author: By HESS, J.:

text:
    WETTERER et, Plaintiffs, v. HAMILTON COUNTY BOARD OF HEALTH et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-142226.
    Decided January 10, 1955.

      J. W. Brown, Ben Gettler, for plaintiffs.
    C. Watson Hover, County Pros., Raymond C. Wetherell, Asst. County Pros., for defendants.
    Bert H. Long, Smith & Latimer, Frost & Jacobs, Wesselman & Eyrich, Amici Curiae.
   OPINION

By HESS, J.:

This cause was submitted to the Court on the pleadings, evidence, arguments and briefs of counsel.

The Plumber’s and Gas Fitters Local Union No. 59, Cincinnati Master Plumber’s Association, certain piping contractors represented by attorneys Wesselman and Eyrich, and certain manufacturing enterprises concerned with the issues herein represented by attorneys Frost and Jacobs, have been permitted to file briefs as- Amicus Curiae.

The petition was filed on March 22, 1954, and on April 2, 1954, all the parties defendant named in the petition except the Hamilton County Board of Health and the E. J. Nolan Corporation were dismissed from this action. A temporary restraining order was issued on March 22, 1954, as prayed for in the petition, and the matter is now before this court on its merits for a permanent restraining order and declaratory judgment.

The E. J. Nolan Corporation is in default for answer.

The petition as amended questions the legality of the statutes of Ohio relating to plumbing, and the Rules and Regulations for Installation and Inspection of Plumbing within the Hamilton County General Health District, as adopted by the Hamilton County Board of Health on August 13, 1951, and amended June 9, 1953. (Plaintiffs’ exhibits 1 and 2.)

There is no material dispute on the facts. The defendants were content to submit the matter on the evidence submitted by the plaintiffs.

The General Electric Company is engaged in the experimentation and building of jet powered engines. It requires certain plumbing and piping facilities known as cells to carry on its function. The General Electric Company employed the E. J. Nolan Corporation to erect a portion of the jet cells described in the petition and the Nolan Corporation employed certain craftsmen known as pipe fitters to perform a portion of the work. Plans and specifications for the jet cell facilities to be built for the General Electric Company by the Nolan Corporation were submitted to the County Board of Health of Hamilton County, Ohio, for approval and permit.

A building permit was issued and work was begun. When the permit was issued, or at a time prior to the beginning of this action, the plumbing inspector of the Hamilton County Board of Health designated the work submitted on a portion of the plans to be done by E. J. Nolan Corporation to be plumbing work.

Thereafter, pursuant to inspection or information otherwise obtained, a stop order and prosecution were threatened by the Hamilton County Board of Health authority to General Electric Company and E. J. Nolan Corporation which would in effect stop the employment of pipe fitting craftsmen who, it was claimed, were performing plumbing work without a plumber’s license as required by Sections 1 and 2 of the Rules and Regulations for Installation and Inspection of Plumbing, Hamilton County Board of Health.

This action was filed to declare the rights of the parties and to enjoin the operation or issuance of the threatened stop order and prosecutions on the premises that the statutes of Ohio and the regulations of the Hamilton County Board of Health relating to installation and inspection of plumbing are unconstitutional, null and void; that they are arbitrary; that they are without lawful standards of operation, and do not apply to industrial piping heretofore and presently performed by craftsmen known in the trade as pipefitters.

The Hamilton County Board of Health denies the statutes of Ohio, or its regulations are unlawful or that it has performed any unlawful act in proceeding with licensing of plumbers, inspections of plumbing work or directing that licensed plumbers perform the work as set forth in its rules and regulations adopted August 13, 1951, and as amended June 9, 1953.

The pleadings, arguments and briefs of all the parties are directed to the legality of the statutes relating to plumbing (§§3709.01 etc., 707.1, 715.27, 3707.01 etc., R. C.), and the Rules and Regulations for Installation and Inspection of Plumbing promulgated and adopted by the Hamilton County General Health District on August 13, 1951, and as amended June 9, 1953.

More specifically the plaintiffs, except James P. Maher, presented evidence to establish the claim they are employed by the E. J. Nolan Company on a job at the General Electric Company where they are installing industrial pipe and fixtures; that they have done similar work for many years; that their employers are satisfied with their services; that the Rules and Regulations for the installation and inspection of plumbing adopted by the Hamilton County Board of Health prevent the plaintiffs from performing certain work in that they unlawfully require the plaintiffs to become plumbers or journeyman plumbers; that the Board of Plumbing Examiners established by the Hamilton County Board of Health is an unlawful delegation of authority; that the Hamilton County Board of Health and the statutes of Ohio have not established lawful standards for the examination and licensing of plumbers and journeyman plumbers; and that the Hamilton County Board of Health has abused its discretion by attempting to establish rules and regulations which prohibit plaintiffs from doing plumbing work, and thus threaten their individual freedom to work at their chosen trade, as pipefitters.

The permit referred to in the record is not in evidence. The threatened stop order and prosecutions which brought about this action is not in evidence, although there is evidence the Board of Health fully intends to enforce its regulations.

The record discloses there is much confusion relative to what is plumbing on the forty-eight test, cells being erected by the General Electric Company and what may be designated as pipe fitting:

“Q. You read under the heading ‘Plumbing Fixtures. Plumbing fixtures are receptacles intended to receive and discharge water, liquid or water carried wastes . . .’
“A. That’s right.
“Q. Now, a toilet bowl would be a plumbing fixture, would it not?
“A. That’s right.
“Q. A urinal would be?
“A. That’s right.
“Q. A sink would be, would it not?
“A. That’s right.
“Q. Those are specific formed fixtures as distinglishéd from piping?
“A. That’s right.
“Q. You wouldn’t say that pipe is a fixture; would you?
“A. It could be transferred into a fixture by assembling it as such.
“Q. Now, is pipe a fixture?
“MR. LONG: I submit he answered that if the Court please.
“A. Pipe itself?
“Q. Yes.
“THE COURT: He may answer if he knows.
“A. I said pipe could be transferred into a fixture if it were fabricated.
“THE COURT: The question is, is pipe itself a fixture.
“THE WITNESS: No.
“Q. Thank you, Mr. Springmyer. So that in this test cell system of piping the piping is not a plumbing fixture, is it?
“A. This piping is all run---
“Q. Just answer the question, Mr. Springmyer.
“MR. LONG: Well, now, he’s answering the question.
“THE COURT: Well, now, you asked the question; let him answer.
“MR. BROWN: We’ll read the question back so that you can understand clearly what was meant.
“(The question was read as follows: ‘So that in this test cell system of piping the piping is not a plumbing fixture, is it?’)
“A. The piping is a plumbing system that connects those fixtures.
“Q. Now, Mr. Springmyer, is the piping a plumbing fixture?
“A. No.
“Q. Thank you.”

BY THE COURT:

“Q. May I break in for a question. Did you issue- the permit for the erection of this piping or whatever it was at the G. E. cells?
“A. Your Honor, I issued a permit for the collection of those wastes that empty into this oil separator line. I did not---
“Q. Well, didn’t your permit require all plumbers or journeyman plumbers or apprentices to be employed on this job?
“A. That’s right.
“Q. Well, was there work in which plumbers, masters, journeymen and apprentices were not required?
“A. Not on any of the work that I issued a permit for. However, there was other work that wasn’t covered by our regulation that they may have been employed on.
“Q. Do you designate pipe for pipe, fixture for fixture that shall be done by plumbers and those that are to be done by pipefitters?
“A. Only those that are covered by the regulation are to be done by plumbers.
“Q. Was that done in this instance in the matter of General Electric?
“A. If .the Court will permit me to explain this meeting between Nolan Company and myself along about February of this year.
“Q. Yes.-
“A. At that time it seemed like Nolan Company had signed two agreements or two contracts with two organizations, and it seemed like these two organizations were both claiming the same work, and since Nolan Company realized that it was covered under the plumbing regulation and that they may become involved in other troubles other than the employment of these - - one or the other of these organizations’ men, they asked me to definitely establish the fact that it was plumbing. They brought the prints in; I reviewed the prints —
“Q. What was plumbing?
“A. The installation of these drains.
“Q. Drains or the whole business?
“A. The drain lines.
“Q. The drain lines only?
“A. That’s right, the drain lines only. So I assured them that it was plumbing, and they immediately made application for a permit and were granted such. They asked me if that meant then that they would have to employ plumbers on the job, and I told them that according to our regulation it would be required for them to use plumbers on this job.
“Q. To do what?
“A. To install these drain lines according to the application of which they had submitted and a permit granted. Of course, since that the injunction was asked for and granted and I’m inclined to believe that the work was installed by other than plumbers.
“Q. Now,. I’ll ask you again on this same job did you designate what was to be done by pipefitters or did you designate what was to be done by plumbers and thus assume that the other work would be subject to pipefitters?
“A. I only designated that work which came under the regulation and was to be done by plumbers.
“Q. Be done by plumbers?
“A. That’s right.”
“THE COURT: All right.

BY MR. BROWN:

“Q. Mr. Springmyer, you have referred to drains. By drains you mean the entire application as submitted to you by Mr. Barbara, do you not?
“A. I mean only —
“Q. You call all this drains, don’t you?
“A. No. There’s building walls and everything else shown on this drawing.
“Q. Well, I mean, I’m talking about the piping, Mr. Springmyer.
“A. Well, the piping; if you want it enumerated I can sketch it for you.
“Q. Is there any piping in here that Mr. Barbara came to you to ask your opinion about that you did not designate as plumbing under the caption drains?
“A. No. Mr. Barbara came in and drew a sketch like so, and ho says, ‘Does this come under the plumbing regulation? This, this, this, this and this (indicating)?’
“Q. You went through the whole thing and told him it all did?
“A. That’s right. And, of course, I told him, ‘Yes, that comes under the plumbing regulation.’
“Q. You refer to that entire system of piping'collectively, as drains, do you not?
“A. This drainage system, yes.
“Q. So that under your statement all the piping connections for these, 48 test cells leading to the oil separator and the oil separator all is plumbing?
“A. That’s right.”

