text:
    CONSUMER PACKING CO., Plaintiff-Appellee, v. HATHMAN et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24091.
    Decided May 21, 1957.
    Allan L. Levine, for plaintiff-appellee.
    J. M. Costello, John J. Pilak, for defendants-appellants.
    (HUNSICKER, PJ, STEVENS and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By STEVENS, J.

This appeal on questions of law is from an order and judgment of the Municipal Court of Cleveland, refusing to vacate, on motion filed within term, a judgment in the amount of $266, taken by confession on a cognovit note.

The petition filed was a short form of petition, wherein it was alleged that there was “due plaintiff from defendants on a certain promissory note, together with a warrant of attorney, dated June 12, 1956, a copy of which, with all credits and indorsements thereon, is hereto attached, marked ‘Exhibit A’ and made a part of this petition, the sum of $266, which said plaintiff claims.” It is then alleged that “defendants have failed to pay said note according to its terms and conditions; by reason whereof this plaintiff elects to, and does hereby, declare the entire remaining unpaid balance, together with all accumulated interest, due and payable forthwith, demand having been duly made.”

The copy of the note, which is dated June 12, 1956. is as follows: I

“I promise to pay to the order of The Consumer Racking Company the sum of Eight Hundred Fifty-nine and 40/100 Dollars ($859.40) in 4 consecutive monthly installments of $82.30, followed by 20 payments of $30.51, the first installment payable July 15, 1956, and the remaining ones at monthly intervals thereafter.”

Then followed the usual acceleration clause in case of default in the payments under the note, or the chattel mortgage which it secures, a provision for added interest on late payments, and a warrant of attorney to confess judgment after default. To the note was attached what was denominated “Schedule of obligations on note”:

Food order v $120.00 '

v Delivery ' 18.00

Pickup of freezer 18.00

Depreciation 50.00

Salesman’s Commission 60.00

$266.00

When the judgment for $266 on the note had been confessed and entered on August 16, 1956, an amended motion to vacate the judgment was filed on November 6, 1956, for the reasons set forth in the affidavit attached thereto. That affidavit alleged that the signatures of defendants on the promissory note of June 12, 1958, “were procured by fraudulent misrepresentations made to them by an agent of the Consumer Packing Company, while acting within the scope of his employment,” and that said agent “represented to defendants that he was soliciting their order for food; that each order would cost deponents $120; that included in this order of food, the agent of Consumer Packing Company, while acting within the scope of his employment, fraudulently stated that his principal would supply them a freezer on a rental basis to keep the food in; that the $120 paid for the food also included the rental charge for the use of the freezer; that the agent of Consumer Packing Company, while acting within the scope of his employment, fraudulently represented to deponents that in no event were they buying a freezer; that it was represented to deponents that, as the food was used up, they could place further food orders on the basis of $120 per order; that these subsequent orders of food and the charge of $120 therefor did also include the rental charge for the freezer.”

The deponents further stated that “said representations were false and known by the plaintiff to be false, and were made by the agent and salesman of the plaintiff with the intent to deceive the defendants and cause them to sign a promissory note and chattel mortgage in blank; that the agent and salesman of the plaintiff did not at the time of signing these documents tell the defendants they were signing a chattel mortgage and promissory note; that, in reliance upon the representations of the agent and salesman of the plaintiff, the defendants did sign some papers handed to them by the agent and salesman of the plaintiff, and that the defendants realized when they received a payment book from the Erie Finance Company that they had signed a promissory note and chattel mortgage for the sale of an eighteen cubic ¡foot freezer in the total amount of $859.40; that, during the latter part ¡of June, the defendants received delivery of an eighteen cubic foot freezer, and, approximately two weeks later, defendants received delivery of the food; that on or about the 24th day of July, 1956, said freezer was taken from deponents’ possession; that deponents do believe that this freezer has been sold by the plaintiff; that deponents further say that they have never received any notice of such sale of said freezer by the plaintiff.”

For the above reasons, the deponents requested that the court “vacate the judgment herein made and allow them an opportunity to answer more fully herein.”

The testimony taken upon the hearing of the motion to vacate was in accord with the allegations contained in the affidavit supporting the motion. This being a motion to vacate filed within the term in which the judgment was entered (§1901.27 R. C.), and not after term, the Supreme Court has stated the following as regulatory of such situations:

“1. A court of general jurisdiction, such as the common pleas court, has control of its own orders and judgments during the term at which they are rendered, which control may be exercised, within the sphere of sound discretion, as an inherent right founded upon common law.
“2. The procedure announced in Chapter 6, Division 4, Title IV, Part Third, of the General Code, entitled ‘Other relief after judgment,’ relates to the vacation and modification of judgments by the court, after the term at which they were made, and does not limit a court of general jurisdiction in the exercise of its control over its judgments during the term.”

First Nat’l Bank v. Smith, 102 Oh St 120.

While the Municipal Court of Cleveland is not a court of general jurisdiction, the second paragraph of §1901.21 R. C., provides, with reference to the Municipal Court:

“In any civil case or proceeding if no special provision is made in §§1981.01 to 1901.38, inclusive, IS. C., the practice and procedure shall be the same as in courts of common pleas.”

Applying the above rules to the instant case, it is apparent that the Municipal Court of Cleveland has the same rights and responsibilities with reference to the vacation of its judgments within the term at which they are entered as are possessed by the Court of Common Pleas.

The affidavits supporting the motion of defendants to vacate the judgment by confession herein sets forth a claim of fraud, which, if taken as true, as required of the trial court, as a matter of law necessitated a vacation of the judgment herein, and the refusal of the trial court to vacate said judgment constituted an abuse of discretion. Rabb v. Kayline Co., 4 Abs 703.

The judgment herein will be reversed because contrary to law, and the cause remanded to the Municipal Court of Cleveland with instructions to sustain defendants’ motion to vacate the judgment herein, and for further proceedings according to law.

Judgment reversed, and cause remanded with instructions.

