author: By EMMONS, J.

text:
    McGOWEN etc., Plaintiff, v. SHAFFER et, Defendants.
    Common Pleas Court, Summit County.
    No. 187507.
    Decided April 6, 1953.

      Johnson, Whitmer & Sayre, for plaintiff.
    Wm. Spencer, E. Genovese, Akron, for defendants.
   OPINION

By EMMONS, J.

This is an action brought by the plaintiff on behalf of himself and others similarly situated, against the County Board of Health of Summit County, Ohio, to determine the validity of the revised sanitary code as passed by the Summit County Board of Health on November 1Y, 1945, amended on May 29, 1952, and December 15, 1952, and if found invalid, in whole or in part, to perpetually enjoin the defendant Board from enforcing the provisions of the code or such sections as are found to be invalid.

The court in its opinion will make a determination of the several points set out in the plaintiff’s brief as follows:

FIRST: THAT THERE IS NO STATUTORY POWER UNDER WHICH THE BOARD MAY PASS REGULATIONS RESPECTING LICENSING OF MASTER AND JOURNEYMEN PLUMBERS.

Reading §§3516 and 3637 GC, together, the legislature gave the municipalities of Ohio the right to provide for the licensing of plumbers, sewer tappers and so forth, and gave the respective councils of these cities power to enforce that right by ordinance or resolution.

Sec. 1261-16 GC:

“For tbe purposes of local health administration the state shall be divided into health districts. Each city shall constitute a health district, and for the purposes of this act shall be known as, and hereinafter referred to, as a city health district. The township and villages in each county shall be combined into a health district, and for the purposes of this act shall be known as, and hereinafter referred to, as a general health district.”

Sec. 4420 GC provides in part:

“Except in cities having a building department, or otherwise exercising the power to regulate the erection of buildings, the board of health may regulate the location, construction and repair of waterclosets, privies, cesspools, sinks, plumbing and drains. In cities having such departments or exercising such power, the council by ordinance shall prescribe such rules and regulations as are approved by the board of health, and shall provide for their enforcement.”

It is to be noted that in any event the municipal .boards of health either regulate plumbing or, if there is a building department and so forth, the board of health must approve the rules and regulations as are passed as ordinances by the city council, thus, there is a control manifested by the municipal board of health, either by direct supervision of approving the ordinance adopted by council.

Referring to the general health district board, §1261-42 GC provides in part:

“All orders and regulations not for the government of the board, but intended for the general public, shall be adopted, recorded and certified as are ordinances of municipalities and record thereof shall be given in all courts of the state the same force and effect as is given such ordinances * * *”

Sec. 1261-30 GC provides in part:

“The district board of health hereby created shall exercise all the powers and perform all the duties now conferred and imposed by law upon the board of health of a municipality # *

By these statutes then the general health districts of Ohio are given the same rights as those given to the municipal boards of health, along with the right to make such other rules and regulations as they deem necessary.

Counsel for plaintiff contends that the word “may,” as used in §4420 GC, vests a discretion in the boards of health. However, in 32 Pacific 365, Kansas City W. & N. W. R. Company v. Walker et al, the court quoted Bish. St. Crimes, second edition, paragraph 112:

“ ‘May be dismissed,’ in section 397 of the code, should be construed to read ‘shall be dismissed.’ ”

And in the case of Bansemer et al v. Mace et al, 18 Indiana 27:

“Syllabus 4. In the construction of statutes the word ‘may’ will be construed to be synonymous with the word ‘shall’ where public interests and rights are concerned * * *”

The court, therefore, cannot agree that “may,” as used in the statutes supra, vests a discretion, but rather does the word mean that the boards of health in each district shall pass such rules and regulations as they deem necessary for the maintenance of the health and welfare of the public.

In the dictum of Realty Company v. Youngstown, 118 Oh St, page 215, the court said:

“Inspection and regulation accompanied by a license fee constitute an exercise of the police power.”

Ohio Attorney General’s Opinion 1729, written August 11, 1952, on page 431, after citing the case of Heilman Restaurant, Inc., v. LeFever, which was case No. 1209 Lorain County, and decided by the Ninth District Court of Appeals, but unreported, the writer stated:

“There is nothing in the decision to indicate that the court in any way questioned the possibility that such licensing power might have been conferred upon the board of health by a necessary implication in the statute prescribing the power of such board.”

And the writer continued:

“From all the foregoing it will be apparent that while the law is not fully settled in Ohio on the point, there is considerable authority for the proposition that boards of health may, as an incident to the regulation of an occupation which directly affects the public health, prescribe a licensing system therefor.”

10 Ohio Nisi Prius, New Series, 196 Wolfe et al v. City of Columbus:

“Syllabus 2. A license exaction in a proper case may reasonably include the costs of issuing the license and the necessary or probable expense of inspection and regulation, and the exaction will be presumed to be reasonable unless the contrary appears on the face of the ordinance imposing it, or it is established by proper evidence.”

This court is of the opinion that while the statutes do not expressly give the defendant Board the right to license master plumbers and register journeymen for a fee, by reason of the powers given the Board by statute there is an implied authority to so license and register, as well as the fact that it constitutes a proper and inherent exercise of police power.

SECOND. THAT THERE IS NO STATUTORY POWER TO ORDER AND REQUIRE PERMITS PREPARATORY TO THE INSTALLATION OF PLUMBING ON THE INSIDE OF A PRIVATE DWELLING.

Counsel for the plaintiff, to substantiate his theory, quotes §1261-42 GC, which provides in part that:

“The board of health of a general health district may make such orders and regulations as it deems necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement or suppression of nuisances, and shall have the power to require that no human waste, animal waste or household wastes from sanitary installations within the district shall be discharged into a storm sewer, open ditch or watercourse without a permit therefor having been first secured from the board of health of the health district * * *”

It is contended that since the statute supra sets forth no other occasion for issuing permits other than for discharging waste into storm sewers and so forth, that this inclusion alone thus excludes the right to compel the issuance of other permits. This court does not think so, for this reference to permits in §1261-42 GC, does not exclude the right to order other permits. The legislative intent in this section of the law was that because of the great danger of infection and contagion such a practice referred to in this statute could only be made possible by a permit from the board of health, in order that the board might properly supervise this dangerous act. Certainly, by scrutinizing the power given the general health district board, and by reason of their police powers, the board would legally have the right to order permits to be had in the regulation and operation of their duties.

THIRD. THAT THE STATUTE DOES NOT EMPOWER THE BOARD OF HEALTH TO CHARGE A FEE FOR THEIR SERVICE, AND BY THE WORD “FEE” I TAKE TO MEAN AN INSPECTION FEE.

Sec. 1261-26 GC provides in part:

“The district board *of health may also provide for the inspection and abatement of nuisances dangerous to public health or comfort, and may take such steps as are necessary to protect the public health and to prevent disease ”

In the case of Realty Company v. Youngstown, cited in 118 Oh St at page 214, Chief Justice Marshall said:

“Where the authority is lodged in a municipality to inspect and regulate, the further authority to charge a reasonable fee to cover the cost of inspection and regulation will be implied.” (See Attorney General’s Opinions for 1941, pages 889 and 890.)

Since the right to regulate plumbing is given the defendant Board, it follows that to regulate they must inspect, and, impliedly, the right to inspect gives the Board the right to charge for that inspection.

Thus, in so far as the first three points are concerned, and as long as the charges made therefor are not excessive, the defendant Board would have the right to license, register, issue permits for a fee, and to charge for inspection as such rights are in the exercise of proper police power and are implied by reason of the authority given the defendant Board by the statutes of the State of Ohio.

