author: By GESSAMAN, J.

text:
    OHIO STATE STUDENT TRAILER PARK COOPERATIVE, Inc., Appellant, v. FRANKLIN COUNTY, Appellee.
    Common Pleas Court, Franklin County.
    No. 186441.
    Decided March 19, 1953.
    P. L. Thornbury, Columbus, for appellant.
    Hon. Frank Kearns, Pros. Atty., J. Baxter Evans, Howard F. Wehr, Asst. Pros. Attys., Columbus, for appellee.
   OPINION

By GESSAMAN, J.

This is an appeal from a decision of the Franklin County Rural Zoning Board of Appeals, sustaining the ruling of the Franklin County Building Inspector in refusing to grant the appellant a non-conforming use permit. In sustaining the building inspector, the Board found that a non-conforming use had not been established by the appellant. The evidence before the Franklin County Rural Zoning Board of Appeals disclosed that the appellant is a corporation not for profit, incorporated March 12, 1948, the purposes of the corporation being to engage in the business of operating a trailer park. On March 16, 1948, the appellant entered into an agreement with Mr. John Hislop for the purchase of lots Nos. 23 to 33 inclusive and Nos. 56 to 66 inclusive, of Braemar Addition, Clinton Township, Franklin County, Ohio, subject to the condition that that portion of the plat which was made up by said lots could be vacated and could be used for trailer park purposes. A petition was promptly filed in this court in Case No. 174523 for vacation of that portion of the plat containing the above named lots and that part of Strathmore Road which separated said lots. Subsequent thereto, that portion of Strathmore Road and of the plat referred to were declared vacated on May 3, 1948. On May 13, 1948, before any construction was begun, certain individuals who owned property adjacent to or near the lots in question, filed suit in this court in case No. 174891, to enjoin the construction of said trailer park on the grounds that such construction would violate certain restrictions placed on the plat by the original sellers. At the same time the plaintiffs in the latter case moved that .they be made parties-defendant in the proceedings to vacate, that is to say, case No. 174,523. - They were made parties and their answers were filed immediately. The Court then set aside the order of the vacation which had previously been made in case No. 174,523. The injunction action, case No. 174,891, was finally terminated by the Supreme Court of Ohio on May 11, 1949, the plaintiffs being unsuccessful in their effort to enjoin the construction of the trailer park. The proceedings to vacate, that is to say, case No. 174,523, was tried in this court on August 3, 1950, and on August 14, 1950, the Court ordered that that portion of the plat, and of Strathmore Road above referred to, be vacated. By that time quite a number of members of the appellant-corporation, all of whom were students at Ohio State University, had been recalled into the armed services and the remaining members attempted to find ways and means of financing the construction of the trailer park. Such means were not found until July 22, 1952, at which time the appellant applied for a permit to construct the utility buildings needed for the trailer park. This application was denied by the building inspector and, as we have pointed out, that action was sustained by the Franklin County Rural Zoning Board of Appeals.

The evidence clearly discloses, and it is admitted, that no actual work of constructing the trailer camp has as yet been commenced. The testimony discloses that some preliminary plans for the trailer park had been prepared by members of the appellant corporation and some work was done toward financing the construction of the trailer park but that no work of actual construction was ever commenced.

A Zoning Resolution was adopted by the Board of County Commissioners of this county, effective November 12, 1948, and the land in question was by such resolution zoned for residence purposes. The question presented, therefore, is as to whether or not the appellant is entitled, under the facts disclosed by the evidence, to a building permit as a non-conforming use.

Sec. 3180-18 GC provides as follows:

“Non-conforming use of buildings and land not affected by zoning, when.
“The lawful use of any dwelling, building or structure and of any land of premises as existing and lawful at the time of enactment of a zoning resolution or amendment thereto, may be continued although such use does not conform with the provisions of such resolution or amendment, but if any such non-conforming use is voluntarily discontinued for two years or more, any future use of said land shall be in conformity with the provisions of this act. The board of county commissioners shall provide in any zoning resolution for the completion, restoration, reconstruction, extension or substitution of non-conforming uses upon such reasonable terms as may be set forth in the zoning resolution.”

Section XXI of the Franklin County Zoning Resolution provides as follows:

“1. If, at the time of enactment of this Zoning Resolution, any lot, building or structure was being used in a character or manner or for a purpose which does not conform to the provisions of this Resolution and which is not prohibited by some other resolution, such character or manner of use or purpose may be continued, and no change of title or possession or right to possession of any lot, building or structure shall be construed to prevent the continued non-conforming use of such lot, building or structure as hereinbefore provided.
“Any such non-conforming use which is not otherwise unlawful may be hereafter extended throughout any part of a building or structure which was manifestly arranged or designed for such use at the time of enactment'of the above mentioned Resolution by not more than fifty (50) per cent.
“2. No building, structure, or land in or on which a nonconforming use ceases for a period of two (2) years, or is superseded by a permitted use subsequent to the enactment of this Resolution, shall again be devoted to any prohibited use.”

By virtue of the provisions of §3180-18 GC, and Section XXI of the Franklin County Zoning Resolution, it seems quite clear that in order to authorize the continuance of a use of premises affected by a zoning resolution, that that use must have lawfully existed at the time of the effective date of the zoning resolution. A non-conforming use is defined in 58 Am. Jur. 1021 at Sec. 146, as follows:

“A ‘nonconforming use,’ within the meaning of zoning regulations, has been defined as the use of a building or land that does not agree with the regulations of the use district in which it is situated.

