text:
    STATE, ex rel. DEVINE, Plaintiff-Relator, v. BAXTER et, Defendants-Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5834.
    Decided April 29, 1958.
    Hylas A. Hilliard, Columbus, for plaintiff-relator.
    Earhart, Robertson & Savage, Daniel S. Earhart, of Counsel, Columbus, for defendants-respondents.
   OPINION

Per CURIAM.

This is an original action in quo warranto brought by the plaintiff-relator, hereinafter called the relator, in his official capacity as Prosecuting Attorney of Franklin County, Ohio, which brings into question the validity of the election of the defendants-respondents, hereinafter called the respondents, as trustees of the Eastlawn Cemetery Association, a corporation not for profit, at a meeting held July 29, 1957 The validity of the election held on the date above mentioned depends upon whether those who participated and those who attempted to participate in the election of trustees were members and entitled to vote at a meeting of the Association. ■

It is undisputed that the Eastlawn Cemetery Association is an Ohio corporation not for profit and that it was incorporated in 1923. From the record of the testimony of Aileen Edwards; who was acting as Secretary at the time, we find that the book containing the Code of Regulations, adopted in 1923 and never changed, contained the following provision with reference to voting rights:

“Article 1. ‘Any person can become a member of this association by purchasing a family lot in Eastlawn Burial Park and shall continue a member so long as he or she is the owner of said lot and shall during such ownership be entitled to one vote per each lot owned at all meetings of the association.’ ”

Taking that regulation into consideration along with relator’s Exhibit “A,” we see no escape from the conclusion that a lot consists of six grave spaces and that in order for a person to be entitled to vote as a member of the Eastlawn Cemetery Association, it must appear that he owns one lot or its equivalent, consisting of six grave sites, before that person is a member entitled to vote at a meeting.

The relator complains that Mr. Robert A. Skipton was not recognized although he sought recognition at the meeting in order to make nominations other than the eleven who were nominated and elected at the meeting: that although there had been a motion to close the nominations after the eleven were nominated, that sufficient time or opportunity was not accorded Mr. Skipton or others who might have been in opposition to the closing of the nominations and the declaration by the Chairman that the eleven persons had been unanimously elected.

From the study of the pleadings, the briefs, and arguments of counsel, we feel that point would be well taken if Mr. Skipton and others seeking recognition had been qualified members of the Association. However, in this instance, the Chairman was only bound to receive nominations from members who had voting qualifications; and, likewise, the Chairman was only bound to recognize, for purposes of a motion or a question as to the election, those who were qualified to vote as members.

We find no merit to the argument of estoppel arising from the fact that seven out of the original eleven who had served on the Board prior to the July 29, 1957, meeting were not owners of six grave spaces. The six so-called insurgents and Aileen Edwards were at least de facto trustees up until the election of July 29, 1957, although the Association’s regulations did not qualify them as voters, since no one challenged them, their right to serve, or their election. They were trustees in fact. This fact alone would not constitute them members with authority to vote and participate in meetings in the face of positive regulations such as have been quoted above.

We find that the relator has not shown a right to the writ of quo warranto; and, therefore, the writ will be denied.

Writ denied.

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


source: Caselaw Access Project

author: By NICHOLAS, J.

license: Public Domain

text:
    MAIDEN, a Minor, et, Plaintiff, v. MAIDEN, Defendant.
    Common Pleas Court, Montgomery County.
    No. 101575.
    Decided September 20, 1955.
    Sharts, Singer & Brown, for plaintiff.
    Baggott & Johnston, for defendant.
   OPINION

By NICHOLAS, J.

This matter is before the Court upon the application of a minor, through his mother as next friend, for a declaratory judgment determining the rights, status and legal relations of the minor in respect to the defendant, born out of wedlock, and that subsequent to his birth his mother married a man other than his father.

The evidence shows that the mother, and next friend of the minor, knew and associated with the defendant for a period of about eight months ending about nine months prior to the birth of the plaintiff. The evidence further shows that plaintiff’s mother and the defendant engaged in sexual relations during this period of time and that the last sexual relations occurred approximately nine months before the birth of plaintiff.

The defendant presents a question of whether the question of the paternity of the plaintiff is not a moot question so far as this proceeding is concerned. The Court feels that the question is not moot, in that, plaintiff is entitled to have an adjudication of the question of his paternity, and have established as a matter of record the fact that he is the son of the defendant, entitled to use the name of the defendant and to have support from the defendant.

The statute providing for declaratory judgments provides that Courts of record may declare rights, status and legal relations whether or not further relief is or could be claimed. In the text entitled “Declaratory Judgments,” by Bochard, 2nd Edition, Page 485, it is said,

“It is probable, because of the efficiency of statutory provisions and of modern social agencies, that the need for a special declaration of a child’s relation to a parent will be slight but, when it does arise, the question is of vital importance and calls for a remedy which will have behind it the authority of a judgment.”

In the text entitled “Actions for Declaratory Judgments” by Anderson, Volume 2, Section 643, Page 1469, it is said,

“A child may by legal action exact fulfillment of the father’s duty to support it, and no one has the right to contract away the child’s right in. this respect, and no reason presents itself why such right might not be appropriately adjudicated in a declaratory judgment action.”

In the work entitled “Disputed Paternity Proceedings” by Schatkin, 2nd Edition, Page 282, it is stated,

“An action for a declaratory judgment is the only method of securing a binding and conclusive adjudication of the child’s legal status, that will have the effect of a judgment in rem.”

In the case of Miller v. Curri, 208' Wisconsin 199, it is held,

“The Court will entertain jurisdiction of a proceeding for a déclaration upon the question of the legitimacy of a person independently of any controversy relating to other rights;”

The defendant further contends that a declaratory judgment action cannot be substituted for a bastardy action. A bastardy action is a civil action between the mother of the child as plaintiff, and the one accused of being the father as the defendant. This is an action by the child himself and, therefore, differs entirely from a bastardy action.

In the case of Craig v. Shea, 102 Nebraska 575, the Court held,

“There being no provision in the statute allowing bastardy proceedings to be brought by a married woman, and no other remedy being afforded except criminal prosecution, an illegitimate minor child may, by her next friend, maintain a suit in equity against her putative father to declare her status and recover support and maintenance.”

In the text of “Actions for Declaratory Judgments” by Anderson, Volume 2, Section 643, Page 1468, we find,

“The declaratory action is a handy tool, the use of which will readily solve any issues or difficulties presented in connection with the status of a child. Such an action is applicable to determine the parentage of a child m a bastardy proceeding, or legitimacy, adoption, parentage and the like.”

In the case of Urquhart v. Urquhart, 196 Misc. Reports 664, the upper Court sustained the decision of the lower Court finding the former husband of a child’s mother to be the father of the child in an action for declaratory judgment by the infant through his mother as next friend. There was no evidence offered as to the money value right of the child and, therefore, no order made as to money judgment.

The Court finds, as a matter of law, that an action for a declaratory judgment is properly brought in this case, and that the plaintiff is entitled to a declaration of his rights, status and legal relations.

The Court finds, as a matter of fact, and by a preponderance of the evidence offered, that the defendant is the father of the minor plaintiff.

An entry may be prepared accordingly.


author: By PETREE, PJ.

text:
    LEX MAYERS CHEVROLET CO., INC., Plaintiff-Appellant, v. BUCKEYE FINANCE COMPANY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5872.
    Decided May 20, 1958.
    Frank B. McClelland, Columbus, for plaintiff-appellant.
    Phillip V. Stout, Columbus, for defendant-appellee.
   OPINION

By PETREE, PJ.

This is a law appeal from the judgment of the Municipal Court for the defendant, appellee herein, for costs.

Plaintiff, appellant. herein, claims damages from the appellee by reason of the following facts. It took an assignment from one Gerald M. Phenice and allowed said Gerald Phenice the amount of $880.63 as trade-in value for a 1954 Harley-Davidson motorcycle on which there was a balance due to Buckeye Finance Company, appellee herein, in the total amount of $90.63, which included the full amount of the motorcycle and insurance on said motorcycle. .A net credit of $790.00 was applied in favor of Gerald M. Phenice on an automobile which he purchased from appellant.

Appellant called appellee to ascertain the balance due. was informed that it was $90.63, sent a check which was cashed by appellee in about three days.

The stepfather of Gerald Phenice, Mr. Ralph Martin, had taken the title to the motorcycle in his own name but had signed a blank power of attorney, and the same was turned over to appellant. Ralph Martin claims no interest in the motorcycle and is not requesting that certificate of title be made in his name. However, a memorandum certificate of title had been issued in the name of Ralph Martin at the time the purchase was made, August 1?, 1955.

The account was carried by the appellee company in the name of Gerald Phenice, according to appellant’s Exhibits 3 and 4, Exhibit 3 being the amount of payments on the loan and Exhibit 4 being the amount of payments on the insurance contract, except, in each case, the last payment, which was made by the appellant.

After accepting the money for the final payment on the insurance and the motorcycle from the appellant, appellee kept the certificate of title and levied on the motorcycle. It was sold on execution for $420, which appellee finance company retained and credited itself upon an account entirely foreign to this motorcycle transaction, an unsecured loan of Ralph Martin, stepfather of Gerald Phenice.

