author: By THE COURT.

text:
    MARSH, Plaintiff-Appellee, v. MARSH, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4990.
    Decided March 25, 1954.
    Brownfield, Ford & Douglas, Lyman H. Brownfield, of Counsel, Columbus, for plaintiff-appellee.
    Maugan & Vacca, Peter Vacca, of Counsel, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal from an order of the Juvenile Court denying defendant the right of visitation with his minor daughter. The parties, on April 14, 1951, had been divorced for the aggression of the defendant and he was given the right to visit his child, Leslie K. Marsh, at such reasonable times and places as the parties may agree upon. Thereafter, the parties did agree as to the times and places where the defendant should exercise his right of visitation with his child. This arrangement was observed for a time whereupon the plaintiff insisted upon a change, the reason for which was based largely upon the fact that the defendant insisted upon exercising his visitation rights with the child in the presence of her mother. Finally, by correspondence, carried on by plaintiff’s counsel, the defendant was practically refused any right of visitation whatever. This refusal to permit visitation continued for many months whereupon the defendant filed his motion requesting the Court to fix definite times when he could see his daughter or have her with him and the conditions under which these rights could be exercised. This matter came on for hearing and at the conclusion thereof appellant’s motion was denied in its entirety. Appeal was prosecuted to this Court.

Upon oral presentation of the appeal, it appeared to the members of the Court that upon the record as it stood, there was an entire failure of proof to support the order from which the appeal was taken. Counsel for appellee stated that the Court had interviewed the daughter, Leslie, by consent of the parties, and that after this interview, and probably because of it, the Court made the order. The journal entry recited that the action of the Court was based upon the statement of the daughter to the trial judge that she “did not wish to see her father again.” Inasmuch as the record did not disclose that there was such an interview, or what occurred at that time, the Court suggested augmentation of the record. This suggestion was adopted and the record is now before us carrying in full the import of that interview.

We have read the record in its entirety. It is short. We can now say, without doubt, that the only relevant evidence upon which the order of the Court could be predicated is found in the transcript of the interview the judge had with the daughter of the parties. The full statement of what occurred is as follows:

“At this interview, the said minor child answered questions as to name, age, address, schooling; that she knew and understood between right and wrong and the value of truthfulness; stated she had seen her father, the defendant, on occasions, but did not desire to see defendant again because she was afraid of him.
“With the best interests of the child a paramount consideration, I feel her wishes should be honored and defendant’s motion denied.”

In our judgment, this statement of the child is insufficient to support a denial to the father of his right of visitation with his daughter.

At the time the order was made, Leslie, the daughter, was twelve years of age. She had not reached the age when she had the right to make choice as to the parent with whom she desired to live. See. 3109.4 R.C. Though she could exercise that privilege, it would not deprive the Court of the right to make a visitation order. It then became a question for the determination of the judge whether or not the facts justified the denial to the father of the right of visitation.

The mere statement of a young child that she was afraid of her father and that she desired not to live with him, standing alone, is entirely insufficient to justify a complete refusal to permit the father to visit her. The record does not afford any proof which would permit the trial judge to hold that the daughter had any sound reason to fear her father. Nor does the record disclose that the father was an unfit person to visit his daughter, or, indeed, to have her with him. Counsel for plaintiff, by way of preliminary statement and at considerable length, recited the history of this case and in this statement imputed immoral conduct to the defendant prior to the divorce hearing, toward a daughter of the plaintiff by a former marriage. Manifestly, this professional statement had no probative value to establish the charge against the defendant. Although the plaintiff was in court and testified briefly, not one question was asked of her touching any immoral acts on the part of her former husband. The judge who heard the motion for modification of the visitation order was not the judge who tried the divorce case nor the one who heard a former motion to modify the visitation order. So that the only information which could suggest the unfitness of the father to be entrusted with the company of his daughter was that which came by way of professional statements which the Court had no right to consider in passing on the motion.

Counsel for the plaintiff asked of defendant a direct question, the answer to which would have admitted or denied the immoral conduct which had been imputed to him. There was an objection. The Court overruled the objection but for some reason the question was not pressed and no answer was given.

Counsel for appellant urges that any misconduct of the defendant that may have appeared at the time the divorce was heard, the decree granted and the visitation order made, could not be shown on the motion to modify and cited in support of the contention the case of White v. White, 77 Oh Ap 447, an opinion by Judge Miller of this Court. This case merely reiterates the proposition that in a motion to modify a former order in a divorce, alimony, or custodial proceeding, the question presented is whether or not there has been any substantial change in the condition of the parties succeeding the former order and unless there has been such change, it may not be modified. Pfau v. Pfau, 8 O. C. C. 87; Graviess v. Graviess, 7 O. C. C. (N. S.) 135. This rule, however, does not bar testimony as to conditions obtaining when the former order was made if they become relevant by reason of subsequent developments on the matter immediately before the court. So, here, if the defendant was chargeable with moral delinquency, occurring prior to the divorce proceedings, which reflected propensities of the defendant to engage in misconduct which might continue and endanger the safety or well being of his daughter, proof of such fact would be competent.

There is this difference between the ordinary motion to modify a former order which is definite and fixed in its terms and the one here under consideration. Here, the Court did not attempt in the original order to definitely designate times or places where the defendant could visit his child or have her with him. It was all subject to mutual agreement between the parties. This mutual agreement eventually failed. The order placed within the power of the plaintiff the right to insist that the defendant see his daughter only in the presence of other persons, had this been necessary, in the plaintiff’s opinion, to the welfare of the daughter. Strangely enough, the letters from counsel of the plaintiff to the defendant did not suggest any unfitness on the part of the father to have his daughter with him or that she feared or had reasons to fear him. On the contrary, the objection to the exercise of defendant’s visitation rights was predicated upon his intrusion into the association of the plaintiff. To all intents and purposes the Court on this application for modification of the visitation order, was determining, as upon original application, the ultimate question of the right of the defendant to visit his daughter and to fix conditions under which the right should be exercised.

There are implications in this case which, if this Court would be permitted to indulge, would move us to affirm the order. We may not act upon them because they do not arise from any probative evidence in the case and we may not disregard the obligation of proof which devolved upon the plaintiff. When it appeared that the defendant, the father of the minor child, had been denied all,rights of visitation merely because the plaintiff did not want to tolerate his presence, without more it did not afford any valid reason for the denial of his motion. If there was anything which rendered him unfit to have his daughter with him, it should have been forthcoming in the testimony. There was a presumption of his fitness until it was overcome.

Appellant insists that we should make an order according him the right of visitation. This we may not do because the situation developed indicates that the trial judge acted without a full conception of his authority, or, inadvertently accepted the professional statements as proof, or, without an appreciation that he could not legally deny a father the right of visitation with his daughter upon her statement that she was afraid of him and did not want to see him unless she gave substantial reasons supporting that conclusion. It is his right to act in the light of this opinion.

The order will be reversed and the cause remanded for rehearing.

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


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    CLEVELAND (City) (Transit System), Plaintiff-Appellee, v. FORKAPA et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22716.
    Decided November 15, 1952.

      Robert F. Mooney, Cleveland, for plaintiff-appellee.
    Kuth & Meyers, Cleveland, for defendants-appellants.
    (HUNSICKER, PJ, of the 9th District sitting by designation in place of SKEEL, PJ, of the 8th District.)
   OPINION

Per CURIAM:

This matter comes before us upon a motion of defendants for an order staying execution of an order of the Court of Common Pleas of Cuyahoga County, entered November 12, 1952, requiring defendants to vacate certain premises acquired by plaintiff in eminent domain proceedings.

The record before us indicates that there is no appeal pending from the original order allowing compensation. The record likewise shows a resolution of acceptance of the jury verdict by plaintiff in the appropriation proceedings on July 18, 1952 and the payment of the award to the defendants on September 18, 1952.

In the absence of any appeal of the award in the appropriation proceedings, the rights of the parties were determined by §§3690, 3691 and 3686 GC. On October 24, 1952 a motion for immediate possession was filed by plaintiff which came on for hearing in the trial court on November 3, 1952, at which time the trial court • granted defendants until November 30, 1952 to vacate the premises. On November 12, 1952, upon application of plaintiff and after hearing, the trial court modified the order of Nov. 3, 1952. The order of November 12th determined that the defendants vacate the premises by November 15, 1952, instead of November 30, 1952.

The first question before us is whether we have a final order for our determination. In our opinion the order appealed from is not a final order and therefore this court is without jurisdiction to entertain the instant appeal.

Even if we were to assume a final order herein, we find no abuse of discretion by the trial court in amending on November 12, 1952 its order of November 3rd on the basis of changed conditions.

For the reasons stated the motion of the defendants is dismissed. Exceptions allowed.

HUNSICKER, PJ, HURD, J, THOMPSON, J, concur.


author: By CLIFFORD, J.

text:
    PAGE, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellee.
    Common Pleas Court, Franklin County.
    No. 188994.
    Decided March 5, 1954.

      Robert G. Farmer, Columbus, for appellant.
    C. William O’Neill, Atty. Genl., Columbus, for appellee.
   OPINION

By CLIFFORD, J.

