author: By CECIL, District Judge.

text:
    INTERNATIONAL UNION, UNITED AUTOMOBILE AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO., et, Plaintiffs v. BUFFALO-SPRINGFIELD ROLLER CO., Defendant.
    United States District Court S. D. Ohio, W. D.
    No. 1784.
    Decided December 20, 1954.
    Sol Goodman, Cincinnati, for plaintiffs.
    Corry, Durfey, Martin & Browne, Springfield, for defendant.
   OPINION

By CECIL, District Judge.

This case is before the court on the defendant’s motion to dismiss and in the alternative, to requuire the plaintiffs to amend their complaint by making a more definite statement.

The complaint sets out that this suit is brought under the Labor Management Relations Act, 1947, 29 U. S. C., Section 185, that the plaintiffs are “labor organizations” within the meaning of said act. and that the defendant is an “employer engaged in an industry affecting interstate commerce” within the meaning of said act.

The complaint alleges that a certain labor dispute occurred at defendant’s plant, that certain employees were left unemployed as a result thereof, and that the defendant has refused to arbitrate the alleged grievance, as required by an employment contract between the parties, and demands the court to compel arbitration.

The motion to dismiss is founded upon the theory that specific performance of an agreement to arbitrate is not enforceable. The defendant relies on Ohio law and on the case of Gatliff Coal Co. v. Cox, 142 Fed. (2d) 876 as the controlling authority in the Sixth Circuit.

The court is of the opinion that Ohio law is not applicable. Congress, by occupying the field of labor management relations, has closed the field to state regulation. International Union of Operating Engineers Local No. 181, v. Dahlem Construction Co., 193 Fed. (2) 470; International Union of United Automobile, etc., Workers of America, CIO, et al. v, O’Brien, Prosecuting Attorney, et al., 339 U. S. 454.

It may be true that the Gatliff case, supra, held the Arbitration Act, 9 U. S. C. A., not applicable to employment contracts. A more recent decision, however, is Milk & Ice Cream Drivers and Dairy Employees union, Local No. 98, et al., v. Gillespie Milk Products Corporation, 203 Fed. (2) 650. This case would seem to authorize full enforcement of employment contracts under the Taft-Hartley law, 29 U. S. C., Section 185. See also Industrial Trades Union of America v. Woonsocket Dyeing Company, Inc., 122 Fed. Supp., 872; Textile Workers Union of America (CIO) v. American Thread Company, 113 Fed. Supp. 137.

The court is of the opinion that the intent of Congress in enacting the Taft-Hartley Act was to allow full enforcement of employment contracts under the act and that arbitration may be enforced accordingly.

The motion to dismiss will be overruled.

It is the opinion of the court that the motion to require a more definite statement is not well taken. It would seem to the court that the complaint sufficiently advises the defendant of the plaintiff’s claim. The defendant probably has a copy of the alleged employment contract from which it can determine for itself, the provisions thereof. The information sought relative to the 34 employees is adequately set out in the complaint.

The motion accordingly will be overruled.

An order may be drawn overruling the motion in its entirety.


source: Caselaw Access Project

author: By WEBER, J.:

license: Public Domain

text:
    ARMSTRONG, Admr., Plaintiff, v. BRUFACH et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-121575.
    Decided November 1, 1950.

      Charles J. Armstrong, Administrator with the Will annexed of the estate of Elizabeth Brufach.
   OPINION

By WEBER, J.:

This is a suit to determine whether the order of the Probate Court is valid which admitted to probate the Will of Elizabeth Brufach, and appointing the plaintiff, Charles J. Armstrong, administrator with the Will annexed of said estate.

The plaintiff claims that doubt has arisen as to the validity of said order for the reason that John Brufach, being a non-resident of the state of Ohio, and known to be such, was not notified of the application for probate and the appointment of an administrator.

In the case of Young et al, v. Guella, 67 Oh Ap 11, the court held that the Common Pleas Court has jurisdiction to determine such a question.

“2. The fact that a person aggrieved by such order could obtain relief in the Probate Court by virtue of statutory provisions, does not preclude such person from recourse to a court of general equity jurisdiction, by original action, to have such order declared to be void.

“3. The grant of a limited equity jurisdiction to the Probate Court, under the provisions of §§10501-53 and 10501-17 GC, does not oust the Court of Common Pleas from its original equity jurisdiction to declare void the judgments and orders of the Probate Court for lack of jurisdiction.”

It is admitted that no notice was served upon said surviving spouse of the decedent.

In the case of Scholl v. Scholl et al, 123 Oh St 1, the court held:

“1. The requirement of §10507 GC, that upon an application for the probate of a will notice shall be given to the widow or husband and next of kin of the testator resident of the state, is mandatory and jurisdictional.”

The court was interpreting §10507 GC, which later became §10504-17 GC, which reads as follows:

“No will shall be admitted to probate without notice to the widow or husband and next of kin of the testator, if any, resident in the state, in such manner and for such time as the probate court directs or approves.”

This section was amended, effective September 29, 1945, to read as follows:

“No will shall be admitted to probate without notice to the surviving spouse and to the persons known to be residents of the state who shall be entitled to inherit from the testator under the statute of descent and distribution * *

This amendment makes no change in the requirement that notice be given to those “known to be residents of this state.”

Sec. 10509-3 GC, which provides to whom administration of the estate of an intestate may be granted, reads, in part, as follows:

“To the surviving spouse, if resident of the state.”

The language of the statute would seem to bear no other construction than that given to it in syllabus l of the case of Scholl v. Scholl et al, supra, namely, that notice is required only to heirs who are residents of the state and there appears to be no reason that the legislature intended otherwise.

It is therefore ordered, adjudged and decreed that the order of the Probate Court admitting the Will of Elizabeth Brufach to probate, and appointing Charles J. Armstrong administrator with the Will annexed of said estate, is valid.

Please prepare an entry accordingly.


author: By HORNBECK, J. By HORNBECK, J.

text:
    WELFARE FINANCE CORPORATION, Plaintiff-Appellant, v. SWEARINGEN et, Defendants-Appellees.
    Ohio Appeals, Second District, Greene County.
    No. 163.
    Decided October 15, 1955.
    Richard L. Davis, Hillsboro, for plaintiff-appellant.
    Wead & Aultman, Xenia, for defendants-appellees.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)

      No. 563.
    Decided December 13, 1955.
   OPINION

By HORNBECK, J.

The appeal on questions of law is briefed on the merits by counsel for the parties. But, at the out-set, we find a motion by appellees that the appeal be dismissed for the reason that the Bill of Exceptions does not furnish the Court of Appeals with the necessary information to pass upon the question presented by the plain tiff-appellant.

What purports to be a Bill of Exceptions is in the files. It sets out certain of the proceedings, a request of plaintiff that the Court submit a special finding to the jury; an objection; motion sustained; exception by plaintiff. Also the charge of the Court to the jury in its entirety; exceptions thereto by plaintiff.

The purported Bill of Exceptions is not signed, settled or allowed by the trial judge. He makes the following notation at the end of the Bill, over his signature;

“I have not signed the bill of exceptions because it does not contain the testimony on which the Court based its ruling in refusing the request of plaintiff as set out on page 2 hereof.”

Appellant assigns two errors. 1—Error in the general charge. 2—The refusal of the Court to submit request of plaintiff for special finding to the jury.

Manifestly, neither of these errors can be reached without the charge or the request and refusal of the trial judge to submit the special finding to the jury. As there is no Bill of Exceptions, the basis of the errors assigned is not exemplified and we may not consider them.

The appeal will not be dismissed but the judgment will be affirmed.

MILLER, PJ, CONN, J, concur.

WELFARE FINANCE CORPORATION, Plaintiff-Appellant, v. SWEARINGEN et, Defendants-Appellees.

OPINION

By HORNBECK, J.

Appellant moves for leave to file a full and complete Bill of Exceptions in the cause herein.

We have heretofore held that a partial transcript of testimony which had not been signed by the trial judge settling it as a Bill of Exceptions could not exemplify the errors sought to be assigned. At the end of the transcript of testimony which was presented to the trial judge, he made this notation:

“I have not signed this Bill of Exceptions because it does not contain the testimony on which the court based its ruling in refusing the request of plaintiff as set out on Page 2, hereof,” “Dated, July 9, 1955.”

Signed, “F. L. Johnson, Judge, Common Pleas Court, Greene County, Ohio.”

The only authority this court has respecting an addition to or modification of a Bill of Exceptions is set forth in §2321.14 R. C. It provides:

“When justice requires it, upon notice to all parties, an omission in the bill of exceptions occuring through accident or error may be corrected by the reviewing court, or it may be remanded to the trial court for such correction.”

Manifestly, this statute may not be given application to the facts here because,

1. The motion desires the court to order a full Bill of Exceptions The trial judge only may settle and allow such a bill. No Bill of Exceptions has been settled and allowed and therefore, there is no basis for correction.

2. If there were a partial Bill of Exceptions, this court could only correct omissions in the bill ocurring through accident or error. It is obvious that counsel was put on notice by the trial judge that the bill was not complete and therefore, we could not say that the omission occurred through accident or error.

We have no authority to grant the leave which is requested by the motion.

It will be overruled.

MILLER, PJ, concurs.