FOURTH. SUPPOSING THAT §§1261-30, 1261-42 and 4420 GC GAVE THE DEFENDANT BOARD THE POWER TO PASS REGULATIONS REFERRED TO HERE, PLAINTIFF THEN CONTENDS THAT SUCH STATUTORY AUTHORITY IS UNCONSTITUTIONAL IN THAT THE BOARDS OF HEALTH DO NOT OPERATE UNIFORMLY THROUGHOUT THE STATE AND THAT THEY ARE WITHOUT PROPER STANDARDS, AND THAT WHAT POWER IS GIVEN THEM IS A DELEGATION OF LEGISLATIVE POWER.

Article II, Section 26, of the Ohio Constitution provides in part:

“All laws of a general nature shall have uniform operation throughout the state * * *”

92 Oh St 115, The Steele, Hopkins & Meredith Company v. Miller:

“Syllabus 2. A statute is general and uniform, within the requirements of the constitution, if it operates equally upon every person and locality within the circumstances caused by the act, and when a classification has a reasonable basis it is not invalid merely because not made with exactness or because in practice it may result in some inequality.”

Surely the law of local option, §6064-31 GC, and municipal ordinances controlling the sale of intoxicating liquor, and the city ordinances setting up traffic regulations result in some inequality and are definitely not in conformity one with the other, yet within the confines of the cities or townships certain conditions prevail which make it more necessary for added regulations and restrictions than in other cities or townships. These differences are justified and recognized by reason oí the police power of the cities or townships.

City of Akron, Appellee, v. Scarlera, Appellant, 135 Oh St 65:

“Syllabus 2. An ordinance of a municipality prohibiting therein the sale of beer on Sunday is a valid local police regulation * * *”

City of Youngstown v. Evans, 121 Oh St 342:

“Syllabus 1: The power conferred upon municipalities to enforce within ■ their limits local police, sanitary and other similar regulations is only limited by general laws in conflict therewith upon the same subject matter.”

In Welch v. Cleveland, 97 Oh St at page 314 Justice Wanamaker said:

“Section 26, Article II, of the Constitution of Ohio has no application to municipal ordinances. From their very language municipal ordinances are limited to the municipalities and those within its borders.”

Counsel for plaintiff cites 56 Oh St 25, Gaylord et al v. Hubbard, Treasurer, in which it was held that to provide for the appointment of a board of equalization and assessment in cities of the second grade of the first class confers on the annual board of equalization, created by the act, powers that substantially differ from those conferred upon all other annual boards of equalization in the state by the general statute upon that subject, and for that reason conflicts with Section 26, Article II, of the Ohio Constitution and is void.

However, in this case the general law is uniform, both for creating boards of health and conferring upon those boards uniform powers and duties, and as such are valid enactments. The boards of health are more peculiarly in a different category than most boards, for because of the danger of contagious and infectious diseases and contributing factors thereto the boards must be so legally endowed and situated that they can act with speed and independence, without regard for the other boards of health of the State, as long as there is no conflict with the general laws.

100 Oh St 456, Leonard, Junior, v. State:

“Syllabus 1. The measure of police power available to the government is the measure of public need, whether it apply to health, safety, protection or general welfare, except as qualified by state and federal constitution.”

What is the measure of public necessity in the general board of health district?

That determination rests upon the defendant Board in this particular instance, and unless there is an abuse of discretion or fraud exercised by the board the courts will not intervene.

99 Oh St 369, Brannon v. The Board of Education:

“Syllabus 2. A court has no authority to control the discretion vested in a board of education by the statutes of this state, or to substitute its judgment for the judgment of such board upon any question it is authorized by law to determine.
“Syllabus 3. A court will not restrain a board of education from carrying into effect its determination of any question within its discretion except for an abuse of discretion or for fraud or collusion on the part of such board in the exercise of its statutory authority.”

The plaintiff asks how public necessity as plumbing sanitation may be present in Summit County and. not Portage or other surrounding counties.

What the conditions are in the surrounding counties is not before the court. Whether their situation is comparable or not is of no concern. The general boards of health of those counties have the same rights and powers and duties as does the Summit County Board, and they alone pass upon the necessity of regulations and problems presented to each board, which conclusion will not be disturbed by the court unless, as indicated, there is an abuse of discretion, collusion or fraud.

Counsel for the plaintiff is of the opinion that since the operation and regulation by each board of health is not exactly the same, or in conformity with the other boards, it is unconstitutional. The general law passed by the legislature is uniform in its operation, however, in the practice of the various boards of health it may result in some inequality or inexactness, still that fact does not cause the same to be unconstitutional.

It is also claimed by the plaintiff if there is statutory authority given the boards of health to license, issue permits or charge inspection fees, then those statutes are unconstitutional in that they do not establish proper standards and are a delegation of legislative power.

The plaintiff quotes Harmon v. State, 66 Oh St, page 249. In this case the Court found that the “Roberts Law” was unconstitutional since the law gave the examiner a right to find whether applicants were competent and trustworthly, no standards were furnished as to the qualification and no specifications as to wherein the applicant should be trustworthy and competent, but all was left to the opinion, finding and caprice of the examiner. There were six examiners throughout the state, and the court evidenced the thought that each would have a different standard for a state engineer’s license, and for allowing the examiner in each district, in effect, to make the law for his district, limited only by his will as to what constituted the standard of qualifications of engineers, would be granting legislative power to such examiner.

The Roberts Law concerned the licensing of engineers for state-wide practice, and because of the fact that each examiner, in effect, made the law, that empowered the examiners with legislative authority.

In the instant case, the operations of the general health board concerns only its particular district. The members of the Board of Health of Summit County General Health District appoint six persons to comprise a board of plumbing examiners, composed of two licensed master plumbers, two journeymen plumbers, one person representing the Board of Health and one person the general public. The Board examines applicants as to their practical and theoretical knowledge of plumbing, house drainage, sewage disposal, and also their knowledge of the plumbing and sanitary regulations of the Summit County General Health District Board of Health.

There is no legislative authority passed on to the defendant Board by reason of these regulations. The Board is only exercising proper police power and its implied authority given it by the statutes of the State of Ohio, which are to be interpreted in a broad sense. (See 20 O. Jur., page 558.)

In Ex-parte Company, 106 Oh St, page 50, Justice Clark on page 57 stated:

“It is claimed further in behalf of the petitioners that- the legislature is without power to delegate its law-making authority. The distinction between the power granted to legislate and the power granted to administer marks the difference between the contention urged and the true question herein to be considered. It is sufficient that the power of the legislature to authorize administratrive authority on the parts of boards of health and subdivisions of the state and to authorize the adoption of such instruments of its choice of rules and regulations affecting public health, including the power to detain and quarantine, has been considered and upheld in People v. Tait, 261 Illinois 197; State v. Norman, 76 New Hampshire 541; Highland v. Schultz, 123 Michigan 360; City of Taunton v. Taylor, 116 Massachusetts 254; Isenhour v. State, 157 Indiana, 517, and so forth * * *

That the legislature in the exercise of its constitutional authority may lawfully confer on boards of health the power to enact sanitary ordinances having the force of law within the district over which their jurisdiction extends, is not an open question.”

Blue v. Beech, 155 Indiana 121:

“Syllabus 1. Section 6711 et seq. Burns 1894, authorizing and empowering the state board of health to adopt rules and bylaws to prevent the spread of contagious and infectious diseases is not a delegation of legislative authority in violation of Article IV paragraph 1 of the constitution vesting the legislative authority of the state in the general assembly.”

