author: By ALLEN, Circuit Judge. STEWART, Circuit Judge. MILLER, Circuit Judge.

text:
    CLEMONS, etc. et, Appellants, v. BOARD OF EDUCATION OF HILLSBORO et, Appellees.
    United States Court of Appeals, Sixth Circuit.
    No. 12494.
    Decided January 5, 1956.

      Constance Baker Motley, New York, N. Y., James H. McGhee, Russell L. Carter, Dayton, Thurgood Marshall, New York, N. Y., for appellants.
    James D. Hapner, Hillsboro, for appellees.
    Jack G. Day, Julien C. Renswick, Cleveland, for Ohio Civil Liberties Union, amicus curiae.
    Before ALLEN, MILLER and STEWART, Circuit Judges.
   OPINION

By ALLEN, Circuit Judge.

This is an equity case filed in the United States District Court on behalf of the plaintiffs and others similarly situated, praying for preliminary and permanent injunction enjoining defendants, the Board of Education of Hillsboro, Ohio, hereinafter called “the board,” the individual members of the board, and the Superintendent of Schools of the city, from enforcing a policy of racial segregation in the public schools of Hillsboro, Ohio, from requiring plaintiffs to withdraw from the Webster and Washington Schools because of their race and color, and from requiring plaintiffs to attend Lincoln Elementary School or any other school in the City of Hillsboro which is exclusively attended by Negro children. The District Court denied the injunction.

There is no controversy as to the material facts of the case. There are three elementary schools in Hillsboro, Ohio, Washington, Webster, and Lincoln. Washington and Webster Schools have 12 regular elementary classrooms each, with one teacher assigned to each room and teaching one grade in the room. For approximately 15 years prior to September 7, 1954, the Webster and Washington Schools have been attended exclusively by white children.

Lincoln School has four classrooms, two of which are in use as-regular classrooms. It has long been maintained exclusively for Negro children and it has two full-time Negro teachers who teach six elementary grades in two rooms. On September 8, 1954, Lincoln School had an enrollment of 17 Negro children.

Segregation of school children according to race or color is not permitted under Ohio law. A statute providing for such segregation, §4008 R. S. (1886), was repealed in 1887, 84 Ohio L. 34. The Supreme Court of Ohio construed these enactments in 1888 and unanimously held that, while under §4013 R. S., “power is conferred on boards of education to make such assignments of the youth of their respective districts, to the schools established by them, as will, in their opinion, best promote the interest of education in their districts, such power cannot be exercised with reference to the race or color of the youth; and §4008 R. S. having been repealed by the act of the general assembly passed February 22, 1887 (84 Ohio Laws 34), separate schools for colored children have been abolished, and no regulation can be made under §4013 R. S., that does not apply to all children irrespective of race or color.” Board of Education v. State, 45 Oh St 555, 16 N. E., 373. In Board of Education of School Dist. of City of Dayton v. State ex rel. Reese, 114 Oh St 188, 151 N. E., 39, a suit was filed in the Court of Appeals of Montgomery County, Ohio, praying a writ of mandamus to compel the Board of Education and the Superintendent of Schools of the City of Dayton to admit relator’s children and other children of the colored race to the schools of the city on equal terms with white children. A demurrer was filed to this petition and overruled in the Court of Appeals. The Supreme Court unanimously affirmed the judgment in favor of the relator and against the Board of Education upon the authority of Board of Education v. State, 45 Oh St 555, 16 N. E., 373.

The Hillsboro schools in part have complied with the Ohio law. The High School in Hillsboro is attended by both Negro and white children. The segregation of pupils in the 7th and 8th grades was discontinued by the board in 1951. But the long-standing segregation in Lincoln School still exists. On September 7, 1954, plaintiffs, colored children of elementary school age were registered, three in Webster and four in Washington School, and each assigned a seat in a classroom. Immediately thereafter the schools were closed for several days, and on September 14th plaintiffs were reassigned to Lincoln School.

On September 13th the board established school zones for the City of Hillsboro. This was the first school zoning ever set up for Hillsboro schools. The resolution of the board divided the city into three school zones, Washington, Webster and Lincoln. The Lincoln zone was divided into two completely separated parts, one in the northeast and one in the southeast section of the city. Three of the plaintiffs who live in the southeast part of the Lincoln zone have to pass by the Washington School in order to reach the Lincoln School. The Lincoln School is not in the Lincoln zone, but in the Washington zone. There has been some crowding in the schools of Hillsboro, the average number of pupils per room on September 8,1954, being 35.4 in the Washington School and 38 in the Webster School. There was a drop in the enrollment of Hillsboro of some 29 pupils in the last school year.

In view of the overcrowding of the schools proposals to extend the Washington and Webster buildings were developed by the board. A bond issue was proposed and approved by the voters in 1953, and the plans for building are now being carried out. The Webster School is to be rebuilt in its entirety and the Washington School is to have an addition. On August 9, 1954, the board adopted a resolution which reads as follows:

“That the Hillsboro City Board of Education go on record supporting the integration program, for children of Lincoln School, of Supt. Upp on completion of Washington and Webster School Buildings.”

The uncontradicted testimony shows that the school officials intended, upon completion of Washington and Webster School buildings, to abandon the use of Lincoln School. The date when the two buildings will be completed is variously estimated as being around the middle of 1956 or around 1957. Defendants claimed in their answer that under the zoning plan the attendance in the elementary schools by children living within Hillsboro is determined by the place of residence of the pupils concerned and not by race, color, or national origin. However, the Superintendent of Schools testified that a “temporary segregation” existed due primarily to the building situation. This “temporary segregation” of course was a continuation of a segregation existing over a number of years at the Lincoln School.

The district court made the following finding: “Plaintiffs’ evidence furnished through the President of the Board of Education, the Superintendent of the Schools, an expert witness in the person of a professor of educational administration, and a colored teacher of Lincoln School, together with an agreed stipulation of facts, subject, however, to the qualifying testimony concerning the School Board’s program to completely integrate the elementary schools, virtually established the allegations of their complaint, including plaintiffs’ claim that the establishment of the so-called elementary school zone is a subterfuge to permit the continuance of Lincoln School for Negro children exclusively.”

The District Court denied the relief prayed for upon the ground that it would seriously disrupt the orderly procedure and administration of Washington and Webster Schools if an injunction were granted in the case. It held that under Ohio law, as well as under Hecht Co. v. Bowles, 321 U. S., 321, 64 S. Ct., 587, 88 L. Ed., 754, the exercise of discretionary powers of the board should not be interfered with. This conclusion is clearly erroneous and constitutes an abuse of discretion on the ¡part of the district court.

The district court did not have the benefit of the decision in Brown v. Board of Education of Topeka, 349 U. S., 294, 75 S. Ct., 753, 57 O. O. 253. However, before this case was decided below the Supreme Court had declared in Brown v. Board of Education of Topeka, 347 U. S., 483, 74 S. Ct., 686, 98 L. Ed., 873, 53 O. O. 326, that segregation in the public high schools and elementary schools of the United States is a violation of the 14th Amendment. In the subsequent decision, Brown v. Board of Education of Topeka, 349 U. S., 294, 75 S. Ct., 753, 756, 57 O. O. 253, the Supreme Court said that courts will have to consider whether the action of school authorities constitutes “good faith implementation of the governing constitutional principles.” The court declared, “At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis” and stated that the burden rests upon the defendants when they seek additional time in which to desegregate the school system to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. Cf. Lucy v. Adams, 350 U. S., 1, 76 S. Ct., 33.

The district court held that the establishment for the first time in Hillsboro of a zoning system with a gerrymandered district set up in two separate parts, designed to embrace practically the entire colored population of the city, was brought about as a subterfuge to segregate children who had been admitted to Webster and Washington Schools. This was in violation of the law of the State of Ohio. Board of Education v. State, 45 Oh St 555, 16 N. E., 373; Board of Education of School Dist. of City of Dayton v. State ex rel. Reese, 114 Oh St 188, 151 N. E., 39. It was in violation of the decision of the Supreme Court of the United States and of the Constitution of the United States.