In the case of DeFelice, et al v. Zoning Board of Appeals, 130 Conn. 156, 32 Atl. 2nd, 635, the Supreme Court of Errors of Connecticut had the following to say at page 637 with respect to an existing use:

“In the ordinance quoted permitting the continuance of ‘any nonconforming use existing,’ as was pointed out by the court in considering a similar enactment in Pennsylvania, ‘neither the extent, quantity, nor quality of the use is mentioned, but only that it must exist,’ and ‘neither the act, the ordinance, nor the law generally requires the court to speculate as to the number of acts or business transactions necessary to constitute an existing use,’ but, ‘as understood in the ordinance, “existing use” should mean the utilization of the premises so that they may be known in the neighborhood as being employed for a given purpose.’ ”

And further at p. 638 of the opinion the Court points out that

“Actual use as distinguished from merely contemplated use is requisite, however.”

A very close parallel to the case at bar was presented to the Supreme Court of Michigan in City of Lansing, et al. v. Dawley, 247 Mich. 394, 225 Northwestern, 500. The factual situation presented to the court and the conclusion of the court is succinctly stated in the following language found on pages 500 and 501 of the opinion:

“It thus appears that the first work done upon the new building was three months after the ordinance went into effect and after the defendant had been notified that his permit had been revoked. If he had constructed the building or partially constructed it; if the work he did after the enactment of the ordinance had been done before, there would be no question as to his vested property rights. But he did nothing of a substantial character. He went no farther than to order the plans and cause a survey to be made of the lot. This preliminary work was not sufficient to create a vested right to erect the building.”

To the same effect are two cases referred to in 117 A. L. R. 1140, the first being the case of Osborn v. Darien, 119 Conn. 182; 175 A. 178, and the second is the case of M. C. Eachern v. Hyland Park, 124 Tex. 36; 73 S. W. (2nd) 487. From a review of these authorities it appears that the general rule of law in this country is that in order to secure a vested right for a non-conforming use, the use itself or at least some portion of it, must have been in actual existence upon the effective date of the zoning legislation. Contemplated use of the premises is not sufficient to establish a vested right. In view of the undisputed testimony that no construction work had been started prior to the effective date of the Franklin County Zoning Resolution, it therefore follows that at the most, the only use, if any, of the premises in question was a contemplated use. Had some construction work been commenced prior to the effective date of the zoning resolution, a different question would have been presented to the Board of Zoning Appeals and to this court. With the facts as we find them and under the law as hereinabove discussed, the Court can only conclude that on the effective date of the Franklin County Zoning Ordinance the use for which the appellant now seeks a permit was not in actual existence and therefore the appellant is not entitled to a permit for a non-conforming use.

The appellant has referred the Court to the case of State ex rel Morehouse, et al. v. Hunt, et al., 291 N. W. 745, deided by the Supreme Court of Wisconsin on May 7, 1940. The facts involved in this case are disclosed by the Court at p. 747 of the opinion in the following language:

“1. The evidentiary facts involved are not in dispute. Construction of the building was commenced in 1922 before the ordinance was enacted.”

Since the work in that case had commenced prior to the enactment of the zoning ordinance, we do not have a factual situation which is similar to that of the case at bar. Counsel for the appellant urges that the doctrine of estoppel should be applied by the Court in this case and has referred to the case of Treasurer v. Martin, 50 Oh St 197. The holding of the Supreme Court in that case was that a party-defendant was estopped from pleading the statute of limitations as a bar to a law suit when the facts disclosed that that party-defendant had caused the time for the statute to run by wrongfully obtaining an injunction which subsequently was dissolved It is quite clear that the holding of the Court in that case was that the party, himself, who caused the delay is estopped to set up the statute of limitations. Therefore that case has no application to the situation presented in the case at bar because of the facts. In the appeal now before this Court, the parties who sought to enjoin the construction of the trailer camp in case No. 174523 are not parties in this appeal. This action is purely an appeal from a decision of the Franklin County Building Inspector in refusing to grant a non-conforming use permit and the dispute both before the Franklin County Zoning Board of Appeals and in this court is between the appellant and the building inspector. The doctrine of estoppel can in no way be set up as against the latter official.

The remaining question discussed in the briefs submitted to this Court is as to whether or not the appellant voluntarily discontinued for two years or more its alleged non-conforming use. In view of the determination by this Court that a non-conforming use did not exist upon the effective date of the Franklin County Zoning Resolution, a discussion of this latter question becomes unnecessary. Obviously, if a nonconforming use never existed, there is none that can be voluntarily discontinued for any period of time.

For the reasons above discussed, it is the opinion of the Court that the decision of the Franklin County Rural Zoning Board of Appeals in sustaining the decision of the Franklin County Building Inspector in refusing to grant the appellant a use permit should be and therefore is hereby affirmed.


source: Caselaw Access Project

author: By THE COURT. By THE COURT.

license: Public Domain

text:
    OHIO STATE STUDENTS TRAILER PARK COOPERATIVE, Inc., Plaintiff-Appellant, v. COUNTY OF FRANKLIN, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4937.
    Decided August 14, 1953.
    P. L. Thornbury, Columbus, for plaintiff-appellant.
    Frank H. Kearns, Pros. Atty., Paul W. Martin, Asst. Pros. Atty., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee seeking an order dismissing the appeal for the reason and upon the ground that appellant has no right to the same. The appeal is from a judgment of the Common Pleas Court affirming an order of the Franklin County Rural Zoning Board of Appeals which denied the appellant a nonconforming use permit to operate a trailer park upon certain property belonging to the appellant.

It is clear the appeal was properly instituted in the Court of Common Pleas for §3180-14 GC provides:

“Any party adversely affected by a decision of a County Board of Zoning Appeals may appeal to the Court of Common Pleas of such county on the ground that such decision was unreasonable or unlawful.”

