author: •By MILLER, PJ.

text:
    FUNTASH, Relator, v. Industrial Commission, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4351.
    Decided January 27, 1950.
    Abram M. Kaplan, Cleveland, for relator.
    Herbert S. Duffy, Atty. Geni., T. Vincent Martin, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

•By MILLER, PJ.

This is an original action in mandamus seeking an order commanding the respondent to restore relator to full weekly compensation at the rate of $15.00 per week in accordance with an award of the Industrial Commission of Ohio which became effective on January 1, 1924.

The record discloses that the petitioner became totally disabled in the course of his employment by reason of an injury rendering him totally blind; that his employer had complied with the provisions of the Workmen’s Compensation Act, and that upon application to the Commission his claim was duly recognized by awarding him $15.00 per week’as full compensation for permanent and total disability; that on or about the 22nd day of November, 1923, the respondent acted upon claimant’s request and awarded him the sum of $8000.00 to pay off an existing mortgage indebtedness on his home and in the same order a deduction of $7.30 was ordered to be made from the $15.00 weekly payments. The relator says that the $8000.00 has been fully repaid from the deductions and that on October 22, 1947, an application was made to the Commission seeking restoration to the full weekly payments of $15.00 each.

The pleadings raise the only issue in the case, to wit, was the $8000.00 a loan or a partial lump sum settlement? The plaintiff urges that it was a loan which is denied by the respondent. The order of the Commission awarding the $8000.00 to the claimant is not in evidence in this case and it must therefore be presumed that it was made in conformance with the statutes of Ohio. Sec. 1465-81 GC provides that compensation for total permanent disability shall be made in weekly installments. However, §1465-87 GC provides that under special circumstances and when the Commission deems it advisable, payments of compensation or benefits may be commuted to one or more lump sum payments. Webster’s New International Dictionary, Second Edition, defines the word “commute” as “to pay or arrange to pay in gross instead of part by part; as to commute annuities into a capital sum.” This section of the Code, therefore, authorizes one or more lump sum payments under special circumstances found by the Commission. Since it had the discretion to act it must be presumed that it properly exercised this power. We have been unable to find any authority for the Commission to make a loan upon an award and if one was so made it went beyond the jurisdiction of the Commission. It is most unfortunate for the claimant in this case that he will not receive the full weekly allowance to which he was entitled under §1465-81 GC, but he elected to receive his compensation by a different method and having so elected he is bound by the result.

In the original Workmen’s Compensation Act the right to commutation of payments applied only to benefits and not to compensation. The change however had been made prior to 1923. The Supreme Court of Ohio has spoken on the power of the Commission to commute the payment of benefits, in the case of Roma v. The Industrial Commission, 97 Oh St 247, syllabus 5:

“Such award is also subject to the provisions of §1465-87 GC, and such board may in cases of special circumstance, and when the same is deemed advisable, and not otherwise, commute the periodical benefits found to be due the claimant by the jury to one or more lump sum payments.”

Since it does not appear that the plaintiff is clearly entitled to the relief sought, the application will be denied.

HORNBECK and WISEMAN, JJ., concur.


source: Caselaw Access Project

author: By PHILLIPS, PJ.

license: Public Domain

text:
    ALTMAN et al, Plaintiffs-Appellants, v. CENTRAL MANUFACTURERS MUTUAL INSURANCE COMPANY OF VAN WERT, Defendant-Appellee.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 666.
    Decided July 1, 1949.
    Francis, Irvine, Hayes & Cooper, Steubenville, for defendant-appellee.
    Harry Brokaw, East Liverpool, for plaintiffs-appellants.
   OPINION

By PHILLIPS, PJ.

Plaintiffs appealed to this court on questions of law from a judgment of the court of common pleas affirming a judgment of the Municipal Court of East Liverpool, Ohio, entered by the judge thereof, for defendant upon its motion to dismiss plaintiffs’ action filed therein May 11, 1946, and for judgment to be entered in its favor made at the close of plaintiffs’ case, being tried therein to recover the proceeds of a standard renewal policy of insurance issued by defendant, a corporation, to Rebecca Altman and the Estate of Joseph Altman (of whom the persons that appear as plaintiffs in this case are heirs), insuring their dwelling against loss by fire, which totally destroyed it on May 4, 1944.

Such policy of insurance, which was in force and effect from September 28, 1942, to September 28, 1945, provided in the event of a loss thereunder by fire inter alia as follows:—

“1. The insured shall within sixty days, furnish a proof of loss containing items more fully described in the policy, duly signed and sworn to by the insured, and
“2. Shall bring suit within a period of one year from the time of the loss.”

Plaintiffs conceded by brief “that proof of loss was not filed within sixty days, and that suit was not begun within one year”. Plaintiffs claim, and the record supports that statement, that “proof of loss was later furnished, and suit was brought after the one year period had expired” and after defendant had furnished, and plaintiffs had paid for, a renewal policy without advising defendant of the total destruction by fire of the insured premises. It is admitted by the parties that under the facts stated defendant denied liability, which resulted in plaintiffs filing their action in the municipal court.

Plaintiffs contend that the motion submitted to the judge of the municipal court “raises two points and two only: (1) the submission of proof of loss within sixty days, and (2) failure to sue within one year.”

While plaintiffs’ counsel filed no formal assigned grounds of error, we interpret his brief and oral argument as indicating he contends the failure of the judges of the court of common pleas and the municipal court of East Liverpool to interpret in his favor the questions raised by defendant’s motion as the error claimed in his appeal to us.

Relying upon the provisions of §9583 GC, plaintiffs contend that “when there is a total loss by fire of property insured,” as there was in the case we review, the insurance policy “shall be held and considered to be a liquidated demand against the company for the full amount of such policy”; and “the entire amount must be paid, and no proof of loss is necessary” in the absence of increase of the risk or fraud on the part of the plaintiffs, the existence of neither of which is shown in the case we review.

Sec. 9583 GC, sometimes referred to as the “Valued Property Law”, provides the extent of liability under the policy in these words:—

“A person, company or association insuring any building or structure against loss or damage by fire or lightning, by renewal of a policy, shall cause such building or structure to be examined by his or its agent, and a full description thereof to be made, and its insurable value fixed, by him. In the absence of any change increasing the risk without the consent of the insurers, and also of intentional fraud on the part of the insured, in case of total loss, the whole amount mentioned in the policy or renewal upon which the insurer received a premium, shall be paid.”

Counsel for plaintiffs cite authority for their position and contention that such section of the General Code is part of the policy under discussion, and all inconsistent provisions therein are waived by it; that its provisions are mandatory, based on public policy, and do not constitute a personal privilege which can be waived by agreement, prevails over standard policy provisions, and makes no provision for payment in full if the plaintiff does other things required by the policy provisions, and cite: Bennoys Ohio Insurance and Negligence Law, Section 127, last paragraph; Insurance Company v. Leslie, 47 Oh St 409; Penn Fire Insurance Company v. Dracket, 63 Oh St 41; Insurance Company v. Russell, 65 Oh St 230.

Plaintiffs’ counsel further contends that §9583 GC, “is paramount and that it abrogates and renders void every provision of the policy in conflict” with it, including vacancy, mortgage and additional insurance; makes no exception nor provision for qualification, such as if plaintiff did other things required in the policy of insurance issued by defendant, among which was file proof of loss, and commence their action (which they did commence in the court of common pleas) within one year from the date of loss; that notwithstanding any provisions of such contract “suit can be maintained upon the policy as upon any other liquidated demand” upon the facts of this case; and admits that in other policies of insurance, where the provisions do not conflict with such code section, they are binding upon the parties.

Defendant contends that the Valued Policy Statute in-validiates only such terms of the policy as relate to the amount of damages, not the right of recovery; “and has no application to the policy provisions relating to the time for the bringing of the plaintiff’s action, for the filing of proof of loss, or to the issues in the case at bar.”

All of the cases cited to us by counsel for the respective parties construing §9583 GC, hold substantially that the provisions thereof relate only to the amount recoverable under the policy; and we construe none of such cases-as holding that by reason of its provisions the terms of the policy as to the notification of loss, or filing of an action to recover therefor, are waived.

“The words ‘any change increasing the risk,’ which occur in Section 3643, Revised Statutes, refer only to change in the insured building or structure itself, and were not intended to include or apply to anything distinct from, or accidentally related to, the corpus of the insured building or structure.
“Where one of the conditions of a fire insurance policy is that if the building insured shall become vacant, unoccupied or uninhabited, without the consent of the insurer, the policy shall be void; and where such building becomes vacant after the policy was issued, without knowledge or consent on the part of the insurer, and a fire occurs therein while the building is vacant, there can be no recovery under the policy. Insurance Co. v. Wells, 42 Oh St, 519, approved and followed; Moody v. Insurance Co., 52 Oh St, 12, overruled.
“* * * it was argued in the above quotation from The Sun Fire Office of London v. Clark, supra, and' in an opinion by Laubie, J., in 7 C. C., 511, 519, et seq, to which special reference is made in Webster v. Dwelling House Ins. Co., supra, that if it had been intended to enlarge the meaning of the precise words of the statute so as to embrace other matters máde material by the agreement of the parties, it would have been more natural to have said so definitely and directly. That seems to be sound reasoning, and if true, then the conclusion would seem to follow that the legislature meant what it said, and no more; and it would also seem to follow, conversely, that if the courts may stretch the words, from their obvious meaning of any change in the building or structure, to any change in the occupation of the building, then there is no limit to such judicial legislation as would eliminate every condition of the policy relating to title, possession, incumbrance, over-insurance, use, occupation, and the like. We can not think that the legislature ever intended to be so interpreted.” Insurance Co. v. Werner, 76 Oh St 543 and 556.