HUNSICKER, PJ, DOYLE, J, concur.


source: Caselaw Access Project

author: By SKEEL, PJ.

license: Public Domain

text:
    RAINBOW STONE COMPANY, Plaintiff-Appellee, v. TEN COLOR STONE COMPANY, Defendant-Appellees and GLINIAK, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24059.
    Decided March 15, 1957.
    Ford, Clarke, Howland & Wegman, for defendant-appellee Michael Sepic.
    Friedman & I-Ieilman, for defendant-appellant Andrew Gliniak.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from an order of the Common Pleas Court confirming a report of a referee in a special proceeding in aid of execution. The appellant seeks a reversal of this order of the trial court in said proceeding whereby the judgment debtor’s (appellant herein) debtor (the garnishee) was ordered to pay $160.00 into court to apply on the judgment which amount the court found to be the indebtedness of the garnishee to the appellant.

A judgment was taken by The Rainbow Stone Company against The Ten Color Stone Co., John W. Diczhazy, Michael Sepic, Steven Evanczuk and Andrew Gliniak, in the Common Pleas Court of Carroll County for $14,967.84 with interest at 8% from February 19, 1954. A certificate of judgment was filed in Cuyahoga County under the provisions of §2329.02 R. C. Thereafter this judgment was assigned by the plaintiff to Michael Sepic, one of the defendants, on March 19, 1956. and a record of such assignment was properly recorded on the judgment lien docket of Cuyahoga County. Thereafter, an execution against the judgment debtors was issued and returned “no funds found.” Upon the return of the execution, an affidavit in aid of execution was filed seeking to subject the indebtedness of Joseph Paluck, dba Weather King Co., to defendant Andrew Gliniak. Upon hearing before a referee, it was determined and the court affirmed the report, that the garnishee was indebted to Andrew Gliniak in the sum of $160.00, which amount the garnishee was ordered to pay into court on the judgment indebtedness of Andrew Gliniak and his co-defendants.

The undisputed facts are that Michael Sepic, a co-defendant and co-maker of the note upon which judgment was taken against the appellant and other defendants, including Michael Sepic, in the action in Carroll County, is now seeking, on the strength of an assignment to him by the plaintiff, and in the same action by this special proceeding, to enforce the payment of the judgment against Andrew Gliniak, a co-defendant and judgment debtor with Michael Sepic.

Upon trial of the issue against the co-makers of a promissory note, one of the defendants who attempts to become the owner of such judgment by payment, or otherwise, to the plaintiff in the action in settlement of the judgment, attempts to take an assignment of the judgment to himself as a co-judgment debtor, cannot seek to enforce payment of such judgment against his co-judgment debtors on the theory of subro-gation. The payment of a judgment by one of several of the judgment debtors in the action is a satisfaction of the judgment and if there be a right to contribution from any of the remaining judgment debtors, such right must be sought in a new action. The trial of the issues between the plaintiff and co-defendants does not settle the relationship between the defendants and the responsibility to each other for the debt due the judgment creditor.

The legal remedy to be applied under these circumstances is the same as that between joint makers of a promissory note where one of such joint makers pays the obligation. He cannot bring an action on the note against his co-makers because the note is endorsed to him. The right of contribution is not based on the obligations of the note but can be determined if suit is necessary only by a separate action.

In 10 Corpus Juris Secundum page 986, paragraph 449(b), it is stated:

“Because payment by one joint maker discharges the instrument, as is stated supra in subdivision (2) (a) of this section, the joint maker who makes, the payment cannot sue his co-makers on the note, on assignment or indorsement of it to him by the payee not resuscitating it or vitalizing it in his hands as against his comaker. The remedy of the maker making the payment in such case is to sue for contribution. * * *”

In 49 Corpus Juris Secundum, page 1025, paragraph 555 (a), it is stated:

“Payment of a judgment by one of two or more joint defendants usually operates as a satisfaction and extinguishment of the judgment as to all, regardless of the intention of the parties to the transaction, * * * and there are authorities holding that the rule applies to judgments on negotiable paper.”

See also Cauble v. Cauble, 283 S. W. 914.

In 49 Corpus Juris Secundum, page 1023, paragraph 555 (b), it is also stated:

“As a general rule, in the absence of a statute to the contrary, it is not competent for one of the joint defendants on paying the judgment to take an assignment of it to himself, or, * * to a third person for his benefit, so as to wield it against his co-defendant, * *

For the foregoing reasons, the order of the Common Pleas Court is reversed and final judgment entered on the order appealed from.

PITJRD and KOVACHY, JJ, concur.


author: Ey HUNSICKER, J.

text:
    STATE, Appellee, v. ZUMPANO, Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4573.
    Decided January 25, 1956.

      Buckingham, Doolittle & Burroughs, for appellee.
    Ernest R. Genovese, John McCulloch, for appellant.
   OPINION

Ey HUNSICKER, J.

This is an appeal on questions of law from a judgment of guilty rendered by the Municipal Court of Barberton, Ohio, for the violation of a zoning regulation of Norton Township, Summit County, Ohio.

Rudy Zumpano, the appellant, lives on Dutt Road, Norton Township. Immediately south of the home is the home of Harold Scritchfleld. There is a common boundary line between these neighbors 650 feet in length.

The Zumpano home is an attractive ranch type home on well-kept grounds. The Scritchfleld home is built 40 feet to the south of the Zumpano home and is set back a distance of approximately 25 feet further from the road than the Zumpano house. The Scritchfleld house, a two-story structure, is not as attractive as the Zumpano house.

The testimony of the witnesses for the State of Ohio was to the effect that the Scritchfleld home and grounds around were not well kept, had several oil drums and a pile of lumber in the rear yard, and an unfinished excavation in the front yard, at the time Zumpano constructed the fence which is the cause of this action.

Zumpano, who presented no evidence at the trial, constructed a fence along his south line. This fence extended 250 feet, and varied in height from 3 feet at the front of his lot, to 8 feet along that portion ad;acent to the Scritchfleld home. This fence cut off the Scritchfleld view to the north, and of course prevented Zumpano from looking to the south.