The evidence shows that Gerald Phenice became twenty-one years of age before he traded in the motorcycle to' appellant company; that he was assured by Sam N. Alfred, President of the Buckeye Finance Company, before making an assignment to appellant company, that as long as he made the payments on the motorcycle and paid the money, they could not take his “bike” from him (page 25 of the record); that the Buckeye Finance Company accepted the payments from Gerald M. Phenice, except the last payment, which was made in his behalf by the appellant company.

By the course of action of the appellee in accepting the payments of Gerald Phenice on the motorcycle and the account on which he was paying after he was twenty-one years of age, and in assuring him that he would not lose his motorcycle as long as he made payments, the appellee company should not now be permitted to take unfair advantage of Gerald Phenice by levying on said motorcycle and keeping the $420.00 which it brought on execution.

The appellee company cannot lull this appellant to sleep by encouraging him to leave the motorcycle in the name of his stepfather after the appellant was twenty-one years of age, accept the money in full on the motorcycle from him and his assignee, the appellant herein, and then collect over again $420.00 by the sale of the motorcycle which appellee wrongfully left in the name of Ralph Martin.

If, as the trial court said, “Gerald Phenice after becoming twenty-one could have had the title transferred to his name by that regular method,” it seems only fair to require appellee to respond in damages to appellant for refusing to accord it the rights of Gerald Phenice that it has acquired by assignment. The position of the appellant is strengthened in his suit for damages by the fact that appellee accepted $90.63 from the appellant and kept this amount also.

Appellee finance company having accepted payment in full for the motorcycle in question from Gerald Phenice and his assignee for value, the appellant herein, under the conditions set out in the foregoing paragraphs of this opinion, appellee is estopped to deny the rights of the appellant. As a consequence, appellee must respond in damages in the amount of $880.63.

20 O. Jur. 2d, Paragraph 28, at Page 489, is in point. It reads as follows;

“The purpose of equitable estoppel is to prevent actual or construetive fraud, and the doctrine should always be so applied as to promote the ends of justice. In determining its application the counterequities of the parties are entitled to due consideration. The doctrine is available only in defense of a legal or equitable right or claim made in good faith, and can never be used to uphold crime, fradd, injustice, or wrong of any kind.”

From 20 O. Jur. 2d, §31, at Page 494:

“An estoppel arises when one is concerned in or does an act which in equity will preclude him from averring anything to the contrary, as where another has been innocently misled into some injurious change of position.”

This quotation is from the last five lines of the text on that page.

Since the appellant has advanced in cash and credit the amount of $880.63 for the motorcycle in question, to which it was entitled and which was taken from its possession and sold by the appellee, the judgment of the trial court should have been for the appellant in the amount of $880.63. The appellant’s assignment of error is well taken. Judgment will be reversed and cause remanded with instructions to enter judgment in accordance with this opinion.

Judgment reversed.

BRYANT and MILLER, JJ, concur.


text:
    SULLIVAN, Appellant, v. BOWERS, Tax Commr., Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio
    No. 34772.
    Decided October 17, 1957.
    Michael F. Sullivan, in proper person, for appellant.
    William Saxbe, Atty. Geni., By John M. Tobin, Asst. Atty. Geni., for appellee.
   OPINION

This is an appeal from a final sales tax assessment order made on July 8, 1857, on an application for review and rehearing, wherein the tax commissioner adhered to his prior order of April 3, 1957. The assessment period is October 17, 1956. The amount of the assessment is $131.77 plus a 15% penalty of $19.77 — total, $151.54.

The cause now comes on for further and final consideration upon the commissioner’s transcript and order made, appellant’s notice of appeal, the record of a hearing had before the board on September 16, 1957, two exhibits, and briefs of counsel.

At the time of this transaction Major Sullivan was a resident of Virginia. He was in the Armed Services of the Government, and as such, upon assignment, was temporarily residing with his wife in Whitehall, Franklin County, Ohio. He owned a Pontiac car. He desired to purchase a new 1956 automobile. They shopped around Columbus dealers, and finally decided to purchase a new Oldsmobile of a certain model of Bob White, Inc., of Columbus. They finally agreed upon a price of $4,392.49 for the new car. The Pontiac was to be taken in at an agreed price. The balance of the purchase price was to be paid in cash. A few days prior to October 17, 1956, Sullivan paid Bob White, Inc., $100.00 as a down payment on the deal. On the date noted, Sullivan’s wife, armed with a power of attorney, drove the Pontiac car to Fullerton, Kentucky. She was accompanied by an agent of Bob White, Inc., driving the new Oldsmobile. The wife and agent then went before a notary public and certain documents (not in evidence or described) were executed, presumably a purchaser’s affidavit and transfer of the Pontiac certificate of title to Bob White, Inc., at the time she delivered two checks to the agent in payment for the new car. Immediately thereafter the wife returned to Columbus driving the new Oldsmobile, and the agent driving the Pontiac. It is not shown that the wife received any documents in Kentucky. Within a few days after October 17, Sullivan received from Bob White, Inc., through the mails, an Ohio certificate of title signed by the Clerk of Courts of Franklin County. He then mailed a carbon copy of this certificate to the Commissioner, Division of Motor Vehicles of Virginia, and in return from him received a Virginia certificate of title and license. Charges for these Virginia documents were paid for by Sullivan. The Ohio and Virginia certificates of title are the only documents in evidence. The evidence is silent as to who filed anything or what was filed with the Franklin County Clerk of Courts which induced him to issue the Ohio certificate. There is no mention of the existence or issuance of an exemption certificate.

Sullivan says that the reason for the trip to Kentucky was for two purposes; (1) so that he could get the car registered in Virginia; (2) to avoid Ohio sales or use taxation. The fallacy of the first reason is perfectly apparent because he used the Ohio certificate of title to obtain his subsequent Virginia registration, unaccompanied by any document procured in Kentucky. Sullivan’s wife received no document from Kentucky authorities. Appellant admits that his second purpose was to avoid Ohio taxation, and was made upon the advice of other people who claimed to know that such a course would accomplish his second purpose.

The notice of appeal sets forth three claimed grounds of error; (1) that the sale was an interstate transaction. (2) “The Soldiers and Sailors Belief Act, 50 USCA Appendix 574, prevents assessment of the ‘use tax' on this transaction, because petitioner is a resident of Virginia, the vehicle is registered and licensed under the laws of that,state, and all taxes imposed by that state have been duly paid. (3) Therefore, the state of Ohio has no power to tax this transaction. §5739.0215 (11) R, C.”

The appellant’s second claim may be quickly disposed of. This is not an assessment made under the Use Tax Act. As previously noted, this is a sales tax assessment. The Federal act applies only to use taxation. The absurdity of this claim, if appellant carried it to its logical conclusion, would be that appellant, by reason of Virginia residence (no doubt, meaning domicile;, although a temporary resident of Ohio, could escape Ohio sales tax in its entirety.

Is this an Ohio sale, or is it an interstate transaction, prohibited by subsection B (11) of §5739.02 R. C., which reads:

“(B; The tax does not apply to the following:
“(11) Sales not within the taxing power of this state under the constitution of the United States;”

This section further on provides, that

“For the purpose of the proper administration of §§5739.01 to 5739.31, inclusive. R. C., and to prevent the evasion of the tax, it is presumed that all sales made in this state are subject to the tax until the contrary is established.”

Sec. 5739.01 R. C., defines a sale and selling as follows:

“ ‘Sale’ and ‘selling’ include all transactions by which title or possession. or both, of tangible personal property, is or is to be transferred, or a license to use or consume tangible personal property is granted, for a consideration in any manner, whether absolutely or conditionally, whether for a price or rental, in money or by exchange, and by any means whatsoever; * *

It is further provided in §5739.04 R.C., that

“If the tax does not apply to a sale, the consumer must furnish to the vendor, and the vendor must obtain from the consumer, a certificate, indicating that the sale is not legally subject to the tax. The certificate shall be in such form as the tax commissioner shall by regulation prescribe, and if no certificate is furnished or obtained within the period for filing the vendor’s return for the semiannual period in which such sale is consummated, the tax shall apply.”

In view of these statutory provisions, certain facts become highly important. The pilgrimage to Kentucky was made for the express purpose of defrauding the state of sales tax. The contract of sale was made in Columbus. Ohio; and the payment of $100.00 before the Kentucky episode was made to assure the seller that it would receive .the purchase price and that the buyer would carry out the agreement. All that was done in KentucKy that is pertinent to the transaction was delivery of possession. The wife immediately brought the new car back to Columbus, Ohio. It was nor taken to Virginia. After the return from Kentucky, Bob White, Inc. delivered the certificate of title for the new Oldsmobile to appellant by mail. That instrument was delivered in Ohio. There is no proof of any kind that an exemption certificate was ever executed. This was not an interstate sale, or a sale made of property in the course of interstate commerce. It was a taxable sale made in this state. It is in no wise a transaction similar to such as is found in Trotwood Trailers, Inc. v. Evatt, 142 Oh St 197, 27 O. O. 168, or Kelley Motors v. Peck, 161 Oh St 578, 53 O. O. 430.

