author: By BARTLETT, J.

text:
    BURDETT OXYGEN COMPANY, Plaintiff, v. KAUER, Dir. of Highways, etc. et, Defendants.
    Common Pleas Court, Franklin County.
    No. 184675.
    Decided March 26, 1953.

      Dargusch, Caren, Greek & King, Columbus, for plaintiff.
    C. William O’Neill, Atty. Geni., Columbus, for defendant.
   OPINION

By BARTLETT, J.

1. THE COURT FINDS AND DECLARES THAT THE MANIFOLDED COMPRESSION CYLINDERS OF THE PLAINTIFF, ARE NOT INHERENTLY MOTOR VEHICLE EQUIPMENT, UNDER §6293 GC, AND THE WEIGHT THEREOF, SHALT, NOT BE INCLUDED IN THE DETERMINATION OF THE TOTAL WEIGHT OF THE TRAILERS OF THE PLAINTIFF, FULLY EQUIPPED, UPON WHICH SAID CYLINDERS ARE MOUNTED, FOR THE PURPOSE OF DETERMINING THE LICENSE TAX RATE TO BE PAID FOR SAID TRAILERS, UNDER §6292 GC.

2. THE DEFENDANTS ARE ORDERED TO PERMIT THE PLAINTIFF TO CONTINUE THE OPERATION OF ITS TRAILERS WITH THE LICENSE PLATES ISSUED TO IT FOR THE FISCAL YEAR ENDING APRIL 1, 1953, AND NOW DISPLAYED UPON ITS TRAILERS; AND THE DEFENDANTS ARE ORDERED TO ISSUE FUTURE LICENSE PLATES FOR SAID TRAILERS UPON THE BASIS OF THEIR WEIGHT, FULLY EQUIPPED, EXCLUDING THE WEIGHT OF SAID MANIFOLDED COMPRESSION CYLINDERS, MOUNTED ON SAID TRAILERS.

This is an action for a Declaratory Judgment. The plaintiff, The Burdett Oxygen Company, prays that this Court declare and determine, under §6293 GC, that for the purpose of determining the license tax rate to be paid by the plaintiff, under §6292 GC, the weight of the manifolded compression cylinders hereinafter referred to are not to be included in the weight of the trailers, fully equipped, upon which said manifolded compression cylinders are mounted; that the Court order the defendants to permit the plaintiff to continue the operation of its trailers with the license plates issued to it for the fiscal year ending April 1, 1953, and now displayed upon its trailers; and that the defendants be ordered to issue future license plates for said trailers upon the basis of their weight, fully equipped, excluding the weight of said manifolded compression cylinders mounted upon said trailers.

It has been stipulated and agreed by the parties that the sole issue involved, is whether the weight of the manifolded compression cylinders, including all necessary tubing, valves and gauges of the manifolding, shall be included in the weight of the trailers for license tax purposes under said §§6292 and 6293 GC; and it is conceded by the plaintiff that the flat beds, the stake-like metal framework, the steel cables, turn-buckles, H-Beams, header plates, metal box-like housing and wicket shaped bands shall be included in the weight of said trailers in determining the license tax in each trailer of the plaintiff. The defendants are the Director of Highways of Ohio, the Superintendent of the State Highway Patrol, and Robert E. Foley, the Registrar of Motor Vehicles of said state, whose duties include the enforcement and administration of the law pertaining to the registration of motor vehicles and the issuance of licenses therefor.

The case is submitted on an agreed statement of facts and oral testimony.

The plaintiff is an Ohio corporation with headquarters in Cleveland, Ohio; its principal business is the manufacture and sale of compressed gases; about 1600 compression cylinders used in the conduct of its business are manifolded together as hereinafter described and used on the 18 trailers in question; plaintiff obtained license plates for said trailers based upon their weight excluding the weight of the manifolded compression cylinders for the fiscal year ending April 1, 1952; later this Court ordered the defendant, Registrar of Motor Vehicles, to issue the license plates for said 18 trailers for the fiscal year ending April 1, 1953, on the same basis, with sufficient bond by the plaintiff for the balance of the license fee, should the Court hold later that the weight of said manifolded compresr sion cylinders, should be included in fixing the license fee for each of said trailers; plaintiff gave the required bond and the license plates were so issued and are being displayed on said 18 trailers for the fiscal year ending April 1, 1953; plaintiff has in service some 22,000 compression oxygen cylinders and 10,000 compression cylinders used for other gases, of the same standard vertical and horizontal type, which have been included in plaintiff’s personal property tax return; aside from the 1600 manifolded compression cylinders used on said trailers, some 30,000 compression cylinders are used at plaintiff’s manufacturing plant and at the places of business of plaintiff’s customers, such as hospitals, drug stores, foundries, etc.; these manifolded compression cylinders are ordinary standard vertical and horizontal compression cylinders connected to each other by pieces of flexible tubing, screwed onto each cylinder outlet so that all cylinders upon a single manifold, are connected into a common pipe circuit, the size of the manifold and the number of cylinders on the manifold depending upon the use to be made of the manifold; the manifolding of these cylinders is done by plaintiff at its plant, to suit the needs of its customers who require a large volume of compressed gas under high pressure connected to a single outlet, so as to avoid frequent connections and disconnections to individual cylinders; plaintiff uses commercial type tractors and two-wheel and four-wheel trailers in making deliveries of compressed gases to its customers; 80% of its business is smaller deliveries where the cylinders are unloaded from the trailers at the customers’ premises, and they are replaced by discharged compression cylinders of the customers, deliveries to larger customers, being about 20% of plaintiff’s business, involves the use of the 18 trailers in question. These trailers have either 26 horizontal cylinders or 150 vertical cylinders, manifolded together as hereinbefore described, so that the customer may discharge the individual cylinders within the manifold through a single outlet valve; on these large deliveries, a trailer with charged manifolded compression cylinders is placed upon the customer’s premises, and a trailer with discharged cylinders is removed from his premises; these trailers are standard two-wheel and four-wheel trailer chassis designed for use with any commercial truck tractor; on the vertical cylinder trailers, said cylinders stand up-right upon the flat bed of the trailer and are held in place by a stake-like metal framework, about 3 feet high which runs along the outer edges of the flat bed and surrounds the manifolded cylinders in their upright positions, the metal frame work is tightened against the manifolded cylinder trailers by a steel cable and turnbuckles; on the horizontal cylinder trailers, attached to the chassis are 3 or more 4 inch steel H-type cross beams, resting upon the framework of the trailer and of the same width as the trailer, forming the under part of a cradle and support the manifolded cylinders, the cylinders run lengthwise in four tiers and rest upon each other, and the H beams being held in their tiers by steel header plates affixed to the front and rear of the trailer, the header plates form the ends of the cradle, with holes through which the ends of the cylinders project, attached to the header plate at the back of the trailer is a metal box-like structure forming a housing for the manifold tubing and the control valves, the top of the cradle is formed by a wicket-shaped metal band attached to the ends of the H-type cross beam, tightened down against the cylinders by turnbuckles; a charged compression cylinder is discharged by plaintiff’s customers as the compressed gas is used. The pressure maintained by the cylinder makes the gas available for commercial and industrial use by opening a valve on the compression cylinder or on the common outlet of the manifolded compression cylinders, and this pressure can be reduced for any particular purpose of the customer by the use of the reduction valves, which plaintiff furnishes its customers; the gases which plaintiff manufactures and sells are drawn from gas holders where they are stored at atmospheric pressure, and are compressed into the cylinders by high pressure four-stage compressors, and the compression cylinders are special single-purpose equipment specifically designed to maintain and withstand the high pressure essential to the storage and customary use of compressed gas for industrial, commercial, medical and other purposes; the manifolded compression cylinders in no way strengthen or reinforce the trailer, and in no way facilitate the mechanical operation or propulsion of the trailers nor increase or decrease the capacity of the trailers or the cylinders, but merely simplify the customer’s method of discharging the compressed gases from the cylinders by providing a single outlet; the compressed gas industry is some 70 or 80 years old, and there is no way to furnish oxygen or other gases to its customers except in a compression cylinder (R-32-64), and the customer cannot discharge and use the gas unless it is under pressure (R-35-72-73), the primary function of the cylinder is to furnish that force and pressure (R-73-S-7C), accordingly plaintiff must sell the service of the cylinders along with the gas (R-64), the price is much less when the customer buys his own cylinders and the plaintiff merely furnishes gas to charge them (R-15-19), each cylinder retains a separate identity throughout its life and can always be traced and distinguished from other cylinders, (registered R-5-6); cylinders are interchangable, including those manifolded upon the trucks and those not manifolded (R-14-30-S-3), manifolding is advantageous to the customers and plaintiff but has nothing to do with the transportation of the cylinders (R-ll), and does not decrease or increase their capacity (S-8A), manifolding is not peculiar to the trailers in question (R-ll-12-27-28), manifolds are used upon cylinders, large and small, stationary and portable, by plaintiff and its customers, inside and outside, on the ground and on the docks, in charging and discharging cylinders (R-10-14, A-l-2-3), transportation of cylinders is merely a matter of securing them in place (R-ll), they must be tied down while truck in motion (R-ll, 48-49, 74-75), only difference in handling cylinders, is that the manifolded ones, are not unloaded from the trailers when they reach the customer’s place (R-20-21-26-25, 65-66), the manifolded compressed cylinders do their work, after, and not during the transportation (R-24-S-3C).