It is admitted that Norton Township has a zoning regulation, and that the section dealing with this fence is Article 6, Section 6.5, which reads as follows:

‘•Unnecessary structures, including a fence, the apparent purpose of which is to annoy or damage the owner of adjacent property is hereby prohibited as an accessory use.”

An affidavit charging Zumpano with a violation of this section was filed, a warrant was issued, and Zumpano arrested. Counsel for Zumpano filed a demurrer to the affidavit on the grounds that:

“First: ' * * the same fails to charge any offense against any valid zoning resolution of Norton Township or any law of the State of Ohio.
“Second: * * * Article 6, Section 6.5, of the Norton Township Zoning Resolution is null and void and beyond the power of the township trustees of Norton Township to enact.”

The court overruled this demurrer. A trial was then had, and the court found Zumpano guilty.

The judgment assessed a fine of $500 and the costs of the action. Four hundred and seventy-five dollars of the fine was suspended upon the condition that Zumpano remove the fence.

It is from this judgment and the order overruling the demurrer that the case is before this court for review. The appellant, Zumpano, says the trial court erred in overruling the demurrer and the finding of the court was manifestly against the weight of the evidence.

The statutes which provide for township zoning regulations are found in Chapter 519 R. C. The specific section which grants the power is §519.02 R. C., and it reads as follows:

“The board of township trustees may regulate by resolution the location, height, bulk, number of stories, and size of buildings and other structures, including tents, cabins, and trailer coaches, percentages of lot areas which may be occupied, set back building lines, sizes of yards, courts, and other open spaces, the density of population, the uses of buildings and other structures including tents, cabins, and trailer coaches, and the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of such township, and for such purposes may divide all or any part of the unincorporated territory of the township into districts or zones of such number, shape, and area as the board determines. All such regulations shall be uniform for each class or kind of building or other structure or use throughout any district or zone, but the regulations in one district or zone may differ from those in other districts or zones.”

It is to be noted that the word "fence” is not included in the statute. This court, however, believes that the word “structure,” as used in this section, contemplates and includes a fence. The section of the zoning resolution under consideration herein does not prohibit the erection of a fence. It does prohibit one that is unnecessary, having as its apparent purpose annoyance or damage to an owner of adjacent property.

We should examine the zoning section herein (Article 6, Section 6.5) in the light of the authority granted to a township to enact zoning resolutions. When we analyze §519.62 R. C., we find that the Board of township trustees of a township may regulate — that is, control, govern or direct — the following, with reference to “buildings or other structures”: (1) location — which means place or having position; (2) height — which means altitude or elevation; (3) bulk — which means dimension or size; (4) number of stories — which means the number of floors of a building, elevated one above another; (5) size — which means the measure or extent of its dimensions; (6) percentage of lot areas which may be occupied— which means the amount of land space that may be used; (7) set-back building lines — the distance from the street or adjoining building or structure that such building can be placed on the lot; (8) sizes of yards, courts and other open spaces — the dimensions of such spaces; (9) the density of population — the minimum living-quarter area that each person may occupy; (10) the use of buildings and other structures — which means the utility or enjoyment of such buildings and other structures, and the benefit to be derived therefrom; (11) the use of land for trade, industry, residence, recreation, or other purposes — which means the utility, benefit or enjoyment of such land for the purposes named.

Article 6, Section 6.5, of the Norton Township zoning resolution did not regulate — that is, control or govern — the place where the fence was built, the height, bulk or size of the fence, the percentage of lot area which the fence could occupy, the applicability of any set-back line, or the size of yard, court or other open space upon which the fence could be built.

Did it govern the “use,” as such term is employed in §519.02 R. C.?

Other definitions of the word “use” as a noun are, according to Webster’s New International Dictionary, Second Ed., “(1) Act of employing anything, or state of being employed; application; employment; as, the use of a pen * * “(7) Function; particular service; as, everything in nature seems to have its use.” “(11) Law. That enjoyment of property which consists in its employment, occupation, exercise, or practice * *

Thus we think it is clear that, by legislative enactment, the use to which a fence is put is a proper subject for control or regulation by the township electorate.

The fence, in the instant case, did not extend the entire length of the boundary line between these parties, it was not intended to enclose or exclude animals, keep persons from coming onto the property, or accomplish any other legitimate use so far as this record discloses. It may have been to shut out the unsightly condition of the Scritchfield property, to keep them from looking into the Zumpano house, to keep from hearing (as there is some testimony), or at least dim, the language used when Mrs. Scritchfield called her child.

Zumpano did not testify, and all we have is some statements on cross-examination that might allow these latter inferences.

Our next question must be directed, however, to the relation of Article 6, Section 6.5, of the township zoning resolution, to that part of §519.02 R. C., which says: “All such regulations shall be uniform for each class or kind of building or other structure or use throughout any district or zone, but the regulations in one district or zone may differ from those in other districts or zones.” (Emphasis ours.)

There is no uniform regulation, so far as a fence is concerned, in this section of the zoning resolution.

What is meant by the word “unnecessary” in such resolution? Who is to determine whether it is unnecessary: the neighbor, or the one who erected the fence? Who is to determine the “apparent purpose”? Who is to determine whether it “annoys” the next-door neighbor or the general public? Who determines whether it damages the next-door neighbor; that neighbor, or some other person? There is no standard by which any of these requirements can be determined before a fence is erected. There is no provision that says a fence shall not be built higher than X number of feet or closer to the front lot line than X distance. Such a regulation would have uniform application throughout the township.

One can easily imagine that, under the existing regulation (Article 6, Section 6.5), an allotment could have many fences, varying in height from a foot to ten feet or more, thus making such an allotment a most grotesque sight. Some neighbors would welcome high fences so that neither would be bothered with what went on next door, while still other neighbors would object to a high fence because it cut off their opportunity to see what the people next door were doing.

The writer of this opinion believes that under the circumstances herein an 8-foot fence is too high but the regulations should have so stated in order that there could be uniformity in the construction of fences throughout the township.