But the appellee urges that no right of appeal exists under the common law and that such right exists only by virtue of the constitution or statutes. Citing Minis, et al., v. Hamilton County Board of Zoning Appeals, 89 Oh Ap 289.

Decided October 9, 1953.

It urges further that §3180-14 GO makes no provision for an appeal from the Common Pleas Court to the Court of Appeals and therefore the decision of the Common Pleas Court must be final. The cited case is not parallel with the facts in the case at bar in that there the appellant was a Board of Zoning Appeals while here the aggrieved party is the owner of the real property for which the order is sought. The decision of the Court appears to be grounded upon the fact that neither the Board nor any of its members as such should be considered as persons “aggrieved” or “affected by any decision” of the administrative board. There can be no question but that under the facts here presented the appellant is an “aggrieved” party. The same legal principles as set forth in the cited case are also pronounced in DiCillo & Sons v. Chester Zoning Board of Appeals, 158 Oh St 302. The statutory jurisdiction of this court to entertain appeals from judgments of the Common Pleas Court is found in §12223-27 GC, to wit:

“A judgment rendered or final order made oy a Court of Common Pleas * * * may be reversed, vacated or modified upon an appeal on questions of law by the Court of Appeals having jurisdiction in the county wherein the Common Pleas or other court of record is located, for errors appearing on the record.”

We are of the opinion that since the appellant properly instituted the appeal in the Common Pleas Court it is authorized under the above cited section of the General Code to prosecute an appeal to this Court.

The motion will be overruled.

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

No. 4937.

OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court affirming the order of the Franklin County Board of Zoning. Appeals which found that there was no preexisting nonconforming use of the land in question prior to the effective date of the zoning resolution. Judge Gessaman. in a well-considered opinion, held that a mere contemplated use of land prior to the effective date of the resolution, is not sufficient to warrant a nonconforming use; that in order to maintain a non-conforming use contra to such regulation, such use must have been actual prior to the adoption of the regulation.

He also properly held that the appellee is not estopped to plead the statute of limitations for the reason that the parties to this proceeding are not the same as were in the injunction action.

The judgment will be affirmed upon the opinion of the trial Court.

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


author: By THE COURT:

text:
    HEATH, Plaintiff-Appellant, v. STANDARD OIL CO., Defendant-Appellee.
    Ohio Appeals, Second District, Fayette County.
    No. 268.
    Decided March 20, 1953.

      Richard N. Larrimer, Columbus, Junk & Junk, Washington C. H., R. Brooke Alloway, Columbus, for plaintiff-appellant.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, Hill & Hill, Washington C. H., for defendant-appellee. ■
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Common Pleas Court in favor of the defendant after the sustaining of its motion for a judgment notwithstanding the verdict.

Plaintiff, an employee of the defendant, a self-insurer, suffered an injury on April 12, 1946, while in the course of his employment, resulting in a hernia for which injury he made application for compensation and medical expenses from the Workmen’s Compensation fund which application was allowed. On March 7, 1947, plaintiff filed a second application for modification of the former award and additional compensation. In this application, he claimed that as a result of the accident on April 12, 1946, he had also suffered injury to his heart. The Commission on hearing and rehearing denied this claim and on appeal and issues drawn the cause was submitted to a jury which returned a verdict in favor of the plaintiff. Thereupon, defendant moved for judgment notwithstanding the verdict which the trial judge sustained.

We have had the benefit of the complete and learned consideration of the motion by the trial judge as reflected in his written opinion. We do not purpose to consider and dis-. cuss all of the reasons upon which the trial judge predicated his sustaining of the motion but only those and particularly one which, in our judgment, is determinative of this appeal.

The trial judge had no misconception of the law controlling the extent of his authority in the consideration of the motion for judgment notwithstanding the verdict, as he cites quite early in the opinion McNees v. The Cincinnati Street Ry. Co., 152 Oh St 269 which holds that in passing upon such a motion, neither the trial court, the Court of Appeals nor this Court (Supreme Court) may weigh the evidence. Citing §11601 GC. The rule controlling is the same on a motion for judgment notwithstanding as it is on a motion for a directed verdict at the conclusion either of plaintiff’s testimony, or the whole ease. It is stated in somewhat different language in Pope, Admx. v. Mudge, et al, 108 Oh St 192,

“It is error for the court to direct a verdict against the plaintiff, where, by giving to the evidence the most favorable interpretation toward him which any of the evidence will reasonably warrant, there is some evidence tending to support the aggregations of the petition.

2nd syl. “If. in ruling upon a motion to direct a verdict, the court is required to detect the truth from conflicting evidence of the same or different witnesses, the motion should be overruled.”

The plaintiff’s basic claim for modification of the award of the Industrial Commission was that

“On the 12th day of April, 1946, while in the usual course of his employment for the Standard Oil Company in Washington C. H., Fayette County, Ohio, this plaintiff sustained injuries to his heart while moving a steel drum weighing approximately 400 pounds when he slipped on oil while carrying the barrel and sustained an injury to his heart.”

It is true that the plaintiff made no such claim in his original application to the Commission, nor, did it appear in the statement of his employer or his physician, nor, is there any witness, other than the plaintiff, who testifies that he gave any manifestation, at the time of the injury complained of, that he suffered any ill effects to his heart. This, however, was not determinative of the ultimate question whether he had suffered such injury as a result of the accident on the 12th of April, 1946. The plaintiff supported his claim and the averment of his amended petition, heretofore quoted, in his testimony, as follows:

“Well, I brought this barrel in; of course this ‘lube’ room you know, it is a tile room, and it is always greasy, slippery. These Barrels, ‘ they weigh 500 pound, I brought this over to .upset it onto the lift; my feet slipped on this floor, and I was trying to protect myself to keep this oil drum from falling on me and crushing me. I seemed to strain myself someway, -in my chest there.”

