page 430:

“It is well settled that the provision of any statute which purports to except certain property from general statutory provisions governing taxation is a measure of exemption, and that laws relating to exemption of property from taxation being in derogation of equal rights are strictly construed.”

. It is equally true that if this mine machinery and equipment be subject to sales and use tax in proportion to the coal consumed and not sold, that a further" sales tax'will be subject to imposition against the seller or consumer of the pig iron if and when sold within the State. Whether such a course will lead to absurdity, however, is problematical if the pig iron be followed into sheet steel, into automobile fenders and then, ás a finished product, into an automobile. This is the first direct assertion of the principles herein contended for as this Board is able to find. We do, however, confess that comparable situations may be found to exist within the entries of this Board, but in none of which was it the principal bone of contention but a minor difference concerning which no particular attention was paid. The Board, therefore, cannot follow the propriety of appellant’s assertion that an established administrative practice is here violated. We are not enamoured of appellant’s farming illustration due to the fact that a general farming practice is all a well recognized single enterprise which cannot be conducted otherwise as distinguished from the mining of coal and the manufacture of pig iron, which are equally well known as separate and distinct businesses which are only found united in cases of “captive mines” which advantage the major business. The lure of liberality in construction of exception provisions in regard to the purchase of machinery in general farming operations is much more enticing.

The legislature saw fit to levy an excise tax on all “retail sales,” but excepted from the definition of the term “retail sales” equipment purchased and used for the purpose of mining coal for sale. It did not go further, however, and except from the definition of the term “retail sales” property purchased to produce coal to be used (and not sold) by the miner of the coal as an ingredient in manufacturing another product (pig iron) for sale. If that had been intended it could have easily been so stated. The Board considers that it is now asked to write such a further exception into §§5546-1 and 5546-25 GC, which it has no right to do even if its refusal leads to absurdity and double taxation. We feel that the maxim “expressio unius est exclusio alterius” as the rule of construction has direct application in the presented situation.

Appellant suggests that incorporation of a subsidiary company to operate its mines would effect or have effected the relief it now seeks, and to provoke such to be done leads to absurdity; but be that fact as it may, the Board of Tax Appeals considers that it lacks authority to write into the statutes that which the legislature did not see fit to incorporate therein.

The Tax Commissioner, in his brief, makes the following statement which is approved in its entirety by the Board of Tax Appeals:

“Except for an overstatement by or in the sum of eighty cents in the amount of the use tax deficiency and except as to the reduction by 35.77% of that portion of the sales tax including penalty assessed upon the purchase of coal mining equipment for appellant’s deep mine No. 2 (which portion amounts to $735.65), it is the contention of the Tax Commissioner that his final order here under appeal should be affirmed.”

The final order of the Tax Commissioner herein complained of is modified to the extent set out in this entry and as so modified the final order is affirmed and this cause is remanded to the Tax Commissioner with instructions to deduct the sum of eighty cents from the use tax assessment and to reduce by 35.77% that portion of the sales tax assessment, including penalty, assessed upon the purchase of coal mining equipment for appellant’s deep mine No. 2 (which portion amounts to $735.65).


author: PER CURIAM:

text:
    SABLACK, Admx., Plaintiff-Appellant, v. GLENN, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21737.
    Decided April 24, 1950.
    J. Albert Lowell, Cleveland, for plaintiff-appellant.
    Squire, Sanders & Dempsey, Cleveland, for defendant-appellee.
   OPINION

PER CURIAM:

This is an action for wrongful death here appealed on questions of law from a judgment entered by the Common Pleas Court of Cuyahoga County upon a verdict of the jury in favor of defendant.

In the view we take of this case we are confronted with but the single question, whether the court erred in its charge to the jury.

We have before us a partial bill of exceptions containing the charge of the court and so much of the evidence as is necessary to exhibit the error of which complaint is made. Prom the record it appears that the witnesses for plaintiff testified that the automobile in which decedent was a passenger was operated by one Baricevich in a westerly direction on Lake Shore Boulevard; that it skidded on the wet pavement so that it was facing south and came to a standstill or practically so across the four car tracks of the east and west bound street cars; while in this position it was struck by the automobile driven by defendant; that when the car in which decedent was riding started to skid defendant was between 225 and 300 feet away; that defendant was driving east at a speed of between 40 to 50 miles per hour; that he failed to slow up or divert the course of his car to avoid striking the car in which decedent was riding; that there were no cars parked on Lake Shore Blvd., south of the scene of the accident.