We realize that lands in the township are used for farming, for business, and for residences, and that the same size fence is not proper in each instance. The answer is plainly set out in the statute (§519.02 R. C.), for the “regulations shall be uniform for each class.” Thus there can be one size fence on the farm lands and another which separates houses.

Under the present regulation, uniformity is abandoned for a nonexistent system, whose enforcement is left to a next-door neighbor, a more-distant neighbor, or to a zoning official.

Thus the effect of Article 6, Section 6.5, is to place in the hands of persons other than the legislative body the power to control the height, location, length and type of construction of any fence built on the boundary line between adjoining homes.

“2. Generally, a law which confers discretion on an administrative officer or board without establishing standards for the guidance of the conferee is a delegation of legislative power and unconstitutional.” High School Board, etc., v. Board of Education, etc., 98 Oh Ap 429.

And see: Weber v. Board of Health, etc. et al., 148 Oh St 339; Northern Boiler Co. v. David et al., 157 Oh St 584.

We therefore determine that:

1. A fence is a “structure” within the terms of the statute granting authority for zoning by townships.

2. The phrase “the uses of buildings and other structures” contemplates the right of such zoning resolution adopted by a township to control the erection of fences.

3. The section here in dispute — Article 6, Section 6.5, of the Norton Township zoning resolution — does not establish a uniform regulation “for each class or kind of building” for the erection of fences within the township, as required by §519.02 R. C.

4. Article 6, Section 6.5, of the Norton Township zoning resolution is a delegation of legislative power to an administrative officer or to a citizen, and hence is unconstitutional and void.

For the foregoing reasons, the judgment in this cause is reversed, and final judgment is rendered in favor of the appellant, Zumpano. The appellee shall pay the costs herein.

Judgment reversed, and the defendant is discharged.

STEVENS, PJ, DOYLE, J, concur.


author: By McBRIDE, J.:

text:
    HENN et, Plaintiffs, v. UNIVERSAL ATLAS CEMENT COMPANY et, Defendants. BOARD OF TRUSTEES OF WAYNE TOWNSHIP et, Plaintiffs, v. UNIVERSAL ATLAS CEMENT COMPANY et, Defendants.
    Common Pleas Court, Montgomery County.
    Nos. 112209, 112210.
    Decided August 23, 1957.

      Mason Douglass, John P. Naas, John T. Shanks, for plaintiffs.
    Pickrel, Schaeffer & Ebeling, for defendant.
   OPINION

By McBRIDE, J.:

Two motions for temporary restraining orders requiring the defend-' H ant, Universal Atlas Cement Company, to cease quarrying in Wayne Township were submitted to the court on the evidence, arguments and lengthy briefs.

These cases are based upon two separate causes of action: first, by way of a request for a declaratory judgment the plaintiffs ask the question as to whether the defendant may proceed with quarrying of land prior to the election of November 5th, 1957; second, that the quarrying, if not illegal, is or will become a common law nuisance. The first issue raises the legal question as to whether the zoning plan has any effect during the interim period between its adoption by the trustees on July 22, 1957 and its approval or rejection by the voters on November 5th, 1957. The second issue raises the question of law and fact as to whether a common law nuisance exists, or should be enjoined because it may exist in the future. Since the plaintiffs request a temporary order it is essential that the rights alleged be sufficiently established at this time to justify a restraining order.

INTERIM ZONING IN LAW

“Before availing itself of the powers” (§519.03 R. C.), of regulating zoning the board of township trustees are required to follow a detailed initiating procedure before finally submitting the issue to the voters. Secs. 519.02 to 519.25 R. C.

Sec. 519.11 R. C., provides that

“. . . No zoning regulations shall be put into effect unless a majority of the votes cast on the issue is in favor of the proposed plan of zoning. Upon certification by the board of elections the resolution shall take immediate effect, if the plan was so approved.”

Township zoning has no effect unless the vote cast is in favor of the plan and even then the effective date is postponed until the official certification by the board of elections. There is no argument or authority that will support the effectiveness of initial township zoning resolutions by the trustees other than for the purpose of obtaining the will of the people. Until a favorable vote is cast and certified zoning resolutions are legally incomplete and unenforceable. There is no such thing as “interim zoning” by the trustees either by the adoption of the resolution of intent to proceed or by the adoption of a zoning plan for submission to the voters. We are not here concerned with the authority of municipalities under home rule powers to enact so called “stop gap” ordinances prior to zoning.

The reason behind the statutory conditions is obvious. Neither the township nor its trustees are invested with general powers of a corporation. The trustees can exercise only those powers conferred by statute, or such others as are necessarily implied from those granted in order to enable them to perform the duties imposed upon them. Trustees v. Minor, 26 Oh St 452.

Interim zoning would be retroactive and illegal in any event. The right of an owner to use and to continue to use his property in a lawful manner is protected by the constitutional provisions that no person shall bo deprived of life, liberty, or property without due process of law. City of Akvon v. Chapman, 168 Oh St 388. 52 O. O. 242; State v. Pierce, 164 CH St 482, 58 O. O. 325; State, ex rel. Fairmont Center, v. Arnold, 138 Oh St 259, 20 O. O. 330; Reilly v. Conti, 93 Oh Ap 188, 50 O. O. 415.

'ih.j legisla.ur.; has provided the method whereby the people express their decision respecting limitations upon the use of property. All yuii.it.ai povv^r is inherent in the people v/ho have reserved the right to aktr, reform, or even abolish their form of government. Article I, ii.cuon '¿. ünt-1 a majority of the people approve a zoning plan no owner may be deprived of his right to use his property. Efforts of public officials, citizens groups, or individuals to deny this constitutional right for any purpose must be examined with considerable caution. 21 Q. Jmr., 1®07.