The decision of the supreme court in the Werner case remains unmodified and unchanged; and was followed in Bovee v. Farmers Mutual Prot. Ass’n, 3 Abs 14, and by the circuit court of appeals, sixth circuit, in Leithauser v. Hartford Fire Insurance Co., 31 O. O. 285.

Without further word we conclude that the judgment of the court of common pleas must be and hereby is affirmed.

NICHOLS, J, BUCKLEY, J, concur in judgment.


author: By REYNOLDS, J.

text:
    DWORKEN, Plaintiff, v. COLLOPY, Admr., etc., Defendant.
    Common Pleas Court, Franklin County.
    No. 178255.
    Decided March 27, 1950.
    Jack B. Dworken, Morton R. Dworken, Cleveland, for plaintiff.
    Hon. Herbert S. Duffy, Atty. Geni., Geo. C. Steinemann, Madison C. Perkins, James B. Dooley, Asst. Atty. Genis., for defendant.
   OPINION

By REYNOLDS, J.

This case is before the Court on plaintiff’s petition to restrain defendant as the Administrator of the Bureau of Unemployment Compensation of Ohio, and his agents and deputies from enforcing the provisions of §1345-6 GC, Section d, paragraph 2a, and that said paragraph of said statute be declared invalid as being contrary to the Constitution of the United States and the Constitution of the State of Ohio.

Plaintiff brings this action as a taxpayer on behalf of himself and other taxpayers and charges that the statute in question is unconstitutional in that it is an infringement upon the right of free speech, etc., and that its enforcement will lead to great confusion, contention and much litigation, and will undermine the purpose of the Unemployment Compensation Fund to the detriment of the employer who pays money into such fund and the individuals who are supposed to receive the benefits thereof, and that unless restrained, the defendant will proceed to enforce the statutory provisions against indiviudals who are entitled to receive the benefits provided by the Unemployment Compensation Act, and cause the wrongful and illegal expenditures of money in the Unemployment Compensation Fund for the printing, taking and handling of said applications containing the affidavit provided for by paragraph 2a, Sec. d in said statute to the damage of plaintiff and others similarly situated, etc,, and that there is no adequate remedy at law.

Defendant’s answer admits plaintiff’s status as a citizen and taxpayer and his own official position, admits the allegations of the petition to the effect that prior to May 23, 1949, §§1341-1 to 1346-5 GC inclusive, were in full force and effect and that on or about May 23, 1949, the Legislature of Ohio amended §1345-6 GC by adding sub-section (2a) d and that this section became effective on August 22, 1949, and denies the other allegations of the petition.

In a supplemental petition plaintiff pleads the enactment of Senate Bill 227, effective Oct. 18, 1949, being an amendment to §1345-6 GC to the same effect as the amendment of May 23rd, 1949, plus an additional section known as (2b) and the defendant by answer admits the truth of such allegations.

The case is submitted on the pleadings, a stipulation of facts and briefs which have been filed by counsel.

The following is the stipulation filed herein:

"It is hereby stipulated and agreed by and between counsel representing. plaintiff and defendant that the defendant, Frank J. Collopy, as administrator of the Bureau of Unemployment Compensation of Ohio, was at the time of the filing of this action and is now enforcing §1345-6 d 2(a) GC, and has required and is still requiring every person filing a claim for benefits in accordance with §1346-4 GC to attach to such claim his written affidavit stating whether he advocates or does not advocate and whether he is or is not a member of a party which advocates the overthrow of our government by force, and in the absence of such affidavit does not consider such claim to be valid.
It is further stipulated and agreed that the said Frank J. Collopy as administrator of the Bureau of Unemployment Compensation of Ohio was at the time of the filing of this action and is now spending public money in the printing and handling of the affidavits above referred to as now required by §1345-6 paragraph d 2 (a) GC.”

The perinent sections of the statute involved are as follows:

“Sec. 1345-6 GC.
Each eligible individual shall receive benefits as compensation for loss of remuneration due to total or involuntary partial unemployment in the amounts and subject to the conditions stipulated in the unemployment compensation act. * * *d. Notwithstanding the provisions of subsection (a) of this section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual (1) * * * (2) * * *
(2a) advocates, or is a member of a party which advocates the overthrow of our government by force. Every person filing a claim for benefits in accordance with §1346-4 GC shall attach to such claim his written affidavit stating whether he advocates or does not advocate, and whether he is or is not a member of a party which advocates, the overthrow of our government by force. In the absence of such affidavit no claim shall be valid;
(2b) The provisions of §1345-6d, (2a), GC, shall apply only to the application for determination of benefit rights and the affidavit provided for therein shall be sufficient for the purpose of said subsection in determining an individual’s entitlement to benefit rights and benefits. Such affidavits shall be produced in court by the administrator or his deputy upon order of a judge of any court of record.”

It is plaintiff’s claim that the Legislature had no power or authority to enact subsections (2a) and (2b) above set out as the same have no relevance to any legitimate purpose of the Unemployment Compensation Act and are an unwarranted discrimination against unemployed workers.

“that said legislation is in the nature of a Bill of Attainder; that the purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy and place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty and property, to free speech, among which is the right to think, and other fundamental rights, do not depend upon the whims of any officials, high or petty. Therefore, said legislation is in contravention of the Declaration of Independence of the United States of America; contrary to the first amendment of the Constitution of the United States of America; contrary to the Constitution of the State of Ohio, Article One, Section One; contrary to the Constitution of the United States of America, Fourteenth Amendment; and contrary to the Constitution of the State of Ohio, Article One, Section Eleven.”

It is urged that the statute is in the nature of a bill of attainder, in that it confiscates the unemployed workers’ property by legislative fiat.

In support of this contention chief reliance is had on the case of Cummings v. Missouri, 4 Wall (U. S. 277).

In that case the validity of a constitutional provision in the amendment to the Missouri Constitution adopted in June of 1865 by a popular vote was under consideration. The pertinent parts of that amendment are as follows:

“Sec. 3. At any election held by the people under this Constitution, or in pursuance of any law of this State, or under any ordinance or by-law of any municipal corporation, no person shall be deemed a qualified voter, who has ever been in armed hostility to the United States, or to the lawful authorities thereof, or to the government of this State; or has ever given áid, comfort, countenance, or support to persons engaged in any such hostility; or has ever, in any manner, adhered to the enemies, foreign or domestic, of the United States, either by contributing to them, or by unlawfully sending within their lines, money, goods, letters, or information; or has ever disloyally held communication with such enemies; or has ever advised or aided any person to enter the service of such enemies; or has ever, by act or word, manifested his adherence to the cause of such enemies, or his desire for their triumph over the arms of the United States, or his sympathy with those engaged in exciting or carrying on rebellion against the United States; or has ever, except under overpowering compulsion, submitted to the authority, or been in the service, of the so-called ‘Conferate States of America;’ or has ever left this State, and gone within the lines of the armies of the so-called ‘Confederate States of America,’ with the purpose of adhering to said States or armies; or has ever been a member of, or connected with, any order, society, or organization, inimical to the government of the United States, or to the government of this State;; or has ever been engaged in guerilla warfare against loyal inhabitants of the United States, or in that description of marauding commonly known as ‘bush-whacking;’ ór has ever knowingly and willingly harbored, aided, or countenanced any person so engaged; or has ever come into or left this State, for the purpose of avoiding enrollment for or draft into the military service of the United States; or has ever, with a view to avoid enrollment in the militia of this State, or to escape the performance of duty therein, or for any other purpose, enrolled himself, or authorized himself to be enrolled, by or before any officer, as disloyal, or as a southern sympathizer, or in any other terms indicating his disaffection to the Government of the United States in its contest with rebellion, or his sympathy with those engaged in such rebellion; or, having ever voted at any election by the people in this State, or in any other of the United States, or in any of their Territories, or held office in this State, or in any other of the United States, or in any of their Territories, or under the United Sattes, shall thereafter have sought or received, under claim of alienage, the protection of any foreign government, through any consul or other officer thereof, in order to secure exemption from military duty in the militia of this State, or in the army of the United States: nor shall any such person be capable of holding in this State any office of honor, trust or profit, under its authority; or of being an officer, councilman, director, trustee, or other manager of any corporation, public or private, now existing or hereafter established by its authority; or of acting as a professor or teacher in any educational institution, or in any common or other school; or of holding any real estate or other property in trust for the use of any church, religious society, or congregation. But the foregoing provisions, in relation to acts done against the United States, shall not apply to any person not a citizen thereof, who shall have committed such acts while in the service of some foreign country at war with the United States, and who has, since such acts, been naturalized, or may hereafter be naturalized, under the laws of the United States and the oath of loyalty hereinafter prescribed, when taken by any such person, shall be considered as taken in such sense.