Polinsky v. People of New York, 73 New York 65:

“Syllabus 2. The legislature in the exercise of its constitutional authority may confer upon boards of health the power to enact sanitary ordinances having the force of law, within the districts over which their jurisdiction extends.”

The court is of the opinion, after a perusal of the cases herein referred to and from the evidence adduced during the trial, that there was a proper standard for qualifications for licensing and registering and for governing health regulations in this County, and that whatever authority was granted to the defendant Board was not a delegation of legislative right.

FIFTH. THAT THE REGULATIONS AS PASSED ARE ARBITRARY, UNREASONABLE AND DISCRIMINATORY AND ARE PASSED BY THE BOARD OF HEALTH WITHOUT REGARD TO THE RIGHTS OF THE ■ PLAINTIFF, AND THAT THEY VIOLATED THE LETTER AND SPIRIT OF THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION AND ARTICLE I, SECTION I, OF THE OHIO CONSTITUTION.

Article I, Section I, of the Ohio Constitution provides:

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

William et al v. Scudder et al, 102 Oh St, at page 315. Justice Wanamaker stated:

“It has long been a uniform and well settled doctrine that the right of liberty of contract, growing out of one’s trade, occupation or profession is not paramount to the right of public security, morals, safety and welfare, so that the police power has for its basis not only the public health but the right of regulating those occupations or professions which most intimately and vitally affect the public morals, safety and welfare.”

It is the law that to justify the state in thus interposing its authority in behalf of the public it must appear, (1) that the interest of the public generally, as distinguished from those of a particular class, require such interference; and (2) that the means are reasonably necessary for the accomplishment of the purpose and are not unduly oppressive against the individual.

14 Oh Ap 182, Lenhart et al v. Hanna et al:

“Syllabus. Police powers are not superior to constitutional limitation, and legislative action based on such powers is subject to judicial review, and where action thus taken is unreasonable and oppressive, confiscatory and in contravention of the right to carry on an occupation without due regard to law and health of the community, injunction lies against its enforcement.”

106 Oh St, page 50, Company Ex-parte, Justice Clark at page 55 said:

“The right of the state to the exercise of its police power to subject persons and property to reasonable and proper restraints in order to secure the general comfort, health and prosperity of the state, is no longer open to question.”

Counsel for plaintiff argues that plumbing is not a trade as warrants such supervision as the defendant Board has seen fit by their rules and regulations to impose upon the trade.

State of Ohio v. Gardner, 58 Oh St, at page 607, Justice Spears said:

“True it is that the business of a plumber is not ranked with the learned professions and that much of his work is mechanical, merely calling for the exercise of deftness of hands rather than the possession of scientific knowledge, yet a certain degree of training and experience is absolutely necessary to render one intelligent as to the groundwork of his calling as well as competent and skilful in its exercise.
“He is required to put into our dwellings and public buildings tanks, pipes, traps, fittings and fixtures for the conveyance of gas, water and sewage which require, among other essentials, the keeping out and protection against gases which are destructive of health and, not infrequently, of life itself; that it is of the highest importance that the drainage and sewage of our public buildings and private tenements should be as skilfully planned and executed as the modern science admits, would seem not open to question. And surely it is reasonable to suppose that one who has been educated to understand the scientific principle necessarily involved in the work of this character, and to comprehend the reasons and teaching of experience upon which it is based, and the evil results which may follow neglect to observe it, will be more likely to provide the needful safeguards than one who is ignorant upon this subject.”

Due to the nature generally of the work of plumbers and their close connection with sanitation, and the further fact that the general health is largely dependent upon their work, then for the protection of the public, who would be the victims of inferior and faulty installations, the defendant Board, in the exercise of its police power and by reason of its implied statutory rights, are acting within their legal rights and powers in ascertaining the fitness of those connected with the occupation of plumbing through licensing and registering, to determine the quality of the work of the members of the trade by inspection, and to control the installation of plumbing by permits, and by so doing the defendant Board is not infringing upon the constitutional rights of the plaintiffs.

SIXTH. THAT THE REGULATIONS AS PASSED ARE DESIGNED TO PRODUCE REVENUE FOR THE DEFENDANT BOARD AND ARE UNCONSTITUTIONAL, BEING IN VIOLATION OF ARTICLE XII, SECTION 5, OF THE OHIO CONSTITUTION, IN THAT THE FEES CHARGED ARE EXORBITANT AND NOT DESIGNED TO DEFRAY THE COST OF THE ISSUANCE OF PERMITS OR LICENSES BUT TO PRODUCE REVENUE FOR THE GENERAL FUND OF THE DEFENDANT BOARD.

Article XII, Section 5, of the Ohio Constitution provides that:

“No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied.”

Wolfe v. City of Columbus, cited supra:

“Syllabus 3. The Columbus sewer tappers ordinance is not open to objection on the ground that it is unfair because of interference with a particular trade, nor is the fee of Five Dollars with the requirement that a bond be executed in the sum of Five Hundred Dollars to save the City harmless from negligence on the part of the licensee unreasonable and excessive.”

Jackson v. Copelan, Chief of Police, 50 Oh Ap, at page 419, Judge Ross held:

“An ordinance having fixed the charge, the same will be presumed to be reasonable until the contrary is shown.”

A similar rule prevails in so far as charges are made for permits, inspection and the reasonableness of license and registration fees.

Whether a fee is arbitrary, unreasonable or discriminatory is a matter of proof. The court cannot sit in judgment as to the reasons and discretion of the Board of Health in the enactment of these charges and thereby overrule their decisions, unless there is an abuse of discretion or fraud or unreasonableness of the amount of fees charged, and such has not been proved, nor are the charges discriminatory for they are alike for each of a class within the general Board of Health district.

In the case of the Prudential Co-operative Realty Company v. City of Youngstown, 118 Oh St, Chief Justice Marshall at page 214 and 215 said:

“The fee charged must not, however, be grossly out of proportion of the cost of inspection and regulation, otherwise it would operate as an excise tax, which is clearly beyond the power of the municipality to impose. It is not to be expected that fees can be charged which will exactly balance the cost and expense and a reasonable excess will not operate to invalidate the ordinance. * * *. Whether or not the surplus of fees over expenses is sufficient to render an ordinance invalid is a mixed question of law and fact. If the excess is small no question of invalidity is present, if it is enormously large it becomes a clear case of operating as an excise tax. Between these extremes there must be a twilight zone where cases must be decided upon their individual facts and where no controlling rule can be declared. The court of common pleas in this case has held the fees to be reasonable. The court of appeals in its opinion expressed a different notion but did not reverse the case. While to this court the excess seems to be large, and it may be suggested that if the fees continue to be large and the expenses small a serious question might arise in future cases as to the validity of the ordinance on the ground of excessive charges.”

In this case, 118 Oh St 204, there was a stipulation that the ordinance authorized a charge of Five Dollars for the first lot in each plat and Three Dollars for each and every lot in addition thereto. It was further stipulated that for the year 1923 the total expenses of the planning commission amounted to $1372.00 and the fees collected were $8868.00. For 1924 the expense was $2850.00 and the fees $5700.00, and for 1925 the expense was $2950.00 and the fees $6800.00. Yet in the face of the difference between the expenses and income for the years of 1923, 1924 and 1925 the Supreme Court elected to treat this matter as in the twilight zone and held the fees not to be excise taxes but rather a license fee for inspection and regulation.

