author: By PHILLIPS, J.: By NICHOLS, J.

text:
    KRAUTH, Plaintiff-Appellant, v. CLEVELAND (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22258.
    Decided November 19, 1951.
    Sindell & Sindell, Cleveland, for plaintiff-appellant.
    Clarence L. Mollison, Cleveland, for defendant-appellee.
    (NICHOLS, PJ, GRIFFITH, J, PHILLIPS, J. of the Seventh District sitting by designation in Eighth District.)
   OPINION

By PHILLIPS, J.:

Plaintiff sued defendant, a municipal corporation, in the Court of Common Pleas, to recover damages for personal injuries sustained by her allegedly as the result of defendant’s carelessness and negligence in failing and neglecting to Keep one of its improved, duly dedicated, and accepted streets open, in repair, and free from nuisance, in violation of the provisions of §3714 GC, and as the owner of the Cleveland Transit System in carelessly and negligently permitting her to alight from one of its street cars, on which she was riding as a paid passenger, on that highway at a point thereon where there was “a triangular hole measuring 1' x 1' x 1' of uneven surface at the bottom” into which she stepped.

By answer defendant denied any failure of duty on its part and charged plaintiff with contributory negligence.

The jury returned a verdict for the defendant, upon which subsequently the trial judge duly entered judgment.

Plaintiff appealed from that judgment to this Court on questions of law.

Plaintiff testified that she was unfamiliar with the place where she alighted, and was last there about six or eight months prior to the time she fell, although during that time she worked in the immediate vicinity thereof; that as she alighted she was watching for traffic, and had her eyes fixed on a spot in the highway about five feet away.

One of defendant’s patrolman witnesses, who took plaintiff to the hospital, testified that plaintiff told him “I had gotten off this stop thousands of times before and nothing happened. I didn’t think it was necessary to look.”

Another of defendant’s patrolman witnesses testified that plaintiff told his brother officer that “it wasn’t necessary” to “see that hole.” “I got off that corner thousands of times.”

The evidence presented questions for the determination of the jury as to defendant’s negligence and plaintiff’s contributory negligence; and further reference to it is not necessary to understand the question presented for our consideration and determination by plaintiff’s "sole assignment of error, namely, that the trial judge erred to her prejudice “in charging the jury to consider” the issue of plaintiff’s contributory negligence “first before the issue of negligence,” and in overemphasizing that issue in the entire general charge.

After reciting the claims of negligence made by plaintiff in her petition, defining negligence, burden of proof and proximate cause, the trial judge charged the jury inter alia as follows:

“I will say to you at the outset that the plaintiff must at all times have exercised ordinary care for her own safety, and if her testimony raises the presumption that she failed to exercise ordinary care for her own safety, she is required to meet that presumption. But if no such presumption has arisen, or if such presumption having arisen has been met by her, then the defendant must prove to you by a preponderance of the evidence that she failed to exercise ordinary care for her own safety, and that that failure upon her part either caused or contributed to cause her injuries.

“So that is the first issue you will determine, whether or not the plaintiff exercised ordinary care for her own safety. And if she failed to exercise ordinary care for her own safety and that failure upon her part directly caused, directly and proximately caused or directly and proximately contributed to cause her injuries, she can not recover in this action. Your inquiry would go no further and you would return a verdict for the defendant.

“If on the other hand she was in the exercise of ordinary care for her own safety at and just prior to the time of receiving her injuries, you next would inquire as to the negligence or failure to exercise ordinary care on the part of the defendant.”

At the close of the general charge, and after discussion at the bench with counsel, the trial judge further charged the ’ jury in these words:

“I have been requested, and rightly so, members of the jury, to say to you that the plaintiff in alighting from that car must alight as an ordinarily prudent person would alight under the same or similar circumstances.

“If ordinary care upon her part required that she look where she was stepping and that would be required of an ordinarily prudent person alighting from that streetcar, then she would be required to exercise that ordinary care and to use her eyes to see where she was stepping as she alighted from that car.

“I have said to you several times that the plaintiff must at all times have exercised ordinary care for her own safety, and if she failed to exercise ordinary care for her own safety and that failure upon her part either caused directly and proximately or directly and proximately contributed to cause her injuries she can not recover in this action.”

Considering the general charge of the trial judge in its entirety two members of the court conclude that no error intervened which was prejudicial to plaintiff in the respects charged.

The judgment of the Court of Common Pleas is affirmed. Exceptions noted. Order See Journal. See Dissenting Opinion.

GRIFFITH, J, concurs.

NICHOLS, J, dissents.

DISSENTING OPINION

By NICHOLS, J.

Considering the errors claimed by appellant, together with the entire charge of the Court, including the special request given on behalf of defendant before argument, I conclude that the judgment should be reversed as I cannot find that substantial justice has been done plaintiff in this ease. For example, the Court charged, as first quoted in the majority opinion, that

“if her testimony raises the presumption that she failed to exercise ordinary care for her own safety, she is required to meet that presumption.”

I do not believe that the jury would understand what was meant by the requirement “to meet that presumption,” in the absence of proper explanation by the Court.

Furthermore, I find the third request of defendant to charge before argument is prejudiciously erroneous. The request Is as follows:

“No. 3. This Court charges you as a matter of law that the plaintiff in the exercise of reasonable care for her own safety while alighting from the street car was required to exercise her sense of sight and if you find that the hole into which she stepped was plainly visible and could have been easily avoided and there was no reason why her sight should have been diverted therefrom, your verdict must be for the defendant, the City of Cleveland.”

Such charge entirely ignores the issue of proximate cause. Whether appellant’s negligence was the proximate cause or a proximate contributing cause of her injuries could be determined only from a consideration of all the evidence, not alone that set forth in the quoted charge — a function peculiarly for the jury where the state of the evidence, as in this case, is such as to justify different minds in reasonably arriving at different conclusions with respect to that question, or where it is doubtful whether reasonable minds would or would not differ in the inferences drawn from all the evidence.

Smith v. Zone Cabs, 135 Oh St 415.

Assuming that the jury would find from the evidence that plaintiff while alighting from the street car failed to exercise her sense of sight and that the hole into which she stepped was plainly visible and could have been easily avoided, and there was no reason why her sight should have been diverted therefrom, nevertheless, there was traffic on the street, at which she was then looking, and it was for the jury to determine from all the evidence whether plaintiff then acted as an ordinarily prudent person would have acted under the same or similar circumstances. If the jury had found that plaintiff did act as an ordinarily prudent person would have acted under the same or similar circumstances, she was not guilty of negligence at all.

Surely her negligence, if any, in the respects enumerated in the charge, was no greater than the negligence of Smith in violating the specific requirement of the ordinance of the City of Warren, whereby he was guilty of negligegnce per se. This Court of Appeals did not reverse the judgment of the Common Pleas Court merely because we found Smith guilty of negligence per se, but because we further found that reasonable minds could, come to no other conclusion than that such negligence per se was at least a direct and proximate contributing cause of his injuries. We found from the evidence that Smith could not possibly have been injured except for his negligence per se in violating the specific requirement of the ordinances df the c'ity. He simply would not have been there to be injured.

In the case we are now reviewing, the court charged upon the issue of contributory negligence, and having found that issue one for the determination of the jury, should have charged on the issue of proximate cause, because reasonable minds could have differed on that issue, but on the contrary, the court usurped the functions of the members of the jury who alone were to determine whether plaintiff’s conduct was negligent under all the facts shown by the evidence, and if negligent, whether .such was a proximate contributing cause of her injuries. She was not negligent per se.

The jury may have found that a reasonably prudent person upon alighting from a street car upon a heavily travelled highway as shown in this case, does not keep her eyes constantly upon the street to observe a plainly visible nuisance therein, allowed to remain there by defendant in violation of law, nor was the jury required to find plaintiff’s failure in the respects stated was either the proximate cause or a proximate contributing cause of her injuries.

See: Durbin v. Humphrey Co., 133 Oh St 367; Glasco v. Mendelman, 143 Oh St 523; Betras, Admr. v. McKelvey Co., 148 Oh St 523; Morrin v. Band, 87 Oh Ap 357; Smith v. Zone Cabs, supra.

I am aware of the decision of the Supreme Court of Ohio in the case of Lawrence v. The Toledo Terminal Railroad Co., 154 Oh St 335 wherein Chief Justice Weygandt, in stating the reasons for reversal of the judgment of two members of the Court of Appeals for Lucas Oounty, sets forth on page 340 of the opinion, the view of the Supreme Court that

“as a matter of law the plaintiff, like the defendant, and the driver of the coupe, was negligent and that this negligence of his contributed directly and proximately to cause his injuries. It is the settled law of this state that such contributory negligence precludes recovery by the plaintiff.”

Such quoted statement of the Chief Justice demonstrates that the Supreme Court found all parties to that action negligent and that the plaintiff’s negligence was a proximate conributing cause of his injuries, contrary to the finding of the jury and contrary to the judgment of the Court of Appeals in affirming the judgment entered on the verdict of the jury, and, of all things, justifies such findings under the “reasonable minds” theory applied in Smith v. Zone Cabs, supra.

As stated in the opinion in the Smith case, “negligence per se and proximate cause are two separate and distinct issues” and in the syllabus it was held that,

“the issue still remains as to whether pedestrian’s negligence directly contributed to produce his own injury and is one for the jury provided the state of the record is such that reasonable minds may differ on the conclusions to be drawn from the evidence on that issue.”