Sec. 6. The oath to be taken as aforesaid shall be known as the Oath of Loyalty, and shall be in the following terms:

T, A. B., do solemnly swear that I am well acquainted with the terms of the third section of the second article of the Constitution of the State of Missouri, adopted in the year eighteen hundred and sixty-five, and have carefully considered the same; that I have never, ■ directly or indirectly, done any of the acts in said section specified; that I have always been truly and loyally on the side of the United States against all enemies thereof, foreign and domestic; that I will bear true faith and allegiance to the United States, and will support the Constitution and laws thereof as the supreme law of the land, any law or ordinance of any State to the contrary notwithstanding; that I will, to the best of my ability, protect and defend the Union of the United States, and not allow the same to be broken up and dissolved, or the government thereof to be destroyed or overthrown, under any circumstances, if in my power to prevent it; that I will support the Constitution of the State of Missouri; and that I make this oath without any mental reservation or evasion, and hold it to be binding on me.’

Sec. 7. Within sixty days after this Constitution takes effect, every person in this State holding any office of honor, trust, or profit, under the Constitution or laws thereof, or under any municipal corporation, or any of the other offices, positions, or trusts, mentioned in the third section of this Article, shall take and subscribe the said oath. If any officer or person referred to in this section shall fail to comply with the requirements thereof, his office, position, or trust, shall, ipso facto, become vacant, and the vacancy shall be filled according to the law governing the case.

Sec. 9. No person shall assume the duties of any state, county, city, town, or other office, to which he may be appointed, otherwise than by a vote of the people; nor shall any person, after the expiration of sixty days after this Constitution takes effect, be permitted to practice as an attorney or counsellor at law, nor, after that time, shall any person be competent as a bishop, priest, deacon, minister, elder, or other clergyman of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages, unless such person shall have first taken, subscribed, and filed said oath.

Sec. 14. Whoever shall, after the times limited In the seventh and ninth sections of this Article, hold or exercise any of the offices, positions, trusts, professions, or functions therein specified, without having taken, subscribed, and filed said oath of loyalty, shall, on conviction thereof, be punished by fine, not less than five hundred dollars, or by imprisonment in the county jail not Jess than six months, or by both such fine and imprisonment; and whoever shall take said oath falsely, by swearing or by affirmation, shall, on conviction thereof, be adjudged guilty of perjury, and be punished by imprisonment in the penitentiary not less than two years.”

In September of 1865 the Reverend Mr. Cummings, a Catholic priest, was convicted of preaching without having taken the oath and sentenced to pay a fine of $500.00. The judgment was affirmed by the State Supreme Court and the case was appealed to the United States Supreme Court where the judgment was reversed, the Court holding that:

“The clauses of the second article of the Constitution of Missouri, which require priests and clergymen, in order that they may continue in the exercise of their professions, and be allowed to preach and teach, to take and subscribe an oath that they have not committed certain designated acts, some of which were at the time offences with heavy penalties attached, and some of which were at the time acts innocent in themselves, constitute a bill of attainder within the meaning of the provision of the Federal Constitution prohibiting the States from passing bills of that character. * * * The prohibition of the Constitution was intended to secure the rights of the citizens against deprivation for past conduct by legislative enactment, under any form, however disguised.”

The court defines a bill of attainder as a legislative act which inflicts punishment without a judicial trial.

.The Court also held that the constitutional provisions were in effect ex post facto laws, and defined an ex post facto law as one which imposes a punishment for an act which was not punishable at the time it was committed or imposes additional punishment to that then prescribed, or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required.

In its opinion the Court said:

“The clauses in the Missouri constitution, which are the subject of consideration, do not, in terms, define any crimes, or declare that any punishment shall be inflicted, but they produce the same result upon the parties, against whom they are directed, as though the crimes were defined and the punishment was declared. They assume that there are persons in Missouri who are guilty of some of the acts designated. They would have no meaning in the constitution were not such the fact. They are aimed at past acts, and not future acts.” (Emphasis ours.) “They were intended especially to operate upon parties who, in some form or manner, by action or words, directly or indirectly, had aided or countenanced the Rebellion, or sympathized with parties engaged in the Rebellion, or had endeavored to escape the proper responsibilities and duties of a citizen in time of war; and they were intended to operate by depriving such persons of the right to hold certain offices and trusts, and to pursue their ordinary and regular avocations. This deprivation is punishment; nor is it any less so because a way is opened for escape from it by the expurgatory oath. The framers of the constitution of Missouri knew at the time that whole classes of individuals would be unable to take the oath prescribed. To them there is no escape provided; to them the deprivation was intended to be, and is, absolute and perpetual. To make the enjoyment of a right dependent upon an impossible condition is equivalent to an absolute denial of the right under any condition, and such denial, enforced for a past act, is nothing less than punishment imposed for that act. It is a misapplication of terms to call it anything else.
Now, some of the acts to' which the expurgatory oath is directed were not offences at the time they were committed. It was no offence against any law to enter or leave the State of Missouri for the purpose of avoiding enrollment or draft in the military service of the United States, however •much the .evasion of such service might be the subject of moral censure. Clauses which prescribe a penalty for an act of this nature are within the terms of the definition of an ex post facto law — they impose a punishment for an act not punishable at the time it was committed.”

On page 325 of the opinion the Court said:

“The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing:, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised.” (Emphasis ours.)

From a reading of the decision in this case, one can come to no other conclusion, than that if the inhibition related to a present status, the Court’s conclusion would have been to uphold its validity. In other words, were the constitutional provisions framed to deprive citizens of certain rights and privileges if they were presently engaged either directly or indirectly in any disloyal activities, the Court most certainly would have held it valid.

It is especially to be noted that the decision in that case was rendered by a divided court and that four of the judges, including the Chief Justice, joined in a strong dissenting opinion.

The difference in the factual situation between that case and the instant case is marked and important. The statutory requirement here under consideration is not an absolute and perpetual bar to unemployed workers from receiving compensation.

It has no relation to past activities or allegiances, but relates simply and only to the present. The condition precedent to participation in the unemployment compensation fund is therefore but a provision that the person seeking the benefits thereof disavow under oath membership in any party which advocates the overthrow of our government by force or the advocacy of such an end.

It must be borne in mind that a beneficiary under the Unemployment Compensation Law has no vested interest therein. He makes no contribution there-to and is only eligible if he- meets the requirements and complies with the conditions fixed by the Legislature.

Sec. 1345-6 GC provides that:

“Each eligible individual shall receive benefits as compensation for loss of remuneration due to total or voluntary partial unemployment in the amounts and subject to the conditions stipulated in the unemployment compensation act * * (Emphasis ours.)

Unless the conditions are violative of some right, they must be complied with before benefits may accrue.

It is argued that the condition which is under consideration is violative of the right of free speech as guaranteed by the Constitution of the United States and the Constitution of the State of Ohio.

The Federal Constitution provides in the first amendment thereto the following:

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances.”

Article V, Sec. 11 of the Ohio Constitution provides as follows:

“Every citizen may freely speak, write and publish his •sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.”

It is thus seen that the right of free speech is not an unqualified right. In the exercise thereof one must still be held responsible for the abuse of the right. For instance, if one by speech or written word is guilty of slander or libel, he may be liable therefor as he is if by the exercise of free speech he incites riot or disturbs the peace.

By the provisions of the statute in question, he is not prevented from the exercise of his right to speak, but under certain circumstances it may prevent him from receiving certain benefits which the government he seeks to destroy provides.

What logical reason may be interposed to conclude that the very government which makes it possible for its citizens to enjoy certain benefits, may not withhold those benefits from its avowed enemies and those who seek to destroy it?

It is a well recognized fact that those who most vociferously appeal to all the constitutional and statutory provisions provided to safeguard human rights, are those who violate the laws and then seek immunity from punishment by every legal means which their ingenuity may contrive, and it would seem that those who are most insistent on the exercise of their right of free speech are those who want to use that right to the detriment of others.

It must always be borne in mind that the rights of others are to be considered along with the rights of any individual or any group of individuals.

One’s individual and personal rights stop where another’s rights begin.

It is a well known fact that there are individuals and organizations in this country who would destroy our government, and whose primary allegiance is to a foreign power and they insist on all the protections of our Constitution and laws to shield them, while in the promotion of their nefarious plans. Should they succeed, and our form of government he supplanted by one totalitarian in form, then all of the human rights and liberties of which we now boast would be but a memory, and freedom of speech which is now being used in the very effort, the result of which would be to destroy it, would no longer be known.

It is well at this time' to consider along with the constitutional guarantees of human rights, the objects and purposes of our government as announced by our founding fathers.

In the Declaration of Independence it was declared:

“That all men are created equal and endowed by their Creator with certain inalienable rights, among which are life, liberty and the pursuit of happiness and that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.”

In the preamble to our constitution its purpose was stated as follows:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

It was clearly intended that the government as thus established was to be perpetuated for the purposes thus enunciated, and that the blessings of liberty were to be fostered and protected through the succeeding generations, so that posterity should continue in that enjoyment.