This appeal arises from an order of the Board of Liquor Control denying appellant’s application for a new Class D-5 liquor permit. In order to determine the validity of this denial the Court is required to construe the meaning of Regulation 11, Section I of Regulation 12 and Section II of Regulation 65 of the Board of Liquor Control. The applicable parts of these Regulations are as follows:

“REGULATION NO. 11
“When in any county, city or village the quota for Class D-3, D-4, or D-5 permits shall have been filled, the department shall notify the applicant that such quota is filled and return to the applicant the permit fee upon request of the applicant, providing such request include an authorization to cancel and withdraw the application. Upon the cancellation, revocation or surrender of any permit or failure of a person holding a permit to re-apply for another permit of the same class in such quota-filled location, applications shall then be processed in the order in which same were filed and pending by the department until the quota is again filled.
“Upon expiration of a permit, however, preference shall be accorded to the holder of the expiring permit.”
“REGULATION 12—Section I
<£* * *
“All applications for all classes of permits shall be processed and either approved or rejected within forty-five (45) days from the date of filing, arid notice of such action shall be sent to the applicant within said period of time. Failure of the Department to do so within said period of time shall be deemed a rejection of such applications and may be the basis of an appeal to the Board.”
“REGULATION 65
* *
“Section II. When the Director refuses to issue, renew or transfer any permit he shall, by registered mail, return receipt requested, send to the person so refused, notice of such order at the address stated in such person’s application and a copy of such notice to the attorney of record of the applicant. The notice shall set forth the reasons for his action, refer to the law or rule directly involved, and state that the party will be afforded a hearing by the Board if requested within thirty days from the time of mailing the notice. * * *”

The facts of the case at bar have been stipulated and they fall directly within the scope of these Regulations. On August 20, 1953, the appellant filed an application for a new class D-5 permit. There were at that time 161 Class D-5 permits issued and outstanding in the City of Columbus, Franklin County, Ohio. The number of Class D-5 permits issued and outstanding on April 11, 1949, was 165. Regulation 64. sometimes called the “freeze regulation,” limits the number of permits of this class outstanding to the number which were outstanding on April 11, 1949. In the light of the Kenwood Country Club Case, No. 184,834, CP 68 Abs 326, of this Court, which held that applications must be accepted and processed until there were permits issued and outstanding up to the number called for by the “freeze regulation,” it is clear that there were issuable four new Class D-5 permits on August 20, 1953, the day appellant filed his application.

On August 20, 1953, the date of appellant’s application, there were on file with the Department eight other applications, all of which at that time had been on file in excess of seventy-five days. Counsel for the Department maintains that these applications are valid and that they are entitled to priority over the application of appellant because they were filed long before appellant’s application. Counsel’s position is that because these eight applications were filed first, they are entitled to priority, regardless of the length of time they may have been on file.

Appellant’s application is the only application for which an appeal has been taken within the time limits specified by Regulations 12 and 65. The problem then, reduced to its simplest terms, is this: Does the last paragraph of Section 1 in Regulation 12 automatically render void, by operation of law, all those applications for new permits which have been on file more than forty-five days, if no appeal is filed within thirty days as provided in the first paragraph of Section II of Regulation 65? We think it does.

The Court is of the opinion that the same principle used in construing statutes are of necessity used when the regulations of duly constituted boards are to be construed. Duly promulgated regulations of properly constituted boards, enacted under authority of statute, have the force and effect of law. When ambiguities appear in regulations, it is correct to apply the principles of statutory construction to give the regulations their proper meaning and effect, for if we cannot use principles of statutory construction to determine the meaning of regulations, we are without a means to ascertain the effect of ambiguous regulations. Although it may be said that the Board itself is the best interpreter of its own regulations, this Court is bound by the law to hear and decide appeals which necessarily require the Court to construe regulations enacted by the Board.

Counsel for the Department urges upon the Court the proposition that the last paragraph of Section II in Regulation 12 merely gives an applicant a right to appeal in two situations: (1) where the Department has neither approved nor rejected his application and (2) where the Department has rejected his application. Although counsel bases his contention upon Regulation 11 which, inter alia, provides that applications shall be processed in the order in which the same were filed, we cannot see that Regulation 11 in any way nullifies the explicit mandate in Regulation 12 where it is required that “all applications for all classes of permits shall be processed and either approved or rejected within forty-five (45) days from the date of filing, and notice of such action shall be sent to the applicant within said period of time. Failure of the Department to do so within said period of time shall be deemed a rejection * * *.” In our view a well settled rule of construction is applicable to the language of Regulation 12, which is simply stated “words of a statute in common use will be construed in their ordinary acceptance and significance and with the meaning commonly attributed to them.” 37 O. Jur. 542. This rule applies with equal force to a regulation, and we cannot subscribe to the view that the Department did not intend to enact a regulation which they did enact.

The Court agrees with counsel for appellant in that the part of Regulation 12 in question is mandatory and not permissive. The word “shall” is used three times in this short paragraph. It is well established that “shall” is not permissive but mandatory in its usual connotation, especially when frequently repeated. 37 O. Jur. 326. Furthermore, the section here under construction must be given a reasonable, not a strained or unnatural meaning, for the Board cannot be presumed to have intended to enact a regulation producing unreasonable or absurd consequences. 37 O. Jur. 643, et seq. If the construction asked for by the appellee were placed on this regulation, applications filed a decade ago could be given preference simply because they were filed first.

Nor can the Court agree with the view that Regulation 11 is to be construed independently of Regulation 12. These two regulations, since they are concerned with the same subject, or object, namely, applications for new permits, are clearly in pari materia. They must be construed together. When Regulation 11 is read together with Regulation 12, it is easily understood that only valid applications not previously rejected by action of the Department or by operation of law, shall then be processed in the order in which the same were filed.

The order of the Board of Liquor Control is reversed as not in accordance with law. The Board is directed to receive and process applications for new permits which are filed and pending with the Board, in accordance with law and in compliance with this decision.


author: By BELL, J.

text:
    MIDLAND DISCOUNT CO. v. WHITE et.
    Common Pleas Court, Hamilton County.
    No. A-131036.
    Decided August 19, 1952.

      Peterson, Calhoun & McPherson, Robert R. Lavercombe, Cincinnati, for appellant.
    Ragland, Dixon & Murphy, James W. Farrell, Jr., Cincinnati, for appellees.
   OPINION

By BELL, J.

This cause is in this court upon appeal on questions of law from a judgment entered in the Municipal Court of the city of Cincinnati, Ohio.

The cause was tried upon the pleadings and an agreed stipulation of facts as follows:

“(1) That defendants, Elmer White and Marguerite White, executed the note, a copy of which is attached to the Bill of Particulars, and that said note was secured by a chattel mortgage on a 1950 Ford truck owned by the defendants. The Midland Discount Company is the holder in due course of said note.
“(2) That on March 3, 1951, defendants were in default in the payment of said note and said mortgage became absolute, and plaintiff sent its agents to a home located on Rural Route 1, Ripley, Ohio, for the purpose of repossessing said truck from the defendants who then represented to the agents of the plaintiff that the defendants resided in said home.
“(3) That on March 17, 1951, plaintiff sold said truck in accordance with the provisions of said mortgage without first foreclosing on said mortgage in a Court of record, and credited the proceeds of said sale on said note.
“(4) That prior to ten (10) days before said sale, plaintiff sent a notice of said sale, by registered mail, to defendants, at 106 Wentworth Street, Cincinnati, Ohio, which was defendant’s address at the time said mortgage was executed, and which was the address shown on said mortgage. Said notice included the time, place and minimum price for which the mortgaged property would be sold, together with a statement that the mortgagors would be held liable for any deficiency resulting from said sale.
“(5) That said notice never reached the defendants, due to a mistake made by the postal authorities in forwarding the same.
“(6) That at the time said notice was sent, plaintiff, through its agents had been notified as aforesaid by the defendants that the defendants no longer lived at the Wentworth Street address in Cincinnati, Ohio, but had moved to a home on Rural Route 1, Ripley, Ohio.
“ (7) That the credits shown on the copy of the note attached to the Bill of Particulars are correct.
“(8) This stipulation includes all the facts in this case.”

Upon these facts that court entered judgment in favor of defendants.

The only error assigned is that the court erred in construing §8565-3 GC as to preclude plaintiff from obtaining a deficiency judgment.

The conclusion of law reached by the court reads as follows:

“When a mortgagee whose agents have been informed by a mortgagor (s) that such mortgagor (s) no longer resides at the address shown in the mortgage, repossesses and sells the chattel under the terms of the mortgage before foreclosure in a court of record, said mortgagee has not complied with the provisions of §8565-3 GC, if the notice required therein is sent to the address shown in the mortgage rather than to a new address given by the mortgagor (s), and the mortgagee is thereby precluded from obtaining a deficiency judgment.”

Hence it is clear that this cause turns upon the proper construction of §8565-3 GC. That section reads as follows:

“Deficiency judgment prohibited; when; exception. Any chattel mortgagee, his executors, administrators, successors or assigns who takes goods, chattels or property, covered by such chattel mortgage out of the possession of the mortgagor, his executors, administrators, successors or assigns by seizure, or repossession, and sells or otherwise disposes of the same before foreclosure of such mortgage in a court of record, shall be conclusively precluded from pursuing or collecting any deficiency upon such mortgage or the obligation secured thereby, from such mortgagor, his executors, administrators, successors or assigns; any stipulation in such mortgage, or agreement, or provision of law, to the contrary notwithstanding; provided, however, this section shall not apply if the mortgagee, his executors, administrators, successors or assigns, shall give at least ten days written notice to the mortgagor, his executors, administrators, successors or assigns, personally, or by mailing it by registered mail, to him, at the address of the mortgagor given in the mortgage, of the time, place and the minimum price for which the mortgaged property may be sold, together with a statement that the mortgagor may be held liable for any deficiency resulting from said sale. The mortgagor, his executors, administrators, successors or assigns, may redeem the property prior to the time stated in the notice for its sale or disposition, by paying the mortgagee, his executors, administrators, successors or assigns, the amount due and unpaid on the obligation secured by the mortgage. Any person may appear at the time and place of sale mentioned in such notice and bid at such sale. At the time and place mentioned in such notice the mortgaged property shall be sold to the highest bidder if his bid equals or exceeds the minimum price set forth in the written notice given the mortgagor.”

