author: By LEACH, J.

text:
    FOGLIO, Petitioner, v. ALVIS, Warden, Respondent.
    Common Pleas Court, Franklin County.
    No. 196808.
    Decided January 23, 1957.

      Petitioner, per se.
    William Saxbe, Atty. Geni., John Shoemaker, Asst. Atty. Geni., for respondent.
   OPINION

By LEACH, J.

Petitioner, by this action in habeas corpus, seeks his release from the Ohio Penitentiary to which he was sentenced by the Court of Common Pleas of Cuyahoga County in the April term of 1955, after pleading guilty to two counts of armed robbery (§2903.13 R. C.), such sentences to run concurrently.

The entire contention of the petitioner is to the effect that the “commitment papers” were without the signature of the judge who pronounced sentence, that the sentence therefore was invalid and “that the State of Ohio and the sentencing Court lost jurisdiction of the subject matter and person of petitioner.”

In support of his contention, petitioner cites the fact that the Court of Appeals of this district recently granted an application for a writ of habeas corpus to one Homer Jack Dean, its entry - reciting that “the entry of commitment for petitioner, Homer Jack Dean is void and without effect and that he is therefore being illegally detained by respondent, Ralph W. Alvis, Warden.” In that case Dean was “remanded to the custody of the Franklin County Sheriff for further proceedings according to law.”

Here petitioner asserts not only that he is being illegally detained due to the lack of a signature of the judge on the “commitment papers” but also that he cannot be remanded to Cuyahoga County because he was “placed once in jeopardy and cannot be subjected again for the same offense.” Before discussing other aspects of this ease, it would be well to lay this latter contention to rest. Obviously, if the Cuyahoga County Common Pleas Court lacked jurisdiction, he was not in jeopardy. It is equally obvious that if petitioner were in jeopardy, such court did have jursidiction.

The record of this case is clear that the Penitentiary officials did not received from Cuyahoga County any papers with reference to petitioner, which were signed by the judge who pronounced sentence, Judge Nicola. Instead, in literal compliance with §2949.12 R. C., the Clerk of Courts furnished to the Sheriff, who delivered into the custody of the respondent “a copy of such sentence which shall clearly describe the offense and designate the sections of the Revised Code under which conviction was had, together with a copy of the indictment.” The Clerk certified the same to be “a true copy of said Judgment and Sentence” and further certified that such was taken from the Journal of the Court, referring to the specific volume and page number of such Journal. Apparently, it is the claim of the petitioner that these papers received by the respondent are the “commitment papers” which he contends are of no force and effect in the absence of the signature of Judge Nicola threon.

This claim clearly is without merit. The only papers which the law prescribes to be delivered to the head of the penal institution, are those required by §2949.12 R. C., which are furnished by the clerk. These papers or documents constitute the formal authentication of the authority of the penal officials to accept and retain custody of the prisoner. The statute obviously does not require or provide for the signature of the sentencing judge thereon.

What then is meant by the reference in the entry of the Court of Appeals in the Dean case to “the entry of commitment” which was stated to be “void”? Since there is no statute employing such phraseology, we are somewhat at a loss to know. It is possible that such language was employed because of the fact that the printed form, employed by the Clerk of Courts of this county, in performing his statutory duty of furnishing “a copy of such sentence which shall clearly describe the offense and designate the sections of the Revised Code, under which conviction was had,” had printed thereon as a sub-heading, the words “Journal Entry — Commitment” and below the recitation of the sentence had printed a line, apparently for signature, with the word “Judge” below such line, In the Dean case the name of the trial judge was typed on such line but his signature did not appear thereon. If the action of the Court of Appeals in the Dean case was based on the lack of the signature of the judge on this particular piece of paper received by the penal officials, this case is identical.

To what extent is the action of the Court of Appeals in the Dean case a binding legal precedent on this Court in this case? In that case the attorney for the respondent conceded that Dean was entitled to his release from the Penitentiary. Because of such fact, that Court had no occasion to examine carefully into the law or to render any considered decision as to the questions which could have been raised but were not. We, therefore, do not consider the action of the Court of Appeals as being any binding legal precedent in this case. As we have heretofore stated, the papers or documents received by the penal officials in this case were in literal compliance with the requirements of §2949.12 R. C. Neither this statute nor any other statute nor any principle of law required the signature of the sentencing judge.

In view of the fact that the petitioner conceded at the hearing in this cause that by the use of the words “commitment papers” in his petition, he had reference to the papers received by the penal officials, we perhaps could terminate this decision at this point and deny the relief sought. However, another legal question is presented, not fully understood by the petitioner, but which we believe must be determined. This is the question of whether petitioner is entitled to his release from confinement in the absence of the signature of the sentencing judge on an entry of sentence. In the hearing in this cause, counsel for respondent conceded that, in accordance with the procedure followed in Cuyahoga County, Judge Nicola orally pronounced sentence and judgment and entered such in writing on the bench docket, signing such bench docket, but at no time signed any “journal entry” of sentence and judgment. Such sentence and judgment was then entered on the journal by the clerk.

Here again the basic facts are not distinguishable from the Dean case. In that case, too, the judge, in accordance with the procedure followed in Franklin County, orally pronounced sentence and judgment and entered such in writing on the bench docket after which the sentence and judgment was entered on the journal by the clerk, but at no time did the judge sign any “journal entry” of sentence and judgment. It is possible therefore, that the action of the Court of Appeals in the Dean case wa^ predicated on the theory that there can be no valid sentence and judgment in a criminal case in a common pleas court in the absence of a journal entry signed by the judge. If that was the rationale upon which such action was based, again we are of the opinion that such action is not a binding legal precedent in this case in view of the fact that such action was based on a concession of counsel for respondent therein and, in effect, was an agreed entry.

In approaching this problem we believe that it is necessary to keep in mind the distinction between the journal or an entry made on the journal and a “journal entry” in the sense of a paper signed by the judge. The former is made up and entered by the clerk. The latter, after being signed by the judge, is filed with the clerk as his authority to make a specific entry on the journal. Basically, therefore, the questions presented in this phase of the case are (1) has the clerk any authority to enter the sentence and judgment in the journal in the absence of the filing with him of a paper writing, commonly referred to as a “journal entry,” signed by the judge, and where such was entered by the clerk in the absence of the filing with him of such a “journal entry” is there a valid sentence and judgment, and (2) even if the clerk had no such authority, would such lack of authority entitle petitioner to release from confinement in an action in habeas corpus.

The first question involves a consideration of the statutory powers and duties of the clerk with regard to the keeping of such journal and a consideration of the powers and duties of the court, acting through the judge, in sentencing, rendering judgments and supervising and controlling the records kept by the clerk.

Sec. 2303.08 R. C., provides that “The clerk of the court of common pleas shall * * * enter all orders, decrees, judgments and proceedings * * Sec. 2303.12 R. C., provides that the clerk “shall keep” a journal. Sec. 2303.14 R. C., provides that the clerk “shall keep the journals * * * appertaining to the court and record its proceedings.” The bond of the clerk, provided by §2303.02 R. C. is conditioned, among others, “that such clerk shall enter and record all the orders, decrees, judgments, and proceedings of the courts of which he is the clerk.” Sec. 2303.26 R. C. provides that the clerk “shall exercise and perform the duties enjoined upon him by statute and by the common law; and in the performance of his duties he shall be under the direction of his court.”

It is clear that by the terms of these statutes, the clerk not only has the authority but the duty of entering on the journal the orders and judgments of the court. These statutes do not attempt to define the procedure by which the clerk will ascertain the fact that such orders or judgments were made by the court but instead provide in broad language that in the performance of such duties, the clerk shall be under the “direction of his court.” So far as these statutes are concerned, it is entirely discretionary with the court as to the procedure chosen to insure the accuracy of the entries into the journal by the clerk. While a judgment should not be entered on the journal except in the manner stated by statute, Craig v. Wemply, 104 Oh St 312, 315, here the only statutory requirement is that it shall be under the direction of the court.

We are acquainted, of course, with the provisions of §2323.15 R. C. which provides that when a trial by jury has been had and a verdict rendered, “a journal entry of judgment in conformity to the verdict shall be approved by the court in writing and filed with the clerk for journalization.” Where such statute is applicable the broad discretion of the court in the selection of the procedure for the journalization of a judgment, as provided in §2303.26 R. C., is restricted and the clerk is not authorized to enter the judgment on the journal itself until there is filed with him such “journal entry.” This statute is limited to its terms however. Craig v. Wemply, supra. It can have no application here because (1) there was no trial by jury, there being a guilty plea, and (2) it has application only to civil cases. Sec. 2323.15 R. C. (formerly §11599 GC and §5356 R. S.) was originally enacted in 1853 in an act entitled “an act to establish a code of civil procedure.” 51 Ohio Laws, 57.

The code of civil procedure is not applicable to criminal proceedings. Steen v. State, 20 Oh St 333; Benedict v. State, 44 Oh St 679. As a further and more recent indication of legislative intent, we note that in the recodification of the statutes of Ohio into the Revised Code, the General Assembly enacted not only the text of the statutes but also the title and chapter headings. Title 29 is designated as “Crimes— Procedure” and Chapter 2947 as “Judgment; Sentence.” This Title and Chapter contain no language similar to that contained in §2323.15 R. C. and have no provisions of any kind purporting to limit the discretion of the court in his direction to the clerk in the performance of his ministerial duty of entering the orders and judgments of the court on the journal.