The evidence in this record clearly discloses that the city in violation of §3714 GC, had allowed a nuisance to exist in the public street at a place where its own passengers would alight from its street car, and that such nuisance had existed for such period of time that the city should have discovered and eliminated it. The evidence is such that the jury may have found that plaintiff previously knew of the existence of such nuisance in the street, but the evidence further shows that plaintiff at the time was concerned with the danger from traffic on the highway, at which she was looking and using her sense of sight, but miscalculated the danger from the nuisance. As stated by Judge Cordoza, in Knapp v. Barrett, 216 N. Y. 226, 110 K. E. 428,

“if plaintiff had used his eyes and has miscalculated the danger, he may still be free from fault.”

The charge of the court in this case required the plaintiff to use her sense of sight for the purpose of calculating the danger from one only of the two dangers present, and was prejudiciously erroneous, especially in view of the further charges given before argument and sent to the jury room, to the effect that negligence of the plaintiff which directly contributed in the slightest degree to her injuries prevented her recovery.

It seems to me that the “reasonable minds” rule as applied in Smith v. Zone Cabs, supra, and the “slightest degree” rule as charged in this case, and as previously sanctioned by the Supreme Court, are so inconsistent with each other that one or the other should be abandoned; that the power of the trial court to grant a new trial where that court finds the verdict of the jury to be manifestly against the weight of the evidence, and the power of the court of appeals to reverse on that ground, with like power of the Supreme Court if it chooses to exercise it, will amply protect the rights of litigants without subjecting the judges of the lower courts to the imputation that they do not possess reasonable minds if the Supreme Court would differ with them on the conclusions to be drawn from the evidence.

I am convinced that the judges who joined with me in our decision in Smith v. Zone Cabs, supra, and the three judges of the Supreme Court who dissented from the majority when the case was decided in the latter court, have reasonable minds. I personally know all the judges of the Lucas County Court of Appeals who reviewed the case of Lawrence v. Railroad Company, supra, and I know and have great respect for the Judges of the Supreme Court who reviewed both of these cases and I am satisfied that ail these Judges have reasonable minds, and the very fact that they differed upon the conclusions to be drawn from the evidence in such cases exemplifies the folly of the members of one court holding that other judges of long experience and unquestioned integrity and ability do not have reasonable minds. Such is not only unnecessary but inconsiderate, in my opinion.

All of which may seem to lessen my position in this dissenting opinion, and I do hope that no one will conclude that I am in accord with the decision of the majority members of the Supreme Court in the Smith v. Zone Cabs case, but so long as the Supreme Court holds to the reasonable minds rule in relation to the issue of proximate cause, I am compelled to hold in this case that the trial court was in error in the quoted charge which omits any reference to that issue. The judgment should be reversed and a new trial granted.


source: Caselaw Access Project

author: By McClelland, j.

license: Public Domain

text:
    MINNIX, Plaintiff, v. BRANTNER, Defendant.
    Probate Court, Franklin County.
    No. 147388.
    Decided July 9, 1952.

      Charles O. Weilbacher, Columbus, for plaintiff.
    James B. Albers, Columbus, for defendant.
   DECISION ON PETITION TO DETERMINE HEIRSHIP OPINION

By McClelland, j.

This matter originally arose on an application of Willet R. Minnix to have an administrator appointed on the estate of Bertha J. Minnix. During the pendency of that application it developed that the only recognized heir was in the Ohio Penitentiary and that there was a question as to whether Willet R. Minnix was the surviving spouse of the decedent. The Court refrained from appointing an administrator until the matter of an alleged common law marriage between Bertha J. Minnix and Willet R. Minnix was adjudicated. An original petition was filed which was followed by an amended petition on May 28, 1952, in which Willet R. Minnix alleged that he is the surviving spouse of the decedent and that by virtue thereof he is entitled to a share of the estate of Bertha J. Minnix who died without a will.

On hearing the evidence, the Court finds the following to be the facts: Bertha J. Minnix died on March 3, 1952, intestate, and her estate is being administered in this Court in case No. 147,388. Willet R. Minnix and Bertha J. Minnix became husband and wife by a ceremonial civil marriage on February 20, 1922. They lived together as husband and wife from that date until the date of her death, which occurred on March 3, 1952. In 1945, Bertha J. Minnix filed an action for divorce in the Common Pleas Court of Franklin County, Ohio, in case No. 38933, and on November 19, 1945, a divorce was granted and journalized. Willet R. Minnix was served with summons in that action and he and his wife entered into a separation agreement, which agreement was fully consummated and never set aside.

During the pendency of the divorce action the parties to that action lived together as husband and wife and continued to so live until her death at the date above mentioned. The testimony further discloses that Bertha J. Minnix at the time of her death was the owner in fee simple of a parcel of real estate located at 1087 Harrisburg Pike in Franklin County, Ohio, and another parcel of real estate known as 811 West Town Street, Columbus, Ohio.

The testimony further discloses that Bertha J. Minnix prior to her marriage to Willet R. Minnix, adopted one Harold E. Brantner, who is now living and who is confined in the Ohio Penitentiary.

The law governing the creation of a common law marriage is stated by the Supreme Court in Markley v. Hudson, Vol 143 Ohio State Reports, at page 163, the syllabi of which are as follows:

“1. An agreement to marry in praesenti, made by parties competent to contract, accompanied and followed by cohabitation, as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a common law marriage.

“2. While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.”

At page 169 of that report there is a quotation from a decision of the Supreme Court rendered in Umbenhower v. Labus, 85 Oh St, page 238, as follows:

“A mutual agreement of marriage in praesenti made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, as a result of which the parties are treated and reputed as husband and wife in the community in which they reside, constitutes a common law marriage.”

The law relative to the degree of proof is also stated in the Markley case above referred to. At page 169 of that report we find the following language:

“While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and by showing that the parties declared themselves to be husband and wife; that they transacted business with each other and with third persons as husband and wife; that they lived together and cohabitated as husband and wife for a series of years; and that they were so treated and reputed in the community and circle in which they moved.”

We therefore must adhere to the rule that in order to sustain a common law marriage in the instant case, we must have that degree of proof which is clear and convincing. At the termination of the hearing this Court was inclined to feel that a common law marriage had been established, but after examining the transcript of the evidence, examining the court decisions pertaining to the same, and giving the same mature consideration, the Court has come to a different conclusion.

It is contended by Mr. Minnix that he didn’t know of the divorce decree. Even though he might not have had actual knowledge of the entry of that decree, he certainly is charged constructively with knowledge of same, because he was served with summons in the action and was a party to the suit. Had this been a situation in which notice only was required, there might be some merit to his contention, but he was served with summons as a party to the action, and we therefore must come to the conclusion that he knew that a divorce decree had been entered by the court. Now going to the transcript of the testimony of Mr. Minnix, we find that the following question was asked by the Court:

“Q. When were you remarried?

“A. Well, we just considered ourselves married all the time —just considered the divorce didn’t amount to anything — just considered ourselves married — just carried on as we álways did.”

It is therefore quite obvious from the testimony of Mr. Minnix himself that there never was a contract in praesenti to become husband and wife. His testimony negatives any such an allegation. We are also constrained to make a further observation that both Mr. and Mrs. Minnix had utter disregard for the jurisdiction of the court. They continued to live together as husband and wife during the entire pend-ency of that proceeding. Now when it comes to the establishment of a common law marriage, Mr. Minnix admits that there was no agreement in praesenti for the reason that he disregarded the divorce decree and failed to meet the requirements of a common law marriage. We have the further statement by one of the witnesses, which statement was not objected to by any of the parties, that Bertha J. Minnix said that she would never remarry Wiilet R. Minnix; that another certain man was the only one in whom she had any interest. We also have the further evidence that Bertha J. Minnix received the attentions of other men subsequent to the divorce.

Counsel for the respective parties have presented very persuasive briefs containing a statement of all the law of Ohio on the subject. The Court has considered and reconsidered them and after reviewing the testimony, reading the briefs and examining the authorities cited, the Court is compelled to come to the conclusion that there is not that degree of proof by the evidence submitted, to justify the court in declaring that there was a common law marriage.

It is therefore the finding of the Court that Wiilet R. Minnix is not the surviving spouse of Bertha J. Minnix and is therefore not an heir and not entitled to the administration of her estate.

An order may be drawn accordingly.


author: By THOMAS, J.

text:
    STATE, ex rel. DEPT. OF INDUS. RELATIONS, v. RUSSELL, d. b. a. CUY LA NURSING HOME.
    Common Pleas Court, Cuyahoga County.
    No. 628204.
    C. William O’Neill, Atty. Geni., Lloyd Evans, Asst. Atty. Geni., Columbus, John E. Olsen, Cleveland, for plaintiff-appellee.
    Neil W. McGill, John James Brown, Cleveland, for defendant-appellant.
   OPINION

By THOMAS, J.

Pursuant to §1032-1 GC, the defendant, who operates Cuy La Nursing Home appeals Public Order 4190 issued under §1032 GC, by the plaintiff Ohio Department of Industrial Relations on November 9, 1950.

In a large house of frame construction located in Wickliffe, Lake county, with part of the property situated in Euclid, Cuyahoga county, the defendant operates a nursing home for women who are over 65 years of age. At the time of the court’s inspection of the premises made at the request of the parties, 11 women, all of whom were observed to walk freely, resided on the second floor. The use of this second floor to shelter ambulatory residénts is the subject of this appeal. .Fire escapes lead to either end of the second floor, and the doors to these escapes are equipped with conventional rather than panic hardware and were unlocked at the time of the court’s inspection.