This is an equity case in which a permanent injunction is sought to protect basic civil rights. The principles governing the issuance of such an injunction are stated by Pomeroy: Equity Jurisprudence, Vol. 4, 5th Ed., 934, 935, as follows:

“Whatever be its form, decree or order, the remedy by ordinary injunction is wholly preventive, prohibitory, or protective. * * *

“In determining whether an injunction will be issued to protect any right of property, to enforce any obligation, or to prevent any wrong, there is one fundamental principle of the utmost importance which furnishes the answer to any questions, the solution to any difficulties which may arise. This principle is both affirmative and negative, and the affirmative aspect of it should never be lost sight of, any more than the negative side. The general principle may be stated as follows: Where-ever a right exists or is created, by contract, by the ownership of property or otherwise, cognizable by law, a violation of that right will be prohibited, unless there are other considerations of policy or expediency which forbid a resort to this prohibitive remedy. The restraining power of equity extends, therefore, through the whole range of rights and duties which are recognized by the law, and would be applied to every case of intended violation, were it not for certain reasons of expediency and policy which control and limit its exercise. This jurisdiction of equity to prevent the commission of wrong is, however, modified and restricted by considerations of expediency and of convenience which confine its application to those eases in which the legal remedy is not full and adequate. Equity will not interfere to restrain the breach of a contract, or the commission of a tort, or the violation of any right, when the legal remedy of compensatory damages would be complete and adequate. The incompleteness and inadequacy of the legal remedy is the criterion which, under the settled doctrine, determines the right to the equitable remedy of injunction.”

The same test was established by the Supreme Court in Sterling v. Constantin, 287 U. S., 378, 403, 53 S. Ct., 190, 197, 77 L. Ed., 375. The Supreme Court said:

“Whether or not the injured party is entitled to an injunction will depend upon equitable principles; upon the nature of the right invaded and the adequacy of the remedy at law.”

The rights here sought to be protected have existed under Ohio law since 1888 and they were declared by the Supreme Court to exist under the United States Constitution in an opinion announced several months before the District Court denied the injunction sought. Brown v. Board of Education of Topeka, 347 U. S., 483, 74 S. Ct., 686, 98 L. Ed., 873, 53 O. O. 326. If injunction will issue to protect property rights and “to prevent any wrong,” Pomeroy, supra, it will issue to protect and preserve basic civil rights such as these for which the plaintiffs seek protection. While the granting of an injunction is within the judicial discretion of the district judge, extensive research has revealed no case in which it is declared that a judge has judicial discretion by denial of an injunction to continue the deprivation of basic human rights.

The district court in the instant case found that such rights had been invaded when it found that the zoning resolution was adopted as a subterfuge in order to continue segregation. The children were assigned seats in non-segregatd schools at a time when the school population was numerically larger than at present.

The excuse of crowding to justify segregation has no basis in law nor, in this case, in fact. The court’s denial of the permanent injunction prayed for was entered February 16, 1955. It is contemplated that the building program which will provide additional classrooms will not be completed until the middle of 1956, or perhaps until 1957. The judgment below continued for an indefinite period the violation of law carried out by the Board of Education. In view of the admitted violation of plaintiffs’ statutory and constitutional rights the equities here are on the side of plaintiffs. Equitable relief by injunction is essential in order to protect these colored children. There is no adequate remedy at law.

It follows that the judgment of the district court is contrary to the rules of equity and constitutes an improvident exercise of judicial power. It is generally held that the trial court abuses its discretion when it fails or refuses properly to apply the law to conceded or undisputed facts. Union Tool Co. v. Wilson, 259 U. S., 107, 112, 42 S. Ct., 427, 66 L. Ed., 848. Misapplication of the law to the facts is in itself an abuse of discretion. Hanover Star Milling Co. v. Allen & Wheeler Co. (7 Cir.), 208 F., 513, 523. Such abuse of discretion requires reversal. Bowles v. Simon (7 Cir.), 145 F. (2d), 334. Here the allegations of the complaint were sufficient, the evidence was undisputed, and it was undisputed that defendants ignored the statutory and constitutional rights of these plaintiffs.

It was stated in Hecht Co. v. Bowles, supra [321 U. S., 321, 64 S. Ct. 592], that the discretion exercised by the courts in granting an injunction under the Emergency Price Control Act, 50 U. S. C. A. Appendix, §901 et seq., “must be exercised in light of the large objectives of the Act.” We think the large objectives of the non-segregation program support plaintiffs’ contentions. The crowding problem relied on by defendants is small and in no way comparable in difficulty or complexity to the shift of entire school systems necessitated in certain states described in the education cases Brown v. Board of Education of Topeka, 347 U. S., 483, 74 S. Ct., 686, 98 L. Ed., 873, 53 O. O. 326, and 349 U. S., 294, 75 S. Ct., 753, 57 O. O. 253.

There are seven plaintiffs and on September 8, 1954, seventeen additional colored children were enrolled in Lincoln School. The total number of segregated colored children approximates the figure by which the school population of Hillsboro is smaller this year than last year. If the board will recognize the law it will have no greater problem in placing these colored children than in placing an equal number of white children. Since Lincoln has been for many years a segregated school, it is a fair assumption that the board would not send new pupils, white children, to the Lincoln School. It did not do so, although there were two vacant schoolrooms at Lincoln which could have been used to decrease the general crowding. The board doubtless would send new pupils, white children, to Webster and Washington Schools. The Negro children should be given the same treatment.

In its latest decision the Supreme Court has enjoined upon the school authorities that they act “with all deliberate speed.” Brown v. Board of Education of Topeka, 349 U. S., 294, 301, 75 S. Ct., 753, 757. 57 O. O. 253. Certainly in Lucy v. Adams, supra, the Supreme Court indicated its determination to have these matters taken care of promptly.

The majority of the court concludes that the board abused its discretion and violated state and constitutional law in establishing the zoning ordinance and assigning these plaintiffs to segregated schools, and that the district court abused its discretion in refusing to enjoin this continued violation of law.

The writer of this opinion thinks that this case should be remanded to the district court with instructions to restate its conclusions of law in accordance with the majority opinion and to issue a permanent injunction as prayed for in the complaint and to enjoin the defendants from establishing school zones in the city of Hillsboro in such a way as to effect segregation of school children upon a basis of race or color. As this is a class action the relief described above should in my opinion be accorded, not only to the plaintiffs named, but to other colored children similarly situated. Since neither of my brothers concurs in such an order I am compelled to concur in an order along the line suggested by my concurring colleague, Judge STEWART.

CONCURRING OPINION

By

STEWART, Circuit Judge.

At the time this case was decided, the Supreme Court’s second opinion in the segregation cases had not been announced. Brown v. Board of Education of Topeka (1955), 349 U. S., 294, 75 S. Ct., 753, 57 O. O. 253. The district court was therefore without the guidance of that decision. In the retrospective light of that opinion, all three members of this court are agreed that the district court was in error in not retaining jurisdiction of this controversy, and that the case should now be remanded to that court with directions to retain jurisdiction.

The single question which appears to divide us is what guidance, if any, we should now give the district court as to the future exercise of its jurisdiction. That question, I think unfortunately, must apparently be cast in terms of whether or not there has been an “abuse of discretion.” Certainly there has been none in any popular concept of that phrase. The district judge obviously gave thorough consideration to the issues involved. The decision he reached was motivated by his confidence that the human problem here was being worked out in an orderly way by the voluntary action of the people of the Hillsboro community. In other contexts the court’s decision would have been a commendable exercise of judicial self-restraint, consistent with historic principles of equity. Hecht Co. v. Bowles (1944), 321 U. S., 321, 64 S. Ct., 587, 88 L. Ed., 754.

“The term abuse, however, when applied to a court’s exercise of its discretion is peculiarly of legal significance, wholly unrelated to the same term when used in common parlance. * * * Abuse of discretion in law means that the court’s action was in error as a matter of law.” Beck v. Wings Field, Inc. (3 Cir., 1941), 122 F. (2d), 114, 116.

In the present case I think the area permissible under the law for the exercise of judicial discretion was an extremely narrow one, and that its allowable limits were exceeded by the district court in denying injunctive relief.

In the cases recently decided by the Supreme Court racial segregation on the part of the school authorities was required or permitted by the states involved. The court recognized in its second opinion in those cases that the transition to an integrated school system in such states would involve many difficult practical problems, varying in each locality, but in each locality requiring the uprooting of a system of education built upon decades of state custom and state law. Yet the court directed that that transition take place with “all deliberate speed.”

By contrast the segregation of school children because of their race has been contrary to the law of Ohio for almost seventy years. The Hillsboro Board of Education created the gerrymandered school districts after the Supreme Court had announced its first opinion in the segregation cases. The board’s action was, therefore, not only entirely unsupported by any color of state law, but in knowing violation of the Constitution of the United States. The board’s subjective purpose was no doubt, and understandably, to reflect the “spirit of the community” and avoid “racial problems,” as testified by the Superintendent of Schools. But the law of Ohio and the Constitution of the United States simply left no room for the board’s action, whatever motives the board may have had. I think the appellants were clearly entitled to injunctive relief as a matter of right in this case.