It appeared that in 1945, the plaintiff had been treated by Dr. Craig of Washington C. H. who diagnosed his ailment as a coronary infraction. Plaintiff testified that he had substantially recovered from his condition as of the date of the occurrence at,the filling station.

Four doctors testified in behalf of the plaintiff and all said that there was, or could be causal connection between the exertion to which plaintiff was subjected on the day of his injury and a heart condition from which all of them agreed the plaintiff suffered.

We have carefully read the testimony of these doctors with particular reference to the hypothetical question propounded by counsel for plaintiff and find that the testimony of one doctor, at least, Dr. Maurice B. Rusoff, was sufficient to carry the case to the jury upon the issue whether or not the heart condition found to have been suffered by the plaintiff was the result of the occurrence at the filling station at which plaintiff worked on April 2, 1946 and if the heart condition was the result of trauma. The testimony of Drs. Roszmann and Hayes, in chief, supported the claim of plaintiff that the injury complained of was caused by the unusual exertion required to be exercised by him at the time of the occurrence when he was injured. On cross-examination, these witnesses materially weakened the probative effect of their testimony but, applying the second syllabus of Pope v. Mudge, heretofore quoted, it was for the jury to determine what testimony to believe; that in chief or on cross-examination. Dr. Craig merely said that there could be causal relation between the accident and the heart condition of which complaint was made. This was not sufficient to afford any requisite proof on this issue. Bell v. Buckeye Steel Castings Co., 32 Abs 141, this Court, Franklin County.

It is well recognized that it is essential to an award for a traumatic injury that it not only occur in the course of and arise out of the employment but that the injury must be accidental in origin and cause, the result of a sudden and unexpected happening at a particular time. Goodman v. Industrial Commission, 135 Oh St 81; Cordray v. Industrial Commission, 139 Oh St 173; Industrial Commission v. Luger, 54 Oh Ap 148. In this case we held that the plaintiff suffered an accidental injury but it is helpful because it sets out and discusses practically all of the cases relating to accidental injuries within contemplation of the Workmen’s Compensation Law.

The testimony of plaintiff, as heretofore quoted, in our judgment, will support the conclusion that whatever injury he suffered by reason of the occurrence to which he testified was unusual and extraordinary and not a result of his regular and ordinary duties. It appears that the floor upon which he was working the day of his injury was greasy and slippery with oil and that when he was attempting to place a barrel of oil upon a lift he slipped with the result that the barrel almost fell upon him and crushed him, as he puts it. That part of his service wherein he moved the barrel by rolling it and lifting it, preparatory to placing it on a hoist was his usual and customary duty but when he slipped in order to protect himself he had to hold the barrel away from him and keep it from falling upon him and this was unusual and unexpected. Why this basis of injury to the heart was not incorporated into and made a part of the hypothetical question, we cannot understand.

The hypothetical questions propounded to the doctors whose testimony was necessary to establish the causal connection between the happening and the injury to the heart, Drakulich v. Indus. Commission, 137 Oh St 82, sets forth only such duties as would ordinarily be followed by the plaintiff in his regular every day work in so far as the record discloses. Typical of the hypothetical questions is the one put to Dr. Rusoff, the material part of which is

“Assume that Denny W. Heath * * * was on the 12th day of April, 1946, lifting a barrel of oil which weighed approximately five hundred pounds; that this barrel was made of steel and after rolling it from the outside into what was called the ‘lube’ room, he lefted it on to a lift, doing it as he uses the expression, ‘by main force and awkwardness’; was exerting himself at the time in the lifting of this barrel, when he felt a severe pain in his left chest, and also a sting in the left groin or abdomen.”

The use of the word “lifting” was unfortunate but probably understood because it does not appear, nor is it claimed that the barrel was completely off of the floor but that normally it was tipped over and onto the lift. It will be noted that there is nothing in this quoted hypothesis of the question which suggests any unusual or different action on the part of the plaintiff when his injury occurred than that which would have been followed on any occasion when he was carrying on his duties in the customary manner. In other words, the experts were interrogated upon the question whether or not the plaintiff by reason of the exertion commonly used in placing the barrel from the floor onto the lift might, as a result thereof, suffer the heart condition to which they testified. There then, is no response to the situation disclosing an extraordinary occurrence, namely; the slipping and the tilting of the barrel toward the plaintiff so that it was about to fall upon him and that to protect himself he was subjected to the strain which caused his heart condition. Giving then, to the medical testimony its most favorable interpretation for the plaintiff it does not respond to the question whether or not the unusual strain, as defined by the plaintiff, caused his heart condition.

It may be true that plaintiff’s doctors would have made no distinction in the resultant effect of the strain to which plaintiff testified he was subjected and that which was incorporated in the hypothetical question. But this is mere conjecture. The plaintiff was under obligation to shape its expert testimony so that it would be responsive to the occurrence as the plaintiff established it by his testimony.

There is no doubt that the plaintiff in moving these barrels of oil through the lube room and onto the lift was regularly and ordinarily subjected to the necessity of heavy lifting or moving but by the authorities, as we interpret them, if this exertion brought about his heart condition, he may not recover. That is all that his experts establish by their testimony.

We And no error in the sustaining of the motion for judgment veredicto non obstante.

The judgment will be affirmed.