Under §6292 GC, the rate of license tax increases with weight of the vehicle, but the weight of the vehicle, fully equipped, must be determined in accordance with §6293 GC, the first paragraph of that section provides the measuring rod by which said weight of the vehicle shall be determined, and is as follows:

“The weight of all motor vehicles shall be the weight of the vehicle fully equipped as determined on a standard scale, except the weight of any machinery mounted upon or affixed to a motor vehicle and which is not inherently motor vehicle equipment shall not be included in the determination of the total weight.”

Thus it is apparent, the vehicle weight is confined to “inherently motor vehicle equipment,” and does not include the weight of the load or cargo, for license tax purposes. State ex rel. Tejan v. Lutz et al., 31 N. P. (n. s.) 473; Borden Co. v. Beightler, Director, etc., et al., Case No. 160,509, Common Pleas Court, Franklin County (unreported).

The manner of attaching the compression cylinders to the vehicle which transports them is not determinative of the character of the equipment. State, ex rel. Tejan v. Lutz et al., supra, p. 513, 514, 516.

“Apparently the statute (6293) attaches no particular significance to the manner of affixation of the machinery as a test to determine whether it is inherently motor vehicle equipment, since it specifically eliminates any machinery either mounted or affixed to the motor vehicle provided it is not inherently motor vehicle equipment.”

Borden Co. v. Beightler, Director, etc. et al. supra.

Thus the ultimate question is whether the manifolded compression cylinders are inherently motor vehicle equipment.

In the case of State, ex rel. Tejan v. Lutz et al. supra, decided in 1934, among other things it was held:

“10. When equipment, apparatus, or machinery does not assist in effectuating the purposes of a motor vehicle, but serves other purposes not inherently characteristic of a motor vehicle nor related to its operative mechanism or operative purposes, it is not subject to taxation under the motor vehicle license tax law.”

At the time of the decision in the foregoing case, §6293 GC, read as follows:

“The weight of all motor vehicles, shall be the weight of the vehicle fully equipped * * *.”

Sec. 6293 GC, in its present form was enacted in 1939, and the words, “not inherently motor vehicle equipment,” found therein, appear to have their origin in the scholarly and well reasoned opinion of Judge Douglass in that case. Consequently, the tests and conclusions established then by that eminent jurist, would still appear to afford a sound basis for the interpretation of the present statute.

In delivering his opinion in that case, Douglass, J., on page 512 says:

“The Legislature having rejected rated load capacity as a basis of taxation, the placement of machinery on a truck does not change the basis of the taxation, nor the character of the machinery. Therefore, all equipment, apparatus or machinery not inherently truck equipment and not inherently an integral part of the truck, is plainly a part of the truck load. It is personal property, subject to ad valorem tax, not motor vehicle equipment. Transporting it does not transmute its character.
“If, therefore, it is placed on the body of a truck, it neither loses its identity as such, nor its legal status as personal property * *

“To determine the classification, the inquiries become then:

“First, does the apparatus become an integral part of the truck and form an addition to its structure so that it may be regarded as a part of the truck, itself?
“Second, whether permanent or detachable, is it per se truck equipment?
“Third, does its use indicate it to be functioning as part of the truck for truck uses, or as machinery in itself for its special use and results?
“Fourth, does it carry the truck load, or assist in doing so, or does it merely become an object transported?
“Adaptation of use of a truck to a particular form of business may require the placement of machinery and apparatus on it to perform or accomplish the work of that particular purpose or business, and in such event the rules announced by the court should enable a fundamental determination to be made. Obviously, apparatus which is usuable both on the truck and off is not, generally speaking, per se, truck equipment, but is rather service or trade apparatus, devise, equipment or machinery, for the particular work in which it is used. * * * The most conclusive test is the purpose or use to which it is put, and in practically all cases this test is infallible.”

Douglass, J., had before him in the Tejan case, supra, several defendants and several different types of equipment invoking the determination as to whether such equipments were subject to taxation under the motor vehicle license tax law. He ruled a_s follows:

“12. Grinding mill and motor appurtenance thereto; hoisting winch and engine; welding machine and power plant; tar-spreading apparatus; concrete mixing equipment; hold, not truck equipment within purview of truck license tax law.”

We are fortunate in having Douglass, J., apply his tests and rules of construction to these various types of equipment. Let us follow him in so doing, as we may profit as to their application to the manifolded compression cylinders in the instant case.

Relator, Pfeiffer, had a grinding mill on a Ford truck, operating the mill by a small tractor engine set on the truck. Douglass, J., ruled the grinding mill and its operating engine, “whether on a ground platform or truck platform, being, in fact, designed for use in a stationary position, is milling equipment not motor vehicle equipment. The fact that the owner places it upon the body of the truck and thus transports it to a farm where it is used to grind the corn or grain of the farmers does not change the character of the machinery itself. Not being designed as part of a truck nor truck equipment, its accommodation to transportation over the highways by attachment to the truck frame does not change its character in any respect. Detachment from the basic structure of the truck has no affect on its motive power, nor its grinding; nor does it lessen the motivation or purposes of the truck as such. Therefore, this grinding equipment cannot be computed as part of the weight basis for a license tax.”

Apply the same construction in the instant case, surely the compression cylinders were never designed as part of a truck nor truck equipment, since they are a standard form designed long before we had motor vehicles. Detachment from the truck will not affect their intended use of furnishing compressed oxygen to a customer nor will it affect motivation of the truck. In fact they are used much more, independent of a truck, in factories, hospitals, drug stores, etc.

The relator, Muth Bros., operate a truck with a fixed body platform; on this platform was placed a hoisting winch, a common mechanical device, generally usable anywhere and not customarily used upon a truck, held “does not change the character of the machinery nor its legal taxation classification. * * * not designed to be truck equipment, and it is, in actual fact, on a platform or off, on the ground or off, always a winch.”

Certainly all these observations apply equally to the manifolded compression cylinders in question.

The relator, Weiler Welding Co. placed a welding machine on a regular platform body on its truck, held “The welding machine or apparatus, or any power plant connected with it is clearly not truck equipment.” Transportation, “from place to place to accomplish its work does not convert its character into truck equipment.”

Same observations apply as to compression cylinder in instant case.

Relator Tejan, has “LeBlond-Schact truck with cab and tar tank, pump, gasoline engine, motors, and a distributor. A brief description of this equipment indicates that this tank and equipment form one organized apparatus. The tank is elliptical in shape, and was not bought with the truck. It was specially built on the order of the relator by a welding company for the specific purpose of heating, hauling, and distributing tar on road surfaces. The tank is heavy sheet metal, and of a proper length to be placed on the truck frame. It has, inside along its bottom, two flues, of air-tight construction. The front end of the tank is on skids, and near this end is a tar pump, on the same skids. This pump pumps the tar from the railroad tank, and then by reverse operation by a stop-cock pumps the tar later from the tar tank onto the road. A heating system forces hot air through the flues in the tank, thus heating the tar. Running boards have been placed on the sides of the tank. An air tank and gasoline tank are placed on each side on these running boards, all on the skids. Two coil burners, using gas, produce the heat forced by proper connection into the tank flues. Connections from the tank to distributing spray bars permit the tar pump to force the tar out for distribution on the road. Approximately seventy-five pounds pressure is required in the tar tank. Ford motors furnish direct crank-shaft drive for the pump, and are likewise on the skids. A four inch Viking pump affords pressure against the small pipe-lines running to the syray bar.” Douglass, J., ruled:

“It appears to the court that plainly this is a tar-spreading apparatus: that the tank is connected, in some manner, direct and indirect, to the other equipment. All form one operating unit, consisting of these separate and component parts.
“Analyzing and applying the tests heretofore laid down it seems plain that it is not reasonable or proper to classify this equipment as truck equipment in the purview of the law. * * *”
“The use of this particular equipment must be considered. If the tank were used solely to transport tai:, and thus served a distinct and sole body purpose, without connections with a heating system, pumping and motor systems, it would be classified as a hauling body. However, the tank serves as a processing apparatus as well as a containing receptacle. The tar must be volatilized to a requisite degree, and this is done, with a resulting requisite pressure. Further, the distributor system is, in fact, part of the force system, dependent both on the pump and the volatilization of the tar in the tank.
“It appears to the Court that this complete equipment is a tar-spreading outfit, and while it does help convey the tar, there is more than conveyance accomplished. Mere conveyance could not result in the final effect, that is, uniform tar-spreading on the road surface. Therefore, since the engine, motors, air tank, gasoline tank, and pump are all connected with the tank, and since neither the apparatus nor the tank is a self-contained unit, the court regards the entire as a unit for processing, hauling, and distributing tar. It is attached to the truck frame for seasonal use, and its removal does not disturb the frame of the truck. Therefore, the court believes a rule of reasonable construction must hold that this is not truck equipment as contemplated by the Legislature. * * * “The equipment of the relator, Frank Tejan, has been distinguished both by its construction and its use from the ordinary tank car truck.”