It follows that the commissioner’s assesment order must be, and is hereby, affirmed.


author: Per CURIAM.

text:
    SULLIVAN, Jr., Appellant, v. BRUCE, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 13117.
    Decided December 18, 1957.
    Robert C McFadden, L. B. Davenport, R. c. McFadden. Arter, Hadden. Wykoff & Van Duzer, Cleveland, on the brief, for appellant.
    Norman W. Shibley, Donald P. Traci, Harrison, Spangenberg & Hull, Cleveland, on the brief, for appellee.

      Before SIMONS, Chief Judge, MCALLISTER, Circuit Judge, and BOYD, District Judge.
   OPINION

Per CURIAM.

On April 10, 1953, the appellant, with a number of guest passengers in his car, was driving on the East River Road, South of Elyria, Ohio. The road was dry, the night clear, the driver familiar with road and warning signs clearly visible. When the car was some 700' to 800' from a 90° curve to the left, one of the passengers urged the appellant to see how fast he could negotiate the curve. The appellant speeded up and there is evidence that he reached a speed of between 60 and 65 miles an hour and “was still feeding it gas.” Almost immediately after the appellant speeded up, the appellee protested “if you don’t slow down we won’t never make this curve.” This was some 700' or 800' from the curve. The appellant didn’t “make it”; the car went off the road, crashed into a tree, became a total wreck and the appellee sustained serious and permanent injuries. The court submitted the case to the jury upon careful instructions, which are not here challenged. A verdict followed and the appellant brings the case here with the contention that the court erred in declining to direct a verdict in his favor. His contention is that under the facts disclosed by the evidence, the appellant was not guilty of “wilful or wanton misconduct” which is a prerequisite to liability under 84515.02 R. C.

While there is conflict in the evidence as to the speed of the car when it entered the curve, the point at which the “dare” was given to the driver by one of his passengers and the point at which the appellant was cautioned to moderate his speed, it is quite clear that the record presents a question for the jury and that the issue as to wilful or wanton misconduct was properly submitted to it. Upon principles long established, evidence given in a jury trial must, upon appeal, be viewed in the light most favorable to the successful litigant; that the weight of evidence. if it be substantial, and the credibility of witnesses is within the province of the jury and not of a reviewing court.

Under the Ohio decisions, wanton misconduct is conduct that manifests a disposition to perversity, and that the defendant must have been conscious that it would in all probability result in injury to the plaintiff. It comprehends an entire absence of all care for the safety of others and an indifference to consequences and it is not necessary in order to establish wanton misconduct that an injury be intended. The court so charged and its instructions are supported by Tighe v Diamond, 149 Oh St 520. 37 O. O. 243, 80 N. E. (2d), 122: Herrell v. Hickok, 49 Oh Ap 347, 3 O. O. 245. 197 N. E. 241; Thomas v. Foody, 54 Oh Ap 423, 8 O. O. 188, 7 N. E. (2d), 820: Angel v. Constable, 40 Abs 1, 57 N. E. (2d), 86. If the appellant’s contention is sound, one could hardly conceive of circumstances under which a recovery could be had by a guest passenger against the driver of a motor vehicle.

Affirmed.


author: By HARTER. J.

text:
    MARKOS, Plaintiff, v. CAIN et, Defendant.
    Common Pleas Court, Franklin County.
    No. 191704.
    Decided April 25, 1955.
    Butler, Addison & Werum, Barnhart & Wehr, Columbus, for plaintiff.
    Chalmers P. Wylie, City Atty., Russell Leach, Asst. City Atty., Harrison Smith, Jr., Special Counsel, Columbiis, for defendant.
   OPINION

By HARTER. J.

DEFENDANT’S DEMURRER TO PETITION — SUSTAINED.

As a preface to this opinion, this Branch of this Court wishes to have it distinctly understood that he is in no way passing upon the merits of this litigation; rather, we are now dealing solely with a problem of procedure. — It would, as we see it, be premature for us to attempt to decide the merits of this case on a “matter of law” basis.

The sole problem to which we are now directing our attention is whether plaintiff has adequately alleged in his petition in this case that he is “interested.”

The petition states “The plaintiff says that he is an adult freeholder and a resident of Marion Township, Franklin County, Ohio, and is interested in and opposed to the annexation of the hereinafter referred to territory to the City of Columbus. * * *”

This allegation — “is interested in” — is, in effect, the allegation of a conclusion, not the allegation of an operative fact. It would be a proper allegation and would not be vulnerable to attack by a motion to strike if it were supported by operative facts alleged. See Munn v. Herriff, 2 Ohio Supplement 401. Without such supporting facts (and there are none here) we must appraise the phrase “is interested in” alone and as a bare legal conclusion.

We have been unable to find any case law dealing with these very words but the 'Ohio Supreme Court did deal with a closely analogous situation in the case of DeWeese v. Security Savings Association (1933), 126 Oh St 480. We Will quote from that per curiam opinion, page 480:

“This matter is before the court on general demurrer of Frank B. DeWeese, a defendant below, to the third cause of action of the petition of The Security Savings Association of Dayton, Ohio, plaintiff below”
p. 481: “The petition alleged, ‘and it was provided in said latter deed of conveyance that the premises were conveyed subject to the, mortgage of plaintiff, above set forth, which grantee (Frank B. DeWeese) assumed and agreed to pay as a part consideration therefor’
“The sole question presented here is: Is this allegation a legal conclusion or a statement of fact? If it is a legal conclusion, the demurrer should have been sustained. If a statement of fact, the demurrer was properly overruled.”
“It is the opinion of the court that the allegations of the third cause of action are insufficient in law to create any liability in Frank B. De-Weese for the mortgage deed in question. The' demurrer should have been sustained. * * *.”

If the Supreme Court of Ohio could come to this conclusion on the allegations of that pleading, it is clear that we should come to a like cnclusion on the “is interested in” phrase now before us. We therefore hold that the defendant’s demurrer must be sustained.

Leave will be granted to the plaintiff to file an amended petition. He may be able to allege supporting, operative facts as to his “interest” in this matter. If he does supply such operative facts, there will then be an opportunity afforded for careful consideration of the other legal problems mentioned by counsel for the defendant in their memoranda. Such consideration is unnecessary now.


author: By GESSAMAN, J.

text:
    MARKOS, Plaintiff, v. CAIN, Clerk, Defendant.
    Common Pleas Court, Franklin County.
    No. 191704.
    Decided June 15, 1955.

      Barnhart & Wehr, Richard C. Addison, for plaintiff.
    Russell Leach, City Attorney, Harrison W. Smith, Jr., Columbus, Special Counsel.
   OPINION

By GESSAMAN, J.

On demurrer of defendant to the amended petition on the ground that it does not state facts sufficient to constitute a cause of action.

Plaintiff seeks to enjoin the defendant from certifying to City Council the transcript of the proceedings of the County Commissioners ordering the annexation to the City of Columbus of 168 acres of Marion Township. Judge Harter sustained a demurrer to the petition on the ground that plaintiff had not alleged facts showing that he is a “person interested.” Sec. 707.11 R. C. An amended petition was then filed. The new allegations upon which plaintiff claims he is a “person interested” are as follows:

“Plaintiff says that he is an adult freeholder and a resident of Marion Township, Franklin County, Ohio, and is an elector in said township and county and that on or about November 2, 1954, as an elector exercising his right to vote, voted for the incorporation of the area known as Marion Township into the Village of Marion Park, Ohio, along with the majority of the electors of said township; that as a result of said election said township was declared incorporated into the Village of Marion Park, Ohio; and that despite such mandate of the majority of the qualified electors in said township the County Commissioners of Franklin County, Ohio, have authorized the annexation of the territory herein described, which is part of Marion Park, to the City of Columbus thereby in effect denying this plaintiff his rights as an elector in said township.
“Plaintiff further says that the area described in the petition for annexation contains, by design, only two (2) adult resident freeholders in the area, they being man and wife, but the area contains a large percentage of the valuable industrial property in the township and that if said annexation is permitted it will deprive said township of considerable taxable property and will deny the duly incorporated Village of Marion Park a majority of its taxable assets and will defeat the expressed mandate of the electors of Marion Township and for these reasons the plaintiff is interested in the incorporation of Marion Park, Ohio, and opposed to the annexation of the hereinafter described territory to the City of Columbus; and that the defendant, Agnes Brown Cain, is the duly appointed, qualified and acting Clerk of the City of Columbus, Ohio.”

It will be seen that plaintiff is not a resident of the area sought to be annexed and that his claim of interest is based upon the fact that he voted for the incorporation of the larger area and upon his interest in the proposed corporation of Marion Park. He says that if the annexation proceeds he will have lost his vote for the incorporation. He further claims that if the annexátion proceeds it will (1) deprive the township of considerable taxable property, (2) it will deny the proposed Village of Marion Park of a majority of its taxable assets and (3) it will defeat the express mandate of the electors of Marion Township.

Plaintiff’s claim of interest therefore falls in two categories; one, his vote for and interest in the proposed incorporation of the entire township into the Village of Marion Park and, two, the fact that if the annexation proceeds “it will deprive said township of considerable taxable property.”

As to number two, we observe that every annexation subtracts considerable taxable property from one area and adds it to another. That fact, in and of itself, does not make the plaintiff a “person interested.”