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


author: By SKEEL, PJ.:

text:
    STATE, ex rel. DALEY, Relator, v. PARMA (City) et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22557.
    Decided August 18, 1952.
    Paul H. Torbet, Cleveland, for relator.
    Richard DeNobel, Cleveland, for respondents.
   OPINION

By SKEEL, PJ.:

This is an original action in this court wherein a writ of mandamus is prayed for against the Mayor, Auditor and Treasurer of the City of Parma, directing them to carry out (as set forth in the petition) the terms of an ordinance passed for the purpose of purchasing a fireproof building for a free public library and the purchase of additional land, the remodelling of said building and the constructing of an additional building for a free public library, and to issue bonds authorized by the city council in the sum of $225,000.00 and an anticipatory note in the amount of $55,000.00 to carry into execution the provisions of said ordinance.

The petition alleges that by the terms of the ordinance the council authorized that a contract be entered into between the City of Parma and the Cuyahoga County Library District whereby the Cuyahoga County Library District agreed to rent said buildings at a rental of $20,000.00 per year until the money expended by the city in acquiring and building said buildings for library purposes had been refunded in full and thereafter to pay as rent such amounts as would defray repair and maintenance costs.

The answer of the auditor and treasurer admits the passage of the ordinance, its purpose and terms as set forth in the petition and further alleges that the bond issue and note, not authorized by a vote of the people, was illegal, although it is admitted that if issued the bonded indebtedness of the city would not exceed the ten mill limitation as provided by law. The answer further alleges that to build the library building on the city’s credit for the benefit of the Cuyahoga County Library District would be repugnant to Sec. 2 of Art. XII of the Constitution of Ohio as constituting a gift of its property and lending the credit of the city to the financial support of the Cuyahoga County Library District and further, that said ordinance is repugnant to Sec. 6 of Art. XIII of the Constitution in attempting to raise money by taxation levied against the citizens of Parma for the use and benefit of the Cuyahoga County Library District.

To the answer a demurrer has been filed, challenging the sufficiency of the respondents’ defenses.

It has always been the purpose of the legislature of this state to make available to the people of Ohio free public library service. The statutes have provided in one way' or another for the expending of tax money either to support such service rendered by a private library association or to provide that such service should be wholly supported by tax funds. Prior to the year 1947 almost every political subdivision was authorized to establish a free public library.

In 1947 the legislature repealed the laws authorizing the creation of public libraries by townships, municipal corporations and school boards and provided for the extension of the power of county library districts and providing that the county commissioners should be the taxing authority for county library districts when established.

The power to organize a county library district was first provided for in 1921 (Sec. 7643-1 GC). It was provided that upon petition of the citizens of a clearly defined district of the county, not including territory wherein free library service was then provided, by a vote of the people there could be established a county library district. In 1922 such a vote was had covering all of Cuyahoga County, except those school districts and municipal corporations in which free library service was then being furnished (Cleveland, East Cleveland, Cleveland Heights, Lakewood, and the Village of Bay and West-lake) and the Cuyahoga County Library District was formed and has since that time, to the present day, been furnishing free public library service to the people of the district. The territory which is now known as the City of Parma is within the district and has been receiving free library service since 1922.

The first question' to be decided is as to whether or not the City of Parma is authorized to acquire or construct a building to be used exclusively for housing free public library service to be furnished by the Cuyahoga County Library District.

Sec. 3939 GC which is found in Title VII, Division III, Chapter VI dealing with “Specific Powers” of Municipal corporations as amended effective 9/23/47 in part provides:

“Sec. 3939 GC: Additional Powers of Municipal Corporations:
“Each municipal corporation in addition to other powers conferred by law, shall have power;
“(11) to construct free public libraries and reading rooms and free recreation centers.”

This section was re-enacted by the legislature eighteen days after it had amended §3620 GC, whereby the power to establish a free public library was taken away from municipal corporations. It is argued that by reason of the facet that the legislature had taken the power to establish free public libraries away from municipal corporations that the power to construct a library building, as granted by §3939 GC, supra, must be limited to cases where municipal corporations had actually established a free public library and the same was in operation prior to September 4, 1947, the effective date of the act. But an examination of the statute discloses no such limitation. Furthermore, it is not to be assumed that the general assembly deliberately amended this section so as to make it impossible for municipalities to have library services and to deprive their inhabitants generally of library advantages except in the few municipalities where libraries were already in existence. The purpose of the legislation taken in conjunction with the simultaneous amendment of Sec. 7632 GC, it seems to us, was to offer further support to and not to weaken the authority of the county library district and to permit increase in library facilities in the county.

At the time §3620 GC was amended (122 O. L. 166 [178] Effective 9/4/47) Sec. 7632 GC was also amended to read as follows:

“Contract for library service; tax levy. The county commissioners of any county, the board of education of any school district, the council of any municipality, or the trustees of any township may contract with the library trustees of any public library appointed by authority of law, or with any private corporation or library association maintaining a free public library, situated within or without said taxing district, to furnish library service to all the inhabitants of said taxing districts, and may levy a tax therefor. Such tax levying authority shall require an annual report in writing from such library board, private corporation or library association. Where such tax for library purposes has been so levied, at each semi-annual collection thereof, the county auditor shall certify the amount collected to the proper officer of the taxing district who shall forthwith draw his warrant for such amount on the treasurer of such district payable to the proper officer of such library.”

From the foregoing sections it is made clearly to appear that the legislature was attempting to consolidate the management and operation of tax supported public libraries insofar as possible under a single governmental agency, without disturbing libraries then operating under existing laws. This conclusion is further supported by the provisions of §3711 GC amended by the Same Act above referred to, effective September 4, 1947. This section now provides:

“A municipal corporation may transfer, lease, or permit the use of, by ordinance duly passed, any property, real or personal, suitable for library purposes (to the board of trustees of any free public library or any library association) rendering free library service to the inhabitants of the municipality, upon such lawful terms and conditions as are agreed upon between the municipal corporation and the trustees of such library or library association.”