For the same reason the provisions of §2323.22 R. C. providing for journalization “as of the date of the filing of said entry or of the written direction by the court” have no application. This section too, was originally enacted in 51 Ohio Laws, 57, as a part of the code of civil procedure.

Having concluded that there are no statutes, applicable to criminal cases, which in any way restrict the duty of the clerk to enter the orders and judgment of the court on the journal, we are met with the question of whether such a requirement is intrinsic in judicial process. We conclude that it is not. As stated in 30 Am. Jur. 833, a judgment need not be signed in order to be effective. The signature of the judge is regarded as merely giving the clerk a surer means of correctly entering that which has been adjudged. See also 30 A. L. R. 715.

It is true, of course, that a judgment does not become effective in every sense until it is entered on the journal and that this is true in both civil and criminal cases. It is equally true that where there is a statutory requirement of the signature of the judge as a condition precedent to the entry on the journal and the judgment is entered without such signature, questions may arise as to the validity of such judgment. In the absence of such a statutory requirement, however, we believe that the journal, showing such 'judgment, is conclusive.

This position is supported by the case King v. King, 38 Oh St 370. There the judge made an order in chambers but neither the order nor the journal was signed by the judge. The order was entered on the journal, however, by the clerk. The Supreme Court concluded that the order “was entered on the journal by the direction of the judge is required by statute” and that “the signature of the judge to the order, or journal entry thereof, is not essential to the validity of the order.”

In the King case it will be noted that the court referred to “journal entry” in the sense of the entry by the clerk on the journal. In the same way the reference in the case of In the Matter of Fenwick, 110 Oh St 350, to the necessity that a sentence be “journalized” is to such an entry on the journal itself and the latter case, therefore, has no application to the question of the requirement of the judge’s signature, as a condition precedent to rendering judgment.

In the case of Cox v. Fogle, 84 Oh Ap 179, the Court of Appeals of this district held that an oral pronouncement from the bench by a municipal court judge of an order as a specific requirement of probation was of no force and effect “without the preparation and filing of a journal entry.” There a “Probation Entry” in the sense of a separate piece of paper, had been signed by the judge but never filed with the clerk. The journal stated merely that the defendant was “placed on probation on condition that he pay a fine of $250 and costs.” The Probation Entry contained other conditions, which were never entered on the journal. Thus the Court, in effect, held that the entry into the journal itself is the sole basis for determination of the scope of the order and judgment of the trial court. It should be noted that the entry in the journal in the Cox case, as accepted by the Court of Appeals as being the judgment of the trial court, was prepared by the clerk, without any written direction signed by .the trial judge. The Cox case, therefore, cannot be construed as requiring in a criminal case the signature of the judge as a condition precedent to judgment or to the entering of such judgment on the journal.

In further support of the conclusion, reached here, that in the absence of any statutory requirement, judgment may be rendered by entry into the journal without the signature of the judge, either on the journal itself or on a separate piece of paper, often referred to as a “journal entry,” see Osborn v. State, 7 Ohio 212, which held that the signature of the judge was not necessary.

As a further indication of the fact that there is no basic and intrinsic principle of judicial process requiring the signature of the judge as a condition precedent to judgment, we note that the duties of the Clerk of the Supreme Court of Ohio, as contained in §2503.11 R. C., are substantially identical to those of the Clerk of the Court of Common Pleas. He is required to “enter and record the orders, judgments, decrees and proceedings of the supreme court.” All this he does, as a matter of fact, without any written direction in the sense of a “journal entry” signed by the judges of such court or by any of them. If such a signature be required in the absence of a statutory provision to that effect, it would appear that all cases filed in the Supreme Court are still pending and that no “judgments” have ever been rendered by that court.

Such a contention would be absurd. The function of the Clerk of the Supreme Court in entering and recording the orders and judgments of that court is merely the performance of a ministerial act. The act of the Clerk of the Court of Common Pleas Court likewise is a ministerial act. See Benedict v. State, 44 Oh St 679. In that case the jury in a criminal case was unable to agree and was discharged. This fact was recited on the trial docket by the judge. In making up the journal the clerk omitted the reason for such discharge. At a second trial the defendant claimed double jeopardy. The court then ordered a nunc pro tunc entry and proceeded with the trial on the merits. Such action was upheld by the Supreme Court, the opinion stating at page 685:

“The fact and reason of the action of the court was duly entered upon the court docket, and all that the court could do was done. Judicial action was taken, but there was failure so to make up the journal as to show such action.”

In the language of the Benedict case, Judge Nicola here did all that could be done. He performed his judicial function of pronouncing sentence and judgment and entered such on the court docket. The clerk in turn did all he could have done. He performed his ministerial duty of making up the journal by entering thereon such sentence and judgment.

See also Hocking Valley Ry. Co. v. Cluster Coal and Feed Co., 97 Oh St 140, wherein it was held that the determination and announcement of the court’s conclusion is judicial while the entry by the clerk of such decision is purely ministerial.

We are also mindful of the contention that a sentence is only “pronounced” by some written instrument signed by the judge. We have concluded, heretofore, that there is no basic or intrinsic principle of judicial process, independent of statute, requiring such a writing or signature as a condition precedent to judgment.

The statutes of Ohio relative to the pronouncement of sentence and judgment read as follows:

“Before sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he has anything to say as to why judgment should not be pronounced against him.” Sec. 2947.05 R. C.
“If a convicted defendant does not show sufficient cause as to why judgment should not be pronounced, the court shall pronounce the judgment.” Sec. 2947.07 R. C.

It will be noted that both the sentence and judgment are “pronounced.” It is a basic rule of statutory construction that words of a statute will be construed in their ordinary acceptance and with the meaning commonly attributed to them. 37 O. Jur. 542. “Pronounce” has its origin in the French word “pronuntiare” which means to proclaim, announce, rehearse, narrate. Other dictionary definitions of pronounce are to utter, declaim, recite, assert, to declare aloud, tell, report, articulate. Certainly, there is nothing implicit in the use of the word “pronounced” which would be indicative of any legislative requirement that the sentence and judgment be “pronounced” in a writing signed by the judge. To the contrary, the ordinary, everyday use of such word would import clear authority to the judge to do exactly what was done here —to orally state from the bench the sentence and judgment of the court.

In Long v. Minto, 158 P. 805, the court said:

“The judgment is rendered when the judge performs the judicial act of pronouncing sentence, and a memorial of that judgment is made when the clerk performs the ministerial act of writing the entry in the journal, 23 Cyc. 835. The judge does his duty when he renders the judgment. The clerk discharges his duty when he enters the judgment in the journal. Having entered the judgment, the clerk gives a certified copy of the entry to the sheriff, who then delivers the body of the defendant, ‘togethetr with a copy of the entry of judgment, to the keeper of such prison.’ ”

See also Foster v. Zerbst, 92 Fed. (2d) 950; Brice v. King, 137 Fed. (2d) 495; Walden v. Hudspath, 115 Fed. (2d) 558; Watkins v. Merry, 106 Fed. (2d) 360; Smith v. Amrine, 134 P. (2d) 400; Patton v. State, 21 So. (2d) 844; Moore v. State, 97 P. (2d) 925; 15 Am. Jur. 444; and 30 A. L. R. 700.

Even if it be assumed that there be some requirement, unknown to this court, that the sentence and judgment be “pronounced” by a written document signed by the judge or that the clerk has no authority to enter a sentence or judgment on the journal in the absence of some written document signed by the judge, we would still be required to deny plaintiff the relief he seeks in an action in habeas corpus.

Sec. 2725.05 R. C., reads as follows:

“If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed. If the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order.”

The issue presented in habeas corpus proceedings does not involve a consideration of the procedures followed by the court in rendering judgment or making an order, but only of the jurisdiction of the court to render such judgment or make such order. Furthermore, the statute provides that the petitioner “shall not be discharged by reason of any informality or defect in the process, judgment or order.” If such a requirement did exist, its omission would be at best an “informality or defect” in the judgment or order. Sentencing is not a game in which the wrong move by the judge means immunity for the prisoner.

Even in those states where there is a statutory requirement of the signature of the judge, such statutes are regarded as directory only, and not as going to the jurisdiction of the court. 15 Am, Jur. 105.

In Bailer v. Dowd, 40 N. E. (2d) 325, release from confinement was denied in an action in habeas corpus, even though a statute required such signature, the court stating that the petitioner’s theory predicates a void judgment and holding that such judgment was not void but merely irregular. See also Newsom v. Miles, 44 N. E. (2d) 287.

To hold otherwise would constitute a collateral attack which, in effect, would amount to a request to this court, either to ignore or to correct the journal of the Cuyahoga County Common Pleas Court. The journal of that court shows a sentence and judgment. Such journal imports absolute verity. See Shober v. State, 11 Oh Ap 37; Santo v. State, 17 O. C. C. (n. d.) 110. If such journal is not correct, the trial court is the only court which can correct such error. Smith v. Bd. of Ed., 27 Oh St 44. The Court of Common Pleas of Cuyahoga County obviously had jurisdiction to render such judgment and this action in habeas corpus, because of the provisions of §2725.05 R. C., presents only such jurisdictional question.