In the instant case the mortgagors had moved to an address other than the one stated in the mortgage and the mortgagee knew that fact. The court below concluded that the mortgagee was bound to give notice to the mortgagors’ new address and having failed so to do the mortgagee could not recover a deficiency judgment.

It should be noted the statute provides that the mortgagee shall give notice to the mortgagor personally or to the address given in the mortgage. The legislature made no provision for a situation where the mortgagor moved even though the fact is known to the mortgagee. It is clear to me that where the mortgagee sends a notice to the address given in the mortgage that is a compliance with the statute.

In the opinion of this court, the trial court erred in the conclusion reached. It follows that the judgment below should be and hereby is reversed and final judgment is entered in favor of appellant.


author: By FULTON, J.

text:
    STATE, ex rel. LIEUX, Plaintiff, v. VILLAGE OF WESTLAKE et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 652801.
    Decided February 3, 1954.

      W. C. Bracken, Westlake, for plaintiff.
    King Wilmot, Cleveland, for defendant.
   OPINION

By FULTON, J.

Petitioner seeks a writ of mandamus to compel the appropriate official of the' Village of Westlake to issue a building permit to construct either a new or addition to a greenhouse— to the rear of her present greenhouse.

Like Gaul, the historical background is divided into three parts, namely: that of the village, that of the plaintiff and that of the Village Zoning Legislation and litigation.

The village has developed from a purely farming and rural community to a municipality which combines farming, gardening, unimproved acreage, greenhousing and a suburban dwelling place. Many of the new residence dwellings are upon acreage used for agriculture in some degree.

When plaintiff in 1939 came to this community and bought land her family was an industrial worker’s unit. Plaintiff’s husband then was identified with industry. On plaintiff’s arrival, and for some time afterwards, her husband continued in industry and devoted his extra hours, week ends and holidays to the agricultural development of plaintiff’s land. In February, 1940, a residence was started and completed in August of that year; and in 1946 the operation became full time for plaintiff’s husband. As time went on a greenhouse was erected on the property to supplement as well as implement gardening production. This greenhouse was an existing nonconforming use when the zoning legislation first was enacted.

The village became a devotee to zoning. This devotion resulted in the enactment of a zoning law in 1940 and thereafter the enactment of a series of amendments. The amendments through 1951, if valid, are applicable to this case.

Another result of this zoning devotion was voluntary indulgence in and enforced submission to litigation. Illustrative of this litigation are these cases: Westlake v. Elrich (1948) 52 Abs 538, 83 N. E. 2nd, 646; Westlake v. Englund (Feb. 1953) No. 627011 Cuyahoga County Common Pleas; Westlake v Peplin (Feb. 1953) 627012 Cuyahoga County Common Pleas; Lieux v. Westlake (Jan. 1951) 154 Oh St 412; initiated in the Court of Appeals of Cuyahoga County as case No. 21748 and there decided May 19, 1950; Bracken v. Westlake (1953) No. 653265 Cuyahoga County Common Pleas, and the instant case.

The original ordinance No. 1973 enacted in 1940 was considered invalid in the Elrich case, as applied to the facts in that case, because of the inability of ascertainment of the location and separation of the sections of the residential districts and the sections of the business districts. Neither the language of the ordinance nor the maps aided this difficulty.

In that case Elrich was arrested for violation of the Westlake Zoning Law because he operated his publishing business in a residential district and in a building he was authorized to construct in that district under a permit for warehouse purposes.

This plaintiff was granted a writ of mandamus to construct a new unit to the greenhouse facilities after amendment Ordinance 3310 was passed (1945) in an action commenced thereafter (1950). This writ was granted by the Court of Appeals of Cuyahoga County in case No. 21748. This amendment had not changed the districting which had been condemned in the Elrich Case. It changed some definitions. It prescribed for both private and commercial greenhouses, and it provided for the issuance of a special permit by the Zoning Board of Appeals for the construction of greenhouses in residential areas.

The Supreme Court, 154 Oh St 412, supra, reversed the Court of Appeals because Mrs. Lieux did not exhaust her administrative remedies by application to the Zoning Board of Appeals for such special permit—although the opinion frankly discussed the same legislative deficiencies upon which the decision in the Elrich case was predicated. Mrs. Lieux could not, said the Supreme Court, raise the question of the validity of the zoning ordinance unless and until she had first sought the decision of the Zoning Board of Appeals. The basis of that decision by the Supreme Court made it unnecessary for the Supreme Court to determine whether amendment 3310 was valid or invalid for want of those statutory procedural prerequisites set forth in §4366-11 GC (§§713.10, 713.11, 713.12, 713.14 R. C.).

Meanwhile, and before commencing this action, Mrs. Lieux applied directly to the Zoning Board of Appeals for a special permit and appealed also to the Zoning Board of Appeals from the denial of a permit by the Building Commissioner. Moreover, when this case was commenced the original inning ordinance had been amended several times. Those amendments in addition to 3310 above discussed are 1950-15, 1950-18 and 1950-126.

Ordinance 1950-15 changed slightly the language of but not the substance of 3310 with respect to special greenhouse permits. It did remove “B” residential districts. So that the difficulty between the residential districts recognized in the Elrich and Lieux cases was removed.

Ordinance 1950-18 made only one change, namely: increasing the membership of the Zoning Board of Appeals from three to five.

Ordinance 1950-126 removed the difficulty between the two business districts as discussed in the Elrich and Lieux cases by merging them into one business district.

Plaintiff’s claims are that all of these amendments are invalid for want of proper procedural steps and therefore the case is, as if, only the original ordinance 1973 is applicable.

This claim with respect to 1950-18 (Zoning Board Membership) is, in the court’s opinion, without substance. The Zoning Board of whatever membership denied plaintiff’s application and her appeal.

Sec. 4366-11 GC (§713.10 et seq, R. C.) prescribes the procedural steps for the adoption of and amendment to zoning laws. It provides for districting of land by zones, building classification, the mandatory consideration of changes by a planning commission, the approval and report of such changes by the planning commission to the council, public hearings after notice before adoption of such changes by council, together with the filing of essential plans and plats and other data respecting such changes for public inspection.

In the Englund and Pepiin cases it was found that “ordinances 1950-15 and 1950-126 of the Village of Westlake were not adopted pursuant to the requirements of §4366-7 to -11 GC, and therefore do not constitute valid zoning regulations * * *” and in those cases it was adjudged that the village’s petition for injunction be dismissed.

There is no evidence in this case that the village pursued each and every step properly to enact these amendments. There is some hazy evidence on the point. It eminates from the recollection of the Mayor of the Village concerning oral reports made to the Council by the Planning Commission.

It is the Court’s conclusion that petitioner has shown by preponderance of the evidence that these ordinances were not passed pursuant to law.

Stipulations 5 and 6 do not evidence strict adherence to the procedural steps required by statute law. It is the Court’s view that Ordinance 3310 is not a valid ordinance. In view of the foregoing the Court now has before it the original Ordinance 1973 with all of its inherent vices and deficiencies as recognized by the Court of Appeals and Supreme Court in the original Elrich and Lieux cases; and as applied to the facts in this case that Ordinance 1973 is unconstitutional and invalid.

Apart from the Zoning Law there is an ordinance which requires the procurement of a building permit for the construction of any building within the municipality. It was the clear duty of the Building Commissioner, in view of the foregoing, to issue such permit, and it was the further duty of the Zoning Board of Appeals considering the plaintiff’s appeal to reverse the Building Commissioner’s denial.

Even if the original ordinance is constitutional and its amendments validly enacted, the evidence pertaining to the history and background of this case, particularly the character and development of the village and of the relationship between the plaintiff and the village, indicates by preponderance that the failure of the Building Commissioner to issue the permit was an abuse of discretion. The greenhouse use was nonconforming and nowhere in the legislation is there any express prohibitions against extension of such use as was involved in the Stegner case, 120 Oh St 418.

The petition for writ of mandamus is granted; at defendant’s costs. A journal entry should be prepared accordingly containing exceptions to the village.


text:
    PAPATHEODORO v. STATE DEPT. OF LIQUOR CONTROL.
    Common Pleas Court, Franklin County.
    No. 188923.
    Decided March 23, 1954.

      Philip Schwimmer, Cleveland, for appellants.
    C. William O’Neill, Atty Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By CLIFFORD, J.

This is an appeal from an order of the Board of Liquor Control rejecting an application for the transfer of liquor permits from Emanuel Papatheodoro to Emanuel Papatheodoro and Star Mitchell. The rejection order of the Board is based upon §4303.29 R, C., §6064-17 GC, which among other things provides, that “* * * no person heretofore convicted of any felony, shall receive or be permitted to retain any permit under the liquor control act * * There is no dispute between the parties that the appellant was convicted of carrying concealed weapons in the State of Ohio in 1931 and of robbery in the State of Illinois in 1922.