WISEMAN, J, not participating.


author: By STEWART, Circuit Judge.

text:
    FORD MOTOR COMPANY, Appellant, v. TOMLINSON, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12322.
    Decided February 11, 1956.
    James A. Butler, Bulkley, Butler & Rini, Cleveland, for appellant.
    Theodore T. Sindell, Julien Renswick, Sindell, Sindell, Renswick & Bourne, Cleveland, for appellee.
    Before ALLEN, MILLER and STEWART, Circuit Judges.
   OPINION

By STEWART, Circuit Judge.

In this diversity of citizenship case Wallace H. Tomlinson was awarded damages by a district court jury for personal injuries he sustained while working as a painter in a plant under construction on the defendant Ford Motor Company’s property near Cleveland Ohio. The plaintiff was an employee of an independent painting contractor at the time he was injured. Even if all factual issues are resolved in favor of the plaintiff, the defendant contends it is not liable for his injuries under the law of Ohio, and that the district judge was in error in submitting the case to the jury.

Ford was the owner of land on Brook Park Road near Cleveland, upon which it undertook to have a new engine plant constructed. For this purpose it let a number of prime contracts for various phases of the work. There was no general contractor, as such. Ford itself performed many of the traditional functions of a general contractor, reserving in its prime contracts the power to coordinate, schedule and approve work in progress. The H. K. Ferguson Company was the prime contractor for the erection of the superstructure. That company in turn let some twenty subcontracts to other independent contractors, among them a subcontract with Automatic Sprinkler Corporation of America to install an overhead sprinkler system and another subcontract with Jennison-Wright Corporation to lay wood block flooring. Automatic Sprinkler in turn subcontracted with Long Painting Company to paint the sprinkler system. The plaintiff was in Long’s employ on August ti, 1951, when he was injured.

On that day the plaintiff and another Long painter, standing on a scaffold sixteen feet above the floor, were engaged in painting the sprinkler pipes. It was their second day on the job. The scaffold rested on trusses and cables which had been erected as part of the structural steel work, and ropes were tied to each end of the scaffold to enable it to be pulled into new positions as the painting progressed. These ropes were coiled up at each end of the scaffold, leaving a loop between the coil and the point where the rope was tied to the scaffold at each end, each loop extending downwardly a distance of some three to five feet.

While this painting work was in progress overhead, the employees of Jennison-Wright were installing wood block flooring in the same area of the plant. The wood blocks were brought to the place where they were needed in the plant area by a dump truck. This truck was operated and owned by Alfonso Ruffin, who had been hired by Jennison-Wright on an hourly basis. As the work progressed, Ruffin was told by the JennisonWright employees where to dump each load of wood blocks.

While the plaintiff and his fellow worker' were thus engaged in painting the sprinkler pipes above, RufHn’s dump truck was, at the direction of the Jennison-Wright employees, spotted in a position not far from a point directly below one end of their scaffold. In order to unload the wood blocks, Ruffin raised the dump body to its maximum height of nearly thirteen feet above floor level and moved the truck forward quickly. The truck’s elevated body snagged the loop of rope hanging from the end of the scaffold, pulled the scaffold down and caused the plaintiff to fall to the floor.

No Ford employee and no equipment or vehicle belonging to Ford were directly involved in the immediate sequence of events leading to the plaintiff’s injuries. There was evidence, however, that Ford plant guards were present in the general area, and that some Ford property had already been moved into the plant for installation or storage not far from the site of the plaintiff’s injuries. While the evidence was in conflict as to who had arranged for the sprinkler painting and floor laying operations to proceed simultaneously in the same area of the plant, there was sufficient evidence to support a finding that it was Ford which had done so under the powers reserved to it in its prime contract with Ferguson.

The undisputed evidence showed that Long’s general foreman had been present when the painting job was commenced on the previous day and had observed the floor work in progress in the same area of the plant where the painting work was to be done. The foreman observed that the work of laying the floor was proceeding from a northerly to a southerly direction, and he ordered the plaintiff and his co-worker to work from a southerly to a northerly direction in painting the overhead sprinkler system. The foreman gave no warning to the plaintiff or his fellow worker of any danger involved in the simultaneous carrying on of the painting and the floor laying in the same area of the plant. The plaintiff himself knew the floor laying work was going on, and had noticed a dump truck at least once during the day and a half he had been on the job before the accident, but the dump body of the truck was not elevated at the time he observed it.

This action for damages was originally filed by the plaintiff against Alfonso Ruffin, Jennison-Wright Corporation and Ford. The complaint charged Ruffin with negligent operation of his dump truck and JennisonWright with negligence in allowing the wood blocks to be unloaded in a manner that it should have foreseen was dangerous to the plaintiff painting overhead. Ford was charged with negligence in failing to provide a safe place of employment and in failing to warn those working at floor level of the work going on overhead or to take steps to avoid the simultaneous progress of the overhead painting and the floor laying in the same area of the plant.

After the trial had proceeded for two weeks, the plaintiff entered into an agreement with Jennison-Wright and Ruffin to dismiss the case as to them, the plaintiff covenanting to cease and desist from further suing those defendants in return for a total payment of $13,500 made by them, but reserving all his rights against Ford. After overruling Ford’s motion for judgment in its favor, the trial judge submitted the case to the jury, which returned a verdict of $13,500 against Ford, upon which judgment was entered. Subsequently Ford’s motion for judgment notwithstanding the verdict or in the alternative for a new trial was overruled by the district court in a memorandum order.

In submitting the case to the jury, the trial judge instructed them that it was Ford’s duty to comply with §§4101.11 and 4101.12 R. C. Those sections, which were read to the jury, provide as follows:

“Sec. 4101.11 R. C. Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.”
“Sec. 4101.12 R. C. No employer shall require, permit, or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide, and use safety devices and safeguards, or fail to obey and follow orders or to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe. No employer shall fail to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees or frequenters. No such employer or other person shall construct, occupy, or maintain any place of employment that is not safe.”

The trial judge further correctly instructed the jury that under these code provisions Ford was not an insurer of the plaintiff’s safety while on its premises, and that “The word ‘safety’ or ‘safe,’ as used in the statutes, means such freedom from danger to life, health, safety or welfare as the nature of the employment will reasonably permit.” See §4101.01 R. C.; Bosjnak v. Superior Sheet Steel Co. (1945), 145 Oh St 538, 548-550, 31 O. O. 188, 62 N. E. (2d), 305.

The trial judge’s conclusion that these Ohio code sections imposed upon Ford a duty to provide the plaintiff with a safe place to work was thus summarized in the court’s opinion denying Ford’s motion for judgment or a new trial: “There is evidence that Ford had employees working in and about the area where the accident occurred.—guards, watchmen, and others, preparing places for the storage and installation of Ford’s equipment. Unless these Ohio statutes apply to ‘frequenters’ such as the plaintiff as an employee of a subcontractor doing work under the reserved direction and control of Ford, they could have no present force in any given case.

“They would have no consequential application to employees of employer Ford since under the Workmen’s Compensation Act of Ohio (§4123.01 et seq R. C.) the Industrial Commission would make awards to injured employees of employer Ford without regard to compliance with the obligations of such statutes.”

In the concrete application of the quoted statutory provisions to the facts at hand, the trial judge instructed the jury that Ford could properly be held liable only upon a single narrow theory. As summarized in the court’s opinion overruling Ford’s motion for judgment or a new trial, Ford’s liability under the court’s instructions was based solely upon the jury’s finding that Ford “exercised its reserved control and direction by ordering two subcontractors to work in the same area one above the other; the floor layers on the ground, the painters of the automatic sprinkler system pipes overhead. Bringing these two sets of employees together in such manner was in Ford’s interest, to speed up the work for its own occupancy of the space.”

On this appeal Ford makes three separate contentions. First, it argues that Jennison-Wright and Ruffin were primarily liable and Ford was liable only secondarily, if at all, and that therefore when the plaintiff entered into covenants not to sue Jennison-Wright and Ruffin the plaintiff was thereafter barred from proceeding against Ford. Next, Ford contends that §§4101.11 and 4101.12 R. C., which require an employer to keep his place of employment safe for employees and frequenters, imposed upon Ford no liability to the plaintiff in this case. Finally, Ford contends that the plaintiff had actual or constructive knowledge of all the conditions which combined to cause his injuries and was therefore barred from asserting a claim against Ford as the owner of the property where those conditions existed and the injuries occurred.

As to the first argument, it is true as Ford contends that in Ohio the release of a tort feasor primarily liable ordinarily operates to release one secondarily liable, regardless of an attempt to reserve rights against the latter. Hillyer v. City of East Cleveland (1951), 155 Oh St 552, 44 O. O. 499, 99 N. E. (2d), 772. See Terry v. Memphis Stone and Gravel Co. (6 Cir., 1955), 222 F. (2d), 652.

However, it is clear from the court’s instructions that the theory on which this case was submitted to the jury was that Ford, if liable at all, was primarily liable as a joint tort feasor. The plaintiff did not contend and the trial judge nowhere implied that liability could be imposed upon Ford because of the negligence of Ruffin or Jennison-Wright under the doctrine of respondeat superior. It was conceded throughout the trial that the latter were without question independent contractors. Ford’s liability was based upon its alleged independent negligence in directing that the painting and floor laying work proceed simultaneously, without taking any steps to warn against dangers implicit in the dual operation. Compare Meyer v. Cincinnati Street Ry. Co. (1952), 157 Oh St 38, 47 O. O. 34, 104 N. E. (2d), 173.