As to number one above, it is our opinion that plaintiff may not base his claim of interest upon the fact that he voted for the proposed incorporation and his interest therein and that therefore he is opposed to the proposed annexation. The problem of the annexation versus the proposed incorporation is one of jurisdiction. See State, ex rel. Ferris, v. Shaver, Recorder, 163 Oh St 325, and the opinions of the writer of this opinion in Hoye v. Schaefer, Recorder, No. 189,975 and in Lamneck, Jr. v. Cain, Clerk, No. 191,454. However, as we construe §707.11 R. C., plaintiff’s interest cannot be based solely upon the jurisdictional question or his interest in the proposed incorporation. It is true that a “person interested” may raise the question of jurisdiction but he must first qualify as a “person interested” within the meaning of §707.11 R. C. Plaintiff does not allege that the township trustees obtained jurisdiction of the incorporation proceedings before the County Commissioners obtained jurisdiction of the annexation proceedings. He alleges just the opposite. And there is no allegation upon which to base a claim that the acquisition of jurisdiction by the County Commissioners was invalid.

Research both by counsel and the Court does not disclose any definition by a reviewing court of this state of the term “person interested” as used in §707.11 R. C. We construe it to mean that to qualify as a person interested one’s rights must be affected substantially, but not remotely, by the annexation, itself. Such a requirement is not met solely by one’s interest in a proposed incorporation of a larger area (here the entire township) of which the area sought to be annexed is a part.

Any person living in the City of Columbus may be, by residence alone, interested in the annexation and yet may not show a right to petition this Court under §707.11 it. C. The right under the section is not that broad.

After a careful consideration of the allegations of the amended petition and for the reasons given, it is our opinion that plaintiff has not alleged sufficient facts to show that he is a “person interested.” The demurrer of defendant is, therefore, sustained. Having reached this conclusion, the other grounds urged in support of the demurrer need not be considered.


author: By LEACH, J.

text:
    CHADWELL, Plaintiff, v. CAIN, Defendant.
    Common Pleas Court, Franklin County.
    No. 196339.
    Decided April 24, 1957.

      James B. Albers, for plaintiff.
    Alba L. Whiteside, Asst. City Atty., Harrison W. Smith, Jr., Special Counsel, for defendant.
   OPINION

By LEACH, J.

This is an action to enjoin the City Clerk of the City of Columbus, Ohio, from forwarding to the City Council the transcript of the proceedings of the Board of County Commissioners approving the annexation to said City of approximately 84 acres in Mifflin Township. Plaintiff is an adult freeholder, residing in the area in question.

With the exception of the question of whether the evidence before the Court does or does not establish that, at the time of the order of the Board of August 14, 1956, there had been sufficient withdrawals of original signators of the petition to leave less than a majority of the adult resident freeholders, the issues presented herein are identical to those in Hicks v. Cain, No. 195,851, 78 Abs 586, decided this day.

On the question of whether plaintiff is a “person interested” within the purview of §709.07 R. C., and having the legal capacity to litigate the question of the jurisdiction of the Board to make the order of August 14, 1956, we conclude that he is. The reasons for such conclusion are stated in our opinion in the Hicks case, a copy of which is attached hereto.

We conclude herein, as a matter of fact, that as of August 14, 1956, the withdrawals of original signators of the petition left less than a majority of adult resident freeholders still desirous of annexation at that time. The transcript, admitted into evidence, contains the petition filed April 20, 1956. It contained 16 names. The transcript also contains withdrawals of 9 of such 16 and a withdrawal of the withdrawal of 3 of the 9. Thus, of the 16 there were withdrawals of 6, leaving a total of 10. While the transcript contains an affidavit of the agent for incorporation stating that there were 19 adult resident freeholders in the area, the parties hereto have filed in this case stipulations listing by name and address some 21 such adult resident freeholders. 10, of course, is not a majority of 21.

Defendant asserts that there was no evidence introduced to prove that the withdrawals were signed by the same persons who signed the petition. In Lynn v. Supple, 166 Oh St 154, 163, it is stated:

“A comparison of his signature on the withdrawal request with what purports to be his signature on the referendum petition may often be sufficient without other evidence to verify his identity as a signer of the referendum petition.”

We find such to be sufficient here to verify such identity.

Defendant also asserts in effect, that since there is no record as to what was said orally to the Commissioners, and since, under the holding in the Lynn case no particular formalities are required for a withdrawal except such as might be necessary to establish identity, the same would be true as to the withdrawal of a withdrawal and it would be possible that some of those who withdrew in writing might have withdrawn such withdrawal orally. In the absence of any evidence to this effect this simply asks the Court to deal in speculation or mere possibilities. The written withdrawals being in evidence as a part of the transcript, it was incumbent upon the defendant to introduce evidence showing such oral withdrawals of the withdrawals, if, in fact, there were such.

As m the Hicks case, however, we find that all of the withdrawals-herein were subsequent to “official action” on such petition by the Board on April 24, 1956, when it adopted a formal order (1) directing that the petition be filed with the County Auditor, (2) fixing the date of hearing and (3) directing the notification of the agent as to the time and piace of hearing. By virtue of the fact that such “official action” had been taken prior to the withdrawals, we conclude that the Board did have jurisdiction to make its order of August 14, 19*56. Our reasons for such conclusion are fully set out in the attached Hicks case opinion.

Since the sole basis for injunctive relief asserted by the plaintiff at the hearing herein was the claim of lack of jurisdiction, plaintiff’s request for injunction is denied, the petition ordered dismissed in accordance with the provisions of §709.08 R. C., and final judgment rendered for defendant at the costs of the plaintiff.

Entry may be prepared accordingly, reserving exceptions.


text:
    HICKS, Plaintiff, v. CAIN et, Defendant.
    Common Pleas Court, Franklin County.
    No. 195851.
    Decided April 24, 1957.

      Morton Y. Reeves, for plaintiff.
    Alba L. Whiteside, Asst. City Atty., Harrison W. Smith, Jr., Special Counsel, for defendant.
   OPINION

By LEACH, J.

This is an action to enjoin the City Clerk of the City of Columbus, Ohio, from forwarding to the City Council the transcript of the proceedings of the Board of County Commissioners, approving the annexation to said City of approximately 153 acres in Clinton Township. Plaintiff is an adult freeholder, residing in the territory in question.

The sole claim of the plaintiff is that, at the time the Board approved the annexation by its order of May 29, 1956, it lacked jurisdiction to make such order, plaintiff claiming that a sufficient number of adult resident freeholders had withdrawn their names from the petition, filed with the Board on March 13, 1956, to reduce the number thereon to less than a majority at that time. If, therefore, the Board had jurisdiction to make such order, the prayer of the petition must be denied, as we are not concerned with questions as to the accuracy or inaccuracy of the boundaries, whether or not such annexation is “unreasonably large or small” or whether or not it is “right, just, or equitable,” within the purview of §707.11 R. C. We believe it clear, however, that a lack of jurisdiction, if it did exist, is an “error” within the scope of the language of §707.11 R. C., which also authorizes the filing of a petition “setting forth the errors complained of.”

It is the contention of the defendant (1) that plaintiff is not a “person. interested” within the purview of §709.07 R. C.. which authorizes “any person interested” to present a petition to the Court of Common Pleas to enjoin further proceedings, (2) that the evidence before the Court herein does not establish that in fact the petition did not contain the names of a majority of the adult resident freeholders at the time of the Board’s order of May 29, 1956, it being asserted that there is no evidence as to the total number of adult resident freeholders in the area or the number who had withdrawn their names, and (3) that the Board had jurisdiction to make the order of May 29, 1956, even if the petition, at such time, by virtue of the withdrawals, contained signatures of less than a majority of the adult resident freeholders.

It is conceded by plaintiff that the petition, when filed with the Board on March 13, 1956, contained signatures of more than a majority of such freeholders.

I

The first question presented is whether plaintiff has the legal capacity to maintain this action. This is a proceeding under the provisions of §709.07 R. C., and related sections. Under this statute, only a “person interested” is a proper party plaintiff.

As heretofore stated, the plaintiff is an adult resident freeholder of the area in question. Defendant asserts that such status in and of itself does not qualify plaintiff as an “interested person”; that plaintiff must also allege and prove that he would be irreparably injured by the annexation itself in the sense of having his legal rights substantially affected thereby; that the only effect upon plaintiff of annexation shown by the evidence is the fact that plaintiff would become subject to the Columbus Income Tax, but that the amount of plaintiff’s earnings is not shown by the evidence and thus no “irreparable injury” is shown; and that at most the annexation would affect only plaintiff’s political as opposed to “legal rights” and that plaintiff is “not interested in the juristic sense.”

The various cases cited by the defendant in support of such contention, in our opinion, do not support such claim. In Roush v. Barthalow, 105 N. E. 2d 85, none of the plaintiffs were adult resident freeholders within the area. The same is true as to Markos v. Cain, No. 191,704, CP 78 Abs 560, OA 73 Abs 20, and Branson v. Cain, No. 194,081, CP 76 Abs 21. In Dunford v. Cain, No. 194,082, the basis of the ruling of the Court as to the question of the sufficiency of signatures on the petition was failure of proof.