For the reasons heretofore stated, we find that petitioner is not entitled to be discharged from custody in the Ohio Penitentiary. He, therefore, is ordered remanded to custody. Entry may be prepared accordingly by counsel for respondent in accordance with our rules of civil procedure and submitted to the court for signature.


source: Caselaw Access Project

author: By MILLER, PJ.

license: Public Domain

text:
    HASSELWORTH, Petitioner, v. ALVIS, Warden, Ohio Penitentiary et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 5508.
    Decided August 10, 1956.
    Edwin Hasselworth, Columbus, for himself.
    C. William O’Neill, Atty. Geni., John W. Shoemaker, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By MILLER, PJ.

This is an action in habeas corpus wherein the petitioner is seeking his release from the Ohio Penitentiary for the alleged reason that he was never indicted for the offense for which he was penalized. The record reveals that the petitioner was regularly indicted by the grand jury for Van Wert County at the September Term, 1953, for the offense of burglarly in the night season of an uninhabited dwelling, contrary to §12438 GC; that a plea of guilty was entered to such an unlawful breaking and entering in the day season, to wit, at three o’clock in the afternoon; that thereupon the court amended the indictment by striking out the word “night” and substituting “day.” The question presented is whether or not the indictment was subject to such an amendment. Sec. 13437-29 GC, which was in effect at that time (now §2941.30 R. C.) permit certain amendments to an indictment “provided no change is made in the name or identity of the crime charged.”

Under the facts presented we are of the opinion that the amendment changed the identity of the offense from that of “burglary” under §13437-29 GC to that of “breaking and entering in the daytime” in violation of §12442 GC. In the case of Kramer v. Alvis, No. 5400, Franklin County, April 12, 1956 (74 Abs 430), this Court had under consideration these same sections of the General Code and we there held that the two offenses were separate and distinct and that under a charge of “burglary” a jury was not entitled to an instruction that it might find the defendant guilty of “breaking and entering in the day season” if such a fact were established. We there stated, “Had the jury returned such a verdict (that of guilty of breaking and entering in the day season) it would in our judgment have required at least the granting of a motion for a new trial.” The judgment was affirmed in 163 Oh St 510, but without discussion of the question of included offenses.

We therefore hold that the amendment was made contrary to the provisions of §13437-29 GC; that before a plea of guilty to breaking and entering in the daytime could have been entertained a new indictment should have been returned charging such an offense. The application is allowed and the petitioner is ordered discharged.

HORNBECK and WISEMAN, JJ, concur.


author: By PHILLIPS, PJ.

text:
    HUMPHREY et, Plaintiffs-Appellants, v. YOUNGSTOWN (City) et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3788.
    Decided October 6, 1955.

      Carl Armstrong, R. R. Thombs, Youngstown, for plaintiffs-appellants.
    Felix S. Mika, Law Director, Joseph L. Heffernan, Asst. Law Director, Youngstown, for defendant-appellee, City of Youngstown.
    Warren E. Grant, Youngstown, for defendant-appellee, John Kane.
   By PHILLIPS, PJ.

Mellinger, part owner with plaintiffs of a several hundred acre tract of land situated in Youngstown, Mahoning County, Ohio, on which a large number of residences are situated, applied to the Council thereof to rezone his land from a residence to an industrial zone.

The Planning Zoning Commission of that city recommended to the Council thereof that Mellinger’s application be granted, and that the Mellinger’s land and that of others be likewise rezoned.

On December 23, 1952, an ordinance prepared in conformity with the recommendation of the Zoning Commission was introduced in the Council of the City of Youngstown, and after having been read once was laid on the table by duly passed motion.

On second reading on December 29, 1953, the ordinance was tabled again by unanimous vote of council.

By motion duly made at a special meeting of council held on June 21, 1954, the ordinance was read a third time and passed by a vote of four to three.

Duly enacted Youngstown City Ordinance number 51362, adopted in 1950, governing zoning rules of procedure, was at the time the rezoning in question was made and still is unamended and unrepealed.

Plaintiffs commenced an action in injunction and to void such ordinance in the court of common pleas in behalf of themselves and other owners of such land, claiming there as they claim by brief here:—

“* * * that the zoning classification of the area involved was illegal and contrary to law and the constitution of the State of Ohio and that the trial court was in error in the following particulars:
“No. 1. In holding that when the Council of the City of Youngstown took the rezoning ordinance from the table such action amounted in substance to a suspension of the Rules of Council and that such action indicated the intention of the Council to suspend the Rules contained in the ordinance so that this rezoning ordinance could be passed and, as said by the Trial Court ‘the courts must give effect to the obvious intention of the legislative branch of the city government.’
“No. 2. That when the City of Youngstown adopted a general zoning ordinance some 25 to 30 years ago it invited property owners to build their homes in the area affected by this zone change and when in response to that invitation these appellants and others similarly situated in the area built their homes relying on the zone classification theretofore made by the city said property owners acquired certain rights that are protected by the Constitution of the United States and the Constitution and Laws of the State of Ohio.”

The trial judge dismissed the injunction and held the ordinance validly enacted and in full force and effect, and it is from that action and judgment of the trial court that plaintiffs appealed to this court on questions of law.

With reference to their first assigned ground of error plaintiffs stated by brief:—

“The court on the trial indicated that he was not much impressed with the first issue and would be reluctant to invalidate the ordinance in question on the ground of abuse of, discretion. Accordingly plaintiffs feel that to present a discussion of this issue further would be fruitless and so, without abandoning it, we content ourselves with merely bringing it to the attention of the court.”
In support of their second assigned ground of error plaintiffs argue:— “* * * that under the rules of council adopted by the formal enactment of Ordinance No. 51362, the rezoning ordinance in question when once laid on the table was finally disposed of, and the council was without lawful authority to lift it from the table and thereafter pass it, and that as a consequence the ordinance is invalid and of no effect in law.
“* * * In summation we wish to say that Ordinance No. 51362 was a formal enactment of law by the City Council with as much legal dignity, authority and force as the statute or Youngstown Charter; that it could only be repealed or amended by legislative action of equal importance or formality as the original enactment of said Ordinance No. 51362; that rules contained in Ordinance No. 51362 could not be ignored in the subsequent enactment of municipal legislation; that when the rezoning ordinance in question was laid on the table it was finally disposed of, as if it had never been introduced in Council, or as if it had received a final negative vote resulting in its failure to pass; that when the City Council, almost a year after it had laid this rezoning ordinance on the table, attempted to remove it from the table by motion, such action was completely illegal and void and of no effect; the ordinance was dead and no legislative hocus-pocus could again breathe the breath of life into it or result in the accomplishment of the legislative miracle of restoring it to life.”

Briefly plaintiffs clqim that because the Council of the City of Youngstown departed from its own rules in adopting the ordinance it is illegal and void notwithstanding the ordinance was legally adopted in all other respects; and that since the ordinance in question was laid on the table by such council that thereafter it could not lift it from the table and pass it.

Defendants contend first that Rule 27 of such ordinance was merely a parliamentary rule which council of the City of Youngstown could observe, ignore, or by taking action contrary thereto could indirectly and inferentially abrogate.

Rule 27 as applicable provides “the motion to lay on the table shall dispose finally of the legislation against which it is invoked * *

Defendants contend that the second question in the case presented by plaintiffs’ appeal is:—

“In view of Section 24 of the Zoning Ordinance, which establishes the right of a property owner to apply for a change in relation to his own property, is a petition by a property owner the sole means of effecting a change, or may the city itself, acting through the Council, initiate a change?”

Defendant city suggests by brief:—

“Counsel for the plaintiffs argue that when an ordinance is laid on the table it is finally disposed of, that there are only two ways that such an ordinance can again be brought to the consideration of the council, that one way is by reintroducing the ordinance as a new ordinance, and that the other is by motion to suspend the rules and lift the ordinance from the table.”

That contention presents the question of what discretion the council has in adhering to and changing its own rules.

It is said in 30 O. Jur. 693:—

“The fact that procedure is not in all respects in accordance with the rules of parliamentary law is not fatal to the action of the body, if the procedure was all that the statute requires, especially in the case of proceedings of a village council.”

See also 28 O. Jur. 288, Municipal Corporation; Madden v. Smeltz, 2 O. C. C. 168, 1 O. C. D. 424.

The case of Madden v. Smeltz, supra, is distinguished from the one under consideration by the fact that in that case the council operated under general rules established in parliamentary law whereas council of the city of Youngstown adopted its own rules. However, in our opinion the principle announced in the case of Madden v. Smeltz, supra, is applicable to both cases.

“It is not to be expected that the technical rules of parliamentary law, which are enforced for the convenience in governing and controlling legislative bodies, should be vigorously applied to the proceedings of a Village council.” Madden v. Smeltz, 1 o. C. D. 424 at 427.

“The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.” United States v. Ballin, 144 U. S. 1 at page 5.