Therefore, in order that the purposes intended should and may be carried out, a continuing responsibility rests on each succeeding generation to preserve those liberties and to oppose every effort to destroy them. Each individual citizen has his part in that responsibility, which he may not shirk if he is to be worthy of his heritage. As a beneficiary of the sacrifices which were made to establish this nation, one should certainly be proud to pledge his allegiance on all opportune occasions and by his conduct proclaim to the world his worthiness to enjoy the freedom which our government guarantees. In these present parlous times one should be willing to stand up and be counted as a loyal citizen, and when anyone protests to be so counted, as being an infringement on his constitutional rights, he immediately draws suspicion upon himself and raises doubts as to his loyalty and his worthiness to enjoy those rights which he thus asserts.

We should be at least as zealous to preserve the blessings of liberty for those who come after us as we are to accord them to those now presently enjoying them.

In the last analysis, unemployment compensation is a gratuity furnished by the state, from a fund paid in by the employers and to which the worker makes no contributions and the privilege to participate therein has been made conditioned upon the recipient not being engaged in efforts to destroy the very source from which he seeks that gratuity.

If he is so engaged, why should society by financing him in idleness, assist him in his efforts to wrong that same society? Or why, if he is not so engaged, should he hesitate so to assert? If he wishes to enjoy the benefits which a generous government provides, he should be willing to comply with a very simple condition.

Unlike the Cummings case, where great numbers of the persons living in Missouri would be forever barred from following their professions, and otherwise enjoying their privileges and rights as citizens because of previous activities, in the instant case, it is only the present status of the individual which is involved.

He may have formerly advocated the overthrow of the government by force and he may have belonged to organizations, working to that end, but if he now withdraws or has withdrawn from such membership and ceases such advocacy, he may fully participate in the Unemployment Compensation Fund, and the only proof of his eligibility which is required is his sworn statement to that effect.

The statute under consideration is not penal in its nature. It is not intended as a means to punish anyone for past conduct or affiliations, as was the case involving the Missouri constitution. It' is simply intended that persons disloyal to our government may not participate in its bounty. It is calculated to avoid the danger of having the hand that offers food, bitten by the recipient thereof.

Neither is the statute one which attempts to govern the thinking of its citizens, or to control the politics, nationalism ór réligion óf any individual. It attempts to insure that the unworthy shall not profit at the expense of the government they seek to destroyi

Plaintiff cités the case of Imbrie v. Marsh, 68 Atl. (2nd) 762, wfi'ere a so-called loyalty oath prescribed by the Legislature of New Jersey as being requisite for candidates for certain offices to assume before being eligible was attacked as unconstitutional. The following is that oath:

“That I do not believe in, advocate or advise the use of force, or violence, or other unlawful or unconstitutional means to overthrow or make any change in the Government established in the United States or in this state; and that I am not a member of or affiliated with any organization, association, party, group or combination of persons, which approves, advocates, advises or practices the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in either of the Governments so established, and that I am not bound by any allegiance to any foreign prince, potentate, state or sovereignty whatever.”

This requirement was held invalid, by the Superior Court of New Jersey, because it added to the oath prescribed by the Constitution of New Jersey, for those inducted into certain offices. In its opinion the Court said:

“By prescribing an oath intended to secure fidelity to our constitution, which represents our basic democratic institutions, and also the faithful discharge of official duties, the framers of our constitution denied to the legislature authority to devise any other oath. The constitution sets out the exact words of the oath to be taken by senators and assemblymen. The legislators are not permitted to frame their own oaths; here nothing is left to their discretion. The legislature cannot authorize the omission of the oath or any part of it, or the addition of other clauses or of another oath.”

The difference between the facts in that case and those under consideration are readily apparent, and the Court’s decision is not helpful or persuasive here.

There was only under consideration, the oath of office to be taken by persons elected thereto, and the Court said:

“An oath of office is somewhat akin to the bond that many public officers must give; it may honestly be subscribed by anyone regardless of his religious or other political • beliefs,, or whether he is a citizen or an alien; it is a promise'and assurance of future- official conduct; it is ■ not: a device for-making some persons ineligible for office.”

In other words to swear to support the Constitution and to faithfully perform the duties of a particular office covers the whole field of loyalty/ and nothing more is needed, and nothing more permitted in view of the New Jersey Constitution. One who in good conscience subscribes to such an oath would be unable to work to the detriment of his office and the public without violating that oath and subjecting himself to a removal from office for malfeasance, misfeasance and nonfeasance.

Counsel also cite the cases of Thompson v. Board of Regents of the State of New York and Charles Q. Hommedieu v. Board of Regents of the University of the State of New York, both decided by the trial court. This Court has been unable to secure those decisions, so cannot determine whether the questions were similar or not, but if they are, they are not controlling on this Court, nor even persuasive if they purport to hold that a sovereignty may not impose reasonable conditions as precedent to the enjoyment of a gratuity or a privilege.

, There has been filed in this case a brief on behalf of American Civil Liberties Union, as amicus curiae, in which the invalidity of the statutory provisions under consideration is urged and strong reliance is had upon the case of Board of Education v. Barnette, 319 U. S. 624, among numerous cases cited, all of which, in the opinion of this Court, are distinguishable, and only the Barnette case will be discussed.

In that case there was under consideration a statute of West Virginia, requiring pupils in public schools to give a prescribed salute to the American Flag and at the same time to pledge an allegiance thereto.

The Court held this statute to be in violation of the Constitution in that it attempts by compulsion to control national unity and political beliefs. The statute under consideration makes no such attempt. It is not designed to accomplish that end, but solely to determine whether enemies of our government shall be supported by that same government.

In the Barnette case Justice Frankfurter wrote a strong and thought-provoking dissenting opinion, and among other things he said:

“Conscientious scruples, all would admit, cannot stand against every legislative compulsion to do positive acts in conflict with such scruples. We have been told that such compulsions override religious scruples only as to major concerns of the state. But the determination of what is major and what is minor itself raises questions of policy. For the way in which men equally guided by reason appraise importance goes to the very heart of policy. Judges should be very diffident in setting their judgment, against that of a state in determining what is and what is not a major concern, what means are appropriate to proper ends, and what is the total social cost in striking the balance of imponderables.
⅜ * * *
The constitutional protection of religious freedom terminated' disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity tq law because of religious dogma. Religious, loyalties may be exercised without hindrance from the state,, not the state may not exercise that which except by leave of religious loyalties is within the domain of temporal power. Otherwise each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws.
An act compelling profession of allegiance to a religion,, no matter how subtly or tenuously promoted, is bad. But an act promoting good citizenship and national allegiance is. within the domain of governmental authority and is therefore to be judged by the same considerations of power and of constitutionality as those involved in the many claims of immunity from civil obedience because of religious scruples.
The subject of dissidents to the general requirement of saluting the flag, as a measure conducive to the training of children in good citizenship, is very far from being the first instance of exacting obedience to general laws that have offended deep religious scruples.
Law is concerned with external behavior and not with the inner life of man. It rests in large measure upon compulsion. Socrates lives in history partly because he gave his life for the conviction that duty of obedience to secular law does not presuppose consent to its enactment or belief in its virtue. The consent upon which free government rests is the consent that comes from sharing in the process of making and unmaking laws. The state is not shut out from, a domain because the individual conscience may deny the-state’s claim. The individual conscience may profess what. faith it chooses. It may affirm and promote that faith— in the language of the Constitution, it may ‘exercise’ it freely — but it cannot thereby restrict community action through political organs in matters of Community concern, so long as the action is not asserted in a discriminatory way either openly or by stealth. One may have the right to practice one’s religion and at the same time owe the duty of formal obedience to laws that run counter to one’s beliefs. Compelling belief implies denial of opportunity to combat it and to assert dissident views. Such compulsion is one thing. Quite another matter is submission to conformity of action while denying its wisdom or virtue and with ample opportunity for seeking its change or abrogation.”
> “The right of West Virginia to utilize the flag salute as part of its educational provess is denied because, so it is argued, it cannot be justified as a means of meeting a ‘clear and present danger’ to national unity. In passing it deserves to be noted that the four cases which unanimously sustained the power of states to utilize such an educational measure arose and were all decided before the present World War. But to measure the state’s power to make such regulations as are here resisted by the imminence of national danger is wholly to misconceive the origin and purpose of the concept of ‘clear and present danger.’ To apply such a test is for the Court to assume, however unwittingly, a legislative responsibility that does not belong to it. To talk about ‘clear and present danger’ as the touchstone of allowable educational policy by the states whenever school curricula may impinge upon the boundaries of individual conscience, is to take a felicitous phrase out of the context of the particular situation where it arose and for which it was adapted, Mr. Justice Holmes used the phrase ‘clear and present danger’ in a case involving mere speech as a means by which alone to accomplish sedition in time of war. By that phrase he meant merely to indicate that, in view of the protection given to utterance by the First Amendment, in order that mere utterance may not be proscribed, ‘the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.’ Schenck v. United States, 249 U. S. 47, 52. The ‘substantive evils’ about which he was speaking were inducement of insubordination in the military and naval forces of the United States and obstruction of enlistment while the country was at war. He was not enunciating a formal rule that there can be no restriction upon speech and, still less, no compulsion where conscience balks, unless imminent danger would thereby be wrought ‘to our institutions or our government.’ ”

In the majority opinion the Court said:

“It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the state is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression * *

This makes the' distinction between that case and the instant one clear.