In McCord v. Cain, No. 194,188, Van Arsdale v. Cain, No. 194,473, Post v. Cain, No. 194,741, and Watkins v. Cain, No. 194,309, the plaintiffs were adult resident freeholders and the opinions of the Court in such cases do contain language to the effect that the plaintiffs had not established “any interest” to entitle them to the relief sought. In McClintock v. Cain, No. 194,388, CP 74 Abs 554 two of the plaintiffs were adult resident freeholders and the rest non-residents. On the “interest” question, it will be noted that the Court separately treated and discussed the “interest” of the residents and the “interest” of the non-residents. From a detailed study of the opinions in all of such cases, it would appear that the Court therein was discussing primarily the question of the ‘‘interest” of the plaintiffs as it might relate to the question as to whether the annexation was right, just or equitable, and was saying in effect that plaintiffs must show that such was not right, just or equitable, not simply in a general sense, but in the sense that it unjustly or inequitably affected his rights. In other words, plaintiff could not prevail by a showing that the annexation would be unjust or inequitable as it might affect the rights of third persons, so iong as his own rights were not unjustly or inequitably affected. This, in effect, was the holding in the case of Roush v. Barthalow, supra, and this we believe was the intent of the language employed in the McCord case, the Van Arsdale case, the Post case, the Watkins case and the McClintock case.

In any event, none of such cases are clear cut holdings that an adult resident freeholder is not a “person interested” in the question of whether the Board of County Commissioners had jurisdiction to approve a petition for annexation, and if they were, we would have to respectfully disagree. In this connection, it must be remembered that if we were to accept defendant’s contention in this regard, it would mean that a Board could approve a petition for annexation even though it obviously did not and never had contained the signatures of a majority of the adult resident freeholders in the area, and such a freeholder would have absolutely no standing in court to even assert the illegality of the act, unless the Court determined first that, independently of the illegality of the act of the Board, the plaintiff had suffered irreparable damage in the sense that the annexation unjustly or inequitably affected some “legal right” of the plaintiff.

By virtue of the provisions of §709.02 R. C., the Board is powerless to act except upon the filing with it of a petition “signed by a majority of the adult freeholders residing in such territory.” Whether the General Assembly was wise in limiting the petition only to the option of adult resident freeholders, is of no concern to this Court. This it did, however. apparently on the basis that only those who would be affected personally by virtue of being residents and also affected as to their real property by virtue of being freeholders, should have the right to initiate such annexation proceedings, if they also were adults. We think it clearly follows, as a matter of legislative intent, that an adult resident freeholder in the area sought to be annexed, by virtue of such status alone, is a “person interested” in the question of whether a petition for annexation contains sufficient signatures of adult resident freeholders to bestow jurisdiction on the Board of County Commissioners to approve the same, and if such 'lack of jurisdiction be alleged and proved by such a freeholder, he would be entitled to an injunction enjoining further proceedings under the provisions of §709.07 et seq, R. C.

II

The order of the Board of May 29, 1956, as shown by the transcript admitted into evidence, recited:

“* * * that said petition is signed by a majority of the adult freeholders residing on the territory sought to be annexed; and, although affidavits were filed by six (6) resident adult freeholders who had signed the petition, requesting the withdrawal of their names from the petition, and these withdrawals reduced below a majority the petitioners at the present time desiring annexation, the Board finds that this territory is completely surrounded by the City of Columbus, and that it is not contiguous to any township excepting Montgomery, which is coextensive with the City of Columbus, and a governmental problem for Ulis area now exists which will become worse in the near future; the ■. errhory to oe annexed is not too large or too small and it is right and proper mao said petition should be granted; * * *”

Tne petition, filed March 13, 1958, also a part of the transcript, contained 18 signatures of persons representing themselves to be a “maiorny of die adult resident freeholders” in such territory. The transcript aiso contains 8 papers which appear to be signed by 6 of the 18- persons whose names appear on the petition requesting and directing that their names be withdrawn therefrom. It is true, as contended by the defendant, that there is no evidence before the Court as to the total number of adult resident freeholders within the area. Independently of the finding of the Board that “these withdrawals reduced below a majority the petitioners at the present time desiring annexation,” it is clear that no independent evidence was introduced by which the Court could determine whether or not, as a matter of fact, the 12 signatures not withdrawn would constitute a majority. Thus we are presented squarely with the question of whether such finding of the Board, as contained in its official order, is proof of such fact, in the absence of evidence to the contrary. We conclude that it is. Had the Board found to the contrary, we likewise would be obligated to accept such finding in the absence of evidence to the contrary. In our opinion, any finding of fact by the Board, as contained in an official order, is prima facie evidence of such fact and the burden of proof is on the party asserting to the contrary to establish his assertion. No attempt was made by the defendant to do so.

Ill

We turn now to the most complex problem presented herein. Did the fact that “these withdrawals reduced below a majority the petitioners at the present time desiring annexation” take away the jurisdiction of the Board of County Commissioners to approve annexation on May 29, 1956, it being conceded that the petition as originally filed on March 13. 1956, contained signatures of a majority of such adult resident freeholders?

This identical question was presented to Judge Gessaman in Lamneck v. Cain, No. 191,454, 78 Abs , OA 73 Abs 20. In his decision of May 28. 1955, he stated;

“In this connection, however, it is also contended by the plaintiff that several signers withdrew their signatures from the petition so that when the Board acted on November 5, 1954, there was no longer a majority of signers on the petition. These withdrawals, however, did not divest the Board of County Commissioners of the jurisdiction which vested on May 11, 1954, when the petition to annex was filed. In the case of Grinnell et al v. Adams et al, 34 Oh St 44, the following statement found on page 45 of the opinion is pertinent:
“ ‘The filing of such petition, the giving of certain notice, and the execution of a bond to pay the expenses, in case the application shall fail, confer upon the county commissioners power to act in the premises, and the only question now before us is, after jurisdiction is thus conferred and assumed by the commissioners, is their power to proceed defeated by all or any number of such petitioners subsequently remonstrating against the prayer of the petition being granted?
“ ‘We are unanimous in the opinion that this question must be answered in the negative.’
“To the same effect is the statement of the Court of Appeals in the case of Schulte et al yv. Flick, Aud. et al, 89 Oh Ap 252, found at page 254 of the opinion:
“ ‘Under this provision, the most that is required on a petition for annexation is a finding that the petition was signed by the requisite number, that is, a majority. The majority at the time was subscribed as required to initiate the proceeding. Any subsequent change would be important only in the determination of the county commissioners as to whether it would be “right that the prayer of the petition be granted.” ’
“Furthermore, the affidavits of withdrawal apparently were not filed with the Board of County Commissioners until November 5, 1954. These affidavits are on three sheets of paper. One was acknowledged on November 3, 1954, and the other two were acknowledged on November 4, 1954.”

On September 25,1955, the Common Pleas Court of Ashtabula County in the case of Village of Lakewood v. Palmer, 136 N. E. 2d 171, held exactly to the contrary. While that case involved the question of annexation of territory of a village to an adjoining city under the provisions of §709.35 E. C., providing for application by the legislative authority of the city and “on written request of a majority of the voters of the territory of such village,” instead of adult resident freeholders as here, the statute provided for the filing of such petition with the Board of County Commissioners and that “in all such proceedings, the board shall be governed by §§709.02 to 709.21, inclusive, E. C.,” the same sections applicaole here. The Court in the Village of Lakewood case concluded:

“That if, before final action by the Board of County Commissioners, sufficient withdrawals are filed by the original petitioners to reduce the number of petitioners to less than a majority as required by the statutes, the Commissioners have no jurisdiction to proceed, their invoked jurisdiction having been lost by virtue of the withdrawals. (Emphasis ours.)

In view of the clear conflict between the holdings in the Lamneck case and the Village of Lakewood case, we feel that a reanalysis of this question is indicated.

The Court in the Village of Lakewood case distinguished the case of Schulte v. Flick, 89 Oh Ap 252, cited in the Lamneck case, on the basis that no withdrawals were presented therein and thus the question of withdrawals was never considered. Instead, the issue presented involved a situation where subsequent to the filing of the petition, certain persons, then constituting a minority of the freeholders in such territory, so shifted their titles as to constitute themselves a majority at the time the Board approved the annexation. Read in connection with the facts to which it pertained, we agree that the language of the opinion in the Schulte case, is of no real help in deciding the issues presented herein. • '

The Village of Lakewood case relied upon Hays v. Jones, 27 Oh St 218; McGonnigle v. Arthur, 27 Oh St 251; Dutten v. Village of Hanover, 42 Oh St 215; State ex rel. Kahle v. Rupert, 99 Oh St 17; Board of Education of Putnam County v. Board of Education of Hartsburg Rural District, 112 Oh St 108; and State ex rel. McClain v. Village of Newton Falls, 132 Oh St 1. No reference was made therein to Grinnell v. Adams, 34 Oh St 44, cited in the Lamneck case.