The Court charged in part as follows:

“If you find that the evidence in respect to negligence was in equipoise, in other words, weighed evenly on one side or the other, that the negligence of Baricevich if you found that to be, and the negligence of Glenn, if you found there was some negligence on his part, were evenly weighed in your mind, then your verdict must be for the defendant.” (Emphasis supplied.)

The court also charged correctly that the negligence of the driver could not be imputed to the decedent passenger and that the plaintiff could recover if the jury found that her decedent’s death was proximately caused by the negligence of the defendant and Baricevich. In .other parts on the charge reference was made to the sole negligence of the defendant. Upon a consideration of the whole charge we are unable to determine which rule the jury followed. The applicable rule of law as stated in 29 O. Jur, 769, Sec. 225 is as follows:

“It is well settled that where both correct and incorrect instructions upon the same subject have been given to the jury and where, from the whole charge it is uncertain which rule the jury adopted, the judgment should be reversed. This is especially true * * * where the correct instruction is a statement of general principles or is given in general terms and the incorrect one is a specific instruction of the particular issue in the case. This rule has been applied to conflicting instructions dealing with the burden of proof, proximate cause and due care.” (Emphasis ours.)

Accordingly the judgment of the Court of Common Pleas is reversed and the cause is remanded for further proceedings according to law. Exc. Order see journal.

SKEEL, PJ, McNAMEE, J, HURD, J, concur.


author: By MILLER, PJ.

text:
    WISE, In re, Petitioner, v. STATE et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4265.
    Decided June 21, 1950.
    Cecile J. Shapiro, .Columbus, for petitioner.
    Hon. Herbert S. Duffy, Atty. Geni., Alan E. Schwarzwalder, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By MILLER, PJ.

This is an action in habeas corpus in which the petitioner alleges that he is being unlawfully detained by the respondent as Warden of the Ohio Penitentiary. The record discloses that the plaintiff was convicted and sentenced by the Common Pleas Court of Summit County in 1933 for the crime of grand larceny. He was committed to the Ohio Penitentiary and escaped in 1934, fleeing to the State of New Jersey; that in 1940 the State of Ohio became cognizant of his whereabouts but did nothing to effect his return; that in 1942 he was arrested in New Jersey upon the request of the Ohio authorities, being charged with being a fugitive from justice from the State of Ohio. Sometime after this Ohio advised the State of New Jersey that it would not send for him and he was therefore discharged. Again in 1946 he was arrested in New Jersey upon the same charge. Before he could be turned over to the Ohio authorities he fled to the State of Connecticut and it was not until 1948 that he was again arrested upon complaint from this State; that he was not accorded an extradition hearing in Connecticut, but was forcibly taken back to Ohio against his consent and returned to the Ohio Penitentiary where he is now confined. The respondents admit all of the foregoing facts merely for the purpose of arguing the legal questions herein presented. The plaintiff is urging his release upon two grounds, to wit, (1) that the State forfeited its right by refusing to act when he was first arrested in New Jersey; (2) that he was illegally returned from the State of Connecticut without being accorded a hearing and contrary to law. In support of the first ground we are referred to Title U. S. C. Par. 662, which, after providing for the arrest of a fugitive from justice ‘found in another State, further provides:

“* * * If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. * * *”

Counsel urges that since he was released from custody in New Jersey in 1942, and also since more than six months have elapsed since the arrest, that he is now “discharged” from his sentence in Ohio. We cannot agree with this interpretation of the United States Code. It is our opinion that this section refers only to the arrest of the fugitive within the detaining State; that the six months limitation refers to the length of time the detaining State may hold or detain a fugitive while waiting for the requesting State to come and pick him up. There is no provision in the statute that upon failure of the requesting State to pick up the fugitive, he is automatically relieved from being returned to the requesting State. The word “discharged” refers to the release from detention or confinement in the detaining State. It has no application to the fugitive’s conviction and sentence in the requesting State and therefore cannot affect the State’s right to have the fugitive returned.