The defendant is now licensed and has been licensed for several years by the Ohio Department of Public Welfare “to operate a home for aged or physically or mentally infirm as defined by §6289-1 GC.” The present license “authorizes the care of a maximum of- 38 residents including not more than 20 bedfast or helpless patients on the first floor and fully ambulatory residents only on the second floor.”

Notwithstanding the fact that the Ohio Department of Public Welfare has specifically granted the defendant the privilege of operating a home for the aged and of housing fully ambulatory residents on the second floor, another state department, the Department of Industrial Relations, is commanding her to cease using the second floor by an order which reads that “In homes of frame construction no patients shall be cared for other than on the first or grade floor.”

Since the Department of Industrial Relations under §§1031, 1032 GC, seeks to stop the use of the second floor of defendant’s home for the aged while simultaneously the Department of Public Welfare under §6289-1 GC, et seq., has licensed the use of said second floor of defendant’s home it becomes necessary to examine and construe these several sections of law which give rise to apparently conflicting acts of two executive departments of the state government.

Sec. 6289-1 GC defines a rest home or convalescent home or boarding home for the aged or mentally or physically infirm as “any place of abode, building, institution, residence or home used for the reception and care, for a consideration, of three or more persons who, by reason of age or mental or physical infirmities are not capable of properly caring for themselves, or who are sixty-five years of age or upwards.”

Sec. 6289-1 GC, et seq., were enacted in 1941.

It is evident that the defendant operates a home as therein defined.

Secs. 6289-2, 6289-3 GC, require that such a home be licensed annually by the Department of Public Welfare of Ohio “in accordance with such rules and regulations as may be prescribed by the director of public welfare.”

Sec. 6289-4 GC provides that:

“The department of industrial relations of the state of Ohio, the department of health and the division of state fire marshal, shall, upon the request of the department of public welfare of the state of Ohio, make such inspection of such home as may be deemed necessary and shall report in writing to the department of public welfare whether the building or buildings used or intended to be used for such home are substantially safe for the purpose intended, and in compliance with the building code of the state, and such other findings and recommendations as may be requested by the department of public welfare or deemed necessary by the department making such reports.

“No license shall be granted unless the director of public welfare shall be satisfied that such home is satisfactory in construction, fire prevention and protection, heating, water supply and sanitation, and that it is adequately equipped and maintains a personnel sufficient in number and training to care properly for inmates of such home.”

By duly promulgated regulations the director of public welfare on the 9th day of February, 1950, has ordered that:

“No license ‘shall be issued by the division of social administration for the operation of a home for the care of the aged as defined by §6289-1 GC unless the division has received a statement in writing, as required by §6289-4 GC, from each of the following departments or divisions;

“(1) A statement from the Department of Industrial Relations of the state of Ohio showing whether or not the building in which the applicant proposes to operate or is operating is substantially safe for the purpose intended.

“(2) A statement from the state or local'department of health showing whether or not the water supply of the applicant is safe, and whether or not adequate sanitary facilities are being maintained on the premises of the applicant.

“(3) A statement from the division of the state fire marshal or from an authorized fire official having jurisdiction over the area in which such home is located, shows whether or not the building or buildings of the applicant are satisfactory in construction, have adequate means of escape and proper facilities for fire protection.”

Though the record does not clearly show whether or not the statements required by said regulations were obtained prior to the issuance of the license, it must and will be presumed from its issuance that the requirements of the law and the regulations have been met.

Public Building Order 4190 is issued in accordance with §1032 GC and therefore must draw its life from whatever powers are vested in the Department of Industrial Relations by §§1031, 1032 GC. These cognate sections became law in 1908.

Sec. 1031 GC provides for the “Department of Industrial Relations to inspect all school houses, colleges, opera houses, halls, theaters, churches, infirmaries, children’s homes, hospitals, medical institutes, asylums, and other buildings used for the assemblage or betterment of people in the state.”

It is clear that homes for the aged are not expressly enumerated in §1031 GC though conceivably they may fall within the language “asylums, and other buildings used for the assemblage or betterment of people in the state.” See 1939 A. G. Opinions 1125.

Sec. 1031 GC goes on to say that “such inspections shall be made with special reference to precautions for the prevention of fires, the provision of fire escapes, exits, emergency exits, hallways, air space, and such other matters which relate to the health and safety of those occupying or assembled in such structures.”

Sec. 1032 GC follows up with the provision that the inspector shall file with the Department of Industrial Relations a written report of the condition of the building inspectéd.

It further provides that “if it is found that necessary precautions for the prevention of fire or other disaster have not been taken or that means for the safe and speedy egress of persons assembled therein have not been provided, such report shall specify what appliances, additions or alterations are necessary therefor.” The Department shall thereupon “issue an order in writing stating what necessary appliances, additions or alterations shall be added to or made in such structure.”

From a comparison of §§1031, 1032 GC with Sec. 6289-1 GC, et seq., several conclusions are warranted.

fhe purpose of §§1031, 1032 GC, is to make public buildings safe for their occupants in the event of fire or other disaster.

One of the purposes of §6289-1 GC, et seq., is to make homes for the aged safe and satisfactory under all conditions.

Both §§1031, 1032 GC and Sec. 6289-1 GC, et seq., provide for inspections by the Department of Industrial Relations to accomplish the purposes of the statutes, however §6289-1 GC, et seq., provides for additional inspections by the department of health and the state fire marshal.

The purposes of each statute can be attained through sanctions if necessary. §§1031, 1032 GC, employes the order as its remedy, while 6289-1 GC, et seq., affords the more effective power of licensing with the power to revoke if the requirements of safety, sanitation, and competent supervision are violated.

There is one important distinction between the statutes. Secs. 1031, 1032 GC, relate generally to several classes of public buildings. Sec. 6289-1 GC, et seq., enacted 33 years later, are obviously and expressly designed and framed to deal with the supervision and control of homes for the aged and other rest and convalescent homes.

Whether there may be a conflict between the enforcement of these statutes with relation to rest and convalescent homes is no longer speculative or academic.

The defendant, in her operation of a home for the aged, is being ground between the upper millstone of §§1031,1032 GC, and the lower millstone of §6289-1 GC, et seq. But if a venerable tool of statutory construction is applied the compression is quickly ended.

“Where the general provisions of a statute are found to be in conflict with the express provisions of a later act relating to a particular subject, the latter will govern although the words of the earlier general act, standing alone, would be broad enough to include the subject to which the more particular provisions relate.” Thomas v. Evans, 73 Oh St, 140, syllabus one.

Being a later statute which relates specifically to the supervision, and control of the safety of homes for aged, §6289-1 GC, et seq., must prevail and will be enforced while §§1031, 1032 GC, being an earlier and more general statute, by virtue of the enactment of §6289-1 GC, et seq., is nullified insofar as the homes defined in §6289-1 GC are concerned.

Thus §6289-1 GC, et seq., must- be read as an exception to §§1031,1032 GC; State, ex rel. Steller v. Zangerle, 100 Oh St. 414.

Thus it is concluded that Public Building Order 4190 conflicts with §6289-1 GC, et seq., and is invalid, and ineffective.

But there is yet another reason why Public Building Order 4190 cannot be upheld.

It is obviously predicated upon Bulletin 106 of the Department of Industrial Relations which bulletin purports to promulgate building specifications for hospitals and homes. Homes are therein defined as including “all buildings or parts of buildings used or designed to be used for the care or shelter of the poor, the aged or children,” which definition is broad enough to include Cuy La as a home for the aged.

By Section 3-a of said Bulletin 106, it is provided that:

“Hospitals and homes of frame construction shall be not more than one (1) story in height, * * * the first floor level shall be not more than four (4) feet above the grade at any entrance to or from the building and the building shall be limited in size and area to accomodate not more than twenty (20) persons. * * *.”

If Bulletin 106 is effective, it would appear that Section 3-a would apply to a home of frame construction, such as Cuy La Home, provided said Section 3-a could be reconciled with §6289-1 GC, et seq.

However, such reconciliation need not be tried since upon examination it seems clear that the Department of Industrial Relations wholly lacks the power to issue Bulletin 106.

Counsel for the Department of Industrial Relations reported at the last hearing of this matter that Bulletin 106 in its present form was originally issued by the Industrial Commission of Ohio prior to the establishment of the Department of Industrial Relations. The Industrial Commission of Ohio was established in 1913, while the Department of Industrial Relations was not created until 1921.

Counsel further relates that his research shows that the Department of Industrial Relations, since its formation, has issued Bulletin 106 as originally pronounced by the Industrial Commission of Ohio merely substituting the name of "the Department of Industrial Relations for that of the Industrial Commission of Ohio.

It is clear that §871-22 (3), (7) GC fully authorized the Industrial Commission of Ohio to promulgate Bulletin 106.

But it is equally clear that while many of the powers of the Industrial Commission have been transferred to the Department of Industrial Relations, §871-22 (3) through (8) GC, including the powers to issue orders, rules and regulations, have been expressly retained in the Industrial Commission.

Nor is there any other section of the General Code of Ohio which does vest the Department of Industrial Relations with power to promulgate rules and regulations which have the force and effect of law.

Plainly §154-8 GC authorizes the Director of the Industrial Relations Department, as an executive department, to prescribe “regulations not inconsistent with the law for the government of his department, the conduct of its employees, the performance of its business and the custody, use and preservation of the records, papers, books, documents and property pertaining thereto.” This section empowers the Department of Industrial Relations to adopt regulations necessary for the administration of the internal affairs of the department. But this section does not expressly bestow upon the department any power to issue regulations affecting the rights of persons outside the department with the full force and effect of law.