I therefore concur with Judge ALLEN in remanding this case to the district court with directions to enjoin the defendants from continuing racial segregation of children in the Hillsboro schools. But I would give a wider scope to the district court within which to frame the terms of its decree.

Our decision in this case will be announced in the midst of a school year. No reason appears why those Negro children of school age who are not now attending any school should not be admitted immediately to whichever of the three schools a system of attendance zones based upon geographic or other relevant nonracial considerations may dictate. To undertake before the end of the present school year a wholesale shifting of the other Negro and white children now in school might, however, serve to cause dislocation and hardship out of proportion to the purpose to be served. So, at least, I think the district court might properly find.

I therefore believe that this ease should be remanded to the district court with instructions to retain jurisdiction, and after prompt notice to the parties and opportunity for hearing, to frame a decree which will provide for the immediate admittance to school on a nonsegregated basis of school age Negro children not now in any Hillsboro public school, and which will further provide for the end of all racial segregation in the Hillsboro public schools on or before the commencement of the school year in September, 1956.

It was estimated at the time of the hearing in the district court that the new school buildings in Hillsboro would be completed about January, 195V, although the record is not entirely clear on this point. If that is true, there may be some overcrowding of classrooms for the first half of the next school year, in the event the board decides to make no use of the present Lincoln School building. Overcrowded classrooms, however, are unfortunately not peculiar to Hillsboro, and the avoidance alone of somewhat overcrowded classrooms cannot justify segregation of school children solely because of the color of their skins.

DISSENTING OPINION

By

MILLER, Circuit Judge.

The granting or denial of the injunction prayed for was a matter within the judicial discretion of the district judge. Brown v. Board of Education of Topeka, 349 U. S. 294, 300-301, 75 S. Ct. 753, 756, 57 O. O. 253.

In such cases it is well settled that upon appeal the ruling will not be disturbed unless contrary to some rule of equity or the result of improvident exercise of judicial discretion. Meccano, Ltd. v. John Wanamaker, 253 U. S., 136, 141, 40 S. Ct., 463, 64 L. Ed., 822; National Fire Ins. Co. of Hartford v. Thompson, 281 U. S., 331, 338, 50 S. Ct., 288, 74 L. Ed., 881. The discretion of the chancellor is necessarily broad and a strong showing of abuse must be made to reverse it. United States v. W T. Grant Co., 345 U. S., 629, 633, 73 S. Ct., 894, 97 L. Ed., 1303. Discretion, in this sense, is abused when the judicial action is arbitrary, not justifiable in view of the situation and circumstances. Hartford-Empire Co. v. Obear-Nester Glass Co. (8 Cir.), 95 F. (2d), 414, 417; Delno v. Market St. Ry. Co. (9 Cir.), 124 F. (2d), 965, 967. If reasonable men could differ as to the propriety of the action taken by the district judge, it can not be said that the district judge abused his discretion. Delno v Market St. Ry. Co., supra; McHenry v. Foutty, 223 Ind., 335, 60 N. E. (2d), 781, 158 A. L. R., 537.

Irrespective of whether we agree or disagree with the ruling of the district judge, I do not believe his ruling can be considered arbitrary or one concerning which reasonable men might not differ. Problems related to administration, which the Supreme Court specifically pointed to in Brown v. Board of Education of Topeka, supra, 349 U S., at pages 300-301, 75 S. Ct., at page 756, 57 O. O. 253, as problems which the court might consider in reaching its decision, are present in this case, such as those arising from the physical condition of the school plant and the school transportation system. The district judge was also authorized by the same opinion to consider the adequacy of any plans which the board might have to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. The board has adopted a plan which will effectuate the transition as soon as construction work now in progress is completed. The plan has been approved by the residents of the community who have voted the necessary bonds to finance it.

It should also be noted that this case does not have a background of opposition on the part of the board to integration of the public school system in Hillsboro. The Hillsboro High School has been integrated for some years. Segregation of pupils in grades 7-8 was discontinued in 1951. At that time the board discussed the question of integration of the complete school system in contemplation of the passage of bond issues. Three proposed bond issues failed to pass, but in 1953 the necessary bond issue was approved. On August 9th, 1954, before this action was filed, the board unanimously passed a resolution approving a plan calling for integration of all school children in Hillsboro effective upon the completion of the new elementary buildings. The plan included the rehabilitation of the Washington building with the interior torn down and rebuilt, the work to start in June 1955. The board decided that integration should be delayed until this work was completed.

The Supreme Court stated in its opinion in Brown v. Board of Education of Topeka, supra [349 U. S., 294, 75 S. Ct., 756, 57 O. O. 2531, that the district courts should require that local school authorities “make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner.” (Emphasis added.) The additional directive that there must be a “good faith compliance at the earliest practicable date” does not require an immediate transition, regardless of the practical problems involved. The language itself recognizes the probable existence of practical problems, the solution of which, as pointed out by the court, is the primary responsibility of the school authorities.

I am of the opinion that there was no abuse of discretion on the part of the district judge in refusing to grant the injunction prayed for. I believe that the action should be retained on the docket of the district court for further consideration by the court if and when future developments warrant such additional consideration.

      The parties will be denominated as in the court below-

      Following a hearing on appellants’ motion for a preliminary injunction, the district court originally continued further proceedings until two weeks after the Supreme Court should issue its decision on the manner in which relief was to be accorded in the segregation cases. The district court proceeded to a final adjudication of this case prior to that time only after this court had issued a show cause order in response to the appellants’ petition for a writ of mandamus.


source: Caselaw Access Project

author: By BAYNES, J.

license: Public Domain

text:
    SMITH et, Plaintiffs, v. HAYES, Jr., Defendant.
    Common Pleas Court, Madison County.
    No. 19644.
    Decided December 15, 1955.
    Richmond & Richmond, London, for plaintiffs.
    Harvey Crow, for defendant.
   OPINION

By BAYNES, J.

On 21 May 1953, plaintiffs filed their petition against defendant for damages of $440.47 arising out of an automobile collision. On 29 June 1953, two days after Answer day, and without leave of court, defendant entered his appearance. After certain motions were disposed of on 19 December 1953, defendant was ordered to plead on 10 March 1954, on or before 20 March 1954, under penalty of default judgment. On 24 March 1954, four days after pleading day, and without leave of court, defendant filed an argumentative answer in the nature of a general denial. The case came on for Pre-Trial hearing on 18 March 1955. It was submitted to a jury on 16 June 1955. Neither the defendant, his attorney, or anyone on his behalf appeared at the trial, although this does not appear of record. Judgment was entered for $440.00.

It appears in the file that the referee in bankruptcy sent the Clerk of this Court a notice of first meeting of creditors of the defendant to be held 28 June 1955, which was received on 15 June 1955. It also stated defendant had been adjudged a bankrupt on 14 June 1955.

A certified copy of the unsatisfied judgment was sent to the Registrar of the Ohio Bureau of Motor Vehicles of the State of Ohio, in accordance with the provisions of §4509.35 R. C. On 22 August 1955 the Registrar sent notice of suspension of the defendant-judgment debtor’s-petitioner in bankruptcy’s, “privilege to operate a motor vehicle upon the highways of this state and your operator’s license evidencing such privilege and license plate registration previously issued to you are suspended,” effective 7 September 1955, in accordance with the provisions of Chapter 4509 R. C.

On 29 August 1955 defendant moved to vacate the judgment on the grounds that on 14 June 1955 defendant was adjudicated a bankrupt; that his petition listed plaintiff’s claim; and that this court lost jurisdiction over the claim or cause of action after the U. S. District Court acquired jurisdiction. An eight line memorandum in support of his motion cited no authority.

Upon plaintiffs’, judgment creditors’ motion, the vacation motion was dismissed on 27 September 1955 for failure to deposit security for court costs. Upon deposit of costs the motion to vacate judgment was reinstated and on 28 November 1955 a short supplemental memorandum was filed in judgment debtor’s behalf citing Remington on Bankruptcy, 3rd Ed. Sec. 860, Vol. 2, page 258, and In re Peoples Warehouse, 273 Fed. 611. Neither of which had any conceivable application to the questions raised.

It also appears in the case file that on 1 December 1955 the referee in Bankruptcy sent to the Clerk of this Court a notice of order fixing time for filing objections to discharge of the defendant-bankrupt, which is 31 December 1955. It is also stated that no Trustee had been appointed in the case.