BY THE COURT:

“Q. Is there anything else but those pipes?
“A. Yes, sir. I think that’s only a small portion of the work, a very small portion.
“Q. You mean what’s left or what is plumbing?
“A. No. This plumbing is only a small portion of the work on test cells.
“THE COURT: All right.”

BY MR. BROWN:

“Q. What other piping is there in the test cells, Mr. Springmyer?
“A. I think you mentioned them yourself. I think oil, and is there steam and solvents, isn’t there, and isn’t there a sprinkler system and fire fighting equipment systems and that sort of thing.
“Q. Fire fighting equipment is not plumbing, is it?
“A. No.
“Q. Even though fresh water is used?
"A. There’s a stipulation for taking - - Fire fighting equipment can be many things. It can be car docks, it can be water - -
“Q. I mean water fire fighting.
“A. It depends, of course, on how it’s connected with the fresh water supply.”

To declare the rights of the parties herein it is necessary to determine the power conferred by the legislature upon a Health District, and the action of the Board of Health of Hamilton County, General Health District, in adopting Sections 1 and 2, relating to examination and licensing of Master Plumbers and Journeyman Plumbers in Hamilton County, Ohio.

To declare the rights and duties of the parties the following five issues are presented, and they will be discussed in the order listed;

(One) Is the legislation creating the Health Districts in Ohio a valid exercise of legislative power?

(Two) Does the Hamilton County Board of Health have the right to proceed with examination, licensing and registering of plumbers?

(Three) Does the Hamilton County Board of Health have the authority to create a Board of Examiners of Plumbers to which it may delegate authority to examine applicants for license as master and journeyman plumbers and to revoke or suspend licenses.

(Four) Are the prerequisites for eligibility to take the examinations set forth in the rules and regulations sufficient standards for conducting examinations?

(Five) Are the rules and regulations for permits, installation and inspection of plumbing promulgated by the Hamilton County Board of Health arbitrary, unreasonable and discriminatory?

(One) The question of the right of the legislature to regulate plumbing must be considered to be a valid exercise of police power. Citations are numerous supporting the authority of the State to enact laws governing and regulating any activity which has a direct bearing on the public health and general welfare. The following citations are sufficient:

Williams et al, v. Scudder et al, 102 Oh St 305; State v. Gardner, 58 Oh St 599; Company, Ex Parte, 106 Oh St 55.

In keeping with this constitutional right the legislature enacted §3709.01 et seq, R. C., dividing the State into General Health Districts; providing for a Board of Health for each district; and, outlining the duties of such boards of health. This same police power was delegated to Municipal Corporations when the legislature enacted §715.27 R. C.

“Sec. 715.27 R. C. Any Municipal Corporation may: * * * provide for the licensing of house movers, electrical contractors, plumbers, sewer tappers and vault cleaners.”

And then the legislature enacted §3709.36 R. C., in which it gave the district boards of health the same rights and powers given to Municipal Corporation Boards of Health.

“Sec. 3709.36 R. C. The board of health of a city or general health district hereby created shall exercise all the powers and perform all the duties formerly conferred and imposed by law upon the board of health of a municipal corporation, and all such powers, duties, procedure, and penalties for violation of the sanitary regulations of a board of health of a municipal corporation are transferred to the board of health of a city or general health district by §§2923.18, 3701.10, 3701.29, 3707.08, 3707.14, 3707.16, 3707.47 and 3709.01 to 3709.36 inclusive, R. C.”

When §3709.36 R. C., was enacted the legislature intended the district boards of health should conform to the provisions of §§3707.01 and 3709.21 R. C., concerning rules and regulations involving the general public.

“Sec. 3707.01 R. C. * * * In cities having such departments or exercising such powers, the council, by ordinance shall prescribe such rules and regulations as are approved by the board of health and shall provide for their enforcement.”
“Sec. 3709.21 R. C. All orders and regulations not for the government of the board, but intended for the general public, shall be adopted, recorded and certified as are ordinances of municipal corporations and the record thereof shall be given in all courts of the state the same force and effect as is given such ordinances * * *.”

These statutes must be considered as a unit and construed to give the district boards of health in Ohio the same rights as are given to municipal boards of health, and in addition thereto the district boards of health have the right to make reasonable rules to carry out their duties for the protection of the general health and welfare of the public in their districts.

(Two) Having determined the statutes establishing the district boards of health and prescribing their duties to be a valid exercise of legislative authority we now consider whether the Hamilton County District Board of Health has the right to conduct examination of plumbers, cause them to be registered, issue permits for work to be done by them, and-inspect their work.

The legislative authority on the question of licensing of plumbers by district boards of health is brief. The authority for licensing is contained in §715.27 R. C. This section provides for “* * * licensing of house movers, electrical contractors, plumbers, sewer tappers and vault cleaners.” (Emphasis added.)

There is no legislative direction on how the district boards of health shall proceed with licensing of plumbers. However, the legislature did delegate to the district boards of health the right- to make rules and regulations in relation thereto when it encated §3709.21 R. C., which provides: ; - ' ■

“the board of health may make such orders and regulations "as are necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement, or suppression of nuisances. * * *”

When Chapters 3707 and 3709 R. C., concerning city and district boards of health are read with §715.27 R. C., it becomes evident the legislature intended that district boards of health would and should promulgate and adopt reasonable rules and regulations to implement the licensing of plumbers, and the district boards of health are charged with that duty.

(Three) Since it was the intention of the legislature to authorize the district boards of health to license plumbers the question of whether the Hamilton County District Board of Health has the right to create and delegate to a Board of Examiners of Plumbers the duties imposed upon it is presented.

This question calls for a consideration of the “Resolution to Amend Section 1 and Section 2 of the Rules and Regulations for Installation and Inspection of Plumbing in the Hamilton County, Ohio, General District dated June 9, 1953. The pertinent sections of that resolution are as follows, and will be referred to as lettered:

“Section 1.
“A. All plumbing and private sewage disposal installation, repairs and replacements within the Hamilton County General Health District shall be done only by permit issued by the Hamilton County District Board of Health and under the supervision of a certified licensed master plumber, licensed by the Hamilton County Health Department.
“B. Application for permits shall be submitted for approval prior to the starting of work (on forms supplied by the Hamilton County Health Department).
“C. Where a sewer connection is available, sewer permit number must appear on plumbing application. Where sewer is NOT available, septic tank application must accompany plumbing application.
“D. Zoning certificates and building permit numbers must accompany all applications for plumbing permits.
“Section 2.
“EXAMINATION AND LICENSING OP MASTER PLUMBERS AND JOURNEYMAN PLUMBERS.
“A. Board of Plumbing Examiners. There shall be a Board of Plumbing Examiners of the District Board of Health of Hamilton County, Ohio. This Board of Examiners shall consist of the Chief Plumbing Inspector of the Hamilton County Board of Health and three other members appointed by said Board of Health. Such members of the Board of Examiners, other than the Chief Plumbing Inspector, shall be appointed for a term of three years, except at the inception the appointment shall- be for a period of one, two and three years respectively with an annual appointment thereafter for a fixed term of three years, and be subject to removal at any time by the unanimous vote of the members of the Board of Health for cause or otherwise. Two of the three examiners appointed by the Board of Health shall be master plumbers, and one a journeyman plumber and all are to be residents of the Hamilton County General Health District. The Chief Plumbing Inspector of the Board of Health is to serve as secretary of the -Board and keep its records, books and papers. * * *”
“B. Master and Journeyman Plumbers to be Licensed. No person shall engage in the business of plumbing as a master plumber or advertise himself as a plumber by displaying a business sign or otherwise, or hold himself out in any way for employment as a journeyman plumber, unless he shall have previously been duly certified and licensed in accordance with the regulations adopted by the Hamilton County Board of Health.
“C. Apprentice Plumbers to be Registered. Persons serving an apprenticeship in the plumbing trade and doing work as such in the Hamilton County General Health District shall be registered as a plumber apprentice with the Hamilton County Health Department and work under the supervision of a licensed plumber at all times.
“D. Plumbing Operations to be Performed by Licensed Plumbers. It shall be unlawful for any person other than a certified licensed master plumber, or a certified licensed journeyman plumber or registered plumber apprentice in the employ of and under the supervision of a licensed master plumber, to install, alter, repair, or make any connection with any water or water distributing pipe, sewer, drain, soil, waste or vent pipe or with any pipe connectced therewith, or to enter any waste pipe, soil pipe, or house drain, by fracture for rodding purposes, within or in connection with any building.
“E. Examination of Applicants for Plumber’s Licenses. Any person desiring to engage in the business of master plumber or to work at the trade of journeyman plumber, shall be examined as to his qualifications and competency by the Board of Examiners of Plumbers.
“F. Eligibility for Examination as Journeyman Plumber. Any person shall be eligible for examination as journeyman plumber who:
“1. Has been duly registered as an apprentice plumber with the Hamilton County Board of Health in accordance with the rules established by the Board of Health and who has been actually engaged for at least five (5) years in work as a registered plumber’s apprentice; or,
“2. Has completed training in an accredited plumbers vocational school and has at least three years’ practical experience in plumbing-work; or
“3. Has at least five (5) years’ practical experience in plumbing work; or
“4. Holds a certificate as a licensed journeyman plumber.
“5. Affidavits proving the above qualifications shall be attached to application.
“G. Eligibility for Examination as Master Plumber. Any person shall be eligible for examination as master plumber who:
“1. Has been In actual employment for at least five (5) years as a certified licensed journeyman plumber; or
“2. Holds a certificate as a licensed master plumber; or,
“3. Has a professional engineering license and such experience in the field of plumbing as shall be approved by the Board of Plumbing Examiners; or,
“4. Has had five (5) years of such experience in the design of plumbing or drainage systems or their construction as shall be approved by the Board of Plumbing Examiners.
“5. Affidavits proving the above qualifications shall be attached to application.
“H. Examination Fees. Each application for examination as master plumber shall be accompanied by an examination fee of $25.00. Each application for examination as journeyman plumber shall be accompanied by an examination fee of $5.00.
“I. Certificate of Competency. If, after examination the Board of Examiners of plumbers shall be satisfied with the competency of an applicant, it shall certify to the Hamilton County Health Commissioners that such applicant has passed his examination for master plumber or journeyman plumber, as the case may be.
“O. Revocation or Suspension of License. The license of any journeyman plumber may be revoked or suspended for any of the following causes:
“1. Incompetency, careless workmanship or dereliction of duty;
“2. Misrepresentation in obtaining a license or permit;
“3. Fraudulent use of license;
“4. Failure to obey any notice or order of the department having jurisdiction;
“5. Any other failure to comply with the plumbing provisions of the plumbing code adopted by the Hamilton County Board of Health.
“P. The license of any master plumber may be revoked for any of the foregoing causes and for any of the following to wit:
“1. Employment of a person to perform plumbing operations not certified or registered in accordance with the provisions of this regulation.
“2. Proceeding with work prior to the time a permit has been issued.
“3. Failure to notify proper authorities or division for inspection of water, sewer or plumbing construction requiring inspection.
“Q. Revocation or Suspension Procedure. No plumber’s license either master or journeyman or apprentice registration shall be suspended or revoked without a hearing or the opportunity to be heard before the Board of Examiners of Plumbers. When the Board shall certify to the Health Commissioner that the charges as to one or more of the items set forth in Section 2-N have been sustained, the latter shall suspend or revoke the license or permission in accordance with such certification of the Board of Examiners. The Board’s certificate shall state whether or not the person affected, may apply for a new .license and if so the length of time before the application may be made. Where permission is granted to apply for a new license the procedure shall be the same as for a new applicant.
“R. Appeals, Revocation or Suspension Procedure. Any applicant, who has filed an application for examination with the Hamilton County Board of Health and the Board of Examiners, after being notified by the Health Commission of the filing of such application, fails to give such examination to the applicant within thirty (30) days after receiving notice of such aplication for examination, then in that event, the County Board of Health, may at its discretion hold the examination. Any applicant who has failed to pass an examination given by the Board of Examiners, may appeal within thirty (30) days, to the Hamilton County Board of Health, for a re-examination, which the Hamilton County Board of Health, at its discretion may give. No plumber’s license, either master or journeyman, shall be suspended or revoked without a hearing or the opportunity to be heard before the Board of Examiners of Plumbers. Any individual whose plumber’s license, either master or journeyman, has been recommended for suspension by the Board of Examiners may within thirty (30) days, appeal to the Hamilton County Board of Health, for a rehearing on the suspension, or revocation of said license, and the Hamilton County Board of Health, shall have power to either suspend or revoke said license, or reverse the ruling of the Board of Examiners. No license shall be revoked without the approval of the Hamilton County Board of Health. When the Hamilton County Board of Health shall certify to the Health Commissioner that charges as to any one or more of the items set forth in Section 12 have been sustained, the Health Commissioner shall thereupon revoke or suspend the license of such individual.”