The defendant Board knew much better than anyone else what operations are maintained by the plumbing department thereof and how far reaching these tentacles extend, and the court, on the proof offered here, cannot substitute its judgment as to the expenditures and estimations for that of the defendant Board. In the instant case we have the testimony of the plaintiff’s accountant which showed excess income over operating expenses for 1952 in the sum of $6215.58, while there was testimony that the plumbing department of the defendant Board showed a deficit in 1952 of some $3,000.00. The testimony also revealed that the defendant Board has an estimated budget for 1953 for $19,801.24 to cover expenses for the plumbing department of the defendant Board, while their estimated revenue is $18,575.00, leaving an estimated deficit for 1953 of $1226.04.

State ex rel v. Schneider, 103 Oh St at page 498. Judge Matthias said:

“The action of a public officer or of a board within the limits and the jurisdiction conferred by law is not only presumed to be valid but it is also presumed to be in good faith and in the exercise of sound judgment. Before a court will take cognizance of a claim that the action of such officers or board is unlawful, arbitrary, unreasonable or of such character as to constitute an abuse of discretion facts must be set forth which would warrant such conclusion.”

There was an attempt made during the trial to prove that the fees assessed against the plumbers of Summit County District Board of Health were, in fact, used to defray a great amount of the general expenses of the defendant Board, and that therefore those fees amounted to a tax.

If the court can by reasonable interpretation of the law do that which would continue the orderly processes of government, then that is the court’s duty. From the cases cited and the evidence adduced the court is of the opinion that the defendant Board, by charging fees for licenses, permits and inspections, is not operating unconstitutionally but is within the twilight zone as referred to in 118 Oh St, pages 214 and 215, and that if future increases are levied a question may well be presented as to whether this assessment is not, in fact, a tax. Since the fees charged do not amount to an excise, tax in this instance the contention of the plaintiff is not well taken in respect to the sixth point which is raised.

SEVENTH. THAT THE AMENDMENT IS NOT EMERGENCY LEGISLATION AND IS NOT ADOPTED SO AS TO CONFORM TO THE CONSTITUTIONAL REQUIREMENTS OF EMERGENCY LEGISLATION AND AS SUCH IS VOID.

State ex rel. Durbin v. Smith, 102 Oh St at page 106, in a per curiam decision the court said:

“Indulging the presumption in favor of the legislation, and in the absence of positive judicial knowledge to the contrary, the court is bound to accept as true the reasons assigned by the legislature for making the act in question an emergency law.”

In 26 Oh Ap 265, State ex rel. Hile v. Cleveland et al, it was held that an emergency ordinance passed pursuant to the requirements of a city charter, the emergency character being declared, becomes effective, and the question of its emergency as determined by counsel will not be inquired into by the court.

Section 4, amending and supplementing sections 19, 20, 21, 22, 23, 24 and 25 of the plumbing code, chapter 2, of the revised sanitary code of Summit County General Health District, and declaring an emergency, is as follows:

“It is hereby declared that the foregoing resolution is an emergency measure in that the same provides for the immediate preservation of the public health by providing proper rules and regulations for the installation and inspection of plumbing; examining and registering of master plumbers and journeymen so as to insure the good general health of the inhabitants of Summit County General Health District, and to prevent conditions or events endangering the public health by improper installation of plumbing in said district, and by reason thereof this resolution shall take effect and be in force from and after its passage.”

102 Oh St 591, cited supra, at page 598 the court said that the rules for the passing of an emergency measure are as follows:

First, that emergency laws must receive the requisite number of votes;

Second, the reasons for the necessity must be set forth in one section of the law;

Third, it must be based on roll call.

All of these prerequisites the court finds in the instant case have been complied with. It is the law that if the regulations of the board do not set forth reasons for the necessity of such emergency the regulations are not properly adopted as emergency ones. However, the court is of the opinion that the reasons were set forth declaring them to be an emergency, and the court is not allowed to inquire into those reasons and thereby substitute its reasoning for that of the board. And even though the court could inquire, it is apparent from the evidence that the reasons set forth make the emergency obvious and necessary.

The implied powers of a board of health should be given a construction in the broadest sense, and police powers exercised by the board of health should be liberally construed. Such constructions or interpretations are so made because boards of health, as with the defendant Board, are the sentinels guarding the people from the danger of diseases which might well develop into an epidemic. The court does not say that by reason of this fact the health boards should be given dictatorial powers or placed in a position wherein their rules and regulations might be oppressive and confiscatory, but the actions of such boards should be construed in a most favorable light within the realm and limits of reasonableness.

In conclusion this court is of the opinion that the rules and regulations of the defendant Board are reasonable, constitutional and necessary for the preservation of the health of this community, and that the fees charged are not excessive to the extent that they could be considered taxes, that an emergency did exist, and that all the issues raised by the pleadings are resolved in favor of the defendant Board.


source: Caselaw Access Project

author: By HUNSICKER, PJ.

license: Public Domain

text:
    WYSOCKI, Plaintiff-Appellee, v. WYSOCKI, Defendant-Appellee and Cross-Petitioner, GAUGHAN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21668.
    Decided December 17, 1951.
    Wm. McCarthy, for plaintiff-appellee.
    Michael Picciano, Hartshorn, Thomas, Abele, Mitchell, Edelman & Leuck, Cleveland, for defendant-appellant.
    (HUNSICKER, PJ, DOYLE, J, of 9th District; NICHOLS, J, of 7th District sitting by designation in 8th District.)
   OPINION

By HUNSICKER, PJ.

In this appeal on questions of law from a judgment of the Common Pleas Court of Cuyahoga County, Ohio, the facts as disclosed by the original pleadings, motions, affidavits, journal entries and bill of exceptions are:

On June 30, 1948, Barbara Wysocki secured a judgment of divorce from Raymond Wysocki. Barbara Gaughan was named a defendant in the divorce action and such judgment in the divorce action determined that Barbara Gaughan was a trustee for the benefit of Raymond Wysocki of a sum of money in the amount of $9,000.00. The judgment of divorce also found Barbara Gaughan to be in possession of such $9,000.00 and determined that Barbara Gaughan “be and she is hereby ordered to forthwith deliver such funds in the sum of $9,000.00 to the Clerk of this Court * *

Thereafter, there appears on the transcript of docket and journal entries a notation dated August 24, 1948, — “Motion by defendant to show cause filed.” The original motion and affidavit on this charge of contempt against Barbara Gaughan are found in the papers before this Court. On September 29, 1948, there is a notation showing personal service of a writ dated August 24, 1948, on the defendant, Barbara Gaughan.

We do not find any disposition of this “motion by defendant to show cause * * However there is a notation on the transcript of docket and journal entries dated January 4, 1949, which says, — “Contempt charges returned unserved at the request of Domestic Relations.” We do not know if there is any relationship between the contempt proceedings instituted on August 24, 1948, and this notation of January 4, 1949.

There are other notations on the transcript of docket and journal entries and original papers connected with this matter which have no bearing on the issue before this Court.

We do find a copy, but not the original papers, of a “Motion to Show Cause,” Notice to Barbara Gaughan, and an affidavit. This affidavit alleges the failure of Barbara Gaughan to comply with the order to deposit the sum of $9,000.00 entered in the judgment of divorce dated June 30th, 1948. We assume, but cannot be certain, that the originals of these copies of motion, notice and affidavit charging a contempt of court by Barbara Gaughan were properly filed and a proper notice served.

There is a notation on the transcript of docket and journal entries under date of Oct. 4, 1949, with the following statement—

“Motion by J. Barbara Mueller to dismiss motion to show cause, etc., filed.”

We know from an examination of the papers that Barbara Gaughan is also sometimes referred to by other names, among them being J. Barbara Mueller.