In Ohio an injured person’s release of or covenant not to sue one or more joint tort feasors does not extinguish his right of recovery against remaining tort feasors, if an express reservation of the injured party’s rights against the other tort feasors is made. Adams Express Co. v. Beckwith (1919), 100 Oh St 348, 126 N. E. 300. It follows that if the trial court was correct in the view that Ford was jointly and independently liable, if liable at all, it was also correct in concluding that Ford was not released from liability by the release of Jennison-Wright and Ruffin. The trial judge correctly instructed the jury, of their duty to reduce their assessment of the plaintiff’s damages by $13,500, the amount paid by Jennison-Wright and Ruffin. Under the theory of liability submitted to the jury, this was the extent of the advantage to which Ford became entitled by the release of its alleged joint tort feasors.

It remains to be considered, however, whether the court was in error in submitting the question of Ford's liability to the jury at all.

In support of its argument that it was not an “employer” and that the site where the plaintiff was injured was not its “place of employment” which would make it liable to the plaintiff as a “frequenter” under the Ohio statutes in issue, Ford points out that none of its equipment, tools, or machinery had been or could have been moved into the precise area where the plaintiff was injured and that none of its employees customarily worked on the floor in the area where the accident happened, much less on a scaffold located in the roof trusses sixteen feet above the floor.

Ford places prime reliance upon the decision of this court in Popowich v. American Steel & Wire Co. (6 Cir., 1926), 13 F. (2d), 381. In that case the plaintiff was employed by an independent contractor which had a window washing contract with the defendant. While washing a window of the defendant’s building the plaintiff fell and was injured. He based his right to recover on the statutes here in issue, alleging that the defendant had failed to place hooks or iron rings in the outer casings of the window to which a safety belt could be fastened. In affirming the district court’s judgment dismissing the complaint, this court’s opinion stated, “It is not claimed that any employee, of defendant was required to work at the place where plaintiff was injured or to engage in the kind of work that he was doing. * * * Place of employment means, we think, the place where some employee is required to work, either temporarily or permanently. To include other places would be to divert the purpose of the statute and impose upon an employer the duty of making safe a place for one who is not an employee nor a frequenter of a place used temporarily or permanently by employees. To extend the duty to a place of that kind would be an expansion of the statute beyond its intended remedial effect.” 13 F. (2d), at page 382. The reasoning of the Popowieh case has recently been expressly approved by an Ohio Court of Appeals in a decision upon which Ford also relies. Pare v. Gemco Engineering & Mfg. Co. (1953), 95 Oh Ap 141, 53 O. O. 47, 118 N. E. (2d), 206.

The plaintiff on the other hand points to the presence in the general area of plant guards, who were concededly employees of Ford, and he relies upon the reasoning of the district court in concluding that the statutes imposed a duty upon Ford as an employer under the circumstances of this case. Specifically, the plaintiff calls our attention to the decision of this court in American Steel & Wire Co. v. Sieraski (6 Cir., 1941), 119 F. (2d), 709. In that case an employee of an independent contractor received injuries resulting from a defective platform on the defendant-owner’s premises. In concluding that the safety statutes imposed a duty upon the defendant in that case, this court pointed out that at the time the plaintiff was injured the defendant’s own employees were concurrently using the very platform that was defective. 119 F. (2d), at page 710.

In short, the circumstances of the present case seem to bring it somewhere between the factual situations in the Popowich and Sieraski cases.

As we understand the decisions of the Ohio courts, however, it is not necessary to decide whether the trial judge was technically correct or incorrect in concluding that the statutes in question applied to the circumstances of this case. The simple fact seems to be that, at least with respect to “frequenters,” the Ohio appellate courts have not regarded those statutes as exacting a duty substantially different from that imposed generally by Ohio law upon an owner of property towards an invitee. This conclusion has been reached after examining the following decisions, among others: Bosjnak v. Superior Sheet Steel Co. (1945), 145 Oh St 538, 31 O. O. 188, 62 N. E. (2d), 305; Wellman v. East Ohio Gas Co. (1953), 160 Oh St 103, 51 O. O. 27, 113 N. E. (2d), 629; Schwarz v. General Electric Realty Corp. (1955), 163 Oh St 354, 56 O. O. 319, 126 N. E. (2d), 906; Hozian v. Crucible Steel Casting Co. (1937), 132 Oh St 453, 8 O. O. 375, 9 N. E. (2d), 143, 112 A. L. R., 333; Davis v. Charles Shutrump & Sons Co. (1942), 140 Oh St 89, 23 O. O. 299. 42 N E. (2d), 663; Giovinale v. Republic Steel Corp. (1949), 151 Oh St 161, 171-172, 39 O. O. 9, 84 N. E. (2d), 904; Pare v. Gemco Eng. & Mfg. Co. (1953), 95 Oh Ap 141, 53 O. O. 47, 118 N. E. (2d), 206; Jackson v. Cincinnati Gas & Elec. Co. (1941), 70 Oh Ap 139, 24 O. O. 450, 42 N. E. (2d), 218; McKee v. New Idea, Inc. (Oh Ap 1942), 44 N. E. (2d), 697, 36 Abs 563, 589, 591. Our attention has been called to no case where an appellate court in Ohio has held that the statutes here involved either added to or detracted from the duty of exercising ordinary care which a property owner owes to an invitee. Similarly this court’s decision in the Sieraski case was bottomed alike upon the Ohio Case law and statutes. 119 F. (2d), at page 711.

These statutes were obviously enacted primarily for the benefit of employees. Pare v. Gemco Eng. & Mfg. Co., 95 Oh Ap 141, 53 O. O. 47, 118 N. E. (2d), 206. They were rendered largely obsolete by the passage of the Ohio Workmen’s Compensation Law. Perhaps for that reason they have received but scant recent attention from the Supreme Court of Ohio, except in the Bosjnak decision. 145 Oh St 538, 31 O. O. 188, 62 N. E. (2d), 305. Cf. Ohio Automatic Sprinkler Co. v. Fender (1923), 108 Oh St 149, 141 N. E., 269. For example, although a large part of the Ohio Supreme Court’s recent opinion in the Schwarz case, 163 Oh St 354, 56 O. O. 319, 126 N. E. (2d), 906, is devoted to distinguishing that case from the Bosjnak decision, supra, no point at all is made in that opinion of the fact that the safety statutes were relied upon in the earlier case and apparently not relied upon in the later one.

We come then to a consideration of what standard of conduct the Supreme Court of Ohio has required of one in the defendant’s position toward an employee of an independent contractor working on his premises. The recent decisions of that court have dealt primarily with the extent of the owner’s duty to warn of a defective or dangerous condition within the knowledge of the owner and neither known by nor obvious to the contractor’s employee. Schwarz v. General Electric Realty Corp. (1955), 163 Oh St 354, 56 O. O. 319, 126 N. E. (2d), 906; Bosjnak v. Superior Sheet Steel Co. (1945), 145 Oh St 538, 31 O. O. 188, 62 N. E. (2d), 305; Wellman v. East Ohio Gas Co. (1953), 160 Oh St 103, 51 O. O. 27, 113 N. E. (2d), 629. It was likewise that aspect of the duty of ordinary care with which this court was concerned in the Sieraski case, where it was pointed out “that the platform was known by appellant but unknown by appellee to be dangerous and unsafe; and that appellant failed to warn appellee of such, hazardous condition.” 119 F. (2d), at page 710.

If Ford’s liability in the present case were based upon a failure to warn, the Ohio law would clearly require decision in Ford’s favor. “Where the premises upon which construction work is to be performed by a contractor remains under the control of the principal employer while work is in the course of performance, a servant of the contractor is an ‘invitee’ and as such entitled to recover from the principal employer for any injury which he may sustain by reason of the abnormally dangerous condition of the premises, only if the principal employer has and the servant has not actual or constructive notice of the existence of such condition.” Davis v. Charles Shutrump & Sons Co. (1942), 140 Oh St 89, Syl. 1, 23 O. O. 299, 42 N. E. (2d), 663. There was no hidden defect or danger here. That the work of laying the flooring was proceeding simultaneously with the overhead painting was a fact as obvious to the plaintiff as to Ford. Indeed, both the plaintiff and his foreman stated that they had observed the floor laying work in progress.

Not its failure to warn Tomlinson, however, but its affirmative action in arrainging to have the floor laying and overhead painting proceed together was the basis of Ford’s liability as submitted to the jury. As to that, the Ohio law is not so clear. Yet the decision of the Supreme Court of Ohio in Schwarz v. General Electric Realty Corp., 163 Oh St 354, 56 O. O. 319, 126 N. E. (2d), 906, rendered after the present case was decided in the district court, directly points to the conclusion that Ford was entitled to judgment under the law of Ohio.

In that case the contractor’s employee was injured when a crane with which he and fellow workers were unloading steel came in contact with an electric power line. The immediate cause of the accident was the negligence of one of the contractor’s other employees. The plaintiff stated that he had not seen the wire and had not been warned of its potential danger. The court held that the defendant owner had performed its duty of exercising ordinary care by having previously warned the plaintiff’s employer that the power line was energized.

In the present case, since the simultaneous progress of the painting and floor laying was obvious, there was as we have said no duty to warn the plaintiff of the situation, and therefore much of what is said in the Schwarz case is not here relevant.