The relator, Ready Mixed Corporation, “operates a plant to make concrete mix ready for delivery to users: this plant has a daily capacity of two hundred yards of ready mixed concrete. The aggregates are mixed at the plant by a Rex 28-a motor driven mixer, and after being briefly mixed the concrete is discharged into Rex motormixers, for delivery to the users. These motormixers hold three cubic yards, and are mounted on Schact trucks. The company advertises that it sells concrete ready prepared at the plant, dry batching, or transit mixed concrete. The Rex motormixers may, therefore, be used to convey the concrete completely mixed, to finish mixing it, or to mix it completely in transit. It is reasonably understood that even if the purpose is to convey the completely mixed concrete some degree of rotation while the same is in process of delivery would be natural and promotive of better concrete. Here, then, is found equipment which transports the load, and may and does, through special mechanism, process the load contents at the same time. It performs one function of motor vehicle equipment in that it holds and contains the load, but, on the other hand, it is obviously a complicated mechanical device, connected and made an integral part of productive machinery. Certainly the obvious and primary purpose of this machinery is to make concrete out of the necessary component materials. A simple drum, or steel body, might serve to haul concrete ready mixed at the plant. This machinery is capable of actually making the concrete and is, at times, used for that specific purpose. It consists of a large cylinder, revolving in drum-like manner, an engine and motor, mechanism to operate the cylinder, a charging and discharging opening and vents, and a delivery device. This is all mounted as one unit on a platform, which is attached to the truck frame or body. The cylinder is integrated with the motive power and the mechanical devices constituting the complete machine. The entire appartus is detachable and removable from the truck without any effect either on it or the truck. Every container or receptacle in which a load is placed is not necessarily a part of the truck upon which it rides. It is necessary to analyze both its inherent nature, its characteristics and its primary purpose.

“This equipment is usable off the truck as well as on it, and its integral parts remain intact, constituting a complete unit when removed from the truck. It is, therefore, not motor vehicle equipment but, obviously concrete mixing equipment.”

In the two cases the relators, Tejan, operated a tar-spreading outfit, including a tank to transport tar; and Ready Mixed Corporation made mixed concrete, which it transported to the users in Rex Motor mixers, both involved containers that were filled and emptied without removing the containers from the truck, and both involved the use of containers in the process of transportation; these characteristics are similar to the compression cylinders in question, which are filled and emptied without being removed from the trailers and which serve as containers in the process of transportation.

Douglass, J., in these two cases found, however, that the primary purpose of the equipment in the one case was to spread tar upon the road, and in the other case to make mixed concrete; that, consequeñtly, neither was inherently motor vehicle equipment; and that, therefore, neither set of equipment should be included in the weight basis on which to compute the motor vehicle license tax. By comparison the primary purpose of the compression cylinder is to furnish oxygen flow under high pressure in commercial, industrial and medical use.

It is the primary use, as distinguished from the incidental use, of equipment that determines its tax status. Mead Paper Corp. v. Glander, 153 Oh St 539.

The evidence, undoubtedly, shows in the instant case the use of the cylinders as a means of transportation is, at most, merely incidental; and, that really instead of assisting in the carrying of the truck load, it merely becomes an object to be transported as a part of the truck load, and not subject to taxation under the motor vehicle license tax law. The customer does not merely purchase oxygen but compressed oxygen, and the only means of making that available is by the use of the cylinders. In fact the customer purchases a cylinder of compressed air, the same as they purchase a barrel of vinegar or a keg of beer; and the ownership of the container is not significant as the custom in most cases is to put up a deposit for its return.

In the opinions of the Attorney General for 1941, No. 4029, the Attorney General, Thomas J. Herbert, later Governor, ruled that:

“The question of whether or not a demountable container placed on a truck chassis or semi-trailer, and held in place thereon by its own weight and by corner angle irons into which it fits, constitutes motor vehicle equipment, the weight of which is to be included in the total weight of the vehicle in determining the proper motor vehicle license tax, is a question of fact to be determined by the use to which such container is put.”

The Attorney General referred to the case of State, ex rel. Tejan et al., supra, as the only case in Ohio of any substantial assistance.

In the opinions of the Attorney General for 1942, Attorney General Herbert again ruled:

“A framework and drawers which are placed on a truck and used to carry bakery products do not constitute motor vehicle equipment under the provisions of §6293 GC, and therefore, the weight of such equipment should not be included in the total weight of the vehicle in determining the proper motor vehicle license tax.”

The Attorney General observed in this ruling:

“It is apparent from the language of the foregoing statute (§6293 GC), that the Legislature did not intend that every piece of equipment, whether permanently or temporarily affixed, should be considered motor vehicle equipment and included in the taxable weight.”

He then cites the Tejan case, supra, particularly pages 512 and 513 wherein Douglass, J., said in part:

“Obviously, apparatus which is usuable both on the truck and off is not, generally speaking, per se, truck equipment, but is rather service or trade apparatus device, equipment or machinery, for the particular work in which it is used.”

Thereupon, the Attorney General referring to such trade equipment says:

“Such accessories are not manufactured or designed to be truck equipment.”
“In the instant situation, the cabinet, tested by the foregoing rules, obviously does not constitute motor vehicle equipment. It is mereiy a trade accessory and serves the same practical purpose as sacks, baskets, boxes or other similar objects, which cannot be considered, by any stretch of the imagination or reason as per se motor vehicle equipment. * * * This accessory merely facilitates the handling of the bakery products. Detachment of the cabinet from the structure of the truck in no way lessens the motivation or purposes of the truck as a transportation unit. For these reasons, it appears that such cabinet does not constitute motor vehicle equipment.”

All of these observations of the Attorney General, concerning such trade accessories, fit the characteristics of the manifolded compression cylinders of the plaintiff, the very purpose of the manifolding is to facilitate the use of the compression cylinders by the larger users of the compressed gases, the cylinders themselves serve the same practical purpose as barrels for vinegar or kegs of beer, and certainly such cylinders are not designed to be truck equipment, as they are a standard type, in use long before we were blessed with motor vehicles. These manifolded compression cylinders are interchangeable with those not manifolded, usable both on the trailers and off, in fact, many more are used off of trucks in the industrial and commercial world, on the ground, docks, welding shops, hospitals and drug stores; and detachment from the trailers, in no way affects the trailers as transportation units, nor the primary use of the compression cylinders themselves.

In the case of Borden Co. v. Beightler, Director, etc., supra, an eminent member of this court of many years fine experience, Randall, J., passed on a similar question as the one in the instant case, in a well reasoned opinion, which unfortunately is unreported, being the only court opinion concerning the application of §6293 GC in its present form, to equipment mounted on motor vehicles either as inherently motor equipment or trade accessories. Randall, J., referred to' Judge Douglass’ “well considered case,” Tejan case, supra, in which it was determined that when such equipment “does not assist in effectuating the purposes of a motor vehicle, but serves other purposes not inherently characteristic of a motor vehicle nor related to its operation, mechanism or operative purposes, its weight is not subject to taxation under the motor vehicle license tax law.”

Randall, J., also observed:

“No ambiguity is presented by the words ‘not inherently motor vehicle equipment’ as employed in the statute. The word ‘inherent’ means existing as an element of original quality; naturally pertaining to a subject; permanently or inseparably existing in a subject, accordingly the word ‘inherently’ should be applied in concurrence with its original and accepted usage and meaning. Where there is no ambiguity there is no room for construction, since the court must consider that the legislative intention was as expressed by the plain words of the enactment. Therefore, in our opinion, it is not necessary or proper for us to consider the legislative history of §6293 GC, or the matter of legislative policy in furtherance of the principle that the greater the weight of the traffic on the highways, the greater the expense of maintenance. In our opinion, it is not necessary, therefore, to resort to any of the extrinsic aids to construction employed by courts in applying statutes where the language employed is obscure, ambiguous or uncertain in meaning.”
“The function of a motor truck or vehicle is transportation of persons or goods on the public highways. Consequently any machinery which aids or facilitates this function is inherently motor vehicle equipment. Conversely, machinery which does not aid or facilitate transportation is not inherently motor vehicle equipment.” * * *
“Obviously, the cooling of the inside of the truck in no way facilitates the movement of the vehicle, nor does the refrigeration equipment provide additional space for cargo. * * *” “The functional test would seem to be the real determining factor in the question at issue.” * * * “Modern science has provided an efficient and more convenient agency than ice and to impose a tax upon such an agency would be to inflict a penalty upon progress with the consequent tendency to discourage modern efficient preservation of food product.” * * *
“The * * * equipment in question is not especially designed to fit into any particular truck, and the same is removable and may be practically utilized for refrigeration purposes generally not in connection with a truck. Furthermore, while the truck is not in motion or upon the public highway, the equipment in question is performing its function. Our conclusion is that the mechanized refrigeration described in the stipulation of facts is neither an integral part of the vehicle, either structurally or mechanically, and that said equipment is employed in the function of refrigeration rather than in the function of transportation.”