Considering next the legality of the manner in which the plaintiff was returned, the authorities seem to be unanimous that this cannot be given consideration in a hearing on habeas corpus. In Ex Parte James Camp, etc., Vol. 7 O. N. P. 614, it was held that a party brought to Ohio by extradition from another State can be prosecuted in Ohio without regard to the manner in which he was brought into the State. The Court in its opinion makes this statement:

“* * *, but being now within the jurisdiction on a valid warrant, it makes no difference how he came or was brought here, there being no right of asylum as between states for the benefit of a fugitive from justice. He might even have been kidnapped and brought back.”

The same legal principle is announced in 18 A. L. R. 509:

“Where a person accused of a crime is found within the territorial jurisdiction wherein he is so charged the right to put him on trial for the offense charged is not impaired by the fact that he was brought from another jurisdiction by illegal means, such as kidnapping, unlawful force, fraud or the like.”

This rule has been adopted by the federal courts, and cases from many of our own states as well as England and Canada are cited. We have been unable to find any cases holding otherwise and we have been cited none by counsel for the petitioner.

The application will be denied.

HORNBECK and WISEMAN, JJ, concur.


author: By MERRICK, J.

text:
    KRAUS v. CLEVELAND (City), et.
    Common Pleas Court, Cuyahoga County.
    No. 601104.
    Decided October 14, 1950.
    Myron D. Malitz, William J. Kraus, Cleveland, for plaintiff.
    Lee C. Howley, Director of Law, Robert J. Selzer, Asst Director of Law, Cleveland, for defendants.
   OPINION

By MERRICK, J.

This is a taxpayer’s action for injunctive relief, complaining that the defendants are expending tax money in the administration and execution of Ordinance 1316-A-43 of the City of Cleveland, which became effective February 9, 1944. plaintiff is a taxpayer of the city and brings the action as a class suit. Defendants are the City of Cleveland, its Commissioner of Assessments and Licenses and its Treasurer. The individuals are sued in their official capacities. In this opinion the parties will be referred to as the plaintiff and the City.

The evidence conclusively shows that the City is expending tax money in the carrying forth of the letter and purposes of the ordinance. To comprehend the design of the ordinance it is unnecessary to go further than to examine the purpose clause which reads as follows:

“Sec. 2925-12 GC. License required. On and after sixty (60) days after this ordinance becomes effective it shall be ■unlawful for any person, firm or corporation, organization, society or association, or any officer, employe, agent, member <or representative thereof, to establish, promote or conduct any game of chance as defined in §2925 GC unless licensed .-so to do as hereinafter provided.”

Sec. 2925-11 GC, referred to above defines “game of chance” .as any game, other than policy, constituting a lottery by any name, wherein money is wagered and further defines “charitable purpose.” Another section of the ordinance provides that only games of chance for charitable purposes are to be licensed.

If the effect of this ordinance is to license an unlawful act, then plaintiff is entitled to the relief prayed for and should prevail in this action.

The ordinance clearly provides that no person may conduct the game of chance described without securing a license and provides a penalty for violation. It is admitted that under the licenses issued games called Bingo or Keno and Split -Club are operated.

The undisputed testimony offered in the case describes as bingo or keno a game which is identically defined in Webster’s International Dictionary as follows:

“Keno. A form of lotto used in gambling in which numbered balls are taken one by one from the spout of a receptacle called a keno goose and announced, the players covering these numbers on cards they have paid for. The winner is the one who first gets five numbers covered in the same horizontal •row.”

The undisputed testimony likewise describes split club as a lottery which is defined in Webster’s supra as follows:

“Lottery. A scheme for the distribution of prizes by lot or chance; especially a scheme by which one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them, usually 'as determined by the numbers on tickets as drawn from a lottery wheel.”