But it clearly appears in the court’s statement of the case in the Schwarz opinion that it was the defendant owner and occupier of the plant which had, through its resident engineer, “designated the unloading site” which was “directly under” the high-voltage power line. Moreover, it appears in the opinion that one of the errors complained of was the exclusion of additional evidence on this point, which the plaintiff would hardly have offered except as evidence of the defendant owner’s negligence. The court rejected the contention tersely: “The plaintiff claims also that the trial court erred in excluding evidence offered by the plaintiff that defendant’s agent had directed that the steel beams be unloaded in the area of the accident. This was not a controversial issue, and the evidence, if admitted, would have been merely cumulative. There was no prejudicial error in this respect.” 163 Oh St page 360-361, 56 O. O. page 322, 126 N. E. (2d), at page 910.

In the present case, as in the Schwarz case, the immediate cause of the accident was the negligence of employees of an independent contractor, over whom the defendant exercised no such control of the method or manner of their work as to make it liable under the doctrine of respondeat superior. In the Schwarz case as in this the defendant owner had directed that the plaintiff’s work be carried on in an area where an accident occurred which would not have occurred if the work had been carried on elsewhere on the premises. In the Schwarz case the accident occurred because of proximity to a high-tension wire. In the present case the accident occurred because of proximity to the floor' laying operations. Ford was under a duty no greater than was the defendant in the Schwarz case to foresee that other employees of the independent contractor would be negligent. We conclude that Ford violated no duty to the plaintiff under the law of Ohio.

The judgment of the district court is set aside and the case is remanded for the entry of a judgment in favor of the defendant.

      . The parties will be denominated as in the court below, and the defendant Ford Motor Company will sometimes hereinafter be referred to as “Ford,”

      . The instructions actually given to the jury with respect to this theory of liability were as follows:
      “As it seems to me the question of Ford Motor Company’s legal liability comes down to whether you believe the evidence before you that it, as the owner and occupier of the property, through its employees, having contractually reserved the right of control and coordination of the work of the contractors, and thus charged with furnishing a reasonably safe place to work, and of seeing to the reasonably safe coordination of the work of the various kinds of trades as it progressed,—failed in its duty to exercise ordinary care to the extent of foreseeing that having the floor layers work beneath the painters of the sprinkler pipes at the same time, as testified by Dean and Knorr, presented some degree of risk or hazard; and whether in such situation you believe from the evidence that Ford, in the exercise of due care through its responsible employees, should have given some warning or instruction to Long Painting Company’s workmen, or should have seen to it that some safety measures were taken or adopted by it, or its subcontractors, respecting the dangers reasonably to be foreseen if ropes from the scaffold should hang too far down while the hoist truck was dumping blocks for flooring in the same area and at the same time.
      “If you do so conclude, do you further believe or find from the evidence that such failure upon the part of Ford directly caused or directly contributed, jointly with negligence of Jennison-Wright and Ruffin, to the plaintiff’s accident? If so, the Defendant Ford would be liable.
      “Now, I do not say to you that because Ford retained control and direction of the work and its coordination that it was responsible for every negligent manner in which the subcontractors carried out their respective jobs, or that in all circumstances was responsible for the safety of subcontractors’ employees. Ford’s witnesses deny that they had anything to do with ordering or bringing the floor-layers and the painters together; they say that Ferguson, the prime contractor, had that responsibility and did so, in keeping with its contract. And, of course, if you conclude that Ford had nothing to do with it and exercised no control or direction over such a situation as existed here, it cannot be held responsible.

        “Your consideration and determination respecting Ford’s fault as the cause of this accident is limited to the precise situation which I have submitted to you. It is your province to resolve the facts in evidence in the interest of determining the probable truth respecting Ford’s liability in that situation.”
      The theory was repeated in somewhat different language, as follows:
      “Was the Ford Company, through its Resident Engineer and other employees, at fault in failing to so coordinate the work in progress at the point of the accident when, in the exercise of ordinary care, they could, or should, have foreseen a potential hazard in painters using a tooth-pick plank, with surplus rope ends hanging down at the same place and time when men were dumping wood blocks from a hoist truck in preparation for laying the floor under the area where the Plaintiff and his fellow workers were painting the sprinkler pipes, and if so, was the Defendant Ford’s failure in that respect the proximate or direct cause of the accident?
      “To permit recovery in this case it is not essential that Defendant Ford’s negligence be found to be the sole cause of the Plaintiff’s injuries, but, if you find from the evidence that negligence of Ford, and negligence of Jennison-Wright’s men and Ruffin, or either of them, jointly constituted the proximate or efficient cause of Tomlinson’s injuries, the Defendant Ford may be held liable in such event for the negligence.
      “However, if you find that Ford was negligent, but also conclude that the sole efficient cause of the accident was the intervening negligence of Jennison-Wright and Ruffin, or either of them, Ford would not be liable.”

      . The law of Ohio Supreme Court decisions since January, 1858, has been in the syllabus, written by the court, Rule VI, 94 Oh St. ix.; 5 Oh St v; cf. 6 Oh St. iii. But we are enjoined to read the syllabus with reference to the facts and issues presented in each case. Williamson Heater Co. v. Radich (1934), 128 Oh St 124, 190 N. E., 403. A per curiam opinion of the Ohio Supreme Court has the status of a syllabus. Thackery v. Helfrich (1931), 123 Oh St 334, 175 N. E., 449. By contrast, the syllabus of an Ohio Court of Appeals decision has no special dignity and has been held inferior to its accompanying opinion. Carruthers v. Kennedy (1929), 121 Oh St 8, 11, 166 N. E., 801.

      . Although the Ohio Supreme Court, taking judicial notice of Ohio statutes, would presumably apply any that were relevant. State ex rel. City Loan & Savings Co. of Wapakoneta V. Taggart (1938), 133 Oh St 382, 11 O. O. 34, 14 N. E. (2d), 10.


author: By THE COURT. By THE COURT.

text:
    STATE, ex rel. CHAPMAN, Plaintiff, v. LOWERY et, OHIO PARDON AND PAROLE COMMISSION, Defendants.
    Ohio Appeals. Second District, Franklin County.
    No. 5403.
    Decided December 14, 1955.
    William H. Chapman, Columbus, for himself.
    Hon. C. William O’Neill, Atty Geni., Roger B. Turrell, Asst. Atty. Geni., Columbus, for defendants.
   OPINION

By THE COURT.

Submitted on motion of the defendants, the same being filed by C. William O’Neill, Attorney General for the State of Ohio, seeking an order dismissing the action upon the following grounds:

(11 Petitioner does not show a cause of action.

(2) Plaintiff has no justifiable interest.

The record reveals that the action is one in mandamus brought by William H. Chapman who alleges that he is a citizen of the United States and resident of Detroit, Wayne County, State of Michigan

The petition alleges that the defendants are the duly and regularly appointed members of the Ohio Pardon and Parole Commission and that as such they have refused, failed and neglected to make, adopt and publish the necessary rules for its organization and procedure as required by §2965.05 R. C. It prays for an alternative writ commanding the defendants to perform these duties.

Decided February 9, 1956.

In support of the first ground counsel for defendants urges that such rules and regulations have been duly adopted and that the same were filed with the Secretary of State on August 15, 1941. This is a matter of defense requiring proof to establish the same and therefore may not be considered at this time.

The second branch of the motion is grounded upon the alleged fact that the plaintiff is not a party in interest and therefore may not bring this action. While it is quite true that he is seeking to require the respondents to perform a public duty, the Ohio authorities are not in accord with the rule pronounced in other states that a private citizen may not enforce a public duty, but hold such a duty may be enforced if it appears that the plaintiff has an interest in the subject of the action. State, ex rel. v. Nash, 66 Oh St 612. Sufficient interest is shown by the plaintiff for the petition alleges that he is incarcerated in the Franklin County jail by reason of a void detainer; that he is being held as a parole violator and that the proper rules have not been promulgated by the respondents in order to make such a determination. We conclude that sufficient interest has been shown by the plaintiff to entitle him to maintain this action; hence the second branch of the motion will also be overruled.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.

No. 5403.

OPINION

By THE COURT.

This is an action in mandamus wherein the plaintiff is seeking an order commanding the defendants to make, adopt, and publish certain rules and regulations in accordance with §2965.05 R. C. The defendants demur upon the following grounds:

(1) That such rules have been adopted in compliance with said section of the Revised Code.

(2) That the petition does not allege that a demand was made upon the defendants to perform said duty and a refusal thereto.

Although the defendants have attached to their demurrer their “Exhibit A” which is a certified copy to “Rules and Regulations” adopted by the Board, the question of compliance may not be raised on demurrer, for the demurrer admits all well pleaded facts contained in the petition. The question is therefore not properly raised.

The second branch of the demurrer is also not well taken for the reason that the plaintiff is seeking the performance of a public duty and a prior demand for such performance is not required. State, ex rel. Hepperla v. Glander, 94 Oh Ap 187.

The demurrer is overruled. Leave is granted to answer by February 25, 1956.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By HURD, J:

text:
    NATHERSON, Estate of, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23715 and 23716.
    Decided May 23, 1956.

      Halle, Haber, Berick & McNulty, for appellees.
    Walter & Haverfield, D. Rusk Haverfield, Ben Bailey, of Counsel, for appellant.
   OPINION

By HURD, J:

These two separate actions are here appealed on questions of law from judgments of the Probate Court of Cuyahoga County whereby the petitioners were authorized to present claims against estate of Dr. Frank M. Natherson, formerly a practicing physician, more than four months after the appointment of his widow, Esther M. Natherson, as the administratrix of his estate.

