author: By BLYTHIN, J.

text:
    KLUTH v. ANDRUS, et al.
    Common Pleas Court, Cuyahoga County.
    No. 613782.
    Decided July 27, 1950.

      Neil W. McGill, Ralph L. Bailey, Cleveland, for plaintiff.
    George J. McMonagle, Emery C. Smith, Cleveland, for defendants.
    Harold H. Gorman, Cleveland, amicus curia.
   OPINION

By BLYTHIN, J.

This cause came to trial, and at the conclusion of the opening statements of counsel for the parties the plaintiff moved for a finding and judgment in his favor on the pleadings and opening statements. Defendant Martin F. Patton made a similar motion for a finding and judgment in his favor. Prior to June, 1949, the plaintiff Kluth and the defendant Patten were members of the Police Department of the city of Rocky River, each having the rank of Sergeant. It became necessax-y to appoint a Lieutenant in the Department and the Civil Service Commission issued notice of an examination to be held June 22, 1949, for promotion to the Lieutenancy and both Kluth and Patton entered that examination. It was divided into three parts or sections — Practical, Performance Record — Intelligence Test, each part or section to be given a weight of 33.1/3%. Each candidate was also entitled to a seniority credit. The Civil Service Commission graded the two candidates as follows:

Kluth Patton
100 Practical exam, questions 94
55.9 Intelligence Test Questions 65
89 Performance Test 75
244.9 TOTAL 234
81.6 1/3 of total 78
5.8 Seniority credit 8.2
87.4 Final Grades 86.2

The grades were certified by the Civil Service Commission to the appointing authority and as a result of such certification the authority promoted Kluth to the position of Lieutenant and he entered upon the duties of that office and performed them for a period beyond ninety days and there is no claim that his services were not fully satisfactory during the time that he was performing them, from August 16, 1949, to a date about March or April 1950. On October 31, 1949, Patton filed his action in this court (No. 608,225) against the Civil Service Commission of said city as a body and its members individually, against the city of Rocky River, its Mayor and its Director of Public Safety. He sought a writ of mandamus to compel the authorities to appoint him, Patton, to the Lieutenancy on the ground that the gradings of the candidates had not been correctly made .and recorded, and that if they had been correctly made and recorded he, Patton, would have been shown to have the higher grade and not Kluth, the appointee. He further claimed that the Performance Test given was without basis and that credits given on it were void and- illegal for the reason that the city of Rocky River had no performance records from which the two candidates could be rightfully graded. He, Patton, then prayed that if he be not found entitled to promotion on the basis of his claim, proper grading would show him first on the list, and prayed that the examination held and all proceedings resulting from it be held null and void and that the authorities be enjoined from paying any funds of the city as compensation to any person appointed to the office of Lieutenant pursuant to any certification on the basis of the examination so claimed to be illegal.

Hearing was held and this court, (Connell, J.) held that the Performance Test given was illegal and void and that the appointment of Kluth pursuant, to his certification on the basis of the grades recorded was contrary to law and null and void. The court then issued an order to vacate the appointment of Kluth and gave the Civil Service Commission its choice of one of two courses to follow:

(1) Make up the Civil Service eligible list for Lieutenant of Police of Rocky River, Ohio, and make appointment to the vacancy for the office of Lieutenant of Police therefrom as provided by law based upon the intelligence test, practical police questions and seniority rights as provided for in said examination of June 22, 1949, disregarding and excluding therefrom the so-called “performance records” as adduced in evidence, or

(2) Make up the eligible list and make appointment to the vacancy for the office of Lieutenant of Police of Rocky River, Ohio, therefrom as provided by law based upon the intelligence test, practical police questions, seniority rights as provided for in said examination of June 22, 1949, and a new competitive section of said examination as determined by the Respondent, Civil Service Commission of Rocky River, Ohio, which new section is to be advertised and conducted in conformity with the Civil Service Laws of Ohio.

This order was entered on February 13, 1950.

The Civil Service Commission selected plan No. 2, and called a new, partial, examination for March 27, 1950. By this time the personnel of the official family of the city had undergone quite a change. The city had a new mayor, a new director of public safety and two new members of the three-man civil service commission. The same two persons, Kluth and Patton, entered the examination, but Kluth did so under protest, having first communicated on March 22, 1950, to the Commission his protest and a claim of reservation of his rights in all respects.

The grades made by the candidates in that examination were recorded as follows:

Kluth Patton

Practical exam.

100 questions 94 (Original exam).

55.9 Intelligence Test 65

15 Service Record 15 (New exam.)

19.166 Memory Test 20.166

36 Observation Test 38

0 Target practice 0 ”

226.066 TOTAL 232.166 (Both exams.)

75.3553 1/3 of total 77.3887

5.8 Seniority credit 8.8 ”

81.1553 FINAL GRADES 86.1887

Kluth promptly protested and challenged some of the grading and reaffirmed his reservation of his rights as a promoted appointee under the original certification on the basis of the first examination. Whether his claims of grading errors in the second examination have merit is not for decision in any consideration of the motions now before the court. That issue will be for decision upon trial, if trial is had on the merits. Kluth now claims that on April 28, 1950, he was notified of the fact that the Commission rated Patton first on the new list and that the Director of Public Safety was about to appoint Patton to the Lieutenancy to which Kluth was appointed on the basis of the original certification, and which office he still claimed to be holding. Kluth then filed this action (May 2, 1950) seeking a temporary restraining order, which was granted, and seeking finally to enjoin the Director of Public Safety from ousting him or appointing Patton as Lieutenant of Police and seeking a mandatory injunction ordering the Civil Service Commission to withdraw its certification of Patton on the ground that there is no vacancy in the office and that the one-third examination held March 27, 1950, was illegal and void, and that an ouster of plaintiff, Kluth, would be a violation of his constitutional rights.

It is conceded, as it must be, that Kluth was not a party to cause No. 608,225 at any time, and it is clear that he actually served as Lieutenant of Police from the date of his appointment, August 16, 1949, to a date following February 13, 1950, when the order was entered in said Cause No. 608,225 and that his failure to serve since that date has been due to the conflicting claims of the parties and the pendency of this cause seeking to have them adjudicated.

Able counsel for the parties to this cause have been exceedingly generous in their opening statements, and submitted to the court for his information the files in said Cause No. 608,225, the tabulations of grades herein shown and the files in the Madden case, infra.

Two legal questions are presented on the motions for findings and judgments:

■ (1) May the plaintiff herein Kluth, attack the judgment in Cause No. 608,225 in this court, he admittedly not being a party thereto but what he claims to be his settled and vested rights being affected thereby?

(2) Under the state of facts presented, had Kluth, at the date of the entry in Cause No. 608,225, been so certified, appointed and served in the office of Lieutenant of Police in a manner and for such a period of time as to entitle him to hold such office unless and until removed in the manner prescribed in §486-17a GC?

Question I.

Are the findings of the court in Cause No. 608,225 res judicata as to Kluth?

It must not be overlooked that Kluth had been appointed a Lieutenant before causé No. 608,225 was filed on October 21, 1949. Patton, the relator in that cause alleged in his petition that he had been denied the privilege of seeing his examination papers, etc., “until after the list therefor was certified and the appointment made of another member of the Division of Police to the office of Lieutenant.” Before any action of any kind was instituted, Kluth was a regularly appointed Lieutenant with tenure in office and apparently subject to removal or demotion only as provided by §486-17a GC. He was not made a party to that action.

It is a well established principle that one’s vested, substantial or property rights cannot be adjudicated, and be binding on him personally, in his complete absence.

23 O. Jur. 836, Sec. 527.

“It is a fundamental principle of all rational systems of jurisprudence that one having no notice, either actual or constructive, of a judicial proceeding, should not be concluded by it. It has accordingly been declared to be elementary that in order that a judgment may be conclusive against a person, he, or one with whom he is in privity, must have had notice and an opportunity to be heard, because the opportunity to be heard is an essential requisite of due process of law in judicial proceedings. The general rule is applicable to judgments rendered upon constructive service in accordance with the statutes relative thereto.”

See Feuchter v. Keyl, 48 Oh St, 357, and Auglaize Box Board Co. v. Hinton, et al., 100 Oh St, 505.

See also Postal Tel. Cable Co. v. City of Newport, 247 U. S., 464.

In discussing the conclusive effect of a judgment the court said — Page 476,—

“The doctrine of res judicata rests at bottom upon the ground that the party to be affected, or some other with whom he is in privity, has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction. * * * The opportunity to be heard is an essential requisite of due process of law in judicial proceedings * * *. And as a State may not, consistently with the Fourteenth Amendment, enforce a judgment against a party named in the proceedings without a hearing or an opportunity to be heard * * *, so it cannot, without disregarding the requirement of due process, give a conclusive effect to a prior judgment against one who.is neither a party nor in privity with a party ’therein.”

Question II.

The answer to this question must be based solely on the provisions of law without regard to any rules of the Civil Service Commission. The code provides that the Commission shall or may enact rules covering procedures and details necessary to the proper conduct of its affairs and the performance of its duties but no specific rule is pleaded in this cause.

Three major steps are necessary to appointment or promotion to a position in the classified service of a governmental unit under the provisions of law governing that service. They are (a) One must enter a competitive examination and make the required grades, (b) One must be certified by the Civil Service Commission to the appointing authority as being eligible for appointment or promotion, (c) One must be so appointed or promoted by the appointing authority. Sec. 486-15 GC provides for the promotional examinations. When one has qualified and been appointed or promoted, he becomes entitled to a status under the provisions of §486-17a GC which section is as follows:

“The tenure of every officer, employe or subordinate in the classified service of the state, the counties, cities and city school districts, thereof, holding a position under the provisions of this act, shall be during good behavior and efficient service; but any such officer, employe or subordinate may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office.”