It has been intimated that perhaps §871-24 GC may give the Department of Industrial Relations the power to issue regulations. This section, however, transferred to the Industrial Commission, the powers of various agencies including the powers of the chief inspector of work shops and factories; and these powers of the Industrial Commission of Ohio subsequently were transferred to the Department of Industrial Relations by §154-45 GC. Thus the Department of Industrial Relations becomes the receiver of all powers once exercised by the chief inspector of work shops and factories, and still provided by law. But no section of law has been suggested and none has been found which empowers the chief inspector of work shops and factories to issue regulations of the type of Bulletin 106.

Finally, the Ohio State Building Code §12600-1 through §12600-299 GC contains no provision which authorizes the Department of Industrial Relations to promulgate rules or regulations having the force and effect of law.

It is interesting to note that §12600-1 GC of the Ohio State Building Code, as enacted in 1911, provided in part as follows:

“OHIO STATE BUILDING CODE

PART 2.

SPECIAL REQUIREMENTS

Section 12600-1

Preamble

Under part two which follows, will be found under their respective titles, the various classes of buildings covered by this code together with the special requirements for their respective design, construction and equipment.

The classification of the various buildings will be found under the following titles, viz:

Title 1. Theaters q,nd assembly halls.

Title 2. Churches.

Title 3. School buildings.

Title 4. Asylums, hospitals and homes.

Title 5. Hotels, lodging houses, apartments and tenement houses.

Title 6. Club and lodge buildings.

Title 7 Workshops, factories and mercantile establishments.

It is evident that this preamble expressed an intent that later sections of the Building Code would provide special requirements for the various types of buildings there listed including “Asylums, hospitals and homes.”

However, an examination of the remaining sections of the Ohio State Building Code as originally passed, reveals that no special requirements were ever provided for any type of building other than theaters, assembly halls and schools.

In 1925 (111 V. 136) §12600-1 GC was amended so as to refer only to theaters, assembly halls and school buildings.

But at no time has the Ohio State Building Code ever given the Department of Industrial Relations the power to adopt any rule or regulation which would have the force and effect of law.

It is therefore concluded that Bulletin 106 is unauthorized, and without any force and effect.

Preserving the safety of the aged residents of the second floor of Cuy La Home from the hazard of Are or other disaster undoubtedly is the objective which prompted the Department of Industrial Relations to inspect Cuy La Home and to issue Public Building Order 4190.

Though the invalidity and ineffectiveness of Public Building Order 4190 for the reasons noted compel its vacation, the objective which may well have led to its issuance can be achieved under the proper application and enforcement of §6289-1 GC, et seq„ and the derivative regulation of the Director of Public Welfare of February 9, 1950.

With the Department of Public Welfare given primary responsibility for licensing and supervising homes for the aged under §6289-1 GC, et seq., but with the Department of Industrial Relations and the other named departments investigating and certifying the satisfactory character of the premises as required by the regulation of the Director of Public Welfare, surely the several departments can harmonize their respective functions to attain the goal of safety which should be common to each.

Whether or not the second Aoor should be continued to be used for ambulatory residents, and whether or not if the second floor is so used panic hardware or other additional safety devices should be employed, are questions which the Department of Public Welfare must resolve within the framework of §6289-1 GC, et seq., and its regulation and with the assistance of the Department of Industrial Relations.

Defendant will prepare an appropriate order vacating and setting aside Public Building Order No. 4190.


author: By SKEEL, PJ.: By THOMPSON, J.

text:
    BLISS REALTY, INC., Plaintiff-Appellant, v. DARASH et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22321.
    Decided January 21, 1952.

      Celeste & Taber, Cleveland, for plaintiff-appellant.
    W. P. Newton, F. T. Cullitan, County Prosecutor, Cleveland, for defendants-appellees.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment for the defendants entered in the Common Pleas Court of Cuyahoga County. The action is one for a declaratory judgment.

The plaintiff’s petition alleges that on November 15, 1943, it purchased certain property, a part of which is therein described as parcel No. 1 and that on November 9, 1945 the plaintiff became the owner of land described in the petition as parcel No. 2 together with more land. The petition further alleges that the two parcels are adjacent to each other and together form a lot with a frontage of 50 feet on Babbitt Road with a depth of 150 feet. The two parcels together are described in the petition as parcel No. III. It is also alleged that for the purpose of imposing certain restrictions on said lot, said parcels as a single lot were deeded to one Elizabeth L. Hayes and by her in like manner deeded back to the plaintiff. The petition alleges that the taxes on Parcel No. II became delinquent and were certified to the County Auditor as provided by §5704 GC in 1932 and such certificate of delinquency was then properly advertised as provided by law. The petition further alleges that the taxes on parcel No. 1 became delinquent in 1946. Both parcels as a single lot were certified delinquent in July, 1947 as required by §5704 GC, but such certification of delinquency was not advertised as required by said section. The petition alleges in January, 1949 both parcels as a single lot were certified by the County Board of Review to the County Prosecutor and upon application made to the Common Pleas Court of Cuyahoga County, the court upon recommendation of the County Board of Review by entry date February 18, 1949, forfeited said lot to the State of Ohio for non-payment of real estate taxes which forfeiture was within the two-year period prescribed by §5718 GC. The petition further alleges that the defendant, Nicholas Darash, by deed dated May 4, 1949, became the purchaser of said lot at the County Auditor’s forfeited land sale and that since that time he has claimed title adverse to the plaintiff and refuses to relinquish possession.

The plaintiff's prayer asked the court to declare the respective rights of the parties to parcels I and II and asks that its title be declared to be superior to that of the defendant, Nicholas Darash.

The petition was filed March 27, 1951.

Defendants, the County Auditor and Darash, filed separate demurrers to the plaintiff’s petition. The demurrer of the County Auditor was grounded on the claim that the action was not brought within the limit of time provided by §5762-1 GC. The demurrer of the defendant, Darash, while not clearly setting forth the grounds relied upon, by its brief indicates that he claims that the action is barred by the statute of limitations and second, that the allegations of the petition under the circumstances, are not sufficient to state a cause of action.

The court sustained both demurrers and entered judgment for the defendants and by its appeal, the plaintiff claims the following errors:

“1. The Trial Court erred in sustaining the Defendant’s Demurrers on the grounds that the action was not brought within the time specified for bringing such actions

“2. The Trial Court erred in sustaining the Demurrer of Defendant Nicholas Darash on the grounds that the action was a collateral attack on the judgment of The Court of Common Pleas

“3. The Trial Court erred in sustaining the Demurrer of Appellee Darash on the grounds that the Court of Common Pleas did not have jurisdiction of the cause of action

“4. The Trial Court erred in sustaining . the Demurrer of Appellee Darash on the theory that the petition failed to state a cause of action.”

So far as parcel No. 2 is concerned, by the allegations of the petition, the taxes became delinquent in 1932, such delinquency was properly published and all subsequent procedural steps looking to forfeiture and sale of forfeited lands with respect to such parcel followed without deviation the requirements of the applicable statutes. So as to parcel No. 2, no case is stated in the petition. As to parcel No. 1, which is the rear end of the lot (parcel No. Ill), the plaintiff failed to pay the taxes due after 1945 and it was then certified delinquent by the County Auditor in 1947.

Part Second: Title I. Taxation Chapters 14 and 15, §5704 to 5773 GC, provide the manner in which public authorities shall proceed to collect delinquent real estate taxes.

Sec. 5704 GC in part provides:

“Immediately after each August Settlement, the County Auditor shall make and certify a list and duplicate thereof of all the delinquent lands in his county.” * * *

The section further provides that, with certain exceptions here not important, it shall be his mandatory duty to cause a list of the delinquent lands to be published, after a “display notice” has first been published.

According to the allegations of plaintiff’s petition, parcel No. 3 (which was parcels No. 1 and 2 combined) was certified delinquent in July, 1947, but no publication as provided by §5704 GC was made.

Sec. 5718 GC provides in substance that after the expiration of two years the County Auditor shall make a duplicate certificate of each delinquent tract of land upon which the taxes, assessments, penalties and interest have not been paid showing the amount due and stating there “that the same has been certified to the prosecuting attorney as delinquent.”

Two methods are provided for dealing with real estate upon which the taxes have become delinquent, that is first by foreclosure and second by forfeiting such lands to the state and a subsequent auditor’s sale thereof.

Sec. 5718-1 GC in substance provides that before delinquent lands are certified to the prosecuting attorney as provided in §5718 GC the County Board of Revision shall examine the list of delinquent lands and if, in their judgment, certain parcels thereof will not bring enough at foreclosure to pay the total tax charged against it and the costs of foreclosure, then such board shall cause such land to be omitted from foreclosure proceedings.

Sec. 5718-la GC provides that a list of omitted lands shall be made by the Auditor and filed with prosecuting attorney who shall file an application in the Common Pleas Court setting forth the action of the Board and praying for an order fixing a date for a hearing of objections to the action of the Board and upon hearing to seek an order confirming the action of the Board as to omitted lands and forfeiting such lands to the state of Ohio.

Sec. 5718-lb GC provides for the publishing of notice at the time such application will be heard and in which the names of the owners shall be set forth as provided by §5704 GC, the form of the notice and the number of publication being set forth in the statute.