The appellants base their appeal upon the ground that the section of the Revised Code is unconstitutional. Several specific arguments of unconstitutionality are made, involving both the state and federal constitutions. The court will consider first the statement that §4303.29 R. C., §6064-17 GC, is not constitutional because it is an unlawful abridgment of appellant Mitchell’s right to acquire and possess property under Art. I, Sec. 1, of the Ohio Constitution.

Art. I, Sec. 1:

“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

The Court does not agree that a liquor license can be defined to be property within the scope of this section of the Ohio Constitution. The word “property” refers to those tangible or intangible things which are the subject of rights. A person’s property is said to consist of land, buildings, furniture, automobiles, stocks, bonds and the like. In law, the word “property” usually means not the thing itself, but the rights and privileges which are inherent in the property.

As we know, the concept of property referred to in the preceding paragraph carries with it the idea of some permanence and transferability of title in a person and his heirs. Transfer of the title to property may occur through sale, legal proceedings, and death. The title holder or owner has a degree of control over the property which we sometimes call ownership. But this control which the law gives to an owner of property, is not given to the holder of a license. Art. I, Sec. 1, of our Ohio Constitution does not protect licensees. The holder of a license does not possess property. 30 Am. Jur. 296. Licenses are commonly described as personal, revocable and unassignable privileges. 33 Am. Jur. 398.

The indicia by which we customarily identify property are not present when we examine a liquor license and Ohio courts have many times so held. Syllabus 5, Abraham v. Fioramonte, 158 Oh St 213, 107 N. E. 2d 321, 322, 33 A. L. R. 2d 1267, states specifically “Permits issued by the Department of Liquor Control of Ohio pursuant to the statutes of Ohio, commonly referred to as the Liquor Control Act, are personal licenses and are not property which can be mortgaged or seized under execution or court order for the satisfaction of debt.” At page 225, of 158 Oh St., at page 327 of 107 N. E. 2d, the Supreme Court squarely raises the point “whether in Ohio a permit to sell intoxicating liquors is merely a personal license or is property in the usual concept of that term.” The Supreme Court referred specifically to §6064-17 GC, the statute at issue in the case at bar, and held a liquor permit to be a license. See State ex rel. Zugravu v. O’Brien, 130 Oh St 23, 196 N. E. 664, and cases cited therein. At page 27 of 130 Oh St, at page 666 of 196 N. E., the Court in construing §6064-17 GC, said

“A license does not create a property right within the constitutional meaning of that term, nor even a contract, and that it constitutes a mere permission to engage in the liquor business.” (Emphasis ours.)

See 148 A. L. R. 495 that a liquor license is not subject to execution or attachment and 144 A. L. R. 1014, that “a license to sell intoxicating liquor is generally not recognized as a property right in the ordinary sense of the word.” See 30 Am. Jur. 326, and 15 R. C. L. 285, for further authority that a liquor license is “not property in any legal or constitutional sense.” Since it is clear that a liquor license is not property because it has none of the indicia of property, a refusal to grant a license to a person does not deprive that person of his constitutional right to acquire and possess property.

Appellants also say that §4303.29 R. C., §6064-17 GC, is an unwarranted abridgment of appellant Mitchell’s rights under the Fourteenth Amendment to the Constitution of the United States in that it denies to him the equal protection of the laws.

At 15 R. C. L. 291, we find the solution to this problem, where it is said “The validity of the exercise by a state of its police power in regulating the sale of spirituous liquors does not in the least degree depend on any question as to the presence or absence of discrimination for or against particular persons or classes of persons. The legislature may lawfully grant the right to sell to a certain class or classes of persons, and withhold it from all others, and no citizen of the United States can complain because state police regulations deny him the privilege of selling liquors, even where the privilege is accorded other citizens. So long as a license law affects all persons in the state engaged in the sale of liquors in exactly the same manner, it is not objectionable under the federal constitution as arbitrarily taking property, or denying the equal protection of the laws. Supporting this view are the articles and citations at 6 R. C. L. 285 and 30 Am. Jur. 301, 302.

Appellants, in their brief, recognize that the Supreme Court has held that the legislature in the exercise of the police power, may prevent an alien from holding a liquor license. Although we have found no case specifically deciding that a felon is forever prohibited from holding a liquor license, we do not doubt the applicability of Bloomfield v. State, 86 Oh St. 253, 264, 99 N. E. 309, 41 L. R. A., N. S., 726, to the case at bar. We hold that the Bloomfield case governs the case at bar. There, can be no doubt that the legislature has the power to prevent a person convicted of a felony from forever holding a liquor license. Whether the exercise of this power results in moral injustice to individuals i& not an issue with which this court may lawfully concern itself.

The claim is further made in behalf of appellants that §4303.29 R. C., §6064-17 GC, inflicts a cruel and unusual punishment upon Mitchell in violation of Art. I, Sec. 9, of the Ohio Constitution.

The provisions of the Liquor Control Act were not enacted to punish criminals, but for the protection and welfare of society. They are police regulations designed to promote the general welfare and protect the public morals. They were enacted in the interest of public health and safety and their object is not to punish, although the law may have that effect in isolated cases when enforced. It is essential to distinguish the nature of the statute in question from the nature of our criminal statutes which are punitive in their nature. The legislative will of the people of Ohio has been expressed in the Liquor Control Act. If the object and purpose of this section of the Liquor Act were to punish, rather than to control a traffic intricately entwined with the public morals, a different question would be presented. Here there is a fair, just and reasonable connection between the statute in question and the common good of society. This statute does not inflict cruel or unusual punishment upon appellants, nor can it be properly said to be arbitrary.

It is asserted that the operation of §4303.29 R. C., §6064-17 GC, changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed and thereby violates Art. II, Sec. 28, prohibiting the legislature from passing retroactive laws. The Court respectfully reiterates that the Liquor Control Act, although it contains penalties, is an expression of the police power and is not a punitive statute. It is to be observed that this statute may be said to work a hardship on only those convicted of a felony prior to the enactment of this act, and who later desire a liquor permit. If a substantial number of persons in this class should desire permits, the wisdom of the legislature is apparent. If only a small number desire permits, the incidental hardship falling upon this small number within the class does not constitute an infringement of constitutional rights so long as all members of the class are treated alike.

Appellants earnestly urge upon the court that the Department or Board of Liquor Control should have the same discretionary power to grant liquor permits to persons convicted of a felony before the enactment of the Liquor Control Act as the Department and Board now have with respect to permit holders convicted of a felony. However, a reading of §4303.29 R. C., §6064-17 GC, and §4301.25 R. C., §6064-25 GC, quickly reveals the difference between these two sections. Sec. 4303.29 R. C. is mandatory, whereas §4301.25 R. C. vests a discretion in the Department and Board. The respectively mandatory and discretionary nature of these two statutes is described in the opinions rendered in 1936 Op. Atty. Gen. No. 5839, and 1949 Op. Atty. Gen. page 512. The only exception to the all inclusive mandate of the legislature preventing felons heretofore convicted from holding licenses expressed in §4303.29 R. C., §8064-17 GC, is the exception expressed in 1949 Op. Atty. Gen. page 512, where the convicted person had received a pardon. This Court has been able to discover no authority where a similar exception has been made in the case of a prisoner who has served the maximum term of his sentence, or a parolee who has been granted his final release by the Ohio Pardon and Parole Commission.

Appellants maintain that §2865.17 R. C., §2209-16 GC, which reads in part:

“* * * a prisoner who has served the maximum term of his sentence or has been granted his final release by the commission, shall be restored to the rights and privileges forfeited by his conviction * *

totally erases the effect of §4303.29 R. C., §6064-17 GC, with respect to appellant Mitchell. But this contention is not the law, and it cannot be maintained that §2965.17 R. C. completely obliterates the effect of a conviction. If this were true, this section would have the same effect upon persons within its scope as an executive pardon, and such was manifestly not the intention of the legislature. The basic differences between executive pardon, and parole, are so well established in our law that no further discussion on this point is needed.

Examples of the power of the legislature to proscribe the activity of convicted persons after they have served the penalties set forth in the criminal statutes, are many. The legislature is empowered by Art. 5, Sec. 4, of the Ohio Constitution to exclude from the privilege of voting any person convicted of bribery, perjury or other infamous crime. Art. II, Sec. 5, provides that no person convicted of an embezzlement of the public funds shall hold any office in this state This power must be' regarded as a mere disqualification imposed for protection, as a withholding of a privilege, and not a denial of a personal right. 18 Am. Jur. 230, 15 O. Jur 340.

Appellant Mitchell had no right to a liquor license when he was convicted. He was not in fact holding such a license when convicted, since he was convicted during the so-called prohibition. The right to hold a liquor license cannot be restored to Mitchell, or anyone else by virtue of §2965.17 R. C., because this right is not one of the rights and privileges forfeited by his conviction. A license is in the nature of a special privilege, and not a right common to all. 33 Am. Jur. 398.

Counsel for appellant correctly states the law when he says that if §4303.29 R. C., pertaining to persons convicted of a felony were deleted from the law, there would still be discretionary powers invested in the Director and Board to deny such person a permit under circumstances that would warrant a denial. But the proper body to' make that deletion is our State Legislature, not this Court.