The mechanical refrigeration described in the stipulation of facts, briefly, consists of a gas compressor, electric motor, vacuum plates, necessary tubes, hose and valves to connect the plates to the compressors. The vacuum plates are the devices that cool the inside of the truck; the plates are usually 24 inches in width, 54 inches in length and 2 5/8 inches thick; the vacuum plates are filled with a “eutectic solution, which is a gelatinous substance.” When cooled it remains cold for a long period of time and its most important characteristic is its heat absorbant powers.

Counsel for the defendants stress the fact that the 10th headnote in the Tejan case, supra, covered “equipment, apparatus, or machinery,” but the Legisalture has seen fit to exempt only “machinery” from the tax. This is true, but the statute qualifies the word “machinery” * * * “which is not inherently motor vehicle equipment” (emphasis ours), so we are at least using the words “machinery” and “equipment” from Judge Douglass’ masterful application of tests and constructions. The truth would appear to be that the word “machinery” was chosen as best covering all three terms used by Judge Douglass. Among the definitions of machinery we find the following in Funk and Waganalls Practical Standard Dictionary:

“Any combination of means working together; a complex system of appliances.”

Apparatus is defined by the same text as:

“A complex devise or machine, or a set of tools, appliances, etc.”,

and equipment is defined as

“Whatever constitutes an outfit for some special purpose or service.”

In any event, compression cylinders, the valves, gauges, manifolding and safety devises which constitute the lay-out in question, well qualify as machinery, apparatus or equipment.

This court agrees with Douglass, J., in the Tejan case, supra, that if weight on the highways alone was a determinative factor, these trailers and equipment, like the concrete motor driven mixer, might justify special classification under special legislative provision; this is true, for the further reason, that the equipment on these trailers performs one function of motor vehicle equipment in that it holds and contains the load, (product sold) but, on the other hand, is a mechanical devise, whose primary purpose is to furnish compressed gases; but the Court is of the opinion that this is not now done. The Legislature not having exercised this prerogative, however, the Court regards it beyond the duty of the Court to classify this equipment as motor vehicle equipment. As was said in the case of State, ex rel. Transportation Assn. v. Zimmerman, Secy, of State, 181 Wis. 552;

“It is not necessary in a measure of this kind that it should be the most just or scientifically exact measure, nor is it necessary that each provision of the measure should be justified in whole or in part by economic or other reasons.”

But applying the fundamental tests and rules of constructions laid down by Douglass, J., in the Tejan case, Randall, J., in the Borden case, the case of Mead Corp. v. Glander, and the 1941 and 1942 opinions of the Attorney General, all supra, and considering the nature of the legislation, the intendment of the law, and the definition of terms provided in it, this Court is constrained to reach the inescapable conclusion that the manifolded compression cylinders, in question, mounted on the trailers of plaintiff, and used in not only the delivery but primarily in the use itself of compressed gases, do not constitute motor vehicle equipment, per se, under §6293 GC, and therefore, the weight of such equipment should not be included in the total weight of the trailers in determining the proper motor vehicle tax for such trailers.

The Court, therefore, finds and declares that the manifolded compression cylinders of the plaintiff, are not inherently motor vehicle equipment, under §6293 GC, and the weight thereof, shall not be included in the determination of the total weight of the trailers of the plaintiff, fully equipped, upon which said cylinders are mounted, for the purpose of determining the license tax rate to be paid for said trailers, under §6292 GC.

The defendants are ordered to permit the plaintiff to continue the operation of its trailers with the license plates issued to it for the fiscal year ending April 1, 1953, and now displayed upon its trailers; and the defendants are ordered to issue future license plates for said trailers upon the basis of their weight, fully equipped, excluding the weight of said manifolded compression cylinders, mounted on said trailers.

An entry may be drawn accordingly with exceptions reserved by counsel'for the defendants.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    DEPENDABILT HOMES, INC., Plaintiff-Appellee, v. WHITE et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4612.
    Decided October 25, 1951.
    Jack M. Parrish, Columbus, for plaintiff-appellee.
    Carlisle O. Dollings, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court decreeing the cancellation of a land contract between the parties wherein the plaintiff was the seller and the defendants the buyers.

At the time of the filing of the petition, the defendants were in arrears in the payment of three installments of $46.00 each which they were required to pay monthly on the purchase price. The contract provided among other things that,

“On default in the payment of one of the above installments of the purchase money for a period of thirty (30) days after it becomes due, first party reserves the right to declare this contract null and void without notice thereof to second party, their heirs and assigns, and without demand of payment on them, and in such event, first party may re-enter and repossess the above described premises and be seized thereof as of his first and former estate, and all payments made hereunder by second party, shall be retained by first party as rent for said premises and as liquidated damages for the breach of this contract. * * *”

It further appeared that in December, 1949, plaintiff had filed a similar action to cancel said contract for default in monthly installments due, which action was voluntarily dismissed after default payments made. The alleged breach of the contract was the basis of plaintiff’s prayer for rescission thereof. The defendants answered admitting the default pleaded and setting up certain equities claimed to have arisen because of the payments made by defendants under the contract from the date of its execution, April 29, 1946, until the time of the filing of the petition.

The total paid by defendants on the purchase price was $3096.00, including a down payment of $750.00. The property was of the fair market value of $6000.00 to $7000.00. Defendants had made extensive and substantial improvements to the real estate amounting to at least $800.00 and had paid taxes for the years 1946 and 1947 and 1948.

Upon hearing, the trial judge wrote an opinion in which he held there was a clear breach of the contract, that the damages were liquidated and not a penalty and plaintiff was entitled to the relief sought.

After answer day, and before the cause came on for hearing, defendants, by counsel, offered to pay to plaintiff all payments due under the contract with interest, all delinquent taxes, all court costs and $25.00 attorney’s fees for plaintiff. This offer was not followed by any specific tender, but was refused, without qualification, by the plaintiff. Thereafter, and before the cause was submitted on its merits, defendants repeated the foregoing offer, which was refused, and later tendered to the Clerk of Courts the sum of $3500.00, same being sufficient money to pay off the land contract, interest and court costs. This tender was made on March 19, 1951. The case was tried on its merits on February 5, 1951. The written decision together with findings of fact and conclusions of law was entered on March 9, 1951. Thereafter, on March 19, 1951. defendants moved to reconsider the decision and at that time deposited with the Clerk of Common Pleas Court the sum of $3500.00 in cash, a sum more than sufficient to pay the entire purchase price including default payments due to the plaintiff under the land contract together with interest, taxes and court costs as of&that date. This tender was refused by the plaintiff. Thereafter, on the 29th of March, 1951, -the trial judge overruled the motion for reconsideration, entered a judgment on the decision of March 9, 1951, ordered cancellation of the land contract, awarded immediate possession of the premises to the plaintiff and taxed the costs against the defendants. The tender of $3500.00 is still on deposit with the Clerk of the Common Pleas Court and plaintiff still refuses to accept the same.

An appeal bond was fixed and given and the cause proceeds in this Court upon questions of law and fact.

It would serve no good purpose to discuss at length the law controlling the adjudication of this appeal in this Court. Suffice to say, that we hear and determine the case de novo weighing the evidence and resolving it as upon original hearing. The suit is in equity and is controlled by the broad basic principles of equity. Although it is said that equity follows the law there is always reposed in the Court a discretion as to the granting of the remedy sought. Upon the whole aspect of the case, is the relief sought equitable, balancing the equities? Do they prevail in favor of the party who seeks the relief?

The contract sued upon carries this language:

“Further, when said premises are fully paid for, together with interest, taxes and assessments named in this agreement, first party agrees to make, execute and deliver unto second party, their heirs or assigns, on surrender of their duplicate contract, a Warranty Deed for the real estate aforesaid, * *

Without respect to the default of the defendants, before any judgment by reason of said default was entered the defendants offered, by tendering the full balance due, to abide by the terms of the contract heretofore quoted. Had plaintiff accepted this sum it would not again have been inconvenienced or embarrassed by the failure of the defendants to pay their monthly installments.

From the time that the contract was made in 1946 until the petition was filed in 1951, a period of five years, there is no showing that the defendants habitually or extensively violated the terms of the contract. When then, they were ready, able and willing to pay the purchase price and all incidents thereto required by them to be paid under the contract, it appears to this Court as being inequitable to order the cancellation of the contract in its entirety and to take from the defendants the equity which has accrued to them in the real estate to an amount approximating at least one-half of its market value.

This Court in the case of Morris v. Banning, Inc., 49 Abs 534, decree specific performance of a contract on behalf of a vendee after his breach of the contract and declaration of forfeiture by the vendor, upon tender by the vendee of the amount due on the contract six days after the trial of the cause.

In State, ex rel. Apple v. Pence, 137 Oh St 569, the Court held:

“In exercising the extraordinary power of mandamus a court should take into consideration the facts and conditions existing at the time it determines to issue a peremptory writ.”

The Court did not speak here until the judgment was entered. There is analogy between the writ of mandamus and the decree sought here. The discretionary power of a court in awarding an equitable remedy is broad.