Long after the effective date of §486-17a GC there was enacted, effective July 28, 1943, §486-13 GC as now in effect, which, in its pertinent part, provides as follows:

“* * • All original and promotional appointments shall be for a probationary period of not to exceed three months to be fixed by the rules of the commission, and no appointment or promotion shall be deemed finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the appointing officer shall transmit to the commission a record of the employe’s service, and if such service is unsatisfactory, the employee may, with the approval of the commission be removed or reduced without restriction; but dismissal or reduction may be made during such period as is provided for in §§486 and 486-17a GC. * * *.”

On first view this would seem to add an item (d) to the major steps already mentioned,, but on careful analysis it would seem clear that such is not the case. Sec. 486-X7a GC is still the section which establishes tenure and the provision of §486-13 GC above quoted is merely a temporary, highly limited restriction of the right of tenure guaranteed by the provisions of §486-17a GC. It will be noted that the restriction of §486-13 GC has practically nothing to do with the Civil Service Commission or its chief function, nor with grades or certification; nor, indeed, with appointment. It is a safeguard to the public against having a person secure finally the rights vested in him by the provisions of §486-17a GC if it should develop that the good grading, the certification and appointment, whether original or promotional, have been conferred on one who in spite of every academic evidence to the contrary, is actually not able to satisfactorily perform the duties of the office which he is assuming. Judgment is vested in the appointing authority — the employe’s superior and the person generally responsible for the actual performance of the department under his control. The time is limited to a period not exceeding three months. The provisions of §486-13 GC are not to be exercised excepting in a. case of unsatisfactory service in the new position assumed,, and it may not be done without approval of the Commission. By its very terms it provides that the employe may be removed or reduced within the three months’ period in accordance with the provisions of §486 and §486-17a GC so that he-does have tenure from the day of appointment subject tc the one possibility of unsatisfactory service within the maximum three month probationary period. The court has no' difficulty whatever in determining that if any attack upon. Kluth’s position can succeed in this cause it would be equally effective after the probationary period is satisfactorily served as it would have been within that period. This is stated for the sole purpose of making clear the court’s views without suggestion that it can be decisive of any issue in this cause. Kluth was appointed and did serve a period of over three months. By reason of those two facts he now claims; to have tenure and not to be subject to removal or reduction: by anyone except under the provisions.of §486-17a GC.

Having expressed the view that the plaintiff herein, Kluth,. can attack the judgment in Cause No. 608-225 in this court, there remains'only the question of whether or not any orders in that cause, and their enforcement, violate his rights to‘ an extent that entitles him to relief at the hands of this; court in this cause. The effect of those orders, if made effective, would be to deprive the plaintiff herein, Kluth, of his Lieutenancy. He entered the examination, he was certified by the Civil Service Commission as being the high man;. he was appointed to the position of Lieutenant and entered upon his duties in that office.

The findings in said Cause 608,225 were to the effect that the Civil Service Commission had erred in one section of the examination. There was no finding of fraud on the part of any person or body; there was no finding, nor is it even claimed that Kluth had anything whatever to do with the error or the proceedings beyond his entering the examination. The error was found and declared in a proceeding to which he was not a party and if it is to be made effective against his rights he will merely be its victim.

Mention has been made herein of the Madden case, same being that of Michael J. Madden, Plaintiff v. Dan B. Cull, et al., as Commissioners, No. 526,546 in this court, and No. 19399 in the Court of Appeals of the Eighth District of Ohio (1943). It is not helpful on this branch of this case because the Madden case was instituted with a view to denying to the Civil Service Commission the right to certify an eligible list following an examination for positions in the Fire Department :in the city of Cleveland. No list was certified nor appointments made as a result of that examination. Error was found and the court made an order somewhat analogous to the order made in Cause No. 608,225 in this court. The entire matter was corrected immediately following the examination and before certification of any list.

The Supreme Court of Ohio has had before it the precise question here presented and this court must follow the law as pronounced by that court.

State ex rel., Byrd & Ex. Rel. Kosnagle v. Sherwood, Director of Dept. of Public Welfare, et al., 140 Oh St, 173, 23 O. O. 403, The syllabi of that case are as follows:

1. The removal of one regularly appointed to a position in the classified service from a list of persons whose names had been duly certified to the appointing officer in accordance with the provisions of §486-13 GC, and who had rendered satisfactory service for more than 90 days is governed by the provisions of §486-17a GC.

2. Though an incorrect certification of an eligible list from which appointments to positions in the classified service are to be made may be subsequently corrected, such change does not authorize the peremptory dismissal of an employee who prior thereto had been appointed pursuant to such certifica.tion and served satisfactorily longer than the probationary period.

The court will not lengthen this memorandum by a recital of the facts in that case. Suffice it to say that it is difficult to understand how they could be more alike in principle to the facts now before us than they actually are. It was found in that case that persons were certified for appointment who should not have been so certified, and they were appointed when in fact they should not have been appointed. The court, speaking through Matthias, J., says, at Page 178:

“The appointment of the relator and relatrix was regularly made by the respondents from the list of eligibles certified by the Civil Service Commission. This court has recently held that where a person on a competitive eligible list is duly certified by the Civil Service Commission to the head of the department for appointment to a position in such department and the appointment has been regularly made, it becomes effective from the date of the appointment. State ex rel., Hoornstra v. Atkinson, Admr., etc., 136 Oh St, 569, 17 O. O. 237.
“If the relator or relatrix had sponsored or participated in any violation of the civil service statutes, §486-17a GC provides a ready means for their removal from their positions. It does not appear in this case that either has even been charged with misconduct or with participation in the misconduct of another, either directly or indirectly, though they benefited from the questionable action of the representative of the respondents, or with having any connection whatever’ therewith, except to be made the innocent victim of such action.”

Again, page 180:

“An incorrect certification undoubtedly may be corrected, but this correction cannot be employed to remove employees who theretofore had been appointed pursuant to such certification and who, through satisfactory service for the required period, had acquired a status of members of the classified service of the state. Being in the classified service they may not be summarily dismissed.”

Again, page 181:

“If it be assumed that fraud would vitiate the original certification and warrant the recission of the appointment of any one selected from that list, it must be observed that no finding of fraud was announced, either by the Civil Service Commission or by the officers making the appointment.”

There is sound reason for the protective features, to the public as employer and to the employee, of the statutes governing the selection of civil servants and their security in their positions after appointment or promotion. The entire process of selection and promotion is aimed at securing to the public service citizens of competence, character and integrity and, in return, and as an inducement to such persons to enter the service at generally less pay than offered in a normal period by private sources, tenure in office is assured upon appointment and promotion.

The process leading to appointment and promotion is a ■deliberate one, involving many steps, covering, of necessity, ■days or weeks of time, and affording opportunity to assert ■claims, if any, or irregularities and errors along the way. .In the case of original appointment the public, by the statutory provisions, says to the applicant that if he can qualify all along the line and he is finally appointed he will be entitled to security in his employment or office during good behavior and may only be removed as provided in §486-TJa GC. In a case involving promotion the public says to the employee that he must qualify all along the line and he must subject himself to a final probationary period in the new office — not exceeding three months. If he is found ineffective within the three month period, he has not lost his tenure. The most that can happen to him is a finding that he should not be promoted.

If a point when security attaches were not provided there would, in fact, be no security. The statutes establish a ■definite policy and say, in effect, that upon appointment or promotion being reached (subject to probate in case of promotion) all details involved in the process leading to the appointment or promotion are left behind and are not to be reopened. Human agencies are not infallible and in matters and details such as are involved in the preliminaries leading to appointment or promotion to or within the public service, it is rather safe to say that there is never certainty that errors have not crept in. If there existed no bar to the claiming of errors no employee would have tenure. The case at bar is a classic example of what could happen. The plaintiff, Kluth, was promoted, and entered upon the performance of his duties and the enjoyment of his promoted status. Several months later he is informed that it has been found that some blundering developed in the giving of the examination to determine who should be promoted, and while it is not claimed that he was a party to it, or knew anything about it at all, and while he was certified and promoted in good faith, he, nevertheless, is not a Lieutenant any more.

If that same situation developed in the case of original appointment a person who supposed, and whom others supposed, was a public servant with tenure would find himself not to be a public servant at all. It must be clear that the law invites no such confusion or demoralizing situations and that its terms are carefully drawn to make impossible such situations. This court expresses no opinion on what would have been the effect of a discovery of fraud in the preliminary proceedings because there was no finding of fraud in Cause No. 608,225 and it does not appear that there has at any time been made a claim that Kluth was a party to any fraud or irregularity of any kind. On this point it is again proper to mention the statement at page 181 of State, ex rel., Byrd, et al., v. Sherwood, 140 Oh St., 173, 23 O. O. 403, supra.

Able counsel for Patton has urged upon the court some authorities cited in his brief, and which he claims support his contentions in this cause. They have been examined and found not to be similar in their facts, and therefore not to be decisive or particularly helpful. One or two of them will be mentioned to illustrate why the court does not deem them decisive or helpful. One or two of them will be mentioned to illustrate why the court does not deem them decisive or helpful.

O. Jur., Vol. 19, page 443:

“The rule is universally well settled that fraud is one of the grounds upon which equity will grant relief. Though fraud is ever assuming new forms equitable principles are so capable of valid applications as to be able to furnish relief against cheats of the newest inventions.”