The Court finds that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence. The Court further finds that the order of the Board is in accordance with law. The order of the Board is affirmed.


author: By MILLER, J.;

text:
    FERGUSON, Plaintiff-Appellee, v. MORTER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2221.
    Decided April 16, 1953.
    Beigel & Mahrt, Louis R. Mahrt, of Counsel, Dayton, for plaintiff-appellee.
    Curtner’ Brenton & O’Hara, Dayton, for defendant-appellant.
   OPINION

By MILLER, J.;

This is a law appeal from the. judgment of the Municipal Court, Dayton, Ohio. The action was one for damages to the plaintiff’s automobile resulting from a collision with another car. The only question presented is whether the value of the car before the accident is limited to the selling price fixed by the Office of Price Administration under authority of the Emergency Price Control Act, or was the reasonable market value. The Court received evidence which reflected that the maximum selling price of the plaintiff’s 1937 Plymouth, four-door sedan was $190.00, but several witnesses testified that its reasonable market value was $300.00. There seems to be no conflict in the testimony as to the value immediately after the accident, the same being fixed at $25.00.

The court found in a separate finding of facts that the reasonable value of the repairs was $276.40; that the reasonable market value of the automobile immediately prior to the collision was $255.00; that after making several other allowances and deducting the $25.00 valuation after the accident, the plaintiff had been damaged in the sum of $258.00, for which judgment was rendered. The appellant contends that under the facts presented the judgment should have been limited to the O. P. A. selling price, less the $25.00 value after the accident, or $165.00 plus $4.50 towing charge.

This case seems to be one of first impression in this state, although the question has been passed upon in other jurisdictions. In considering the question presented it becomes necessary first to look into the purpose that Congress had in mind in adopting the Emergency Price Control Act, 50 U. S. C. Appendix 901. Paragraph A of this section declares its purpose: “To stabilize prices and to prevent speculative, unwarranted and abnormal increases in prices; * * * to assure that defense appropriations are not dissipated by excessive prices; * * * to prevent hardships * * * to federal, state and local governments which would result from abnormal increases in prices * *

In Trenton Beverage Co. v. Berkshire, C. C. A. 3, 1945, 151 F. 2d 227, the court held at Section 901, et seq.,

“It is complete in itself, and is an emergency measure enacted for the express purpose of stabilizing prices and preventing inflation as an effective means of aiding the speedy and victorious prosecution of war.”

In Barnett v. Bowles, 151 F. 2d 77, the court held that the object of the Act is to achieve a comprehensive regulation of the price of commodities in order to assure, in a national emergency, an adequate supply oí goods for the public at fair prices.

From these authorities, and many others we have examined, it appears that the object of the Act is to combat the inflationary effects of increasing prices. It is our conclusion that the purpose of the Act would not be served by limiting the amount of damages that may be awarded in a tort action. This is not a sale, and the Act provides that it shall not be construed as requiring a person to sell. The owner of an automobile who has paid for the same and does not see fit to “sell” or “deal” in it ought not to be classified as a dealer or seller when he seeks to recover damages' from a wrongdoer. We find the same question arose in the case of Ross Produce Co. v. Thompson, 20 N. W. 2d 57. At page 61 the court, quoting from Tierney v. General Exchange Insurance Corporation, 60 F, Supp. 331, 332, says:

“The interesting question, therefore, is, Did the fixing of the ceiling price by the Administrator for one who deals in, or sells used automobiles, fix the value of the car?

“We must bear, in mind that the (Second) War Powers Act, 50 U. S. C. A. Appendix, Section 631, et seq., was for the purpose of curbing, lessening and preventing inflation, so far as legislation could or can accomplish that end. In order to make regulations under it legally effective, it was necessary that they should be sufficiently specific to cover the transactions at which they were aimed. The particular schedules pertinent to this study concern the ‘sale, or, delivery’ of used cars. There is no apparent reasonable stretch of the regulations which would cover an ‘adjustment for insurance’ losses. In truth, there is a phrase in the regulations which excepts such efforts from the regulation. Nor is there anything in the Act or regulations which compels the owner of property to dispose of it. The owner who has paid for an automobile and who does not see fit to ‘sell’ that automobile, or to ‘deal’ in it, ought not to be classified as a ‘seller’ or a ‘dealer’ if and when he seeks pay from an insurance company which has collected a premium from him and agreed to pay him for the fire loss of his property. Such an event does not classify him as either a ‘seller’ or a ‘dealer.’ He has not been identified in any of the regulations under the Act, and seems to have been accepted (excepted) from their operations.”

The Supreme Court of Minnesota has followed the above cited case in Mattfeld v. Nester, 226 Minn. 106, 32 N. W. 2d 291. .

It is, therefore, our conclusion that the Court did not err in arriving at the amount of damages the plaintiff had suffered, the same not being in excess of the reasonable market value of the automobile. The judgment will be affirmed.

WISEMAN, PJ, HORNBECK, J, concur.


author: By BARTLETT, J.

text:
    PLACKE et, Plaintiffs, v. WASHBURN, Defendant.
    Common Pleas Court, Franklin County.
    No. 186921.
    Decided April 16, 1953.
    Butler, Butler & Werum, Columbus, for plaintiffs.
    Vorys, Sater, Seymour & Pease, Columbus, for defendant.
   OPINION

By BARTLETT, J.

THE DEMURRER TO THE PETITION AND EACH OF THE INTERROGATORIES, IS SUSTAINED

This purports to be an action for discovery under §11555 GC; but in fact, it appears to be a studious effort on the part of counsel for the plaintiff to avoid and defeat the order of the Court in a companion case pending in this court.

However, since the present issue is on a demurrer to the petition, we are confined to the facts that appear upon the face of the petition. This seems to have been ignored by counsel on both sides, with the consequent waste of words over matters that are not before the Court at this time.

The petition in the instant case does disclose that there is another action pending in this Court between the same parties involving the same subject matter.

The petition herein recites that in the other suit, No. 186.314, on the dockets of this court, the “first Cause of action therein (an action for money only filed under the statutory short form of pleading) attached thereto an exhibit entitled ‘Exhibit A,' which purports to be ‘an itemized list of materials and labor used in the construction of the house at 106 Chat-ham Rd. by J. C. Washburn (same construction job as set up in instant case), and does not contain items furnished by other contractors or the owner.”

“Plaintiffs further say that said ‘Exhibit A’ is not an itemized list of materials and labor used by defendant in that it does not always give (for materials) date purchased, where purchased, for what purpose purchased, and whether used for what purpose. Nor does it always give (for labor) the full name of the worker, the dates on which the said person worked, the number of hours worked each day, the hourly rate and for what purpose employed.”

Thereupon the prayer of the petition in part, is that the defendant herein be required to give in writing a true and detailed account of the matters, heretofore set forth and complained of as not constituting “an itemized list of materials and labor used,” even though the petition in the other case states that Exhibit “A” attached thereto is such an itemized list.

Shall we determine in this action the truth of the allegations of the petition in the other action? Shall we here test the sufficiency of the petition in the other action? Or shall those matters be settled in the other case itself, by the efficient means provided by ourmodern code procedure?

The mere questions themselves show the utter futility and wasted efforts of the present action. On page 3 of his memorandum, counsel for plaintiffs says: “Plaintiffs are groping in the dark,” and the court is inclined to agree that the atmosphere is a little hazy, due to counsel not keeping his feet on the ground.

The prayer of the petition in the instant case, proceeds then with numerous interrogatories with a request that they be answered, fully and truly. These interrogatories in most instances concern checks from the plaintiffs to the defendant, the cancelled checks being in the possession of the plaintiffs, and the defendant is asked to state in detail how he applied the proceeds of said check, and in many instances the checks have a notation on their face as to what the check was for, such as “I” beam $43.60, Survey $25.00, etc.

The petition in the instant case makes no showing that this information could not just as well be secured in the original action by the use of interrogatories authorized under §11348 GC, and the depositions authorized by §11521 et seq., GC, which has been expanded by practice to permit one party to make very searching inquiries of his opponent (on cross examination) and opponent’s witnesses.

Counsel for plaintiffs asserts on page 3 of his answer brief that plaintiffs, “can make no affirmative defenses without the demanded information.” He has the checks available for his defense of payment, and certainly his clients have peculiarly personal knowledge of what they gave the checks to cover, and in many instances this information is on the face of their own checks.

Counsel for plaintiffs spends much time in his briefs praising the availability of interrogatories and depositions in our modern code procedure, but has spent no time in attempting to utilize such means of securing his information in the original action against his clients. Instead he undertakes to accomplish the same results in another action. It cannot be denied that one of the cardinal principles of modern code procedure is to avoid multiplicity of suits.

Sec. 11555 GC, supra, authorizes an action for discovery; but as stated by the late Spear, J., in Chapman v. Lee, 45 Oh St 356, 365: “Suits for discovery were, in equity practice, auxiliary proceedings * * and p. 366: “All the aid which a suit for recovery (discovery) would give is now given by our code in the case at law itself.” * * * “The party may attach to his pleading interrogatories which, so far as pertinent, the other party is bound to answer, and those answers may be used by either party as evidence. He may also take the deposition of the opposite party, or put him on the stand as a witness at the trial. The doctrine and rules concerning the subject-matter of discovery established by courts of equity, are believed to be still in force and to control the same matters in the new procedure, but the bill of discovery, as a separate action, is practically obsolete in this state.” (Emphasis ours.)

Yet counsel for the plaintiffs draws such such a separate action out of the moth balls, and attempts to use it without any showing as to the necessity thereof.