The petitioners, Evelyn Kenney and Harold Kenney, wife and husband respectively, filed substantially identical petitions in Probate Court. The claim of the wife, Evelyn Kenney, is for damages arising out of alleged malpractice by the decedent who is charged with negligence in the performance of a gall bladder operation upon her on or about February 17, 1954. The claim of the husband, Harold Kenney, is for loss of her services. The cases are considered together because identical issues are involved, it having been stipulated that the testimony introduced upon the hearings in Probate Court should apply equally to both cases.

Dr. Natherson died June 19, 1954. The administratrix was appointed July 13, 1954. On March 25, 1955, over eight months later, the plaintiffappellees filed their petitions seeking authority to file claims against the decedent’s estate. Each of said petitions alleged that the claims were not presented to the Administratrix within the time prescribed by law for the following reasons:

1. “Claimant did not have actual notice of the decedent’s death or of the appointment of his Administratrix within sufficient time to present her claim within the period prescribed by §2117.06 R. C.” and

2. “Decedent willfully and maliciously concealed from her the malpractice which he had performed upon her, so that she did not learn until recently of the tort committed against her by the decedent.”

Hearings were held in Probate Court July 18, 1955 and on October 24, 1955, the Probate Court entered orders allowing the presentation of the claims pursuant to the petitions.

The appellant assigns as error that such orders are contrary to law and against the weight and sufficiency of the evidence adduced at the trial.

Sec. 2117.06 R. C. provides that all claims shall be presented within four months after the appointment of the executor of administrator.

Sec. 2117.07 R. C. authorizes the Probate Court to allow the filing of a “late claim,” that is, after four months, if:

“(A) The claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by §2117.06 R. C.
“(B) The claimant’s failure to present his claim was due to the absence of the executor or administrator from his usual place of residence or business during a substantial part of such period or was due to any wrongful act or statement on the part of the executor or administrator or his attorney.
“(C) The claimant was subject to any legal disability dining such period or any part thereof.”

Appellant claims that the foregoing provisions of §2117.07 R. C. are exclusive remedies and that if appellees have not qualified themselves under one of the provisions thereof, they are forever barred from filing a “late claim.”

The appellees claim that they have qualified themselves under Subsection (A) of §2117.07 R. C. and also that decedent’s claimed concealment of his alleged malpractice tolled the running of the statute against appellees.

The claim of the appellees that they are qualified under Subsection (A) of §2117.07 R. C., in that they did not have actual notice of the decedent’s death, cannot be sustained as, according to their own testimony set forth in the record, the appellees had actual notice of decedent’s death at or about the time thereof by reading newspaper articles published at the time of that event. The fact that their knowledge was acquired from reading newspaper articles does not proscribe it from being actual notice within the meaning of the statute. The statute does not define or prescribe any particular form of notice. The provisions of the statute are satisfied if actual notice which amounts to knowledge of the fact is acquired by the parties. In this case, both parties testified not only that they knew of the death of Dr. Natherson but because of that knowledge, proceeded to look for another family physician. Nor would it be material as to whether or not the appellees had knowledge of the appointment of the administrator of the decedent’s estate as it has been held by our Supreme Court in In re Estate of Marrs, 158 Oh St 95, 48 O. O. 46, 107 N. E. (2d) 148 (1952), that knowledge of either death or the appointment of an administrator is sufficient and that such knowledge would preclude relief. The Court held in that case that the word “or” as used in §10509-134 GC (now §2117.07 R. C.) is used in its ordinary sense or meaning as a disjunctive, and to substitute the word “and” for “or” would be to attribute to the General Assembly the doing of a useless thing. For a discussion of the subject of notice and knowledge acquired by reading newspaper articles reporting the death of a decedent see In re Estate of Hamlin, 40 O. O. 1, 54 Abs 257, 87 N. E. (2d) 691.

The appellees’ second argument for affirmance of the decision of the Probate Court obviously does not constitute a basis for relief within the provisions of §2117.07 R. €., for it is not alleged or argued that there was any wrongful act on the part of the administratrix or her attorney wdiich would qualify the petitioners under Subsection (B) of the statute. Here it is claimed that there was “concealment” on the part of the decedent for which no relief is provided by the nonclaim statute as an examination of Subsection (B) clearly shows. Nor is there any claim that the parties were subject to any legal disability under Subsection (C) of the statute.

In our view of the record in this case, we do not find that the decedent was guilty of attempting to conceal or cover up any failure on his part with respect to the gall bladder operation performed on the petitioner, Evelyn Kenney. It appears, as shown by the record, that the general conduct of the deceased physician was such as to negative the idea of fraud or concealment although it is also clear that he did not explain to the patient the precise nature of her post-operative condition. Neither is it shown by the record that he knew the exact nature of that condition. Also his act of calling in another surgeon to perform a second operation rather than attempting to perform it himself tends to disspell a fraudulent intent to conceal the reasons for the failure of the first operation. However, in our opinion, this is immaterial because of the limitations provided by the statute and our interpretation of the decided cases. Secs. 2117.06 and 2117.07 R. C. and the predecessor statutes §§10509-112 and 10509-134 GC, have been variously designated as non-claim statutes or statutes of limitations. Beach v. Misner, 131 Oh St 481, 3 N. E. (2d) 417, 6 O. O. 155; In re Estate of Erbaugh, 73 Oh Ap 533, 57 N. E. (2d) 294, 29 O. O. 177, and Conrad v. Sarver, 97 Oh Ap 199, 124 N. E. (2d) 749, 55 O. O. 453.

In some other jurisdictions a clear distinction is made between nonclaim statutes as such and general statutes of limitation. For instance, in the case of Yniestra v. Tarleton, 67 Ala. 126, it is held that the general provisions of the statutes of limitations are not applicable by analogy to a nonclaim statute. We think the designation of the statutes is not important. The intention of the legislature in the enactment of statutory law must be the controlling factor. Obviously the purpose of §2117.07 R. C., as amended from time to time and as it now stands, is to promote the prompt and expeditious settlement of estates of decedents. Consequently, the statute requires that all claims, with certain exceptions not here applicable, must be presented to the executor or administrator within four months of the appointment unless the claimant files in the Probate Court a petition seeking permission to file a belated claim which may be granted upon proof of one or more of the grounds for relief prescribed in the statute.

Applying this principle to the facts of the instant case, it is quite obvious, as heretofore indicated, that petitioners have failed to prove any one of the grounds requisite for relief under the provisions of the statute. In our opinion the provisions of this section of the Code, (§2117.07 R. C.) provide an exclusive remedy for permission to file claims against decedents’ estates after the expiration of four months from the time of the appointment of the administrator or executor. We think it unnecessary to cite all of the cases which support this conclusion. The following Ohio Supreme Court decisions are sufficiently demonstrative of the proposition:

Beach v. Mizner, 131 Oh St 481; State, ex rel. Fulton v. Coburn, 133 Oh St 193, 12 N. E. (2d) 471, 10 O. O. 249; Pierce v. Johnson, Exr., 136 Oh St 95, 23 N. E. (2d) 993, 16 O. O. 34; Ins. Co. v. Realty Co., 143 Oh St 564, 56 N. E. (2d) 168.

It is perhaps for this reason that petitioners seek to justify their contention upon general equitable principles outside of the statute and cite the case of Sugar River Bank v. Fairbank, et al., 49 N. H. 131. This case is also cited in 34 Corpus Juris Secundum 182, Sec. 407. However, this case does not reflect the Ohio view and represents the minority view in other jurisdictions. Immediately preceding this proposition, 34 C. J. S. 182, is the following paragraph:

“It is generally held that unless otherwise provided by statute, the fraudulent concealment of the existence of a claim or cause of action, either by decedent in his lifetime * * * does not affect the operation of the nonclaim statute or defer the beginning of the statutory period to the time when the facts are discovered: * * *”

Cited in support are: Burling v. Alvord, 110 N. W. 683; 77 Neb. 861: 24 C. J. p. 340, note 25; Fragd v. Fragd, 175 Ill. App. 246; Roberts v. Spencer, 13 N. E. 129, 112 Ind. 85.

From the foregoing authoritative decisions and text, we conclude that the allowance of claims after four months must be in conformity with the statute and not predicated on general equitable principles outside of the purview of the statute.

One further question remains to be considered. That is the claim of the petitioners that the fraudulent concealment by decedent of his alleged negligence affords a remedy which the petitioners may employ on the ground that the statute of limitations is not tolled until the fraud or concealment is discovered. The obvious answer to this claim, is, we think, that the action does not have its inception in fraud but rather is founded upon negligence or malpractice. The statute of limitations, providing for an action based upon fraud, is not here applicable for the reason that it is the rule of law that the provisions of §2305.09 R. C. (former §11224 GO which provides that an action shall not accrue until the fraud is discovered, by its terms applies, only where fraud is the ground or gist of the action. This has been the holding of the courts of Ohio since the early case of Fee’s Admr. v. Fee, 10 O. 470 (1841) the syllabus of which states:

“A fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations.”

To the same effect see also:

Howk v. Minnick, 19 Oh St 462 (1869); Minster Loan & Sav. Co. v. Laufersweiler, 67 Oh Ap 375, 36 N. E. (2) 895, 21 O. O. 326; Squire v. Guardian Trust Co., 79 Oh Ap 371, 35 O. O. 144, 47 Abs 203.

We are well aware that this view of the law is such that in the instant case the petitioners are precluded from a right of action for negligence or malpractice but this is in accord with the established law of Ohio on the subject and we are not privileged by judicial decree to enlarge upon the plain provisions of legislative enactment.