The history of this ordinance shows that its enactment followed rather closely the effective date of §13064 GC, as amended, which provides as follows:

“Whoever, for his own profit, establishes, opens, sets on foot, carries on, permits, makes, or acts as backer or Vendor for, or on account of lottery or scheme of chance by whatever name, style or title denominated, etc., — shall be fined * * * and imprisoned * *

Counsel for the City argues that the purpose of the ordinance was to prevent racketeers from coming into the City of Cleveland and conducting bingo games without any inspection and control to determine whether or not the enterprise was conducted for a charitable purpose, and then further providing for some protection for the participants in the play of the game of chance. Regardless of the purpose, commendable or otherwise, if this ordinance sanctions and permits an act, otherwise unlawful, then it is illegal, and any further operation thereunder should be restrained.

Counsel likewise argues that the ordinance does not license any form of gambling but merely controls and supervises conduct of games which are legal, by virtue of §13064 GC.

Article XV, Section 6, of the Ohio Constitution reads as ■follows:

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

It should be observed that this constitutional provision, while it prohibits lotteries and the sale of tickets, is not self-executing insofar as violation of such provision may be the subject of a criminal prosecution. It could not be self-executing in the absence of a provision for a penalty in the Constitution. It is left to the Legislature to impose a penalty or not as it sees fit. This axiom of law likewise applies to many forms of gambling long prohibited only by statute. It is obvious, therefore, that §13064 GC may be presumed to be in effect a partial execution of the constitutional ban on lotteries. But does this mean that any other form of gambling by way of lottery is made legal because it is not specifically included in the prohibition contained in §13064 GC? Does this section of the Code, which punishes lotteries operated for personal profit, by inference or otherwise, authorize the operation of lotteries for charitable purposes?

Counsel for the City places greát reliance on the case of State v. Parker, 150 Oh St, 22, 37 O. O. 318, as proving the theory that controlled Bingo, Keno, Lottery or Split Club is legal in Ohio if the profits go to a charitable purpose.

A close and careful reading of the Parker case per curiam opinion supra, does not support that argument. On pages 25 and 26 of the opinion is found the following language:

“The inhibition against lotteries and the sale of lottery tickets was made a part of the state constitution of 1851 and that same provision still remains in effect. Although the constitutional provision prohibits lotteries and the sale of tickets, it is not self-executing in that it prescribes no penalty for its violation.
“An examination of various statutory provisions on the •subject discloses a general legislative policy to prohibit and ■declare void all gambling contracts of every description, but only certain of such transactions are made punishable by fine and imprisonment of those who engage therein. There •are many and various inhibitory provisions in the state Constitution for the violations of which no penalties are prescribed; such inhibitory provisions may be implemented only by appropriate action by the General Assembly * * *.
“Sec. 13064 GC, is not in conflict but, so far as it goes, is in harmony with the provisions of the Constitution referred to. It does not authorize or give validity to any gambling transaction * * (Emphasis ours.)

It is apparent therefore that the Supreme Court in this opinion has merely said that §13064 GC makes certain lottery games a crime, but does not specifically abrogate the constitutional provision condemning lotteries.

The Constitution is the sovereign voice of the people and under our form of government the sovereign people have the inherent right to declare any act or acts unlawful. It would be a superrefinement of distinction to say that the sovereign people, as the principal in government, could not make an act as unlawful as their agents, the legislature. It attributes to an agency greater power than to the principal, — something that is incredible. Indeed the modern practice of the people in the making of constitutions is to do much of their own legislating direct, rather than await the pleasure and discretion of the legislative body. While the constitutional provision in question may not be self-executing, it is executory to the extent that it denounces the act as unlawful. Hoffrichter v. State, 102 Oh St, 65. What the constitution grants no statute may take away. State ex rel v. Brown, 105 Oh St, 479.

The Ohio Constitution is primarily a limitation upon political power, and secondarily a delegation of political power. In re Hawke, 107 Oh St, 341. What is expressly delegated or granted in a Constitution cannot thereafter be expressly or impliedly denied or qualified by statute; neither may it be increased nor decreased by statute; if so, the statute becomes at once paramount to the Constitution. Were it otherwise, constitutional law could be, at the pleasure of the General Assembly, absolutely nullified by the enactment of any contrary conflicting or amendatory statute. Wagner v. Armstrong, 93 Oh St, 443.