J. Barbara Mueller (Barbara Gaughan) by her motion sought to have the court “dismiss the Motion to Show Cause filed against her on the ground that this court (Common Pleas Court) has no jurisdiction of the matter for the following reasons:”

“1. Raymond Wysocki and Barbara Wysocki are living together as man and wife, and (2) J. Barbara Mueller (the Barbara Gaughan herein) has filed a voluntary petition in bankruptcy in the United States District Court.”

On October 6, 1949, the trial court, after a hearing on the “motion show cause” and the “motion to dismiss motion to show cause for lack of jurisdiction” rendered the following judgment:

“Motion to dismiss is overruled. • Respondent defendant Barbara Mueller found guilty of contempt of court for failure when able, to comply with the order of the Court. The defendant is ordered committed to the county jail until she complies, be purged, or be otherwise dismissed, according to law.”

On the same day, October 6, 1949, a notice of appeal to the Court of Appeals of Cuyahoga County, Ohio, was filed from such judgment of the trial court entered on October 6, 1949.

The appeal on questions of law from the judgment so entered on Oct. 6, 1949, came on to be heard and this Court (Eighth District Court of Appeals) on Feb. 27, 1950, rendered the following judgment:

“Cause remanded for a clarification of the order as to whether or not on the day the order was made, to-wit, October 6, 1949, the court found that Barbara Mueller was then able to comply with the order of which she was adjudged to be guilty of contempt, or whether the finding of guilty was because she failed to comply at a previous date when able to perform the order, for the reason that if the court found that she is now able to and refuses to comply with the order, then procedure under §12143 GC, would be applicable, otherwise procedure should be followed under §12142 GC, the appeal to be held until the order is clarified. Exceptions.”

Thereafter, on March 12, 1951, the trial court entered the following order:

“Motion to dismiss overruled. Respondent defendant, Barbara Mueller, found guilty of contempt for failure to comply with prior order of court when able so to do and the Court finds she is now and for some time past has been able to comply and refused so to do. She is ordered committed to County Jail until she complies with such order, be purged or otherwise discharged by this Court or until sentence is suspended, or until she is otherwise released according to law.”

We now have before this Court an appeal on questions of law from the judgment of October 6, 1949, as clarified in the judgment of March 12, 1951.

It may seem to the parties that we have set out more fully than is necessary many of the preliminary details which occurred prior to the judgment of October 6, 1949, yet, although we are favored with able oral argument in this matter, extensive and competent briefs and a bill of exceptions containing all of the evidence presented in the trial court, we believe that a partial recitation of the facts is necessary to understand the background of this cause which has been in the courts for several years.

A careful reading of the testimony adduced in the trial court shows that after counsel for Barbara Gaughan stated to the trial court that “She had not paid anything into court * * *” * * * “that she is totally unable to comply with this order” and that “she filed her petition in bankruptcy * * *” “* * * has filed her schedules in bankruptcy and listed all of her property.” Counsel for Barbara Wysocki (the person urging the contempt matter) stated to the court — “With that stipulation, your Honor, that the new party defendant has not complied with the order of the Court, we rest.”

Barbara Mueller (Gaughan) then testified in her own behalf saying that she had filed her petition in bankruptcy and listed all of her assets in her schedules filed in those proceedings, which assets were delivered to the trustee in bankruptcy. The bill of exceptions shows that the following questions, among many others, were asked of Barbara Gaughan:

Q. “On the date that Judge Connell rendered his order, which we think was June 30, 1948, but whatever that date was, did you at that time have in your possession $9,000.00 in cash, securities, or any other forms?
Mr. Picciano: “Objection.
The Court: “She may answer.
A. “No sir.
Q. “Did you have any part of that amount of money?
A. “No, sir.
Q. “On hand at that time?
A. “No, sir.”

Barbara Gaughan further testified that she had no money, securities or any other assets now or at any other time since June 30,1948 (the day when the judgment in the divorce action was filed) except the assets in the hands of the trustee in bankruptcy and her wages which are paid to her each week by her employer.

It is upon this state of the record that the judgment under review herein was entered.

Sec. 12137 GC says in part:

“A person guilty of any of the following acts may be punished as for a contempt: 1. Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer * *

Sec. 12138 GC says in part:

“In cases under the next preceding section, a charge in writing shall be filed with the Clerk, an entry thereof made upon the journal, and an opportunity given to the accused to be heard by himself or counsel * *

Sec. 12143 GC says:

“When the contempt consists in the omission to do an act which the accused yet can perform he may be imprisoned until he performs it.” (Emphasis ours.)

We do not undertake to say that Barbara Gaughan was not able to comply with the order of June 30, 1948, at the time such order was entered, or that an ability to comply did exist at the time when she was first charged with contempt on August 24, 1948. We do know, however, from the state of the record before us that at the time when the trial was had upon which the judgment herein being reviewed was entered, that all of the testimony showed beyond any doubt that Barbara Gaughan was unable to comply with the order of the court to pay $9,000.00 to the Clerk of Courts.

There was no act (the ability to pay) which she “yet can perform” shown to exist. This Court (Eighth District) in the case of Maglich v. Maglich, 61 N. E. (2d) 507, had before it a case in many respects similar to the instant case wherein this Court then said at page 508:

“The impossibility of performance by the defendant of the order would be a defense unless it could be shown that such impossibility was due to fraud or sharp practice.”

We therefore determine that, since there has been established by uncontroverted evidence that Barbara Gaughan was totally unable on Oct. 6,1949, to perform the act which she was ordered to do on June 30, 1948, that the trial court had the duty to dismiss the charge of contempt.

The failure of the trial court to dismiss the charge of contempt was error prejudicial to the substantial rights of the appellant. We therefore reverse the judgment of the trial court and render final judgment for the appellant, Barbara Gaughan.

We have examined all other claimed errors and find none prejudicial to the appellant.

Judgment reversed and the charge of contempt is dismissed.

DOYLE, J. NICHOLS, J, concur.


author: By McCLELLAND, J.

text:
    GRAHAM, Estate of, In Re.
    Probate Court, Franklin County.
    No. 109142.
    Ray W. Poppleton, Columbus, for John F. Seidel.
    Alexander W. Speddon, Jr., for Bessie Evelyn Gerth et al., Roland Sedgwick, Kenneth Hampton, Columbus, Attys.
   OPINION

By McCLELLAND, J.

This matter comes before the court on the application of John F. Seidel, as administrator de bonis non with the will annexed of Cora B. Graham, deceased, against Roland A. Sedgwick, as administrator of the estate of Lawrence W. Gerth, deceased, and other defendants, asking for a construction of the will of the decedent, and for a Declaratory Judgment on certain matters growing out of the will, which matters will be set forth later herein.

Cora B. Graham died on January 17, 1944, testate, and her will was admitted to probate on the 25th day of January, 1944. To the petition is attached a copy of the will. Item Two of the will reads as follows:

“Item Two. I give, devise and bequeath to my daughter, Mary Elizabeth Gerth, all of my property, both real and personal, during the period of her natural life. During the said period of her life, she shall have full authority and power to manage and control the said property, without the intervention of any court, and to invest and re-invest the same as she shall deem to be for the best interest of the said estate, and for her own individual interest; and she shall expend the income thereof, and as well the principal if she so desire, for her comfort and convenience without accounting to any one therefor. If in the management and control of my said estate, she should sell any real estate belonging to my estate, or any re-investment in real estate, I hereby authorize and empower her, in her own individual name, to execute and deliver to the purchaser, or purchasers, thereof a good and sufficient deed, conveying the fee simple title thereto to such purchaser, or purchasers, therefor.”