Sec. 5718-lc GC provides for the hearing of such application by the court for the purpose of hearing any written “legal objections” filed with the court or oral “legal objections” presented by persons attending the proceeding and * * * “If it appears that such proceedings were regular and in conformity with law, the court' shall so find and such finding shall not be collaterally attacked. The court shall thereupon confirm the action of the board of revision and shall order such lands forfeited to the state of Ohio. Such lands shall thereupon be forfeited to the state of Ohio and disposed of as provided by Chapter 15 of this title.” * * *

This section also provides that the term “legal objection” as used above shall include:

“That the lists provided for in §§5704 and 5718-lb GC, have not been published according to law.”

This section also provides for an appeal from the order of forfeiture as in all other civil actions.

The plaintiff’s petition as above set forth alleges that upon the recommendation of the county board of review the Common Pleas Court of Cuyahoga County ordered parcel III forfeited to the state of Ohio for non-payment of real estate taxes. Such an allegation includes by necessary implication that such order was made by a court that had acquired jurisdiction of the proceeding as provided by §§5718, 5718-1, 5718-la, 5718-lb and 5718-lc GC, and that the court in making the order must have found all procedural steps had been taken as provided by law. The order of forfeiture constituted a judgment of the Court. Such judgment can not be collaterally attacked. (Sec. 5718-lc GC.)

The defendant’s demurrer admits all allegations of the petition well pleaded. This does not mean that the truth of contradictory allegations are admitted. The judgment of the court ordering forfeiture of the land when considered in the light of the facts necessary to. support such judgment as provided by statute is in direct contradition of the allegation that the certificate of delinquency was not published as provided by §5704 GC. If the legal effect of omitting the first-publication under §5704 GC, was to void all subsequent steps in dealing with delinquent lands, then these two allegations of fact can not be reconciled. The court could not find, under such circumstances, that the proceedings were regular (§5718-lc GC) and in conformity with law. The judgment which can not be collaterally attacked must, therefore, stand as the plaintiff’s claim and the allegation of the failure to publish a list of the delinquent lands after certification- can not be considered as admitted by defendant’s demurrer. This being true, plaintiff’s petition does not state a cause of action.

In the case of Lewis Auditor v. Taylor, 18 O. C. C. 443, this principle of law was clearly determined. The action was to enjoin the collection of certain assessments put against the plaintiff’s property, the proceeds to be used for certain improvements. The petition alleged that the assessments were made under the provisions of an act of the General Assembly of Ohio which, it was alleged, was unconstitutional. The answer alleged knowledge that the improvements were to be made and assessments were to be made against plaintiff’s property as provided by the act and if the act was unconstitutional the plaintiffs had knowledge thereof. The Supreme Court had previously held an act similar to the one in question to be constitutional. A demurrer was filed to the answer and the question of what allegations of fact in the answer were admitted by the demurrer was presented. The court said on page 446:

“We may say here before we go to the discussion of the merits of the questions argued by counsel for plaintiffs in error on the question of estoppel, that the claim is made broadly here that up until the decision of the supreme court in Hixson v. Burson, under the prior decision of the Supreme court in the Hibbs case, 35 Oh St, 458, that this act and similar acts were constitutional under the decision of the supreme court of the state. Now, how it is possible for a party, whether a lawyer or not, to know that an act is unconstitutional when the supreme court has held that a similar act, one exactly like it, is constitutional', is a matter that this court is not able to determine. Probably it is one of those questions which Judge Shauck says can only be answered by a court of last resort. 56 Oh St, 396.

“We think that the allegation of knowledge of the unconstitutionality of an act which the supreme court has held to be constitutional is not an allegation of fact, and is not admitted by demurrer.” * * *

Coming now to the claimed error in sustaining the demurrer because the action was not brought within the limit of time provided by §5762-1 GC. This section provides:

“In all cases wherein real property in this state is or has been sold under and by virtue of the provisions of chapter 14 or 15 of this title, no action shall be commenced, nor shall any defense be set up to question the validity of the title of the purchasers at such sale for any irregularity, informality or omission in the proceedings relative to the foreclosure, forfeiture or sale, unless such action be commenced or defense set up within one year after the deed to such property is filed for record or one year after the effective date of this act, whichever is longer.”

It is the claim of the plaintiff that this section has no application because all of the proceedings subsequent to the certification of delinquency of parcel 3 in 1947 are void for the alleged failure to publish notice of the certificate of delinquency of said lot as provided by §5704 GC. This section provides in part that “It shall be mandatory upon the county auditor to cause a list of the lands on such delinquent land list and duplicate to be published” as therein provided. Assuming for the purpose of this discussion that the allegation in plaintiff’s petition that the auditor failed to publish plaintiff’s lot designated as parcel No. 3 as certified delinquent is admitted by defendant’s demurrer, does such failure destroy the validity of all subsequent proceeding even though all succeeding statutory provisions have been literally followed?

The first step to subject property to the payment of unpaid taxes assessed against it is provided by §5704 GC requiring the auditor after each August settlement to certify in duplicate the list of lands upon which the owners, or those responsible therefore, failed to pay his taxes. Such duty being enjoined by law, every owner is conclusively presumed to have knowledge of the legal steps that will follow the failure to meet his tax obligations. A publication of notice of the list is not necessary for his information. His own failure to act created the delinquency. If there is any purpose to be served by requiring a publication of such list, it must be for the information of the public and not the property owner. The certification of the delinquent list or its publication has no direct effect on the owner’s title that had not been created by defaulting in the payment of taxes.

After property has become delinquent, one of two methods is provided for to enforce the tax lien, that is either by foreclosure or by causing the land to be forfeited to the state and then sold in a forfeited land sale by the auditor. The County Board of Review is charged with determining which method will be used as to each property certified delinquent. If the board determines that upon foreclosure the property will not sell for an amount sufficient to pay the taxes and costs of foreclosure, it is authorized to omit such lands from the list certified to the County Prosecutor for foreclosure and the Court Prosecutor is required to present such list in a proceeding in the Common Pleas Court seeking an order or judgment forfeiting such lands to the state. Notice of the time and place of the hearing and the names of the owners of the property must be published as required by §5704 GC. The Court acquires jurisdiction in the proceeding filed in court by the prosecutor by virtue of such publication of notice. The Court having acquired jurisdiction, its judgment becomes final unless appeal is taken.

The statutes provide that after judgment of forfeiture, the auditor can not dispose of the property without another publication of the list of forfeited lands to be sold, the names of the owners, the time and place of the sale and the amount of the delinquency. If foreclosure is the method used to enforce the tax lien against the property on the delinquent land list, it is provided by §5718-3 GC that the action shall proceed the same as an action to foreclose the lien of a mortgage requiring either personal service or constructive service. It is, therefore, evident that the legislature did not intend the first publication of the delinquent land list at the time the land was certified delinquent as jurisdictional. Failure to make such publication even though designated as “mandatory” does not involve the due process clauses of either the state or federal Constitution. The property rights of the plaintiff to his land can not be disturbed until notice is subsequently given either in an action to order a forfeiture or to institute a foreclosure proceeding.

The Supreme Court in the case of Miller v. The Lakewood Housing Co., 125 Oh St 152 in considering the effect of failure to publish the list of property certified delinquent under the provisions of §5704 GC before it was amended August 11, 1943, to provide that publication of the list should be mandatory, held by Paragraph 3 of the Syllabus:

“Under the foreclosure proceedings on delinquent lands prescribed by the present Code, the publication by a county auditor of the list of delinquent lands in his county, in accordance with the provisions of §5704 GC, is not mandatory.” And the Court said on page 161—

“Whether a statutory requirement is mandatory or directory depends on its effect. If no substantial rights depend on it and no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the statute will generally be regarded as directory; but, if not, it will be mandatory. This is the rule usually followed in this state in deciding whether statutory provisions constitute conditions precedent whose omission invalidates further action under the statute in question.”

The procedure for dealing with delinquent lands except for the amendment to §5704 GC and the provision for forfeiting lands to the state when foreclosure is impractical is now the same in principle as when the foregoing case was decided. And, on page 163 of the opinion the Court said:

“Under the new statute, the old tax sale is abolished and regular foreclosure proceedings, forbidden to be begun until taxes are delinquent four years, are provided in lieu thereof,, with marshaling of liens and due process by personal service upon the landowner. Secs. 5717 and 5718 GC. As the statute now stands, no right of the taxpayer is prejudiced by the failure of the officer to publish the list and notice in accordance with §5704 GC, because now the taxpayer receives ample notice by summons in foreclosure. These provisions as to notice were formerly necessary for the rights of the parties jeopardized by the sale, but they are'no longer necessary for the protection of those rights.”

We must conclude, therefore, that proceedings subsequent to the alleged failure to publish the certificate of delinquency were not void. The omission, if in fact there was such, should have been presented upon the hearing of the application to forfeit such lands. We must further conclude that because this action was filed more than qne year from the date of the sale, the provisions of §5762-1, supra, GC, apply and the demurrers of both defendants must be sustained because it was not commenced within the time provided therein.

For the foregoing reasons, the judgment of the Common Pleas Court is affirmed. Exceptions. Order see Journal.

HURD, J, concurs.

THOMPSON, J, dissents.

DISSENTING OPINION

By THOMPSON, J.

The facts are sufficiently stated in the majority opinion. For purpose of explaining my dissent, I wish to emphasize the language of the petition demurred to, reciting, in effect, that no publication of notice, as provided in §5704 GC, was ever made by the County Auditor with respect to parcel No. 1, prior to attempted forfeiture of the parcel in question. In my opinion, the publication required by §5704 GC is mandatory and failure to publish invalidated the subsequent forfeiture proceedings and auditor’s sale.