In considering the legislative intent with respect to the enactment of §2117.07 R. C., it seems to be clear that the legislature, in limiting Subsection (B) to “any wrongful act or statement on the part of the executor or administrator or his attorney,” did not intend expressly or by implication to extend the provisions of the Act to any wrongful act or statement upon the part of the decedent. If it was so intended, it is reasonable to assume that the legislature would have so provided. We may not by judicial determination extend the benefit of that provision beyond its clearly stated limitations.

It is our conclusion, for the reasons stated, that the judgment of the Probate Court in allowance of the claims of petitioners must be reversed and the cause remanded to Probate Court with instructions to deny the application of petitioners for allowance to file the “late claims.”

Exceptions. Order see journal.

KOVACHY, PJ, SKEEL, J, concur.


text:
    YOUNG ISRAEL ORGANIZATION OF CLEVELAND, Relator, v. DWORKIN et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23355.
    Decided March 14, 1956.
    Simon Amdur, for relator.
    Clifford H. Bernard, for respondents.
   OPINION

By HURD, J:

The relator, The Young Israel Organization of Cleveland, a nonprofit corporation, organized for religious purposes, has invoked the original jurisdiction of this Court for the purpose of obtaining a writ of mandamus to require the respondents, officials of the City of South Euclid, Ohio, to issue to the relator a permit for temple congregational or church purposes.

Respondents are the duly qualified and acting members of the South Euclid Zoning Board of Appeals and the duly appointed acting Building Director of the City of South Euclid, Ohio.

From stipulations entered into between the parties and accompanying exhibits which include the zoning ordinance of the City and amendments, the zoning map, which is made part of the ordinance, and other documentary evidence, we find certain salient facts condensed as follows:

The application of relator is for a permit to build a synagogue on a parcel of land consisting of six lots, having a frontage of 300 feet on Cedar Road in the city of South Euclid extending back of equal width 163 feet for a total area of 49,500 square feet, or more than an acre in extent.

Cedar Road is a county highway seventy feet in width, the center line of which is the south boundary of the City of South Euclid extending from the westerly limits through to the easterly limits of the City. At the present time the paved portion of Cedar Road in front of the premises is twenty-four feet in width. Directly across Cedar Road is the City of University Heights. Thus the south boundary of South Euclid forms the north boundary of University Heights.

It is stipulated that the north side of Cedar Road from Warrensville center road eastward in the City of South Euclid to the corner of Miramar Boulevard is vacant land except for a single dwelling on the northwest corner of Miramar Boulevard and Cedar Road. On the northeast corner of Miramar Boulevard and Cedar Road is a single family dwelling, then to the east of that dwelling is the vacant property involved in this proceeding. The property in South Euclid surrounding the three sides of the property in question is entirely occupied by single family dwellings but across the road in the City of University Heights from Warrensville Center Road eastward is a golf course which runs to Miramar Boulevard. Thereafter, extending for many hundreds of feet eastward in the City of University Heights and directly across Cedar Road from the property in question is a large apartment house development containing approximately four multiple dwelling buildings and further eastward on Cedar Road in University Heights is a Masonic Temple. Also, almost directly across Cedar Road in University Heights and to the rear of the multiple family dwellings is Wiley Junior High School which presently is being used by a branch of relator’s congregation for temporary church services.

At all times mentioned in the petition and amended petition Ordinances Nos. 359, 2107, 2127 and 21-53 of the City were in full force and effect and the property in the petition described is classified in a U-l single family dwelling use district. However, in June of 1952, the six lots, as were others eastward from relator’s site, were zoned for a U-2 or two family use as appears by the zoning map and correspondence in evidence.

After the application for a permit for a synagogue was made, the City changed the classification from U-2, two family residence use, to U-l, single residence use, and on May 4, 1953, also, after the application for church uses was made, the City adopted an ordinance as an emergency measure to change the zoning ordinance with respect to auto parking which would require one space for each four seats instead of one space for each ten seats as theretofore provided.

The first evidence shown in the exhibits of the refusal to grant relator’s application for a permit is contained in a letter of the City Zoning and Planning Commission of South Euclid dated November 20, 1952, signed by the Chairman, in which the Commission advises that the request for a rezoning of the property should be denied. At the same time it is stated in the letter that “the entire Zoning and Planning Commission feel that a temple or synagogue in South Euclid would fill a real need for some of our residents.”

Prior to June 12, 1953, the respondent City, as appears by exhibits in evidence, advised relator to make application for a rezoning of the lots in question from U-2 to U-3 uses for temple or congregational purposes. On June 12, 1953, relator, in writing, requested a tentative building permit to erect a synagogue on the same property. Again on November 4, 1953, relator applied in writing for a permit and submitted to the City’s Building Department complete plans and specifications. No objection was raised as to the plans and specifications as such, but on April 7, 1954, the City, through its Planning and Zoning Commission, denied Relator’s application.

Thereafter, within the time prescribed by ordinance, relator perfected its appeal to the Board of Appeals on Zoning and Building Standards, a body established by ordinance of the City of South Euclid to hear appeals from the orders of the building authorities, and on July 9, 1954, the Board of Appeals rendered its decision sustaining the City Planning Commission and the Building Commissioner in refusing to issue the permit.

The record also shows that previously the President of Council of South Euclid had advised the President of relator that the Zoning and Planning Committee of Council had recommended that the request of relator for a change of zoning be denied, as appears by letter dated March 24, 1953 (Exhibit 5-F).

It is stipulated that members of relator are adherents of the orthodox segment of the Jewish faith and as such they are prohibited from performing any manner of labor on the Sabbath and on holidays and using any form of transportation, except walking to the place where their religious services are held on those days. Other services are held in the morning and evening of each day but these services are sparsely attended. Holidays and Festivities are observed by abstinence from all manner of work and the day is spent in meditation and study. The Sabbath and Holiday begin at sunset of one day and end at sunset of the following day.

Because they adhere to this faith their places of worship must be within walking distance of their homes. The site on which relator desires to build is within walking distance of part of the members of the relator organization.

Those members who cannot, by reason of distance, attend Sabbath and Holiday services by walking to the site in question, will continue to use the facilities now in existence (at other locations), except Wiley Junior High School, which will be closed in the event the site in question may be used.

The members of the relator organization believe that their youth be taught, educated and trained to follow in their footsteps and for that reason it is intended that the proposed building will be used for teaching and training of the youth of the relator organization members. Therefore, the building plans as submitted by the respondents designate certain rooms in the proposed building as meeting rooms, club rooms and class rooms for the purpose of study and training.

The relator’s building plans provide for a one-story building 120 feet long from a 10 foot setback at the easterly end of the building site and 85 feet at its deepest part, and a 30 foot setback fronting on Cedar Road. The westerly part of the site is devoted to auto parking spaces as is the rear 50 feet of the entire site. There is provision for eighty-one auto parking places. Suitable landscaping is provided as appears from the plans and specifications with shrubbery on the side and rear lines separating the area from neighboring properties.

On August 2, 1928, original Ordinance No. 359 was adopted by the Village of South Euclid, now a City, establishing a comprehensive plan of zoning. Certain amendments were thereafter adopted. An amendment adopted in October of 1951 by Ordinance No. 2107 provided for the creation of a Board of Zoning and Building Standards, Board of Appeals, a Board separate and apart from the presently existing City Zoning and Planning Commission. The Appeals Board was given power to decide any question involving the interpretation of the ordinance and to grant variances from the strict letter of the ordinance in instances of unnecessary hardship.

By the original ordinance, the entire area of the municipality is divided into six classes of use districts from U-l to U-7, inclusive. We are concerned here with three only as follows: U-l provides for single family dwellings, public parks, water towers and reservoirs, suburban and interurban electric railway passenger stations and rights of way, not including railway yards, and farming, non-commercial greenhouses, nurseries, and truck gardening; U-2, which provides for two-family dwellings; U-3 provides for apartment houses, hotels, churches, schools, public libraries, museums, private clubs, community center buildings, hospitals, sanitariums, public playgrounds and recreation buildings and a city hall and courthouse. (Emphasis added.)

Section 11 of the Ordinance, entitled “Use District Exceptions,” provides in part as follows:

“The City Planning and Zoning Commission may in the event of property being allotted which was undeveloped at the time this Ordinance was passed and in other specific cases, after public notice and hearings and subject to such conditions and safeguards as the commission may establish, determine and vary the application of the use district regulations herein established, which permission shall be confirmed by resolution of the Council before becoming effective, as follows:

(c) Permit in a use district any use deemed by the Commission in general keeping with the uses authorized in such district.” (Emphasis added.)

The action of the City in refusing a permit to the relator to erect a synagogue of the type and kind set forth in the application, as shown by its plans and specifications, is challenged as being unreasonable and arbitrary as applied to relator’s lands. It is contended that the ordinance as it relates to relator’s land and the action of the City in respect thereto bears no substantial relation to the public health, safety, morals or general welfare of the community and is, therefore, in derogation of the constitutional rights of the relator and an unwarranted interference therewith.

The City defends on the ground that mandamus is not the proper remedy and that its action in denying the application of relator, the right to use its property for church purposes, does not violate constitutional rights because by ordinance it places churches in a U-3 residential classification instead of a U-l residence classification.