“True, plaintiff avers that it does not know the extent of the claims which defendant has failed to pay and therefore cannot state in its pleading the amount of its damage; but now that adequate means of obtaining discovery from parties to actions at law are afforded by our statute, suits for discovery, as previously prosecuted in equity, are no longer necessary; and it is elementary that where an adequate remedy is afforded at law equity may not be resorted to. (Chapman v. Lee, 45 Oh St, 356.)”

O. Matthias Building Show Co. v. Albertson, 99 Oh St 11, 16. Our own Dillon, J., in Graham v. Ohio T. and T. Co. 2 N. P. (N. S.) 612, 613, after calling attention to Section 5293 R. S. now §11555 GC, states:

“Subsequently thereto it has been provided in the Code by Section 5099 (now §11348 GC) that a party may annex interrogatories pertinent to the issue. It has been held in the case of Chapman v. Lee, 45 Oh St 356, that so far as the practice is concerned the old action of discovery is practically obsolete in this state and is no longer necessary. It will be noted that by the section referred to a person might file a separate petition whose sole object would be to discover such facts as would enable him thereafter to file a petition; or in the case of a defendant he might file a separate action to discover such facts as would enable it to properly answer. The more convenient form of interrogatories therefore having been adopted, the pertinency of the interrogatories now in question must be determined, largely by the equitable rules of practice under the old action of discovery.” (Emphasis ours.)

In Russell, Admr. v. Ry. Co. 6 N. P. (N. S.) 353, Roberts, J., after referring to the case of Chapman v. Lee, supra, p. 356, says:

“Here we find defined by our Supreme Court, suits for discovery, the right of the party to invoke such action, to thus ascertain the fact within the personal knowledge of his adversary, and that an answer responsive can be used by either party in the trial at law as evidence. Also the declaration of the Supreme Court that the bill of discovery, as a separate action, is practically obsolete in this state; that it has been superseded by interrogatories provided for in Revised Statutes 5099 (now §11348 GC), above quoted and that the rules concerning the subject-matter of discovery established by courts of equity are still in force and to control the same matters in the new procedure. It therefore becomes important to determine what the rules of practice were, in the use of bills of discovery, and the rights of the parties relating thereto.” (Emphasis ours.)

Roberts, J., then points out on p. 357:

“Concerning discovery it is said:
.< <* * * also allege that the facts are not within complainant’s knowledge. * * * It can not be maintained to discover matter whereof complainant has the same means of information as has defendant * * *. It must show that the facts, discovery of which is sought, are necessary to complainant’s case, and not facts by which his adversary intends to establish his case.” 14 Cyc. 313-314.

In any event §11555 GC, supra, expressly requires that the party resorting to the use of this antiquated process, shall set forth “in his petition the necessity therefor, and the grounds thereof. * * *.” The policy of the law under modern code procedure, being to avoid multiplicity of suits, the party should be required to clearly show the necessity of a separate action, rather than the use of interrogatories and depositions in the original action.

The character of the prior action is not material if full relief could have been given therein, apd, if so, the demurrer to the second action should be sustained. Berger v. Moessinger, 5 C. C. 432.

The petition in the instant case shows on its face that there is another action pending in this court between the same parties, involving the same subject matter, and that said action was so pending at the time of filing the instant action.

The plaintiffs, through their counsel, have made no showing that the relief sought in the instant action, could not have been obtained by the proper use of the means provided by the code in the original action; and in fact no effort has been made by counsel for the plaintiffs to demonstrate that the information sought in the instant case, was not available in the original action by the proper use of the facilities of the code provided for that purpose. Therefore, not having shown on the face of the petition the necessity for the instant action, the demurrer to the petition is sustained, and for the further reason, the petition shows on its face “That there is another action pending between the same parties for the same cause.” (Sec. 11309 GC.)

Entry may be prepared sustaining the demurrer to the petition and dismissing the petition at plaintiffs’ costs, with exceptions by counsel for plaintiffs.


author: By GESSAMAN, J.

text:
    STATE, Appellant, v. SASSLER, d. b. a. ROSELAWN STEAK HOUSE, Appellee.
    Common Pleas Court, Franklin County.
    No. 179330.
    Decided April 11, 1951.
    Bernard J. McCluskey, Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By GESSAMAN, J.

This case is on appeal from the judgment of the Board of Liquor Control and has been submitted to the Court upon the record and the briefs of counsel. The Board of Liquor Control revoked the permits of appellant on five grounds which are contained in the Order of Revocation. These reasons we shall briefly discuss.

The first and third grounds are that “on August 30, 1948, the said permit holder made false material statements to an examiner of the Department of Liquor Control in the processing of a permit application questionnaire in that she stated she had never been the holder of a permit issued by the Ohio Department of Liquor Control;” and that “on May 25, 1949, the said permit holder made a false statement to agents and employees of the Ohio Department of Liquor Control in that she stated she had never previously held permits issued by the Ohio Department of Liquor Control;” The record discloses that the appellant had previously held permits issued by the Department of Liquor Control and that her statements, both to the agents and in the permit application questionnaire were false and that said statements were material. It is contended by counsel for appellant that since these statements were not made in the “application” itself but rather in the “application questionnaire” and to the inspectors that even though they are false material statements, they cannot be considered by the Board as a ground or grounds for the revocation of a permit. The Court is of the opinion that §6064-25 (2) GC is broad enough to include “any false material statement” made in connection with or in the application for a permit.

The second ground for the revocation of the permit is that “in the said application questionnaire the said permit holder stated that she and her husband, Morris Sassler, had not lived together as man and wife, which statement was false, the said Morris Sassler living at 17608 Puritas Road, Cleveland, Ohio, which is the same address as that given by the said Cecelia Sassler as her residence;” We do not find any competent evidence in the record to substantiate this charge and must, therefore, find that the Board abused its discretion in so finding. See Eastern Ohio Distributing Company v. Board of Liquor Control, 59 Abs 188, Ohio Bar of April 9, 1951.

The fourth ground for the revocation is that “on June 3, 1949, the said permit holder employed one Morris Sassler, a convicted felon, in her place of business;” Counsel for appellant does not deny and the record discloses that said Morris Sassler had been convicted of a felony but does contend that there is not sufficient evidence in the record to substantiate the charge that he was in the employ of the appellant. • The Court has carefully read the record and feels that there is ample competent testimony to sustain the charge, such as evidence that Morris Sassler saw to it that some of the guests were seated and were served and that, at least upon one occasion immediately after closing hours, he was seen counting the money from the cash register.

The fifth ground for the revocation is that “on or about June 5, 1949, at or about 12:30 A. M. the said permit holder prevented, hindered and obstructed agents of the Ohio Department of Liquor Control from making an inspection of the said permit premises;” It is true that the witnesses for the appellant denied that she interfered with the agents of the Department in any way but it is likewise true that the witnesses on behalf of the Department all testified that both the appellant and others, who appear from the record to have been employees of the appellant, did materially interfere with the work of the agents that night.

It is not for this Court to substitute its judgment for that of the Board of Liquor Control in an appeal of this nature As stated in the last sentnce of the first syllabus in Farrand v. State Medical Board, 151 Oh St 222:

“The Court may not substitute its judgment for that of the agency but is confined to determining the rights of the parties in accordance with the statutes and other law applicable.”

Furthermore, in the second syllabus of the Farrand case it has been held that

“The word, ‘appeal,’ as used in §154-73 GC, does not authorize a trial de novo of the matter which was before an administrative agency.”

From our review of the findings of the Board of Liquor Control, it is apparent that it is the opinion of this Court that there was competent evidence in the record to substantiate the first, third, fourth and fifth charges contained in the findings of the Board of Liquor Control. It, therefore, follows that the order revoking the appellant’s permits should be and therefore is affirmed.

Exceptions may be noted.


text:
    COLUMBUS (City), Plaintiff, v. RUGG et, Defendants.
    Common Pleas Court, Franklin County.
    No. 184829.
    Decided July 14, 1953.
    John F. Carlisle, City Atty., B. N. Murray, Columbus for defendants.
   OPINION

By BARTLETT, J.

1. Motions of all defendants, under §3697 GC, to retax the costs, and to determine reasonable attorney fees and other proper expenses incurred by the defendants to be included in said costs, sustained, where the City of Columbus abandoned an appropriation proceeding, after the assessment of compensation had been made.

2. The Court fixes a reasonable attorney fee of $3882.92 to be paid by the City of Columbus to John F. Carlisle as counsel for the defendants, Cora Rugg, Ethel M. Young and Henry L. Young; and a reasonable attorney fee of $4000.00 to be paid by said city to B. N. Murray as counsel for the defendant, Dayton M. Rugg.

3. The Court further finds that all of said defendants incurred the further proper expense of $2250.00 in the employment and use of expert appraisers and witnesses; and that Dayton M. Rugg incurred the further proper expenses attending court, luncheons $6.80, parking car $2.25 and mileage to and from court, 270 miles $16.60.

4. The Court orders the Clerk of Courts to retax the costs herein, and to include therein the aforesaid attorney fees amounting to $3882.92 and $4000.00 respectively, the proper expense incurred by all the defendants in the sum of $2250.00 as expert appraisers and witness fees, and the further expense of Dayton M. Rugg in attending court, luncheons $6.80, parking car $2.25 and mileage $16.20.