It will be noted that the Village of Lakewood case held that withdrawals made before final action take away the jurisdiction to so act. In Lynn v. Supple, 166 Oh St 154 (decided February 13, 1957) it was held that in the absence of statutory provisions to the contrary, “an elector signing a referendum petition authorized by law has a right to withdraw his name at any time before official action has been taken thereon * * * although after the time within which such petition is required by law to be filed and after it actually has been filed.” In State ex rel Wilson v. Board of Education of Shelby County School District, 166 Oh St 260 (decided March 27, 1957), the Per Curiam opinion stated:

“At common law the signers of a transfer petition can withdraw their signatures at any time before official action is taken on the petition. State, ex rel. Kahle v. Rupert, Aud., 99 Oh St 17, 122 N. E. 39; Lynn v. Supple, Clerk, ante, 154.”

We believe it clear that the general principle of law announced in the Lynn case and the Wilson case, was not intended by the Supreme Court to apply only to referendum petitions and petitions for the transfer of territory of a school district, the latter question being involved in the Wilson case. It follows therefore, that an adult resident freeholder has a right to withdraw his name from a petition for annexation at any time before official action is taken on the petition. Such a conclusion, however, does not mean that the Board necessarily had no jurisdiction to take action on May 29, 1956. As contrasted with the decision of the Ashtabula Common Pleas Court, it will be noted that the Supreme Court in the Lynn case and the Wilson case, does not use the words “final action” but instead speaks of “official action.” Under the provisions of §707.05 R. C. (made applicable to annexation procedure by the language of §709.03 R. C.) the petition must be presented to the Board at a regular meeting, and the board “shall then fix, and communicate to the agent of the petitioners the time and place for hearing the petition,” the statute further providing that thereupon the agent for petitioners shall cause publication to be made in a newspaper of general circulation for a period of six weeks and shall also cause a copy of the notice to be posted in such area not less than six weeks prior to the time fixed for hearing.

As heretofore noted, the petition herein was filed on March 13, 1956. It appears from the transcript that on March 23, 1956, the Board adopted a formal order (1) directing that the petition be filed with the County Auditor (2) fixing May 29, 1956, as the date for the hearing on the petition and (3) directing the notification of the agent as to the time and place of such hearing. Thereafter, and before any withdrawals were filed with the Board or even signed by the signators, the agent caused such publication to be made and the required notice to be posted.

In the ordinary grammatical sense, there would appear to be no question but that the order of the Board of March 23, 1966, was an “official action.” It was an action taken by the Commissioners in their official capacity and was an action which they were required by law to take so long as the petition was one “required by §709.02 R, C.” (§709.03 R. C.). The petition, being a condition precedent to such “official action.” it would appear that the Board on March 23, 1956, did take “official action on the petition,” if we are to interpret the language actually employed by the Supreme Court in the Lynn case and the Wilson case literally.

In 126 A. L. R. 1040, we find the following:

“As to just when the petition or remonstrance has been ‘acted upon’ the courts have not been specific. In some cases it is probable that the court had in mind final action granting1 or denying the petition or remonstrance, especially where there is no discretion in the granting or denying of the same * * *. On the other hand, it may be that the action contemplated is the taking of some preliminary step * * (Emphasis ours.)

Thus the issue herein is reduced to the question of whether the Supreme Court, in holding in the Lynn case and the Wilson case that the signer of a petition can withdraw his signature at any time before “official action” is taken on the petition, intended by the choice of such language to include action of a preliminary nature or only final action granting or denying the petition. Not being clairvoyant, we must attempt to determine this basic question by extrinsic indicia. In this attempt, we have carefully examined not only all of the cases heretofore referred to but also Neiswander v. Brickner, 116 Oh St 249; State, ex rel. Nicholl v. Miller, 127 Oh St 103; and State, ex rel. Wehr v. Bellevue, 138 Oh St 93.

In the Hays case, 27 Oh St 219, pertaining to a county road improvement, it was held that the jurisdiction of the Board of County Commissioners to make the final order for the improvement was “conditioned upon the consent, at the time the final order is to be made, of a majority of the resident land-holders ” There, however, the statute, while authorizing the initiation of a proceeding by petition of five or more land owners subject to assessment, provided:

“Upon the return of the report * * *, the commissioners shall, if in their opinion public utility requires it, enter upon their records an order that the improvement be made; * * * but such order shall not be made until a majority of the resident land-owners of the county, whose lands are reported as benefited and ought to be assessed, shall have subscribed the petition * *

It would appear clear that the specific language of the statute in -question authorized preliminary official action on a petition of only 5 land-owners, but authorized final official action only by a petition of the majority. Thus it would not appear to have been the intent of the Court by such opinion to hold generally that jurisdiction to take, final action granting or denying the prayer of a petition is divested by a withdrawal of signatures after official action thereon but before final action.

In the McGonnigle case, 27 Oh St 251, the Court again used the words “final order,” holding that under the statute in question, the Commissioners had no. power to make the final order declaring a turnpike road a free road, where the majority of the persons whose lands would be assessed opposed the conversion of the road at that time. The statute in question, however, made the authority for such a final order dependent upon whether or not a “majority of the resident land-owners of the county, whose lands are reported as benefited, and ought to be assessed, had subscribed a petition, and were at the time asking the commissioners to make the order.” Here again, as in the Hays case, we have an opinion employing the language “final order” but involving the specific and peculiar language of the statute in question.

In the Grinnell case, 34 Oh St 44, decided two years later, the statute provided that “all applications for laying out, altering, or vacating a county road * * * shall be by petition to the county commissioners, signed by at least twelve freeholders of the county residing in the vicinity.” Fifteen freeholders had originally signed the petition but, prior to the final action of granting or denying the prayer of the petition, nine of such fifteen had filed a written remonstrance with the commissioners. The Court held that the “filing of the petition, the giving of certain notice and the execution of a bond to pay the expense, in case the application shall fail, confer upon the county commissioners power to act in the premises” and that such power was not defeated by the subsequent remonstrances. The opinion stated that in so holding, they did not undertake to overrule the Hays case since “That case involved the construction of a statute materially different * *

In our opinion the issue in the instant case cannot logically be distinguished from that in the Grinnell case. Both statutes require the initiation of proceeding by the filing of a petition signed by not less than a certain number of qualified petitioners. Each is silent as to any authority to withdraw such signatures. In the Grinnell case some official action had been taken on the petition prior to the filing of the written remonstrances, which in legal effect are the same as withdrawals. Here some official action also was so taken. In neither case had final action granting or denying the prayer of the petition been taken. Thus, we must conclude that the rule in Ohio, at least at the time of the Grinnell case, was that, in the absence of peculiar language of a statute indicating to the contrary, as in the Hays case and the McGonnigle case, jurisdiction to take final action by the granting or denying of the prayer of the petition is not lost because of withdrawals of signatures to a number less than required for filing, if such withdrawals be after some official action on such petition.

Have any of the cases decided by the Supreme Court since that time changed this basic rule, established by the Grinnell case? We conclude that they have not.

In the Dutten case, 42 Oh St 215, no official action had been taken by the council of the Village of Hanover on the petition prior to the withdrawal of names.

In the Kahle case, 99 Oh St 17, the Court held as to a referendum petition that signatures might be withdrawn' “before official action has been taken thereon” by the clerk or auditor by certifying such petition tp the board of, deputy supervisors of elections. . There, however, the statute in question did hot provide, as it does here, for' the taking of any official action prior to the final action of certification and thus, of course, the question of the effect of official action, prior to final action was not under consideration.

The Putnam County Board of Education case, 112 Oh St 108, is of no help in solving the question herein. There it was held that names could not be withdrawn from a remonstrance after the 30 day period in which it could be filed even though prior to any official action of the board of education thereon. The Neiswander case, 116 Oh St 249, holds to the same effect and likewise is of no help.

The Nicholl case, 127 Oh St 103 is identical to the Kahle case and thus, there, too, the question of the effect of official action prior to final action was not under consideration. The McClain case, 132 Oh St 1. likewise involved a referendum petition and thus adds nothing tending toward a solution of the problem herein. The same is true of the Wehr case, 138 Oh St 93.

In the recent Lynn case, 166 Oh St 154, the charter provision in question provided for the filing of referendum petitions with the clerk of council and required that he “shall first ascertain the sufficiency of the petition, and if found sufficient” that the council shall then reconsider the ordinance and either repeal it or submit it to a vote of the electors. It would appear clear that under this charter provision the “final action” on the petition would be the action of the council in either repealing the ordinance or submitting it to a vote of the electors. The action of the clerk in ascertaining the sufficiency of the petition obviously is “official action” but not necesarily.“final action” thereon. As heretofore noted, the Court in the Lynn case held that signatures might be withdrawn from the petition “before official action has been taken thereon.” Did the Court actually mean “before final official action has been taken thereon”? We quote from the opinion of Taft, J. at pp. 160 and 161:

“If there are sufficient valid signatures on such a referendum petition when it is filed and at the expiration of the 30 days from the time when the ordinance was filed with the mayor, may the ordinance then go into effect somewhat retroactively merely because sufficient signatures are thereafter withdrawn therefrom before the clerk takes official action with respect to the petition so that the remaining number' of signatures is reduced below the required 10 per cent?” (Emphasis added.)

Here we find a clear indication of the meaning of “official action” as used in the Lynn case. It has reference to the “official action” of the clerk. The Court in the Lynn case did not hold that signatures might be withdrawn after the “official action” of the clerk, and such action could be a finding that the petition is sufficient — an action which would neither grant nor deny the prayer of the petition — but instead held that such withdrawals might be made before the clerk takes official action.