Objections to the compulsory salute were raised by certain religious groups, parent and teachers associations, Scouts, The Red Cross and The Federation of Womens Clubs. It is difficult to connect a failure to salute the flag with any imminent danger to our government. There is a real and vital danger to that government, presented, in the form of organizations the avowed aim of which is to • destroy our form of government, and where the Legislature has recognized that danger, courts should be most reluctant to interfere, unless there has been a clear invasion of Constitutional rights.

With the present threats to democratic principles, and the freedoms provided by oúr Constitution, it is high time that in our zeal to protect the rights of individuals, we give some attention to the general welfare, which was also included in the purposes which were announced as the reasons for the adoption of that constitution. It is high time that we take protective steps to insure, that the philosophy of the Declaration of Independence to the effect that governments are instituted among men to secure the sacred rights of life, liberty and the pursuit of happiness shall be perpetuated, and that our Government, which was so instituted and which has been continued for such purposes shall not “perish from the earth.”

As Lincoln said in his first inaugural address, this Government is “the last best hope of earth.” It is even truer today than-when he uttered those prophetic words.

Our Legislature has sensed a real danger to our democracy in the persons of those, some citizens, many aliens, as well as established organizations, who seek by force to destroy this “last best hope of earth,” this citadel of political and religious liberty and when that Legislature has seen fit to impose as a condition for the receipt of government largess that the recipient thereof shall satisfy the giver that he is not' an avowed enemy of the donor, courts should not interfere.

The time to thwart the enemies within our gates is now and not at some future time when their power has become so strong as to amount to a still greater menace. Let us not be guilty of awaiting the theft of the horse before we lock the stable door.

Let those who mayhap sincerely espouse the cause of disloyalty in whatever guise, search their consciences and determine whether or not in their desires to assist those who seek to undermine and destroy the foundations of our institutions they have not overlooked the greater good for the greater number, and lost sight of what is best and most expedient for the “general welfare.”

Counsel for defendant have raised the question as to plaintiff’s right to prosecute this action, as it does not appear that he is either an employer contributing to the Unemployment Fund, nor a worker entitled to participate therein. He seems to appear only as a taxpayer to prevent illegal expenditures of public money.

It does not appear that the inclusion of the affidavit provided for, in the application for Unemployment Compensation, adds anything to the cost of the application, without this affidavit, or if so, how much.

If there is any added cost it must be rather inconsiderable, so that a suspicion is aroused in the mind of the Court that the action is not brought for purposes of public economy. However, the Court has deemed it well to resolve that question in plaintiff’s favor and to decide the case on its merits.

There is nothing in the record or the briefs which in any way tends to show that the enforcement of the provision under consideration will lead to any great confusion, contention or litigation or will undermine the purpose of the Unemployment Compensation law as counsel contend.

The Court is fully of the opinion, after a careful consideration of all the submitted authorities and others not cited that the statute is a valid enactment, and provides a reasonable condition to be complied with by those who seek the benefits of the Unemployment Compensation Law. Those directly afiected seem to have voiced no disapproval. If they are satisfied it would seem that there is no need for interference by those who set themselves up as guardians of liberty and monitors of the actions of our law makers and administrators.

It is therefore ordered that plaintiff’s action be dismissed at plaintiff’s costs.


author: Per CURIAM:

text:
    STATE ex NATIONAL CITY BANK et, Relator, v. CUYAHOGA COUNTY COMMON PLEAS etc. et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21665.
    Decided January 16, 1950.
    Thompson, Hiñe & Flory, Cleveland, for relator.
    Horwitz, Kiefer & Harmel, Cleveland, for respondents.
   OPINION

Per CURIAM:

This is an action in Prohibition in which the Relator, National City Bank of Cleveland, Trustee, seeks the issuance of a writ prohibiting the Respondents, Judges of the Court of Common Pleas of Cuyahoga County from hearing and deciding applications for the allowance of expenses and attorneys fees. The applications were filed on May 13, 1949, in four cases in which final judgments were rendered at former terms of the Common Pleas Court. Applicants as holders of Land Trust Certificates of equitable ownership in the Citizens Building property and purporting to act in behalf of all certificate holders filed four actions and intervened as cross-petitioners in a fifth case during a period of eight years, as follows:

“1. Stanley v. Citizens Building et al No. 513320 Common Pleas Court. Action for Declaratory Judgment. Dismissed by plaintiffs at their costs Jan. 20, 1942.
2. Stanley v. Hart, Supt. of Banks et al No. 515986 Common Pleas Court. Action to set aside the trust and declare same invalid.
Judgment for defendants, March 23, 1943; affirmed by the Court of Appeals; affirmed by Supreme Court of Ohio Feb. 9, 1944 (142 Oh St 528)
3. State ex rel Stanley et al v. Cook, Supt. of Banks, et al, No. 30007, Supreme Court of Ohio. Action in mandamus. Judgment for respondents in that case Feb. 27, 1946. (146 Oh St 348)
4. Cary R. Alburn, Trustee v. Union Trust Co. et al, No. 563819 Common Pleas Court. Action for declaratory judgment.
Demurrer sustained Jan. 10, 1948;; affirmed by Court of Appeals and Supreme Court of Ohio. Certiorari denied by the United States Supreme Court.
5. National City Bank, Trustee v. Cook, Supt. of Banks et al, No. 565171 Common Pleas Court. Quiet title action in which applicants intervened and filed an answer and cross-petition to set aside the trust and declare sanie invalid.
Applicant’s answer was stricken, demurrer to their cross-petition was sustained and the title was quieted by final order entered Feb. 11, 1948; affirmed by Court of Appeals and Supreme Court; Certiorari denied by the United States Supreme Court.”

In none of the above actions was there a claim made for attorneys fees or expenses. Jurisdiction was not reserved by the trial court in any of the cases, nor was there any fund created by applicants, or any fund or res in or under the control of the court at any time. Concurrently with the filing of the applications in the four cases originating in the Common Pleas Court, applicants requested a reference to a Referee.

The Trustee moved for a dismissal of the applications in the Common Pleas Court on the ground that the Court was without jurisdiction to consider them. The Common Pleas Court overruled the Trustee’s motion on the authority of Sprague v. Ticonic Bank, 307 U. S. 161, and its own action in allowing attorneys fees and expenses to other certificate holders who were parties advérse to the applicants in two of the above cases. This allowance of fees and expenses was made in a proceeding where the jurisdictional question was neither raised nor considered.

Upon a review of the record, we are of the opinion that the Common Pleas Court lost jurisdiction of the persons and subject matter in each of the above cases originating in that Court and that unless the principles announced in Sprague v. Ticonic Bank, supra, are controlling a writ of prohibition should issue. The facts and applicable principles of Sprague v. Ticonic Bank, supra, are well summarized in paragraph 1 of the syllabus:

“1. When a litigant in the District Court, through the prosecution of a suit on his own behalf, and at his own expense, has affixed a lien on earmarked funds in an insolvent bank for the repayment in full, with ordinary costs and interest, of a sum theretofore deposited by him in trust, and by so doing, has incidentally through the principle of stare decisis, established like right for other depositors, not parties to the suit, but in like situation, it lies within the power of the court as a court of equity to make the successful litigant an allowance of costs ‘as between solicitor and client’ for counsel fees and litigation expenses, to be paid out of the earmarked funds.”

Concededly, there are points of similarity between the Sprague case and these proceedings. In each, the claim for attorneys fees was made in original actions with no fund before or under the control of the trial court and with no reservation of jurisdiction or mandate from the reviewing courts to award “solicitor and client” costs. But the distinguishing characteristics of these proceedings are of impressive significance. The applicants were unsuccessful litigants in five suits as contrasted with the successful plaintiff in the single suit filed in the Sprague case. Here, no lien was affixed on earmarked funds securing the payment in full of the amount claimed or was there an establishment of a lien for the benefit of others through the principle of stare decisis or otherwise.

In the Sprague case, the Supreme Court held that the power to consider a petition for attorneys fees filed in the original action after term was to be found in the “historic authority of a Court to do equity.” But the court’s opinion is weighted with references to a creation' of a fund by plaintiff to such an extent as to indicate clearly that this factor was deemed to be of persuasive if not controlling effect. After adverting to the sources bearing on 18th Century English Practice as supporting the “allowance of costs as between solicitor and client” the court said (at pages 165-166),

“To be sure, the usual case is one where through the complainant’s efforts a fund is recovered in which others share. Sometimes the complainant avowedly sues for the common interest while in others his litigation results in a fund for a group though he did not profess to be their representative. The present case presents a variant of the latter situation.” (Emphasis ours.)

And again on page 167 the following expression of the court appears:

“But when such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation — the absence of an avowed class suit or the creation of a fund as it were, through stare decisis, rather than through a, decree —hardly touch the power of equity in doing justice as between a party and the beneficiaries of his litigation.”

We are unable to find precedential authority in the “historic practice of equity” for the allowance of “solicitor and client” costs in any case closely analogous to the instant proceedings.