We assume for purposes of this decision, that the cause of action on which the judgment is founded falls within the classification of a claim for which discharge would be a release. Under Section 29 of the Bankruptcy Act, as amended 7 July 1952, 66 Stat. 422, 11 U. S. C. A. Sec. 29, p. 174, 1954 Sup. (b):

“The Court may order the receiver or trustee to enter his appearance and defend any pending suit against the bankrupt.”

This is not mandatory it is permissive and, as stated, it was not done.

Nor was any stay order secured by anyone with power so to do, ousting this court of its jurisdiction to adjudicate the case as provided by Section 29 (a) of the Act.

“Bankruptcy proceedings do not merely by virtue of their maintenance, terminate action already pending in non bankruptcy court, to which bankrupt is a party.” Connell v. Walker, 54 S. Ct. 257, 291 U. S. 1, 78 L. Ed. 613.

See also In re Innis, 140 F. 2d 479, Certiorari denied 64 S. Ct. 1048, 322 U. S. 736, 88 L. Ed.

It therefore follows that the second-class notice, if it was notice at all, that this court received as a result of some act of the defendant-bankrupt, or his attorney, or both did not stay the judgment proceedings, nor did it oust this.court of its jurisdiction. Whether the debt was dis-chargeable makes no difference.

The remainng question relates to the effect of the adjudication of defendant as a bankrupt as grounds for vacating a judgment. The reason vacation is sought is because of the action of the Ohio Registrar of Motor Vehicles set out in the statement of the facts of the case. Sec. 4509.43 R. C., for suspension of registration and license of and for operation of Motor Vehicles in Ohio provides:

“A discharge in bankruptcy does not relieve the judgment debtor from §4509.01 to §4509.78, inclusive, R. C.”

We are unable to find any Ohio reported case construing and applying this section. DeVries v. Alger, Secretary of State, 44 N. W. 2d 872, 329 Mich. 68, construes and applies a comparable statute, P A. 1949, No. 300, Sec. 513, stat. Ann. 1949 Cum. Supp. Sec. 9.2213 (b), which provides:

“A discharge in bankruptcy following the rendering of any such judgment shall not relieve the judgment debtor from any of the requirements of this chapter.”

We are aided considerably, in the instant case, by what the Supreme Court of Michigan has held. In the first place, the right to license and operate an automobile is a privilege and is not a property right. The state has an absolute right, under its sovereign police power, to control automobile traffic by controlling under what circumstances its citizens may be licensed to operate a motor vehicle.

Acting under this power the state, under proper classification, does not in anywise intend to, nor does it supercede the Federal Bankruptcy laws nor contravene Section VIII, Article I of the Constitution of the United States.

In addition to its constitutional accomplishment of a legitimate police power objective, it neither denies a person, subject to its provisions, of due process of law or equal protection of the law, either under the 14th amendment of the U. S. Constitution, or any Section of the Constitution of the State of Ohio.

Cited in the Michigan case is a decision of the Supreme Court of the United States, Reitz v. Mealy, Commissioner of Motor Vehicles of the State of New York, 314 U. S. 33, 62 S. Ct. 24, 86 L. Ed. 21, where the same attack was made on a similar provision of law, 94 b of the New York Vehicle and Traffic Law. McK. Consol. Laws, c 71. The Court said, 62 S. Ct. 24, 26:

“Any appropriate means adopted by the states to insure competence and care on the part of its licensees and to protect others using the highway is consonant with due process.
“If the statute went no further, we are clear that it would constitute a valid' exercise of the state’s police power not inconsistent with Section 17 of the Bankruptcy Act. 11 U. S. C. A. Section 35.”

It is elementary that a discharge in bankruptcy merely stays, by operation of law, the power to enforce a debt. The moral obligation remains. It is the policy of this, as well as many other states, that a bankruptcy discharge does not discharge such debtor from the provisions of the motorists Financial Responsibility Code.

The motion to vacate the judgment is therefore overruled, in its entirety. The Court has journalized its order forthwith.


author: By HORNBECK, J.

text:
    STATE, Plaintiff-Appellee, v. LOOKER, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 277.
    Decided October 15, 1955.
    William M. Junk, Washington C. H., for plaintiff-appellee.
    Reed M. Winegardner, Washington C. H., for defendant-appellant.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal from the conviction and sentence of defendant-appellant on a charge of October 6, 1954 of unlawfully driving a motor vehicle without a driver’s or operator’s license, such license having been theretofore suspended or revoked. The action was instituted under §4507.38 R. C. Theretofore, in April, 1954, defendant had been charged with, convicted of and sentenced for unlawfully operating a motor vehicle at a speed greater than was reasonable and proper. This charge was instituted under an Ordinance, No. 78 of the City of Washington C. H., Ohio, which ordinance is drafted in conformity with §6307-21 GC now §4511.21 R. C. which is the section of the Code embodying speed regulations and the “assured clear distance ahead” provision.

Although there are four specific errors assigned, all of them relate to the one question presented on the appeal, namely, the jurisdiction of the trial judge to suspend the automobile operator’s license of appellant under authority of the conviction of violating the speed ordinance of the City of Washington C. H.

The jurisdiction to revoke appellant’s license is found, if at all, in §4507.34 R. C. providing:

“Whenever a person is found guilty under the laws of this state or any ordinance of any political subdivision thereof, of operating a motor vehicle in violaton of such laws or ordinances, relating to reckless operation, the trial court of any court of record may, in addition to or independent of all other penalties provided by law. suspend for any period of time or revoke the license to drive of any person so convicted or pleading guilty to such offenses for such period as it determines, not to exceed one year.” (Emphasis ours.)
The narrow question presented then is: Was appellant convicted of an ordinance “relating to reckless operation” of his motor vehicle. In our opinion, he was not.
Inasmuch as the ordinance here involved is taken from the provisions of §4511.21 R. C., we examine it to determine if it is an ordinance intended to define an offense relating to reckless operation of a motor vehicle. The comparable sections are §4511.20 and §4511.21 R. C. Inasmuch as they are separately numbered and contain different subject matter, they define separate offenses. Sec. 4511.20 R. C. is headed “Reckless operation of vehicles,” the very language of §4507.34 R. C. Sec. 4511.21 R. C. is headed “Speed Regulations; assured clear distance ahead” Then, too, the constituent elements of the offenses defined in the two statutes are different. One might be convicted of a violation of a speed provision of §4511.21 R. C. and not be guilty of an offense under §4511.20 R. C., and even though the factual development would be sufficient to convict under §4511.20 R. C., if an offense was not charged thereunder, a conviction could not be had. The subject matter of §4511.20 R. C. is consistent with its heading. Thus, in our judgment, the offense of which defendant was first convicted under violation of the speed ordinance, was not a charge nor a conviction of “operating a motor vehicle in violation of an ordinance relating to reckless operation.”

The Appellate Court of Summit County has taken the same view as we of these statutes in the City of Akron v. Hull, 72 Oh Ap 449. First and second syllabus of which read:

“A person charged with a particular offense cannot properly be convicted of another offense unless the latter is necessarily included in the former.
“Sec. 6307-21 GC, now §4511.21 R. C. (the so-called ‘speed’ statute), and §6307-20 GC, now §4511.20 R. C. (the so-called ‘reckless driving’ statute), define separate and distinct offenses, and neither one is included in the other.”

Inasmuch as the defendant had not been convicted of reckless operation of a motor vehicle, on the first charge the court was without jurisdiction under §4507.34 R. C. to suspend or revoke his license upon the second charge.

We appreciate that our holding is contrary to that of the Hamilton County Court of Appeals in State v. Joiner, 77 Oh Ap 298, and if counsel for appellee desires, we will certify our judgment to be in conflict with that of State v. Joiner.

The judgment will be reversed and the defendant will be dismissed.

MILLER, PJ, CONN, J, concur.


author: By NICHOLS, J.

text:
    JONES, Plaintiff-Appellant, v. GAREK et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    Nos. 5124, 5125.
    Decided November 10, 1954.

      Robert M. Draper, Columbus, for plaintiff-appellant.
    Chalmers P. Wylie, City Atty., J. Russell Leach, Asst. City Atty., Columbus, for defendants-appellees.
    (MONTGOMERY, PJ, of the Fifth District, GRIFFITH, J, NICHOLS, J, of the Seventh District, sitting by designation in the Second District.)
   OPINION

By NICHOLS, J.

The factual presentation and argument in these two appeals has been combined in view of the fact that their history is almost identical and the problems presented to the Court of Appeals are exactly the same.