In Section 2-A, quoted above, the Board of Health of Hamilton County General Health District created a Board of Examiners of Plumbing and then proceeded to vest that Board of Examiners with discretionary and quasi-judicial authority which is conferred on the Board of Health only by statute.

The claim of the defendants that the Board of Examiners performs merely administrative functions is not supported by the delegation of power established in the resolution. Section 2-E provides that—

“Any person desiring to engage in the business of master plumber or to work at the trade of journeyman plumber, shall be examined as to his qualifications and competency by the Board of Examiners of Plumbers.”

There is no provision or language in Section 2 indicating the Board of Health exercises any control over examinations to be given by the Board of Examiners except the establishment of rules of eligibility for applicants desiring to take an examination.

To further establish the complete independence of the Board of Examiners the Board of Health provided in Section 2-Q that:

“No plumber's license either master or journeyman or apprentice registration shall be suspended or revoked without a hearing or the opportunity to be heard before the Board of Examiners of Plumbers. * * *";

that when the Board, referring to the Board of Examiners, “shall certify to the Health Commissioner that the charges as to one or more of the items set forth in Section 2-N have been sustained the latter shall suspend or revoke the license or permission in accordance with such certificate of the Board of Examiners;” and, then the Board of Health delegated authority to the Board of Examiners to determine “whether or not the person affected may apply for a new license and, if so, the length of time before the application may be made.”

A reading of Sections 1 and 2 of the resolution dated June 9, 1953, leads to the conclusion the Board of Health has delegated to the Board of Examiners of Plumbers the discretionary legislative and absolute authority to provide the subject matter of examinations, the disciplinary action to be taken against licensed plumbers and the determination of reinstatement of plumbers previously licensed.

It appears the Board of Health has established standards to be met by applicants desiring to take examinations, but there are absolutely no standards established by it upon which the Board of Health or the Board of Examiners may predicate an examination.

When the legislature provided a Board of Health of a Health District to license plumbers it left to the Board of Health, not to a Board of Examiners, the duty of establishing reasonable rules and regulations to implement such licensing.

Ministerial functions may be delegated to assistants of the Board of Health, but it is without authority to establish an independent board to perform duties imposed upon the Board of Health, except in the exercise of its police power.

It is an accepted doctrine in our constitutional law that the lawmaking prerogative is a sovereign power conferred by the people upon the legislative branch of the government, in a state or the nation, and cannot be delegated to other officers, boards or commissions, or branch of government. Thus, the General Assembly of Ohio cannot delegate its legislative power, but may confer administrative power on an executive, a board, or commission. Matz, Admr. v. J. C. Curtis Cartage, 132 Oh St 271.

In the Matz case, supra, it is held that:

“as a general rule a law which confers discretion on a board without establishing any standards for guidance is a delegation of legislative power and unconstitutional; but when the discretion to be exercised relates to a police regulation for the protection of the public health or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislation sought to be accomplished, legislation may be valid and constitutional without such restrictions and limitations.”

Weber v. Board of Health, 148 Oh St 389.

It is recognized that there are occasions where the nature of the problem makes it impossible to lay down standards, and as a result rule-making bodies must be allowed a wide discretion without anything as their guide except the general policy of the lawmaking body and the law that such bodies must not legislate or makes rules which are unreasonable, discriminatory or contrary to constitutional rights.

Certainly it cannot be successfully argued that the establishing of standards, rules and regulations for examinations upon which applicants for plumbers’ licenses are to be examined are so impossible, or impracticable of formulation as to require complete delegation by the Board of Health to a Board of Examiners for Plumbing.

The evil of no standards for examinations is apparent when examinations which have been given by the Board of Examiners are considered. The record discloses that all applicants have been given the same questions regardless of when the examinations were held, and that no consideration was given to questions other than to submit the same examination which previously had been given by the Board of Health of Cincinnati.

It therefore follows that the delegation of complete authority to the Board of Examiners without any standards upon which an examination may be predicated is an unlawful delegation of authority by the Board of Health.

(Pour) That brings the Court to a consideration of whether the standards for eligibility to take an examination, as set forth in Sections 2-F and 2-G, are unreasonable, discriminatory or contrary to constitutional rights.

Although great emphasis is placed on years of experience required and little consideration given to the knowledge acquired by applicants before becoming eligible to take the examination, the record does not support a finding that the standards of eligibility are unreasonable or discriminatory.

(Five) Since it has been determined that plumbing is subject to regulation by public authority under its police power the question of the reasonableness of the permit and inspection provision of the regulations, and the rules and regulations generally as amended June 9, 1953, are presented.

Section 2-D deals with plumbing operations to be performed by licensed plumbers. As written, this section appears to be arbitrary and unreasonable in that it prohibits any householder from making any plumbing repair regardless of its relation to the general health and welfare of anyone concerned. Strictly construed it prevents any householder from replacing a washer on a faucet. Not only does this section prevent such minor repairs being made by an occupant of premises,' but it makes him subject to penal action.

The fact that the provisions of Section 2-D may not be enforced in connection with minor repairs which could not reasonably be expected to affect the health of any individual or affect the general welfare of the public is no excuse for such legislation.

Section 1A provides that all plumbing “shall be done only by permit issued by the Hamilton County District Board of Health under supervision of a certified licensed master plumber” and Section IB makes it necessary for anyone to make application for permits prior to starting work, and on forms supplied by the Hamilton County Health Department.

Thus if it becomes necessary to replace a faucet or washer an occupant of any home in the district would be required to procure the proper form, make application, pay the permit fee, receive a permit, and then employ a licensed plumber in order to comply with the rules and regulations of the Board of Health, and avoid possible prosecution.

The absurdity of such a condition is self-evident.

The fact that plumbing may be described to be “The art of installing in buildings the pipes, fixtures and other apparatus for bringing in the safe water supply and removing liquid and water carried wastes” is not sufficient, reason for a Board of Health to completely restrict all work in connection therewith to a licensed plumber regardless of its actual relation to the health and general welfare'of the public.

It therefore follows that the rules and regulations set forth in Sections 1 and 2 which restrict every phase of plumbing, as above described, to licensed plumbers only is so unreasonable as to render them invalid

Having discussed the issues present, they may be summarized as follows:

(One) The legislation creating the Health Districts in Ohio is a valid exercise of legislative power.

(Two) The Hamilton County District Board of Health has the right, power and duty to enact reasonable rules and regulations to provide for licensing and registration of plumbers.

(Three) The Hamilton County Board of Health exceeded its authority" when it created and delegated to the Board of Examiners of Plumbers powers and duties restricted to the Board of Health and the actions of the Board of Examiners are a nullity.