In the Wilson case, 166 Oh St 260, no official action had been taken prior to the withdrawal of signatures, the answer alleging that the withdrawals were made “before any official action on the petitions was taken by the respondents,” and the case being submitted to the Court on a demurrer to such answer. Here, too, therefore, the question of the effect of official action prior to final action was not under consideration.

From a detailed study of all of such cases, we conclude that the Board herein had not lost jurisdiction to make its order of May 29, 1956, because of the withdrawal of signatures. The right to withdraw such signatures in the sense that it would affect the jurisdiction of the Board to take final action on the petition was lost when the Board took official action on the petition by its order of March 23, 1956. The withdrawals herein were ail subsequent to March 23, 1956. Had they been made prior to such official action, we would conclude that the Board had lost jurisdiction.

While we recognize that the law of Ohio on this subject matter is not as clear as it perhaps should be, we are impelled to the above conclusion by the following considerations;

1. Only the Hays case, the McGonnigle case and the Grinnell case involved factual situations where the withdrawals were made between the time of some official action on the petitions and final action. The statutes considered in the Hays case and the McGonnigle case contained language clearly distinguishable from that in the instant case. The statutory language considered in the Grinnell case is the latest decision of the Supreme Court considering and deciding the question of withdrawals after official action but before final action. It has never been overruled by any later decision. Unless and until overruled, it must be accepted by a lower court.

(2) The grammatical meaning of the words “official action” or “any official action” as employed by the Supreme Court in the many cases heretofore discussed, would inclhde the action taken by the Board in its order of March 23, 1956. In construing opinions of a higher court on the question of the effect of such decisions as h matter of stare decisis, we believe that words employed in such decisions should be given their ordi-. nary grammatical meaning unless the text in which employed clearly indicates some other meaning. We find no such meaning indicated in any of these cases. To the contrary, we find an indication in the Lynn case that the meaning intended was not “final action.” Furthermore, it would appear that where the court actually meant to allow withdrawals at any time prior to the “final order,” as in the Lynn case and the Mc-Gonnigle case, it used the words “final order.”

Finding, as we do, that the Board had jurisdiction to make the order of May 29, 1956, and this being the sole claim of the plaintiff as to why further proceedings should be enjoined, plaintiff’s request for injunction is denied, the petition ordered dismissed in accordance with the provisions of ¿709.08 R. C., and final judgment rendered for the defendant at the costs of the plaintiff.

Entry may be prepared accordingly, reserving exceptions.


text:
    CHADWELL, Plaintiff-Appellant, v. CAIN et, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5705.
    Decided February 4, 1958.
    James B. Albers, Columbus, for plaintiff-appellant.
    Russell Leach, City Atty., Alba Whiteside, Asst. City Atty., Columbus, for defendant-appellee.
   OPINION

By PETREE, PJ.

This was originally an appeal on questions of law and fact. On October 14, 1957, by agreement of the parties, an entry was filed in this court in which the appeal was dismissed upon questions of law and fact and retained as an apeal upon questions of law only.

The action in the Common Pleas Court was begun by the plaintiff, appellant herein, seeking an injunction against the defendant, appellee herein, m an annexation case. At the conclusion of the case, the Common Pleas Court made the following final entry in the case:

“This cause having come on for hearing and being submitted to the Court upon the pleadings and the evidence the Court finds:
“1. That plaintiff is a ‘person interested’ within the purview of §709.07 R. C., and has legal capacity to litigate the question of jurisdiction of the Board of County Commissioners in this action.
“2. That at the time of public hearing before the Board of County Commissioners, August 14, 1956, the withdrawals of original signators of the petition left less than a majority of adult resident freeholders still desirous of annexation at that time.
“3. That prior to any withdrawals of original signators, ‘official action’ had been taken by the Board of County Commissioners, on April 24, 1956. when it adopted a formal order (1) directing that the petition be filed with the County Auditor (2) fixing the date of hearing and (3) directing the notification of the agent as to the time and place of hearing.
“4. That by virtue of such ‘official action’ being taken prior to withdrawals of signators, the Board of County Commissioners had jurisdiction to make its order of August 14, 1956, approving the annexation.
“It is, therefore, ordered, adjudged and decreed that plaintiff’s request for injunction is denied, the petition for injunctive relief is dismissed in accordance with the provisions of §709.08 R. C., and final judgment is rendered for defendant at the costs of plaintiff, to all of which plaintiff excepts and his exceptions hereby noted.”

The only assignment of error of the appellant contains the following language:

“Plaintiff-Appellant states that the judgment of the Court of Common Pleas is erroneous in the following respects, to wit:
“1. The Court held contrary to the law of Ohio in determining Petition signatures could not be withdrawn.
“WHEREFORE, plaintiff-appellant prays this Court to reverse the judgment of the trial court and enter judgment for plaintiff-appellant.”

After reviewing the record, the briefs of counsel, the opinion of the trial court, together with the entry which we have heretofore set forth, we conclude that the trial court was correct in its decision that the Board of County Commissioners had jurisdiction to make its order of August 14, 1956, approving the annexation.

While the case of Grinnell v. Adams, 34 Oh St 44, cited in 14 West’s Ohio Digest under “Highways” under Key No. 32, involved a road petition, the reasoning of the court is very persuasive on the questions involved in the instant case. The syllabus in the Grinnell case is as follows:

“After the jurisdiction of county commissioners, in the matter of laying out or altering a county road, has attached by the filing of a proper petition, etc., such jurisdiction can not be defeated by any number of the petitioners afterward becoming remonstants against the granting of the prayer of the petition.”

The later cases appear to hold that jurisdiction attaches upon official action being taken prior to withdrawal of the signatures.

The opinion of Judge Leach covers the questions involved so completely that we feel it unnecessary to repeat the citations and the reasoning by which his decision was arrived at.

There must be some limit to a person’s right to change his mind and stop actions which he has started by voluntary signature. The law favors certainty over uncertainty.

The official action which the lower court found that the commissioners had taken prior to the attempted withdrawal of the signatures was, in our opinion, sufficient to vest jurisdiction in the Board of County Commissioners. We hold that the assignment of error is not well taken, and the judgment of the trial court will be affirmed.

Judgment affirmed.

BRYANT and MILLER, JJ, concur.


author: By PHILLIPS, J.

text:
    MACHUGA, Plaintiff-Appellee, v. COCA-COLA BOTTLING COMPANY OF YOUNGSTOWN, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3919.
    Decided March 28, 1957.
    Norman A. Rheuban, Youngstown, for plaintiff-appellee.
    Manchester, Eennett, Powers & Ullman, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

The “statement of facts” set forth in defendant’s brief state the facts of the case sufficiently fully and accurately to understand the nature of the litigation in the court of common pleas and to serve as the factual statement of this opinion, and are adopted as such:—

“On July 25, 1955 at about 11:00 P. M. plaintiff was lying on her sofa watching television. Her husband and infant daughter were in bed. She became thirsty and went to the refrigerator to get a bottle of Coca-Cola which had been purchaser earlier in the day. The house was dark except for the reflected light from the TV set. She opened the bottle and there was nothing unusual about that act. She returned to the sofa and sipped the coke from the bottle over a period of about five minutes. The coke tasted all right and smelled all right, just as coke should. On the last sip from the bottle she felt a foreign substance in her mouth. She got up, went to the kitchen, turned on the light, and noticed a brown substance stuck to the sides and. bottom of the bottle. She awakened her husband to show him the bottle, he came and looked, and then went back to bed. She felt nauseated but did not vomit. She went back to the sofa and continued to watch TV until 2:30 A. M. when she went to the bathroom and had a bout of diarrhea. The diarrhea continued to some extent for three days. At the end of three days she was back to normal, feeling flt, and eating her normal diet. At no time during the three day period did she vomit. At no time did she take any medicine or consult a physician. During the three day period she was aide to care for her infant daughter.”

A iury in the court of common pleas returned a verdict for plaintiff for $1,000.00. The trial judge overruled defendant’s motion for judgment in its favor notwithstanding the verdict of the jury returned against it. contingently upon plaintiff accepting a remittitur of $300.00, which plaintiff accepted within the time fixed by the trial judge, and the trial judge entered judgment accordingly.

Defendant appealed from the judgment of the trial court to this court on questions of law, and contends that the verdict of the jury and judgment of the trial court entered thereon are not sustained by sufficient evidence, are against the manifest weight of the evidence, and are contrary to law.