John L. Jones, appellant, for many years was a member of the Division of Fire, Department of Public Safety, in the City of Columbus. He was first reduced from the position of lieutenant in the Division of Fire to the position of fire fighter in the same division, and such order was sustained by the Civil Service Commission of the City of Coiumbus. Jones was later removed from the position of fire fighter and the order of removal was sustained by the Civil Service Commission. Notices of appeal from both of these orders were duly filed with the Civil Service Commission and the Common Pleas Court, each of such notices of appeal stating that the appeal was on questions of law and fact. In each case bond was set by the court and furnished by the appellant. In neither case was the transcript of the record of the proceedings of the Civil Service Commission, brief, assignments of error or bill of exceptions filed in the Court of Common Pleas.

Upon motion of the appellees, appeals in both cases were dismissed by the Court of Common Pleas for violation of Rule XXI of its Rules of Practice. It is these rulings of the said court that are being questioned by the appeals to this Court of Appeals. The rules of the Common Pleas Court upon which that court dismissed these appeals are as follows:

“Rule Day for Fling Briefs, Assignments of Error and Bill of Exceptions on Appeal on Questions of Law to the Common Pleas Court.
“Unless otherwise provided by statute or ordered by the Court or a Judge thereof, briefs, assignments of error and bills of exceptions shall be filed as follows in all cases on appeal on questions of law to the Common Pleas Court:
“Counsel for appellant shall, within thirty (30) days after filing notice of intention to appeal, file with the clerk his assignments of error and brief and bill of exceptions.
“Upon failure of the appellant to file his assignment of error, briefs, or bill of exceptions, as herein required, unless good cause be shown to the contrary, the cause will be dismissed for want of prosecution, or otherwise disposed of at the discretion of the Court.”

The simple question presented to this Court of Appeals is whether the rules of the Common Pleas Court above set forth are In conflict with the provisions of the Appellate Procedure Act and other laws of the State of Ohio. If they are in conflict, then the statutory provisions must prevail; otherwise the Common Pleas Court would not be in error in dismissing the appeals in accordance with its own rules. This necessitates a recitation of the applicable provisions of the General Code of Ohio, now the Revised Code. Prom an examination of such applicable provisions it is clear that the only jurisdictional requirement for an appeal from a commission, such as the Civil Service Commission of Columbus, to the Common Pleas Court is the filing of a notice of appeal within the time prescribed. There is no question of time involved in this case. The notices of appeal on questions of law and fact were filed in time. By the language of §12223-4 GC, now §2505.04 R. C., the appeal was duly perfected and no subsequent steps shall be deemed jurisdictional. The solution of the problem presented here is dependent upon the correct construction of the language used in §§12223-4, 12223-6 GC, now §2504.06 R. C., and §12223-22 GC, now §2505.23 R. C. Sec. 12223-22 GC, provides:

“Appeals on questions of law and fact may be taken from any court, tribunal, commission, or officer to any court of record as may be provided by law.
“Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to retry the facts, the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law.”

Sec. 2505.04 R. C., provides:

“An appeal is perfected when written notice of appeal is filed with the lower court, tribunal, officer, or commission. * * *”

Sec. 12223-6 GC, now §2505.06 R. C., provides that no appeal shall be effective as upon questions of law and fact until the order, j'udgment, or decree appealed from is superseded by a bond. Bond was given upon these appeals.

Sec. 12223-23 GC, now §2504.24 R. C., provides:

“A judgment rendered or final order made by a justice of the peace or any other tribunal, board, or officer, exercising judicial functions, and inferior to the court of common pleas, may be reversed, vacated, or modified by the court of common pleas upon an appeal on questions of law.”

On appeal from the Civil Service Commission to the Court of Common Pleas the appellant was not permitted to retry the facts, but in accordance with §2505.23 R. C., the duty was upon the court to which the appeal is prosecuted to determine whether the appellant is or is not permitted to retry the facts. The order of the Commission was not made in a chancery case and therefore the appellant was not permitted to retry the facts in the Common Pleas Court, but the Section provides that the appeal shall not be dismissed but it shall stand for hearing on appeal on questions of law. The confusion in this case arises from the fact that §2505.23 R. C., uses the words “appellate court” and it is therefore the claim of the appellee upon the hearing in this Court of Appeals that only the Court of Appeals may determine that the appellant is not permitted to retry the facts. With this contention we are not in accord. By the use of the words “appellate court” the Legislature intended the court to which the appeal is prosecuted by the filing of a notice of appeal. Otherwise, there would be no meaning to the quoted provisions of §2505.24 R. C., which provides that a judgment rendered by a tribunal, board, or officer, exercising judicial functions, and inferior to the Court of Common Pleas, may be reversed, vacated, or modified by the Court of Common Pleas upon an appeal on questions of law.

Sec. 11564 GC, now §2321.05 R. C., provides, among other matters, as follows:

"* * * Whenever an appeal is taken on questions of law and fact and the court of appeals determines that the case cannot be heard upon the facts and no bill of exceptions has been filed in the cause, the court of appeals shall fix the time, not to exceed thirty days, for the preparation. and settlement of a bill of exceptions.”

Here it is noticed that the words “court of appeals” are used instead of the words “appellate court.” Unfortunately, in referring to the provisions of §11564 GC, the Supreme Court in the case of Loos v. W. & L. E. Ry. Co., 134 Oh St 321, at page 325, capitalized the word “court” and the word “appeals” when no such capital letters appear in the section. This was doubtless due to the action of the court reporter in copying the provisions of that section, and on his own motion capitalizing the word “court” and the word “appeals,” and thereby making it appear that the appellate court mentioned in §2505.23 R. C., was confined solely to the court of appeals as a separate institution. It is clear to this court that the legislative provisions applying to these appeals mean that the court to which the appeal is taken is the appellate court which shall determine whether the appellant is entitled to retry his case upon the facts de novo, and having determined that it is not so triable the court to which the appeal is taken shall not dismiss the appeal but shall retain the same upon questions of law and shall grant to the appellant not to exceed thirty days in which to file his transcript, briefs and bill of exceptions.

It is therefore the finding of this court that the rules of the common pleas court above set forth, under which that court acted in these cases, are in direct conflict with the Code provisions applicable in these cases and such rules are invalid and did not authorize the common pleas court to dismiss the appeals on questions of law.

Reference is made to the cases of Sorgi v. Sutton, 159 Oh St 574; Bauer v. Grinstead, 142 Oh St 56; Loos v. Wheeling and Lake Erie Railroad, 134 Oh St 321; Bennett v. Bennett, 134 Oh St 330.

The judgment of the Common Pleas Court in each case is reversed and the cause remanded to that court with instructions to retain these appeals on questions of law- only and to grant the appellant not to exceed thirty days in which to file his transcripts, briefs and bill of exceptions.

Judgment reversed.

MONTGOMERY, PJ, GRIFFITH, J, concur.


author: By THE COURT:

text:
    WAGNER AND MOTORISTS MUTUAL INSURANCE COMPANY, a Corporation, Plaintiffs-Appellants, v. MAGILL, Defendant-Appellee.
    Ohio Appeals, Second District, Miami County.
    No. 498.
    Decided October 31, 1955.
    Berry, McCulloch, Felger & Fite, Robert P. Fite, of Counsel, Piqua, for plaintiffs-appellants.
    Faust & Harrison, L. H. Faust, of Counsel, Troy, for defendantappellee.
    (GRIFFITH, J, of the Seventh District, sitting by designation in the Second District.)
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Common Pleas Court in favor of the defendant-appellee and tried by the court without the intervention of a jury which was waived. The action was one for damages arising out of a collision between the automobiles of Jess M Wagner, one of the plaintiffs, and Donald I. Magill, defendant. The record discloses that Wagner was insured by the Motorist Mutual Insurance Company for all damages arising out of the collision in excess of the sum of $50.00, and for which he has been reimbursed. To this extent the insurance company has been subrogated to the rights of the plaintiff, Jess M. Wagner.

The only errors assigned relate to the sufficiency of the evidence to support the verdict and judgment of the court. It appears that at approximately 6:15 P. M. on the night of October 27th, 1951, the defendant was driving his light delivery truck south on Main Street in the City of Piqua, Ohio; that he made a left-hand turn into a private driveway for the purpose of turning around; that he backed out onto said street and was struck in the rear by the automobile of the plaintiff which was proceeding north on said Main Street and being driven by plaintiff’s son. Paul Wagner. The defendant is charged with the following acts of negligence, to wit:

1. In backing the said Chevrolet panel truck without first determining that such backing could be made with reasonable safety.