That part of present §5704 GC pertinent to the instant discussion is as follows:

“It shall be mandatory upon the county auditor to cause a list of the lands on such delinquent land list and duplicate to be published twice, within sixty days after the delivery of the duplicate to the county treasurer, in two newspapers of opposite politics in the English language published in the county and of general circulation therein; provided, however, that, before such publication, it shall also be mandatory upon the county auditor to cause a display notice of the forthcoming publication of the delinquent list and duplicate to be inserted once a week for two consecutive weeks in two newspapers of opposite politics in the English language published in the county and of general circulation therein.”

Apparently no Ohio case has directly passed upon the meaning of the last quoted language, effective August 11, 1943. An earlier form of §5704 GC as contained in 108 Ohio Laws, Part II, 1243, approved February 18, 1920; was interpreted by the Supreme Court of Ohio in Miller v. Lakewood Housing Co., 125 Oh St 152, decided April 6, 1932. The language there under consideration was as follows:

“Each county auditor shall cause a list of delinquent lands in his county to be published once a week for two consecutive weeks, between the 20th day of December and the second Thursday in February, next ensuing, in one daily newspaper in the English language * * •*. There shall be attached to the list a notice that the delinquent lands will be certified to the auditor of state as delinquent, as provided by law.”

The Supreme Court of Ohio in the Miller case came to the conclusion that §5704 GC in its then form was not mandatory, but Chief Justice Marshall did not concur in the third paragraph of the syllabus to this effect. In the opinion, the Supreme Court (Judge Allen), reaching the conclusion that the language of §5704 GC then before the Court was directory, and not mandatory, declared in part as follows:

“Whether a statutory requirement is mandatory or directory depends on its effect. If no substantial rights depend on it and no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the statute will generally be regarded as directory; but, if not, it will be mandatory. This is the rule usually followed in this state in deciding whether statutory provisions constitute conditions precedent whose omission invalidates further action under the statute in question.”

The case of Miller v. Lakewood Housing Co., 125 Oh St 152, interpreting §5704 GC, as enacted in 108 Ohio Laws, Part II, 1243, was followed in a decision by the Supreme Court of Ohio the following year in State ex rel Belt v. Mason, 127 Oh St 574, decided November 22, 1933, affirming 46 Oh Ap 42. This case interpreted §5704 GC as re-enacted in substantially similar language in 114 Ohio Laws 831.

The language we are here called upon to consider appeared for the first time in 116 Ohio Laws 261, passed by the General Assembly on July 16, 1936 and re-enacted in 120 Ohio Laws 154, effective August 11, 1943. It seems to me that the language here before us for consideration differs so substantially from the earlier language that the case of Miller v. Lakewood Housing Co. is inapplicable.

In examining, generally, the principles applicable in determining whether language of a statute is to be construed as mandatory or directory, various tests have been applied. In 50 American Jurisprudence “Statutes,” Sec. 24, it is declared:

“There is no well-defined rule by which directory provisions in a statute may, in all circumstances, be distinguished from those which are mandatory. In the determination of this question, as of every other question of statutory construction the prime object is to ascertain the legislative intention as disclosed by the terms of'the statute, in relation to the scope, history, context, provisions, and subject matter of the legislation, the spirit or nature of the act, the evil intended to be remedied, and the general object sought to be accomplished.”

In Section 25 of the same treatise there is a further discussion of the distinction between mandatory and directory provisions of statutes and in amplification it is stated:

“Generally speaking, those provisions which are a mere matter of form, or which are not material, do not effect any substantial right, and do not relate to the essence of the thing to be done, so that compliance is a matter of convenience rather than substance, are considered to be directory. This is true of statutory provisions for the expeditious, proper, or orderly conduct of business- merely. On the other hand, statutory provisions which relate to matters of substance, affect substantial rights, and are the very essence of the thing required to be done, are regarded as mandatory.”

In 37 O. Jur., “Statutes,” Section 27 discusses the meaning of the word “mandatory.” That section declares as follows: “The word ‘mandatory’ has been used synonymously with ‘indispensable.’ A mandatory provision is one the omission to follow which renders the proceeding to which it relates illegal and void, while a directory provision is one the observance of which is not necessary to the validity of the proceeding.”

See, similarly, State ex rel Jones v. Farrar, 146 Oh St 467 and the first paragraph of the syllabus holding as follows:

“A statute is mandatory where noncompliance with its provisions will render illegal and void the steps or acts to which it relates or for which it provides, and is directory where noncompliance will not invalidate such steps or acts.”

Attention is also directed to 37 O. Jur., “Statutes” Sec. 34, concerning the effect of an amendment by the legislature of mandatory or permissive language. It is there stated that, the amendment of an existing law by the substitution of the word “may” for the word “shall” manifest a clear legislative intent and purpose to make the action therein referred to permissive rather than mandatory. The section then declares:

“Conversely, when a section of an existing law is amended by the general assembly by striking out therefrom ‘may’ and inserting in lieu thereof ‘shall,’ a clear intent is manifested to alter the directory nature of the law and render it mandatory.”

Particularly interesting is the discussion in Sec. 441 on the effect of judicial interpretation of statutory provisions. The latter section declares in part as follows:

“In the interpretation of statutory law after an amendment thereof, the courts may take into consideration the construction by earlier decisions of the statute before its amendment. The body enacting the amendment is presumed to have in mind such judicial construction; and if, in the subsequent statute, it uses different language in the same connection, the presumption arises that a change of law was intended.”

See, also, State ex rel Mittman v. Board of County Commissioners, 94 Oh St 296, where language in the decision of Chief Justice Nichols has been frequently approved in later decisions. The language referred to is as follows:

“Where, as in the instant case, the general assembly deliberately amends an existing law by striking out may and substituting shall, it would be absured for the court to deliberately give the meaning of may to the newly substituted shall. It would indeed be a mockery in the way of construction and would be equivalent to a judicial repeal of the amended act and a judicial reenactment of the former law.”

In reaching a decision with respect to the meaning of §5704 GC, in its present amended form, we should note the changed language, expressing what appears to be the clear intent of the General Assembly to make mandatory the advertisement called for by §5704 GC. Whereas most of the cases discussing the question whether words in a statute are to be construd as mandatory or directory have involved circumstances in which a legislature has used the word “may,” or the word “shall,” the Ohio General Assembly in this instance, presumably, in order that there might be no question as to its intention, not only used the word “shall,” when it amended §5704 GC, but went so far as to specify that the advertisement called for “shall be mandatory.” This change appears particularly important because the General Assembly took this action very shortly after, and it must be assumed with knowledge of, the Supreme Court’s decision declaring that the earlier wording was to be deemed permissive or optional rather than mandatory. Although of course not controlling upon us, we may note that two opinions of the Attorney General of Ohio, shortly after the present law was enacted, expressed the belief that the language of §5704 GC, adopted by the General Assembly after the Ohio Supreme Court’s decision in the Miller case, is mandatory with respect to advertisément. See 1937 Opinions, Attorney General, No. 786 and, also, 1938 Opinions, Attorney General, No. 2375.

I believe that only by giving mandatory meaning to the language of §5704 GC are we able to reach the conclusion that the due process rights of the individual are protected as guaranteed by the U. S. Constitution, Amendment XIV, and the Ohio Constitution, Art. I, Sec. 16. The majority opinion finds such protection in the publication required by §5718-lb GC, but the language oí that section appears less clearly mandatory and more readily susceptible of directory interpretation than the publication provided for in §5704 GC.

Reverting to the decision of the Ohio Supreme Court in Miller v. Lakewood Housing Corporation, 125 Oh St 152, it is not without significance that the case in question is discussed in a note in 81 A. L. R. 1246, entitled “Necessity of publishing list of lands delinquent for nonpayment of taxes, and effect of failure to publish list” and that the note summarizes the law on the subject generally as follows:

“Where a statute requires the publishing of a list of the lands which are delinquent for non-payment of taxes, it is generally held that such statute must be strictly followed, since it is designed to give notice to the landowner of the fact of delinquency and of the amount of the taxes. The cases are numerous holding that an irregular publication in any particular will avoid a subsequent sale of the delinquent lands.” * * *

Believing that the present language of §5704 GC, calling for publication of delinquent lands by the county auditor requires a mandatory act, I feel that failure to publish invalidated the subsequent forfeiture proceedings. On that basis, the plaintiff’s petition stated a cause of action with respect to parcel I and the provisions of §5762-1 GC, declaring that no action shall be commenced, nor shall any defense be set up, to question the validity of the title of purchasers at tax sale for any irregularity, informálity or omission in the proceedings relative to the foreclosure or forfeiture, unless commenced within one year after the deed to the property is filed for record, become, in my opinion, inapplicable. The failure of the auditor in this case to make publication as required by §5704 GC, constituted more than an irregularity, informality or omission, in proceedings and notice was withheld to which the landowner was entitled. If the judgment in the forfeiture proceedings was void because of lack of jurisdiction, it can be collaterally attacked. 23 O. Jur., “Judgments” Sec. 988. The other questions raised in the briefs on the basis become irrelevant.

I believe the judgment of the trial court should*be reversed and the cause remanded with instructions to overrule the demurrers and for further proceedings according to law.


author: By PHILLIPS, PJ.

text:
    MYERS, Plaintiff-Appellant, v. MONDA, Exr., Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3307.
    Decided November 7, 1949.
    Friedman & Rummell, Youngstown, for plaintiff-appellant.
    Morgan, Powers & Cooper, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

In this opinion plaintiff and defendant in the court of common pleas, and appellant and appellee respectively in this appeal, will be referred to as they stood in the court of common pleas.