Ihe plaintiffs argue in their reply brief that the use of the word “enactment” in §519.19 K. C., refers to the time of the adoption of the zoning plan by the board of trustees rather than the effective date of the plan as provided in §519.11 R. €., and therefore that non-conforming uses must be in existence before July 22, 1957, a date over ninety days prior to the submission to the electors. As previously indicated, such a cons-.ruction would be unconstitutional. It is competent for the legislature to enact a law the enforcement or execution of which is postponed until a favorable vote. After such vote the board of trustees acquire such authority as is granted by the statutes and thereafter the expression relied upon is operative and constitutional. It is a general rule of construction that courts must construe applicable statutes together and give to them an interpretation that is constitutional.

The court acknowledges receipt of a memorandum supplementing the reply brief of the plaintiffs. This memorandum is devoted exclusively to the effect of §519.19 R. C., which permits the lav/ful use of any land as existing and lawful at the time of “enactment” of a “zoning resolution” or amendment. The trustees did adopt, or enact “the zoning plan” by resolution in July and to this extent the local legislative effort was complete except for the approval of the voters, which event — when certified — determines the effective date or enforceability of the plan. The arguments of counsel are of first impression and as is so frequently the case in constitutional construction very finely drawn. Without repeating them at length at this time it is apparent that plaintiffs’ construction: (a) results in an effective date for §519.19 R. C., prior to the time expressly fixed by §519.11 R. C., for the zoning plan itself; and (b) fails to distinguish between the resolution adopting “the zoning plan” and directing submission to the voters and “zoning resolutions” under §519.02 R. C., which the board may enact in its operation after approval without further consent of the voters. The position of the sections in the chapter may be relied upon to support the distinction between the resolutions required to initiate the plan, which are separately described and controlled by §519.11 R. C., and the frequent, individual “zoning resolutions” after the plan is approved and in operation, which are expressly controlled by §519.19 R. C. Sec. 519.03 R. defines “a resolution declaring its INTENTION TO PROCEED” and §519.04 through §513.10 R. C., refer to the adoption of the specific “zoning plan” and the “adoption of THE zoning resolution” by the trustees. After the plan is in operation and in association with other operating provisions §519.19 R. C., refers generally to “a zoning resolution or amendment.” The statutes further distinguish the original legislative efforts of the trustees from their acts after the plan has been approved by use of the word adoption for the one and enactment for the other. The purpose and intent of the General Assembly is clear: 'the zoning plan has no effect until its approval is certified by the board of elections; individual operating resolutions and amendments subsequently adopted shall not disturb lawful uses existing at the time such additional resolutions are enacted.

The statute defines its terms when referring to three different kinds of resolutions. The plaintiff confuses these terms and avoids the limitations upon subject matter in the respective sections.

In any event, and assuming this court may be mistaken, the plaintiffs’ argument leads to either retroactive effects or to complete unconstitutionality, neither of which supports the relief requested.

Further, the argument is of such a nature that it should be passed upon on the merits or by appropriate action on the pleadings before any attempt is made to enforce it by way of preliminary action. If the plaintiffs have faith in their argument the rights were fixed last July and therefore defendants are not now creating potential non-conforming uses as alleged and argued, but are performing illegal acts which may be permanently enjoined only when the plan is legally enforceable. The court reaches this unique conclusion only as a result of accepting the plaintiffs’ theory.

On the question proposed in the action for declaratory judgment it is the conclusion of the court that the township trustees do not have the authority to regulate or enforce zoning until a favorable vote on the plan is certified by the board of elections.

INTERIM ZONING IN EQUITY

Counsel for the plaintiffs conceded in argument that the trustees are unable at this time to enforce the zoning plan and appealed to this court in equity to deprive the defendants of their constitutional rights because the defendants are currently establishing uses which will not conform to the plan when and if zoning is approved.

The situation in Wayne Township is accurately described by counsel as a race. This race is between two factions to restrict or to otherwise determine the future use of land either by zoning or by pre-existing uses. This township is in a political-economic contest encouraged by rejection of the first zoning resolution and precipitated by submission to the voters of the second resolution. The proponents of zoning seek to enjoin a present use before the zoning resolution is approved. The defendants assert their constitutional rights to lawfully use property and determine its future use within existing law. Allowance of a temporary order would be a deciding factor in determining this phase of a question which by law is reserved to the people. This court is in effect requested to determine such issue if only for an interim period by giving prospective effect to an unenforceable law.

The trustees and proponents of zoning seek by judicial intervention to restrain the defendants from exercising present legal rights until zoning is approved and until the owners lose the opportunity to establish uses which will be denied them if zoning is approved. The plaintiffs seek to remove the defendants as a factor in this race by the use of a temporary order which is discretionary with the court.

In such a contest the proper function of the court is limited. It is the duty of the court to insure the integrity of a fair election. It is equally the duty of the court to guarantee all individual rights. The court may never lend its power to favor either side of a zoning battle to predetermine rights or to enforce anticipated regulations contrary to existing law. A similar although extreme example would exist if public officials sought the authority of the court to spend tax money before the voters approved a tax levy.

Under the circumstances existing in. this case a temporary order would not insure a free election but would disturb the status quo and the existing balance of individual rights and permanently injure one faction by disqualifying it from the current economic and political race. To thus disturb the status quo as it exists with its accompanying constitutional rights would be serious error. To interfere in the conduct and normal effect of the election or to advance the statutory date of the adoption of the, resolution, if it be adopted, would violate the fundamental concept of government which requires courts to abstain from legislative, executive, and political functions.

What may be beneficial or detrimental to good community planning is a political, not a justiciable issue. The benefits of zoning must be won at the polls, not in the courtroom. They cannot be gained by judicial fiat without a serious abuse of judicial discretion. It is equally true that if the voters made a mistake in defeating zoning the court may not rescue them from the consequences, irrespective of the personal opinions of the court.

It is the conclusion of the court that equity may not temporarily stay the creation of uses even though such uses will be non-conforming in event zoning is subsequently approved at the township election. It is elementary that equity respects the law and unhesitatingly follows the constitution.