The foregoing decision is supported by the decision rendered in the case of State, ex rel. v. Moore, 124 Oh St 258, where it is said at page 258:—

“* * * The situation is therefore exactly the same as if after the passage of the Pringle Act, and within the time limited therefor, a motion for reconsideration had been made and adopted. True, the Marshall Bill was not in form a motion to reconsider. The Marshall Bill was not introduced, as far as the record shows, until after the lapse of considerable time after the Pringle Bill had been signed by the Governor and filed in the office of the secretary of state. The rules of the General Assembly seem to provide that a motion to reconsider should be filed within two days after the previous question is ordered in each house. The two-day rule is a rule of the General Assembly, not prescribed by the Constitution. Section 8 of Article II of the Constitution authorizes each house to determine its own rules of proceeding. Sections 9 and 16 prescribe certain rules which are mandatory, and a failure to observe them might be inquired into by the courts, and if it is found that the Legislature has violated the constitutional limitations it would be within the power of the court to declare the legislation invalid. The provision for reconsideration is no part of the Constitution and is therefore entirely within the control of the General Assembly. Having made the rule, it should be regarded, but a failure to regard it is not the subject-matter of judicial inquiry. It has been decided by the courts of last resort of many states, and also by the United States Supreme Court, that a legislative act will not be declared invalid for noncompliance with rules.”

In the first .syllabus of the opinion written in the case of St. Louis & San Francisco R. Co. v. Gill, 11 L. R. A. 452, the court said:—

“That a statute was passed without the observance of the joint rules of the General Assembly, which regulate the passage of statutes, will not make it invalid, as their observance is a matter entirely within the legislative control and discretion, not subject to review by the courts.”

In the body of the opinion written in St. Louis & San Francisco R. Co. v. Gill, supra, the court at page 453 said:—

“The joint rules of the General Assembly were creatures of its own, to be maintained and enforced, rescinded, suspended or amended, as it might deem proper. Their observance was a matter entirely subject to legislative control and discretion, not subject to be reviewed by the courts.”
“The division of governmental powers among the three departments of government, each of which is separate from the others, and all of which are co-ordinate, is one of the fundamental principles of the American Constitutional system.” 76 L. Ed. Page 967.

In the case of McDonald v. State, 50 N. W. 185, the court at page 186 said:—

“When it appears that an act was so passed, no inquiry will be permitted to ascertain whether the two houses have or have not complied strictly with their own rules in their procedure upon the bill, intermediate its introduction and final passage. The presumption is conclusive that they have done so. We think no court has ever declared an act of the legislature void for non-compliance with the rules of procedure made by itself, or the respective branches thereof, and which it or they may change or suspend at will.”

In State v. Savings Bank of New London, 64 Atl. 5, the court at page 9 said:—

“Rules of proceedings are the servants of the House and subject to its authority. This authority may be abused, but when the house has acted in a matter clearly within its power, it would be an unwarranted invasion of the independence of the legislative department for the court to set aside such action as void because it may think that the house has misconstrued or departed from its own rules of procedure.”

In the citations under Section 13.42 of McQuillin on Municipal Corporations, pages 524, 526 and 527, we find the following:—

“A city council is not bound to act in accordance with its rules or by-laws but may waive them. Sedalia v. Scott, 104 Mo. App. 595, 78 S. W. 276.
“And this is impliedly done when action is had not in accordance therewith. Bradford v. Jellieo, 1 Tenn. Ch. App. 700.
“The mayor and councilmen, or other officers of a municipal corporation, are not usually selected because of their learning in the law, their nice observance of its forms, or their instruction in fine distinctions. If their action is to be subjected to rigid criticism, much of it done in good faith, and in the spirit of their defined authority, would be avoided. Woodruff v. Stewart, 63 Ala. 206, 215.
“The validity of the action of a legislative body will be upheld by the language of the proceedings of the meetings if it is fairly susceptible of such construction. Bryant v. Pittsfield, 199 Mass. 530, 85 N. E. 739.
“Mere departure from form not vital unless law so declares. Rogers v. Mendota, 200 111. App. 254, 257, approving McQuillin text.”

No rules for the conduct of the council of the city of Youngstown are prescribed by its charter. Accordingly council violated no provision of such charter and since Article 18, Section 3, Ohio Constitution, providing Home Rule is silent concerning rules for council governing its conduct in our opinion there has been no violation of the Constitution of Ohio.

However there is a specific expression on the subject in §731.45 R. C., where it is said:—

“The legislative authority of a municipal corporation shall determine its own rules. * * *.”

For other cases supporting the principle under discussion see Oakley v. City of Atlantic City, 63 New Jersey Law Report 127, Lake v. Ocean City, 62 New Jersey Law Report 160; United States v. Ballin, supra; and Decker v. City of Toledo, 56 Oh Ap 344.

The council of a municipality is a continuing body and remains the same council regardless of changes in its personnel.

“Accordingly proceedings which have been lawfully begun by a preceding council can be prosecuted by succeeding councils until completed and made effective.” McQuillin, Volume 4, Section 1340, Page 520.

A new council may proceed where a prior council left off. Van Cleve v. Wallace, 216 Minn. 500, 13 N. W. (2d) 467.

As a continuing body, the council may act on its proceedings until a final determination.

“ ‘It is the undoubted right of corporate bodies, unless clearly restrained by legislative enactment, to reconsider a vote as often as they see fit, or to rescind the same, provided vested rights are not disturbed, up to a time when by a conclusive vote, accepted as such by itself, a determination has been reached. * * ” State, ex rel. McClain v. Cleveland, 8 O. C. D. 357 at 362.
“It is said to be a well-established rule that the action of municipal bodies respecting legislative or administrative matters is not always conclusive and beyond recall, but that they are possessed of inherent power to reconsider their action in matters of that nature, and adopt, if need be, the opposite course in all cases where no vested rights of others have intervened, the power thus to act being a continuing power.” 28 O. Jur., Section 161, Page 287.

In the case being reviewed the evidence discloses, and we hold, that Council of the City of Youngstown adopted the rules in question by motion and not as plaintiffs contend by a duly enacted ordinance.

By brief counsel for defendant City of Youngstown state:—

“When the ordinance for the proposed change in zoning was lifted from the table, the motion was made by Mr. Dolak in a regular meeting. He then moved that it be advanced to third reading. The two motions were made the same way that all motions are made, and they were carried by a majority of the elected representatives of the people of Youngstown.”

Mr. Lemon, Clerk of the Council of the City of Youngstown testified from the minutes of the Council thereof as follows:—

“‘Mr. Dolak, Re: Ordinance No. 56155. We have lifted from the table tonight what was the zone change approved by the planning commission. The ordinance was tabled by me because we felt that we did not have enough information. The owner called upon me to give him some definite action on whether or not it would be passed. If council still feel they do not know enough about the ordinance I suggest they contact Mr. Stollman.” ”

Now as to plaintiffs’ claims of vested property rights acquired by the zoning ordinance adopted by the City of Youngstown “some 25 or 30 years ago” it is said in McQuillin on Municipal Corporations, Volume 8, Section 25.65, page 115:—

“Clearly a municipality vested with the power to comprehensively zone its area must have power to amend its zoning ordinances from time to time where there are substantial changes of conditions, which inevitably occur, and where the amendment has some reasonable relation to the end sought to be obtained, viz., furtherance of the public interest. The reason is that zoning is not static, but it changes with changed conditions and the complexities of the modern age. If the rule were otherwise there would be no progress * *

It is apparent from what we have said in this rather lengthy opinion that the judgment of the trial court must be and is affirmed for the reason, as clearly stated by the trial judge, the action of council “amounted in substance to a suspension of the rules and putting the ordinance on its passage.” This statement is supported by the case of State, ex rel. Moore, supra, where it is said, as stated elsewhere herein:—

“Having made the rule, it should be regarded, but a failure to regard it is not the subject-matter of judicial inquiry. It has been decided by the courts of last resort of many states, and also by the United States Supreme Court, that a legislative act will not be declared invalid for noncompliance with rules.”
“It is not necessary for the body to note on its minutes that the rule has been suspended, there being no objection on the part of any member and all members being present.” 30 O. Jur., Section 5, Page 693.

Counsel for defendant-appellee, John Kane, urges by brief that:—

“1. Non compliance of city council with its own rules in the enactment of legislation does not make invalid a legislative act. State v. Moore, 124 Oh St 256.
“2. In the instant case Youngstown city council substantially complied with its rules.”

We concur in this statement.

It is apparent from what we have said at some length that the judgment of the trial court must be and is affirmed hereby.

GRIFFITH, J, concurs.

NICHOLS, J, concurs in judgment.


author: By THE COURT:

text:
    WASHINGTON COURT HOUSE (City), Plaintiff-Appellee, v. CARSON, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 280.
    Decided March 23, 1956.
    William M. Junk, City Solicitor for the City of Washington, for plaintiff-appellee.
    J. Harvey Crow, Cleveland, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to strike from the files the last page of the bill of exceptions an affidavit of Deloracy Carson.

On February 16, 1956, we remanded this bill to the trial judge for diminution of the record. On the 23rd of February, 1956, the corrected bill was signed, settled and allowed by the trial judge. The affidavit in question was notarized on August 5, 1955.

The presumption is that this affidavit was incorporated in the bill when signed by the trial judge. It is not our function to settle, correct or delete a bill unless it is obvious on its face that such change should be made. If the affidavit was not in the bill when signed this should have been called to the attention of the trial judge.