In 3 O. Jur„ Second, Section 819, Page 809, it is said:—

“Reversal cannot be had on the ground that the judgment is against the weight of the evidence except as a matter of law. It follows that a judgment will not be' reversed on this ground merely because the evidence sustaining it is open to suspicion or does not impress the reviewing court; nor because the' reviewing court entertains some doubt as to whether such judgment is in fact supported by the weight of the evidence, is not in full accord with the verdict or finding of fact on which it was rendered, is not satisfied that such verdict is right, or thinks that another jury might arrive at a different conclusion or that a contrary verdict might well have been rendered or that the trial j udge might well have set the verdict aside; nor because it has views of its own contrary to those expressed by the jury or the court below, or differs in its opinion as to the facts, or as to the inferences to be drawn from the facts proved, or would have rendered a different verdict or decided differently if it had heard the case in the first instance. In order to reverse, the reviewing court must be fully and clearly satisfied from an examination of all the evidence and of the whole record, that the judgment is in fact unsupported by, or against the manifest weight of, the evidence, and the court will not be thus satisfied unless there projects from the record some fact or circumstance indicating that the jury lost its way and went in the wrong direction in reaching its verdict, resulting in error and injustice shocking to the senses and to the conscience of the court, and clearly showing that the jury misapprehended the facts or were influenced by sympathy, bias, prejudice, wilful disregard of duty, perversity, corruption, or other improper motives. In other words, there must be impressed upon the evidence a status which shows that the conclusion of the jury is unreasonable, improbable, and illogical to such a degree that it is possible to say that the testimony affords no reasonable foundation for the verdict or findings, or that unbiased, unprejudiced minds could not, from the evidence, have reached the conclusion which was reached by the jury or the trial court. Putting the matter in a different way, it has been stated that a reviewing court can reverse a judgment upon an assignment of error involving the weight of the evidence only when the verdict is so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to produce a result in complete violation of substantial justice, and that such a court is not authorized to reverse on such ground unless it is justified in inserting in its journal entry that substantial justice has not been done to the complaining patty.
r‘A reviewing court will not disturb the Judgment of toe trial court on the ground of insufficiency of the evidence unless it clearly appears that the conclusion reached cannot be supported by any rational view of the evidence.”

In Haley v. Ohio, 332 United States Reports 596, at page 624, it is said:—

"Until a better way is found for testing credibility than by the examination of witnesses in open court, we must give trial courts and juries the wide discretion in this field to which a living record, as distinguished from a printed record, logically entitles them. In this living record there are many guideposts to the truth which are not in the printed record. Without seeing them ourselves, we will do well to give heed to those who have seen them.”

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


text:
    CALHIO CHEMICAL COMPANY, INC., Appellant, v. BOWERS, Tax Commissioner, Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 34158.
    Decided August 26, 1957.
    ’ Petex S. Bedrossian, New York, for appellant.'
    William Saxbe, Atty. Geni., Chester Hummell, Asst. Atty. Geni., for appellee.
   OPINION

This cause and matter came on to be considered by the Board of Tax Appeals upon a notice filed herein under date of April 25, 1957, by the appellant above named from a final order of the tax commissioner dated March 29, 1957, in and by which order the tax commissioner, acting upon an application for review and redetermination filed by appellant with respect to its personal property tax returns for the years 1954, 1955 and 1956, confirmed the increased assessments made by him against appellant for those years.

The cause was submitted to the Board of Tax Appeals upon the notice of appeal, the transcript supplied by the tax commissioner and the testimony and evidence presented at a hearing before the Board of Tax Appeals in Columbus, Ohio, on June 24, 1957.

Appellant, during the years in question, owned and operated a chemical fungicide factory at Perry, Lake County, Ohio, wherein was manufactured a fungicide known to the fruit-raising trade as “Captan.”

For the years in question the appellant listed its manufacturing machinery and equipment for Ohio personal property taxation at a book value wherein an annual depreciation rate of 10% was used. Upon audit of the returns the tax commissioner disallowed the 10% depreciation rate and computed the true value of appellant’s machinery and equipment on the basis of a 5% annual depreciation rate, the prima facie rate applicable to this kind of machinery and equipment by the tax commissioner in his directive on the subject of depreciation. The commissioner made this change in appellant’s tax returns by virtue of the authority contained in §§5711.18 and 5711.21 R. C., the pertinent portions of which sections read as follows:

Sec. 5711.18 R. C.:

“* * *. In the case of personal property used in business, the book value thereof less book depreciation at such time shall be listed, and such depreciated book value shall be taken to be the true value of such property, unless the' assessor finds that such depreciated book value is greater or less than the then true value of such property in money Claim for any deduction from * * * depreciated book value of personal property must be made in writing by the taxpayer at the time of making his return: * *

Sec. 5711.21 R. C.:

“In assessing taxable property the assessor shall be governed by the rules of assessment prescribed by §§5711.01 to 5711.41, inclusive, R. C. Wherever any taxable property is required to be assessed at its true value in money or at any percentage thereof, the assessor shall be guided by the statements contained in the taxpayer’s return and such other ruies and evidence as will enable the assessor to arrive at such true value * *

It is well settled that the tax commissioner must follow the provisions of §5711.18 R. C., and that for tax assessment purposes he must use the depreciated book value of personal property used in business as the true value thereof, unless, for good reason, he finds that the true value in money of the personal property involved is greater than said depreciated book value. But, once having properly discarded the depreciated book value, as he did in this case, then the tax commissioner in the first instance, and the Board of Tax Appeals, upon appeal, may ■ use any reasonable method of valuation to arrive at true value, giving effect to all pertinent factors having a bearing on said true value.

As we view the law, it is this; in a case where the depreciation formula used by the tax commissioner, as the assessor of personal property, is not unreasonable or unlawful on its face, and a taxpayer disagrees with the resulting value thus computed by the tax commissioner and appeals said valuation to the Board of Tax Appeals, said taxpayer cannot prevail before this board merely by attacking the tax commissioner’s formula. If a taxpayer is to prevail in such a valuation case, he must bring in his own competent evidence to demonstrate to the Board of Tax Appeals just what is the true value in money of the property involved; because this is the issue before the Board of Tax Appeals. In other words, in a case of this kind, the burden lies upon the taxpayer to prove the value of his property. See Higbee Co. v. Evatt, 140 Oh St 325, 23 O. O. 543.

The only witness to appear in this case for appellant was its attorney, Peter S. Bedrossian, who has been an employee of appellant company for about ten years in the payroll, accounting and sales department, as assistant to the treasurer of the company and as tax manager, the position he now holds. This witness testified as to the production and sales of “Captan,” and it was his belief that the product would be obsolete by 1959. He also testified as to the production costs of manufacturing “Captan,” including raw materials, payroll, fuels, maintenance, etc., and it was his belief that it was the corrosive action of the chemicals on the machinery which caused the high maintenance figures. The exhibits which this witness offered into evidence to substantiate his testimony were excluded from evidence, upon objection, for the reason that said exhibits were summaries of figures allegedly taken off the company’s books, but the books themselves were not produced in the hearing room for inspection by counsel for appellee. But, even if the exhibits had been admissible and were received into evidence, they would only indicate that appellant’s product “Captan” was not selling as well as originally expected and that maintenance on the manufacturing machinery was high.

The main tenor of appellant’s complaint is that its product “Captan” will be obsolete by 1959. But there is no competent evidence that appellant’s machinery and equipment, the value of which is the subject matter of this appeal, will be obsolete by that time, nor is there any competent evidence in the record that the machinery and equipment is unsuitable for the production of other products, or that the corrosive action of chemicals will reduce the useful life of the machinery and equipment to ten years.

Upon a review of the record and the competent evidence therein contained this board is of the view that the taxpayer has not sustained the burden of proof. This board would be indulging in speculation and guesswork, if, upon the evidence before us, we were to change the value ascribed to the property of appellant by the tax commissioner.

It is therefore considered and ordered that the final order of the tax commissioner here under review be, and the same hereby is, affirmed.


author: By THE COURT.

text:
    STATE, ex rel. DEPARTMENT OF LIQUOR CONTROL, Appellee, v. MIECZNIKOWSKI, d. b. a. WADE PARK BOWLING ALLEY, Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 4872.
    Decided March 12, 1953.
    C. William O’Neill, Atty. Geni., Ralph N. Mahaffey, Asst. Atty. Geni., Columbus, for appellee.
    John P. Butler, Cleveland, for appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court affirming the order of the Board of Liquor Control revoking the appellant’s D-l and D-2 permits.

We have examined the entire record and are in accord with the findings of Judge Randall that the order of the Board is supported by reliable, probative and substantial evidence. We adopt the reasoning set forth by him in his opinion.

We note that the appellant contends that §6064-54 GC, is unconstitutional being in violation of Article II, Section 26 and Article II, Section 16, Ohio Constitution. It is urged that Section 26 is violated in that the law does not have uniform operation throughout the state; that in some instances it has been used to revoke certain liquor permits, but that in others it left them in full force and effect. We find no merit in this claim. The operation is uniform throughout the state, but the penalty for the violation is flexible. We likewise find no violation of Article ÍI, Section 16, Ohio Constitution, which provides:

‘•No bill shall contain more than one subject which shall be clearly expressed in its title * *

Appellant contends that the statute is not limited to a single subject and is therefore unconstitutional. The appellee insists that only one subject is involved, to wit, a system for the control of the manufacture of beer and intoxicating liquors in this state. We are in agreement with this conclusion, but even if there were a constitutional violation, it would not invalidate the statute. It has been held on numerous occasions that the constitutional provision is directly only. Pim v. Nicholson, 6 Oh St 176; Seeley v. Thomas, 31 Oh St 301; State, ex rel. v. Mulhern, 74 Oh St 363; Bloom v. Xenia, 32 Oh St 461; State of Ohio, ex rel. v. Covington, 29 Oh St 102.

■ We are of the opinion that the statute is capable of interpretation and is not so vague and indefinite that it fails to state an offense as urged by the appellant.

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

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