It is not possible to anticipate the subjects of legislation that may appear in the progress of a state’s development. Therefore constitutions do not legislate. They locate and limit the powers of government and define the modes of their exercise. The general and comprehensive terms employed by the people of Ohio in fixing this boundary to legislative power indicate a determination to be relieved of all the evils of local legislation upon general subjects and a firm reliance upon the vigilance and constancy of the courts in securing to them the protection for which they made ample provision in the organic law. The provisions of the constitution and enactments in conflict with them cannot stand together. That conservation is of the highest type which conserves the paramount law. State ex rel v. Davis, 55 Oh St, 21.

The essential difference between a constitution and a statute or ordinance is that a constitution usually states general principles, and establishes a foundation of the law and government, whereas a statute or ordinance must provide the details of the subject of which it treats. A constitution, unlike a law, is intended not merely to meet existing conditions, but to govern future contingencies. 6 Ruling Case Law, 16.

The Constitution must be interpreted and effect given it as the paramount law of the land, according to the spirit and intent of its framers, as indicated by its terms. A legislative enactment which violates the true intent and meaning of the instrument, although it may not be within the letter, is as much within the purview and effect of a prohibition as if within the strict letter; and an act in evasion of the terms of the Constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose, is as clearly void as if in express terms forbidden. The fundamental law of the State is to be construed in no narrow and illiberal spirit. It is to be construed according to its intention, where that is clear; and that which clearly falls within the reason of a constitutional prohibition may be regarded as embodied within it. 8 O. Jur., 136.

It is a well recognized rule of construction that such interpretation will be given to a provision of the Constitution as will promote the object of the people in adopting it. It is the duty of the Court, and .its only proper purpose, in the construction of constitutional provisions, to ascertain and give effect to the intent of the people when they wrote them into their Constitution. Hupp v. Hock-Hocking Oil and Gas Co., 88 Oh St, 61. The rule of constitutional interpretation that, a purpose being clearly indicated, provisions should, so far as their terms will permit, be construed so as to further that purpose, will not justify a court in denying the plain meaning of an unambiguous provision because of the belief that its natural consequences should not have been intended. State ex rel v. Lynch, 87 Oh St, 444.

Although a constitutional provision is usually a declaration of principles of the fundamental law, many of its provisions being only commands to the legislature to enact laws to carry out the purposes of the framers of the constitution, or mere restrictions upon the power of the legislature to pass laws, yet it is entirely within the power of those who establish and adopt the Constitution to make any of its provisions self-executing. Obviously there is a distinction between constitutional provisions which are self-executing and those which are. not. One of the recognized rules is that constitutional provisions are not self-executing, if they merely enact a line of policies or principles, without supplying the means by which such policies or principles are to be effectuated. Prohibitory provisions in a constitution are usually self-executing to the extent that anything done in violation of them is void. 8 O. Jur., 150.

So we must come to the inevitable conclusion that the Constitution puts a specific ban on lotteries ■ and the sale of lottery tickets in plain unambiguous terms and emphasizes the intent of the framers by the use of the language “shall be forever prohibited in this state;” Because the Legislature seemingly attempted to ignore conduct of a lottery unless it was for the operator’s own profit in the amendment to §13064 GC, no reasonable interpretation can be had, that such action by our law makers could make any other type of gambling operation legal and not in conflict with the Constitution. Perhaps some bright minds in the Legislature were hoping to attain this end, but in the opinion of this court the effort has failed. And, by the same application, if the council of the City of Cleveland reasoned that the Legislature had legalized any type of gambling or lottery by the passage of this statute, the law does not sustain such conclusion, and will not look with approval on any legislation designed to permit common gambling by the operation of a lottery by whatever name is appended by the operators. Likewise it is of no consequence at law whether the profits go to charity or into private pockets.

It might not be amiss to observe in passing that any continuous operation which gives a mite of a large money intake to charity is not being operated for charitable purposes. It is apparent to this court that none of the licensees set forth in the testimony are operating for anything but private gain under the guise of a minute fractional dole to some charity or patriotic endeavor. And in the face of the testimony that, in all probability, false reports are being made to the city, it is apparent that instead of controlling conduct of the operators to keep out the racketeers, the ordinance is breeding and protecting vultures who operate a nefarious swindle in the shadow of legal protection and beneath a cloak of sweet charity.