Motion overruled.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By MARSHALL, J.

text:
    111 BAR, INC., Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Common Pleas Court, Franklin County.
    No. 191785.
    Decided November 9, 1955.
    Trabert & Gay, Cincinnati, for appellant.
    C. William O’Neill, Atty. Geni., for appellees.
   OPINION

By MARSHALL, J.

This case is an appeal from an order of the Board of Liquor Control suspending the permits of appellant for two periods of 30 days each but the penalties to run concurrently.

The charges were (1) that the appellant, and/or its agent, did knowingly and willfully allow on the permit premises improper and in-decedent conduct, in aiding and abetting prostitutes soliciting upon the permit premises, and (2) that appellant and/or its agent, was convicted in the Municipal Court of Cincinnati for aiding and abetting prostitution upon the permit premises.

The testimony upon which the first order is predicated consists of the testimony of one Andrew Snyder, and officers of the Cincinnati Police Department. Mr. Snyder went to the permit premises, had some drinks, then talked with a waitress about getting a “decent woman” and “spending the evening.” Later the waitress asked Mr. Snyder to come up front to meet two girls, and the waitress made the introductions. Mr. Snyder sat with the girls and ordered beers for them. Later he asked the waitress to call a cab and all three left and went to a hotel where said Mr. Snyder and one of the girls went to bed together.

The record is quite clear that the girl who went to bed with Mr. Snyder was a prostitute. The waitress knew what Mr. Snyder wanted and aided in the solicitation for the purpose of prostitution. The permit holder had no actual knowledge of the incident described.

The law is well established that a permit holder is responsible for the acts of his employees which are in violation of the Liquor Control Act or Regulations of the Board of Liquor Control. See Wallace v. Board of Liquor Control, 64 Abs 477. Knowledge of solicitation on the part of the waitress, an employe of the permit holder, may be imputed to the permit holder. See Wittenberg v. Board of Liquor Control, 52 Abs 65, decided by the Court of Appeals of this county on April 21, 1948. The fact that the parties left the premises of the permit holder to complete their acts does not detract from the charge that the waitress aided and abetted the prostitute in soliciting on the premises of the permit holder.

The second violaion pertained to the conviction of the waitress for aiding and abetting prostitution upon the permit premises. This is supported by Exhibit “B,” received in evidence by the Board, which is a certified copy of the records of the Municipal Court of Cincinnati which showed that said waitress was found guilty of §2905.127 R. C.

We believe that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence, and is in accordance with law, and its order of suspension for two periods of 30 days each, to run concurrently, is affirmed.


author: By SKEEL, J:

text:
    WHITING et, Plaintiífs-Appellees, v. BRYANT, Defendant-Appellant, CLEVELAND TRUST COMPANY, Trustee, Defendant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23330.
    Decided January 18, 1956.
    Van Aken, Whiting, Arnold & Nash, for plaintiffs-appellees.
    Arter, Hadden, Wykoff & Van Duzer, L. C. Wykoff, Walker H. Nye & Thomas V. Koykka, of Counsel, for defendant-appellant.
    Richard F. Stevens, Baker, Hostetler & Patterson, for defendant The Cleveland Trust Co.
    (NICHOLS, J, of the Seventh District sitting by designation in the Eighth District for KOVACHY, JJ
   OPINION

By SKEEL, J:

This appeal on questions of law and fact comes to this Court from a judgment of the common pleas court of Cuyahoga County, removing the defendant, George A. Bryant from the voting committee provided for under provisions of the Sarah and Samuel Austin Trusts, the court finding by its judgment that there was a conflict of interests.

In 1930, Samuel and Sarah Austin each created an inter vivos trust appointing The Cleveland Trust Company trustee to carry out its purposes. The primary assets of each trust was and is stock, both common and preferred, of The Austin Company. The Austin Company was incorporated in 1904 by Samuel Austin in the development of his construction business. From the very beginning, the stock of the Company was held within The Austin Family and The Austin Company. It is what is known as a closed corporation. None of its stock has ever been sold on the open market and when issued to officers and employees other than members of the family, the right to repurchase such stock was provided for in most cases by contract, in the event the stockholder-employee left the services of the Company.

The record shows that the privilege of purchasing stock by officers and employees was inaugurated by Samuel Austin in 1916 when the number of outstanding shares was increased 811 to 1511. From that time until 1936, the number of employee shareholders was slightly increased. After the death of Samuel Austin and while his son, Wilbert .T. Austin, was President, the stock incentive plan was increased so that at the time of his death in 1940 there were twenty-six shareholders. The defendant, Mr. Bryant, became General Manager in 1934 and President in late 1940 and has held those offices to the date of this hearing. During this period, the number of employee stockholders has been greatly increased and the evidence shows that the stockholder incentive plan was the basis of such increase.

Mr. George A. Bryant became associated with Samuel Austin as an employee of The Austin Company in 1913. His progress was rapid. He was permitted to become a stockholder in 1919, a member of the Board of Directors in 1922. Vice-President in 1924. Before the death of Samuel Austin, which occurred in 1936, Mr. Bryant became General Manager when Wilbert J. Austin was elected President. He became President late in 1940 at which time he and his wife owned together 2711 shares of Austin Company stock or about 18% of the outstanding common stock of the Company. At the time of trial, Mr. Bryant’s percentage holding of the outstanding common stock was approximately the same. He then owned 18,848 shares. There were outstanding almost 100,000 shares.

The progress of the Company under the leadership of Mr. Bryant has been phenomenal. Between 1940 and 1950, the total construction work and services of the Company increased more than one hundred per cent a year. The dividend rate increased from $8.00 in 1939 to $16.00 in 1940 to $26.00 a share in 1941 and $21.00 a share in 1951, after the stock had been split four for one in 1948, which means the dividend of 1951 would have been $84.00 per share adjusted to share holdings before the stock split.

Due to the unusual prosperity of the Company, the income and value of the trust shares has greatly increased although the relative percentage of such holdings to the total outstanding common stock has been reduced from about sixteen per cent to about ten per cent This resulted from waivers granted to new issues made available to officers and employees under the incentive plan, from sales of some of the stock held in the trusts and some distribution to beneficiaries.

The basis of the incentive plan is that the business of the Company, being largely personal service in character, relies for its progress on the loyalty of many professional employees, engineers, district superintendents and the like. Such a plan makes the employee shareholder conscious of his personal interest in the success of the Company. The record shows that in the late 40’s, Mr. Bryant, defendant herein, tried to procure options on all outstanding stock of non-productive shareholders, including the holdings of The Austin Trusts to make it available to key people in the Company. In fact, the following statement of George Karch, Trust Officer of the Trustee, is in the evidence without objection which was:

“Mr. Bryant said that there are about eight companies now in the engineering business which were started by former Austin employees and he feels very strongly about tying in key men with the Company. He is quite strongly of the opinion that eventually all the stock should be owned by the active men in the Company.”

It was unquestionably the policy of the management of The Austin Company to develop their incentive plan of employee stock ownership to the fullest extent possible but it is also true that all attempts to carry out such policies were through legitimate corporate procedures, through stockholder’s meetings and directors resolutions.

The trust agreements recognized the policy that management should be left in the hands of those engaged in directing and prosecuting the company’s business. Until these trust agreements were entered into, there was no immediate prospect that shares of stock would come into the possession of non-productive shareholders, that is until at least the captive period of twenty-five years of the recapture contracts should run out on the stock held by some officers and employees.

The trust agreements as first executed provided that the settlors were to vote the Austin Stock held in the trust until the end of their lives and the Sarah Austin Trust provided that upon her death, if she predeceased her husband, he was to vote The Austin Company Stock in her trust until his death. The amendments to the trust agreements of February 2 and 3, 1933, further restricted the right of the trustee to vote the Austin Company stock held in the trusts. The amendment to the Sarah Austin Trust was as follows:

“After my decease, if my husband, Samuel Austin, survives me, I direct that, as long as the stock of The Austin Company, or such company as may succeed it by way of reorganization or merger, shall be held as part of the trust estate, the voting rights upon such stock shall be exercised by my husband, Samuel Austin, and from and after his death, by my son, Wilbert J. Austin, and William B. Stewart, but if they shall disagree as to the exercise of such rights, then I direct that the voting rights upon such stock shall be exercised by any two of Wilbert J. Austin, William B. Stewart and The Cleveland Trust Company, the Trustee hereunder. Upon the decease or incapacity of either said Wilbert J. Austin or William B. Stewart, then the surviving one or the one who is not incapacitated, together with the Trustee, shall select the successor to the one deceased or incapacitated, and such successor shall then, in his stead, exercise such voting rights under the same conditions as are herein expressed concerning the exercise of voting rights by the said Wilbert J. Austin and William B. Stewart. The successor or successors of Wilbert J. Austin and William B. Stewart, in the exercise of such voting rights, shall in their turn be empowered, in event of the death or incapacity of the other one exercising voting rights, to choose his successor in the manner hereinbefore set forth with reference to the successors of Wilbert J. Austin and William B Stewart.”