(Four) The prerequisites for eligibility to take an examination for plumbers’ license are not shown to be an unreasonable exercise of discretion by the Board of Health.

(Five) The rules and regulations set forth in Sections 1 and 2, which restrict to plumbers only work in connection with plumbing which does not have a reasonable relation to the health and general welfare of the public are invalid.

It therefore follows that until such time as valid standards, rules and regulations are adopted by the Hamilton County District Board of Health in keeping with statutory authority the restraining order heretofore issued herein shall remain in force.

* * # * *

The pleadings, arguments and briefs of counsel herein indicate there is great and urgent need for serious consideration by representatives of plumbers, pipefitters, and contractors to. establish reasonable lines of demarcation on work requiring the services of both plumbers and pipefitters.

Progress in science and industry should not be impeded by antagonism and strife brought about by jurisdictional labor disputes, or a desire on behalf of any group of craftsmen to destroy another by encroachment or color of legal authority.

Contractors are entitled to proceed with contracts with full knowledge of their labor relations.

An entry may be presented in accordance with the issues determined herein.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    WETTERER et, Plaintiffs-Appellants, v. HAMILTON COUNTY BOARD OF HEALTH et, Defendants-Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 8103.
   OPINION

By THE COURT.

In this appeal upon questions of law from the findings in a declaratory judgment of the Court of Common Pleas of Hamilton County, the parties to such appeal have limited the question to be presented to only one declaration of such Court in its judgment, to-wit:

“2. The Hamilton County District Board of Health has the right, power and duty to enact reasonable rules and regulations to provide for licensing and registration of plumbers;”

The appellants also propose that if the finding of this Court concurs with that of the Court of Common Pleas, then there should be a finding that reasonable standards should be set up by which the eligibility for license as a plumber might be ascertained by those seeking such a license, with standards for examination.

This Court agrees with the conclusion of the Court of Common Pleas that: — “The Hamilton County Board of Health exceeded its authority when it created and delegated to the Board of Examiners of Plumbers powers and duties restricted to the Board of Health and the actions of the Board of Examiners are a nullity.” This is admitted by the appellees.

It also appears that although the defendant has set up standards of eligibility for examination, it has set no standards upon which an examination may be predicated. Reference to the findings of the trial court indicate that it found such failure to be unwarranted, and that such standards are required in order that the defendant may conform to the limits of its powers.

This Court adopts the conclusions and reasoning of the trial Court and the judgment is affirmed, with the modification in favor of the requirement for the establishment of reasonable standards for examination for plumbers.


author: Per CURIAM:

text:
    KOCINSKI, Plaintiff-Appellee, v. PATTON et, Defendant-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22879.
    Decided November 23, 1953.
    M. O. Critchfield, S. J. Krohn, for plaintiff-appellee.
    George Rich, for defendant-appellants.
   OPINION

Per CURIAM:

The motion to strike the bill of exceptions for not having been filed within the time required by §2321.05 R. C. (which requires that the party excepting must reduce his exceptions to writing and file same with the court within 40 days after the final order from which the appeal was taken) is granted for the reason as appears from the bill of exceptions certified to by the trial court, that when- filed on May 14, 1953, it contained only the cover title page, followed by numerous blank pages and that at that time it did not contain any of the proceedings and that subsequent to the fortieth day from the final order appealed from, pages 2 to 225 and exhibits were substituted for the blank pages.

We therefore are bound by the findings of fact and find that upon the facts as thus found by the court, the conclusions of law are weli supported. Judgment affirmed. Exc. Order see journal.

HURD, PJ, KOVACHY and SKEEL, J, concur.


author: By BRYANT, J.

text:
    SMITH, d. b. a. SMITTIE’S CORNERS, Appellants-Appellants, v. BOARD OF LIQUOR CONTROL, Appellees-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6029.
    Decided February 3, 1959.
    Robert Dow Hamilton, Chester T. Freeman, Columbus, for appellants-appellants.
    Mark McElroy, Atty. Geni., Columbus, for appellees-appellees.
   OPINION

By BRYANT, J.

August and Lenora Smith are holders of Classes D-l and D-2 permits issued by the Ohio Department of Liquor Control authorizing them to sell beer, malt beverages, wine and mixed drinks. They operate Smittie’s Corners located in Venice, Erie County, Ohio.

Agents of the Department of Liquor Control charged them with selling intoxicating liquor to wit, a case of beer to a fifteen year old minor, Donald B. Wilbur. The case was heard by the Board of Liquor Control upon evidence submitted by both sides and the Smiths were found guilty and their permits revoked.

The Smiths appealed to the Common Pleas Court of Franklin County. That court held that the Board’s order of revocation was supported by reliable, probative and substantial evidence and was in accordance with law and that the errors assigned were not well taken. The Smiths then appealed to this court and have entered into a stipulation reading as follows:

“It is hereby stipulated and agreed by and between counsel for the Appellant and Appellee herein that the transcript of the proceedings and testimony taken before the Board of Liquor Control, the original papers in the case and the docket entries shall be and constitute a sufficient bill of exceptions herein.”

They have also filed a brief and assignment of errors at the back of which is a two page affidavit of one of the defense witnesses seeking to correct an alleged mistake in the stenographic transcript of his testimony.

The question pending before the court at this time arises under a motion to strike appellants’ brief on behalf of the Board of Liquor Control which reads as follows:

“Now comes the appellee, Board of Liquor Control, and moves this Court for an order to strike the appellants’ brief for the reason that they have attempted to insert evidence into the record by means of brief filed herein.”

The Attorney General in support of his motion cites the case of Tipton, Admx. v. Day, 106 Oh Ap 103, decided by this court January 28, 1958. The second branch of the syllabus in this case held in effect that evidence may not be inserted into a record by means of a brief.

In opposition to this motion counsel for the Smiths relied upon §2321.14 R. C., which provides as follows:

“When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction.”

Reliance also is placed upon the case of Trumpler, Admr., et al. v. Royer et al, 18 Oh Ap 151, in which the first branch of the syllabus reads as follows:

“Sec. 11572a GC, 103 O. L. 405, making provision for amendments to bills of exceptions, is a remedial statute which is to be liberally construed, and a bill of exceptions may be amended by striking therefrom an incorrect statement and substituting therefor a true and correct statement.”

We are completely in agreement with the holding in that case particularly in light of the more recent holding by the Supreme Court of Ohio in The State, ex rel. Piletich v. Kovachy et al, Judges, 166 Oh St 298, decided on April 24, 1957. In a per curiam opinion the court at page 299 made the following statement:

“The statute is remedial in nature and must be liberally construed. The Court of Appeals was acting within the jurisdiction invested in it by that statute in remanding the bill of exceptions to the trial court. Whether error intervened in the exercise of that jurisdiction is not determinable in a proceeding in prohibition, the relatrix having an adequate remedy by way of appeal.”

Counsel for the Smiths also filed a further affidavit of the reporter, who transcribed the testimony at the hearing before the Board of Liquor Control, supporting the earlier affidavit included in Appendix A of the brief and assignment of errors of the Smiths. Unfortunately it would appear that the Smiths had not brought themselves under the terms of §2321.14 R. C., which probably is best invoked by a direct application to the court in which a showing is made that justice requires the correction of an omission in a bill of exceptions, that the omission was the result of accident or error and that notice has been given to all interested parties. When this is before the court and the other, parties have been served and. have had an opportunity to express themselves with reference to the several issues involved, then and then only, may action be taken under that section. It would appear from the two affidavits which have been filed that a mistake has occurred. We do not believe that attaching an affidavit to the brief and assignment of errors is a way to reach that situation.

The motion will therefore be sustained and if there be no disagreement between the parties as to the facts, the proper application may be filed and a single entry prepared authorizing amendments at bar by interlineation.

PETREE, PJ, MILLER, J, concur.


author: Per CURIAM.

text:
    STATE, ex rel. SAXBE, Attorney General, Relator, v. ALEXANDER et, Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5982.
    Decided September 30, 1958.

      William Saxbe, Atty. Geni., Hugh A. Sherer, Chief Counsel, Columbus, for relator.
    Squire, Sanders & Dempsey, Henry J. Crawford, Bruce S. Lane, of Counsel, Cleveland, Vorys, Sater, Seymour & Pease, Carl H. Tangeman, of' Counsel, Columbus, for respondents.
    Chester H. Hummell, Asst. Atty. Geni., Columbus, for respondent Richard M. Larimer.
   OPINION

Per CURIAM.

This matter comes on for consideration upon a demurrer to the petition. Relator is the Attorney General of Ohio, William Saxbe, suing in his official capacity. Respondents are The Ohio Underground Parking Commission, hereinafter called the Parking Commission and the individual members thereof.

The action now before us is an original petition in quo warranto filed in this court seeking to oust the individual members of the Parking Commission from their jobs and seeking to have the act which created the Parking Commission declared to be unconstitutional.

As this is a decision upon a demurrer, the court must look to the allegations of the petition, assuming them to be true. Further, the court must give every possible presumption in favor of the validity of an act of the legislature. The motives of the legislature in passing-this act are not for us to weigh in arriving at the answer to the pending questions.

Obviously then, we can not take judicial notice of an engineering report filed with a city and county local planning board by which it is sought to show that the legislature had improper and wrong motives in passing the act creating the Parking Commission. Such reports are not within the proper scope of judicial notice, but even if they were, judicial notice is a form of evidence and evidence is not called for or proper in deciding a demurrer.

Much attenton has been given in the various pleadings and briefs to the matter of exemption from taxes and assessments of the property of the Parking Commission. It has not been pointed out to us that the Parking Commission at this time owns any property and even if it did own property, there are methods other than, quo warranto for determining whether or not it is tax exempt. That question is not properly before the court and will not be considered here.