In considering these conflicting claims, it is well to note the efforts of relator to secure relief from the various governing bodies of the City. The evidence shows that the City conceded the need for a temple or synagogue for some of its residents, as indicated by the letter in evidence of the City Zoning and Planning Commission of November 20, 1952. The various legally constituted agencies of the municipality notified relator of their refusal to grant permission through written communications in chronological order as follows: (1) By the City Zoning and Planning Commission November 20, 1952 (Exhibit 5E); (2) By the Building Commissioner June 12, 1953 (Exhibit 40; (3) By the City Council through the President with authority of the Zoning and Planning Committee of Council March 24, 1953 (Exhibit 5F); (4) By the City Planning Commission April 7, 1954 (Exhibit 6D); (5) By the Board of Appeals on Zoning and Building Standards July 9, 1954 (Exhibit 7).

The record indicates, as disclosed by the exhibits, that public hearings and negotiations concerning these applications extended over a period of about two years.

The first question presented is whether mandamus is a proper remedy. In this connection it should first be noted that the constitutionality of the zoning ordinance is not being challenged as a whole as was the case in Village of Euclid, Ohio v. Ambler Realty Company, 272 U. S. 365, 71 L. Ed. 303, and in Lieux v. Westlake, 154 Oh St 412. Rather, the challenge here is to the constitutionality of the municipal ordinance as it applies only to the use of relator’s lands for church purposes as was the case in State ex rel. v. Joseph, 139 Oh St 229 and State ex rel. v. Bruggemeier, 97 Oh Ap 67. It has been held that mandamus is a proper remedy to compel the issuance of a permit where the constitutionality of the ordinance is assailed when applied to particular lands. It was so held by this Court in the recent analogous case of State ex rel v. Bruggemeier, supra. In that case, the relator commenced an action in mandamus in the Court of Common Pleas wherein the writ was granted. On appeal to this Court, the judgment was affirmed and the motion to certify was overruled by the Supreme Court February 17, 1954. In State ex rel. v. Joseph, supra, the action of the Court of Appeals in ordering the issuance of a peremptory writ of mandamus to grant a special permit to the relator for the erection of a church was affirmed. The doctrine set forth in these cases is in accord with the great weight of authority throughout the country. Thus in the annotations entitled “Attack on Zoning Regulations,” 136 A. L. R. at page 1388, it is stated in part:

“The procurance of a building permit from a designated administrative officer is frequently required by statute or ordinance as a condition to the right to erect or alter a building or other structure upon real property. In many instances such a permit is refused by the administrative official applied to, on the ground that the erection of the proposed building or the proposed alteration of an existing building would constitute a violation of the applicable zoning ordinance. As is shown in 34 Am. Jur. 961, Mandamus, paragraph 188, the view is generally taken that where the foregoing situation is presented, the constitutionality or validity of the zoning enactment relied upon as a ground for refusing a permit may be raised in a proceeding in mandamus to compel the issuance of a permit.” The text is supported by numerous authoritative decisions.

There is a division of authority in reported cases as to whether the relator must exhaust administrative remedies before appealing to the courts for relief. Authoritative cases in Ohio are to the effect generally that exhaustion of administrative remedies, where such are provided by ordinance, must be had before resort to the courts for relief Lieux v. Westlake, State ex rel v. Joseph, State ex rel. v. Bruggemeier, supra.

In this respect the instant case must be distinguished from the recent case of the Heights Jewish Center v. Carl M. Haake et al, recently decided by this Court, wherein an application for a writ of mandamus was denied because relator had failed to exhaust administrative remedies before seeking a permit which constituted a variance on the ground of hardship. (Case No. 23488, Court of Appeals, Eighth Appellate District, decided February 8, 1956.) This case also must be distinguished from the recent case decided by this Court November 23, 1955, entitled Curtis v. City of Cleveland et al. (Case No. 23398), which was an action in equity where no permit was requested but a mandatory injunction was sought in an action for declaratory judgment, it being there held that application to the city authorities for a change of zoning was not a prerequisite under the circumstances of that case before application to the court for relief.

In the instant case, the record shows that all administrative remedies provided for by the Ordinance were completely exhausted. The exhaustion of such remedies does not constitute a bar to this action. State, ex rel v. Joseph, supra. Consequently, we hold that this case comes properly before this Court by way of proceeding in mandamus.

We come now to a consideration of the second and more important question as to whether the denial of relator’s application to erect a temple of worship of the kind and character described has any reasonable relationship to the public health, safety, morals and general welfare as applied to relator’s land. This necessarily involves also the question of the constitutionality of the ordinance as applied to relator’s land for church purposes.

In Bassett' on Zoning (1940 Edition) at page 200, under subject, Churches, it is stated:

“Practically all zoning ordinances allow churches in all residence districts. It would be unreasonable to force them into business districts where there is noise and where land values are high, or into dense residence districts (in cities which have established several kinds of such districts). Some people claim that the numerous churchgoers crowd the street, that their automobiles line the curbs, and that the music and preaching disturb the neighbors. Communities that are too sensitive to welcome churchés should protect themselves by private restrictions.”

In Yokley, Zoning Law and Practice (Second Edition 1953), Vol. 2, Section 222, at page 110, the author states in part:

“Since the advent of zoning, churches have been held proper in residence districts. Both the early decisions and the more recent ones frown on the exclusion of churches from residence districts, in spite of the temporary inconvenience sometimes experienced in connection with the parking of automobiles and other inconveniences incident to the gathering of crowds in residence areas.”

In Board of Zoning A. v. Decatur, Ind. Co. of Jehovah’s W., 117 N. E. 2d 115, at page 119, the Supreme Court of Indiana, speaking through Bobbitt J., states:

“The law is well settled that the building of a church may not be prohibited in a residential district. State, ex rel. Roman Catholic Bishop of Reno v. Hill, 1939, 59 Nev. 231, 90 P. 2d 217; State, ex rel. Synod of Ohio v. Joseph, 1942, 139 Oh St 229, 39 N. E. 2d 515, 138 A. L. R. 1274; Ellsworth v. Gercke, 1945, 62 Ariz. 198, 156 P. 2d 242; North Shore Unitarian Soc. v. Village of Plandome, 1951, 109 N. Y. S. 2d 803, 200 Misc. 524; Yokley, Zoning Law and Practice (2d Ed.) Vol. 2, Section 222, p. 110; 58 Am. Jur., Zoning, Section 125, p. 1010.”

In O’Brien v. City of Chicago, 347 Ill. App. 76, 105 N. E. 2d 917, the court declares at page 920:

“In this respect it is well to note that of the many cases we have examined, there is not a single instance, with the exception of a decision by an intermediate court in California, Corporation of Presiding Bishop v. City of Porterville, 90 Cal. App. 2d 656, 203 P. 2d 823, where the courts have sustained prohibitions on the erection of churches in any area. State, ex rel. Howell v. Meader, 109 W. Va. 368, 154 S. E. 876; State v. Hill, supra; State v. Joseph, supra; City of Sherman v. Sims, supra; Ellsworth v. Gercke, 62 Ariz. 198, 156 P. 2d 242; Pentecostal Holiness Church v. Dunn, supra; State v. City of Tampa, supra. Obviously the courts feel that wherever the souls of men are found, there the house of God belongs.”

Relator’s property was undeveloped at the time the original ordinance was adopted in 1928 and is still undeveloped. According to the ordinance, the City Zoning and Planning Commission has the power in the event of property being allotted which was undeveloped at the time the ordinance was passed, and in other specific cases, to permit in a use district any use deemed by the Commission in general keeping with the uses authorized in such district subject, however, to the approval of Council.

The evidence here shows that the City Zoning and Planning Commission refused to grant a special permit or to vary the application of this use district for-church purposes although it had the power to do so with the approval of the Council in consonance with the administrative provisions of the ordinance. Hence, the action of the Zoning and Planning Commission and the action of the Zoning and Planning Committee of Council had the effect of denying administrative remedies under the use district exceptions provided by the ordinance. The zoning map shows that the City has in the past deviated from the strict line of use district classifications by erecting two schools in single family or U-l district classifications, in the case of Bayard School, about one-half mile from the site of relator’s land, and Lowden School, built in another part of the City. Such action was quite proper pursuant to authority and is mentioned only to show that the City has heretofore allowed exceptions and variations for school purposes.

There is no evidence here that the use of Relator’s property for temple purposes would substantially and permanently injure the appropriate use of surrounding property or lower its value, although it is claimed in the letter of the President of the City Council that residents in the area are opposed and that “off street parking space is insufficient and the adjacent dwelling would be isolated.”

Certain peculiar facts appear in relation to the ordinance and the action of the city authorities relating to it for it is quite clear from the provisions concerning U-l uses above set forth that if the applicant had applied for a permit to establish on the premises in question a farm, a nursery, a truck garden or a non-commercial greenhouse, the City, by virtue of the provisions of the ordinance, would be obligated to grant such permit since these uses are specificially allowed under Class U-l in addition to single family dwellings. Likewise, the ordinance permits on such premises a public park, a water tower or reservoir or even a suburban or interurban railway passenger station and right of way, not including railway yards. Of course, the three latter uses are now obsolete under present day conditions but an incongruous and absurd situation is presented when the property involved is subject to all of such uses under ordinance provisions while use for a church or temple of worship is denied.

Under such allowable provisions can it be said that a temple of worship is contrary to public morals? Can it be said that a church is contrary to public health, safety, morals or general welfare when such unusual and extraordinary uses are allowable under the ordinance? We think not.