A city having been authorized to construct a library building (although not authorized to commence a new library after the effective date of amended Sec. 3620 GC), must of necessity be granted the means of devoting such building to the public use for library purposes, for the benefit of its citizens.

A former statute of like import was held constitutional in the case of Cleveland v. Library Board, 94 Oh St 311.

The ordinance here under consideration is in complete accord and within the statutory authority conferred upon municipal corporations, in providing free library service for the people of the city and is a valid exercise of the power conferred upon them by law.

The power to issue bonds within the limitation prescribed by law without a vote.of the people, is provided for by §2293-2 GC. The fact that other methods are available to finance the building of library facilities, does not in any sense lessen the legality of the method described in the pleadings.

The demurrer to the answer is therefore sustained. The respondent not desiring to plead further, the court finds that the relator is entitled to a writ of mandamus as prayed for. A writ is therefore ordered. Exc. Order see Journal.

HURD, J, THOMPSON, J, concur.


author: By MERRICK, J.

text:
    STATE, Plaintiff, v. SHEPPARD, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 67061.
    Decided August 13, 1954.
   OPINION

By MERRICK, J.

This matter is before the Court by virtue of reference under §2937.20 R. C. from a magistrate’s court of the City of Bay Village. By affidavit, complaint is made that Gershom Barber, Acting Mayor, has disqualified himself to sit as magistrate in such court because he has a pre-disposition in the matter to the prejudice of the defendant receiving a fair hearing and an unbiased finding in the premises. Evidence has been taken and the arguments of counsel heard in the matter.

It is axiomatic that all persons accused of crime are entitled to a fair hearing, surrounded by all constitutional and statutory guarantees. In case of doubt, such doubt should be resolved in favor of the accused. While it is true that at all times all administrators of justice should be alert to these guarantees, it is especially so, where the charge is a very serious one and the possible punishment severe. The charge in the instant case is murder in the first degree which in many instances is punishable by death.

The right to a fair trial is a fundamental conception in the administration of criminal law, no matter how revolting the crime charged may be, 12 O. Jur., 153. This is something that the law contemplates and guarantees, and which should be the aim of both the law and the court. Brooks v. State, 17 Oh Ap 510.

The court should be astute and vigilant in seeing that the accused has a fair and impartial trial. Haas v. State, 13 O. C. C. 418. Where the life of a human being is at stake, the moral responsibility is increased by the jealous care with which the law regards life, and the trial of one thus charged calls for the strictest observance of the statutory provisions made for the protection of such life. The verdict and judgment must not be the reflex of the clamor of the populace, or the result of passion, prejudice or ill will against the accused. State v. Elliott, 11 O. Dec. Rep. 253. Whether guilty or not, a defendant is entitled, as is every person charged with crime, to a fair trial. State v. Petro, 148 Oh St 475.

The accused is entitled to a trial before an unbiased unprejudiced and disinterested judge, and if he feels that the judge before whom he is to be tried is not so qualified, he may secure a judge who is so qualified. 13 O. Jur. 155.

Coming to the facts in this case, it is apparent beyond the peradventure of a doubt, that the magistrate discussed the case with many persons and expressed a variety of opinions as to certain phases of the investigation and procedure. It is admitted that he had these conversations both before and after he knew he was to be the magistrate in the case. He expressed distress at the delay in making the arrest and preferring the charge. This Court believes the witnesses who recited the statements of the magistrate as to methods which should be followed in obtaining a solution of the case. There is no doubt but what he said that he would change his opinion if confronted with evidence. But this is not the province of a judge or magistrate. He must not have an opinion in advance of hearing facts. At that period in the process, he must and should have no opinion, leaving his mind open, subject to proof of established facts. To reverse this guarantee and require proof to dislodge or modify an earlier acquired notion or conviction is to subject the defendant to a process not anticipated or permitted under our laws.

In view of the circumstances surrounding the nature and investigation of the crime and the other preliminaries leading to the arrest of the accused, it is not unusual or strange to find a public official of the affected community thrown into the maelstrom of conversations, accusations and rumors which are found to abound in all such occurrences. But those likely to be drawn into the matter in an official capacity should reserve their decisions and bridle their tongues. This is especially true where the case may require their judicial determination.

Magistrate Barber appears to this Court to be a fine, upstanding citizen who would try to do his very best in arriving at a just decision, but the Court is of the opinion that he has expressed himself on several occasions to the indication that he had a predisposition of thought and opinion in the case and that it might require some proof to entirely dislodge the impressions gathered by him from sources, other than the facts presented in open court. This Court finds that such state of mind disqualifies him to sit further in the matter.

Accordingly a transfer must be ordered by this Court. The nature of the charge and the wide public interest in the case immediately commands that where geographical jurisdiction does not control, a competent, fair and impartial judge who is available should be designated.

The statute (§2937.20 R. C.) gives wide discretion in the choosing of such judge and I quote an excerpt from that section:

“* * * he shall designate another magistrate of- the township or county, or another judge of said court or the Court of Common Pleas to hear and determine said cause . . .” (Emphasis ours.)

I have asked my associate on this bench, Hon William K. Thomas to accept this assignment by transfer. He has acceded to my request. I am happy that he is available and willing to perform this arduous task.

Therefore, it is adjudged and decreed that the magistrate forthwith deliver to Judge Thomas all files and papers in the case for further proceedings according to law. A journal entry is being made accordingly.


author: By MILLER, J:

text:
    WELSH, Plaintiff-Appellee, v. WEYRICH, as Trustee, Defendant-Appellee, KRAMER et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2184.
    Decided December 17, 1952.