One of the main objections raised against the act creating the Parking Commission is that it violates the Ohio Constitution, Article II, Section 26, which provides: “All laws, of a general nature, shall have a uniform operation throughout the state.” Numerous cases have been cited by counsel and these authorities have been carefully considered.

The trouble with the authorities cited is that there are vast differenees in the facts which weaken them when applied to the facts alleged in the petition in this case considered in light of the- provisions of Chapter 5538 R. C., creating the Parking Commission,

The same may. be said of the arguments relative to the other main objection that said" Chapter 5538 R. C., is a special act conferring corporate powers contrary to the provisions of the Ohio Constitution, Article XIII, Section 1.

Totally absent are arguments concerning debt limitations such as made in State, ex rel. Public Institutional Building Authority v. Griffith, 135 Oh St 604; State, ex rel. Public Institutional Building Authority v. Neffner, 137 Oh St 390; State, ex rel. State Bridge Commission v. Griffith, 136 Oh St 334 and Kasch v. Miller, 104 Oh St 281.

This is not the first time said Chapter 5538 R. C., has been under attack. In Grandle v. Rhodes, 166 Oh St 108, a majority of the judges of the Ohio Supreme Court felt the expenditure of state highway funds for a study for the Parking Commission violated the Ohio Constitution, Article XII, Section 5a, but felt it could not declare it unconstitutional since it lacked the necessary six votes to do so. Later, upon rehearing in the same case, Grandle v. Rhodes, 166 Oh St 197, the Supreme Court of Ohio decided it was a matter of interpretation and so blocked this expenditure. More recently in the case of the State, ex rel. Underground Parking Commission v. Alexander, 167 Oh St 359, the Ohio Supreme Court declined to pass on questions therein raised, holding that an official who could be fired need not be mandamused and hence mandamus would not lie.

As before stated, this court has given careful consideration to the arguments in the briefs and the authorities cited but does not feel they are sufficient to overturn this act of the legislature. In our opinion, therefore, the demurrer to the petition should be sustained and it is so ordered.

This court is not unmindful of the fact that this case having been originally filed in this court may be appealed as a matter of right. Further, that it involves important constitutional questions and would appear to be of great public or general interest and hence may and probably will have a further review on appeal. Any extended or detailed consideration here would serve no useful purpose.

It apparently has been assumed that quo warranto is an appropriate remedy for raising the several questions argued in the briefs. It should be clearly understood that we express no opinion on this question. In view of the conclusions we have reached there would appear to be no useful purpose in entering into a discussion of this aspect of the case.

Demurrer to the petition sustained.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By GRIFFITH, J:

text:
    LaPENTA, Estate of, In re: Deceased. ZYCHICK, Contempt, In re, Respondent-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24125.
    Decided July 26, 1957.
    Owen C. Neff, Robert C. Grisanti, for Probate Court.
    Leo E. Rattay, for respondent-appellant.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, GRIFFITH, J, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

By GRIFFITH, J:

The object of this proceeding is to reverse an order of the Probate Court of Cuyahoga County finding appellant guilty of contempt.

On July 24, 1956, the Honorable Frank J. Merrick, one of the judges of the Probate Court, acting upon his own initiative, filed ir, said Court the following charges in writing:

“Frank J. Merrick, Judge of this Court, prefers charges against Aaron H. Zychick and says that he is guilty of contempt, in this, to wit, That as an officer of this Court, practicing as an attorney-at-law, on the 12th day of November, 1955, on behalf of the executrix of the within estate, he prepared and presented to this Court an application to settle claims for personal injuries and wrongful death of the decedent herein and simultaneously presented a journal entry form previously prepared by him for the signature of a judge of the Probate Court, which, amongst other things, approved the settlement as requested in such application and ordered the distribution of a fund to be received in such settlement. Included in such order was the distribution of $2100.00 to be received as settlement of the wrongful death claim as follows:
“To A. H. Zychick as attorney fees $525.00
“To Mabel La Penta 525.00
“To Joseph La Penta 525.00
“To Frances La Penta Yacobucci 525.00
“Such journal entry was approved by the Court on November 12, 1955, including the attorney fee contained therein, which was in accordance with Rule 25 of the Probate Court then in full force and effect. Immediately after receiving the approval of the journal entry above referred to, and after it was spread upon the records of the Court, Aaron H. Zychick caused to be held a meeting of several persons affected by such order and journal entry, such meeting being held on or about the 19th day of November, 1955, in his office in the Leader Building, Cleveland, Ohio. At such meeting, Zychick stated that he would not consider himself bound by the order of Court as to attorney fees in the matter and would not complete payment and settlement for the compensation allowed by the Court. Thereupon he caused to be executed bank checks and receipts which purported to carry into effect the order of the Court. After the execution of such checks and receipts, the aforementioned Zychick adjourned the meeting to a nearby bank and there caused to be cashed the checks which had been issued to Mabel La Penta and Frances La Penta Yacobucci each in the amount of $525.00, and thereupon demanded and received back in cash the following amounts: from Mabel La Penta, $300.00 in currency, and from Frances La Penta Yacobucci, $150.00 in currency, such sums being in addition to the attorney fee of $525.00 previously allowed and paid by the order of the Court. After receiving a total fee in the amount of $975.00 or -16 percent of the gross settlement for wrongful death, the said Zychick prepared and executed by the executrix of the within estate a report of distribution of the amount received in such settlement and in the execution thereof the said Zychick acted as attorney and notary public, preparing such report, securing the signature and oath of the executrix of such report of distribution and filing same with the Court on November 30, 1955. Such report represented that the order of the Court as to attorney fees had been carried out and attached purported receipts to show apparent compliance with such order of Court. In truth and in fact such report was false in that it represented that $525.00 was received by said Zychick as attorney fees, when in truth and fact the sum of $975.00 had been so received by said Zychick as attorney fees in said wrongful death settlement. It is further charged that said Zychick did all things enumerated deliberately and designedly to mislead the Court and misrepresent the true occurrences under such order of Court previously entered, and thereby willfully disobeyed such order of the Court which had been previously entered. The undersigned, Judge of this Court, further charges that such conduct on the part of Aaron H. Zychick constituted a contempt of this Court and a disobeying of a lawful order of this Court previously entered and that such conduct constituted misbehavior of an officer of the Court in the performance of his official duties and transactions so as to obstruct the administration of justice and the orderly processes of this Court.”

In due time hearing was had before the Honorable Walter T. Kinder, another judge of said Probate Court, and said Court, after hearing four witnesses in support of the charges and having before it numerous exhibits that had been admitted, found the appellant guilty of contempt and assessed against him a fine of $500.00. It is from that finding and sentence that this appeal on questions of law reaches us. •

At the very commencement of the hearing, and before any opening statements were made, the appellant requested, and was granted, Lhe privilege of making a statement in the nature of a professional report as attorney and officer of the Court to the Court. This statement contained a frank admission by the appellant of his infraction of Rule 25 of the Court, a tender back to each of the three beneficiaries, the excesses he had charged, apologized for his errors, and proclaimed his innocence of any intentional misleading of the Court in the matter.

Probate Court Rule 25 regulates counsel fees in connection with wrongful death cases and limits such fees to 25% of the amount obtained in event of settlement. However, additional compensation may be awarded by the Court where extraordinary services are performed.

The appellant filed no answer or pleading of any kind to controvert the charges.- Counsel for the prosecution of the charges made an opening statement, whereupon counsel for appellant waived his right to make an opening statement. The Trial Court invited the appellant to make his opening statement, and his counsel stated: “As I understand the law, there is no obligation on the part of the respondent to make any opening statement.” Whereupon, the Court replied: “Oh, no, you don’t have to do anything.” Thereupon, the testimony was taken and, at the conclusion of the prosecution’s ease, the appellant rested.

It would appear from the record that the Court went as far as it properly could without ordering the appellant to go forward. The Court said: “I think the evidence so far calls on the respondent for some explanation. I’ll be glad to hear from you, though.” Counsel for respondent replied, “Our position is that we rest our case.” The Court again stated: “I was surprised at the failure of your client to take the stand. I am left here with bare, stark facts.”

Still persisting in his refusal to offer any testimony or any explanation, interposing no defense to the charges, he did nothing at the trial to aid the Court in reaching a conclusion. The matter was left in just this' condition in the lap of the Court to decide. Appellant rested without offering himself as a witness, and without offering the testimony of any other witnesses, in explanation of his conduct which led to the filing of the charges.

Having failed so to do, there was nothing before the Trial Court other than the charges made and the evidence in support of those charges — positive, unrefuted, and condemning testimony of four reputable witnesses. He did nothing to clear himself from the charges — nothing to justify his doing as he did do — nothing to absolve him from the written charges filed against him. Why did he refrain from making full disclosure to the Court that the 25% allowance, as made by the Court under Rule 25, was insufficient? Why did he file the account without telling the Court the true facts? Why did he prepare the receipts for $525.00 each and file them, when the beneficiaries actually received much less? Why all this continued silence on his part up to and until the executrix revealed the true facts to the Probate Court?

True, he informed the three adult beneficiaries of his conduct. This he had to do in order to obtain the additional compensation out of the wrongful death settlement. The appellant is not charged with double dealing as between himself and the beneficiaries. He is charged with misrepresentation to the Court. The respondent failed to disclose to the Court what was going on between himself and the executrix and the other beneficiaries in the wrongful death settlement.

By his silence, when he filed the account, the Coürt concluded that the beneficiaries had received the amounts stated in the receipts and in the account, and, thereupon, approved the account.

Truth, simplicity and candor are cardinal virtues of a lawyer. Mr. Zychick lacked openness and frankness with the judge.

“2. Where an attorney is administrator of an estate and is acting likewise as attorney in such administration, in the absence of a full disclosure concerning an arrangement for compensation from a claimant against the estate and the consent of all interested parties, he impliedly represents that he has no such arrangement.” (In re Estate of Wright, 165 Oh St 15.)