NUISANCE

The second cause of action is based upon a common law nuisance. The pleadings on their face indicate that many of the complaints do not now in fact exist but are merely anticipated. The future time is repeated ten times in one petition and still more frequently in the second. The plaintiffs allege that defendant’s operation of a quarry or quarries will affect and will constitute a nuisance. The plaintiffs have also combined in the pleadings arguments on behalf of zoning as well as evils anticipated in event the business is not properly conducted. The testimony is equally intermingled with the apprehensions, fears, and opinions of the witnesses with respect to the future general welfare of the community.

It is true that the welfare of a community is one of the conditions which a court may consider in determining whether a specific activity is a nuisance under the individual circumstances. However general welfare is an extensive field in which all three functions of government participate, guided by the directions of the people themselves. Each function of government must consider and apply the general welfare doctrine within its own respective limitations.

This court has frequently considered the subject of nuisance. State v. Grillot, 71 Abs 170, 128 N. E. 2d 552, 71 Abs 329. Only recently it enjoined a nuisance which settled within a small residential community in an unincorporated area of the county. Dale v. Bryant, 75 Abs 401, 141 N. E. 2d 504. In the instant case the activity has moved into an agricultural area, not into a residential community. The petition admits that the area involved is an agricultural community Nuisance is a relative matter and what may be legally objectionable in one location is not in another. All that can be required of men who engage in lawful business is that they shall regard the fitness of locality. In the residence sections of a city, business of no kind is desirable or welcome. On the other hand one who becomes a resident of a trading or manufacturing neighborhood, or who remains while in the march of events a residence district gradually changes its complexion, should be held bound to submit to the ordinary annoyances, discomforts, and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood. This court is unable to improve this expression of the Supreme Court in Eller v. Koehler, 68 Oh St 56, 67 N. E. 91. The significance of the relative balance of the use of property is demonstrated in Adams v. Snouffer, 88 Oh Ap 79, 44 O. O. 17, a case involving a quarry in Franklin County in which Judge Hornbeck stated that explosions of over a thousand pounds of dynamite at a single time would be a nuisance in an exclusive, residential area for a distance of 2,745 feet. In the instant case the business is in an agricultural area and therefore the only land suitable and available for such a business and the only area wherein the annoyances and discomforts of a quarry would affect the least number of people. The future contemplated use of land in this area by others than the owners is not a proper consideration to support a denial of a present use. Similar future considerations were recently held not to justify the authority to condemn the land of another. In addition the amount of dynamite used in the Adams case exceeded many times the quantity used in the instant case. The holes drilled for placing the dynamite exceeded in depth the complete strata of limestone which the defendants intend to remove in Wayne Township. The Adams case does not support the issuance of any restraining order in the present situation. Adams v. Snouffer, supra.

The plaintiffs argue that the four blasts were only small tests to be used in court to show that blasting will not cause injury or damage, but that if unrestrained the defendant will use constantly increasing amounts of dynamite. This argument demonstrates how effectively the fears and apprehensions for the future are blended into the petition and testimony without immediate justification. If and when blasting or any ether element of a nuisance becomes improper under the individual circumstances a court of equity may either restrain or regulate the conduct of such business. In Dale v. Bryant, supra, this member of the court stated:

“The defendants argue that a necessity exists in this county for the disposal of an increasing volume of automobiles; that the court should impose regulations which would answer the need and protect the plain-1 tiffs as was done in the case of public garbage and refuse. The power! of a court to enjoin or modify common law nuisances which interfere with the rights of others is inherent in a court of general jurisdiction. This equitable power to impose conditions for modification, rather than abatement, of individual nuisances should not be confused with the primary legislative right to regulate on the same subject. Courts may modify a common law nuisance where modification is adequate to eliminate the nuisance or where a clear and immediate public necessity requires a compromise between conflicting individual rights.”

The pleadings and the evidence indicate an absolute objection to a quarry per se and an anticipation of a nuisance, irrespective of location or care in operation. However counsel for the plaintiffs conceded in argument that a quarry is not a nuisance per se.

The only direct testimony of nuisance is that there were four blasts, some but not all of which were heard in nearby farm houses. Slight vibrations were felt, particularly nearby on the fourth blast, to the extent that one or more dishes vibrated. Otherwise there is no substantial evidence of the customary conditions associated with a common law nuisance.

Plaintiffs rely upon the assumption that this admittedly lawful business will not be conducted properly and therefore will in the future become a nuisance. Negligence, or a failure to properly operate a lawful business, which is not per se a nuisance, is never presumed, but must be eslablished as a fact. The testimony which the court may consider on this issue was insufficient when the defendant moved to dismiss, however the court required the defendant to proceed because of the gravity of the two issues.

The record is full of fears and misapprehensions with respect to the water supply in the township however the plaintiffs did not support such conclusions. The evidence supports the legal presumption that the underground water used in that area is percolating in nature and does not orginate in a subterranean stream, except possibly one large spring, the origin of which is scientifically unknown. In addition the material to be disturbed or removed is not sufficiently deep or impervious to constitute an underground reservoir of water. The limestone serves as a filtering media with an affinity for water however this condition does not deprive an owner of his right to remove such material nor is there any justification in the record for concluding that its removal will be injurious to the wells in the area.

It is the conclusion of the court that the operation of a quarry in an unzoned area used exclusively for agricultural purposes is not a nuisance even though slight vibrations which cause no damage are recognized in a few nearby farm houses. The evidence in this case regarding a nuisance does not justify the issuance of a temporary order. The equitable balance of convenience and injury requires that the constitutional right of property prevail over the possibility of a potential nuisance or inconvenience in an agricultural area.

The request for a restraining order in each case is denied.


author: Per CURIAM.

text:
    ROBINSON, Appellant, v. GREYHOUND CORPORATION, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 13120.
    Decided June 17, 1957.
    Morris J. Britz, Toledo (Harland M. Britz, Toledo, on the brief), for appellant.
    Andrew E. Anderson, Toledo (Doyle, Lewis & Warner, Toledo, of counsel), for appellee.
    Before McALLISTER and STEWART, Circuit Judges, and STARR, District Judge.
   OPINION

Per CURIAM.