The facts in substance are that the City of Columbus appropriated the farm of the defendants in Blendon Township as a site for a Alteration plant for the City Water Works; and thereafter abandoned said appropriation, by its failure to pay or take possession of said farm, within six months after the assessment of compensation had been made. Sec. 3697 GC, provides that under such circumstances, such land shall be relieved of all incumbrance on account of such proceeding, and the judgment or order of the Court directing such assessment to be paid shall cease to be of any effect, “except as to the costs adjudged against the corporation. Upon the motion of any defendant, such costs may be retaxed and a reasonable attorney’s fee paid to the attorney of such defendant, which, together with any other proper expenses incurred by the defendant, may be included in the costs.”

The matter before the Court is such a motion by each of the defendants, to retax said costs, fix reasonable attorney fees and determine any other proper expenses incurred by the defendants, to be included in such costs, after an oral hearing on said motion as disclosed by the record.

A reasonable attorney fee may be recovered. Louisville and N. R. Co. v. Farmers and S. L. & Warehouse Co. 5 O. L. Rep. 530; Cincinnati v. Bradford Machine Tool Co., 38 Abs 151; the reasonableness of the attorney fee to be determined by the court. Wiles v. Logan Natural Gas and Fuel Co., 6 C. C. (N. S.) affirmed without opinion. 72 Oh St 628; and Cincinnati v. Thrall, et al. 6 N. P. 158.

Reasonable fees paid or to be paid expert witnesses may be recovered. Louisville and N. R. Co. v. Farmers, etc., Warehouse Co. and Wiles v. Natural Gas and Fuel Co., supra. Traveling expenses to trial may be recovered, and a livery bill when attendance of witnesses were facilitated. 15 O. Jur., p. 969.

In addition, the defendants claim their proper expenses include damages, loss of time, etc., interest on the assessment, etc.

The City may abandon proceedings to appropriate property, without being liable for damages therefor. James v. City of Toledo, 24 Oh Ap 268; Jack v. Lake Erie, etc., R. R. Co. 19 C. C. (N. S.) 249.

The term “expenses” does not include damages. Farkas v. Fulton, Supt., 130 Oh St 390, 395.

Loss of time is not included under the phrase “proper expenses incurred” as used in §3697 GC unless a showing is made that such person paid or was obligated to pay for the time devoted to the proceeding. Cincinnati v. Bradford Machine Tool Co., supra; and by no stretch of the imagination can such phrase be construed to cover interest on the assessment.

“In Black’s Law Dictionary (3 Ed.), * * * ‘expense’ is defined as ‘that which is expended, laid out or consumed; an outlay; charge; cost, price’ combining the two definitions, ‘traveling expenses’ are, strictly speaking, expenditures made in going from one place to another at a distance.”

State ex rel. v. Ferguson, 149 Oh St 555, 557.

“The phrase ‘expenses incurred,’ considered apart from any context, does not express the idea of compensation earned, for strictly speaking, an ‘expense’ signifies something—usually money paid out or disbursed, an ‘incur’ means to assume, contract for, or become liable or subject to through one’s own action; as an obligation or liability. To use the two words to convey the meaning of an obligation for compensation for services which either has been or will be met and satisfied is incorrect, yet such a meaning has been attached in more than one instance to them. * * *”

In Regina v. Kingston upon Hull, 2 Ell & Bl., 182, the town clerk sought to charge the overseers of the poor for his duties performed, under a statute which required the parish officers to repay him his “expenses incurred,” it was held by the Queen’s Bench that these words did not apply to remuneration for his labor. Lord Campbell said:

“But there is not a particle of doubt, ‘Expenses incurred’ means simply money which the town clerk has had to pay. He wants to charge for his time. No doubt he has been very usefully employed; but that is not incurring an expense.”

It is interesting to note that §11060 GC, governing the abandonment of such appropriation by private corporations, enacted as 72 O. L. 71, Sec. 10, covered “expenses, including time spent and attorney fees incurred”; but that §3697 GC, enacted many years later and covering the abandonment of such appropriation by a municipal corporation, omitted the words “time spent” when enacted as 96 O. L. 30, Sec. 22. (Emphasis ours.l

It is a general rule that statutes implementing the power of eminent domain must be strictly construed. Cincinnati v. Vester, 281 U. S. 438; Farber v. Toledo, 104 Oh St 196.

This Court has searched diligently for authority on which to afford relief to the defendants for their loss of time and inconvenience due to the city’s abandonment of this project; but finds itself constrained to admit that “It is not the province of this court to confer upon the defendant by judicial construction a right not given to him by the words which the general assembly has used.” City of Euclid v. Vogelin, et al., 152 Oh St 538, 546.

The Court accordingly allows a reasonable attorney fee of $3882.92 to John F. Carlisle as counsel for Cora Rugg, Ethel M. Young and Henry L. Young; such a fee of $4000.00 to B. N. Murray as counsel for Dayton M. Rugg; a fee of $2250.00 for expert appraisers and witnesses employed and used by all the defendants; further expenses of Dayton M. Rugg in attending court, luncheons $6.80, parking car near Court House $2.25; and mileage to and from court, 270 miles, $16.20; and all other claims of defendants are denied, as not within the phrase “other proper expenses incurred” as used in §3697 GC.

Entry accordingly with exceptions by any and all parties desiring the same.


text:
    JOHNSTON, Plaintiff, v. GRAHAM, Defendant.
    Common Pleas Court, Franklin County.
    No. 186469.
    Decided October 19, 1954.
    Richard W. Riggs, Columbus, for plaintiff.
    Vorys, Sater, Seymour & Pease, Columbus, for defendant.
   OPINION

By BARTLETT, J.

Motion to make definite and certain the cross-petition is OVERRULED.

On September 13, 1954, defendant filed the cross-petition objected to, and on the same date filed separately an alleged supplemental answer.

On September 21, 1954, plaintiff’s counsel filed a motion to strike the alleged supplemental answer from toe files which was sustained, but made no objection to the cross-petition until October 2, 1954, when the instant motion was filed.

Several objects may be included in the same motion if they grow out of, or are connected with the action in which it is made. Sec. 2309.66 R. C.

It is not proper practice to permit counsel to file motions which they could have filed on the prior pleading. The rule is, that a party who seeks to take advantage of irregularities which are known and might have been brought out, must bring forward all his objections on the original motion at once, and not parcel them out and produce them piece-meal. 14 Enc. Pl. & Pr., 184; State, ex rel. v. Schott, 6 N. P. (N. S.) 270, 272. Otherwise, they will be deemed waived.

Entry accordingly with exceptions by counsel for plaintiff.


text:
    MARSHALL et, v. NEW INVENTOR’S CLUB, Inc.
    Common Pleas Court, Cuyahoga County.
    No. 642228.
    Decided December 2, 1953.
    Albert R. Teare, Curtis C. Williams, Jr., George Knowles, Cleveland, for plaintiffs.
    Stephen M. Young, Cleveland, for defendant.
   OPINION

By BELL, J.

Plaintiffs are the President, Vice President, Treasurer and Secretary of the Cleveland Bar Association, a voluntary unincorporated organization comprising practicing lawyers of Cuyahoga County. The action was brought for the plaintiffs themselves and for and on behalf of all other members of the association and all other attorneys at law licensed to practice in the State of Ohio.

The defendant is’a corporation for profit organized under the laws of the State of Ohio. Its Articles of Incorporation state the purpose of the corporation to be:

“The assisting of inventors in the development of their ideas and the promoting and negotiating of sale of their ideas on a fee or commission basis.”

The stock of the corporation is held by William J Korth, Hazel Korth, his wife, Mr. and Mrs. W. E. Chapman, who are Mrs. Korth’s parents, and one Mr. Wynbrandt, an accountant. The business is operated by Korth, who holds three shares of stock and spends full time at the business. Wynbrandt holds one share and makes up the financial returns for the corporation. The balance of the shares are held by Mrs. Korth and her parents, none of whom are active in the business.

The record in this case fully reveals the operations of the defendant. Briefly summarized, they are: the defendant corporation advertises and holds itself out as a “Club” which charges and receives dues in the amount of $5 per year from each of its 4,700 members. None of these members are stockholders in the corporation and the “Club” has no organization apart from the corporation. These dues are all deposited in a bank account maintained in the name of the corporation and there is no bank account for the club apart from the corporation. Similarly, all moneys received from inventors for making searches, preparing applications for patents, drafting contracts, etc., are deposited only in the corporation account.

The $5 membership dues represents all an inventor has to pay to entitle him to free advice and consultation the year ’round. If he needs working models, searches, or patent applications, he then pays extra on a fixed price basis.

The defendant, according to the advertising it has done, as shown by the evidence, and according to the testimony of Korth, repders opinions as to the patentability of inventions, prepares applications for Letters Patent of the United States, prepares amendments to such applications, drafts contracts, prepares affidavits and assignments for transferring title in patent applications and patents.

The defendant, which is primarily a one-man corporation occupying a one-room office, employs a patent attorney in Washington and one Ohio attorney and some laymen to perform these services, all of whom are paid by the corporation. Correspondence from the defendant to its “members” would give the impression of many departments since letters would be signed over phrases such as “Research Department.” “Advisory Board,” and “Legal Department,” many of the latter of which were signed by non-lawyers and clerks who doubled as members of any convenient “department.”

Plaintiffs contend the activities of the defendant constitute an unauthorized practice of law and seek to enjoin the defendant from performing such services.