The orderly proceedings in the administration of estates and in the compromise of wrongful death claims incident thereto, require the utmost respect and candor from lawyers toward the judge, and a genuine endeavor to comply with the Court Rules.

If a lawyer shows an indifferent attitude regarding the Court Rules or shows that he does not consider the rule applies to him, or by circuitous conduct avoids the rule and by his silence conceals such conduct from the judge, he might be found guilty of contempt.

Much may be said for and against the wisdom of the Trial Court in the sentence it imposed. However, we are not concerned with that question. The Trial Court could only decide this case according to law, and the only question before the Court was whether Mr. Zychick had, as attorney for the executrix, prepared and filed in Court a report that was false, and that he well knew to be false, thereby misleading the Court and misrepresenting the true occurrences, and that his silent conduct constituted misbehavior of an officer of the Court in the performance of his official duties so as to obstruct the administration of justice. From the face of the record, the appellant is not in a position to complain that the judgment is against the evidence.

After a very careful examination of the record, we have reached the conclusion that the judgment of the Court was correct. The result is that the judgment must be affirmed.

Judgment affirmed. Exceptions. Order see journal.

HUNSICKER, PJ, DOYLE, J, concur.


author: By HOTTLE, J.

text:
    NOBLE, Plaintiff, v. NOBLE, Defendant.
    Common Pleas Court, Highland County.
    No. 18486.
   OPINION

By HOTTLE, J.

Trial was had upon the within cause of action on April 25, 1959, with Plaintiff presenting her case, and Defendant failing to make any appearance, having been served by publication, which the Court finds proper to afford jurisdiction for said trial, and a divorce was granted to Plaintiff upon the evidence.

However, the question of the Court’s jurisdiction and power to award custody of the parties’ children was reserved for further consideration by the Court.

The evidence was that Plaintiff is, and has been for some ten or eleven years, a resident of the state of Ohio and for several years a resident of tbe county of Highland; that she and the children named in the petition and the Defendant herein have had their domicile in said county during those years, although Defendant, in his work, was located in other states from time to time. It appears that Defendant has recently failed to come home on weekends and that his interests apparently lie’elsewhere than with his wife and family.

The question that this Court fails to find adjudicated in the cases of Ohio is whether or not this Court has the jurisdiction and power to determine the custody of the parties’ children when the mother, Plaintiff, has residence and domicile with them in this county, but when the father and husband, Defendant, is residing outside the state of Ohio and service is effected by publication pursuant to §3105.06 R. C., and he makes no appearance in any way. It should be noted that the papers in the file do not reveal any copy of the divorce petition or a copy of the publication reaching him.

Upon consideration of the question, this Court decides upon the facts herein that it has the jurisdiction and power to make a determination of the custody of the children, but does not have the jurisdiction and power to make any award for their support. In view of the testimony, the custody is awarded to Plaintiff with reasonable visitation rights for the Defendant at the home of Plaintiff, subject to the Court’s further order.

The Ohio case as nearly parallel to the facts of the instant case is Black v. Black, 110 Oh St 392, in the opinion of which the Court said at page 394,

“Surely, if there was jurisdiction in the common pleas court here to hear and determine the application for divorce or alimony, that jurisdiction would also extend to the determination of the custody of the minor child who had in fact been with her mother all the time referred to, and prior to that decree the juvenile court of Franklin County, Ohio, in a proceeding under the statute, had made the child a ward of the court and placed her in the custody of the mother.”

However, the instant case does not involve an award of the Juvenile Court, and the Black case did not have the specific question before it because the Defendant had, by his pleadings and his appearance in open Court, waived any question of jurisdiction over his person. Therefore, the statement above quoted seems to be obiter dictum. It appears to the writer of this opinion that the question involved in the instant case was specifically reserved by the Supreme Court in Swope v. Swope, 163 Oh St 59 at 61 (last paragraph).

Sec. 3105.21 R. C., provides:

“Upon satisfactory proof of any of the charges in the petition for divorce or for alimony, the court of common pleas shall make such order for the disposition, care, and maintenance of the children of the marriage, as is just, and in accordance with §3109.04 R. C.”

Sec. 3105.04 R. C., provides:

“When a wife files a petition for divorce or for alimony, the residence of her husband does not preclude her from the provisions of §§3105.01 to 3105.21, inclusive, R. C.”

The Code provisions, in the Court’s opinion, necessarily require a determination of the Court’s jurisdiction over the question stated above.

Turning to the highest courts of other states for decisions on the exact question, the writer of this opinion has found some determinations thereof.

Syllabus 3 of Hicks v. Hicks, 18 S. E. Reporter 2d 754 (Georgia), states in part:

“In an action for divorce instituted in the courts of this state by a wife against her nonresident husband, the court has power to award to her the custody of the children, if they are within its territorial jurisdiction, and even though the only service on the husband is by publication.” . . .

Kenner v. Kenner, a Tennessee decision, reported in 201 S. W. Reporter 782, involved a case in which the wife left her husband to live with her brother, a- doctor in Alabama, who was treating the child of the parties. The primary purpose in the wife’s leaving was because of the ill treatment of the husband. She secured a divorce in Alabama, later returning to Tennessee to visit, and during the visit, the former husband filed suit to set aside the Alabama divorce decree and to obtain the custody of or visitation privileges with the parties’ child. The following quotation indicates the Tennessee Court’s decision on the question.

“Should such foreign decree .be accorded binding force when it purports to determine the right of custody of the children of the marriage, when such children were in the foreign state, in the custody of the plaintiff therein, where the suit was brought, and where the decree was pronounced or should the defendant in that suit, aside from grounds of fraud, be permitted to reopen the question, on such child or children being brought into the residence state of such defendant, for a temporary purpose, as for a visit?
“We are of the opinion that, under the circumstances stated in the question, the decree should be held binding on the parties thereto. Where the father loses custody of his infant children, and their disposition is brought before a competent court for determination of the question, the. primary inquiry concerns the welfare of the children, not the technical legal right of the father to their possession, to use them at once, or at some future day, when grown older, for the benefit of their services and this is emphatically true when the person who invokes the aid of the court is the mother of the children, and a worthy woman. . . . The dominant thought is that children are not chattels, but intelligent and moral beings, and that as such their welfare and their happiness is a matter of first consideration.”

Brandon v. Brandon, a Georgia decision reported in 115 S. E. Reporter 118, involved a mother residing in Akron, Ohio, who filed her suit against the husband residing in Georgia. The parties’ child was with the mother, but soon after the divorce proceeding was filed and before service was made, the father of the child surreptitiously came to Ohio and took the child to Georgia. The Georgia Court refused in the mother’s habeas corpus proceeding to give the mother the custody; but did state by way of obiter dictum,

“If this child had been residing with the mother in Ohio at the time of the rendition in that state of the decree of divorce in favor of the mother upon constructive service, such decree might be binding and conclusive upon the father in this habeas corpus proceeding brought by the wife in this state to secure the custody of the child from the father. It has been held that action for divorce is a proceeding in rem so far as it affects the status of the parties and the custody of their minor children within the jurisdiction of the court, and that service of the summons by publication is good.”

The first two cases above are parallel on the facts involved in the instant case, and the last case above, by assuming certain facts and by dictum, creates a factual situation parallel to the instant case.

A factual situation — different but close enough to the instant case to discuss — is a Missouri case of Beckmann v. Beckmann — the Appellate decision of which is found in 211 S. W. Reporter 2d. 536, and the Supreme Court decision of which is found in 218 S. W. Reporter 2d 566.

The husband suddenly took the children of the parties from Missouri and went to California. The wife filed her case in Missouri and obtained service by publication. After preliminary proceeding, the Court awarded the wife a divorce and custody of the children with maintenance and alimony. The Appellate Court held that the award of custody was proper, but that the judgment for maintenance and alimony was void, and stated in the course of the opinion,

. . Jurisdiction to award custody is a function of the state wherein the children are domiciled, except where both parents are personally before the court seeking an adjudication, on the theory that their personal rights are involved. But the courts of this state have jurisdiction to deal with the status of children domiciled within the state by reason of the interest of the state as parens patriae. In such case, the res is within the state, and may be subjected to the jurisdiction of the court in the same manner as the status of marriage. Service by publication on defendant brought before the court the relation of the children to their parents. In- our opinion, the court had jurisdiction over the res in this case and it was not error to make an award of the custody of the two children to plaintiff herein.”

The Missouri Supreme Court stated that the Appellate opinion was well reasoned, and pointed out that the husband claimed he was temporarily in the state of California being detained there- by ill health. He made this claim at the preliminary hearing and did not submit himself to the jurisdiction of the Court. The Court found therefore, that his domicile was still in Missouri, and although the children were in California, their domicile followed his, and the trial Court had jurisdiction over the custody matter. The Court said in the course of the opinion,

. . . “Thus he retained his domicile in Missouri. Such being the case the children were also domiciled here, and the status as to their custody was a thing or res within the jurisdiction of the court even though the children were physically without the state. Since such status- was within the court’s jurisdiction, the court was authorized to deal with it, and the judgment awarding custody was a proper exercise of judicial power and therefore valid. And inasmuch as the status was within the jurisdiction of the court the fact defendant was served by publication did not deprive the' court of jurisdiction. To the contrary such service was a step necessary to a judgment affecting the status.”

The Court also quoted the following sections of the Restatement:

“The custody of minor children is comprehended under the term status because it involves ‘a legal personal relationship, not temporary in its nature nor terminable at the mere will of the parties, with which third persons and the state are concerned.’ Restatement Conflict of Laws, Section 119.
“Ordinarily the domicile or legal residence of a minor child is the same as that of the father. But where the father and mother separate and establish different domiciles the child usually takes the domicile of the parent with whom it lives in fact.” Restatement Conflict of Laws, Section 30.