The rule which should be followed in this case is found in the second syllabus of the Norpac Realty Co. v. Shackne, 107 Oh St 425:

“Where the seller and purchaser under a land contract have agreed that upon failure of the latter to pay installments of the purchase price the contract should be forfeited and payments made retained by the seller as stipulated damages, and the purchaser is unable or unwilling to pay the remaining installments as agreed, the vendor is entitled, subject to the foregoing qualification, to bring an action quieting his title and rescinding the contract, without tendering back the payments made.” (Emphasis ours.)

The qualification which would preclude the rescinding of the contract is found in this case.

We enter the judgment in this Court upon the principle that upon all the facts appearing it would be inequitable and unjustified to accord to the plaintiff the relief sought. We do not make any affirmative order in behalf of defendants because there is no pleading which would support it.

The relief sought will be denied and the petition dismissed.

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


author: By WISEMAN, J:

text:
    RICE, Plaintiff-Appellant, v. REED, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2108.
    Decided November 21, 1951.
    John H. Ober, Cleveland, for plaintiff-appellant.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County.

The action was one for damages based on an alleged assault and battery. At the close of all the evidence the court directed a verdict for defendant. The action of the court in directing the verdict is the only error assigned.

Was the evidence sufficient to warrant the trial court in submitting the matter to the jury? We do not think so. Assault and battery is defined in Vol. 3, O. Jur., Page 209 as follows:

“An assault and battery is the unlawful striking, beating, or wounding of another. It is complete when an assault is accomplished.”

On page 208 of the same work an assault is defined as follows:

“An assault is an act done towards the commission of a battery, immediately preceding the battery, when the next movement would, at least to all appearance complete the battery. It has been defined as menacing or threatening another without touching his person.”

There is no evidence in this case that the defendant approached plaintiff in a menacing or threatening manner or touched her person in any menacing or threatening manner or with a design to commit violence. The evidence shows that the defendant did lay her hands upon the shoulders of the plaintiff and requested her to quit talking about her. The evidence shows that there was no damage which would form the basis for the allowance of compensatory damages and no malice shown which would form the basis for the allowance of punitive damages.

In our opinion a verdict of the jury in favor of the plaintiff on the evidence submitted would have been set aside on the ground that the evidence was insufficient to support the verdict. In our opinion justice has been done between the parties.

Finding no error in the record prejudicial to the plaintiff, the judgment is affirmed.

HORNBECK, PJ, MILLER, J, concur.


author: By PHILLIPS, PJ.

text:
    BROWN, Plaintiff-Appellee, v. ARLENE SHOPS, Inc., Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 674.
    Decided January 16, 1950.
    Ben H. Berman, East Liverpool, for plaintiff-appellee.
    David Steiner, Youngstown, Vodrey, Vodrey, Buzzard & Shay, East Liverpool, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

Plaintiff, employed, during the years 1943 to January 1947, by defendant as manager of Arlene Shops, Inc., operated by it in East Liverpool, Ohio, sued defendant in the municipal court of that city to recover five hundred dollars allegedly due her from defendant under a verbal contract entered into in August, 1945, for services rendered during such time in opening and securing a manager and assistant manager of a ladies outlet store operated by it in East Liverpool, which was formerly known as the Kiddie Shop, and not then in operation, and selling the stock thereof.

In the municipal court the parties waived trial by jury and submitted their case to the trial judge, who found for the defendant and entered judgment accordingly.

Plaintiff appealed from the judgment of the municipal court of East Liverpool to the court of common pleas of Columbiana County; which court reversed the judgment of the municipal court on the ground that it was against the manifest weight of the evidence, and entered judgment accordingly.

Defondant appealed from the judgment of the court of common pleas to this court on questions of law. Defendant contends that the judge of the court of common pleas erred to its prejudice “in disregarding evidence introduced in behalf of the appellant, the Arlene Shops, Inc., as appears by the bill of exceptions”; “in taking evidence of Mr. Berman, attorney for Dolores Brown, appellee, as being absolute and unquestionable”; “in reversing the judgment and decision of the municipal court of East Liverpool, Ohio”; and claims “other errors upon the record of the court of common pleas.”

In our opinion no useful purpose would be served by further reference to the evidence, other than to say that plaintiff claimed and introduced evidence in her attempt to prove her claim; and defendant denied and introduced evidence in an attempt to support its denial of the existence of the claimed contract.

The bill of exceptions has been read and the conclusion is reached that the judge of the court of common pleas did not err to defendant’s prejudice in any of the respects charged by defendant, except as noted herein; nor in finding that the judgment rendered by the judge of the municipal court of East Liverpool was against the manifest weight of the evidence. Accordingly the judgment of the court of common pleas finding that the judgment of the municipal court of East Liverpool is against the manifest weight of the evidence is affirmed.

However, we conclude that .the judge of the court of common pleas erred to defendant’s prejudice in entering final judgment for the plaintiff; and in that respect the judgment of that court is reversed and the cause is remanded to the Municipal Court of East Liverpool for further proceedings to be had in accordance with law.

Judgment affirmed in part and reversed in part.

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


author: By THE COURT:

text:
    BALLINGER, Plaintiff-Appellant, v. DAYTON (City), Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2207.
    Decided December 3, 1952.
    A. K. Meck, P. L. Birt, Dayton, for plaintiff-appellant.
    Herbert S. Beane, Maurice J. Gilbert, Dayton, for defendantappellee.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court rendered upon the sustaining of a demurrer interposed by the defendant. The question thereupon presented is whether the petition states a good cause of action. The petition sets forth three grounds for personal injuries received by the plaintiff as the result of being run into by a whirling type power lawn mower with rotary blades which were not adequately guarded.

It appears that the plaintiff, a county employee, and an employee of the City of Dayton, were both engaged in cutting grass at Westwood Park, a public park of the City of Dayton, Ohio; that while so doing the defendant’s employee either lost control of or permitted his machine to get out of control ana run into the plaintiff, resulting in the injuries complained of. The petition was grounded upon the following propositions:

(1) That since the mower was not adequately protectea it was a nuisance under §3714 GC.

(2) That the job of maintaining the Park was a proprietary function and that in so doing the defendant was guilty of negligence.

(3) That by reason of the manner in which it was being operated it was a qualified nuisance.

Now, was this machine a nuisance for which the City is liable under §3714 GC, which provides:

«* * * The council shall have the care, supervision and control of * * * public grounds, * * *, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

We are in agreement with the trial court in its conclusion that the power mower which caused the injury cannot be brought within the provisions of the cited section of the General Code, either as an absolute or a qualified nuisance. In City of Wooster v. Arbenz, 116 Oh St 281, the Court lays down the rule that in order for a municipality to be liable for damages for maintaining a nuisance under §3714 GC the negligence must relate to a condition of the premises themselves, and the damage caused by a defective condition, thereof. The third paragraph of the syllabus provides:

“The duties and obligations thus imposed are in derogation of the common law and must therefore be strictly construed, and the provisions of that legislation cannot by implication or interpretation be extended to make a municipality liable for the negligence of its servants while engaged in the act of making improvements to streets, unless such negligence relates to a condition of the street itself and the damage is caused by a defective condition thereof.”

This case was recently affirmed in Wall v. City of Cincinnati, 150 Oh St 411, the third paragraph of the syllabus of which we quote:

“A qualified nuisance is not shown by the allegations of a petition from which it appears that a municipality was engaged in the performance of its statutory duty of caring for its streets and there is no allegation showing a defective condition in the street itself. (Paragraph three of the syllabus in the case of City of Wooster v. Arbenz, 116 Oh St, 281, approved and followed.!”

In comparing the case at bar with the law pronounced in chis syllabus it will be noted that here the defendant was engaged in the statutory duty of maintaining the park and there is no allegation of any defective condition in the park premises themselves. We can find no distinction between our case and the Wall case, supra. Therefore, we must hold the defendant did not fail to perform any duties required of it under §3714 GC.

In attempting to hold the defendant liable for its negligent acts the amended petition alleges:

“Said park is held and maintained by the defendant in its proprietary capacity, and citizens may use same for playground purposes; for some of said uses, permits and special authority must first be obtained, and the people who are allowed to use the same must pay the city of Dayton, Ohio, for the use thereof.”

It appears to us the allegation that the operation of the park was a proprietary function is a legal conclusion which is not supported by the mere allegation that for some uses a permit had to be obtained for which a fee was charged. The motive in charging a fee may not be for profit but for regulation or other purposes. The fact that revenue is incidentally derived from public property does not in and of itself alter the public character of the use. Toledo v. Jenkins, 143 Oh St 141. See also State, ex rel. Hepperla v. Glander, No. 4097. Franklin County, decided by this court October 24, 1952, 94 Oh Ap 187. The law seems to be well established that in the construction and maintenance of a park or swimming pool for the use and benefit of the general public a municipality acts in a governmental rather than a proprietary capacity and while so acting a municipality incurs no liability for common law negligence. Selden v. City of Cuyahoga Falls, 132 Oh St 223. The allegations of the amended petition do not state sufficient facts to charge that the defendant was acting in a proprietary capacity and, therefore, a good cause of action is not stated.