Plaintiff sued defendant, executor of the estate of Marie Monda, in the court of common pleas to recover the proceeds of a note held by and payable to her, allegedly signed by defendant’s decedent.

The jury returned a verdict for the defendant, upon which the trial judge subsequently duly entered judgment, from which judgment plaintiff appealed to this court on questions of law; contending that “the verdict of the jury was based on passion and prejudice, is contrary to the evidence, to the manifest weight of the evidence,” and “to law,” and claiming “other errors prejudicial to her rights.”

Plaintiff’s daughter testified that she drew the note and signed as a witness thereon at the request of defendant’s decedent, which decedent signed in her presence and that of plaintiff, who at that time returned a note formerly executed by defendant’s decedent to her.

Plaintiff testified on cross examination that years ago she had been arrested for keeping a “disorderly house,” which counsel for plaintiff claims “filled the minds of the jury with passion and prejudice,” but to which he did not object nor except, after the receipt of which defendant’s counsel stated by brief “I saw my action go right out the window”; that defendant promised to pay the note sued upon when he sold his farm or his car, but never kept his promise.

Defendant’s witness and employee, a former employee of defendant’s decedent, who qualified as being familiar with the signature of defendant’s decedent, testified that the signature on the note sued upon was not the signature of defendant’s decedent.

Another of defendant’s witnesses, a clerk in a department store, who likewise qualified as a witness familiar with the signature of defendant’s decedent, also testified that the signature on such note was not that of defendant’s decedent.

Defendant testified that notes bearing the alleged signature of decedent were exhibited to him on two occasions in the offices of his counsel and plaintiff’s counsel respectively, neither of which was the note exhibited to him in the court of common pleas upon which suit was brought.

Exhibits containing an admitted genuine signature of defendant’s decedent were introduced into evidence.

We have read the meager bill of exceptions submitted to us for review, and, without further reference to the evidence contained therein, conclude that the plaintiff was not prejudiced in the trial in the court of common pleas in any of the respects urged, upon which we pass.

Appellant’s counsel has failed to call our attention to “other errors prejudicial to the rights of the plaintiff-appellant” as alleged as a ground of error; nor to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

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


author: By BADER, J.

text:
    JOHNSON v. AVONDALE MOTOR CAR CO.
    Common Pleas Court, Hamilton County.
    No. A-126682.
    Decided April 3, 1952.
    Henslee, Monek & Murray, Chicago, 111., Schmidt, Effron, Josselson & Weber, Cincinnati, for plaintiff.
    McCaslin, Imbus & McCaslin, Cincinnati, for defendant.
   OPINION

By BADER, J.

This case comes before the Court to be heard on motion of the defendant, the Avondale Motor Car Company, for an order requiring General Motors Corporation to be made a party defendant.

The reason given for the motion is that any liability, if any, under the allegations in the petition of a breach of warranty, would ultimately be that of the General Motors Corporation. The memorandum attached to the motion alleges that the Avondale Motor Car Company would have the right of restitution in the event any liability was incurred by breach of warranty against General Motors Corporation.

The mover set forth §11255 GC as authority for the motion.

Sec. 11255 GC, reads as follows: “Sec. 11255 GC. Joinder of defendants. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein. (R. S. Sec. 5006.1 ”

It has been held that in order to bring one in as a party under the above section his presence must be essential to the determination of the controversy before the court. The mere fact that the Avondale Motor Car Company would have a right of action or a “right of restitution in the event on any liability incurred, by reason of breach of warranty against General Motors Corporation” does not mean that the General Motors Corporation is essential or is a necessary party for the determination of the issues before the Court

The plaintiff has seen fit to institute litigation against the defendant which he has a right to do. Certainly the defendant now in the case cannot compel the plaintiff so institute litigation against some other person in order that differences and controversies existing between the two defendants may be settled in this case. See: Moeser, Trustee v. Republic Dist. Co., 10 Oh Ap 356.

The Court is of the opinion that the General Motors Corporation is not an essential or necessary party for the determination of the issues raised by the pleadings.

Accordingly, the motion to make the General Motors Corporation a party is overruled.


author: By MILLER, J.

text:
    STICKELS et., Appropriation of an Easement, In re.
    Ohio Appeals, Second District, Madison County.
    No. 180.
    Decided October 18, 1951.

      Gerald A. Baynes, London, for plaintiffs-appellants.
    Hon. C. William O’Neill, Atty. Geni., Everett H. Krueger, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Court of Common Pleas rendered upon the verdict of a jury. The record reveals that on July 26, 1950, the Director of Highways instituted a proceedings to appropriate certain property of the appellants for highway purposes and in accordance with the resolution and finding filed therewith caused the sum of $2045.30 to be deposited with the Clerk of Courts. From this finding the appellants perfected an appeal and the issue was submitted to a jury on April 26; 1951. The jury assessed the total compensation and damages due the landowners, appellants, including a separate finding as to the value of structures located on the land, at $3800.00.

The first assignment of error alleges that the verdict is not sustained by the evidence and is against the manifest weight of the same. We have examined the entire record on this subject and find that it is not well taken. The record discloses that the appellants offered evidence through various witnesses tending to establish the total compensation due them was between the sums of $9200.00 and $15,600.00. On the other hand, the appellee’s witnesses fixed the same as being between $2743.00 and $3200.00. The appellants are contending that the questions propounded to the appellee’s witnesses as to the market value can have no probative weight because the manner of determining the fair market value, that is, as between a willing buyer and a willing seller, was not used as a preface to the questions, they being only asked to state the fair market value. We find nothing in the record tending to show that these witnesses did not comprehend the meaning of this term or that they misapplied it in reaching their conclusions. These witnesses were fully cross-examined by counsel for the appellants and their knowledge could have been tested on the meaning of the words, which was not done. The term “fair market value” was defined in the appellants’ special instruction No. 2 given to the jury before argument, as well as in the court’s general charge. So it must be assumed that the jury had a full and complete understanding of the phrase.

The appellants also complain that these witnesses were not asked to base their opinion on the highest and best use

that could be had of the property. The rule of valuation in land appropriation proceedings is not what the property is worth for any particular use, but what it is worth gen-

erally for any and all uses for which it might be suitable, including the most valuable uses to which it could reasonably and practically be adapted. In re Appropriation by Supt. of Public Works v. Schaeffer, et al., 155 Oh St 454. It is well established that a verdict will not be set aside on error on the weight of the evidence unless it is so clearly unsupported as to indicate misapprehension, bias or wilful disregard of duty. We find no such facts here as there was clearly a conflict in the testimony which had to be weighed by the jury and may not be by a reviewing Court.

It is urged next that the court erred in charging the jury that the verdict must be based upon the value of the property at the time the property is taken, which is the time of trial, and in refusing to instruct that the time of taking was July 26, 1950, when the proceeding was instituted. At the outset it will be noted that the appellee did not actually enter upon the premises or take over physical possession of the same prior to the trial. In order that determination of the time of taking may be made it becomes necessary that the Constitution and statutes governing eminent domain be construed. The constitutional provision directly applicable to the appropriation of private property is Section 19 Article I of the Bill of Rights, which reads as follows:

“Private property shall ever be held inviolate but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money; and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

This section, which operates as a limitation on the sovereign power of eminent domain, requires the payment of compensation or the deposit thereof before the taking of private property for a public use in all cases except where such property is taken in time of war or for the purpose of making or repairing roads. In this connection the Supreme Court of Ohio has defined the meaning of the phrase “where private property shall be taken for public use,” as pronounced by Section 19, Article I of the Constitution. Paragraph 3 of the syllabus of The Pontiac Improvement Company v. Board, 104 Oh St 447, 13 N. E. (2d) 635 reads:

“3. The phrase, ‘where private property shall be taken for public use,’ contained in Section 19, Article I of the Constitution of Ohio, implies possession, occupation and enjoyment of the property by the public, or by public agencies, to be used for public purposes.”

While the quoted case involves the question of “right and power to appropriate,” the foregoing evinces that the Supreme Court construes this phrase to contemplate actual possession and occupation of the property appropriated as precedent to the taking of private property by a public agency.

Considering next the section of highway laws pertinent hereto, §1178-37 GC, authorizes the Director of Highways to appropriate property for highway purposes and outlines the required procedure therefor. This section specifies that upon the filing of the resolution or finding and the deposit of the amount fixed by the Director which he deems to be due the landowner for compensation and damages, if any, the Director then “* * * shall be authorized to take possession of and enter upon said property for any and all such purposes.” The deposit, it is to be noted, is required by the next section to be returned forthwith to appellee upon perfection of appellant’s appeal. See. 1178-38 GC prescribes the manner for appeal by the property owner from the amount fixed by the Director and the general procedure for trial in appropriation cases.

It further provides that upon the filing of a petition in error as herein done by appellants.

«* * * rig^ 0f ^e State to possession of the property shall not be affected by such review.”

This provision recognizes the importance to the general welfare of the construction of public highways and was enacted to preclude the delay of such construction during appellate review. This section also sets forth the provision enabling appellee to abandon appropriation proceedings, to wit: “The Director of highways, if he has not occupied or changed the property appropriated, shall be authorized, at any time, but not later than thirty days after the final determination of the cause, to elect to abandon the appropriation proceedings upon the payment of the costs and reasonable attorney fees to be fixed by the court.”