Another fact peculiar to this case is the character of the development directly across the road from relator’s property in the City of University Heights. The golf course across the road is a commercial use, part of which has been sold for school purposes. It must be conceded that the character and growth of the adjacent property in University Heights has and will continue to have a definite influence upon the character of the entire neighborhood which cannot be controlled by the authorities of South Euclid. The City, by way of brief, argues that the relator should have purchased part of the golf course in University Heights or purchased property on Warrensville Center Road on which to erect a temple rather than on their side of the road. We think this is beside the point. It is begging the question to argue that a church or temple of worship would be proper if placed across the road from relator’s property but improper on respondents’ side of the road.

It should be observed that the ordinance permits churches in a residential district, but classifies churches in the same category as apartment houses and other buildings, mostly public in character, such as hotels, schools, public libraries, museums, etc., as set forth hereinabove. A comparison of the zoning ordinance of South Euclid with the 1922 Zoning Ordinance of the City of Euclid indicates that it is a copy of that ordinance in most every respect. Insofar as uses U-l to U-3 are concerned, it is in ipsissimis verbis for verification of which compare the language employed in respect to these uses with the language of the 1922 Euclid Ordinance as set forth in Euclid v. Ambler Realty Co., 272 U. S. 365, 71 L. Ed. 303, 47 Supreme Ct. Rep. 114, 54 A. L. R. page 1016. In State ex rel v. Joseph, supra, our Ohio Supreme Court, referring to the language of the Euclid v. Ambler Realty case, said in part relating to churches, at page 242:

“The Supreme Court of the United States, however, not only pointed out that it was simply validating the ordinance in its ‘general scope’ and not in detail, but, in addition, the court expressly removed from consideration that portion of the ordinance which restricted the use of property for church purposes, saying at page 385: '* * * there is nothing in the record to suggest that any damage results from the presence in the ordinance of those restrictions relating to churches, schools, libraries and other public and semi-public buildings * * *. For present purposes the provisions of the ordinance in respect of these uses may, therefore, be put aside as unnecessary to be considered.’ The Village of Euclid case, while deciding that commercial and industrial structures may, consistently with the Fourteenth Amendment, be excluded from residential districts, decides nothing with regard to the exclusion of humanitarian, public and semi-public uses like churches, schools and libraries.”

We think, also, the objection interposed with respect to traffic conditions by the Committee of Council is without substance in fact. As previously pointed out, the roadway at the location is seventy feet in width, thirty-five thereof being in the City of South Euclid and thirty-five feet in the City of University Heights, in addition to which eighty-one off-street parking spaces are provided. This proposition is well covered by the Supreme Court of Florida in State v. City of Tampa, 48 So. 2nd 78, a case where a building permit for a church had been refused on the ground that the space shown to be available for off-street parking was inadequate.

“•Thé contenton that people congregating for religious purposes cause such congestion as to create a traffic hazard has very little in substance to support it. Religious services are normally for brief periods two or three days in the week and this at hours when traffic is lightest—early in the morning, early in the evening and at 10:00 and 11:00 on Sundays. Many churches are like this one, in residential areas, where traffic is not heavy and where there are side streets and other facilities for parking. The church involved here is a small church which is shown to have ample off-street parking space for all ordinary purposes. It would rarely, if ever, require parking space on the street in front of the church. Even if rare occasions should require parking a few cars on the streets, we cannot say that a traffic hazard would be created. This is certainly a case in which the balance of convenience rule as to range in judgment might be applied. * * * There is another reason, no doubt the primary one, why the church is not bound by some of the regulations imposed on other institutions. In American life the family is the foundation on which democratic institutions are reared. The church and the school are but auxiliaries to the family. * * * No one knew this better than the Founding Fathers. Hence we say that when the church enters the picture different considerations actuate any and all spheres of regulation. * * *”

To the same effect, with relation to traffic, are the remarks of the Court of Indiana in Board of Zoning A. v. Decatur, Ind. Co. of Jehovah’s W., supra, wherein it is stated:

“It is no doubt true that automobile traffic often chokes the streets and endangers both the general and the traveling public. However, it is rarely, if ever, that people entering or leaving a church cause or contribute to traffic accidents. It would seem reasonable to assume that if regulation is necessary in the interest of the safety, convenience and welfare of the general public, that should be regulated which has a direct effect upon such general welfare. This can be, and is, done generally by traffic police, signs and other reasonable regulations imposed alike upon all persons using the streets in the vicinity of churches, without undue interference with the right of worship and free assembly.”
“When under the facts in this case, the welfare and safety of the people in the neighborhood is placed in the scales of justice on one side, and the right to freedom of worship and assembly is placed on the other, the balance weighs heavily on the side guaranteeing the right to peaceful assembly and to worship God according to the dictates of conscience, regardless of faith or creed.” (Emphasis added.)

The Zoning and Planning Commission asserts that it considers the six lots as too small, although an acre in total extent, upon which to erect a building of only one hundred twenty feet in length and eighty-five feet in depth. An examination of the maps and drawings in evidence shows only a comparatively small area for the erection of the building, leaving a comparatively large area for landscaping and parking purposes. Thus the claim that the area is too small has little or no substance in fact. When it is considered that these premises could be used as a matter of right for such unrelated uses as a farm, a truck garden, a nursery or a non-commercial greenhouse, which would necessarily require the use of buildings for such purposes, the action of respondents in refusing to grant a permit for a single story building to be used for congregational or temple purposes appears to be arbitrary and unreasonable.

It would appear here as stated in Noctow v. City of Cambridge, 277 U. S. 183, 187, 72 L. Ed. 842, 48 S. Ct. 447, that the action of the authorities “has no foundation in reason and is a mere arbitrary or irrational exercise of power, having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.”

Based upon the principles announced by the Supreme Court in State ex rel v. Joseph, supra, and upon the authority of the cases cited and relied on in that case and the principles and authorities announced by this Court in State ex rel v. Bruggemeier, supra, the action of the City Officials appears to be unreasonable and arbitrary.

State ex rel v. Joseph, supra, is a landmark case not only in Ohio but throughout the country, being most frequently cited and quoted with approval in authoritative decisions and in text authorities on the subject of zoning. The Supreme Court in that case states in language which we think is here applicable at page 248, et seq.:

“Of all nonresidential uses, a small suburban church would seem to present a minimum of objections. All of the same considerations which have been urged against permitting this church in a residential neighborhood, were present in a far greater degree in the case of a parochial school or an orphans’ home, and yet they were held not to bear a sufficiently substantial relation to the public health, safety, morals or general welfare to warrant the exclusion of these institutions. (Citing cases * * *) It must therefore be concluded that respondents’ supporting reasons for the attempted exclusion of the church cannot be justified on the score of the protection of public health and safety.
“How does the case stand with respect to the protection of public morals and the general welfare? The church in our American society has traditionally occupied the role of both teacher and guardian of morals. Restrictions against churches could therefore scarcely be predicated upon a purpose to protect public morals. Over the generations we have seen American churches in the quiet, dignified surroundings of residential districts readily accessible to the members of the congregation. Such churches as are now found in business sections were for the most part in residential neighborhoods when they were built, but the commercial life of the community has gradually crept up around them. Fully to accomplish its great religious and social function, the church should be integrated into the home life of the community which it serves. Churches in fitting surroundings are an inspiration to their members and to the general public. If located in the residential district —space, perspective, greenswards and trees aid in setting off the beauty of the building and thereby increasing its inspiration. To require that churches be banished to the business district, crowded alongside filling stations and grocery stores, is clearly not to be justified on the score of promoting the general welfare.
“When brought to an exact focus, what respondents are seeking to accomplish is the creation, by an administrative act, of exclusive residential' subdivisions for private individuals. It is true that many people prefer not to reside next door to a church. But the way legally to effectuate this desire is by private mutual covenants between property owners imposing appropriate servitudes on the land. We must not ‘employ the new device of zoning to make exclusive districts much more exclusive,’ Bassett on Zoning, page 72. We do not believe it is a proper function of government to interfere in the name of the public to exclude churches from residential districts for the purpose of securing to adjacent landowners the benefits of exclusive residential restrictions.”

This Court, at page 76, in State, ex rel v. Bruggemeier, supra, stated:

“The place of the church is to be found in that part of the community where the people live. It is to be associated with the home. Its influence is concerned with family life. It is an institution to which we look for leadership in furtherance of the brotherhood of man in molding the moral progress of our children and sustaining and giving strength to purity of our family life. To hold that a church is detrimental to the welfare of the people is in direct contradiction of historical truths and evidences a failure to recognize basic fundamentals of a democratic society.”

We think the logic and reasoning of these cases have equal application to the case at bar.

Our conclusion on the second question posed above is therefore twofold: First: that the provision of the ordinance as applied to relator’s lands, excluding the same for church purposes, bears no relation to public health, safety, morals and general welfare and is, therefore, violative of relator’s constitutional rights under Sections 1 and 19, Article I, Ohio Constitution, and the due process clause of the fourteenth amendment of the Federal Constitution. Second: that in any event, the action of the respondent city officials in refusing to issue a special permit for temple or congregational purposes under the administrative provisions of the ordinance, constitutes an abuse of discretion which is also violative of relator’s constitutional rights.

Holding these views, we conclude that the writ of mandamus should be allowed to issue as prayed for. Judgment accordingly.

Exceptions. Order see journal.

KOVACHY, PJ, SKEEL, J, concur.