Item Three is in the following language:

“Item Three: I give, devise and bequeath the remainder of my property, upon the termination of the said life estate of my said daughter, to my brothers and sisters, and their legal representatives, per stirpes, in fee.”

The next paragraph of the will designates Mary E. Gerth to be the executrix of the will, and that she be permitted to act without giving bond.

The first question raised by the petitioner is as to the construction of Item Two of the will, as to whether Mary Elizabeth Gerth had a life estate or a fee simple estate in the property devised. This court can conceive of no language which would more clearly create a life estate with power to sell, and a remainder, than that language contained in the above quoted item.

A cardinal case in Ohio decisive of the question at bar is the decision of the Supreme Court of Ohio, in the case of Johnson et al, v. Johnson, reported in 51 Oh St at page 446, the syllabi of such case are as follows:

“1. A testator, after providing for the payment of his debts, used the following language in his will: “Second — I give and devise unto my beloved wife, and her assigns, all of remainder of my property, both real and personal, however the same may be known, or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper: but. if at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters, and their children, if deceased, the children to have the same amount the parent would be entitled to if living” HELD: That under this will the widow took only a life estate in the property, both real and personal, with power to bargain, sell, convey, exchange or dispose of the same as she might think proper for consumption in her life support, and that what remained at the time of her death, unconsumed in supporting her, belongs to the remaindermen designated in the will.
2. The widow under this will was, by implication, a quasi trustee for those in remainder, and the interest of the brothers and sisters of the testator, in the unconsumed property, was a vested right which could not be destroyed by the act of the widow in disposing of the property by gift to a third party, or otherwise than for her support or the benefit of the estate.
3. A third party acquiring said estate from her by gift or fraud, or by collusion with her, to the injury of the vested rights of those in remainder, and with knowledge of the will, holds the same, and the fruits thereof, as a trustee for the remaindermen, and liable as such trustee, to account to them in equity.”

It is our opinion that Mary Elizabeth Gerth, by the will of her mother, was given a life estate in the property devised, with power of sale. This power of sale was limited to the particular purposes set forth in Item Two of the will of the testatrix. By the terms of this will she was permitted to use the entire income, and principal as well, if she so desired, for her comfort and convenience. If a life tenant, acting under a power of sale, sells property in which she has a life estate, such portion of the proceeds as are not used for the express purposes given in the will, the life tenant holds the unexpended portion as a trustee for the benefit of the remaindermen. Inasmuch as she is a trusted, she must exercise good faith toward the remaindermen. At page 460 of the Johnson Case hereinbefore referred to, we find the following significant language:

“Having construed this will as giving to the widow only an estate for life, it follows that the brothers and sisters of the testator had a vested remainder in so much of the estate as should remain unconsumed by her at her death. The amount of this vested remainder was uncertain so long as the widow continued to live, and the whole of it was liable to be divested in case she should consume the whole of the estate for her support during her lifetime.” Jeffers v. Lampson, 10 Oh St, 101; Linton v. Laycock, 33 Oh St, 128.

Perry on Trusts, in section 540, says that those in possession of a life estate under a legal title are implied or quasi trustees for the remaindermen.

We regard this rule as applicable here, and that while the widow was given the legal title with full possession, and power to use, dispose of and consume the estate, for her life support, the duty rested upon her, in the nature of a trust, to have due regard for the rights of those in remainder, as to the part of the estate not consumed by ner for her support. That while she could use and enjoy the estate to its fullest extent for her support, and consume the whole of it if necessary, she could not go beyond what would be regarded as good faith toward the remaindermen. The testator having so amply provided for the support of his wife, evidently contemplated good faith on her part towards his brothers and sisters. He therefore gave her the right to consume, but not to recklessly squander or give awav the estate.

Applying the above stated principles to the will in question it is our opinion that the testatrix gave her daughter Mary Elizabeth Gerth a life estate in the property with the remainder to her brothers and sisters. She was given a power of sale for the specific purpose mentioned in Item Two of the will, and, in case she should sell said property therein devised she is held to be a trustee for that portion of the proceeds of the property sold and not used by her for the purposes mentioned in the will.

It is a cardinal rule in the construction of wills that they shall be so construed as to vest the remainder at the earliest possible time. By virtue of a long line of decisions in Ohio, this Court finds that the interest of the remaindermen under the will of Cora B. Graham vested at the time of her death, and could be divested only to the extent as permitted by the life tenant for the purposes named in the will.

The record in this case discloses that Cora B. Graham at the time of her death was the owner of one piece of real estate located on Blinker Avenue in the City of Columbus, Ohio, and another piece of property located on West Broad Street in the City of Columbus, Ohio

The record further discloses that on March 17, 1945. the life tenant, acting under the power oí sale, sold the property on Brinker Avenue. The evidence also discloses that on March 28. 1945, a parcel of real estate located on Glenview Avenue in the City of Columbus, was purchased and the title was put in Mary E. Gerth and Lawrence W. Gerth, her husband, as tenants in common.

The evidence also discloses that on August 29, 1945, the West Broad Street property was sold by Mary Elizabeth Gerth, acting under authority contained in said will. On November 25, 1947, Mary E. Gerth died intestate, and her only heir was her husband Lawrence W. Gerth.

The record in this case further discloses that on April 29, 1948, the one-half interest in the Glenview Avenue property was transferred to Lawrence W. Gerth as her sole and only heir. On October 26, 1948, Lawrence W. Gerth died, intestate, leaving as his only heir his mother Bessie W. Gerth. On May 9, 1950, Bessie W. Gerth died testate, leaving her two daughters as the sole devisees under the will.

The record also discloses that Cora B. Graham, at the time of her death, in addition to the two pieces of real estate hereinbefore mentioned, was possessed of a miscellaneous lot of household furniture of the value of $150.00, one diamond ring valued at $350.00, and one diamond pin valued at $150.00. There was also cash in the sum of $71.00 a certificate of deposit with The Buckeye Federal Savings & Loan Company of the face value of $500.00.

The plaintiff alleges that Lawrence W. Gerth, the husband of Mary Elizabeth Gerth knew the terms and provisions of the will of Cora B. Graham, and the nature and extent of the estate created thereby; that he further knew that the said Mary Elizabeth Gerth was and would be subject to duress, control and influence, and took possession and control of the said estate in fraud of the rights of the remaindermen under the will of Cora B. Graham.

The plaintiff further alleges that on or about the 27th day of March, 1945, Mary Elizabeth Gerth sold and conveyed away a parcel of real estate described as 2275-2277 West Broad Street, in the City of Columbus, Ohio, for a sum of money in excess of $10,500.00, and, on or about the 29th day of August, 1945, sold and conveyed away the two parcels of land known as 48-50 Brinker Avenue in said City of Columbus, Ohio, and that the sale price was in excess o-f $6500.00, and that she also converted into cash the household furniture hereinbefore mentioned for the sum of $371.00; that she appropriated the cash in the estate in the amount of $71.00, and converted into cash a certificate of deposit in The Buckeye State Federal Bldg & Loan, the sum of $500.00, making a total of $17,942.00 realized from the assets of the estate of Cora B. Graham.

The petitioner further alleges that from the funds arising from the proceeds of sale of the estate of Cora B. Graham, another parcel of real estate was purchased, said parcel being known and designated as 2373 Glenview Boulevard.

The plaintiff further alleges that United States Government bonds Series “E,” each of the value of $1000.00 were purchased with the proceeds of said sale.

It is further alleged in the petition that -the property known as 2373 Glenview Boulevard was put in the names of Mary Elizabeth Gerth and Lawrence W. Gerth, as tenants in common.