This provision, it would seem, indicates the Legislature contemplated the Director of Highways might or might not take possession of the premises subject to appropriation prior to the trial. In this connection, the above cited provision of §1178-37 and 1178-38 GC should be read in pari materia with §1178-39 GC, which reads as follows:

“When a building or other structure is situated upon the land appropriated for any highway improvement, or is situated partly upon the adjoining land so that such structure cannot be divided upon the line between such lands, without manifest injury thereto, the jury, in assessing compensation to any owner of the land, shall assess the value thereof, exclusive of the structure, and make a separate finding of the value of the structure and the title to said structure shall vest in the state with the right to enter upon the site of said structure and adjoining land upon which the structure is located for the purpose of removing Said structure therefrom.”

In the case at bar a number of structures were situated upon appellants’ land. Accordingly under the prohibitory provisions of the foregoing section the title to said structures would not vest in the State nor would the State have the right of entry upon the site of said structures for the purposes of removal thereof until after the award had been determined. : It appears that the intendment of this section is that there can be no taking of property subject to appropriation by the Director of Highways where buildings or other structures are situated in whole or in 'part upon the property to be taken until the jury has assessed the value thereof. This prohibition would seem to protect the interests of the landowner in that the structures situated upon the land to be appropriated, which structures are to be valued separately by the jury, may not be removed prior to the trial and view of the premises by the jury.

The appellants argue that the taking occurs at the time the Director of Highways flies his resolution or finding; that the right of entry upon the premises subject to appropriation accrues to appellee contemporaneously with the filing of said resolution and finding, and that this right of entry alone is equivalent to the taking of private property for public use. This contention is rebutted by the provisions of the statute applicable to appropriation of property by the State Highway Department.

1. Where structures are situated upon premises to be appropriated the vesting title to said structures is stayed and the right of entry upon the premises for the removal of the structures is prohibited by §1178-39 GC until after assessment by the jury of the respective valuations of the land and structures.

State. The law is well settled in this State as in most other jurisdictions that the fair market value of property subject to appropriation is to be computed and assessed as of the time of taking. We think the law of this State is to the effect that the taking occurs at the time the condemnor takes possession of the property appropriated or alternatively, at the time of the trial in the absence of prior sub-2. Sec. 1178-38 GC giving appellee the authority to abandon appropriation proceedings is indicative of the legislative intent that the “taking” does not occur until after the property subject to appropriation has actually been occupied by the

jugation of the property by the condemnor to possession, occupancy and enjoyment of use. We find no cases directly construing the foregoing sections with respect to determination of the time of taking. However, we do find a number of cases pertaining to other condemnation statutes and appropriation procedures which appear to throw some light upon this subject.

Section 19, Article I of the Constitution, together with the condemnation statutes relating to conservancy districts were the subject of construction by the Supreme Court in the case of Miami Conservancy District v. Bowers, 100 Oh St 317. The appropriation procedures for conservancy districts are comparable in many respects to that prescribed by the cited section of the Highway Laws. In lieu of fixing the valuation of the property subject to appropriation by an executive or administrative office and the deposit thereof in court the Conservancy Act provides for the fixing of such valuation by the board of appraisers, to which valuation the landow.ner may agree or except. An exception is effected by the filing of an appeal and the final determination thereof is made by a jury in much the same manner as specified by §1178-38 GC. At page 319 of the Bowers case, supra, the court said:

“* * * In this instance there was a failure to agree, the property owner having filed exceptions to such report There was, therefore, no ‘taking’ of this property, and could not be under the provisions of the Constitution above quoted, without a trial by jury; and, consequently, no ‘taking’ until then. It is clear, therefore, that the action of the trial court, holding that the ‘taking’ of said property did not occur on July 30, 1917, the date of the confirmation of the appraisement by the conservancy court, was correct, and, hence, the court properly excluded evidence of market value of the property as of that date and permitted evidence of market value only as of the time of the trial.”

A like result was reached in an appropriation proceeding initiated by a municipal corporation in the case of Nichols v. Cleveland, 104 Oh St 19, wherein it was stated at page 27: “And the law is well settled that under these provisions of the Constitution, Article I, Section 19 and Article XIII, Section 5, the property' should be valued as of the date when the jury views the premises.”

In the case of Ornstein v. C. & O. Railroad Co., 26 Abs 78, by this Court, it is said at page 84:

* * jn Ohio the general rule of fixing value of property appropriated under the right of eminent domain is as of the date of the impaneling of the jury.”

In the case of 23 Tracts of Land, etc. v. United States, 57 Abs 135, at page 138 on this subject the court says:

“The filing of a petition in condemnation without taking possession is not a taking. The condemnor may discontinue or abandon his effort. * * * But it would seem clear that the taking of physical possession of the property by the Government and the appropriation of it to its own purposes is a taking for which the then owner is entitled to compensation under the Constitution.”

In view of the foregoing authorities we hold that the trial court committed no error in instructing the jury that the value of the property taken should be fixed as of the date of the trial. Counsel for the appellants have cited numerous cases from foreign jurisdictions which are of no assistance in the light of the Ohio authorities cited and also since the Constitution and laws are at variance with those of this State.

The court did not err in refusing to instruct the jury that the appellants were entitled to interest from July 26, 1950.

We find none of the other errors assigned well taken and since they were set forth in the appellants’ motion for a new trial and were fully answered by the trial court in its opinion overruling the motion, it would serve no good purpose for us to extend this opinion by reenumerating the reasoning of the trial court.

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

WISEMAN, J, concurs.

HORNBECK, PJ, not participating.


author: By BELL, J.

text:
    COLLOPY v. HALOWAY.
    Common Pleas Court, Hamilton County.
    No. 124442.
    Decided July 24, 1952.

      C. William O’Neill, Atty. Geni., Leon M. Render, Asst. Atty. Geni., Columbus, for Board of Review.
    C. William O’Neill, Atty. Geni., John W. Hardwick, David V, Attig, Asst. Attys. Geni., for appellant.
   OPINION

By BELL, J.

This is an appeal by Frank J. Collopy, Administrator, Bureau of Unemployment Compensation. The appellees are Elsie May Haloway, Frederick A. Schmidt, Inc., Central Trust Co., Inc. and the Board of Review, Bureau of Unemployment Compensation.

The controversy here is between the administrator and the Board of Review, Appellee. Elsie May Haloway, Frederick A. Schmidt, Inc. and the Central Trust Company, Inc. assert no claim here.

On the hearing the court expressed grave doubt as to the authority of the administrator to appeal under the factual situation here presented.

Both the administrator and the board are represented by the Attorney General of Ohio.

It is claimed by the Assistant Attorney General representing the Appellant that by virtue of the provisions of §1345-1-g GC the administrator has a blanket authority’to appeal any decision entered by the Board of Review.

The Assistant Attorney General representing the Board of Review, Appellee, does not contest the authority asserted by the Administrator.

The facts are substantially as follows:

On May 5, 1950 Elsie Haloway filed an application for benefits under the Unemployment Act. Elsie Haloway, the applicant, was an employee of Frederick A. Schmidt, Inc., a real estate agency, that operated a building located at Seventh and Race streets, presumably owned by the Central Trust Company, Inc. On April 19, 1950 applicant left her employment and went to take care of a married daughter who was ill at her home in Kentucky. Upon her return she reported for work and was informed that her place had been filled. Thereafter the application for benefits was filed. The application was disallowed by the administrator (appellant here) who held:

“Claimant quit work because of parental obligations. Benefit rights shall be suspended as of April 16, 1950, until claimant secures employment and is separated totally or partially therefrom in accordance with Section 1345-6-d (7) of the Unemployment Compensation Act.”

The applicant appealed the administrator’s decision to the Board of Review. Upon consideration the Board of Review came to the following conclusion:

“The Administrator’s initial determination' of claim dated May 23, 1950, is hereby modified. Claimant did not quit work because of parental obligations, under §1345-6 (7) GC, but quit work voluntarily with just cause. However, as of April 16, 1950, claimant was not available for'and actively seeking suitable work. Therefore, under the provisions of §1345-6a (4) GC, claimant’s benefit rights are suspended as of April 16, 1950, until she establishes eligibility for benefits.”

It should be noted in passing that the administrator did not and could not appeal from his own conclusion to the Board of Review. It should be noted further, as stated by counsel for appellant, both the administrator and the Board of Review arrived at the same conclusion. The administrator based his conclusion upon the proposition “Claimant quit work because of parental obligation.” The Board of Review based its conclusion upon the proposition that claimant “quit work voluntarily with just cause.” This appeal is filed for the purpose of determining whether the reasoning of the administrator or the reasoning of the Board of Review is correct.

The court is of the opinion that this appeal should be dismissed for two reasons:

First. Assuming without deciding that the Administrator is properly before the court, it is my considered judgment that the statute cannot be so construed as to grant authority to the administrator to appeal from a decision of the Board of Review wherein such board arrived at the same conclusion as the administrator; keeping in mind that the sole question for determination before the administrator was whether or not the applicant was entitled to enjoy the benefits of the Unemployment Act and that was the sole question before the Board of Review. Both authorities arrived at the same conclusion. True, the conclusions were reached by different processes of reasoning but the fact remains the conclusions were the same.

It is well settled in Ohio that where an administrative agency arrives at a correct conclusion, upon review, a court will not be concerned with the reasoning by which the conclusion was reached.

Second. In the instant case the court is requested only to determine whether the reasoning of the administrator or that of the board is correct. Hence no justiciable question is presented. For the reasons stated the appeal is dismissed.