There is no doubt whatever about the accuracy of that statement but as already stated no fraud was found or declared in Cause No. 608,225, in which Patton was the plaintiff and in which he could have proved it if fraud there was. There is not even a claim that Kluth was a party to either irregularity or error. If there was even a suspicion that he had been a party to any irregularity it is rather certain that he would have been made a party. We are not concerned with fraud here.

23 N. Y. S. (2nd) 150, 153:

“We think that the provisions of the rule of commission with respect to permanency and the Civil Service Law with respect to notice of changes apply only to those who have been legally appointed, and not to those who have secured appointment through fraud such as was practiced here.”

Again we have an actual finding of fraud by those interested. Not so in the case at bar.

Pape v. Kern, 27 N. Y. S. (2nd) 379, 381.

The court makes no comment on this case for the reason that the citation is not correct. The case of Pape v. Kern is not reported in 27 N. Y. S. (2d.)

Ptacek v. The People, etc., 194 Ill. 125:

This case involves the construction of involved statutes of the State of Illinois, as well as rules of the Civil Service Commission. The weakness of the complainant’s case was not based on mere error or irregular procedure, but on the fact that an examination under which he claimed rights was not even authorized by law. The situation had no similarity at all to the one in the case at bar.

Passing now from the citations of authorities in foreign jurisdictions, we come to those of our own state:

State ex rel., Kook v. Civil Service Commission, 26 Abs. 36:

The issue in that case was not the issue in the case at bar. A temporary or provisional appointment had been made to the police force. The statute provided that such an appointment might be made, but not for a period beyond ninety days. It definitely provided that upon such an appointment being-made the Civil Service Commission was to call for a competitive examination of candidates for the position. The Civil Service Commission did not call such an examination and the provisional appointee held over beyond the ninety day period when an attempt was made to have him removed. The court held that he could not now be removed because no person had stirred himself to have the requirements of law complied with within the ninety day period. The court, at page 38, used the language quoted by counsel as follows:

“My finding in regard to the law in that respect is that the Civil Service Commission or any interested citizen or applicant had a period of ninety days in which to come in and ask the Civil Service Commission to act, or on their own responsibility could have have acted within ninety days.”

No fraud was involved, but laches were involved. It should be made clear that the 90 day period in this case is NOT the 90 day period involved as the probationary period of Klu'th’s Lieutenancy. See §486-14 GC. The Kook case is very interesting as indicating that even a provisional appointment free from fraud can ripen into a permanent appointment.

State ex rel., Swartley v. Kalina, 46 Oh Ap 19:

This case seems far from supporting the contentions of Patton in the case at bar. Laches were involved, but it is a case in which it is clear that a person with inferior right was put to work over one having a priority. Having been dilatory in seeking his remedy, he was denied a remedy, and thereby lost his priority right.

State ex rel., v. Patterson, 93 Oh St, 25:

Counsel has quoted the last paragraph of the opinion — page 36 — and relies chiefly on this statement:

“Such an order, in many cases, may affect many persons. But it is certainly unnecessary to make such persons parties to the proceeding.”

That is undoubtedly true, and the cause in which the statement was made was very far indeed from the case at bar. Only public bodies were involved, and the action was one to compel one public body (the County Budget Commission) to perform its statutory duty relating to the adjustment of budget estimates of the various taxing authorities. It is claimed that each taxing authority should be made a party, and that failure to do so resulted in a defect of parties defendant. No vested or fixed rights of any person was involved. The court held that the Budget Commission was clothed with a discretion to exercise and that such discretion could not be controlled in any event and dismissed the petition on the ground that it did not state a cause of action. The court never reached the question of parties, but as a closing word mentioned what was claimed. It certainly did not assert that vested rights of an individual can be litigated to his injury in his absence.

Based upon what has here been indicated and stated, it follows that the motion of the plaintiff will be and it is hereby granted, and the motion of the defendant Martin P. Patton will be and it is hereby overruled. An order may be drawn herein finding that the defendant Martin P. Patton is without rights in the premises and that the plaintiff Richard Kluth became a duly appointed Lieutenant of Police of said city of Rocky River, Ohio, on August 16, 1949, and that he is entitled to hold said office subject only to dismissal or demotion under the provisions of §486-17a GC, and restraining all other defendants herein from interfering with him in his enjoyment of said office excepting under the provisions of law.

No order will be made herein against any of the defendants other than as already indicated, for the reason that under the holding in 140 Oh St, 173, 23 O. O. 403, infra, the city officials may correct their records and ratings without affecting the rights of plaintiff, and they will undoubtedly do so. Exception will be noted and amount of bond for appeal may be agreed upon by counsel and made a part of the entry herein.


source: Caselaw Access Project

author: By MILLER, Jr., CJ.

license: Public Domain

text:
    BARRETT v. BARRETT et.
    United States District Court Northern District of Ohio, Eastern Division.
    Civ. No. 26037.
    Decided May 3, 1950.
    Paul P. Sogg, Cleveland, for plaintiff.
    Ellis R. Diehm, Cleveland, for defendants.
   OPINION

By MILLER, Jr., CJ.

The plaintiff, John B. Barrett, brought this action in equity against his former wife, Delphine S. Barrett as defendant, and her brother, John J. Sullivan as co-defendant, for a disclosure of the contents of a safety deposit box taken by Delphine S. Barrett on September 30, 1946, which the plaintiff claims was his property, for an accounting of the property so taken, and for a return to the plaintiff of property alleged by him to have been so appropriated without authority. The defendant, Delphine S. Barrett, by her answer claims that she returned to the plaintiff the personal property in the safety deposit box which belonged to him; that the remainder of the personal property so taken belonged to her by virtue of a gift from the plaintiff to her; that $7,700 of it had been used to purchase a home and household furnishings for the use of herself and her three children; that although the title to the real estate so purchased had been taken in the name of the co-defendant John J. Sullivan, the beneficial interest to the same belonged to her and the children; and that the plaintiff has no valid claim to the property so taken from the safety deposit box and not already returned to the plaintiff. The defendant also claimed that on October 4, 1945 the plaintiff compelled her to withdraw from her individual bank account and turn over to him approximately $1,230.92, which was her individual property, for which amount she sought judgment against the plaintiff. The action was treated by the District Court as an equitable one with the result that defendant’s request for a jury trial was overruled and the case was heard by the court without a jury. Defendant waived trial by jury on her cross-claim against the plaintiff. The court finds the facts and conclusions of law applicable thereto as follows:

The plaintiff and the defendant were married on July 6, 1935 and thereafter made their home in New Castle, Pennsylvania. They separated on September 29, 1946, following which the wife moved to Cleveland, Ohio. She obtained a divorce from the plaintiff in Pennsylvania on January 17, 1947. Their three children, approximately 11, 9 and 5 years of age at the time of the trial, lived with the mother. Plaintiff filed his action on November 22, 1948, at which time he was a citizen of Pennsylvania, and the defendants were citizens of Ohio. The amount in controversy is more than $3,000 exclusive of interest and costs.

The plaintiff was and is a successful doctor in New Castle, Pennsylvania. He entered the armed services on or about September 19, 1942 and thereafter until September 1945 was continuously away from home in New York, San Francisco and on the high seas. He executed and delivered to his wife a Power of Attorney to handle his affairs during his absence. On September 24, 1942, the wife leased from the Union Trust Company of New Castle, Pennsylvania, a safety deposit box in her name with right of access thereto in the husband upon qualifying by signing the contract, which, however, was never done by him. On May 14, 1946, a new contract for the same safety deposit box was executed in their joint names, and thereafter both parties had access thereto.

In September 1942, the plaintiff purchased $5,000 of Government bonds and placed them in his own name, $5,000 of Government bonds which he placed in the name of his daughter Delphine, and $5,000 worth of Government bonds in the name of his son Michael. The bonds were placed in the safety deposit box. The ownership of these bonds is not in dispute, and the bonds in the name of the plaintiff are in his possession.

In December 1942, the wife purchased, with available funds of the husband, $5,000 of Government bonds, issued to Bearer, which were placed in the safety deposit box.

In June 1945, while the husband was in San Francisco, the wife decided there should be a change in one of the husband’s previous investments. She wrote him to that effect and he replied by agreeing and telling her to do as she saw fit in the matter. She sold the investment and used the proceeds, to which she added about $25, in purchasing four $1,000 and eight $100 Government bonds issued in the name of the husband “or” wife. She placed them in the safety deposit box.

The wife also at another time purchased three $100 Government bonds which she had issued in the name of the husband “or” wife and placed them in the safety deposit box.

In June 1946, the husband purchased $5,000 of Government bonds which he had issued in the name of the husband “or” wife. In turning them over to his wife, he told her that since she did not want a fur coat or an automobile she could have the bonds instead and do what she wanted with them. They were placed in the safety deposit box.

There was also placed in the safety deposit box some Government bonds in the name of the children, some insurance policies of the children, and other miscellaneous papers.

There was also in the home of the couple a strong box in which was kept miscellaneous cash. At the time of the separation, there was approximately $300 in cash in this box which the wife took with her.

The wife had no independent source of income. She gave assistance to her husband in the performance of his professional duties by answering the phone at their home and taking care of calls to him when he was absent from the home. All of the bonds above referred t® were purchased with money earned by the husband. The bonds purchased in the joint names of husband “or” wife were not interest-coupon bonds, but were bonds purchased at a discount from their maturity face value. While the husband was in the Army approximately two-thirds of his monthly pay was sent by the Government to the wife, who used so much of it as was necessary for the support and maintenance of herself and the children. The wife kept the husband fully advised of the transactions which she handled during his absence.