This appeal involves a narrow question of Ohio law. Appellant was injured in a collision with the appellee’s vehicle on October 23, 1054. On October 5, 1950, he filed a petition in the Common Pleas Court of Lucas County, Ohio, asking a judgment of $10,000 for personal injuries and property damage. A praecipe was filed with the clerk, which, contrary to a provision of the Ohio statute, failed to specify the amount for which judgment was asked. Sec. 2763.02 R. C. Pursuant to this praecipe the clerk issued a summons which was served by the sheriff upon the appellee’s statutory agent on October 9, 1956. The summons also failed to state the amount of damages asked, contrary to the relevant Ohio statute. Sec. 2703.63 R. C. However, pursuant to a rule of the Lucas County court the summons was accompanied by a copy of the petition, which, of course, did contain a prayer for damages of forty thousand dollars.

In Ohio personal injury actions must be brought within two years after the cause thereof arose. Sec. 2305.10 R. C. For purposes of thfl statute of limitations, an action is commenced “at the date of the sumH mons which is served” on the defendant. Sec. 2305.17 R. C. On Octobefl 24, 1956, two years and one day after the cause of action had accrued, thtH appellee removed the case to the federal district court. There the appellefB filed a motion to quash service because of defective summons and tcH dismiss the suit because the limitation period had elapsed before a valiqffl summons had been served. These motions were granted by the distneffl court. The question on this appeal is whether delivery of the summons* in question together with a copy of the petition constituted service suf-ffl ficient to commence the action within the statutory period. B

The Ohio Supreme Court has ruled that a default judgment cannotffl be rendered where the summons contained no endorsement of the amountffl claimed. Finckh v. Evers, 1874, 25 Oh St 82; Hamilton v. Miller, 1876* 31 Oh St 87. That, however, is a question quite different from the one presented here. An intermediate Ohio appellate court and an Ohio court of common pleas has held that service of a summons which did not carry an endorsement of the amount demanded did not operate as the commencement of an action within the meaning of the statute of limitations, but there was no showing in either of those cases that a copy of the petition had been served with the summons. Crabbe v. Hertzig, Oh Ap Tuscarawas County, 1946, 66 N. E. (2d), 659; Hart v. Columbus Buick Co., 72 Abs 98, Ohio Com. Pl. Madison County, 1955, 129 N. E. (2d), 414. We have been referred to no Ohio decision which has held that such a summons, when accompanied by a copy of the petition clearly stating 1 the amount demanded, was not sufficient to commence an action for purposes of the statute of limitations.

The obvious reason for requiring the summons to include the amount for which judgment is sought is to insure that the defendant is notified of his potential liability as soon as the summons is served upon him. That purpose was fully achieved in the present case. The Ohio Supreme Court has emphasized that procedural rules “are to be liberally construed, in order to promote their objects and assist the parties in obtaining substantive justice * * In re Wisner Guardianship, 1947, 148 Oh St 31, 35, 34 O. O. 558, 72 N. E. (2d) 751, 753. Such a construction of the statutory provision in question leads to the conclusion that under the circumstances here disclosed the present action was commenced in time. It is unnecessary therefore to consider the effect, if any, of the sixty-day grace period provided by the Ohio statute “when the party diligently endeavors to procure a service.” Sec. 2305.17 R. C.

The orders of the district court are set aside and the case remanded for further proceedings.


author: By GESSAMAN, J.

text:
    BENUA, Plaintiff, v. COLUMBUS (City), Defendant.
    Common Pleas Court, Franklin County.
    No. 193173.
    Decided August 21, 1957.
    Willis H. Liggett, for plaintiff.
    Russell Leach, City Atty., John W. E. Bowen, Chief Counsel, John C. Young, Asst. City Atty., for defendant.
   OPINION

By GESSAMAN, J.

This is an action for a declaratory judgment relative to the income tax ordinance of the City of Columbus, Ohio. It has been submitted to the court upon the pleadings, the evidence, certain stipulations and briefs.

Plaintiff is not a resident of the City of Columbus. He owns four parcels of real estate situated in Columbus and receives rent from tenants of each of the parcels. Three of the parcels are improved with buildings. Plaintiff objects to paying an income tax under the Columbus ordinance upon the rents received.

The petition herein was filed on August 10, 1955. At that time Section 2, 3 (b) of the ordinance provided as follows:

“See. 2. Imposition of Tax. To provide funds for the purposes oi general municipal operations, maintenance, new equipment and capital improvements of the City of Columbus, there be and is hereby levied a tax at the rate of one-half (%) of one (1) per centum per annum upon the following:
*****
“3 (b). On the net profits earned on and after January 1, 1953 of all unincorporated businesses, professions, or other activities conducted in the City of Columbus by nonresidents.”

In the same ordinance under “Definitions” we find the following:

“BUSINESS — An enterprise, activity, profession, or undertaking of any nature conducted for profit or ordinarily conducted for profit, whether by an individual, co-partnership, association, corporation, or any other entity.”
“NET PROFITS — The net gain from the operation of a business, profession, or enterprise, after provision for all costs and expenses incurred in the conduct thereof, either paid or accrued in accordance with the accounting system used, and without deduction of taxes based on income.”

Except for increasing the tax rate from one-half to one per centum and for some minor changes, the above provisions are still in effect.

Counsel for plaintiff contends that the ordinances are invalid because of the facts that the state has preempted the field by reason of real estate and other taxes. The Supreme Court of Ohio does not agree with this contention. In the case of Angell v. City of Toledo, 153 Oh St 179, we find the following in syllabus 2:

“The state has not pre-empted the field of income taxation authorized by Sections 8 and 9, Article XII, Ohio Constitution, and the General Assembly has not, under authority of Section 13, Article XVIII or Section 6, Article XIII, Ohio Constitution, passed any law limiting the power of municipal corporations to levy and collect income taxes."