Five separate, successive and unsuccessful attempts were made by applicants to have the trust declared invalid. Applicants’ manifest purpose in this litigation was to secure for themselves and the other certificate holders a position as general creditors of the Union Trust Company in liquidation. At and subsequent to the institution of the first suit filed by them, the claims of general creditors of the Union Trust Bank were of much greater value than the land trust certificates. If applicants had been successful they would have created a fund in which all the certificate holders would have been beneficiaries. In such event applicants would have been entitled to an allowance of fees and expenses. Having failed they are not in a position of parties who seek justice between themselves and the beneficiaries of their litigation. True, applicants assert that “The resistance of the

Successor Trustee, The Superintendent of Banks, and Union Properties Inc. to the determination of this question by the courts resulted in" a protracted series of lawsuits which entailed vast expenditure of time almost continuously over a period of approximately eight (8) years, 1941 to 1949, upon the part of the counsel hereinafter named, who represented the interests of the applicants and the entire class of certificate holders.”

However, it was the position of the Trustee and not that of the applicants that was vindicated by the protracted litigation.

Finally, it is to be observed that in the Sprague case it was held that an application for the allowance of fees and expenses could be made after term because the court viewed the petition for reimbursement as an independent proceeding supplemental to the original proceeding and involving no modification of the main decree. We find no parallel in the facts here considered where there is no successful action or main decree that properly may serve -as the basis for a supplemental proceeding for the allowance of solicitor and client costs.

In our opinion the principles of the Sprague case are inapplicable.

We consider as controlling the rule of law that holds where a court’s jurisdiction of the person and subject matter of an action has terminated, the court is as destitute of jurisdiction of either the person or subject matter as if such jurisdiction had never been acquired, and if in such circumstances the court proposes to take any further action a writ of prohibition may issue. 42 American Jurisprudence 162, 163. Sec. 25; 32 O. Jur. 585, Sec. 23.

Writ allowed. Exceptions noted. Order see journal.

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


author: By WOODS, Referee.

text:
    BROWN, In re, Bankrupt, BLACK, Trustee, Plaintiff, v. AULT et, Defendants.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
    No. 66027.
    Decided September 8, 1949.
    Bruce R. Black, Youngstown, Trustee.
    Murray A. Nadler, Youngstown, for Trustee.
    Richard G. Bauman, Youngstown, for Roy E. Ault.
    David Steiner, Youngstown, for Hobart Mfg. Co.
    Ralph B. Schwartz, Youngstown, for Bankrupt.
   MEMORANDUM OF REFEREE

By WOODS, Referee.

Bruce R. Black, Trustee of this bankrupt, filed a petition to sell personal property and marshal liens. Bankrupt was in business for himself conducting a meat market in a super market known as “Food Center Super Market”, at Cornersburg, Mahoning County, Ohio. To this petition to sell, two creditors filed answers and cross petitions, one claiming a lien on a chattel mortgage and the other on a conditional sales contract.

Roy E. Ault in his answer and cross petition claimed a lien on certain equipment described therein for $3,650.30 upon a chattel mortgage executed September 30, 1948, upon which there was a balance due of $3,344.50. This mortgage was signed, “Food Center Super Market” in typewriter and underneath by pen, “Raymond A. Brown.” This mortgage was regularly filed for record in the Chattel Mortgages records of Mahoning County and indexed only under “Food Center Super Market.”

Hobart Manufacturing Company filed its answer and cross petition claiming upon a conditional sales contract for a scale, chopper, slicer, and saw, for $2,230.00, credit allowance $507.50, balance due $1,522.50, and after cash payment the contract was executed for $1,482.40, upon which payments were made so that the balance due on bankruptcy was $1,316.40. This conditional sales contract was regularly filed for record with the Recorder of Mahoning County and is under “Food Center Super Market”, by pen in print, by “Raymond A. Brown, title owner,” and indexed only under “Food Center Super Market.”

“Food Center Super Market” was a trade name used by Ronald Brown and D, D. Kothe, a partnership. Raymond A. Brown, the bankrupt, did business individually, operating a meat department in the super market located in Corners-burg, and was not connected with the partnership, being only a tenant of the partnership, and operating independently at the same address.

The question arises as to the validity of the liens as claimed by Ault, the mortgagee under the chattel mortgage, and by Hobart Manufacturing Company, the vendor under the conditional sales contract. The question is presented as to each cross petition, for in the recording in Mahoning County each was indexed as an instrument under “Food Center Super Market”, and there was no indexing of Raymond A. Brown as- a mortgagor or vendee.

Briefly thus is presented the question concerning the recording of such documents as covered by §8562 GC as to filing and indexing chattel mortgages, and by §8569 GC as to the offlcer receiving a conditional sales contract. For each case the provisions of §8562 GC control and are as follows:

“The offlcer receiving such an instrument shall indorse thereon the time of receiving it and its consecutive number, and enter in a book * * * the names of all parties thereto, alphabetically arranged, with * * * its date, the day of filing it, and the amount secured thereby, which entry must be repeated, alphabetically, under the name of every party thereto * * *”

Brushing aside arguments about what the intentions of Cross Petitioner Ault were, for he not only represented himself in taking his mortgage but the testimony shows that he had represented the Hobart Manufacturing Company, or what were the intentions of Brown, the bankrupt; the fact is that the documents, while signed by the “Food Center Super Market” by Raymond A. Brown, were left with the recorder and that offlcer indexed each instrument under “Food Center Super Market.” How could any creditor or persons interested by examining such recordings be advised that any liens were claimed on the chattels owned by Raymond A. Brown?

The Trustee in Bankruptcy relies upon Section 70c of the Bankruptcy Act for the nature and basis of his claim to the chattels claimed by each cross petitioner. Section 70 of the Act is called “Title to Property” and the first part of the second sentence under Sec. 70c reads as follows:

“The trustee, as to all property in the possession or under the control of the bankrupt at the date of bankruptcy or otherwise coming into the possession of the bankruptcy court, shall be deemed vested as of the date of bankruptcy with all the rights, remedies, and powers of a creditor then holding a lien thereon by legal or equitable proceedings, whether or not such a creditor actually exists.”

This provision confers upon the Trustee “by force of law” the status of the ideal or “perfect” creditor, irreproachable and without notice armed with every right, and power which is conferred by the law of the State upon its most favored creditor. Such hypothetical status depends for meaning upon the substantive law which it does not explicitly indicate, but which it incorporates by reference. Hence the Trustee’s powers in every case governed by this portion of Sec. 70c are those which the State Law would allow to a supposed creditor of the bankrupt, who had at the date of bankruptcy completed the process for the perfection of a lien upon property in the bankrupt’s or the Court’s possession. Whether a Trustee is entitled to such a status, and the conditions under which he may attain it, are federal questions covered by the Bankruptcy Act, but the extent of the trustee’s rights, remedies and powers as a lien creditor, are measured by the substantive law of the jurisdiction governing the property in question — that is, in this case the law of the State of Ohio. The foregoing follows a discussion of this subject in Collier on Bankruptcy, 14 Ed., Vol. 4, pg. 1261 et seq. See also Remington on Bankruptcy, Vol. 4, Chap. XXX-A, Sec. 1599-1601.

Since the amendment by the Chandler Act of 1938, this section, which was formerly in Sec. 47c (2), is now recast as a part of Sec. 70c of the Bankruptcy Act, and is sometimes called the “strong arm clause” in Sec. 70c. This right of the trustee in the Bankruptcy Act, as so amended, is discussed in Commercial Credit Company, Inc. v. Davidson, (C. A. 5, 1940) 112 F (2) 54, 42 A. B. R. (n. s.) 688; Janney v. Bell, (4 C. A. 5, 1940) 111 F (2d) 103, 42 A. B. R. (n. s.) 360; Robbins v. Bastian, (C. A. 8, 1943) 135 F (2) 298, 53 A. B. R. (n. s.) 20.

Sec. 70c specifies that the trustee’s lien is deemed vested as of the date when the petition in bankruptcy was filed with respect to all property within the scope of its terms. So, generally speaking, liens properly perfected prior to the date of bankruptcy will be superior to that of the trustee under Sec. 70c; those not so perfected or perfected subsequently to bankruptcy will be subordinated thereto, and as Collier adds, it must be constantly borne in mind that this is a matter upon which See. 70c normally defers to the State Law, supra, pg. 1270.

Improper or defective recordation is just as ineffective as no recordation at all from the standpoint of constructive notice to third persons; so also defective acknowledgement, lack of required affidavit, recordation in the wrong place, and similar errors, will serve to invalidate the lien against a trustee acting under Sec. 70c. Collier supra, pg. 1292.

There are many cases in the books where the claimed lien is invalid if not recorded in the proper place, or for lack of a required affidavit, and other errors. A case in point, where a chattel mortgage did not bear a date was held invalid against Trustee in Bankruptcy, is In Re: Coast Line Express, Inc., C. C. H. Par. 51660, where the Bankruptcy Court in Massachusetts in 1939 held such mortgage invalid under Sec. 70c of the Bankruptcy Act.

In Ohio where a chattel mortgage failed to recite the residence or place of business of either the mortgagor or the mortgagee, such was held invalid against the mortgagor’s trustee in Osborn v. Wells, 69 P (2) 970, when this Referee was affirmed by District Judge West in The Cleveland Metal Roofing: Co., 37 Ohio Law Bulletin 121, and the Court of Appeals, showing the view the Federal Courts took of failure to comply with Ohio recording statutes.