The defendant had a savings account in the First National Bank of Lawrence County, opened on October 14, 1935. It contained $975 when the plaintiff entered the Army. During his absence she deposited a refund of $537.87 which was obtained through an overpayment of income tax by the husband, and some small collections which she made of outstanding accounts owed to the husband. She withdrew $450 during his absence. After the husband’s return to civil life, he told her that he needed the money to buy a new car for use in his business and at his request she withdrew on October 4, 1945 the entire balance of $1,230.92 and turned it over to him.

The marriage proved unsuccessful after the plaintiff returned from military service and ultimately ended in a vigorous quarrel and separation on the evening of September 29, 1946. At 9:02 a. m. September 30, 1946, the wife went to the Union Trust Company, secured access to the safety deposit box and withdrew the entire contents of the box. She went to the office of her attorney and left with him for delivery to her husband various papers and documents which she recognized as his property. This included insurance policies, the deed to the home, and $5,000 of Government bonds issued in his name. On or about October 2, 1946, she moved to Cleveland, Ohio, taking the remaining contents of the safety deposit box with her. The plaintiff did not learn of the removal of the contents of the safety deposit box until about two weeks after its occurrence.

Following the separation and before the divorce, the plaintiff paid his wife $400 a month for the support and maintenance of herself and the children. In the divorce decree this amount was fixed at $300 per month, which the plaintiff has continued to pay. The divorce decree did not adjudicate or settle the ownership of, or the property rights of, the parties in any of the bonds taken from the safety deposit box by the wife. In December 1948, the wife’s rights in the home in Pennsylvania were settled by a sale of the real estate, from which the wife received a gross of $8,000, with a net of approximately $5,900 after payment by her of attorney’s fees and expenses.

After moving to Cleveland, the wife turned in to the Government for their cash surrender value of $7,700 the Government bonds which she had taken from the safety deposit box and which had been issued in the name of the husband “or” the wife. She used $6,000 of these proceeds as a down payment on a home for herself and the children and the remaining $1,700 for furniture for the home. The title to the real estate so purchased was taken in the name of the co-defendant John J. Sullivan, her brother. There is a mortgage on the property in the approximate amount of $7000.

The defendant did not cash, but has continued to keep in her possession, the $5,000 Government bonds issued to Bearer. She also has in her possession the Government bonds and insurance policies of the children.

The issue involved is whether the defendant obtained title to any or all of the bonds by virtue of a gift from plaintiff to her. Defendant’s counsel has attempted to practice the case as though it was a settlement of property rights in the divorce proceedings, urging upon the court the financial success and independence of the plaintiff and his large earning capacity as a successful physician, the limited financial resources of the defendant and her need for the property in order to adequately or comfortably support and maintain the family. He has attempted to inject into the case the details of their unhappy marriage, the reasons behind the divorce proceedings, and the alleged cruel treatment of the defendant by the plaintiff. We consider those facts immaterial to the present issue. No doubt it would have been advisable for the ownership of the bonds in question to have been disposed of by the divorce proceedings in Pennsylvania, in which proceedings such facts and issues would have had the consideration of the Chancellor in attempting to make an equitable disposition of the case. But since it was not disposed of in the divorce proceedings, we have for decision in this case merely the question of legal title. The bonds in controversy were purchased with the money of the plaintiff, and they are still his bonds unless the defendant acquired title to them by gift from him to her. Equitable considerations dealing with what the plaintiff should have done for his wife and children in the divorce proceedings, or what he should do now, in addition to the $300 per month payment required by the divorce decree, are not part of the decision in this case,

Jurisdiction exists by reason of diversity of citizenship and the amount in controversy. Section 1332, Title 28 U. S. C. A.

Possession of the bonds by the defendant for safe keeping does not constitute a gift from the plaintiff to the defendant. Nor does the present physical possession obtained through an unauthorized removal from the safety deposit box invest the defendant with title. In order to constitute a gift the evidence must clearly show an intention on the part of the donor to make the gift and a delivery, actual or constructive, of a nature sufficient not only to divest the donor of all dominion over the property but also to invest the donee with complete control of the subject matter of the gift.

The $5,000 Government bonds purchased in December 1942 and issued to Bearer are the property of the plaintiff. The bonds were placed with the defendant for safe keeping and not by way of a gift. The evidence is insufficient to show an intent on the part of the plaintiff to divest himself of his property interest in them. Defendant’s contention that she is entitled to hold them for the benefit of their daughter Sheilah, who was the only one of three children who had not received such a gift from their father, is not supported by the facts.' The prior gifts of $5,000 of bonds.to each of the other two children, Delphine and Michael, were definitely indicated by having the bonds issued in their respective names. A different procedure was followed with the Bearer bonds in question. The evidence does not in any way indicate any intention to make a gift of these particular bonds to Sheilah. If the plaintiff desires to make such a gift, he can still do so.

The $4,800 Government bonds purchased in June 1945 and issued in the name of the husband “or” wife are the joint property of the plaintiff and defendant. There is no evidence supporting any ownership of the defendant in the investment of the plaintiff which the defendant decided should be sold. The reinvestment of the proceeds in their joint names, with the consent of the plaintiff, was sufficient to invest the defendant with a half interest in the bonds so purchased. There was no additional consent on the part of the plaintiff that the bonds be cashed for their surrender value and the entire proceeds therefrom be appropriated by the defendant. The ability of the defendant to cash the bonds without the husband’s consent was by reason of the wording of the bonds and the Government Regulations pertaining thereto, which protected the Government in making payment to either of the authorized payees who presented the bonds for payment. The mere conversion of the bonds into cash did not change the joint ownership of the parties in the investment or its proceeds.

The $300 Government bonds purchased by the defendant and issued in the name of the husband “or” wife are the joint property of the plaintiff and defendant, for similar reasons.

The $5,000 Government bonds purchased in June 1946 which were issued in the name of husband “or” wife are the property of the defendant. The evidence establishes a gift of .the entire interest in these bonds to the defendant. •

The $300 in the strong box in the home was the property of the plaintiff. The evidence is insufficient to show what if any, of the defendant’s money or savings was put into the box or that the contents of the box were at any time given to her by the plaintiff.

The defendant is not entitled to recover from the plaintiff the $1,230.92, or any part thereof, which she withdrew from her savings account and turned over to him. A substantial portion of it was the plaintiff’s money. The evidence fails to show that its transfer to the husband was regarded by either of them at the time as a loan, or that it was to be repaid in any way.

The insurance policies and bonds of the childrén will be retained by the party who has the custody of the children, at present the defendant, in the absence of the appointment of a guardian for them.

Counsel for plaintiff will tender appropriate decree for entry.


author: By WISEMAN, J.

text:
    BOWMAN, Relator, v. ALVIS, Warden, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4435.
    Decided June 30, 1950.

      Jesse G. Dickinson, R. Patrick West, Columbus, for relator.
    Hon. Herbert S. Duffy, Atty. Geni., Alan E. Schwarzwalder, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By WISEMAN, J.

This is an original action in habeas corpus in which the relator seeks his release from the Ohio State Penitentiary where he has been confined since the 2nd day of November, 1948, on a mittimus issued by the Common Pleas Court of Franklin County, Ohio, after having been tried and convicted on four counts for armed robbery.

The facts in this case were presented to this Court in the form of an agreed stipulation.

It is conceded that if the Court had jurisdiction, a remedy by habeas corpus is not available. However, relator contends that the Court never acquired jurisdiction and that if it did acquire jurisdiction, it lost its jurisdiction.

Relator contends that the Court never acquired jurisdiction due to the fact that the record shows that he was never served with a warrant at the time of his arrest; that he was not given a preliminary hearing; and that he was denied counsel before arraignment. When arraigned the relator pleaded not guilty. Four and one-half months later the relator was placed on trial. Five days before trial the Court appointed counsel to represent the relator. We fail to see how the rights of the relator were prejudiced by the failure of the Court to appoint counsel before arraignment. The relator entered a plea of not guilty, and after counsel was appointed, he was tried and convicted. The record does not show that the relator demanded counsel and was refused. The facts in this case bring it within the principle laid down in the case of In re: Burson, 152 Oh St 375, 89 N. E. (2d) 651, which held that the accused may waive his right to counsel and such waiver may be expressed or implied. Under the facts in this case, the failure to appoint counsel did not amount to a denial of “due process” and did not deprive the Court of jurisdiction. Assuming, without deciding, that irregularities took place in the preliminary steps leading up to the indictment and arraignment, such irregularities would not affect the jurisdiction of the Court and would not be sufficient grounds for granting a writ of habeas corpus. New-berry v. State, 15 O. C. C. 208. The jurisdiction of the Court' is not affected by irregularities in the manner in which the accused is brought within the jurisdiction of the Court. Vol. 22 C. J. S. page 242. See also Pettibone v. Nichols, 203 U. S. 192, 216.

Relator contends that if the Court acquired jurisdiction, such jurisdiction was subsequently lost due to the fact that during the trial of the case the Court permitted a juror to attend the funeral of her mother-in-law, accompanied by a deputy sheriff, at which time the Court declared a recess; and on one occasion another juror, during the course of the trial, became ill and was permitted to leave the courtroom for the purpose of taking a sedative, after which she returned to the courtroom and the trial continued. Relator contends that the Court should have discharged the jurors and declared a mistrial, citing in support thereof §11420-7 GC, which in part provides that:

“Because of the sickness of a juror or accident or calamity which requires it * * *, the court may discharge the jury.”

Sec. 13443-13 GC, also is cited which in part provides:

“If before the conclusion of the trial a juror becomes sick or for other reason is unable to perform his duties, the court may order him to be discharged.”