2. In backing the said Chevrolet panel truck without giving any warning and without exercising vigilance not to injure the automobile of Jess M. Wagner which was then being operated on said South Main-Street at said time.

The plaintiff offered the deposition of his son, Paul Wagner, who testified that he was the driver of the plaintiff’s automobile: that he had just pulled out from the curb about one-half of a square south of the private driveway from which the defendant suddenly appeared as he was about two car lengths from the same; that he was operating his automobile in a northerly direction on the east side of South Main Street and could not stop because the street was wet and slippery; that he was going not over twenty miles per hour when he first saw the defendant backing out into his lane of traffic; that the truck was at an angle when he hit it in the rear; that its driver gave no signal prior to his backing. On cross-examination he admitted that he had no lights on his car although it was rather dark. One other witness was called by the plaintiff, who stated that he was seated in his automobile which was parked several car lengths north of the private driveway and saw the truck backing out. He testified that the truck had just completed its backward motion and was ready to proceed forward when it was struck. He did not see the collision, but only heard it. The defendant, testifying in his own behalf, stated that he had pulled into the driveway in order to turn around; that before starting his backward motion he blew no horn but he looked south on Main Street and saw a car with lights on coming north; that he waited for it to pass before starting his backward movement; that he saw nothing else coming north so he proceeded to back out onto the street while looking to his rear; that just as he straightened out the steering wheel and shifted into first gear, he was hit in the rear. He said that there was no car approaching when he backed out and he did not know where the plaintiff’s car came from. He stated that the street lights were on at the time and that he could see about three-fourths to a block away. In regards to the visibility at the time he testified as follows at page 21 of the record:

“Q. Now, if he had been coming down the street, the way you were looking while you were backing out, you would have seen him?
“A. From the point where he was supposed to be parked at I could have seen him.”

It was not claimed that the driver of the plaintiff’s car was acting for or on behalf of the plaintiff; hence, any negligence on his part cannot be imputed to the plaintiff. Therefore, the only question presented is whether the defendant was guilty of any acts of negligence which were a proximate cause of the injuries complained of. The plaintiff urges that the trial court made a special finding of law and fact which was not in accord with the evidence and was contrary to law. These findings are claimed to be grounded upon a certain letter which was sent by the trial judge to each of counsel when he advised them of his verdict. A request was not made for such a finding and the letter was not made a part of the record; therefore, it may not be considered by a reviewing court. The duties and obligations imposed upon the defendant under the facts presented are found in §6307-37 GC (now §4511.38 R. C.), to wit:

* *
“(b) Before backing, operators of vehicles, street cars or trackless trolleys, shall give ample warning and while backing shall exercise vigilance not to injure person or property on the street or highway.”

In finding for the defendant the court was compelled to conclude that he had not violated the provisions of this section of the Code or if he had committed a violation that the same was not a proximate cause of the injury. For the court to arrive at either of these conclusions we hold would be against the manifest weight of the evidence since it appears that even though the plaintiff’s car was proceeding without lights it could have been seen when three-fourths to one block away. The defendant testified to this effect. Therefore, if he had complied with the requirements of the statute he would have seen the plaintiff’s car approaching and yielded to it the right of way. Failure to so yield was, in our opinion, a proximate cause of the plaintiff’s injury. The judgment will be reversed as being against the manifest weight of the evidence and the cause will be remanded for further proceedings according to law.

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


author: By STEVENS, PJ.

text:
    NOSIK, Plaintiff-Appellee, v. SCOTT, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23515.
    Decided February 24, 1956.
    Robert A. Williams, for plaintiff-appellee.
    B. Bill Murad, for defendant-appellant.
    (STEVENS, PJ, HUNSICKER, and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By STEVENS, PJ.

The action of plaintiff sought the recovery of $305 from defendant, as the balance alleged to be due on an account for professional services rendered defendant by plaintiff.

Defendant, for answer, denied that the charges were reasonable, and asserted that the plaintiff had been paid in full.

He further pleaded an agreement, wherein he claimed the agreed total charge would be $200, which had been paid. Defendant then cross-petitioned, seeking the recovery of $100, which he claimed he had paid above the agreed amount of $200, by reason of threats of plaintiff’s collection agents.

Trial to the court resulted in a judgment for plaintiff for $378.40 and costs, from which judgment an appeal on law and fact was prosecuted by defendant.

This court sua sponte orders the dismissal of the appeal on questions of law and fact, and retains the appeal as one on questions of law.

The cause has been presented as a law appeal, and the following assignments of error are presented:

1. Error in the admission of evidence offered by plaintiff and objected to by defendant.

2. Error in refusing to admit evidence offered by defendant.

3. The finding and judgment are contrary to the manifest weight of the evidence and contrary to law.

4. Other errors appearing on the face of the record.

By a timely application, the defendant requested the trial court to make “finding of facts and conclusions of law,” which application the court overruled.

While not included as an assignment of error in the written assignments of error, allusion was made in oral argument to the court’s ruling upon said application, and prejudicial error claimed by appellant by reason of said ruling.

Sec. 2315.22 R. C. provides:

“When the questions of fact are tried by the court, its findings may be general for the plaintiff or defendant, unless, with a view of excepting to the court’s decision upon questions of law involved in the trial, one of the parties requests otherwise, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.”

Of this section, the Supreme Court stated, in Bauer v. Cleveland Ry. Co., 141 Oh St 197, at page 201, the following:

“This statute confers a substantial right, is mandatory in character, and a refusal of the court in a proper case to comply with the request provided for therein is reversible error unless it appears from the record that the party making the request is not prejudiced by such refusal.” (Emphasis ours.)

As part of the record in this case, we have a complete bill of exceptions, a reading of which shows beyond peradventure that the judgment herein is not only not against the manifest weight of the evidence, but is fully supported by the evidence.

We accordingly conclude that the refusal of the trial court to make findings of fact and conclusions of law did not, in this case, prejudice the party making the request therefor.

We have considered the other errors assigned, and we find no prejudicial error as to any of them.

The judgment will be affirmed.

HUNSICKER and DOYLE, JJ, concur.


author: By FESS,'J.

text:
    SCHAAF, d. b. a. HILLTOP-WESTGATE REALTY, Plaintiff-Appellee, v. IBA, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5259.
    Decided December 5, 1955.
    Phillip V. Stout, Robert W. Phillips, Columbus, for plaintiff-appellee.
    Lewis F. Byers, Alfred J. Henney, Columbus, for defendant-appellant.
    (FESS, J, of the Sixth District; NICHOLS, PJ, and GRIFFITH, J, of the Seventh District, sitting by designation in the Second District.)
   OPINION

By FESS,'J.

Appeal on questions of law from a judgment of the Municipal Court of Columbus, Ohio, for plaintiff in the sum of $575.00.

Plaintiff brought his action against defendant for recovery of broker’s commission, claiming that pursuant to an agreement he had produced a purchaser who was ready, willing and able to purchase defendant’s residence. Defendant filed a cross-petition for damages alleged to have been incurred by reason of the recording of the purchase agreement entered into between defendant and the purchaser.

The principal question arising upon a review of the record is whether the purchaser was able to purchase defendant’s premises for cash in the sum of $11,500.00, “subject to the premises being able to bear an $8700.00 loan.” The purchaser testified that he was willing and able to purchase the premises in accordance with the terms of the contract, by reason of having secured a loan from his bank in Brilliant, Ohio. He did not indicate, however, the amount of such loan and whether he had otherwise arranged to finance an $8700.00 loan, nor was his testimony corroborated by the banker from whom he expected to obtain the loan.

Testimony on behalf of the defendant tended to show that the purchaser requested the opportunity to assume a GI loan which defendant had upon his property and that defendant refused on the ground that he was purchasing another home, incident to which he desired to refinance his GI loan, and that the deal was not consummated by reason of the fact that the purchaser insisted upon taking the property subject to the GI loan.

The evidence fails to disclose that any tender of the purchase price in the sum of $11,500.00 was ever made by such purchaser.

A prospective buyer meets the legal standard of “ready, willing and able” to buy, although he does not have the cash on hand, if he is able to command the necessary funds to complete the purchase within the time allowed by the offer. Frick v. Baetzel, 71 Oh Ap 301, holding that the broker failed to meet the burden of proof.