An ordinance which attempts to license gambling is void. Kraus v. City of Cleveland, 135 Oh St, 43, 13 O. O. 323. The ordinance under consideration does just that and is void and contrary, to the Ohio Constitution and it cannot be said that it receives any legal authority or life by virtue of §13064 GC.

This section is not in conflict, but, so far as it goes, is in harmony with the provisions of the Constitution referred to. It does not authorize or give validity to any gambling transaction. State v. Parker, supra.

Disregarding the action of the Legislature in amending §13064 GC, and the intent of the lawmakers in so doing, there is ample legislation on the statute books to prosecute operators of Bingo, or Split games. Sec. 13065 GC provides a penalty for being a common gambler. Sec. 13066 GC provides up to 90 days imprisonment for operating a Keno bank. The city government could invoke these laws to punish bingo and split club operators instead of licensing them. Sec. 13067 GC provides a jail sentence up to six months for advertising a lottery or where it is to be held. These laws were not modified, repealed or rendered inoperative by the passage of §13064 GC and our courts have so held. State v. Moose, 151 Oh St, 19, 38 O. O. 506; State v Simonian, 77 Oh Ap, 201, 32 O. O. 508; State v. Lloyd, 30 O. O. 441.

It is the conclusion of this court that the City of Cleveland had no authority at law to enact the licensing of any type of gambling and that the same is contrary to the general laws and Constitution of the State of Ohio. The injunction will be allowed as prayed for and a decree may be drawn accordingly. Defendants may have their exceptions noted in the record and a judgment for costs will be entered, provisional that a modified cost entry may be put on later to encompass attorney fees and other lawful expenditures of the plaintiff.


author: By SKEEL, PJ.:

text:
    KRAUS, Plaintiff-Appellee, v. CLEVELAND (City), Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22062.
    Decided December 18, 1950.
    Myron D. Malitz, Shaker Heights, W. J. Kraus, Cleveland, for plaintiff-appellee.
    Lee C. Howley, Director of Law, Robt. J. Selzer, Asst. Dir. of Law, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law and fact from a judgment for the plaintiff entered by the common pleas court of Cuyahoga County.

The plaintiff’s amended petition alleges that he is a taxpayer of the City of Cleveland and brings this action on behalf of all taxpayers similarly situated and pursuant to §4314 GC and the applicable provisions of the Charter of the City of Cleveland, after the Law Director, upon due notice, refused in writing to bring such action.

The plaintiff alleges that the City Council, on or about the 9th day of February, 1944, passed an Ordinance known as No. 1316 A 43 which became Secs. 2925-11 to 22 of the Municipal Code of the City of Cleveland, commonly known as the “Bingo” Ordinance, the purpose of such Ordinance being to license the conduct of games of chance operated for charitable purposes.

The plaintiff further alleges that the Commissioner of Assessments and Licenses of the City, acting under the authority of the “Bingo” Ordinance has licensed about forty Bingo Parlors which are now operating within the City of Cleveland.

The petition then describes the game of “Bingo” or “Keno” and concludes with the allegations that such game, as authorized by the said Ordinance, consists solely of a price or consideration paid by a player for the privilege of the chance of winning a prize and that such game constitutes gambling through the operation of a lottery.

The petition further alleges that the Bingo parlors have an annual income in excess of $4,000,000.00 and that less than three percent of such amount is given for charitable purposes. That the licensing of Bingo games is contrary to the laws of the State and in violation of the Constitution of the State of Ohio and that the City is without legal authority to license and legalize gambling and lotteries. And further, that in so doing the Commissioner of Assessments and Licenses has been and is expending tax funds which have been approved and paid by the City Treasurer and unless enjoined such public expenditures will continue to be made in licensing and supervising Bingo Parlors.

The plaintiff then prays that the defendants be enjoined from issuing licenses and expending tax funds in carrying out the terms of said Bingo Ordinance and that the court declare said ordinance void and the licenses issued thereunder void and of no legal effect.

The defendants filed a joint answer by which they admit all of the allegations of the plaintiff’s amended petition except those describing the game of Bingo and that such game constitutes a lottery, deny the number of licenses issued and the income received in operating such Bingo Parlors and that the ordinance or the licenses issued thereunder are void and of no effect or in violation of the Constitution of the State of Ohio.