The trial proceeded at all times with a full panel and the record does not affirmatively show that the jurors were in any way incapacitated. The facts stipulated are not sufficient to justify an inference that any of the jurors were incapacitated to discharge their full duties as jurors.' The record does not disclose that the relator at any time entered an objection on the ground that said jurors were incapacitated.

The question as to whether the juror should have been discharged and a mistrial ordered lies within the sound discretion of the trial court. Vol. 12 O. Jur., page 844. In view of the record, the presumption prevails that the trial court properly exercised its discretion in this matter. Furthermore, the judgment is not subject to collateral attack on this ground in a habeas corpus proceeding.

Finally, it is contended that the jurisdiction of the Court was lost due to the substitution of one Judge for another during the course of the. trial. After the trial had commenced •and before the verdict was rendered the trial judge became ill and was unable to continue to preside; thereupon, another judge of the same court conducted the trial and received the verdict. The motion for a new trial was decided by the judge who presided in the beginning of the trial. The record is not clear at what stage of the proceedings the substitution of judges was made. The stipulation does state that the substitute judge did not hear the earlier testimony, arguments, objections or exceptions taken; that he had no opportunity to observe any of the witnesses who had testified previously; the record does not affirmatively show that he had any prior knowledge of any of the above issues.

The record does not show that the relator interposed an objection to the conduct of the trial by the substitute judge; neither does the record show that the relator expressly consented. In the absence of an affirmative showing to the contrary, it may be presumed that the accused consented to the substitution of judges by the continuation of the trial to its completion. No claim of unfairness or prejudice is made and we fail to find any.

The relator contends that one judge cannot be substituted for another during the course of the trial of a criminal case and that a mistrial will result from the changing of judges without defendant’s consent. In support of this proposition, relator cites the following cases: Freeman v. U. S., 227 Fed. 732; Durden v. People, 192 Ill., 493, 61 N. E. 317; Commonwealth v. Thompson, 328 Pa. 27, 195 A. 115; Labonte v. LaCasSe, 78 N. H. 489, 54 A. L. R. 952; Bahnsen v. Gilbert, 55 Minn. 334, 54 A. L. R. 959 and Mason v. State, 5 C. C. N. S. 113, 26 O. C. C. 535.

In the Freeman case which was decided by the United States Circuit Court of Appeals for the Second Circuit in 1915, it was held that the constitutional right of trial by jury means a jury of twelve jurors presided over by one judge throughout the trial; that the accused cannot waive trial by jury and cannot consent to the substitution of one judge for another.

In 1935 the same Court in Cahill v. Mayflower Bus Lines, 77 Fed. (2d) 838, in commenting on the Freeman case said;

“In Freeman v. United States, 227 F. 732, this court held a judge could not be substituted for another during the taking of testimony because a substitued judge would be unable to advise the jury about the value of the testimony and that a defendant was not free to waive a jury trial. It is now authoritatively decided a defendant may waive a jury. Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 O. Ed. 854, 70 A. L. R. 263.”

The Court in the Cahill case relied on the case of Patton v. U. S., 281 U. S. 276, 50 S. Ct. 253, which was decided in 1928 and held:

“The provision of Art. Ill, Sec. 2, of the Constitution, relating to trial by jury, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election.”
“The view that power to waive a trial by jury in criminal cases should be denied on the grounds of public policy is rejected as unsound.”

In Simons v. U. S. 119 Fed. (2d) 539, the Circuit Court of Appeals for the Ninth Circuit in 1941 stated that the Freeman case was based on the premise that the right to a jury trial cannot be waived. The court held that this premise has been destroyed in the Patton case. The first paragraph of the syllabus in the Simons case is as follows:

“The right to a jury trial, including the right to have the same judge proceed throughout the trial, as preserved by the Federal Constitution is a ‘privilege’ which the accused may forego at his election. U. S. C. A. Const. Art. 3, Sec. 2.”

The Court held that the fact that one judge was substituted for another did not constitute a denial of “due process” and did not deprive the Court of jurisdiction.

The Supreme Court of Illinois in the Durden case held that it was reversible error to substitute one judge for another; that the substitution in the trial of a criminal case is against public policy. In Commonwealth v. Thompson the Pennsylvania Court approved the principle laid down in the Freeman and Durden cases, but affirmed the judgment on the ground that the substitution of another judge at the end of the voir dire examination was not prejudicial. The Labonte and the Bahnsen cases are not in point.

In Mason v. State the Circuit Court for Ashtabula County in 1904 held:

“Where upon a trial for murder in the second degree, after the evidence is all introduced, the trial judge becomes incapacitated to further continue in the case, and the prosecution is adjourned for eighteen days, part of the' time from day to day by the sheriff, and at other times by another judge of the same subdivision; during which adjournment the jury is permitted to separate, going to different parts of the county; at the end of the eighteen days another judge of the same district hears the arguments, prepares the charge and delivers it to the jury; passes upon the motion for a new trial, and sentences the prisoner; and it does not affirmatively appear by the record that the new judge read any portion of the evidence, neither that the jury had been in any manner tampered with. Held: That there was irregularity in the proceedings of the court and jury, and that the judgment should be reversed and a new trial granted.”

It will be observed that the Court did not hold the judgment void on the ground that the Court was without jurisdiction, but that the judgment was based on an irregularity which constituted reversible error.

On the record in the instant case we may presume that the relator consented to the substitution of one judge for another. On this proposition the Court in People v. Casselman, 10 Cal. App. 234, 101 P. 693, held that where no objection is shown to the substitution of one judge for another, it will be presumed that the accused consented to the substitution, and that the substitution did not affect the jurisdiction of the Court. In Burrage v. State, 101 Miss. 598, 58 So. 217, it was held that where the accused consents to a substitution of judges, a change of judges cannot be assigned as error on review. In People v. Henderson, 28 Cal. 465, the Court said it could see no objection to the substitution of judges if the parties consented, and by consenting and taking his chances on a successful outcome of the case, the accused, after conviction, could not repudiate the proceedings and try for a more favorable result.

We are required to distinguish between any remedy afforded the relator by direct appeal and by a habeas corpus proceeding. In the cases cited by relator the question was raised on error. A writ of habeas corpus cannot be made a substitute for error proceedings. A writ of habeas corpus is available only upon a showing that the Court was without jurisdiction. Vol. 20, O. Jur. pp. 425, 426, 469; Vol. 25, Am. Jur. p. 184. See also §12165 GC. In United States v. Valante, 264 U. S. 563, 44 S. Ct. 411, 68 L. Ed. 850, a similar question was raised and the Supreme Court, speaking through Mr. Justice Sanford, held that if any error existed in the substitution of one judge for another, such substitution did not go to the jurisdiction of the Court or render the judgment void and that review should have been sought by writ of error, and that a remedy by habeas corpus is not available.

We may well adopt and apply to the issues in this case the words used by our Supreme Court in the Burson case which are as follows:

“Finally, the Common Pleas Court of Franklin County is a court of general jurisdiction and had jurisdiction of the case involving the indictment of the petitioner. In the opinion of this court, that court did not take any action whereby it lost jurisdiction and which made its judgment void. If it is conceded that there was any irregularity in the proceedings of the court, it constituted error but it did not oust the court of jurisdiction. The petitioner had and still has an adequate remedy at law by way of review, on appeal, and the extraordinary remedy of habeas corpus does not lie.”

Writ denied.

MILLER, PJ, and HORNBECK, J, concur.


author: By WISEMAN, J:

text:
    STATE, ex SIMONS, Plaintiff-Appellant, v. KISER, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 684.
    Decided August 22, 1950.
    Spidel, Staley & Hole, Greenville, for plaintiff-appellant.
    T. A. Billingsley, Greenville, for defendant-appellee.
   OPINION

By WISEMAN, J:

Submitted on motion of defendant-appellee to dismiss the appeal on the ground that the plaintiff-appellant has appealed from an order granting a motion for new trial upon one of the reasons contained in the motion for a new trial, and that such order is not a final order from which an appeal may be taken.

The sole question presented is whether an order granting a motion for a new trial is a final order from which an appeal may be taken.

This action, which is one in bastardy, was commenced February 13, 1948 and therefore the question presented must be determined under Article IV, Section 6 of the Ohio Constitution as amended effective January 1, 1945, and the provisions of §12223-2 GC as last amended effective September 30, 1947. We find no reported opinion deciding this precise question.

In 1937 §12223-2 GC, which defines a “final order,” was amended by including in the definition “an order vacating or setting aside a general verdict of a jury and ordering a new trial.” The effect of this amendment was before the Supreme Court in Hoffman v. Knollman, 135 Oh St 170, 20 N. E. (2d) 221. In that case, which was decided in 1939, the Court held that the jurisdiction of the Court of Appeals was conferred by Section 6, Article IV, of the Ohio Constitution, and could not be enlarged or curtailed by legislative enactment; that §12223-2 GC, as amended effective August 23, 1937, would, if given effect, enlarge the jurisdiction of the Court of Appeals and, therefore, was in conflict with Section 6, Article IV, of the Constitution.

Finally, the Court held that unless it clearly appears that the trial court abused its discretion in granting the order, an order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final order reviewable by the Court of Appeals.

In 1944 Section 6, Article IV of the Ohio Constitution was amended effective January 1, 1945. The Constitutional provision which relates to the question presented provides:

“The Courts of Appeals shall have * 1 * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of Boards, Commissions, officers, or tribunals, and all courts of record inferior to the Court of Appeals within the district, etc.” (Emphasis ours.)