      Jacobson & Durst, Dayton, for plaintiff-appellee.
    Clarence J. Stoecklein, Robert J. Stoecklein, Dayton, fbr Arthur G. Kramer and Eloise S. Kramer, defendants-appellants.
    Harshman, Young, Colvin & Alexander, Dayton, for The John Hancock Mutual Insurance Company, defendant-appellant.
   OPINION

By MILLER, J:

This is a law appeal from the judgment of the Common Pleas Court, decreeing the plaintiff, Ray Welsh, and the defendant, Charles Weyrich, Trustee, to be seized in fee simple of the real property which is the subject of this action. The same was instituted by the plaintiff who acquired his title from the heirs of John Summers who died testate on April 25, 1895, seized in fee simple of the real property described in the amended petition. The defendant, Charles Weyrich, Trustee, acquired his title through the same chain.

The will of John Summers was admitted to probate on May 31, 1895, the applicable portions of which are the following:

“ITEM 2: I will and bequeath to Ann Kramer, wife of John Kramer, for and during her natural life, and after her death to the heirs of her body, and to their heirs and assigns forever, the two acres and a fraction, * *
“ITEM 5: I will and devise and bequeath all the remainder of my estate not heretofore disposed of, both real and personal and mixed, to my brother Charles Summers for and during his natural life, and after his death to the heirs of his body, share and share alike, and to their heirs and assigns forever.”

The real estate described in the amended petition is a part of the real property described in Item 2 of the will. The de-. fendants-appellants, Arthur G. Kramer and Eloise S. Kramer, are claiming title to said real estate by virtue of a warranty deed, the chain of which runs back to Ann Kramer, the life tenant, widow of John Kramer, deceased, and her two sons and only heirs at that time. Now, Ann Kramer deceased in. 1942, leaving no issue of the body, her two sons having predeceased her leaving no issue. The appellees urge that Ann Kramer’s interest in the real estate was extinguished upon her death, and since she left no issue of the body, that the fee vested in the heirs of Charles Summers under Item 5 of the will as the residuary legatees, Charles Summers also having predeceased the testator'. The heirs of Charles Summers were determined upon the death of the testator. We think the contention of the appellee to be a correct legal conclusion and in accord with the case of Gilpin v. Williams et al, 25 Oh St 283, the first paragraph of the syllabus of which provides:

“A testator devised certain lands to his daughter for life, with remainder after her death to her children, then unborn, forever, without otherwise disposing of the inheritance. Held, the reversion in fee descended to and vested in the heirs of the testator, at his death, subject, however, to divest in the event that the devisee for life should die leaving children surviving her.”

But, the appellants urge that even though the fee was vested in the heirs of Charles Summers subject to being divested in the event that Ann Kramer should die leaving issue, still the appellants should not recover for the reason that the heirs of Charles Summers appeared in case No. 16456 in the Common Pleas Court for Montgomery County and agreed to be divested of all claims and interest in and to the property willed by John Summers to Ann Kramer and others. An examination of this case reveals that Mary Summers, widow of the testator, elected not to take under the will and on August 31, 1895, filed an action in partition for her dower interest; that all the heirs at law of Charles Summers, deceased, together with Ann Kramer and John W. Wright, beneficiaries under Item 2 of decedent’s will, along with John Kramer, husband of Ann Kramer, were made parties defendant, waived the service of summons and entered appearance either personally or by counsel. A writ of partition issued to the sheriff November 26, 1895. Commissioners were appointed and on February 3, 1896, return was made to the effect that “the property is entire and that no division can be made without manifest injury to the same and that the dower estate of said Mary Summers cannot be assigned and set off by metes and bounds * * *.” The commissioners estimated one-third of the rents, issues and profits of all the real estate in the estate at $651.00 per annum and estimated the value of the said real estate, free of dower, $58,450.00. By entry filed July 13, 1896, the Court stated:

“* * * that all of such appraisement and estimating have been made by the commissioners as directed by §5714 ‘A’ R. S., the court find said proceedings in all respects in conformity to law, and do hereby approve and confirm the same.”

The Court then found the value of plaintiff’s dower in money to be $3841.20 and made the same a charge on the lands not specifically devised.

On July 20th the Court ordered the heirs of Charles Summers to pay $3709.78 and

“* * * that the said Ann Kramer pay to said plaintiff the sum of $131.42, the amount so ordered paid by her in this cause by a former order of this court and that when said Ann Kramer has so paid the same that the property devised to her by the said John Summers, deceased, shall be divested of the life estate of said Mary Summers, the plaintiff herein, and also divested of all claims of any of the heirs of Charles Summers, deceased.”

The lower court found as a special finding of fact, in answer to defendant’s interrogatory, that,

“The heirs of Charles Summers, living in 1895, did appear as defendants in case No. 16456 and did agree to be divested of all claims and interests in and to the property willed by John Summers to Ann Kramer and others.”

No appeal was taken from the judgment in said dower partition case and no action of any kind has been taken in over fifty years, to change this public judicial record. The trial court made the following conclusions of law which the appellants claim to be error:

No. 3. “That if there was any agreement by the heirs of Charles Summers in said cause No. 16456 to be divested of all claims in and to the property willed by the testator to Ann Kramer under Item 2 of his will, such agreement would not divest those heirs of said Charles Summers who were living on September 8, 1942, of their interests in the real estate described in the amended petition.”

No. 4. “That any declaration in said case No. 16456 divesting the heirs of Charles Summers of any claims in and to the property devised to Ann Kramer under the will of John Summers, is coram non judice and is void.”