The plaintiff further alleges that from the date of the death of Cora B. Graham, on January 17, 1944, until her own death November 25, 1947, Mary Elizabeth Gerth did not use or consume for the comfort and convenience of herself, nor for any personal needs or wants, any of the corpus of the funds received from the estate of Cora B. Graham.

The petitioner further claims that Mary Elizabeth Gerth, subsequent to the sale of the above named properties, paid the mortgages existing thereon, and that the remainder of the proceeds of said property was invested .in the property on Glenview Boulevard, and claims that said property is impressed with a trust in the amount of the net proceeds which went into that property.

During the lifetime of Lawrence W. Gerth and subsequent to the death of the life tenant Mary Elizabeth Gerth, a suit was filed in the court of Common Pleas of Franklin County, Ohio, by Ella B. Sparks, one of the sisters of Cora B. Graham, who is one of the remaindermen named in said will, against Lawrence W. Gerth, individually, and as administrator of the estate of his deceased wife Mary E. Gerth. This suit is Number 175059 in the records of the Franklin County Common Pleas Court. During the pendency of that action Lawrence W. Gerth was called as a witness, and his testimony was taken under oath as upon cross-examination. The testimony was reduced to writing by a public stenographer, a transcript thereof was made, which became a part of the record of that court. Subsequent thereto, upon the application of one of the defendants the case was dismissed.

Upon an examination of the pleadings in that case we find that it is the same cause of action as the one upon which the case now before the court is based.

A transcript of the testimony of Lawrence W. Gerth, taken in the Common Pleas Court has been offered by the plaintiff in support of the allegations contained in his pleading. Counsel for the heirs of Mary Elizabeth Gerth strenuously objected to the introduction of said transcript. The court received such testimony subject to the objection of the above named counsel, and announced that upon further consideration of same a final ruling upon the admissibility of same would be made. The court has examined that transcript and now determines the questions of its admissibility.

There is no question but that this testimony is hearsay evidence.

Counsel for the heirs of Bessie Gerth has called our attention to §11495 GC, and especially to sub-divisions 7 & 8 thereof. Sub-section No. 7 is as follows:

“If after testifying orally, a party dies, the evidence may be proved by either party on a further trial of the case, whereupon the opposite party may testify to the same matters;"

Sub-section No. 8 reads as follows:

“If a party dies and his deposition be offered in evidence, the opposite party may testify as to all competent matters therein.”

Our attention is also directed to §11496 GC, the latter part of the above named section containing the following language:

"* * * jj no of exceptions has been taken or signed as aforesaid, but the evidence of such party or witness has been taken down by an official stenographer, the evidence so-taken may be read in evidence by either party on the further trial of the case, and shall be prima facie evidence of what such deceased party or witness testified to orally on the former trial. If such evidence has not been taken by such a stenographer. it may be proved by witnesses who were present at the former trial, having knowledge of such testimony. All testimony so offered shall be open to all objections which might be taken, if the witness was personally present.”

It is the contention of the devisees of Bessie Gerth that this testimony may not be received by the Court for the reason that it is not a trial of the same case. We are cognizant of the fact that the case now before the Court is not the same proceeding in which the testimony was taken. It is very obvious, however, that it is a trial of the same cause of action between the same parties or their personal representatives or persons holding thereunder. We believe that that testimony is admissible as being within the purpose and spirit of those statutes.

But even though the testimony would not be admissible under the provisions of the statutes hereinbefore referred to, it might be admissible under some non-statutory rules of evidence pertaining to the admission of hearsay testimony.

In Vol 20, American Jurisprudence, page 402, Section 453, there is discussed by the author thereof exceptions to the rule excluding hearsay testimony. The philosphy upon which the statement of the author is made, and the statements so well fortified by citations that we consider it appropriate to incorporate in our decision that discussion as follows:

“452. EXCEPTIONS TO RULE. — While the hearsay rule has been asserted and applied so often that it is not questioned, it seems safe to assert that the courts have generally been willing to relax the rule in the interest of justice It is recognized that hearsay may be relevant and material. In some cases it may be the only relevant and material evidence, as where a sole witness to a transaction is dead or beyond the reach of a subpoena. While the mere fact that a witness is dead does not render his declarations admissible, if in addition to the death of a witness there are circumstances which attribute verity to his declarations, the hearsay rule may be relaxed to permit the admission of such declaration. For example, if a witness is deceased, his declarations against his own interest may pe admitted in evidence as relevant and material to the issues in the case on the theory that he would not tell an untruth against his own interest. Again, the dying declarations of the victim of a homicide are deemed admissible notwithstanding they are hearsay, on the theory that there is little likelihood of a conscious falsification of statements made under such circumstances. Most of the exceptions to the hearsay rule are based upon the necessities of the case. If there is a possibility of obtaining testimony other than hearsay, the law does not generally permit the introduction of hearsay. Thus, one of the conditions under which entries in family records are admitted in evidence, notwithstanding the lack of an opportunity to cross-examine the person who made them, is the death, or at least the absence, of such person. In other instances, however, evidence of a hearsay character, such as testimony concerning the age of a person and his race, is admitted without reference to the fact that other testimony of a strong character is available. Many exceptions to the hearsay rule are treated specifically in other parts of this article.
As a rule, hearsay is inadmissible without reference to the character of the proceeding or the nature of the court before which it is offered. The fact that a court of domestic relations may inform itself by hearsay evidence when acting as a disinterested adviser or conciliator does not permit it to receive such evidence when exercising a strictly judicial function, such as determining a motion in a divorce suit for the allowance of temporary alimony. Hearsay has been said to have no more place in a Juvenile Court than in any other court. The nature of the proceeding, however, is sometimes a ground for an exception to the hearsay rule. For example, statutes may abrogate the rule in respect of workmen’s compensation proceedings.”

Now, with that in mind, let us go back to the transcript. Upon an examination of the transcript we find that Lawrence W. Gerth was called as a witness as upon cross-examination on June 7, 1948. The transcript discloses that he was duly sworn before he testified. He testified that he was the husband of Mary Elizabeth Gerth; that prior to the sale of the properties hereinbefore mentioned he was familiar with the terms of the will of Cora B. Graham. He also testified that the property on North Brinker Avenue was sold by Mary Elizabeth Gerth to Marshall E. and Carrie E. Greer, and that the consideration for same was $10,900.00. He did not know whether he joined in the deed or not. He also testified that out of the proceeds of that sale Mary Elizabeth Gerth gave him $5000.00 in round numbers; that the property was subject to a mortgage of $5600.00 or around $5000.00. He also testified that she gave him the $5000.00 because she felt she was returning the money that he had given her over a period of twenty-five years. He also testified that he put it in his bank account in The City National Bank. He also testified that a piece of property was purchased at 2373 Glenview Boulevard.

At page 14 of the transcript the following question was asked:

Q. Then did you use that money to purchase 2373 Glenview Blvd?
A. Yes, I used part of it.
On page 15 the following question is asked:
Q. Do you recall how long it was before you purchased that Glenview Avenue property after the sale, of the Broad Street property?
A. It was very short time, a matter of a day or two, possibly a day.

He also testified that the purchase price of the Glenview Blvd property was $8000.00.

He also testified that he paid $4500.00 in cash and gave a mortgage for $3500.00, and that $4500.00 was paid by check on The City National Bank.

As to the property at 23-75-2377 W. Broad Street, he testified that Mary Elizabeth Gerth sold that property for the sum of $7000.00.

In answer to the question as to the disposition of the $7000.00 by Mary Elizabeth Gerth, he says she paid off the mortgage of $2500.00 or $2600.00 that was on the property, and I think she gave me about $4000.00.