The Samuel Austin amendment of February 3, 1933 was exactly the same with regard to the voting rights of The Austin Company stock in his trust after his death. So it was provided that his son and President of the Company and William B. Stewart, General Counsel, both a part of top management, were to exercise the voting rights of the trust stock with specific provision for the choice of successors in case of the death or disability of a member of the voting committee. The successor to take the place of a member of the voting committee because of death or disability was by the choice of the remaining member and the trustee. So it is clearly provided that the settlors of these trusts in a direct and positive way made it impossible for the trustee alone to vote The Austin Company stock held in the trust. Such fact, with the persons designated by them as the voting committee at its inception, shows that the corporate business was their first consideration and that it was their intent that the trusts would best be served by the success of the Company free from abortive attempts of trust beneficiaries to benefit the trust momentarily at the expense of sound business policy in the operation of the business. The disposition of The Austin Company stock to the respective trusts was the first large block of stock to be transferred to non-productive owners and the voting committee was without doubt created to restrict the voting rights to those active in the affairs of the Company.

In addition to the creation of the voting committee by amendment, the provisions of the Trust agreement with regard to the powers of the trustee other than the right to vote the stock is important in considering the issues in this action. The trustee was vested with very broad powers to manage, invest, sell and otherwise deal with the property in the trust, with some minor limitations in using principal for support to beneficiaries in some cases. But the right to sell trust assets was in the exclusive control of the trustee. The provision of the agreement is as follows:

“To sell, lease, transfer or exchange all or any part of said property and all property that may hereafter from time to time be substituted therefor or added thereto, at such prices and upon such terms and conditions and in such manner as it may deem best, * * *”

The character of the voting committee is not that of a “voting trust” as provided for by §1701.39 R. C., and is free from the restrictions of that section. Whether or not the provisions of §1701.59 R. C. are applicable is not so clear although no issue is presented on that question. It will be assumed, therefore that the apportionment of the voting committee under an inter vivos trust agreement, delegating to the committee the voting rights of stock held in trust after the death of the settlor, the obligation of the voting committee would be to act as a fiduciary in the interests of the trust estate as a shareholder in The Austin Company. It is difficult to see how such a restriction, if it be one, could require any different approach to the motivating reasons for voting the stock than the duty of any other stockholder seeking to promote the success of the corporation because only as the corporation succeeds does the trust benefit.

The voting committee at the time this action was commenced was the defendant, George A. Bryant, and one of the plaintiffs, Herbert R. Whiting, who is also counsel appearing in the case for the plaintiffs. Under the provisions of the amended trust agreements of October 2 and 3, 1938, upon the death of Wilbert J. Austin, the defendant, George A. Bryant, was chosen by William B. Stewart and the trustee to take the place of Wilbert J. Austin. After the death of William B. Stewart in 1947, the survivor, George A. Bryant and the trustee, named Herbert R. Whiting to succeed Mr. Stewart. So that the voting committee as now constituted was appointed in the manner provided by the amended trust agreement.

The plaintiffs seek to remove George A. Bryant from the voting committee, alleging that he has been guilty of fraud, bad faith and antagonism in opposing the interests of the beneficiaries, self-dealing, attempting to purchase the trust stock and divided loyalty by reason of his office as President of The Austin Company. It is claimed that there is a conflict of interest in being President of the Company and at the same time a member of the voting committee to vote the trust stock in The Austin Company.

The manner in which lack of loyalty, antagonism to the trust beneficiaries’ interests and acting in bad faith is exemplified according to the claims of the plaintiffs is — first, because of the defendant’s attempt to purchase The Austin Company stock in the trusts; second, because he prevented a nominee of the plaintiff, Whiting, from becoming a member of the Board of Directors, third, refusing to divulge material facts when dealing with the Austin trusts beneficiaries regarding his plans for The Austin Company, and seeking to profit himself at their (the beneficiaries) expense.

There is no evidence in this record to support any of these claims. Much of what has been detailed by the plaintiffs had its beginning before Mr. Bryant became a member of the voting committee. What took place is to be found on the face of the corporation records and in correspondence found in the files of the Company, much of such evidence having been written to preserve what had been said verbally at some conference or in a telephone conversation. There is not the slightest attempt to conceal company activities. All of the activities of the defendant have been prosecuted in the interest of The Austin Company and from whose efforts the trust and its beneficiaries have received substantial benefits by the increased value of the trust assets or res and dividends paid.

The claim of the plaintiffs as above stated is that there is a conflict of interest of the defendant preventing him from acting freely without prejudice to the trusts as a member of the voting committee because he is both President of The Austin Company and also a member of such voting committee. It is the contention of the plaintiff that the interests of those two offices are in conflict. That as President he must act in the best interests of the Company and in voting the stock of The Austin Trusts, he should serve the best interests of the trust whereby the conflict arises. Such a claim is not well taken. The duty of a stockholder is to see to it that the company is well managed. In accomplishing this purpose, he must exercise his best judgment and discretion in dealing with company policy in voting his stock. A stockholder can have no other interest than as just defined. We find no conflict by virtue of the fact that the defendant holds both the offices of President and General Manager of The Austin Company and is at the same time a member of the voting committee. The interest of one is the same as the other.

This conclusion is strongly supported by the fact that the settlors directed who should vote the stock in their trusts and how the members of the voting committee should be determined. The settlors did not conceive of a conflict as resulting from the same person, who was President of The Austin Company, also acting on the voting committee, to vote The Austin Company stock transferred by them into their respective trusts. One of the persons who was nominated by the amended trust agreement as a member of the voting committee was the then President (the settlor’s son), of The Austin Company. The other appointment made by the trust agreement was W. B. Stewart, General Counsel for the Company. This defendant was selected to succed Wilbert Austin upon the death of the latter, such appointment being made in the manner directed by the settlors. He also succeeded, by the election of the Board of Directors, as President of the Company, such office being left vacant by the son’s death. We know of no case which holds that the settlors may not select by appointment in a trust agreement those who are to carry out its provisions. There can be no conflict when the wishes of the settlors are carried out in complete detail.

Finally, it is claimed that the acts of the defendant in attempting to purchase or at least suggesting that it would be to the best interests of The Austin Company to purchase the trust held stock for use in further developing the incentive plan of the Company, was evidence of a conflict of interests or divided loyalty. As a matter of fact, there is no relationship between attempting to extend the incentive plan by the purchase, or the offer to purchase, or suggesting the purchase of the stock of non-productive owners including The Austin Stock owned by the trusts and the duties of a member of the voting committee. Whether the trustee will exercise its power to sell any of The Austin Company Stock held in the trusts is completely controlled by it in the exercise of its sound discretion.

Here the defendant was investigating the advisability of carrying out a company policy of stock ownership restricted as far as possible to active officers and employees. Such action does not evidence bad faith or divided loyalty in any way affecting a member of the voting committee of stock held by a trust in the company where the only act of the person charged with bad faith toward accomplishing such purpose was to express the belief that to do so would be for the best interests of the company. Any evidence of bad faith, under the circumstances, is completely negatived when such officer at the same time, and with all the vigor at his command, strives to make the stock more valuable. Generally one acting with fraudulent intent, who has the power to do so, would strive to temporarily depress the value of property he thinks necessary to purchase.

Whether it would be to the best interests of the trust to sell such stock would basically depend upon the consideration to be paid for it which is a subject solely within the powers of the trustee of the Austin Trusts. It must be true that the “valuable and profitable property interests in The Austin Company” held by the trust would not be disposed of by the trustee for less than it is worth. In all events, neither Mr. Bryant, as President, of the Austin Company, nor as a member of the voting committee, can in any way compel the trustee to sacrifice the trusts' interests in its Austin Company Stock. If there be a conflict here, it is the inconsistency in admitting that the defendant, by his unusual ability in managing the Company, has thereby materially increased the value of the trust investment and then to claim that his methods in accomplishing such results created a conflict of interests which would require his removal from the voting committee. The defendant has no power to take from the trust the right to continue to enjoy the fruits of what he and those associated with him have built. What the future holds for continued success is a matter of pure conjecture founded on many variables beyond the control of any single individual and supported only by a sound belief in the stability of our economy and industrial progress.

The removal of a trustee by a court in the exercise of its equitable jurisdiction from duties imposed upon him at the direction of the settlors, his selection for the office being as directed by the settlors, is a drastic action and such action should be taken only where intervention is necessary to protect the trust’s assets. The case of Ingalls v. Ingalls, 59 So. 2nd, 898 (Alabama), was an action in which the trustee displeased one of two contestants for control of a corporation by its vote of the stock of such corporation held in trust. The action was to remove the trustee. In refusing to do so, the court said as reported in the fourth headnote:

“The removal of a trustee is a drastic action which should only be taken when the estate is actually endangered and intervention is necessary to save trust property.”

In the instant case, the only duty of the defendant as a member of the voting committee is to vote the trust held stock with or in conjunction with the other member of such committee and if the members of the committee cannot agree, then the trustee of the trusts has the power and duty to resolve how the stock shall be voted.

The power of the defendant, Bryant, over the property of the trusts is so far removed from the possibility of doing harm under the circumstances to the trust property that it would constitute an abuse of discretion to enter a decree for his removal.

We hold that the defendant is entitled to a decree dismissing the petition of the plaintiffs at their costs.