The source of this syllabus is the language used by Judge Turner at pages 183 and 184 of the opinion:

“Therefore, until the General Assembly of Ohio has pre-empted the income tax field, a municipality, subject to such limitation as may be imposed by the General Assembly under Section 13. Article XVIII or Section 6, Article XIII, Ohio Constitution, may levy and collect an income tax. So that today, in the absence of legislation by the General Assembly providing for a uniform or graduated income tax and the required apportionment thereof and subject to Section 13, Article XVIII, and Section 6, Article XIII, Ohio Constitution, limiting the power of taxation, Ohio municipalities have the power to levy and collect an income tax.”

The General Assembly of Ohio still has not enacted a uniform or graduated income tax. Therefore, Ohio municipalities still “have the power to levy and collect an income tax.” Furthermore, a tax on income is not a tax upon the land that'produces it. New York, ex rel. Cohn v. Graves, 300 U. S. 308. At page 314 of the opinion, the court says:

“Neither analysis of the two types of taxes, nor consideration of the Biases upon which the power to impose them rests, supports the contention that a tax on income is a tax on the land which produces it. The Hncidence of a tax on income differs from that of a tax on property. H'Teither tax is dependent upon the possession by the taxpayer of the ;ubject of the other. His income may be taxed, although he owns no property, and his property may be taxed although it produces no income. The two taxes are measured by different standards, the one by the imount of income received over a period of time, the other by the value if the property at a particular date. Income is taxed but once; the same property may be taxed recurrently. The tax on each is predicated ipon different governmental benefits; the protection offered to the property in one state does not extend to the receipt and enjoyment of income from it in another.”

Counsel for the plaintiff also contends that part, if not all of plaintiff’s income is r.ot “earned” and therefore is not subject to the income tax. Counsel relies largely upon a decision of the Common Pleas Court of Philadelphia County, Pennsylvania in the case of Murray v. City of Philadelphia. The opinion in that court .has not been reported but we have been favored by counsel with a copy of the opinion of Judge Kun and special emphasis is laid upon the following language:

“Rents received by an owner of real estate, or profits on the sale thereof, on either basis alone cannot be considered as ‘earned’ income, taxable under the Ordinance, for the simple reason that rents or profits so received are not gain as a reward of labor or performance of some service in relation thereto. The distinction must be borne in mind between mere ownership of property and its normal incidents, such as collection of rents, making repairs, keeping it insured, the purchase and sale thereof for investment purposes which do nor. constitute a business, and the operation of real'estate by providing labor and service in connection therewith, such as elevator service, cleaning, janitor service and the like, which means to do business with the property. In the latter case rents received are in part, at least, for the labor and service given to the tenants, and in such case the rents are indivisible. Rents received from properties under the first category are not taxable under the Ordinance, but those received under the second category are.”

The Murrays started two law suits in the Common Pleas Court of Philadelphia County; one before and one after the amendment of the Philadelphia income ordinance on December 9, 1949. Both cases went to the Supreme Court of Pennsylvania. In the first case, known as Murray v. City of Philadelphia, 363 Pa. 524, 70 A (2), 647, the court held that even though the plaintiff (below) owned several buildings and collected rents therefrom but “rendered no labor or service in connection with their investment in real estate” they were not engaged in “business, professions or other activities” within the meaning of the ordinance. They base this in part upon their decision in the case of Breitlinger v City of Philadelphia, 363 Pa. 512, 70 A (2) 640, in which they held that such increase was not “earned.” The second of the cases carries the same style and is found in 364 Pa. 157, 71 A (2) 280. In this case the Supreme Court of Pennsylvania again held the ordinance unenforceable (it did not issue an injunction) apparently upon the ground that “Taxation of the income from real estate is taxation of the real estate whit produces the income.” (See page 287.) This is not in accord with tl decision of the Supreme Court of the United States in the Cohn cas supra, with the reasoning and conclusion of which, we agree.

In the first Murray case, the Supreme Court sustained the lowi court’s finding that—

“To be ‘earned’ and taxable, the net profits must result from son labor, management or supervision.”

In affirming, the Supreme Court again adopted the following defin tion of “earn:”

“* * * to gain, get, obtain, or acquire as the reward of labor or pei formance of some service.”

In narrowing its decision, it appears to us that that court overlookaj the fact that any labor or service which makes land usable calls for H reward which is “earned.” Furthermore, land which is apparently nc9 usable has a value and one who is willing to become a tenant of sucl land pays a rent. The rent, obviously is produced partially by the labe and management of the landlord in securing a tenant and by the tenar who uses the land to produce an income out of which the rent is paii The landlord’s business is leasing real estate, improved or unimprovei and his “net profits earned” flow from the rent which he receives an the collection of which he supervises. It would be an unusual piece c land which produced rent for the owner without any “labor, managemer or supervision” on the part of the latter.

Counsel for plaintiff also contends that “A reasonable return on th investment is not subject to the Columbus Income Tax.” (Plaintiff brief, page 17.) If that be true, then a reasonable return from all in vestments is free from taxation. The grocer, the druggist, the cobbler-everyone who is in business — would also be entitled to a reasonable re turn on his investment, tax free. If that were true, it would apply t all investments. We know of no such rule and none has been cited.

Counsel also contends that the ordinances are invalid. We sha not enlarge upon counsel’s discussion on this question. Suffice it t say that “Ohio municipalities have the power to levy and collect incom taxes * * *.” Angelí case supra. A tax upon the income from real estat is not a tax upon the real estate. Cohn case supra. There is nothin before the court upon which we could base any finding that the ordi nances either were improperly adopted or that they violate any constitu tional provision. Our conclusion is that the ordinances are valid.

Coming now to the declarations specifically requested in the amende, petition and based upon the above, the court finds (a) that the rent received by the plaintiff from real estate located within the City o Columbus, Ohio, are subject to the tax levied by the income tax ordi nances in question; (b) that said rents are not exempt from said ta: by reason of any pre-emption by the State of Ohio; (c) that said rent are not expressly exempt from said tax by any law or (d) the Constitu tion of Ohio and (e) said rents are not exempt from said tax by impli cation of any law of Ohio.