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

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


text:
    THOMAS, Plaintiff, v. DYE et, Defendants.
    Common Pleas Court, Franklin County.
    No. 180812.
    Decided September 11, 1953.

      James M. Hengst, Columbus, for plaintiff.
    Maugan & Vacca, Columbus, for defendant.
   OPINION

By BARTLETT, J.

HELD THAT THE ACCOUNT AT THE BUCKEYE FEDERAL SAVINGS AND LOAN ASSOCIATION IN THE NAME OF OLETA SINCLAIR DYE WAS SET ASIDE AS A LIVING PERFECT TRUST FOR THE BENEFIT OF ELEANOR THOMAS, NOW DECEASED, AND JOHN S. THOMAS: AND THAT SAID TRUST SHOULD BE TERMINATED.

THE COURT, THEREFORE, ORDERS SAID ACCOUNT PAID TO JOHN S. AND EDWARD S. THOMAS.

This is an action for a declaratory judgment as to ownership of a savings account in The Buckeye Federal Savings and Loan Association. The claimants on one side are the plaintiff, John S. Thomas, and the defendant, Edward S. Thomas, who are brothers; and on the other side are the defendants, Flora Elder Dye, individually and as executrix of the Estate of her deceased husband Clair Albert Dye, known as Dean Dye due to his long connection with Ohio State University, and William L. Maugan, as administrator of the estate of Oleta Sinclair Dye. When the Buckeye federalized, a search for the ownership of dormant accounts brought to light this account standing in the name of Oleta Sinclair Dye in the sum of $6900.00.

Oleta Sinclair Dye was the first wife of Dean Dye and the petition alleges that on October 18, 1922, she executed a declaration of trust in writing attached to the petition and known as exhibit “A” in which she declared herself as holding in trust all her property for her use and benefit during her life, after her death for the use and benefit of her husband, Dean Dye, during his life, then for the education of Eleanor Thomas and John S. Thomas, and any residue thereafter, to be divided equally between said Eleanor and John S. Thomas.

Oleta Sinclair Dye died in 1924, after establishing this so called declaration of trust, leaving her estate in possession of her husband, Dean Dye, as they had no children. This account consisted of running stock in the Buckeye which Dean Dye never changed to his name, and there was never any administration of her estate. Dean Dye educated and in part supported Eleanor Thomas who died intestate in 1929, leaving as her sole heirs, John S. Thomas and Edward S. Thomas. Dean Dye died in 1949 intestate, leaving Flora Elder Dye as his widow and sole legatee. Oleta Sinclair Dye was a sister of Tempe S. Thomas, the mother of John S., Eleanor and Edward S. Thomas, and their father, a Columbus attorney, died in 1916, leaving Edward S. then in law school and the other two young children, ages about 6 and 8 years. A close attachment apparently existed between the Dye and Thomas families and due to the death of their father, the relationship naturally became closer since the Dyes had no children of their own. Eleanor was a student at Columbus School for Girls and the Dyes contributed to her education there; and in 1922 Mrs. Dye learned she was suffering from cancer, and shortly thereafter executed the purported declaration of trust. There is evidence that the deposits came from an inheritance from her family, and she never made any withdrawals from the account which grew with the years.

The purported declaration of trust was in the handwriting of Oleta Sinclair Dye and was found by the wife of Edward S. Thomas among the personal belongings of Tempe Thomas after her death in 1943; and said paper reads as follows:

“October 18, 1922
“Tempe and Edward:
Clair has assured me that he will see that Eleanor and John are educated. But in case anything prevents his doing so, I want to leave this as my last will and I wish all my money and possessions to be used to educate and take care of Eleanor and John — My jewelry to Eleanor — In case Clair remarries (which I hope he shall and have a home) I want Eleanor to have my linens, silver, china and the old furniture, which belonged to Mother. They would not mean anything to a stranger — The Bureau that Bella has was given to me by Mother and was to return to me after Bella was thru with it.
“My share of our possessions to be used by Clair as he sees fit and then at his death to be given as above stated to educate Eleanor first and if any left educate John — and residue if any, divided equally. Have expressed my wishes to Edward, personally and hope he will see that they are carried out.
/s/ Oleta Sinclair Dye”

The owner of personal property may by an oral or written declaration, without any consideration, declare himself trustee of the property for a beneficiary. The declaration must, however, be complete and in praesente, for the reason that the creation of a voluntary trust must amount to a complete transfer of the equitable interest. Such a declaration is effective to transfer the equitable interest to cestui que trust. Such a trust, which is made to take effect after the death of declarant, being complete and thus creating a perfect trust, is not testamentary and is valid though the will’s act is not complied with. Bruer v. Johnson, 64 Oh St 7; Lamkin v. Robinson, 16 Oh Ap 440; Jones v. Luplow, 13 Oh Ap 428; Worthington v. Redkey, 86 Oh St 128.

The intention to become a trustee in a present trust must be clearly expressed. Flanders v. Blandy, 45 Oh St 108. Generally, intention to create a trust may be determined by construction of and inference from what the trustor has said or done, the nature of the transaction, and surrounding circumstances. A trust based upon such determination of intention to create it by construction and inference is an express trust. 3 Pomeroy Equity Jurisprudence (5th Ed.) Sec. 1011. The inference may be made from declarations construed in the light of the situation and relation of the parties, the character of the property, and the purpose of the one making the declaration. 54 Am. Jur. Trusts, Sec. 53, p. 62-63.

Counsel for plaintiff argue that the evidence adduced at the trial developed the fact that Oleta Sinclair Dye had created this trust at the inception of the savings account in 1914, instead of the trust having been originally created by her declaration of 1922, and that this declaration was only an additional manifestation of the creation of such trust. On the other hand counsel for Plora Elder Dye charge that this constitutes a change of cause of action, since the allegations of the petition rely solely on the alleged written declaration of trust, and that plaintiff cannot vary that declaration by verbal testimony.

The court is inclined to the view that counsel approaches the problem with a construction too narrow to be justified. After all, the writing itself is only evidence which must be construed in the light of the surrounding circumstances as heretofore pointed out.

“The fact that one seeking recovery of property founds the claim on an express trust, and disclaims a resulting one, does not prevent the court from treating it as the latter if it is such in fact.” 54 Am. Jur. Trusts, Sec. 601, p. 465.

“An express agreement to the same effect as a resulting trust does not preclude the existence of the resulting trust, where the essential elements of a resulting trust are present.” 54 Am. Jur., Trusts, Sec. 195, p. 154.

It would seem to follow that a written declaration of trust at a later date should not preclude the existence of an implied trust to the same effect, founded in parol and upon the acts and conduct of the creator of the trust. In fact the creator of the implied trust of 1914 may have had a very substantial legal reason for the written manifestation of such trust. This will be discussed later.

“Transfer and delivery of the res or trust instrument are not required to a declaration of trust.” 54 Am. Jur., Trusts, Sec. 42, p. 53.

“2. It is not necessary to a completion of such trust that the settlor part with the possession of the trust property.” Jones v. Luplow, et al., 13 Oh Ap 428.

J. Farr, in delivering his opinion in the foregoing case, at p. 434 says:

“The strong weight of authority is to the effect that the creation of a trust, if otherwise unequivocal, is not affected by the settlor’s retention of the instrument of trust, especially where he is himself the trustee.”

followed by the citation of numerous authorities.

“A trust may be completely created without any necessity of, or requirement for, notice to the cestui que trust. Its creation is entirely with the settlor, and if his intention is clear, and the requisite acts are done by him, notice or knowledge or acceptance on the part of the beneficiary is not required.” 40 O. Jur., Trusts, Sec. 30, p. 164; and

“It is unnecessary to give the trustee notice of his appointment as trustee. He may not learn of the appointment for years after it is made, and yet the trust may be perfectly created. His conduct may amount to approval.” 40 O. Jur., Trusts, Sec. 31, p. 164.

“Usually, however, since the creation of the trust is beneficial to the cestui que trust, his approval may be presumed.” 40 O. Jur. p. 164, supra; “and since, however, any grant is presumed to be beneficial, in the absence of a refusal to act the trustee is presumed to accept the trust.” 40 O. Jur., Trusts, Sec. 59, p. 204; Harvey v. Gardner, 41 Oh St 642.

In view of the normal relation and conduct between husband and wife toward the objects of their bounty and affection, there is ample evidence in the record to warrant the conclusion that Dean Dye knew of his first wife’s declaration of trust; and that his conduct amounted to an approval and acceptance thereof.

Counsel for Flora Elder Dye rely on the statute of limitations as a defense. A trust exclusively within the jurisdiction of equity is not barred by time. Paschall v. Hinderer, 28 Oh St 568. Lapse of time is generally no bar between a trustee and a cestui que trust. Williams v. Presbyterian Society, etc., 1 Oh St 478; but otherwise where trustee disclaims the trust. Carpenter v. Canal Co., 35 Oh St 307, 317.