The purpose of this amendment was to authorize the legislature to enlarge the jurisdiction of the Court of Appeals, if it deemed it advisable. In 1947 the legislature, acting under this constitutional grant of power, again amended §12223-2 GC effective September 30, 1947 by including in the definition of a final order “an order vacating or setting aside a judgment and ordering a new trial.” Attention should be called to the fact that the 1937 amendment to §12223-2 GC provided that an order vacating or setting aside, a “general verdict of a jury” and ordering a new trial was a final order, whereas the 1947 amendment provides that an order vacating or setting aside “a judgment” and ordering a new trial is a final order. The 1937 amendment conformed to other provisions of the Code of Civil Procedure in effect at that time. However, certain sections of the Code have since been amended changing the procedure which necessitated the substitution of the word “judgment” for “verdict” in the 1947 amendment. Under §§11576 and 11578 GC as amended, effective October 11, 1945, an application for a new trial is no longer filed after the verdict is returned, but rather after judgment of the court has been entered. Consequently, the application for'new trial is necessarily directed to the judgment as well as the verdict of the jury, in cases tried to a jury. Under the present code an order of the trial court sustaining an application for a new trial necessarily involves the vacating and setting aside of the judgment. In the instant case, the motion for new trial was in legal effect a motion to vacate a judgment as well as a motion for new trial. McAtee v. The Western and Southern Life Insurance Company, 82 Oh Ap 131, 81 N. E. (2d) 225. In the McAtee case, Judge Ross, writing the opinion for the First District, raised the question as to whether, under the amendment to Section 6, Article IV, of the Ohio Constitution, the legislature “changed the character of the action of the court in overruling a motion for new trial by reason of the new function of a motion for new trial in its attack upon a judgment, rather than upon a verdict” as provided in §11578 GC, as amended effective October 11, 1945. The Court concluded “thát the overruling of a motion for new trial is a final order in that as to actions commenced after October 11, 1945, the motion is essentially a motion to vacate a judgment as well as a motion for new trial.”

In the McAtee case the order appealed from was an order overruling a motion for new trial, whereas in the case at bar the order appealed from is an order sustaining a motion for new trial. The order appealed from affects the substantial right of the appellant. We do not deem it essential to a decision on the issue presented that this Court hold that the order appealed from carries with it the finality of a judgment. In Hoffman v. Knollman, supra, the Court was confronted with the constitutional provision which limited the jurisdiction of a Court of Appeal to a review of judgments. In that case the court held that an order sustaining a motion for new trial and setting aside a general verdict of the jury did not carry with it the finality of a judgment. Section 6, Article IV, of the Ohio Constitution as amended now provides that the Courts of Appeals shall have such jurisdiction as may be provided by law to review, * * *, “judgments or final orders.” We conclude the legislature acted- within its constitutional grant of power in amending §12223-2 GC by providing that a final order shall include “an order vacating or setting aside a judgment and ordering a new trial.” Unquestionably, the purpose of the amendment "was to permit such action of the trial court to be reviewed, which in many cases would obviate the necessity of a retrial. See Vol. 2 O. Jur., page 203, Section 106.

Motion to dismiss is overruled.

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


text:
    APPLEBAUM v. WULFF et.
    Common Pleas Court, Cuyahoga County.
    No. 612303.
    Decided July 25, 1950.
    Robert M. Skall, George B. Harris, Russell N. Chase, Cleveland, for appellant.
    Lee C. Howley, Director of Law, Chas. W. White, Asst. Director of Law, Cleveland, for defendants-appellees.
   OPINION

By BLYTHIN, J.

In this memorandum the plaintiff will be referred to as teacher. The defendants will be referred to as the board, they being the duly elected, qualified and acting members of the Board of Education of the Cleveland City School District.

Teacher is the holder of a teacher’s life certificate and for about twenty-seven years prior to June 21, 1949 had been'a teacher in the Cleveland Public Schools. Her contract under the Teachers’ Tenure Act is dated July 17, 1942. On June 21, 1949 teacher was notified that the board intended to consider the termination of her teaching contract on the ground of gross inefficiency and that unless within ten days, she demanded an opportunity to appear before the board final action would be taken. Teacher promptly moved to dismiss the entire matter on the ground that the notice given did not comply with the requirements of law in that it was too indefinite, and she further demanded a public hearing before the board. On July 5, 1949 the board by its Clerk-Treasurer communicated to teacher the grounds of the board’s intention to terminate the contract. Teacher still maintained that the board had not complied with the requirements of law, claimed the board to be without jurisdiction to hear the matter, all of which claims were overruled and teacher notified that a public hearing was to be had. The public hearing commenced on October 13, 1949 and further sessions were held on various dates, the last being on February 21, 1950. Five of the seven members of the board sat at the hearing, and at the close of the final session the board retired to deliberate and upon reconvening in public session the chairman of the board declared that the board had voted to sustain the recommendation of the superintendent in terminating teacher’s contract. Under favor of the provisions of §4842-12 GC, teacher filed her petition in this cause setting forth the procedural steps taken to terminate her contract, the conduct of a public hearing, a recital of the board’s "decision and containing a denial of all charges made against her and alleging forty-two claimed errors in the proceedings of the board and praying that the board be required to rescind its action in terminating teacher’s contract and be required to reinstate her and to permit her to teach in the public schools of the city; that she be ordered paid her salary for the period of suspension and for such other and further relief to which she be found entitled.

A transcript of the proceedings of the board having been duly filed in this cause, and neither party presenting any further testimony, the matter was presented to the court upon the transcript, the arguments of counsel for teacher and of counsel for the board.

In her forty-second or last specification of error, teacher claims the statute under which her contract was terminated, and under which she seeks relief here, §4842-12 GC, is unconstitutional and void. Teacher herself faces two very serious difficulties with such a claim. First: She is maintaining this proceeding under favor of the statute and can hardly be heard on the one hand to claim its benefits and on the other to assert its unconstitutionality; and Second: If the statute is unconstitutional, teacher would be without a remedy at all for the reason that prior to the enactment of the statute the board had a right to “hire and fire” at will. This court has neither heard nor found any authority or ground for believing the statute unconstitutional. The courts have, on a number of occasions, adjudicated rights under the statute since its enactment without any serious or logical claim of unconstitutionality being considered or even urged.

A question which, in several cases, has presented much more difficulty than that of the claim of unconstitutionality of the statute is that of the nature of the proceeding authorized in the Common Pleas Court, as in this case. Upon oral argument the court inquired of counsel if they deemed it the duty of the court to weigh the evidence presented to the board and counsel for teacher replied in the affirmative, indicating that he deemed the hearing in this court to be more than an error proceeding. This being a special statutory proceeding of rather recent origin it becomes important to appreciate its nature so as to proceed on the basis of that appreciation.

Sec. 4842-12 GC, in its pertinent part, is as follows:

“Any teacher affected by an order of termination of contract shall have the right of appeal to the court of common pleas of the county in which the school is located within thirty days after receipt of notice of the entry of such order. Such appeal shall be an original' action in said common pleas court and shall be commenced by' the filing of a petition against such board of education, in which petition the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract. Upon service or waiver of summons in said appeal, such board of education shall forthwith transmit to the clerk of said common pleas court for filing a transcript of the original papers theretofore filed with said board and a certified transcript of all evidence adduced at the hearing or hearings before such board, whereupon the cause shall be at issue without further pleading and shall be advanced and heard without delay. The common pleas court shall examine the transcript and record of the hearing before the board of education and shall hold such additional hearings as it may deem advisable, at which it may consider other evidence in addition to such transcript and record.
“Upon final hearing, the common pleas court shall grant or deny the relief prayed for in the petition as may be proper under the provisions of law in accordance with the evidence adduced in the hearing. Such an action shall be deemed to be a special proceeding within the purview of §12223-2 GC and either the teacher or the board of education may appeal therefrom.”

To say that the quoted paragraph is loosely and clumsily drawn is the acme, of understatement, but the Supreme Court of Ohio has finally spoken upon the' scope of the permitted inquiry.

Powell v. Young et al etc. 148 Oh St 342, 35 O. O. 322, Syllabus 1.

“The right granted by §4842-12 (former §7690-6), GC, to a teacher, affected by an order of a board of education terminating her contract, to appeal from such order to the Court of Common Pleas is not a right to a trial de novo, but is a right to a review of such order as provided in such section.”

After a discussion of the nature of the appeal the court, by Stewart, J, says:

“It seems to us that the General Assembly intended the appeal provision in §7690-6 GC, to be confined to a judicial review of the proceedings of the board of education and to give the court discretion to hold further hearings to be certain that the proceedings before the board were legally regular and not arbitrary, oppressive, unreasonable or fraudulent; and that it was not the intention of the General Assembly to provide a trial de novo.”

The communications of the board’s complaint or charge against teacher, in their pertinent parts, are as follows:

Letter of June 21, 1949:

“The ground for such action is as follows:
“Gross inefficiency as attested by principals and supervisors.”

Letter of July 5, 1949:

“In elaboration of the ground for termination of your contract, as conveyed by my notice dated June 21, 1949, you are hereby further notified that during your assignments at Moses Cleaveland, Empire and Patrick Henry Schools you were ineffective and uninspiring in the classrooms, and you made little or no contribution to school activities; pupils have not progressed in your classes in accordance with their abilities; you do not maintain good order in the classroom; pupils are not responsive to your guidance; your relationship with individual pupils at Moses Cleaveland and Patrick Henry Schools have on occasion resulted in attitudes of bitterness on the part of pupils and parents; in the past ten years you have never been rated better than fair under any principal under whom you have worked; your capacity as a teacher has been questioned officially in 1930 and 1939 without resulting improvement; and you are currently rated by the directing Supervisor of Mathematics as ‘the most unsatisfactory teacher of mathematics in the Cleveland Public Schools at this time.’ ”

The claims and errors assigned by teacher, in addition to the one of unconstitutionality of the statute, can be reduced and be included within the following items:

1. Board lacked jurisdiction. No charges conforming to the requirements of the statute having been filed.

2. Charges not sustained by the evidence adduced.

3. Charges and evidence related to matters prior to the effective date of the Teachers Tenure Act, June 21, 1941, and therefore were improperly considered.