The defendants then allege that the Bingo Ordinance was passed under the Home Rule provisions of the Constitution of Ohio and is simply a regulatory ordinance imposing necessary restrictions on those licensed to conduct Bingo games for charitable purposes and that said Ordinance is not in conflict with the laws or the Constitution of the State of Ohio.

The plaintiff’s reply denies all the affirmative allegations of the defendants’ answer.

The evidence, supplemented by the facts admitted by the pleadings, establishes that bingo is a lottery and that those who conduct such games are in fact conducting a lottery in that such licenses sell for a stipulated consideration the chance to win a prize. The evidence also shows that about forty Bingo Parlors have been licensed which licenses purport to authorize the holder to operate a scheme of chance and contain on the face thereof the charitable enterprise for whose benefit the games are to be played. The evidence of the Commissioner of Assessments and Licenses shows that in excess of $3,000,000.00 gross receipts were reported as taken in by the fprty licenses during the year 1948, of which less than three percent was given to charitable beneficiaries.

There is just one question presented and that is whether or not the City of Cleveland has legal authority to license the conducting of a lottery where some part of the income is set aside for a charitable purpose.

The Constitution of Ohio provides:

“Article 15, Section 6: Lotteries and sale of Lottery tickets for any purpose whatever shall be forever prohibited in this State.”

Prior to 1943 there was in force and effect §13064 GC which provided:

“Whoever establishes, opens, sets on foot, carries on, -permits, makes or acts as a backer or vendor, for, or on account of lottery or scheme of chance, by whatever style or title denominated, etc., * * * shall be fined not less than $50.00, nor more than $500.00 and imprisoned not less than 10 days nor more than 6 months.”

In 1943 this section was amended to read as follows:

“Whoever, for his own profit, establishes, opens, sets on foot, carries on, permits, makes or acts as backer or vendor for, or on account of lottery or scheme of chance by whatever name, style or title denominated etc., * * * shall be fined not less than $50.00, nor more than $500.00, and imprisoned not less than 10 days, nor more than six months.”

The pertinent sections of the “Bingo” ordinance provide:

“Sec. 2925-11, Definitions. ‘Game of Chance’ for the purposes of this ordinance shall mean any game, other than policy, constituting a lottery, by whatever name, style or title denoted, participated in by two or more players for any prize, gift or award of thing of value, where a charge is made, or other consideration paid by any player for the right to participate in such game and the dominating factor in determining the result of such game is chance, notwithstanding that such result may be dependent to some extent upon the judgment, intelligence or adroitness of the player.
“ ‘Charitable purpose’ shall include any charitable, benevolent, philanthropic, religious or fraternal purpose.”

Sec. 2925-12 provides that no one shall conduct such games of chance until license is granted as provided by the ordinance. Sec. 2925-13 in part provides that no license to conduct games of chance shall be issued except for charitable purposes. Sec. 2925-15 provides the manner and form in which the application for a license to conduct a game of chance shall be made and the information to be contained in such application.

“Sec. 2925-17, Issuance of License. After such hearing and upon receipt of the application from the director of public safety with recommendations endorsed thereon approving the same, and following public hearing before the commissioner of assessments and licenses if satisfied that the applicant is of good character, and that the premises and conditions under which the licensee is to operate meet with the sanitary, building and fire regulations, shall issue a license, notwithstanding any other provisions of the municipal code to the contrary, specifically Secs. 2978 to 2985-5 inclusive, and as an exception thereto. Each license shall contain the name of the beneficiary for whom the game is to be conducted as stated in the application, the name of the person to whom issued, the date or dates upon which said game or games is or are to be conducted and the location where conducted, and the date of expiration. The license shall not be transferable and shall be limited to the location specified therein unless otherwise authorized in writing by the commissioner of assessments and licenses for good cause shown.”

Sec. 2925-19 provides for the, duties of the commissioner of assessments and licenses in supervising and enforcing the regulations for the conducting of a game of chance and the obligation of licensees to make reports which reports shall contain the gross income of the game, the amount charged against such income for expenses and the amount paid to the charitable beneficiary. The section also provides that games shall not be conducted except between the hours of 1:30 p. m. and 4:30 p. m. and between 7:00 p. m. and 12:00 p. m. midnight.