It is argued by counsel for the present Mrs. Dye that the trust, if any, was terminated upon the completion of the education of Eleanor and John, more than six years prior to the filing of the instant action; but this contention overlooks the fact that this trust is not even confined to the education of the cestui que trust, since the declaration expressly states, “to educate and take care of Eleanor and John” (emphasis ours), and “residue, if any, divided equally.” This then is not a trust for certain purposes which leaves a surplus after the trust is fully performed, where it becomes a question of the persons for whom the trustee shall hold it in trust (40 O. Jur. p. 251), since the trust declaration expressly provides the “residue, if any, divided equally” between Eleanor and John, and the distribution of the residue would be in his capacity as trustee. The matter being solely between the cestui que trust and the trustee, the statute of limitations has no application, unless the statute has been set in operation by a “sufficient manifestation of renunciation of the trust duties to constitute notice to the cestui que trust.” 40 O. Jur., Trusts, Sec. 59, p. 205. Such statute cannot be put in operation unless cestui que trust has notice. Moton v. Dewell, 13 C. C. (N. S.) 81; 16 O. Jur., Equity, p. 278.

“The conduct of the trustee must have amounted to an open repudiation; a mere technical breach * * * without other circumstances indicating a position adverse to the trust, would not destroy the continuity of the latter. This would be especially true if the trustee and the beneficiary were near relatives, as where the former stood in loco parentis to the latter, for in such cases, the presumption would be against the repudiation of the trust.” 16 O. Jur., Equity, p. 122.

There is not the slightest evidence in the record of this case, of the trustee’s repudiating the trust.

“It is quite significant that,” the character of the deposit never changed, “it so remained for eighteen years, which fact alone, that is, lapse of time, discloses the idea of permanence and corroborates the theory of a trust.” Jones v. Luplow, supra, and this would be especially true as to the trustee, reflecting by his conduct, his approval and acceptance of said account as a trust. 40 O. Jur., p. 164, supra, even to the extent of not having it administered as an asset of the estate of his deceased wife.

Counsel for the present Mrs. Dye assert that the • words “will” and “wish” in the paper Exhibit “A” are of a purely testamentary character.

The word “desire” is sufficient to impress a trust upon property in the hands of the immediate devisee in favor of others. Brasher v. March, 15 Oh St 103. Where it appears the testator intended to charge property in the hands of his immediate devisee with a trust for others, courts will give effect to that intention, whether the terms used be, in form, dispositive, peremptory or precatory only. Ide, Executor, v. Clark, et al., 5 C. C. 239. Where the giver has recommended or entreated or wished to dispose of property in favor of another, the recommendation, entreaty or wish shall be held to create a trust. The words “will and direct” are as strong and imperative as any words in the English language. Kilquor v. Hey, et al. 19 C. C. (N. S.) 81, 83. Then, too, the natural claims which the proposed beneficiaries might have on the testator’s bounty would be strongly influential. Colton v. Colton, 127 U. S. 300.

At,the time the deposits in this account were made, §8617 GC, merely provided:

“All deeds of gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making them, shall be void and of no effect.”

This section was amended effective August 14, 1921, and a year prior to execution of the paper Exhibit “A,” whereby the following provision was added:

“But the creator of a trust may reserve to himself any use of power, beneficial or in trust, which he might lawfully grant to another, including the power to alter, amend or revoke such trust, and such trust shall be valid as to all persons, except that any beneficial interest reserved to such creator shall be subject to be reached by the creditors of such creator * *

The case of Union Trust Co. v. Hawkins, 121 Oh St 159 involved the construction of two agreements, one before and the other after the amendment of §8617 GC, supra. The Supreme Court of Ohio, through Marshall, C. J., made a scholarly and exhaustive review of the common law on trusts, and then held in that" case:

“The amendment of §8617 GC, effective August 14, 1921, authorizes a trust agreement, including the power to alter, amend or revoke the trust, and by virtue of that amendment a trust agreement making a transfer or conveyance of property including such power and to take effect at the death of the creator of the trust, will effect such transfer and conveyance, although the instrument be not executed in conformity with the law of wills.”

On page 178 of his opinion in the Hawkins case, supra, Marshall, J., says:

“Having reached the conclusion that the trust agreement in the instant case retained such control and dominion of the property and reserved such rights to alter and revoke as to render it invalid at common law to effect a gift either inter vivos or causa mortis in favor of the beneficiaries named, it remains to determine the effect of §8617 GC thereon.”

Marshall, C. J., then calls attention to the amendment of §8617 GC, supra; and states that “the original trust agreement made no attempt to make any disposition of property, or to give any control of it beyond the date of the death of the creator;” and, “It is evident that the supplemental agreement was executed as a result of the amendment to §8617 GC, upon the theory that by virtue of the amendment of that statute, the trustee could be given the power to make distribution of property after death in accordance with the expressed wishes of Mrs. Hawkins by virtue of a trust agreement and without conformity with the statute of wills.”

On page 179, Marshall, C. J., continues:

“This record therefore clearly presents the question whether by a trust agreement not executed in accordance with the statute of wills the creator of a trust can empower a trustee to make distribution of property, in accordance with the expressed wishes of the creator of a trust, after the death of the creator. A decision of this case requires an interpretation of the Amendment to §8617 GC.
“Sec. 8617 GC, prior to its amendment in 1921, in terms declared all deeds of gift and conveyances of real or personal property in trust for the use of the creator to be void and of no effect.
“The amendment of 1921 followed the decision of Worthington, Admr., v. Redkey, Exr., 86 Oh St, 128, 99 N. E., 211, and it is claimed that the amendment was designed to obviate the force and effect of that decision. If such was the purpose, that purpose was not definitely and clearly expressed, but, if it was not the purpose, then it is difficult to give the amendment any intelligent or practical application. It is a well-settled canon of interpretation of an amendment to a statute that the Legislature will be deemed to have intended some practical change to existing legislation. Prior to the rehearing, a majority of this court had reached the conclusion that the amendment was only declaratory of the common law, and that it was intended to make trusts to the use of the maker valid as to all persons except creditors of the creator. While the language of the amendment is susceptible of such an interpretation, it is also susceptible of the interpretation that it is valid as to the heirs and next of kin, and that it may operate as a devolution of property after death without being executed with the formalities of a last will. It is quite certain that it has been so regarded and trust agreements have been made since that amendment to such an extent as to have become a rule of property. Large estates have been distributed on the faith of their validity and in accordance with the expressed wish of the creators. These distributions should not be disturbed at this time upon a doubtful interpretation of ambiguous legislation. After all, it is a matter which is within the power of the General Assembly, and, if it becomes unsatisfactory in operation, the Legislature can surround it with appropriate safeguards. It is in the power of the Legislature to amend or even repeal the statute of wills. It may provide for the private settlement of estates, and without probate or other public administration.
“Upon the authority of the amendment to §8617 GC, the judgments of the lower courts will be reversed.”

The declarations and conduct of the settlor, Oleta Sinclair Dye, coupled with the deposits, undoubtedly, constituted satisfactory evidence of the establishment of an existing express trust agreement in parol.

It is significant that after the amendment of §8617 GC in 1921, the purported written manifestation of such trust was executed in 1922. It may well be that such amendment was the incentive for the written declaration, since the amendment, as heretofore stated, would afford a substantial reason for such further manifestation of the intention of the settlor to create an express and existing trust.

In any event, the court is of the opinion that the amendment of §8617 GC, supra, makes obsolete many of the objections of counsel for Flora Elder Dye.

“2. Sec. 8617 GC, which provides that a revocable and amendable living trust ‘shall be valid as to all persons’ except creditors, does not deprive the settlor of all dominion over the trust res so that a widow electing to take under the statute of descent and distribution is barred from claiming a distributive share of the property in such trust.
“3. The transfer of property to a trustee under an agreement whereby the settlor reserves to himself the income during his life with the right to amend or revoke, is valid by virtue of §8617 GC, but under such a trust agreement settlor does not part absolutely with the dominion of such property and his widow electing to take under the statute of descent and distribution may assert her right to a distributive share of the property in such trust at settlor’s death.” Bolles v. Toledo Trust Co., 144 Oh St 195.

Turner, J., in delivering the opinion of the court in the Bolles case, supra, on p. 215 says:

“We may go a step further and say that irrespective of the husband’s intention, if the effect of the device resorted to is such as to cut down or deprive the widow of the right given her under §10504-55 GC, such device is voidable when challenged by the widow. (Emphasis ours.)
“We are of the opinion that a wife’s,right to elect to take under the law places her in a higher position than a mere creditor in respect of the personal property in an unrevoked revocable trust.”

It will be seen, therefore, that in Bolles case, supra, the Supreme Court of this state held that the right of the settlor to create the amendable and revocable trust under §8617 GC, supra, was voidable when challenged by the widow. This, however, is the personal right of the surviving spouse, and will be deemed waived, if not exercised during their life time. So in the instant case, Dean Dye, not having challenged the trust in this account, the trust is valid and binding against the second Mrs. Dye. It certainly will not be claimed that she had any legal rights in the estate of the first Mrs. Dye.