4. Errors in receiving and rejecting evidence at the hearing.

5. Error in permitting trial counsel appearing for the board to participate.

6. Misconduct of the board and personal prejudice of certain members of the board.

7. Error in mode rendering judgment not majority vote.

8. Error in permitting chairman to make speeches to public during trial.

9. Error in not considering teacher certified to teach any subject in the Cleveland Public Schools.

The transcript in this cause is voluminous (785 pages) and it is not practical to extend this memorandum to detail comment beyond stating briefly the court’s views after perusal and consideration of the entire record and exhibits.

1.

Jurisdiction. It is not to be overlooked that the General Assembly when enacting the statutory provision here specifically under notice, and sections related to it, did not grant to the board any extraordinary new powers to discharge employees, whether teachers or other, but actually placed a limitation upon their powers as related to teachers. Prior to the enactment of the Teachers Tenure Act the board could refuse to renew the teaching contract of a teacher at any time for any cause that it deemed proper and its action in that regard was final and not subject to review by others. The right to discharge teachers does not come into being under the Tenure Act — it is already there. The board was vested with the right to discharge, and still is. In response to the general clamor for “security” of pay, position and privilege in this present-day order of ours the General Assembly extended a degree of it to teachers by dictating to Boards of Education that henceforth they must not discharge a teacher unless certain conditions exist or facts are shown and that a teacher warned of an intention to so discharge him or her may be heard, privately or publicly at his or her option. The exercise of jurisdiction to hear and determine such a hearing is merely a recognition by the board of the limitation upon its rights and the expansion of the rights of the teacher involved. The board is still the hiring and discharging body and there is no requirement of hearing of any kind upon a discharge except upon the invoking of it by the teacher. The hearing is still a performance of an administrative function of the board, and it is clothed with jurisdiction to perform those functions.

2.

Charges not sustained by evidence adduced. It is not for this court to weigh the evidence adduced but to determine whether it was fairly produced; that it was directed to proof of the charges filed; and that the proceedings were free from arbitrary, oppressive, unreasonable or fraudulent conduct. If there was presented substantial and credible evidence to support the charges and a fair administrative hearing was had, this court cannot substitute its judgment for the judgment of the administrative authorities. In a large school system (in Cleveland, 152 schools — p. 83) it is not possible for the superiors to have constant or close contact with those subject to their supervision within the system and the true measure of a teacher’s qualifications and quality must be based on the accumulation of contact, observation, general and special results and the judgment of perhaps a number of people in concert or separate and apart from each other.

Looking to the record in this cause we find that Mark C. Schinnerer, the Superintendent of Schools, testified that the Assistant Superintendent is responsible to the Superintendent; Principals are responsible to the Assistant Superintendent and the Teachers are responsible to the Principals, (p. 39.) In addition, there is a Personnel Bureau which keeps records of-the service of teachers, (pp. 40 and 41.) Miss McCarthy is Chief of the Bureau of Personnel, (p. 47.) Miss Katherine A. McCarthy testified that she had been a Principal since 1923 and that thirteen years of her principalship had been in Moses Cleaveland School, and that she had Teacher there under her from 1936 to 1944 (p. 61 and 62). In 1944 she asked that Teacher be transferred (p. 62). Her request was contained in her letter dated June 9,1944 (Superintendent’s Ex. 3), which, in part, is as follows;

“Our records at Moses Cleaveland Junior High School show that for over a period of seventeen years the mathematics department has been below the average for the city. Our P. L. R. range is above average. When you transferred Mrs. Moore to us, we were able to reach a place well above the average in achievement for the brief period she was here. We have dropped again to our former level. For eight years I have been aware of this problem in the community. The spirit of antagonism in the neighborhood against this department on the part of pai*ents as well as pupils makes it necessary for me to ask for the transfer of Miss Gertrude Applebaum from our school.
“Miss Applebaum has been teaching for twenty-two years, seventeen of which were at Moses Cleaveland School. I have not found her to be successful in instruction as evidenced in power of her pupils — their self-control, judgment and instruction in carrying on activities and successful results in achievement tests. ■* * *”

. P. ;Xj. R: referred to in her letter is intended-to' indicate' “probable learning rate.” The witness testified that she had reported to Mr. Swinnerer in 1939 that Teacher’s work was very poor” (p. 66) and that “We had plenty of conversation with her because we were always aware of her poor work, ip. 70.)

Q. Did she (Teacher) maintain good order in the classroom? A. No. (p. 79.)

One E. T. Cockrell, Principal of Empire Junior High School testified that he had been a Principal for thirty-five years; in Cleveland thirty years; in Empire twenty-five years, (p. 104.) His testimony is directed chiefly to 1944-1945 when he had Teacher on his faculty. • Teacher taught Mathematics (and English one semester), (p. 105.) “She was a rather uninspiring teacher. When I would go into her room she was generally seated. I called her an ineffective teacher.”

After testifying that he had, in March 1945, rated Teacher in Grade 3 (Superintendent’s Ex. 3-A) and in May 1945 had written to Mr. Schinnerer, then Assistant Superintendent, in reference to a transfer to be made, in mathematics, saying:

“I consider that all these teachers are better teachers of mathematics than Miss Applebaum.” (Superintendent’s Ex. 3-B.)”

He then testified that in June 1949 (Superintendent’s Ex. 3-0 he received a request for a “fair and frank appraisal of her (Teacher) work, and indicated whether you would be willing to have her assigned to Empire.” This request was from E. L. Butterfield, Assistant Superintendent. Cockrell’s reply was as follows:

Superintendent’s Ex. 4.
“I certainly would not want Miss Applebaum assigned to Empire Junior High School. She was suggested as a replacement teacher here last September and again in January. I protested vigorously both times and was relieved that other assignments were made. •
“She was at Empire only one year 1944-1945. I signed approval of her re-appointment that year, but she was rated at the bottom of the Empire list of teachers. When an enrollment decrease made imperative a decrease of one mathematics teacher, I rated her as the least desirable of the group and was pleased when she was assigned to another school. These ratings by me are on file at Headquarters in correspondence to Dr. Schinnerer under dates of March 21 and May 25, 1945.
“I remember Miss Applebaum as personally agreeable and cooperative, but ineffective and uninspiring in the classroom. She was not very energetic and was generally seated in class. She made little or no contributions to school activities of the kind that mark the desirable teacher.”

One Oliver J. Deex testified that he had been Principal at Patrick Henry Junior High School since 1944. Teacher was there as a teacher 1944-1948. (p. 202 and 208.)

Q. State your opinion of Miss Applebaum’s work as teacher at Patrick Henry Junior High School for four years.

A. My opinion is that her work was unsatisfactory.

Q. Will you state in more details on what you base that conclusion?

A. On the grounds that her relationship with pupils was poor; that her conduct of assignments in class, study hall and other activities was inferior; that her guidance of individual homeroom pupils was not at all satisfactory; that many pupils and some parents complained bitterly, (p. 205 and 206.)

He testified that he had visited Teacher’s homeroom; had visited her classes and had observed her conduct of the classes, (p. 207.) He also testified that he had discussed her deficiencies with Teacher on more than one occasion and that those discussions were not followed by an improvement, (p. 207.)

One Herschel Grime, Ph. D. testified that he is Directing Supervisor of Mathematics in the Cleveland School System; that he visits various schools, and classes in mathematics and that he has been such Supervisor since 1937. (p. 249.)

He had observed and formed an opinion about the teaching capacity of Teacher in the particular field; that he had visited Teacher’s class at Patrick Henry as late as April 5, 1949; and also on previous dates (p. 250). Without detailing his testimony as shown on p. 250 et seq of the record it is sufficient to view his summarization of it and his judgment generally as contained in his letter to E. E. Butterfield, dated April 20, 1949, and shown as Superintendent’s Ex. 6-A when he said:

“On April 5 of this year, I visited a class taught by Miss Gertrude Applebaum at Patrick Henry Junior High School. I was very much disappointed in what I saw.
“Miss Applebaum failed entirely to interest her pupils in what they were supposed to be doing. In fact, I do not believe she made any attempt to do so. Her pupils showed a lack of respect for her and I am convinced they realized the fáct that she was doing little or nothing to help them in their work.
“When I entered the room, Miss Applebaum was seated at her desk and the pupils were working from their books. When the teacher saw that she had a visitor, she got up, went to the blackboard and wrote out the homework assignment for the following day. At the close of the period, she called the pupils’ attention to this assignment, but made not the slightest effort to teach them how to do the work assigned.
“This teacher has convinced me that she makes no provision for individual differences among pupils. Her conduct of the class and the assignments made are the same for all her classes in a particular grade. This plan works a definite hardship on most pupils, since an assignment cannot, at the. same time, be satisfactory for bright or average pupils- andl for very slow pupils.
“Each time that I have been in Miss Applebaum’s classroom,. I have spoken to her before leaving. Somehow or other she has been unable or unwilling to understand what I have tried! to tell her. At the end of my last visit I was unable to criticize her teaching or to suggest how she might improve it, for the simple reason that, although she was in the classroom with her pupils, she had done no teaching that period. Before I left, I asked her if she would invite me out some day when she was teaching, so that I might see what she is doing and then offer suggestions as to how she might improve.
“In my opinion, based on observation of her work at Moses Cleaveland and Patrick Henry, Miss Applebaum has a very-limited conception of what a teacher is supposed to do in. a mathematics classroom; furthermore, I do not believe that, she is or ever has been very much interested in learning how-to teach. I believe that she is totally unable to interest her pupils in what they are doing and to encourage them to do good work.
“I consider Miss Applebaum, by far, the most unsatisfactory teacher of mathematics in the Cleveland Schools at this time.”'