In a habeas corpus proceeding, the Supreme Court of Minnesota in the 1st syllabus said in part,

“Since a proceeding to determine custody of a minor child partakes of the nature of an action in rem, the res being the status of the minor, only the court of that state in which the minor is domiciled can fix or change that status.” . . . State, ex rel. Larson v. Larson, 252 N. W. Reporter, 329.

In a habeas corpus proceeding, Hilton v. Crawley, 41 N. W. Reporter 2d 60 at 73, the Supreme Court of Iowa said in the course of the opinion,

“In Lake v. Lake, 63 Wyo. 375, 182 P. 2d 824, 838, the court quoted Nelson, Divorce and Annulment, 2d Ed., sections 1532-1533, thus: ‘To enter a valid judgment or decree a court must not only have jurisdiction of the parties but it must also have jurisdiction of the subject matter. The subject matter involved in a proceeding to determine the question of custody of minor children of parties to a suit for divorce is the children themselves, and if the court does not have jurisdiction of the children it does not have jurisdiction of the subject matter to determine the right of custody.’ The opinion cites numerous authorities. See also Gilman v. Morgan, 158 Fla. 605, 29 So. 2d 327, 373, Certiorari dismissed on motion of petitioners, 331 U. S. 796, 67 S. Ct. 1740, 91 L. Ed. 1822, in which it is said: ‘The minors are the res and without their presence within the jurisdiction of the court its judgment cannot be enforced and is a nulity.’ ... it becomes clear that their domicile is not the essential factor which calls for the exercise of the sovereign protection, care, control, and custody of them, but all that is necessary is the presence of the infants in the State — that they are within its borders. When that is the fact, be the infant a destitute, unprotected, homeless waif, or the subject of litigation for his custody between his parents or others, and not without care, the State, in the first instance, through its agencies, takes direct and immediate protective action, and in the second, in any litigation involving the custody of the infant, be it divorce, habeas corpus, or other proceeding in equity, the State injects itself as a vitally interested third party.”

The United States Supreme Court decision in May v. Anderson, 345 U. S. 528, 73 Sup. C. 840, involving a habeas corpus proceeding, and reversing the Ohio State Supreme Court, involved these pertinent facts: the parties were married, lived and had their domicile in Wisconsin; differences arose, the mother brought their children to Ohio for a trial separation, decided to remain apart; the husband filed suit in Wisconsin and secured service of process by delivering to her personally of the copies of the summons and petition, which service was authorized by Wisconsin statute in a divorce action, but which was not authorized specifically therein for the custody of the children. Soon after the Wisconsin decree awarding him custody of the children, the father obtained the children, took them to Wisconsin, then later they came back to Ohio for a visit with the mother who refused to release them to the father, he thereupon filed a habeas corpus proceeding in the Ohio Court, relying on the Wisconsin decree awarding him custody subject to the mother’s reasonable visitation rights. The Court held among other things,

. . . “that since the mother was not domiciled, resident, or present in state wherein decree was issued and jurisdiction was not obtained over her in personam, the court could not cut off her immediate right to the custody of her minor children.”

Justice Frankfurter, concurring and explaining the majority opinion, said at page 844,

“What is decided — the only thing the Court decides — is that the Full Faith and Credit Clause does not require Ohio, in disposing of the custody of children in Ohio, to accept, in the circumstances before us, the disposition made by Wisconsin.” . . .

Justice Jackson vigorously dissented and said in his opinion at page 847,

“The difference between a proceeding involving the status, custody and support of children and one involving adjudication of property rights is too apparent to require elaboration. In the former, courts are no longer concerned primarily with the proprietary claims of the contestants for the ‘res’ before the court, but with the welfare of the ‘res’ itself. Custody is viewed not with the idea of adjudicating rights in the children, as if they were chattels, but rather with the idea of making the best disposition possible for the welfare of the children. . . . Personal jurisdiction of all parties to be affected by a proceeding is highly desirable, to make certain that they have had valid notice and opportunity to be heard. But the assumption that it overrides all other considerations and in its absence a state is constitutionally impotent to resolve questions of custody flies in the face of our own cases. The wife’s marital ties may be dissolved without personal jurisdiction over her by a state where the husband has a genuine domicile because the concern of that state with the welfare and marital status of its domiciliary is felt to be sufficiently urgent. Certainly the claim of the domiciled parent to relief for himself from the leave-taking parent does not exhaust the power of the state. The claim of children as well as the home-keeping parent to have their status determined with reasonable certainty, and to be free from an incessant tug of war between squabbling parents, is equally urgent.” . . .

Justice Minton dissented on the basis that the majority opinion and Justice Jackson’s dissent dealt with a jurisdictional question not raised on the record.

Although the decision seems to be contra to the decision herein, the May -case did not involve the specific set of facts before this Court, and as Justice Frankfurter pointed out, it seems that the decision was limited to the application of the Full Faith and Credit clause of the Constitution of the United States.

The Court points out that Defendant may later move to modify the Court’s decree as to custody; although, it must be recognized that he is not on the equal footing that he would stand on an original hearing, and although this factor cannot be determinative of the issue of personal or constructive service.

For general references, the Court mentions Nelson “Divorce and Annulment,” second edition, Vol. 2, Chap. 15, Section 15.33; Vol. 17A Am. Jur. Section 1813 under Divorce and Separation.

The question of support for said children seems to be answered adequately by the holding in Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, wherein the Court held it had jurisdiction on a money judgment only when personal service was obtained. (See also Syllabus 1, Hicks v. Hicks, supra.)


author: By PETREE, PJ.

text:
    NEALE, d. b. a. HOWLAND TAVERN, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5956.
    Decided September 30, 1958.
    John T. Feighan, Jr., Joseph Cracium, Cleveland, for appellant.
    William Saxbe, Atty. Geni., Chester Hummell, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By PETREE, PJ.

This cause is on for hearing on motion of the appellee, Board of Liquor Control, for an order dismissing the appeal for the reason that appellant has filed no assignment of error in the cause.

An examination of the brief filed on July 7, 1958, on behalf of the appellant reveals the following statement in the body thereof, beginning at the second paragraph on Page 2:

“QUESTIONS OF LAW PRESENTED
“1. Did the Court of Common Pleas err in holding that the appellant was not entitled to issuance of a D-5 permit because she was not an owner and operator of a night club within the definition set out in §4301 (B) (15) R. C.
“2. Is the finding of the Court of Common Pleas supported by reliable, probative and substantial evidence and in accordance with §119.12 R. C.”

Sec. 2505.21 R. C., says that appeals taken on questions of law shall be heard upon assignments of error filed in the cause or set out in the briefs of appellant before hearing.

We deem it unnecessary to label the assignments of error so long as they are clearly set forth. We feel that the motion should, therefore, be overruled.

Motion overruled.

MILLER, J, concurs.

BRYANT, J, not participating.


text:
    MALLORY-SHARON TITANIUM CORPORATION, Appellant, v. BOWERS, Tax Commr., Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 35171.
    Decided April 16, 1958.
    William R. Hewitt, of Hoppe, Day & Ford, Warren, for appellant.
    William Saxbe, Atty. Geni., by Gerald A. Donahue, John M. Tobing, Asst. Attys. Geni., for appellee.
   OPINION

This cause and matter came on to be considered by the board of tax appeals upon a notice of appeal filed herein under date of August 28, 1957, by the appellant above named from a final order of the tax commissioner dated August 1, 1957, in and by which final order the tax commissioner denied appellant’s application for review and redetermination of an increased personal property tax assessment theretofore made against appellant for the year 1956.

The cause was submitted to the board of tax appeals upon the notice of appeal, the statutory transcript furnished by the tax commissioner, the testimony and evidence presented to the Board of Tax Appeals at a hearing in Columbus, Ohio, on December 18, 1957, and the briefs supplied by counsel.

On March 22, 1951, the P. R. Mallory and Company, Inc., a Delaware corporation, hereinafter referred to as Mallory, and the Sharon Steel Corporation, a Pennsylvania corporation, hereinafter referred to as Sharon Steel, entered into a joint venture agreement for the purpose of developing titanium as a commercial production. This joint venture agreement has been made a part of the evidence in this case and is identified as appellant’s Exhibit “B.”

Prior to this arrangement Mallory had been engaged in research in the titanium field, and Sharon Steel had been engaged in the manufacture of steel. Under the joint venture agreement, Mallory furnished its basic titanium and research facilities and Sharon Steel furnished its Rolling Mills at Niles, Ohio. In addition, the appellant corporation (Mallory-Sharon Titanium Corporation, a Delaware corporation), hereinafter referred to as appellant, was formed to serve as general manager of the joint venture in co-ordinating purchases, production and sales. Under the agreement, the appellant was to receive a fee of $800.00 per month for acting as general manager and an additional sales commission of 5% from the joint venture. In forming the appellant corporation, Mallory and Sharon Steel each contributed about $50,000.00 and each became a one-half owner of the stock of appellant corporation. During the years prior to December of 1955, the appellant owned, on its own account, no assets other than cash, accounts receivable, and office equipment.

The joint venture agreement made in 1951 continued in effect until December 31, 1955, at which time the joint venture was liquidated by bookkeeping entries and the assets of the joint venture were turned over to appellant. Accordingly, on tax lien day for 1956, January 1, 1956, the joint venture which had filed personal property tax returns, as a manufacturer, for each of the years during its existence' did not file a return. Instead, the appellant filed a personal property tax return in which it listed the assets which it had received from the joint venture. In this tax return the appellant returned the value of all inventories by twelve, even though it had held the inventories only “on the last business day” of one month during the calendar year 1955. The tax commissioner refused to accept this computation and he listed the manufacturing inventories for taxation at 50% of their book value as of December 31, 1955.