Proof of “ability to buy” is established where the evidence shows that the purchaser had sufficient available assets by which she was able to command the necessary money and had arranged a loan by which she would have been able to consummate the deal on the date stipulated. Walton v. Hudson, 82 Oh Ap 330. In that case, the officer of the bank testified that the loan had been granted. In the instant case, the buyer said he was able and that the bank had approved the loan, but this is not corroborated by the bank. The amount of such loan is not disclosed, or other available assets of the purchaser. Defendant testified that the buyer kept talking about assuming the GI loan. Another broker, who also had a listing of defendant’s property for sale, testified that plaintiff’s salesman had told him the deal was going to fall through because the buyer wanted to assume the loan on the seller’s home.

We therefore reach the conclusion that the finding and judgment is manifestly against the weight of the evidence, and that the cause should be remanded to the Municipal Court for a new trial.

The cross-petition smacks somewhat of malicious prosecution. Plaintiff recorded the purchase agreement which defendant says required him to spend money incident to an action to quiet title and to make a payment to the purchaser to release the purchase agreement. The judgment against defendant on the cross-petition should be affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By HURD, J: Per CURIAM:

text:
    RICHMAN BROTHERS COMPANY, Plaintiff-Appellant, v. AMALGAMATED CLOTHING WORKERS OF AMERICA et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23612.
    Decided January 26, 1956.
    Jones, Day, Cockley & Reavis, for plaintiff-appellant.
    William J. Isaacson, Smoot & Riemer, for defendants-appellees.
   OPINION

By HURD, J:

This is an appeal on questions of law in an action to enjoin defendants-appellees from causing to be picketed retail stores of plaintiff-appellant. Plaintiff-appellant will hereinafter be designated as “Rich-man,” and defendants-appellees will be hereinafter designated as “Amalgamated.”

This appeal is from a judgment, order and decree rendered on motion of defendants by the Court of Common Pleas of Cuyahoga County on June '27, 1955, by which a temporary injunction against defendants was dissolved, plaintiff’s petition was dismissed and final judgment rendered against Richman and in favor of Amalgamated on the ground that the Court of Common Pleas was without jurisdiction of the subject matter of the action and that the defendants were entitled to the relief sought by them.

The petition, insofar as is pertinent, in substance alleges that no labor organization is or claims to be the representative, for purposes of collective bargaining, of any of Richman’s employees; that there is no labor dispute between Richman and any of its employees and • that Amalgamated since March 31, 1951, has been engaged in a conspiracy to cause economic pressure to be directed against Richman to force such of its eligible employees to become members of the defendant Amalgamated so that the latter may become the representative of Richman’s such employees for purposes of collective bargaining.

It is further alleged that the means employed in carrying out such conspiracy and in thereby irreparably injuring Richman consists of:

(a) causing stores of Richman to be picketed almost continuously during business hours by from one to many persons, all non-employees of Richman, who paraded immediately in front of the entrances carrying banners bearing inscriptions generally to the effect that Richman clothes are not union-made and bear no union label; and

(b) from time to time since March 31, 1951, Amalgamated and others referred to in the petition have caused and continue to cause, in addition to the picketing referred to in the above sub-paragraph 15 A, special sporadic picketing demonstrations to be made immediately in front of certain of plaintiff’s stores in certain of the larger cities including Cleveland, Ohio. On such occasions as many as 15 to 20 and in some instances more persons, at times singing and shouting, mill about in a closely-formed group to and fro in front of the main entrance of the picketed store during a substantial portion of the store’s business hours on a particular day or evening. None of such pickets is an employee of the plaintiff. Such pickets carry banners, signs on long poles and inflated ballons on long cords bearing printed inscriptions of substantially the same import as those described in sub-paragraph 15A of said petition. On such occasions, at times some of the pickets carry signs bearing printed inscriptions of the import that certain labor organizations other than the defendant Amalgamated and its joint boards and locals are participating in the picketing and cooperating with the defendants in their picketing campaign against plaintiff’s retail selling business. On such occasions, the pickets, by their conduct and with the aid of their long poles and cords, create confusion in front of the picketed store and so block the entrance to the picketed store as to divert much of the pedestrian traffic on the sidewalk outwardly from the entrance. (Emphasis added.)

It is further alleged that the picketing was being carried on by Amalgamated with the knowledge that it is the belief entertained by many of the general public that no persons should cross a picket line at an employer’s place of business or enter any such picketed place for business purposes, and alleges that such picketing of Richman’s stores excludes and has excluded prospective customers from the stores and damaged Richman irreparably.

The trial court in entering its judgment expressed the opinion that the cases of Grimes & Hauer, Inc. v. Pollock, decided by chis court (71 Abs 153), and affirmed by the Supreme Court (163 Oh St 372). and the decision of the Supreme Court of the United States in the case of Garner v. Teamsters Union, 346 U. S., 485, were applicable to the instant case and decisive of the issues, and that therefore the Court of Common Pleas was without jurisdiction to entertain the action.

The question is fairly presented as to whether the Court of Common Pleas on the pleadings together with the record herein has jurisdiction of the subject matter of the action.

We think that the motion to dismiss the petition was in the nature of a demurrer.on the ground that the petition did not state facts sufficient to constitute a cause of action because the subject matter was not within the jurisdiction of the Court of Common Pleas. In considering this question, we must, for the purposes of the motion to dismiss, accept as true the well-pleaded allegations of the petition and construe them together with all reasonably deducible intendments in favor of the petitioner.

It is true that in this case there are no allegations of violence or threats. This is true likewise of the cases of Grimes & Hauer, Inc. v. Pollock and Garner v. Teamsters Union 'where in neither of which there was any claim or evidence of other than peaceful picketing. It is also true that while all three cases involve Interstate Commerce, the allegations of the petition in this case, part of which we have emphasized, have an entirely different connotation than that of peaceful picketing. The allegation that “special sporadic picketing demonstrations” were carried on by the defendants in front of certain of plaintiff’s stores, that on occasions as many as 15 to 20 and in some instances more persons, at times singing and shouting, milling about in a closely-formed group, to and fro in front of the main entrance in front of the picketed stores, during a substantial portion the stores’ business hours, on a particular day or evening, for the purposes of the motion cannot be equated with peaceful picketing but must be construed as mass picketing.

When it is further pleaded that such pickets carry banners and signs on long poles and inflated balloons on long cords, bearing inscriptions of various kinds, who, by their conduct, create confusion in front of the picketed stores so as to block the entrance to the picketed stores and to divert much of the pedestrian traffic on the sidewalk outwardly from the entrance, there appears to be an allegation substantially indicating the obstruction of streets and highways in violation of law and order, with consequent blocking of means of ingress and egress.

The Supreme Court of the United States in the Garner case at page 488 of its opinion (346 U. S., 485) says:

“The National Labor Management Relations Act, as we have pointed out, leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the areas in which state action is still permissible.
“This is not an instance of injurious conduct which the National Labor Relations Board is without express power to prevent and which therefore either is ‘governable by the state or it is entirely ungoverned.’ In such cases we have declined to find an implied exclusion of state powers. International Union v. Wisconsin Board, 336 U. S., 245, 254. Nor is this a case of mass picketing, threatening of employees, obstructing streets and highways, or picketing homes. We have held that the state still may exercise ‘its historic powers over such traditionally local matter’s of public safety and order and the use of streets and highways.’ Allen Bradley Local v. Wisconsin Board, 315 U. S., 740, 749. Nothing suggests that the activity enjoined threatened a probable breach of the states peace or would call for extraordinary police measures by state or city authorities. Nor is there any suggestion that respondents pleas of federal jurisdiction and preemption was frivolous and dilatory, or that the federal Board would decline to exercise its powers once its jurisdiction was invoked.” (Emphasis supplied.)

The Garner case thus places a controversy such as here within the jurisdiction of the National Labor Relations Board, unless:

1. there is injurious conduct which the Board is without express power to prevent and therefore must be governed by the State or it would be entirely ungoverned.

2. there is a case of mass picketing, threatening of employees, obstructing streets and highways, or picketing homes.

3. there is a probable breach of the states peace.

4. there is a plea of federal jurisdiction which is merely frivolous and dilatory, or that the Board would decline to exercise its powers once its jurisdiction was invoked.

Ohio has historically interdicted mass picketing and conduct such as the obstruction of streets and highways and the prevention or limitation of the means of ingress and egress from and. to an employer’s place of business. We think that the allegations of the petition are such as clearly to distinguish the instant case from Garner and Grimes & Hauer and suggest an area for the exercise of State authority under Ohio law.

It is our conclusion that the activity in the petition described presents an area for the exercise of State authority to prevent the kind and character of conduct complained of herein.