HURD, J, NICHOLS, J, concur.


author: By THE COURT.

text:
    STATE, ex rel. OGDEN, Plaintiff, v. GLANDER, Tax Commissioner, Defendant.
    Ohio Appeals, Second District, Franklin County.
    No. 3860.
    Decided January 25, 1954.
    Matthew L. Bigger, Columbus, for plaintiff.
    Hon. C. William O’Neill, Atty. Geni., W. E. Herron, Ralph N. Mahaffy, Asst. Attys. Geni., Columbus, for defendant.
   OPINION

By THE COURT.

This is a motion seeking an order dismissing the petition for the reason that the plaintiff has unreasonably neglected to proceed in the cause. The record reveals that the action is one in mandamus, original in this Court. The issues were joined by the pleadings on October 6, 1945, since which date no record has been made upon which the issues could be passed upon by this Court, we having advised counsel that a master would be commissioned to take the testimony. The plaintiff has filed a brief in which he states his inability to secure the payment of the Official Stenographer; hence it appears the matter can never be presented. It is the duty of the plaintiff to have a record of the testimony taken in an original action, when so ordered by the Court, just the same as it is incumbent upon the appellant in a law appeal to arrange for and file a bill of exceptions.

The motion will be sustained.

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


author: By BELT, J.:

text:
    BETHESDA (Village), Plaintiff, v. MALLONEE, Defendant.
    Common Pleas Court, Belmont County.
    No. 15492.
    Decided June 23, 1955.
   OPINION

By BELT, J.:

Prior to the institution of this action by the Village of Bethesda, the Bureau of Inspection and Supervision of Public Offices made a finding for recovery against the Defendant herein.

The amended petition alleges, in substance, that this action was caused to be initiated by Walter L. Kildow, at that time Mayor of said Village, and under and by virtue of a certified copy of the report of examination of the records of said Village by the Bureau of Inspection and Supervision of Public Offices; that the Defendant was, during the year 1947 and up to the 10th day of February, 1948, a duly elected, qualified and acting member of the Council of said Village; that while acting as a member of said Council, on May 27, 1947, he offered a motion with respect to buying property to be used as a building site for the Fire Department of said Village and on November 25th of the same year reported to Council that plans and specifications for a new fire house had been approved by the State, and that in the month of January, 1948, while still acting as a member of Council, approved an invoice for advertisement for bids for said proposed building, and still later, while acting as a member of Council, submitted a bid to construct said fire house according to plans and specifications therefor in the sum of $7,598.00, which bid was accepted; that on the 10th day of February, 1948, Defendant resigned as a member of Council; that on the 14th day of June, 1948, Plaintiff and Defendant entered into a written contract for the construction of a fire building and station, by the terms of which Defendant was to furnish the materials and labor and construct said fire house in accordance with the plans and specifications for the sum of $8,000.00. Further terms of said contract were that $4,000.00 was to be paid when the building was under roof and the remaining $4,000.00 upon the completion of same. That on December 1, 1948, Plaintiff paid Defendant $4,000.00 and upon the completion of said building the remaining $4,000.00 was paid on the 15th day of August, 1949.

The certified copy of the finding of the Bureau of Inspection and Supervision of Public Offices, filed with the Mayor of said Village is as follows:

“A joint finding for recovery is hereby returned against Councilman C. C. Mallonee as the Contractor, C. R. Grimm as the Clerk and Grayce Dougherty, as Treasurer, and in favor of the Village Treasury in the amount of $4,000.00.
“A joint finding for recovery is hereby returned against Councilman C. C. Mallonee as the Contractor, Inza Jackson as the Clerk and Grayce Dougherty as'the Treasurer, and in favor of the Village Treasury in the amount of $4,000.00.”

It is further alleged that the Defendant has failed and refused to refund the said sum of $8,000.00. Wherefore Plaintiff prays judgment against the Defendant in said sum with interest and other relief.

The answer to the amended petition contains four defenses. The first defense denies generally all of the allegations of the petition not admitted to be true and alleges that the Defendant instead of making a profit suffered a loss in the construction of said building in the sum of $154.47.

As a second defense Defendant admits that he signed a written contract for the construction of said building, at which time he was not a member of said Council, and, furthermore, that he was advised by the City Solicitor that he had a legal right to enter into such contract; that on or about January 27, 1948, he submitted a bid in the sum of $7,598.00 and that no other bids were submitted; that he had never qualified as a member of Council in the year 1948 and that his said bid was never acted upon by Council and that no advertisement for bids was made after January 27,1948, and that the alleged contract entered into between the parties on June 14, 1949, was not approved by Council; that he received $4,000.00 on December 1, 1948, and an additional $4,000.00 on August 15, 1949; that the cost of the construction of said building was $8,154.47, and that after the completion of said building Plaintiff went into possession and has since used the same as a fire house and Village jail and is still in possession and using said building for the purposes aforesaid. Defendant then pleads- estoppel.

As a third defense Defendant alleges the proceedings of Council approving the transaction, and as a fourth defense alleges that if Plaintiff will convey to him the building and real estate he will reimburse Plaintiff in the sum of $8,250.00, being the total sum spent by the Village for said building and the real estate upon which it stands and tenders to Plaintiff the said sum upon compliance by Plaintiff with said proposal.

After the disposal of various motions, Defendant filed an amended answer to the amended petition, alleging in substance the same matters as hereinbefore set forth.

Plaintiff filed a reply denying some of the affirmative defenses contained in the answer.

The cause was submitted to the Court on an agreed statement of facts, together with a copy of the contract between Plaintiff and Defendant for said construction work. The statement of facts consists of an abstract of the minutes of Council for its various meetings, the proposal of the Defendant for the construction of said building, the authorization of Council for the payments to the Defendant, as alleged, the approval of the City Solicitor of said contract and the fact that the building is now in use by said Village for the purposes intended. The contract by and between the parties sets out the fact that the Defendant agreed to construct said building for $8,000.00; that the Defendant was to furnish all the materials and labor and the agreement of the Village to pay for the same the said sum of $8,000.00. The contract is signed by the parties, attested by the Clerk of said Village and approved by the Solicitor as to form.

A number of statutes are germane to the inquiry and issues in this case, viz., §§117.10, 117.11, 733.78 and 2919.10 R. C. The first section, §117.10 R. C., provides for the report of examination and the action thereon and in substance provides, among other things, that if public moneys have been found to have been illegally expended, the officer receiving the report shall cause to be instituted a civil action in the proper court for recovery and it further provides that the Mayor of a Village shall employ legal counsel for such purpose; that no claim shall be abated or compromised either before or after the filing of a civil action without the consent of the Attorney General and that no judgment or final order shall be entered in any civil action commenced under said section until the entry is submitted to the Attorney General.

The next section, §117.11 R. C., provides for the jurisdiction of such actions and specifies what shall be contained in a petition, further providing that it shall not be necessary to separately state and number causes of action and that a certified copy of such report is prima facie evidence of the truth of the allegations of the petition.

Sec. 733.78 R. C., provides that no legislative officer shall have any interest in the expenditure of money on the part of a municipal corporation, and, §2919.10 R. C., provides that no officer of a municipal corporation or member of Council shall be interested in the profits of a contract in work undertaken or prosecuted by such municipal corporation during the term for which he was elected or appointed, or for one year thereafter, and that whoever violates said sections shall be penalized.

The above-mentioned sections seem to provide the legal machinery for the adjudication of all cases arising in the State, or in any political subdivision thereof.

The Courts of this, and of other States, in considering such issues have reached one of two conclusions pertaining to recovery. One conclusion is found in a discussion of the case of Wright v. Clark, 119 Oh St 462, which holds, in substance, that an engineer of a city is an officer thereof and by reason of being an officer can not legally become interested in the expenditure of money by the corporation and that neither fraud, conspiracy or unreasonable profits are necessary elements in an action for recovery from such officer under the provisions of §733.78 R. C. In that case the engineer employed other city officials to do certain work in the improvement of streets and was also financially interested in the materials that were used for such improvement.

In the case of State, ex rel. Smith, v. Maharry, 97 Oh St 272, it is held that public property and public moneys constitute public trusts and that the sections of the statute under which an action for recovery must be brought should be liberally construed. The Court says in the opinion as follows:

“. . . with certain qualifications, the legislature had the power to enact and prescribe that in criminal prosecutions certain facts, when duly established, shall be held to be presumptive or prima facie evidence of guilt.”

Commenting on the sections under which this action was brought, the Court further says:

“In this case the statute merely provides that ‘A certified copy of any portion of the report of the bureau of public accounting as referred to in the petition shall constitute prima facie evidence of the truth of the allegations of the petition.’ It does not provide that this, the prima facie evidence of the indebtedness of the defendant to the political subdivision in whose behalf suit is brought, shall be a prima facie case against the defendant.”

In the case of L. Hommel & Co. v. Woodsfield, 122 Oh St, after holding that the statutes limiting the powers of a municipality to purchase supplies and materials without bidding are enacted for the benefit of the public, says on page 155 of the opinion as follows:

“This court will not relax the protection which such statutes throw around the public treasury. It is true that a modification in the strictness of this doctrine was made in State, ex rel. Hunt v. Fronizer, 77 Oh St 7. In that case, it was held that there could be no recovery back of money paid upon a county commissioners’ bridge contract, fully executed, but rendered void because of the lack of the necessary statutory certificate by the county auditor, where there was no claim of unfairness, fraud, or extortion, and no claim of effort to put the contractor in statu quo by return of the bridge, or otherwise. The court said that this rule rested upon the principle of common honesty, and that the county should not be permitted to retain both the consideration and the bridge. However, the Pronizer case, which is still the law in this state, cannot be extended beyond the specific doctrine which it announces.”