Early in Ohio it was held that in order to effect a lien, there must be compliance with the provisions of the Recording Acts. Where the statute provided for an affidavit to be written on the mortgage and signed by mortgagee, and the Notary or officer taking the oath failed to sign, it was held that the statute had not been complied with and there was no lien. Benedict v. Peters, 58 Oh St 527. In that case Judge Minshall said, at pg. 534:

“Creditors examining the records of such liens are not required to go beyond the record for the purpose of learning whether an instrument on which there is no duly certified sworn statement required by the statute can be shown to have been properly executed in this record.”

Since the statutory provisions with reference to execution of a chattel mortgage are intended to protect third persons, including a Trustee in Bankruptcy under Sec. 70c, the chattel mortgage, as against them, must be executed in strict compliance with the statutory requirements. Cash Register Co. v. Friedlander, 7 O. N. P. 170, 4 O. D. (N. P.) 347; Columbus Merchandise Co. v. Kline, 248 Fed. 296.

If a chattel mortgage is executed or filed defectively, the lien of a subsequent execution upon such property is superior to that of such prior mortgage, even though the judgment creditor had notice of such mortgage. Houk v. Condon, 40 Oh St 569.

Defect in the form of or omission in the content of an instrument justifies the Court in concluding that the filing of such an imperfect instrument is the legal effect of non-recordation. Shilling Press, 52 F. Supp. 569, 55 A. B. R. (n. s.) 257; aff. 141 F 2nd 643, 55 A. B. R. (n. s.) 279; Trimmer, Tr. v. Talbot, 36 A. B. R. (n. s.) 84.

The law as it seems to be established in Ohio is clearly discussed in Baker v. Coffman, 24 N. P. (n. s.) 259 (Franklin County Common Pleas 1922) and is applicable here. In that case a mortgagee secured a mortgage signed “Roy Kauffman”, whereas the mortgagor’s correct name was “Roy Coffman”. Later a subsequent mortgagor secured a mortgage on the same property from the same person, but said mortgage was signed by the same mortgagor in his correct name “Roy Coffman.” The Court reviewed all of the cases both in Ohio and elsewhere involving this subject, and concluded that there was a dissimilarity in the names of “Kauffman” and “Coffman,” and a mortgage executed in the name of “Kauffman,” whereas the correct name of the mortgagor was “Coffman,” did not convey a valid lien to the mortgagor and allowed priority to the subsequent mortgages whose mortgage was properly signed. The syllabus in said case reads as follow'•

3yl. 2. “The dissimilarity in the names of “Coffman” and “Kauffman” is sufficient to give priority to a second chattel mortgage, given under the name of Roy Coffman, which was the real name of the mortgagor over a first mortgage executed under the name of Roy Kauffman, where the holder of the first mortgage made no inquiry as to whether it was signed by the real or known name of the mortgagor, and the holder of the second mortgage had accepted it in good faith without notice.”

In arriving at this decision, the court quoted the following authorities:

5 RCL p 393.

“An error in the signature of the mortgage is not fatal as between the parties, but under the secondary, statutes it would vitiate the mortgage as to third persons.”

11 C. J. 540.

“Likewise by weight of authority, the record of a mortgage executed by the owner in a wrong or fictitious name is not constructive notice to anyone dealing with the owner in his true name, although the contrary has been held.”

In arriving at said decision, Judge Scarlett on page 261 used the following language:

“A mortgagee, who permits the mortgagor to remain in possession of the property mortgaged and thereby makes it possible for the latter to deceive or mislead others by this strongest proof of ownership, must comply with the letter and spirit of the statute. Our Ohio statute is more severe than many, in that it provides that a chattel mortgage, not filed in the manner required by statute, shall be absolutely void as to subsequent purchasers and mortgagees. To validate his mortgage lien, it is the duty of the mortgagee to see that the mortgage is real and not fictitious, that it is signed by the real or known name of the mortgagor, and will give the notice which the statute contemplates.”

In modern commercial practice, it is not unusual for large city department stores, like the May Company in Cleveland, to have departments in such stores conducted by individual operators who havé concessions from the company to conduct certain businesses. This is probably true in Youngstown, at least that is what Messrs. Ronald Brown and Kothe, a partnership, did, as the “Food Center Super Market”, and authorized Raymond A. Brown, this bankrupt, to operate the meat market in their super market. There is no claim here that the partnership is liable for these debts for it is conceded that Raymond A. Brown was not an agent of the partnership.

The case of Green v. Garrington, 16 Oh St 549, cited by counsel for Hobart Manufacturing Company is of no help to said cross Petitioner. In that case, the recorder failed to index a mortgage, and the Court held that the remedy of a purchaser who did not find that mortgage in the Recorder’s index was against the Recorder. In the case at bar, the Recorder was not at fault, the chattel mortgage and the conditional sales contract were not properly executed by the buyers of the chattels, and the recorder cannot be said to have been at fault, in so indexing the instruments as he did.

Finally, the property covered by the chattel mortgage and the conditional sales contract was the property of Raymond A. Brown, the bankrupt. Neither the mortgagee nor the vendor complied with what seems to be the Ohio law for perfecting a lien upon chattels. “Food Center Super Market” is not the correct name of the bankrupt and the chattels sought to be covered by liens in each instance are not the property of the “Food Center Super Market.” The instruments relied upon in each case are not in compliance with the Ohio statute and no liens are created on said chattel property as against the Trustee of this bankruptcy estate.

In this view of the law applicable to each situation, the liens claimed by the cross petitioners are held to be invalid as against the Trustee in bankruptcy; and orders may be entered denying the liens of each as security, the claim of each cross petitioner be allowed as a general claim, and the Trustee be authorized to proceed with the sale of these chattels.


author: By JONES, J.

text:
    BROWN, Bankrupt, BLACK, Trustee, Plaintiff, v. HOBART MANUFACTURING CO., and AULT, Defendant.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    No. 66027.
    Decided January 10, 1950.
   MEMORANDUM

By JONES, J.

These are petitions for review of the Referee in Bankruptcy’s order holding liens of the petitioners invalid as against the' Trustee.

One petitioner holds a chattel mortgage on property in the bankrupt’s possession and the other has a conditional sales contract by which it retained title to the chattels. Both instruments, however, are declared invalid for the same reason and, therefore, can for purposes of this review be treated as one.

Bankrupt operated a meat department as a tenant of a partnership, the Food Center Super Market. The Referee found that bankrupt was carrying on his business in his own name and not that of the partnership.

When the instruments in question were executed, they were directed to the Food Center Super Market and were signed in the space provided for the mortgagor and vendee at the end of the instrument by the Food Center Super Market (typewritten or printed) by Raymond A. Brown, the bankrupt. Both instruments were recorded but were filed under the name of Food Center Super Market.

The law of Ohio governing like cases indicates that a mortgage or a conditional sales contract which is signed in a fictitious name by which the mortgagor or vendee is not ordinarily known, is invalid against a subsequent lien on the same chattel. The case of Baker v. Coffman, 24 N. P. (N. S.) 259 holds that it is the duty of the vendor or mortgagee to inquire into the true name of the vendee or mortgagor and to see that the true name is signed to the instrument. If this is not done, a lien which is subsequently perfected on the chattel takes priority over the first lien.

In this case the mortgage and sales contract were signed in a fictitious name. They were, therefore, defectively executed and cannot prevail against the trustee’s claim.

The case of Green v. Garrington, 16 Oh St 459, cited by petitioner is not controlling. In that case a valid mortgage was improperly recorded while in this case the mortgage and sales contract themselves were defectively executed.

The additional claim is made that bankrupt- did business under the name of Food Center Super Market. If this were so a different result might have been reached. However, the Referee found that bankrupt did business in his own name, and there is nothing in the record to support a contrary finding.

The orders of the Referee will be approved and his findings and conclusions adopted as those of this Court.


author: By BELL, J.

text:
    STOREY v. KNAPP et.
    Common Pleas Court, Hamilton County.
    No. 136432.
    Decided August 25, 1949.
    Charles P. Taft, Cincinnati, for complainants.
    Walter K. Sibbald, Cincinnati, for defendants Hershberger and Green.
    Robert F. Dreidame, Cincinnati, for defendant Marian Handel.
   ORAL OPINION

By BELL, J.

This lawsuit has been in this court and the Court of Appeals for a period of over forty years. The suit was commenced in 1907, at which time this court took over the operation of this school. Whether the person appointed to administer the affairs of the institution at that time was called a receiver or a business manager is not, in our opinion, highly important. The court did administer this institution, and it was there declared and decided that this was a public, charitable Trust. An election was held, and certain trustees were elected as a result of that original hearing.

Some twenty years later the matter was again brought to the attention of the court, and at that time the court appointed three trustees, and ordered that each year a report by those trustees of the financial position of this institution should be filed with the court, but, as it appears in the record, that part of the Court’s Order with regard to filing annual reports was not obeyed. That decision was taken to the Court of Appeals, wherein, so far as the right of the court to appoint the trustees and to make the Order, the judgment was affirmed. That decision of the Court of Appeals became the law of this case. There is no question at this time as to the right or jurisdiction of this court with reference to the appointment of trusteed in the effort to save this institution.