It is the contention of the defendants that Art. 15, Sec. 6 is not self-executing; that §13064 GC, provides a penalty where one “for his own profit” conducts a lottery; that since the statutes of Ohio do not prohibit or impose a penalty for one conducting a lottery other than for his own profit, the city is empowered to license and regulate lotteries conducted for charitable purposes.

It is contended that the decision of the Supreme Court in the case of State v. Parker, 150 Oh St 22, fully supports the defendants position that Art. 15, Sec. 6 of the Constitution of Ohio is not self-executing and can therefore, not effect the validity of the Bingo ordinance until legislation is enacted to prohibit and make punishable all lotteries or games of chance.

An examination of this case discloses that such is not the fact. The Parker case involved the sufficiency of the allegations of the indictment in an attempted prosecution of the defendant under §13064 GC, as amended September 21, 1943. The indictment failed to allege that the lotteries conducted by the defendant were conducted “for his own profit.”

The court held:

“An examination of various statutory provisions on the subject discloses a general legislative policy to prohibit and declare void all gambling contracts of every description, but only certain of such transactions are made punishable by fine and imprisonment of those who engage therein. There are many and various inhibitory provisions in the State Constitution for the violations of which no penalties are prescribed; such inhibitory provisions may be implemented only by appropriate action by the General Assembly.

It is well settled that before an act of the General Assembly, providing for the exercise of any plenary power, can. be held to be unconstitutional the prohibition of such exercise must be found in express terms or be clearly inferable from the language of the Constitution. 8 O. Jur., page 251. Sec. 13064 GC, is not in conflict but, so far as it goes, is. in harmony with the provisions of the Constitution referred to. It does not authorize or give validity to any-gambling transaction. It does impose a fine and imprisonment upon anyone who, in the capacity stated, engages in. any of the transactions enumerated in that section “for his own profit.” (Emphasis ours.)

This decision does not hold that Art. 15, Sec. 6 of the Constitution is not self-executing. In fact, from the full context of the opinion it clearly indicates that it is self-executing to the extent that it discloses the public policy of the State to be that “Lotteries or the sale of lottery tickets for any purpose whatsoever shall be forever prohibited in this State.” And while there can be no criminal prosecution of one who violates the provisions of Art. 15, Sec. 6, supra, with respect to acts that do not come within the provisions of §13064 GC, until the legislature provides therefor, there being, no common law crimes in Ohio, certainly by the same token the legislature of the state not the city council of a municipal corporation has the power to authorize, for any purpose,, charitable or otherwise, the right to conduct a lottery or sell lottery tickets in direct conflict of such constitutional provision. Such an act or ordinance would be unconstitutional and void and of no legal effect.

The law is clearly set forth in Cooley on Constitutional Limitations 8th Ed. at page 170 where the author says:

“In determining when a constitutional provision is self-executing there is a distinction between a declarative limitation of legislative power on a given subject, within which legislation may or should be invited and a positive constitutional inhibition which no legislative act can relieve or modify. The former might require future legislation, the latter must from its nature be self-executing, * * * and the mere fact that the legislature might supplement and add to or prescribe a penalty for the violation of a self-executing provision does not render such provision ineffective in the absence of such legislation.”

And at page 166, note 2, it is said:

“Any constitutional provision is self-executing to this extent, that everything done in violation of it is void. A provision that ‘the legislature shall have no power to authorize lotteries :for any purpose and shall pass laws to prohibit the sale of lottery tickets in this state’ was held to be of itself a prohibition of lotteries. Bass v. Nashville, Meigs 421; Yerger v. Rainer 4 Humph. 259.”

See also: State ex rel Kellogg v. Kansas City Mercantile Assoc., 45 Kan. 351; 25 Pac. 984; 11 L. R. A. 439; People v. McPhee, 139 Mich. 687, 103 N. W. 174; 69 L. R. A. 505; Seattle V. Chin Let. 19 Wash. 135 (52 Pac. 324).

We conclude, therefore, that the plaintiff is entitled to the relief prayed for. A decree may be entered as in common pleas court. Exc. Order See Journal.

McNAMEE, J, HURD, J, concur.