As indicated above the appellant, when it filed its Ohio 1956 personal property tax return, listed under Schedule 3 of the return, certain manufacturing inventory claimed to be owned by it on December 31, 1955, and located in Weathersfield Township, Trumbull County, Ohio, as having a book value of $4,868,363.00. The appellant, apparently upon the assumption that it was a manufacturer during the calendar year 1955 and apparently upon the assumption that it was authorized to do so, then divided the $4,868,363.00 figure by twelve (months) to arrive at an average manufacturing inventory figure of $405,697.00. It then listed 50% of this last mentioned figure, or $202,850.00, for taxation at the local tax rate of $2.32 per thousand of valuation. The tax, thus computed, amounted to $4,706.12.

The tax commissioner, upon audit of appellant’s return, found that appellant was not a manufacturer during the year 1955 and therefore was not authorized to divide the book value of its December 31, 1955, inventory by twelve to arrive at an average inventory valuation, nor was it authorized to divide the sum of the month ending inventories of the joint venture by twelve to arrive at an average inventory valuation. The tax commissioner held that appellant’s manufacturing inventory had a book value of $4,868,363.00 on December 31, 1955, and that it should be listed for taxation for the year 1956 at 50% of this figure, or $2,434,-190.00. When the local tax rate of $2.32 per thousand of valuation, is applied to this valuation the tax is $56,473.21, which figure is $51,767.09 more than the tax computed on appellant’s return, as filed.

If the joint venture had still been in operation on January 1, 1956, and if it had filed a personal property tax return, the twelve-month average valuation of its manufacturing inventory for the year 1955 would have been $3,296,785.00 which would have been listed for taxation at 50% thereof, or $1,648,393.00, with a tax of $38,242.65.

The question which must be answered in this case may be stated as follows:

What valuation should appellant have used in listing its manuacturing inventory for Ohio taxation for the year 1956?

For a solution to the problem our attention has been directed to several sections of the Revised Code which regulate the listing of tangible personal property for taxation.

Sec. 5701.01 R. C;, reads follows:

“As used in Title LVII (57) R. C., ‘person’ includes firms, companies, associations, and corporations.”

The pertinent portion of §5701.03 R. C., reads as follows:

“As used in Title (57) R. C., ‘personal property’ includes every tangible thing which is the subject of ownership, whether animate or inanimate, * * *, and not forming part of a parcel of real property, * *

Sec. 5711.16 R. C., reads as follows:

“A person who purchases, receives, or holds personal property for the purpose of adding to its value by manufacturing, refining, rectifying, or combining different materials with a view of making a gain or profit by so doing is a manufacturer. When such person is required to return a statement of the amount of his personal property used in business, he shall include the average valué, estimated as provided in this section, of all articles purchased, received, or otherwise held for the purpose of being used, in whole or in part, in manufacturing, , combining, rectifying, or refining, and of all articles which were at any time by fti™ manufactured or changed in any way, either by combining, rectifying, refining, or adding thereto, which he has had on hand during the year next previous to listing day annually, or the. part of the year during which he was engaged in such business. He shall separately list finished products not kept or stored at the place of manufacture or at a warehouse in the same county.
The average value of such property shall be ascertained by taking the value of all property subject to be listed on the average basis, owned by such manufacturer on the last business day of each month the manufacturer was engaged in business during the year, adding the monthly values together, and dividing the result by the number of months the manufacturer was engaged in such business during the year. The result shall be the average value to be listed. A manufacturer shall also list all engines and machinery, and tools and implements, of every kind used, or designed to be used, in refining and manufacturing, and owned or used by such manufacturer.”

The pertinent portion of §5711.22 R. C., reads as follows:

Personal property, used in business, shall be listed and assessed at fifty per cent of its true value in money on the day that it is required to be listed or on the days or at the time that it is required to be estimated on the average basis as follows:

(A) * * *.

(1) The average value of all articles purchased, received or otherwise held by a manufacturer for the purpose of being used in manufacturing, combining, rectifying or refining;

(2) The average value of all articles which were at any time manufactured or changed in any way by the taxpayer, either by combining or rectifying, or refining or adding thereto, * * *.”

Appellant, under the terms of the joint venture agreement, was appointed manager of the joint venture and from March 21, 1951, until December 31, 1955, appellant has operated, managed and co-ordinated all activities and operations of the joint venture including the conversion of sponge titanium into ingots, the forging and rolling of the ingots, all purchasing and sales activities including solicitation of business, preparation of quotations, prices, terms of sale, invoicing, delivery procedure, adjustments and correspondence with customers.

Thé actual physical production of titanium was carried on at the Niles' Rolling Mill Division of Sharon Steel at Niles, Ohio. Appellant, in its own name, would purchase titanium sponge (the basic raw material) for the account of the joint venture. This titanium sponge, by means of melting, would be converted into pure titanium ingots which would then be rolled into sheets according to the specifications of customers. The delivery of the finished product and the billing and collection therefor was done in the name of appellant, for the account of the joint venture. In 1955 the conversion of titanium sponge into a finished titanium product added approximately $15.00 per pound in value to the finished product. During the year 1955 there were twelve employees on the payroll of appellant. Ten of these were clerical or sales employees. F. H. Vandenburgh, vice-president and general manager of appellant, and B. R. Marquis were directly engaged in the production of titanium. Mr. Vandenburgh was in charge of all operations for manufacturing a finished titanium product. His offices were located in the manufacturing plant at Niles, Ohio, and his duties took him daily into the plant to supervise and direct the production of finished titanium product. In this capacity, although on the payroll of appellant, Mr. Vandenburgh was in charge of all employees engaged in the production of titanium, whether these employees were on the payroll of Sharon Steel or Mallory.

All research contracts for development of titanium and for more efficient production methods were entered into by appellant. In 1955 there were two contracts with Battelle Memorial Institute for research on melting and welding titanium and three contracts with the United States Navy and Air Force under which appellant conducted research upon the effects of heat, fatigue and impact on titanium. Patent applications, were made in the name of and for the appellant.

On December 15, 1955, Mallory and Sharon Steel agreed to dissolve the joint venture as of December 31, 1955, and, as noted before, at midnight on that date the joint venture was dissolved and all assets including inventory and liabilities of the joint venture were transferred to appellant. All employees in the plant of the Rolling Mill Division of Sharon Steel became employees of appellant and appellant took over all the inventory of the joint venture. On January 3, 1956, manufacturing and office facilities of the Rolling Mill Division of Sharon Steel were transferred to appellant. The changeover was a paper transaction and there was no break in production, manufacturing or sales. Appellant continued to operate and manage the business as it had done before.

The board of tax appeals is of the view that if the word “manufacturer” as used in §§5711.16 and 5711.22 R. C., is given a liberal construction it must be concluded that appellant was a “manufacturer” during the year 1955. See Eastern Machinery Co. v. Peck, 160 Oh St 144, 51 O. O. 57, wherein the Supreme Court of Ohio at page 148 used this language:

“The Board of Tax Appeals proceeded on the assumption that since the General Assembly, in enacting the statutes, granted manufacturers a ‘preferential tax base’ amounting to a partial tax exemption, the statutes should be strictly construed against the claim of a manufacturer or one engaged in manufacturing seeking the 50 per cent property valuation as a tax base. However, a study of the legislative history of these statutes tends to dispel that assumption and conclusion. These statutes were amended by the Eighty-ninth General Assembly by the enactment of Amended Senate Bill No. 323, pursuant to the recommendation of a committee expressly stating the purpose of the amendment to be ‘to equalize the taxes of manufacture and agriculture, so that additional wealth may be developed in this state,’ and to that end ‘all appraisals (of tangible personal property) are to be made at seventy per cent of such value, except in the case of tools and machinery used in manufacturing and agriculture, in which case, to assist Ohio business in competition with other states, the rate is to be fifty per cent of such value.’ ”

Although the above noted case involved the question — what constitutes manufacturing? — and this appeal is concerned with the question —was appellant a manufacturer during the calendar year 1955? — we believe that if the same liberal interpretation given in the Eastern Machinery case is given to appellant in this case, there is ho question but that appellant would qualify as a “manufacturer.”

The process of converting raw titanium sponge by melting into a pure titanium ingot and the rolling and shaping of the ingot to meet specifications of customers is undoubtedly a manufacturing process and the organization, or organizations, that carried on this process must fall under the statutory definition of a “manufacturer.”

Since it is clear that both a manufacturing and refining process was carried on by the joint venture the sole question ultimately comes down to whether the activities of the appellant were so closely identified and intermingled with this manufacturing and refining process as to permit a finding that both appellant and the joint venture carried on the manufacturing and refining activities during the year 1955.

There can be no question but that a successful manufacturing business is not limited to the conversion of property from one form to another. Such activity is but one part of the entire business and to be successful, it must have employees or persons dealing with purchasing, employment, labor relations, research, production, quality control, sales, delivery, billings and collections.

In the opinion of the Board of Tax Appeals the activities of appellant such as scheduling of production, quality control, regulation of plant hours and number of employees, increases in plant manufacturing capacity and reclamation of scrap were directly connected with the conversion of titanium sponge to a marketable titanium product. If these activities had been performed by the joint venture, there would be no question but that they were manufacturing activities. The fact that appellant assumed responsibility for them does not change their character.

We are convinced that both appellant and the joint venture were engaged in a necessary part of titanium manufacturing during the calendar year 1955 and, based upon this conclusion, and upon a finding that the manufacturing activities of the joint venture and appellant were so closely intermingled as to be almost incapable of separation, we find that the final order of the tax commissioner herein complained of must be, and hereby is, modified to the extent required by this conclusion.

We find that appellant, in its 1956. personal property tax return, should have listed the month-end manufacturing inventories of the joint venture for each of the months in the year 1955, and it should have divided the sum thereof by twelve to arrive at the value of its average monthly inventory. As thus computed this monthly average is $3,296,-785.00 and the tax listable value thereof is $1,648,393.00.

As thus modified the final order of the tax commissioner is affirmed.