“Under the provisions of §8617 GC, the transfer of property to a trustee is valid under an agreement whereby the settlor reserves to himself the income during his life with the right to amend or revoke; but when such settlor does not part with dominion and control over the trust property, his widow may elect to take under the statutes of descent and distribution and may assert her right to a distributive share of such property after his death.” (Emphasis ours.) Harris v. Harris, 147 Oh St 437.

“3. A, owner of shares of stock in a corporation, without consideration paid her and without any writing, procured for some of such stock a certificate in the name of A as trustee for H, held that such donor or trustor had the right to reserve for herself the income of the property for life, the revocation of the trust in whole or in part, or the consumption of the principal.” Fifth Third Union Trust Co., etc. v. Foss, Exrx., 29 O. O. 546.

Mack, J., delivered an opinion in the foregoing case and on page 548 says:

“As such ‘donor,’ ‘settlor’ or ‘trustor’ (Ulmer v. Fulton, Supt., 129 Oh St., 323 at 339, 2 O. O. 326), she had the following rights and powers with reference to the two trust certificates, viz.:
“ ‘By weight of authority, a trust, otherwise effective, is not rendered nugatory because the settlor reserves to himself the following rights and powers: (1) the use of the property and the income therefrom for life; (2) the supervision and direction of investments and reinvestments; (3) the amendment or modification of the trust agreement; (4) the revocation of the trust in whole or in part; (5) the consumption of principal,’
“Cleveland Trust Co. v. White, 134 Oh St, at 6 and 7.”

Turner, J., in the Bolles case gave an exhaustive and learned review of the Ohio cases on revocable living express trusts, and on page 223, says: “The foregoing quotations- illustrate what anyone studying the cases must conclude that these trust cases have been decided on their particular facts

So too, in the instant case, the court, assisted by the principles announced in the foregoing citations, finally must make its decision on the particular facts in this case.

The court, therefore, finds and declares that Oleta Sinclair Dye created a living express and perfect trust of the account in question by self declaration, both by conduct and word, coupled with the deposits made in the account in her name; and especially in view of the further written manifestation of her intention to create such a trust, and in light of the fact, that such further written manifestation was executed by her, after the amendment of §8617 GC, supra, the court finds the record discloses clear and satisfactory evidence that she so intended to create a present and perfect trustee, first in herself as trustee, then in her husband, Dean Dye, and finally in Edward S. Thomas, as such trustee.

The court further finds that said trust should be terminated, and so orders; and further orders the Buckeye Federal Savings and Loan Association to pay said account to John S. Thomas and Edward S. Thomas in accordance with the prayer of the petition.

Entry accordingly with exceptions by counsel for Flora Elder Dye individually and as executrix of Dean Dye’s estate and the executor for Oleta Sinclair Dye.


author: Per CURIAM:

text:
    SNETINGER, Plaintiff-Appellee, v. LOCKLEY MACHINE CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22408.
    Decided May 12, 1952.
    R. H. Dawson, Cleveland, for plaintiff-appellee.
    B. S. Goldfarb, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

The judgment of the Common Pleas Court, overruling the motion to discharge attachments is affirmed, upon the principle of law as stated in Loan Company v. Sieman, 142 Oh St 384, where, on page 386, the court said:

“It is now established in the Federal Courts and in many of the state courts that for the purpose of garnishment a debt has no fixed situs and may be reached in any jurisdiction in which the person owing it may be found and served with summons, if the person to whom the debt was due could sue his debtor therefor in that jurisdiction. Annotation in 27 A. L. R. 1396, 1399; 4 American Jurisprudence 589, Sec. 66 et seq.: 38 Corpus Juris Secundum 338, Sec. 125; see also. Restatement of Conflict of Laws, 165, Sec. 108, and Restatement of Judgments, 145, Sec. 36.”

The modern trend of authority supports this view.

Riter Conley Mfg. Co. v. Mzik, 3 C. C. (N. S.) 125; Leeds, Inc. v. L. & N. Railroad Co., 73 Oh Ap 330; 116 A. L. R. Annot., 387; 14 A. L. R. Annot, 2nd, 420.

Judgment affirmed. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


author: By MILLER, J.

text:
    STATE, ex rel. PEAKS, Plaintiff-Appellant, v. ALLAMAN, Supt. of Montgomery County Juvenile Detention Home, Defendant-Appellee.
    Ohio Appeals, Second District,. Montgomery County.
    No. 2185.
    Decided February 8, 1952.
    Arthur T. Eaton, Dayton, for plaintiff-appellant.
    Mathias H. Heck, Pros. Atty., Waiter A Porter, Asst. Pros Atty., Dayton, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court denying the plaintiff a writ of habeas corpus. The petition sought the release of one Moses Peaks, a minor seventeen years of age, from the Montgomery County Detention Home wherein he was being detained as the result of the filing of a delinquency affidavit under §1639-23, et seq., GC. The appellant is not attacking the legality of the proceedings under which the custody of the plaintiff was assumed but is urging that his constitutional rights are being invaded because of the Court’s refusal to admit him to bail pending the date of the hearing. Sec. 1639-27 GC, provides that a child whose custody has been assumed by the Court may be released under certain conditions pending the final disposition of the case, but this is not mandatory for it further provides that when the child is not released as provided for in the act it shall be detained in such place of detention as shall be designated by the Court. Since the release is not mandatory it is urged that the statute is in contravention of Article I, Section 9, of the Constitution of Ohio, and also of the Fourteenth Amendment to the Federal Constitution. Article I, Section 9, of the Ohio Constitution provides:

“Bailable offenses; of bail, fine and punishment. All persons shall be bailable, by sufficient sureties except for capital .offenses where the proof is evident or the presumption great. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishment inflicted.”

It will be noted that the provisions of the Constitution, supra, have application only to “bailable offenses.” In its legal signification an “offense” is the transgression of a law. It appears to us to be well defined in the case of In re Brady, 116 Oh St 512, the Court saying at page 517:

“It is therefore to be noted that the Legislature used the word ‘offense’ as covering both felonies and misdemeanors, and such is its undoubted generic meaning.
“ ‘An offense is an act or omission forbidden by positive law, and to which is annxed, on conviction, any punishment prescribed in this Code.’ Hardin v. State, 39 Tex. Cr. R., 426, 36 S. W., 803.
“ ‘The terms “crime,” “offense,” and “criminal offense” are all synonymous, and ordinarily used interchangeably, and include any breach of law established for the protection of the public, as distinguished from an infringement of mere private rights, for which a penalty is imposed or punishment inflicted in any judicial proceeding.’ State v. West, 42 Minn., 147, 43 N. W., 845.
“ ‘Offense’ is defined by Bouvier to mean ‘the doing of that which a penal law forbids to be done, or omitting to do what it commands.’ It has been held that the terms ‘offense’ and ‘crime’ are synonymous. People ex rel, Kopp v. French et al., Police Com’rs., 102 N. Y., 583, 7 N. E., 913. Abbott’s Law Dictionary says:
“ ‘An offense is a breach of the laws established for the protection of the public, as distinguished from an infringement of mere private rights; a punishable violation of law; a crime; also, sometimes, a crime .of lesser grade; a mis-' demeanor.’
“In Moore, Ex’r., v. People of Illinois, 14 How., (55 U. S.), 13, 14 L. Ed., 306, the court said:
“ ‘An offense, in its legal signification, means the transgression of a law.’
“See Cruthers v. State, 161 Ind., 139, 147, 67 N. E., 930, 932.
“Century dictionary defines ‘offense’ as ‘a crime or misdemeanor.’ ”

See also C. J. S. 51.

It will be noted also that the act itself provides' that its violation does not constitute an offense, §1639-30 GC providing that upon conviction the child shall not be deemed a criminal by reason of such adjudication.

In the case of State v. Schlatterbeck, 39 Oh St 268, it was held that a child committed to a house of correction for incorrigible conduct was not committed for an offense against a law of the State. This same principle has been announced in many of the foreign jurisdictions. ,See annotations in 160 A. L. R. 288. This question has also arisen in our Federal Court in the case of Ex parte Januszewski, 196 Fed. 123. The purpose and nature of the Ohio Juvenile Court Act is well expressed, wherein the Court said at page 126:

“Under the statute” (referring to the juvenile court act) “which applies to all delinquents of the prescribed age, incorrigibility is but one of many forms of delinquency . . . The purpose of the statute is to save minors under the age of 17 years from prosecution and conviction on charges of misdemeanors and crimes, and to relieve them from the consequent stigma attaching thereto; to guard and protect them against themselves and evil-minded persons surrounding them; to protect them and train them physically, mentally and morally. It seeks to benefit not only the child, but the community also, by surrounding the child with better and more elevating influences and training it in all that counts for good citizenship and usefulness as a member of society . . . The welfare of society requires and justifies such enactments. The statute is neither criminal nor penal in its nature, but an administrative police regulation.”

As a result of this reasoning the Court held the Juvenile Court Act to be constitutional as a valid exercise of police power and not repugnant to the Fourteenth Amendment to the Federal Constitution.

It is our conclusion that the appellant is being lawfully detained and since he is not charged with an “offense” he is not entitled to release on bail under the provisions of Article 1, Section 9, of the Ohio Constitution.

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

HORNBECK, PJ, WISEMAN, J, concur.