See Franz v. Electrical Workers Union, 108 Oh St 61; Crosby v. Rath, 136 Oh St 352; Sterling & Welch v. Duke, 33 O. O. 482, 485; General Electric Co. v. United Electrical Workers, etc., 45 Abs 258, 260. (Compare Grimes & Hauer v. Pollock, supra.)

We refrain from a discussion of the evidence considered by the Court of Common Pleas when granting the temporary restraining order in the first instance although the evidence there presented by affidavits and photographs tends to sustain the allegations of the petition which we hold states facts sufficient to constitute a cause of action within the jurisdiction of Ohio courts.

For the reasons stated, the judgment of the Court of Common Pleas is reversed and the cause is remanded with instructions to overrule the motion to dismiss the petition, and to vacate the order dissolving the temporary restraining order heretofore granted herein and to reinstate the cause for trial on the merits, and for further proceedings according to law.

Decided March 14, 1956.

Exceptions allowed to all proper parties. Order see journal.

KOVACHY, PJ, SKEEL, J, concur.

No. 23612.

OPINION

Per CURIAM:

Defendants-appellees, herein designated “Amalgamated” have filed an application for rehearing. The application states in part:

“Amalgamated, accepts the central finding in the opinion of this Court that ‘special sporadic picketing demonstrations,’ as alleged by Richman, ‘cannot be equated with peaceful picketing, but must be construed as mass picketing.’ ”

Amalgamated, however, complains because this Court, in reversing the final judgment of the Court of Common Pleas for prejudicial error in dismissing the petition of plaintiff-appellant, herein designated “Richman,” without a hearing on the merits and in remanding the cause to the Court of Common Pleas for further proceedings, instructed the Court likewise to vacate its order dissolving the temporary restraining order heretofore entered in this cause by the Court of Common Pleas.

It should be emphasized, we think, that the action of this Court in reversing this cause and remanding it for further proceedings had the effect of reinstating the cause to Common Pleas Court in statu quo ante. In other words, the compelling and inevitable effect of our reversal and order of remand is to reinstate the cause to the docket of the Common Pleas Court in precisely the same condition that obtained before the dismissal of the petition when it came on for final hearing.

There was at that time in full force and effect a temporary order restraining the defendants from picketing the various establishments and stores of Richman. That order, being a temporary or interlocutory order, was not before this Court for review, nor could it be since it was not a final order within the purview of §§2505.02 and 2505.03 R. C. However, the temporary order was in effect when the cause came on for final hearing in the Court of Common Pleas. The order of the Court upon final hearing in dismissing the suit and entering final judgment for Amalgamated had the effect of terminating all proceedings in favor of Amalgamated and the reversal and remand by this Court restored te the plaintiff all things which it had lost by reason thereof, including the reinstatement of the temporary restraining order.

It is our conclusion that any relief from the effect of the temporary restraining order sought by Amalgamated must be in the form of an application to the Court of Common Pleas as this Court is without jurisdiction to entertain any appeal from the interlocutory order. For these reasons the application for rehearing and for oral argument thereon is overruled.

Exceptions.

KOVACHY, PJ, SKEEL and HURD, JJ, concur.


author: By MILLER, PJ.

text:
    FRISCO, Petitioner, v. ALVIS, Warden, Ohio Penitentiary, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 5343.
    Decided November 23, 1955.
    Charles Frisco, No. 66,956, for Himself.
    Hon. C. William O’Neill, Atty. Geni., Roger B. Turrell, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By MILLER, PJ.

This is an action in habeas corpus wherein the petitioner, Charles Frisco, alleges that he is being unlawfully restrained of his liberty by the respondent who is the warden of the Ohio Penitentiary.

The record reveals that at the January, 1931, term of the Cuyahoga County Grand Jury the following indictment was returned:

“THE STATE OF OHIO ) SS.

CUYAHOGA COUNTY )

)

“Of the term of January. In the year of our Lord one thousand nine hundred and thirty-one.

“The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO.

“Do Find and Present, That Charles Frisco on the 16th day of January 1923 at the County aforesaid, was duly prosecuted and convicted upon a charge of Grand Larceny of certain property of the value of $50.00 from one Frank Powell, committed on the tenth day of October, 1922 in Cause No. 24716 of the Court of Common Pleas, Criminal Branch, Cuyahoga County, Ohio;

“AND WE DO FURTHER FIND AND PRESENT that on the 16th day of January, 1923 the said CHARLES FRISCO was duly prosecuted and convicted upon a charge of Assault to Rob committed upon one George Bara on the 11th day of December, 1922, in Cause No. 24718 in the Court of Common Pleas, Criminal Branch, Cuyahoga County, Ohio;

“AND WE DO FURTHER FIND AND PRESENT that on the 23rd day of December, 1926, the said CHARLES FRISCO was duly prosecuted and convicted upon a charge of Burglary & Larceny of the property of one Dave Szanyi, 2662 Tennyson Avenue, in Cause No. 31888 in the Court of Common Pleas, Criminal Branch, Cuyahoga County, Ohio.

“AND WE DO FURTHER FIND AND PRESENT THAT CHARLES FRISCO was duly prosecuted and convicted on the 6th day of January, 1931 on a charge of robbery of one William Risin, committed on the 26th day of November, 1930, in Cause No. 38195 in the Court of Common Pleas, Criminal Branch, Cuyahoga County, Ohio;

“AND WE DO FURTHER FIND AND PRESENT that by virtue of the aforegoing prosecutions and convictions, the aforesaid defendant is an habitual criminal under §13744-2 GC, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.”

The record further reveals that in response to said indictment a plea of guilty was entered and sentence imposed, to wit:

“THE STATE OF OHIO )

vs. ) Indictment for VIOL. SECTION

Charles Frisco ) 13744-2 HABITUAL CRIMINAL

)

“The said Charles Frisco having made a plea of guilty of Viol. §13744-2 GC as charged in the indictment. It is therefore the sentence of the Court that he be imprisoned in the PENITENTIARY

of this State, and kept at hard labor, (No part of said time to be kept in solitary confinement), until legally discharged for the balance of his natural life, and that he pay the costs of this prosecution, taxed at Twenty-four and 79/100 ($24.79) DOLLARS.

“I CERTIFY the above to be a true copy of said Judgment and Sentence. Given under my hand and the seal of said Court, this 17th day of February 1931.

Thomas C. Cook Pro Tern Clerk,

(SEAL) By /s/ Frank Moraver, Deputy.”

It is urged by the petitioner that he was unlawfully convicted of the offense of being an habitual criminal for the reason that the indictment does not speak the truth in that he was not convicted of grand larceny in case No. 24,716. He contends further that some of the convictions set forth in the indictment were for offenses simultaneously committed and therefore constituted only one offense; that therefore there was no third conviction as required by §13744-2 GC; that by reason of the illegality of the sentence the rights and privileges guaranteed to him by Section 1 of the Thirteenth Amendment to the United States Constitution have been infringed and abridged; that he has been placed in jeopardy twice for the same offense in violation of Article I, Section 10 of the Ohio Constitution and the Fifth Amendment to the United States Constitution.

It is also urged that since some of the offenses were committed prior to the enactment of the habitual criminal act in 1929, that the law is ex post facto in this case and therefore in violation of Article II, Section 28 of the Constitution of Ohio.

The constitutional question presented may not be considered in this proceeding for it was held by our Supreme Court in the case of Calhoun v. Russell, 154 Oh St 81, that:

“A writ of habeas corpus may not be employed as a substitute for the remedy of appeal or as a means for testing the constitutionality of a statute or ordinance where the court in which the conviction was obtained had the jurisdiction to determine that question. (Ex parte Elicker, 117 Oh St 500, and Yutze v. Copelan, 109 Oh St 171, approved and followed.) ”

We also hold that the truth of the charges set forth in the indictment may not be considered in a habeas corpus proceeding. Even if we could do so it appears that a plea of guilty was entered; hence the correctness of the factual charges contained in the indictment was admitted.

The only question presented to us is whether the indictment charges an offense, and if so, did the court have jurisdiction to pronounce the sentence that was imposed upon this petitioner? Our examination of the indictment compels us to conclude that an offense was properly charged under §13744-2 GC (§2961.12 R. C.) and the Court of Common Pleas for Cuyahoga County being a court of general jurisdiction had jurisdiction to impose this sentence in accordance with law. The sentence was so pronounced and therefore no cause of action has been established. The only remedy for a review of alleged errors or irregularities in the conduct of a criminal trial is by appeal and not by habeas corpus. In re Stewart, 156 Oh St 521.

The writ will be denied.

HORNBECK, J, concurs.

WISEMAN, J, not participating.