Sec. 1701.04 R. C., provides that a corporation may be formed for any purpose or purposes other than for carrying on the practice of any profession. This limitation clearly applies to the practice of law. The practice of law involves a personal relationship which cannot be fulfilled by a corporation, and the practice of law is confined to those who have met the prescribed requirements and have been' regularly admitted to the bar. Land Title Abstract & Trust Co. v. Dworken, 129 Oh St 23, 193 N. E. 650; Judd v. City Trust & Savings Bank, 133 Oh St 81, 12 N. E. 2d 288.

If, then, the services admittedly performed by the defendant are such as constitute the practice of law, ones in whom the right to practice law is vested may be protected by injunction from the invasion of that right. Land Title Abstract & Trust Co. v. Dworken, supra.

Rendering Opinions As To Patentability

The proof in this case is clear that the defendant provided its “members” with a printed form upon which a record of an invention could be made. (It is interesting to note that this form included a so-called will, which incidentally would not be in accord with the Ohio law on wills.) Upon receipt of this information about an invention, the defendant would cause a search to be made in the Patent Office and would advise the inventor by letter of the result of that search. The corporation would advise as to patentability by means of a rubber stamp reading “advise to proceed for patent application” impressed on the letter to the inventor.

Not every alleged patent is patentable. Hence the rendering of an opinion as to patentability requires a knowledge of the patent statutes and of the decisions interpreting them. A knowledge of the decisions would be particularly essential in determining questions concerning patentable inventions. Clearly the rendering of such opinions constitutes the giving of legal, advice.

Preparing Applications For Letters Patent

Prior to May 15, 1952, applications were signed by David H. Eckrodd, an attorney admitted to practice in Ohio, who was employed by defendant. After his disbarment from practice before the Patent Office; effective May 15, 1952, the defendant advised its “members” that it had adopted a “new policy,” that services would be performed “as usual” by the corporation, but that applications from then on would be signed by the inventor himself. The employees of the corporation continued, however, to prepare the applications.

That drawings, specifications and claims contained in a patent application must be so carefully drawn as to insure protection of the inventor from infringement is so well known in the patent field that it needs no elaboration here. The many Federal court decisions relating to infringements hinge in many instances on the meaning and interpretation extended to the claims of a patent in the light of previous decisions concerning patentability. A knowledge of these decisions would be essential to the proper drafting of an application.

Inventors paid fees to the defendant for preparing applications. Consequently, they had a right to rely on the competency of those who were preparing them. Yet the defendant, according to the record, sometimes hired law students to prepare these applications.

Because of the knowledge of statutes and decisions required to prepare applications in such a way that valuable rights would not be lost, it is the opinion of the Court that the preparing of patent applications constitutes the practice of law in Ohio.

Preparing Amendment to Applications for Letters Patent

The preparation of amendments to applications for letters patent requires the same knowledge utilized for drafting claims and necessitates the preparation of a brief with each amendment, citing authority on-points of law which might be applicable to a particular fact in issue.

Perhaps even a greater knowledge of the law is required here than in the preparation of the original application and the reasoning is therefore stronger that this activity, which the proof shows clearly was carried on by the defendant, constitutes the practice of law.

The drafting of contracts, the preparing of affidavits and of assignments have been so uniformly held to constitute the practice of law, both in Ohio and elsewhere, that the citation of authority or a further extension of the subject does not appear necessary to the Court.

The record is clear in this case that the defendant is a corporation and, as such, was performing the services herein discussed. It is the opinion of the Court that such services constitute the practice of law of Ohio and that the defendant should be enjoined from further performing such services.

Counsel for plaintiffs may prepare an entry, noting defendant’s exceptions, enjoining the New Inventor’s Club, Inc., its officers, agents, employees and all others acting for or in concert with them or any of them, from performing or offering to perform any and all of the services discussed herein and any and all other legal services of any nature whatsoever, and submit said entry to counsel for defendant and to the Court for approval.


text:
    SONS BARS & GRILLS CO., In re.
    Common Pleas Court, Franklin County.
    No. 188719.
    Decided January 18, 1954.
    C. William O’Neill, Atty. Geni., Louis E. Evans, Asst. Atty. Geni., Columbus, for Board of Liquor Control.
    Isadore Topper, Columbus, for appellant.
   OPINION

By CLIFFORD, J.

This case is before this court on appeal from the decision of the Board of Liquor Control suspending appellant’s D-5 class permit for a period of ten days, pursuant to §119.12 R. C., §154-73 GC.

The facts are not in controversy. They are stipulated by the parties. A waitress employed by the Melody Show Bar served and sold to Joyce Flack, aged eighteen years, one drink of Scotch whiskey, and also one bottle of 3.2 beer to Nina Briggs, aged nineteen years. The waitress requested the identification and age of Joyce Flack. At that time, Joyce Flack informed the waitress that she was twenty-three years of age, although she produced no identification. After this, she was served a Scotch whiskey, for which she paid. Thereupon, investigators from the Department of Liquor Control approached the table where the two young ladies were seated, identified themselves, and requested Joyce Flack to state her age and identify herself. At that time, she said she was twenty-three years old. On further inquiry she stated she was eighteen. The investigators confiscated the drinks and notified the permit holder of the violation. It was stipulated that at the time the waitress made inquiry as to the age of Joyce Flack, and after she had stated her age to be twenty-three years, the waitress asked Joyce Flack whether or not she had any identification with her to support that statement, and she was informed she did not have.

The charge preferred against the permit holder is selling “in and upon the permit premises intoxicating liquor, to-wit, whiskey, to Joyce Flack, a minor being then and there 18 years of age in violation of the provisions of the Liquor Act and the regulations of the Board of Liquor Control.” The infraction charged is a violation of §6064-22 GC.

The sole issue before this court is whether or not scienter or knowledge of the minority of Joyce Flack must be shown by the state. The public policy bears heavily upon this question. In 1854, in Miller and Gibson v. State, 3 Oh St 475, the Supreme Court said in construing 52 Ohio Laws, p. 153, which law was in terms similar to §6064-22 GC of the Liquor Control Act under consideration in the case at bar, that in order to sustain a conviction under the section of the act prohibiting sale of liquor to a minor, it was necessary to aver and prove that the seller knew the buyer to be a minor. It is to be observed neither 52 Ohio Laws, p. 153 nor §6064-22 GC expressly or by clear implication makes ignorance of minority a defense.

The principle of law requiring scienter for conviction enunciated in the Miller and Gibson case was affirmed in the Aultfather case (Aultfather v. State) 4 Oh St 467, and in Crabtree v. State, 30 Oh St 382. In the Crabtree case which involved the sale of an alcoholic beverage to an intoxicated person, the court went so far as to require concurrence of three essential conditions: (1) the fact of selling intoxicating liquor to the prohibited person, (2) a criminal intent, and (3) guilty knowledge. In the class of cases represented by the Miller, Aultfather and Crabtree cases, it is clear that the public policy at that time required that the existence of guilty knowledge, or scienter must be shown by the state beyond a reasonable doubt in order to sustain a conviction.

But the case at bar does not require the proof of scienter beyond a reasonable doubt which was established in the above cases. Both social conditions and public policy have changed since 1854. The protection of adolescent children demands that the seller determine at his peril the age of a prospective purchaser. The means of such determination are within the power of the seller. Where the seller cannot determine age he must refuse the sale, or sell at the hazard of his license.

In State v. Kominis, 73 Oh Ap 204, 55 N. E. 2d 344, and State v. Williams, 94 Oh Ap 249, 115 N. E. 2d 36, we find the rules governing this case. The first syllabus of 94 Oh Ap 249, 115 N. E. 2d 36, 37, states:

“Where a statute defines an offense regardless of scienter, and the means of knowledge are available to the accused or the act is such as to impose a duty (in the interest of the public weal) upon the offender at his peril to ascertain the fact of violation, knowledge is not an essential element to support conviction: but under a charge of violating a statute which does not by its terms include scienter as an element of the offense, where the means of knowledge or the circumstances are such that the accused is not bound at his peril to know the fact and obey the law, proof of knowledge of the fact is essential to support a conviction.”

In the case before the court the public weal is involved. The means of knowledge was available to the appellant. Appellant contended on the appeal that the Kominis and Williams cases were appeals court decisions and therefore could not be held to overrule the Miller and Aultfather cases in 3 and 4 Oh St. This court believes that public policy has changed since 1854, and that the Supreme Court, if given an opportunity, would overrule these cases. In 115 A. L. R. 1230, 1234, the cases appear in an annotation as a basis for placing Ohio in the Minority view. These cases are no longer the law in Ohio, despite the fact that they have not been expressly overruled.

The general rule cited at 115 A. L. R. 1230, which this court holds is the law in Ohio, is stated:

“In a prosecution for selling liquor to a minor under a statute which forbids or makes unlawful such a sale, but does not expressly or by clear implication make ignorance or minority a defense, the seller’s ignorance that the buyer was a minor, or bona fide belief that he was of legal age, is not available as a defense.”

In Sata v. Board of Liquor Control, 88 Oh Ap 88, 89, 94 N. E. 2d 464, was a case in which an adult purchased whiskey which a minor later consumed without the knowledge of the tavern owner. Knoff v. Board of Liquor Control, 105 N. E. 2d 673, affirmed the Sata case. Both the Sata and Knoff cases are distinguishable from the instant case on their facts.

That the waitress was employed by the permit holder is stipulated. The act of the agent is the act of the principal. 23 O. Jur. 161; Meyer v. State, 54 Oh St 242, 43 N. E. 164.

The Court finds the order of the Board of Liquor Control to be supported by reliable, probative and substantial evidence and that the order is in accordance with law. The order is affirmed.