After another period of about twenty years, in 1947, the matter again came to the attention of the court. The court still having continuing jurisdiction, a complaint was made by the Superintendent of the Division of Securities of the State of Ohio that 'this institution was violating the laws of the state. The court then, of its own motion, appointed auditors to determine the financial situation and to report to the court its findings. That was done. It is quite apparent that this court was dissatisfied with the conduct of the then trustees, Rev.- Meredith Standley, Bessie Standley, and Mrs. Knapp. The Standleys resigned as trustees. Mrs. Knapp refused to resign and was removed by a judgment of this court. That judgment was appealed to the Court of Appeals, and, by affirming the judgment, the court again recognized the right of this court to appoint and to remove trustees.

Prior'to the resignation of those two trustees and the removal of the third, this court saw fit to appoint a former judge of this court, define his powers by entry, and styled him a “Business Manager.” We do not think that it is important whether he was called a “receiver” or a “business manager.” His powers were those of a receiver. By this action of the court, the creditors’ hands were tied. They had no right from July 6, 1948, and have no right now, to proceed to enforce any of their claims without going through the business manager, the trustees, and the permission of the court.

The asset here is the going institution, and the question, as we see it, is whether there has been an attempt made to destroy that asset. The court is firmly convinced that where a court takes over an institution for the purpose of straightening out its affairs, and paying off its creditors, that any one who attempts to destroy that asset may be guilty of contempt of court. We do not hold any brief for the conduct of this institution under the Standleys. It was in a muddled financial condition when the court, on July 6, 1948, took it over to straighten out its affairs and put it, if possible, on a sound financial basis. After the business manager was appointed, he retained the Standleyá as employees to do certain work under him at a stated compensation. That was the situation when the first of the documents complained of made its appearance. In passing, it might be noted here that one of the defendants, Hershberger, was an employee at the time the business manager was appointed, that he continued as an employee for some time thereafter, and that he did submit his resignation after it was suggested by the business manager that after his vacation he had better look for other employment.

This record discloses that as far back as the year 1945, the Division of Securities of the State of Ohio made what is called a “Cease and Desist Order,” and by that Order this institution was ordered to cease and desist from certain practices in which it was engaged. The defendant Hershberger continued thereafter to do the very things that the Cease and Desist Order would not further permit had it been complied with, but he excuses his conduct on the basis that he was ordered so to do by the Standleys.

That brings us to the present situation. After the business manager had run the business for some little time, and after the Standleys resigned as trustees and Mrs. Knapp was removed, the court appointed five trustees of its own choosing. Included amongst those five was the business manager, and from that time until the present Judge Allen Roudebush has occupied a dual capacity, as business manager and trustee. After Hershberger resigned, he contacted one of the other defendants, Orville Green. The testimony shows that Orville Green had once been an employee of this institution. However, for many years he took no active part in the management of the institution until he became active in publishing the documents complained of.

This record discloses that Green was not a member of any of the churches connected with the “Holiness” movement. However, after the visit of Hershberger he became very active with Hershberger, and, on the stand, admitted a joint responsibility for these publications. The record discloses that the defendant Green is a brother-in-law of Mrs. Standley. He is also related by marriage to Mrs. Knapp. He is also related to one of the defendants, Mrs. Marian Handel.

As to the documents complained of, three of them were published anonymously. Three of them were published with the name of Green as editor.

In order to determine whether these defendants are guilty of contempt of this court, it is of course necessary to determine not only what they did but what was their intention in doing it, and what was the highly probable result of their doing it. These publications disclose to a large number of the “Holiness” movement the information that the Standleys were removed by the court. That is untrue. The attack by these publications is not an attack upon the trustees appointed by the court, but is an attack upon the Standleys and, incidentally, an attack upon the business manager because in his wisdom he saw fit to continue the Standleys as his employees in the handling of this institution.

There can be no question that God’s Bible School and Missionary Training Home could not exist for a period of six months in the absence of contributions by its friends, its admirers, and those engaged in the “Holiness” movement. One ■of these publications advises all of the people who came in contact with that publication that they should stop their contributions until they conferred with their ministers. That clearly shows an intention to stop the ■ contributions and destroy the school. In addition to that, Hershberger in his testimony on the stand, took the position that it would be better to destroy this institution than to permit the Standleys to remain in the “Holiness” movement. In answer to one question he said that he knew that the effect of these publications, if the advice offered therein was followed, would be to stop the contributions to this institution.

Green, as the court has said, became very active after Hershberger no longer remained as an employee of the school. There has been no word of testimony of any activity upon the part of Green, nor any activity on the part of Hersh-berger, to attempt to right the claimed wrongs until after Hershberger left the institution. Green in his testimony, just before he left the stand, quoted the Holy Bible and gave that as an excuse, that his Bible taught him that he was to do these things. He also on the stand showed an utter disregard for what would happen to this institution if they could prevail in what they were attempting to do.

That presents the question of whether or not the right of free speech permits such conduct. In passing, it should be said that we were told a good deal about the amalgamation of church and state at the start of this case, but we have heard nothing further upon that subject and, in the opinion of the court, there is nothing here that has to do with the amalgation of church and state. In the first place, this is not a church. .It is a school. In the second place, the books are full of cases where courts have taken over the affairs of the church when the rights of creditors become involved, and in no case of which we are advised has it ever been held that such action was an amalgamation of church and state forbidden by the Constitution.

So that we are concerned here with the question of whether in the exercise of the freedom of the press or the freedom of speech these defendants have stepped beyond the bounds permitted. Freedom of speech and freedom of the press are practically the same thing. Freedom of speech is communicated by mouth. Freedom of the press is to communicate by a written document. Freedom of speech, nor freedom of the press, so far as we know, has never meant license to say and do as one pleases. In discussing freedom of speech, one of the great jurists of the Supreme Court of the United States, Mr. Justice Holmes, said in effect that freedom of speech did not mean that an individual could go into a crowded theater and shout “fire”, and not be held answerable for his conduct. Many other examples could be given. Freedom of the press has never meant that the press was not to be held responsible for libel. Freedom of speech, in the opinion of this court, and there has been no case cited to the contrary, does not grant to any person the right to destroy or attempt to destroy an asset being administered by a court of justice and injure the creditors of that institution and then say, “We have a perfect right to destroy or attempt to destroy the asset under our liberty of freedom of speech.”

We have concluded that all three of these defendants axe guilty of contempt of this court. Hershberger and Green took the responsibility for the publication of these documents, which are in evidence. The opening statement of counsel for the other defendant was that she contributed documents and information which went into the publications. In addition to that opening statement, the evidence discloses some of her activity since the business manager and these trustees were appointed. She did not see fit to take the stand, and we are all quite familiar with the rule that the failure to take the witness stand in one’s own defense may be considered by the triers of the facts in determining the guilt of the person so failing to take the stand. That rule applies to both civil and criminal cases.

As the court has said, we find all three of these defendants guilty of contempt of court, in that they wilfully, intentionally and maliciously published the documents complained of with the intention of destroying this institution, thereby destroying the asset belonging to the creditors.

We have not as yet determined what the punishment should be. When we have arrived at a conclusion as to what the punishment should be, all parties will be notified and brought back into court. But we have agreed that the conduct of these defendants from this pronouncement of their guilt until the court does decide the appropriate punishment will be taken into consideration at that time.

MORROW. J. concurs.


text:
    STATE ex CARR, Relator, v. SAVORD, Judge, etc., Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21724.
    Decided January 30, 1950.
    VanAken, Whiting & Nash, Cleveland, for relator.
    Halle, Haber, Berick & McNulty, Cleveland, for respondent.
    (DOYLE, J, of the Ninth District sitting by designation in the Eighth District in place of SKEEL, PJ.)
   OPINION

Per CURIAM:

This cause comes to this court at this time on a motion to quash service upon a petition for peremptory writ of mandamus, the respondent entering his appearance only for this purpose.

The petition alleges in substance that the respondent at all times referred to in the petition was a duly elected, qualified and acting Judge of the Common Pleas Court of Erie County, Ohio, and that he was at all times referred to and still is, for the purposes of this action, a duly assigned, qualified and acting Judge of the Common Pleas Court of Cuyahoga County by reason of his assignment to said Court by Chief Justice Carl V. Weygandt of the Supreme Court of Ohio, in pursuance of the authority vested in him as Chief Justice.

It is claimed by the Relator that a Bill of Exceptions was presented to the trial judge in the case of Mignon S. Carr v. The Yellow Cab Company, being case No. 576753 on the docket of Common Pleas Court of Cuyahoga County, in which the relator was named plaintiff, and that when the case came on for hearing before the respondent as Judge with a jury and said Court, a journal entry for final judgment in favor of the defendant in said action was approved by said Judge and filed with the Clerk of said court for journalization; that within the proper time allowed by law the relator filed a narrative bill of exceptions which was thereafter transmitted to the respondent trial judge for allowance and signature, but that said Judge refused to allow and sign said bill of exceptions for reasons set forth which are not germane to the issue immediately before us. _ -

The record shows that the trial judge was served with summons in Erie County on the petition for mandamus here under consideration and the motion to quash service is made on the ground that the action should have been commenced in Erie County where the trial judge resides and exercises jurisdiction.

The members of this court, upon consideration of the question presented, are of the opinion that an action against a trial judge to compel the settling of a bill of exceptions in a case tried by him, is properly brought in the county in which the case was tried, even though the trial judge is a resident of another county and was sitting in the county where the cause of action arose, by assignment only of the Chief Justice of the Supreme. Court of Ohio.

HURD, J, McNAMEE, J, DOYLE, J, concur.