We are of the opinion that the Court erred in its legal conclusion, No. 3, supra. Since we have held that the fee vested in the heirs of Charles Summers upon the death of the testator, it was an estate which could be divested. It was a reversionary fee. The heirs of Charles Summers living in 1895 at the death of the testator held the vested reversion in fee, which was subject to divestiture.

It is said in 33 Amer. Jur. Sec. 195, page 669:

“Reversions are descendible, alienable or assignable by deed, conveyance, and grant, and devisable.”

In 31 Corpus Juris Secundum, Sec. 108, page 128, it is said:

“A reversion is devisable, descendible, and alienable inter vivos. A grant of the reversion passes all the rights of the grantor.”

If this property was divested by the agreement recited in case No. 16456, then it was not material who the heirs of Charles Summers were upon the death of Ann Kramer on September 8, 1942. As stated supra, the Court found in answer to defendants’ interrogatory No. 5 that all of the heirs of Charles Summers agreed to be divested. This being an appeal on questions of law only this factual finding is not subject to reversal as we find the evidence is sufficient to support the conclusion. Such an agreement, we hold, is valid and enforceable in a court of equity.

In 57 Am. Jur. Sec. 1005, page 653, it is said:

“According to most authorities, an agreement between the beneficiaries under a will, for the purpose of avoiding litigation regarding their rights, to adopt a plan for the distribution of the estate, different from that provided by the will is valid and enforcible * * *.”

In 7 O. Jur. Sec. 28, page 1010, it is said:

“A parol agreement by heirs after the death of their ancestor, as to the distribution of the estate, both real and personal, which has been executed on one side, may be enforced in equity as against the other side, in so far as such agreement is within the contractual capacity of the parties.” Citing Williams v. Pope, Wright, 406.

The evidence reflects that there was a valuable consideration for the agreement. This tract being specifically devised to Ann Kramer, et al., was not subject to the payment of dower because the record shows ample other assets in the estate, not specifically devised, to pay dower debts, expenses and bequests. Hence Ann Kramer, et al, probably objected with the result that there was a compromise whereby she agreed to pay the dower interest on her two acres and the residuary legatees, the Charles Summers’ heirs, agreed to relinquish their reversionary interest and other interests, if any, in her estate. It was incumbent upon the heirs of Charles Summers in 1895 to agree who should pay the $3841.20, and in what amount, and failure to do so would have resulted in partition.

The court entry of July 20, 1895, discloses that the payment by Ann Kramer of $131.42 was to be credited “on the sum of $3841.20 ordered paid to the plaintiff by the heirs of Charles Summers, deceased.” The $131.42 paid by Ann Kramer and credited to the sum owed by the heirs of Charles Summers, it appears, was sufficient consideration in view of the small possibility that Ann Kramer’s two sons would predecease her.

We are of the further opiniorl that by their agreement the heirs of Charles Summers estopped themselves and their heirs and assigns from ever asserting an interest in the property devised to Ann Kramer because of said agreement. On the subject of estoppel it is said in 7 O. Jur. Sec. 29, page 1012:

“It is well settled, as a general rule, that where one party has taken the benefits and secured the advantages of an agreement of compromise and settlement, he will be conclusively estopped, in the absence' of circumstances of fraud or unfairness, from asserting any claim against property released or assured by him to the other party to such agreement, inconsistent with such release or assurance. And, as a general rule, where notes have been executed in settlement of a compromise agreement, the maker thereof will be estopped to deny that there was any consideration therefor.”

It is said also in 7 O. Jur. Sec. 30, page 1012:

“An agreement of compromise and settlement is binding upon the parties thereto, and all those in privity with or claiming through or under them.”

In Williams v. Pope, Wright’s Ohio Reports, 406, the Court-held that an oral agreement by heirs after the death of their ancestor, as to the distribution of his estate, both real and personal, which has been partially executed, may be enforced in equity as against a repudiating heir or distributee.

In Piatt v. Hubbell, 5 Ohio, 243, the Court was confronted with a case wherein a partition suit was instituted and as in the case at bar an oral agreement was made between the heirs and distributees, including minor heirs. No confirmation or final entry was placed in the court records. Some twelve to fourteen years later an heir sought to repudiate the agreement contending that the minor parties were not affected and that the court proceedings were entirely void. At page 244 the Court says:

“We do not think it necessary to decide what is the precise effect of these proceedings. It is evident the partition was in fact made between the parties in 1814, which at that time was equal; and that all the adult parties took possession of their respective shares, and ever since held them in severalty, built upon, and improved them, on the faith of its validity. This court, in chancery, would not disturb a parol partition, originally fair, in which there had been so long acquiescence, and such acts of confirmation.”

In Walker v. Walker, 16 Abs 272, the fourth paragraph of the syllabus provides:

“One who has voluntarily participated in an adjustment of the affairs of a decedent’s estate among the parties in interest may not thereafter be heard to make a claim inconsistent therewith.”

See, also, Christ, et al. v. Canal River Co., 32 O. L. R. 331; Chisholm v. Chisholm, 58 Abs 1.

The appellees urge that the judgment entry divesting the heirs of Charles Summers of any interest in the property devised to Ann Kramer is “coram non judice” and therefore void and of no effect. Since we have held the agreement is enforceable and those holding under the heirs of Charles Summers are now estopped to deny the same, the validity of this order becomes immaterial. We therefore express no opinion on the same.

The judgment will be reversed and it is the judgment of this Court that the title in Arthur G. Kramer and Eloise S. Kramer be quieted subject to the interest of their mortgagee, The. John Hancock Mutual Life Insurance Company. The petition of the plaintiff is dismissed.

HORNBECK, PJ, WISEMAN, J, concur.