The above-cited case was an attempt by the Plaintiff to collect for goods sold and delivered to the Village under a contract held to be void.

The Courts are uniform in holding that a contractor under such situations can not recover. That, however, is not the situation in the case at bar.

The Court is of the opinion that the statutes in question are simply pronouncements of the common law rule with the single exception that the statutes provide that proof of the finding made by the Bureau of Inspection and Supervision shall constitute a prima facie case within the limitations set forth in the Maharry case supra.

Our next inquiry should be, what is the status of the law pertaining to the instant case? It will be noted that where a recovery by the municipality was had in the cases thus far mentioned, the contracts in question were not for the building or erection of a particular item, that is to say, in the case of Wright v. Clark, supra, gravel and other road materials were furnished for the improvement of various streets. There was nothing tangible that could have been returned by the village to the contractor upon recovery of the money paid. Whereas, in the cases about to be cited no recovery back was allowed unless the municipality gave up to the contractor the specific thing that was erected or constructed, thus adopting the equitable principle that the Court would grant no relief as among wrongdoers and would leave them in the position in which they had placed themselves, or that, as a matter of common justice a municipality could not recover under a void contract unless they returned to the contractor the specific thing in which he had placed his time and materials.

It is stated in the Woodsfield case, supra, as follows:

“This court will not relax the protection which such statutes throw around the public treasury. It is true that a modification of the strictness of this doctrine was made in State, ex rel. Hunt, Pros. Atty., v. Fronizer, 77 Oh St 7. In that case, it was held that there could be no recovery back of money paid upon a county commissioners’ bridge contract, fully executed, but rendered void because of the lack of the necessary statutory certificate by the county auditor, where there was no claim of unfairness, fraud, or extortion, and no claim of effort to put the contractor in statu quo by return of the bridge, or otherwise.”

Holding that there can be no recovery back by the political subdivision without an offer to return the specific thing are the cases of State, ex rel. Staley, v. Beutler, an Appellate case reported in 29 Abs 521, This was a Board of Education case and the opinion seems to have been carefully considered.

In the case of Buchanan Bridge Co. v. Campbell et al, 60 Oh St 406, in which case the contract was within the power of the County Commissioners but due to irregularities was unenforceable and void, no recovery could be had against the County for the value of the bridge, but the Court further held that courts will leave the parties to such unlawful transactions where they have placed themselves and will refuse to grant relief to either party.

The Court held in the same manner in the case of Markley v. Village of Mineral City, 58 Oh St 430, where the contract was fully executed but was void because of the incapacity of the municipality to acquire land for the purposes for which such land was acquired and that a deed purporting to convey such land was without legal effect. The Court again invoked the principles of equity in denying relief.

The Court of Appeals of the 7th District, sitting by assignment in Cuyahoga County, in the case of Herzig et al. v. Hunkin Conkey Const. Co., reported in 101 N. E. (2d) at page 255, held that such action could not be maintained in the absence of an allegation that Plaintiffs had put, offered to put, or were ready to put Defendant Corporation in statu quo. There is no such claim in this case.

The case of State v. Fronizer, 77 Oh St 7, holds that the section of the statute referred to, which authorizes a prosecuting attorney to bring action to recover back money of the county which has been misapplied, or illegally drawn from the county treasury, does not authorize the recovery back of money paid on a county commissioners’ bridge contract fully executed but rendered void because of the lack, through inadvertence, of a certificate by the county auditor that the money is in the treasury to the credit of the fund, or has been levied and is in process of collection, there being no claim of unfairness or fraud in the making, or fraud or extortion in the execution of such contract for such work, nor any claim of effort to put the contractor in statu quo by a return of the bridge or otherwise, the same having been accepted by the board of commissioners and incorporated as part of the public highway.

There is no lack of authority outside of Ohio on this proposition. It will be found that many states, including Arkansas, California, Idaho, Illinois, Iowa, Kentucky, Michigan, Minnesota, Missouri, Nebraska, New York, South Dakota, Tennessee and Texas, have judicially announced the same principles borrowed from equity. These various decisions are enumerated in notes found in the annotation to the case of Miller v. McKinnon, reported in 140 A. L. R. at page 570, and particularly the case enumerated on page 587 and the following pages. A brief reference will be made to some of these cases.

In the case of Henderson v. Sibley County, a Minnesota case, reported in 11 N. W. 91, the Court said, after holding that the contract was ultra vires, as follows: money belonging rightfully to the borough, and having been actually appropriated and used by the county for its benefit, an obligation, both moral and legal, rests upon the county to make restitution.”

“A just regard for the public welfare will not permit the court to compel the performance of a contract like the one in question. It does not follow, however, that restitution should not be made of the money paid in pursuance of it. The question respects the rights of the citizens of the borough, and not alone the acts of its public officials. The people of the borough are to be protected against the unauthorized acts of its public officers when it can be done without injustice to others, and no principle of public policy will be violated by relieving them, as far as may be just, from the consequences of such unauthorized acts. This

In the Missouri case of Sehell City v. Rumsey Mfg. Co., 39 Mo. App. 264, the Court said, among other things, as follows:

“We must hold that the plaintiff cannot be permitted to recover back the money so paid on account of this engine. The transaction, as determined by the courts, was either a voluntary payment of money on an executed illegal contract or was a legal purchase of the engine by the village authorities, and voluntary payment thereon by the plaintiff village. In either event, the village cannot now force defendant to return the money.”
“Plaintiff, with full knowledge of all the facts, though mistaken as to the law, paid the money now sought to be recovered. The well-established doctrine is that money voluntarily paid under a mistake of the law, but with a full knowledge of the facts, and without fraud, cannot be recovered.”

See also Pillager v. Hewett (Minnesota), 107 N. W. 815; and Tobin v. Sundance, 45 Wyo. 219, 17 P. (2d) 666.

In the case of Frisch v. St. Charles, 167 Minn. 171, 208 N. W. 650, in reference to a conveyance of land to a municipality, the Court in the opinion said:

“But where property has changed hands under such an agreement and has been paid for, neither law nor equity will ordinarily compel a restitution of the purchase price.”

In the case of Ellefson v. Smith, 182 Wis. 398, 196 N. W. 834, in an action by a taxpayer to recover back from a contractor the amount paid the latter on a contract for the construction of a reservoir, where the contract was let without competitive bidding, contrary to law, the Court denied recovery and said:

“The city had the power to build a reservoir. The reservoir was, and is, a public necessity. It was built at a fair price. It has been accepted by the city and is in use as a necessary part of the water system.”
“The officials profited not at all by the contract, nor does it appear that the city suffered in any way by the failure of the officials to comply with conditions precedent to letting a valid contract.”

The Court further said:

“No one has been injured in his person or property rights.”

Recovery was denied.

Many more authorities may be cited and the authorities to the contrary are at an irreducible minimum.

It is questionable in this case as to whether any statutory law was violated other than the provision of one year referred to in the statutory enactment. The Defendant was not a member of Council when the contract was entered into and the plaintiff Village evidently received full value for the money expended and recovery is therefore denied.

Counsel, by brief, urges that the introduction of the finding makes a prima facie case and that then the burden is shifted to the Defendant to establish his defense and that the Defendant therefore must show by a preponderance of the evidence that he would be entitled to recover if the contract price had not been paid. Counsel is in error on this proposition. The burden of proof never shifts. If a prima facie case is made, the burden of evidence is then on the Defendant to counterbalance such evidence by evidence of equal weight but the burden of proof always remains upon the plaintiff and there is no such doctrine that there may be a recovery of an amount paid even though the contract is found to be illegal due to some failure to follow the law, if, as a matter of law, it was within the power of the municipality to enter into such contract. See Tompkins, Chamberlayne Trial Evidence, Page 168 and the following pages. The burden of evidence may shift from time to time during the course of the trial but the burden of proof never in any case shifts unless the defense is an affirmative one, when from the beginning the burden of proof is upon the Defendant as to such affirmative defense.

The finding and judgment of the Court is for the Defendant.


text:
    ACCURATE EMPLOYMENT SERVICE, Plaintiff-Appellant, v. BURRIS, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5325.
    Decided May 7, 1956.
    Walter S. Barrett, Jr., Columbus, for plaintiff-appellant.
    James R. Burchfield, Jr., Columbus, for defendant-appellee.
    (FESS, J, of the Sixth District, NICHOLS and GRIFFITH, JJ, of the Seventh District, sitting by designation in the Second District.)
   OPINION

By THE COURT.

This cause comes on for hearing upon a motion for an order to reconsider the conclusions reached and announced in the Court’s opinion, which was rendered on February 7, 1956. A further review of the record discloses that the decision of this Court was duly journalized by entry filed in this cause on February 23, 1956, and pursuant to said entry this cause was remanded to the Municipal Court of the City of Columbus to carry the judgment into effect and for execution.

Therefore in the absence of an application for rehearing filed within time pursuant to the rules of this Court, this Court has no jurisdiction to determine the motion to reconsider, and the same is dismissed.

FESS, NICHOLS and GRIFFITH, JJ, concur.