This was an official report of the Directing Supervisor of Mathematics to the First Assistant Superintendent of Schools.

It is difficult to understand how it can seriously be contended that the record does not contain evidence which, if believed by the board, is sufficient to sustain the charge of gross inefficiency.

3.

Complaint of matters which occurred prior to effective date of Teachers’ Tenure Act. There exists no basis whatever for this claim. The rule as to the admissibility of evidence touching matters occurring prior to the effective date of the Act has been laid down by the Supreme Court of Ohio. The evidence is to be based on service since the effective date of the Act but the quality of service prior to the effective date of the Act may also be considered cumulatively with service following such date. The problem is not in fact presented in the instant case because most, indeed practically all, of the testimony above quoted and mentioned is testimony of performance since 1942.

4.

Errors in receiving and rejecting evidence on trial. In a hearing before the board under the statute there are many steps necessarily involved which are not set forth in the statute.. Those details furnish a fruitful field for differences of opinion. It is safe to say that very few public hearings have ever been held in Ohio under the statute and the record in this case discloses that this is the first of its kind ever conducted by the board of the most populous school district in our state. In an opinion rendered June 9, 1945 on request of the Superintendent of Public Instruction, Columbus, the then Attorney General of Ohio endeavored to furnish some guide to be followed in hearings by boards under the statute. (Opinion No. 299.) He held the hearing to be an administrative proceeding but that the board conducting such a hearing is exercising quasi-judicial powers. He maintained that while the board is not bound by the strict rules of court procedure it should nevertheless observe the elementary and fundamental principles of judicial inquiry. He outlined four principle concepts (subject to many limitations and exceptions) which should be borne in mind by any board or quasi-judicial body in the conduct of a hearing involving rights and property.

FIRST: The common law ideal of fair procedure involving the requirements of sworn testimony, cross-examination, rebuttal, formal introduction of evidence, right of subpoena etc.

SECOND: Admission of only trustworthy evidence, as such is generally understood under our system of government and jurisprudence.

THIRD: The shielding, for social reasons, of certain so-called privileged communications had in confidential relationships.

FOURTH: Protection to the witness from requirement of self-incrimination or involuntary confession.

The statute provides that a record of the proceedings shall be taken, and that record may, as in the instant case, be required for review. It is therefore important that it be in reasonably good form and that the testimony be presented, insofar as reasonably possible, in a connected and chronological order. Upon a view of the entire record in this cause Teacher has less ground for complaint than the board concerning the taking and rejecting of testimony. Teacher contended for the “court trial” type of hearing while the board properly viewed itself as an administrative body conducting a quasi-judicial hearing. In that view-it was clearly correct and, on the whole, it must be said that every opportunity was afforded Teacher to protect her position.

5.

Error in permitting trial counsel appearing for the board to participate. Charles W. White, Esquire, a member of the staff of the Director of Law of the City of Cleveland appeared as counsel either for the board, for the Superintendent, or both. Representation in legal matters of the board, its officers and interests, is provided by law and this court is still unable to understand the ground of objection to counsel in this instance. The matter does not call for serious discussion for the reason that it was undoubtedly the privilege of the board and the Superintendent to present the entire matter in a manner and by persons of their own choosing, subject only to ethical and orderly procedure.

6.

Misconduct of the board and personal prejudice of certain of its members. There is no evidence to uphold or justify such a contention. The board and every participating member exhibited almost unlimited patience throughout the long and what must have been tedious proceeding.

7.

Error in mode of rendering judgment. As already stated, five of the seven members of the board conducted the hearing and at the close of the testimony and arguments the members of the board “retired to closed session.” (p. 781.)

Before the board retired counsel for Teacher requested a yea and nay vote on the decision to be rendered and the board by its Chairman indicated that the members would reserve the right to “to make the decision in our own manner.” (p. 781.) Immediately following the closed session the board re-convened in formal, public session and the board chairman announced that “the board has voted to sustain the recommendation of the Superintendent, Dr. .Mark C. Schinnerer, in terminating the teaching contract of Miss Gertrude Applebaum.”

The statute does not prescribe the mode of rendering such a decision and it follows that the most that can be asked is that the decision be clear and be that of a majority of the membership. Five of the seven members were present; the chairman announced in their presence that “the board has voted.” If that was not a fact it was then the duty of any member not concurring to express his dissent. This objection is very technical — too technical to be given serious consideration as a basis for a successful attack in the light of the procedure actually followed in this case.

8.

Error in permitting chairman of the board to make speeches to public during trial. He or she is a wise chairman indeed who knows when not to make a speech. Teacher had her choice of kind of hearing under the provisions of the statute. She demanded a “public hearing.” As already indicated, this was the first public hearing ever held by the board in such a proceeding. That being so, this was the first time for members of the Cleveland public to attend such a hearing. The members of the public who know anything at all about matters such as were involved in this hearing, and were testified to, are so few and far between as to appear almost nonexistent. The “speeches” complained of were not in the nature of testimony nor could they possibly be prejudicial to Teacher. They were an effort to lead the unenlightened members of the public into a slight understanding of the mysteries involved in the operation of a public school system. In any event, they must have been a refreshing cooler in what appears to have been a very torrid struggle. Just what prejudice could possibly result from them was not pointed out to this court and he does not believe that any prejudice did result.

9.

Error in not considering Teacher certified to teach any subject in the Cleveland Public Schools. On its face this claim would appear to be one not free from difficulty but it must be judged in the light of the entire record. If Teacher is asserting her certification to teach any subject in the public schools her ability or lack of ability in the field of mathematics can be the proper subject for inquiry. In the light of the suggestion on her behalf in that connection in this cause it is proper to mention that it does not appear that any time Teacher has even suggested either a willingness or desire to be assigned to the teaching of an other subject or subjects. That does not seem to be the issue. It is not claimed that Teacher is a grossly inefficient mathematician, but it is claimed that she is a grossly inefficient teacher and it is to be assumed that the board when hiring persons who are generally certified as qualified to teach any subject taught in the public schools is hiring teachers as distinguished from specialists in any particular field, and that ability to teach is one of the real qualifications necessary to appointment in the first instance and one that must be maintained, and perhaps improved, as the days go by in order to entitle the appointee to continue in the service.

* * ¡(í *

The board continues to be the agency clothed with the administrative duty of employing and discharging teachers, subject only to the exercise of sound judgment and observation of the specific restrictions or conditions now imposed by law. The board conducted a public hearing in the instant case, it heard a number of witnesses in support of the charges filed. It also heard a number of witnesses on behalf of Teacher. It had a right to weigh the testimony and, in so doing, to consider those elements which engraft credence upon the statements of others, and especially in a case such as this, the opportunity which the witnesses had had to observe and know the facts, circumstances or general situation testified to. The court, upon consideration of the record, finds that there was ample evidence, if believed, to support the charge; that it was the function of the board to weigh that evidence; that ample opportunity was given Teacher to be heard on her own behalf and by others on her behalf; that the record is devoid of evidence which could be held to support any claim of arbitrary, oppressive, or unreasonable conduct or action. Fraud was not claimed or even suggested. It follows that the decision of the board must be affirmed and the petition dismissed at Teacher’s costs. An order so doing will be entered as of this date.


author: By THE COURT.

text:
    HAMLIN, In re, Petitioner, v. STATE and ALVIS, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4445.
    Decided May 18, 1950.
    W. R. Morris, Columbus, for petitioner.
    Hon. Herbert S. Duffy, Atty. Geni., Alan E. Schwarzwalder, Asst. Atty Geni., Columbus, for respondents.
   OPINION

By THE COURT.

The petition seeks a writ of habeas corpus upon the following grounds:

1. Irregularities in the trial proceeding.

2. The verdict is not sustained by sufficient evidence.

3. The improper introduction of evidence.

4. That he is committed to the Ohio Penitentiary under §12414 GC, which is unconstitutional.

The indictment alleges that the petitioner being a male person of the age of fifty-three years,

“did unlawfully and knowingly carnally know and abuse one Delores Herron, with her consent, she, the said Delores Herron, then and there being a female person under the age of sixteen years, to wit: of the age of fourteen years, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

The record discloses that a verdict of guilty was returned by the jury and a sentence of one to twenty years was imposed. The first three grounds are related to the conduct of the trial and which may not be considered by this Court as habeas corpus is not the proper remedy to review errors, either of fact or law, that may, occur in the trial of a criminal case. It is not a substitute for error proceedings.

Next, considering the constitutionality of §12414 GC, although the Supreme Court of Ohio has decided in the case of Yutze v. Copelan, 109 Oh St 171, that the constitutionality of a statute may not be tested under habeas corpus proceedings where the trial court had jurisdiction or power to determine the question, we need not decide the question on this ground. The appellant cites no authority to support his contention other than that he says that Judge Bell of the Court of Common Pleas for Hamilton County has so ruled. We have made diligent search but have been unable to find such a reported decision. The appellant makes no reference to the particular provision of the Constitution he claims is violated and our examination discloses nothing upon which we can place such a construction. It is therefore our conclusion that §12414 GC is a valid statute.

The application will be denied, as we find the petitioner is lawfully committed to the Ohio Penitentiary.

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