From an examination of the transcript of the testimony of Lawrence W. Gerth, this Court is impelled to find.that $4500.00 of the sale of the first property went into the purchase of the property on Glenview Boulevard. Mary Elizabeth Gerth had no right to give this property away. She was acting as trustee for the remaindermen. The rule of law laid down in the third syllabus of the Johnson Case precludes the validity of such an act. Lawrence W. Gerth knew the conditions of the will of Cora B. Graham. He knew that Mary Elizabeth Gerth had a life estate. He knew that the remainder-men under said will were the brothers and sisters of the testatrix. He knew, at least constructively, that his wife, the life tenant, was a trustee of the proceeds of the sale for the benefit of the remaindermen under the will of Cora B. Graham He was, therefore, not acting in good faith when he accepted said money and invested it in other real estate in the name of himself and his wife. It is immaterial whether he took the title in his own name solely or whether he took it in the names of both of them as common ownership. The entire property is impressed with a trust for the benefit of the remaindermen under the will of Cora B. Graham subject to the lien of The Buckeye State Federal Building & Loan Company.

But even though the testimony of Lawrence W Gerth as shown by the transcript thereof should be inadmissible as not coming within any exception to the hearsay rule, and, disregarding it altogether, the circumstances are so strong as to lead this court to hold that the property purchased in the name of Lawrence W. Gerth and Bessie Gerth is a trust property for the benefit of the remaindermen under the will of Cora B. Graham.

By virtue of the foregoing authority this court is compelled to hold that the declaration of Lawrence W. Gerth as shown by the testimony is a declaration against interest. In addition thereto it is admissible for the reason that it is apparently the only evidence available as to the facts of that transaction.

Counsel for the heirs of Bessie Gerth have caused to be introduced in evidence certain checks of Lawrence W. Gerth made payable to his wife Bessie Gerth.

It is the opinion of this court that these - checks are immaterial and irrelevant to this issue. The $4500.00 going directly from Mary Elizabeth Gerth to her husband, and from his bank account directly into the Glenview Blvd. property fixes the equitable ownership of the remaindermen under the will of Cora B. Graham in that property. Whether he ever reimbursed her is immaterial.

The record is silent as to any expenditure of any portion of the proceeds of that sale by Mary Gerth for the purposes mentioned in the will, and, that being the situation, she must be accountable for the entire price of the properties, and any profits or increments arising therefrom.

As to the sale of the household furniture and other personal assets of the decedent, and the proceeds of said sale, the record is not such as to trace it into any specific property.

Although the proceeds of the sale of that personal property cannot be traced into any specific chattel or real property, it is our opinion that it is now in the estate of Lawrence W. Gerth.

At page 16 of the transcript we find the testimony of Lawrence W. Gerth as to the proceeds of the sale of the West Broad Street property. He testified that the proceeds amounted to $7000.00, and that from said proceeds she paid a mortgage and gave to him, according to his recollection the sum of $4000.00.

The inventory in the estate of Lawrence W. Gerth discloses that he had a gross estate in the amount of $20,997.76, which included the value of the Glenview Avenue Heights property. It also discloses that he had personal goods and chattels in the amount of $3,177.00. The first account filed in that case, which is the only one filed, discloses that certain obligations have been paid in the amount of $10,044.00, and there still remains in that estate $5,008.51. This amount is held by Roland Sedgwick as administrator of his estate. By his testimony he admits that he received $4000.00 from the sale of the West Broad Street property.

When one is in possession of trust funds and mingles the same with his own and spends a portion thereof, it is presumed that he spends his own money first, and that any money left is impressed with a trust to the extent of the trust property in his hands.

It is therefore the holding of this court that the amount of money in the hands of the personal representative of Lawrence W. Gerth is impressed with a trust in the amount of $4000.00, together with interest from the date Lawrence W. Gerth received same.

We have not taken up the questions in the order in which they are propounded by the petitioner, but we believe we have answered all of them and an order may be drawn in accordance with this decision.

Roland W. Sedgwick as administrator of the estate of Lawrence W. Gerth, filed in this court, Case Number 131020, a suit against Bessie W. Gerth et al, defendants, in which petition the same issues are raised as are raised in the case now before this court.

At the hearing of this matter counsel for all parties agreed that the testimony taken in the Graham Case might be used as testimony in the case filed by Mr. Sedgwick. It is our opinion that the decision in the Graham Case will answer all the questions raised in the case filed by Mr. Sedgwick, and our decision may be used as the decision in that case.

Counsel for the respective parties are therefore requested to prepare the appropriate journal entries in both cases according to our foregoing decision.


author: By LYBARGER, J.

text:
    FURMAN v. CENTRAL PARK PLAZA CORPORATION.
    Common Pleas Court, Cuyahoga County.
    No. 619596.
    Decided August 20, 1951.
    A. L. Kearns, A. R. Roman, Cleveland, for plaintiff.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant.
   OPINION

By LYBARGER, J.

The plaintiff’s petition sets forth an action for personal injury alleged to have been sustained when she caught her heel in carpeting and fell down a stairway in defendant’s hotel. In its answer the defendant denies that it was negligent and alleges negligence on the part of the plaintiff.

Upon defendant taking the plaintiff’s deposition, the plaintiff testified that she and her husband and three other couples were coming down the stairs when the accident happened. She was then asked what were the names and addresses of the three other couples. Her counsel objected and instructed plaintiff not to answer. Whereupon the notary, before whom the deposition was being taken, instructed her to answer, but plaintiff refused.

The matter is now before the court on the request of the notary that the court instruct the witness to answer the questions asked of her. Defendant contends that the questions were relevant to the issue, but that even if they were not the plaintiff should have answered, leaving to the trial court the decision of the question of relevancy. The plaintiff contends that she is not required to divulge on the taking of a deposition matters relating exclusively to her case or the names and addresses of the witnesses by whom she expects to establish her case at the trial.

The right of a party to find out before trial the knowledge of his opponent on the facts in issue was originally peculiar to courts of chancery, which permitted for this purpose a bill of discovery. Equity practice, however, did not require a party to divulge in advance his evidence in support of the facts as he himself stated them, or to disclose the names of his witnesses. Wigmore on Evidence, 3rd Ed., Section 1856, Vol. VI, pg. 422.

In the course of time this equitable practice of requiring discovery of the opponent’s own testimony before trial was engrafted by statute upon the practice in common law courts. Statutes which accomplished this were of 'two general types: (1) permitting a party to annex to his pleading interrogatories pertinent to the issue; and (2) providing that either party may take the deposition of any person as a witness before trial.

The courts in interpreting these statutes have frequently held that their purpose was to extend to all courts a practice which originally was followed only in equity, and that the’ same principle still prevailed. Thus Wigmore makes it clear that under such statutes “the discovery is limited to the extraction of the opponent’s own testimony and cannot be asked merely to ascertain his other evidence to support his own case.” He says further that “as a corollary to the foregoing limitation, the opponent cannot be asked to disclose the names of the witnesses to his own case.” Wigmore VI, p. 433, 437.

American Jurisprudence states the law thus:

“With respect to the scope of the examination of an adverse party generally, the rule, in the absence of statute, is that it may extend to all matters which are competent, relevant, and material under the issues made by the pleadings, as in the case of an ordinary witness, but not to matters which relate exclusively to the case of the adverse party or to the mere manner in which, or the names of the witnesses by whom, the adverse party’s case is to be established, as distinguished from evidence relating to the merits of the case as a whole. In some jurisdictions the matter is governed by express statutory provision or rules of court.” 16 Am. Juris., Section 53, page 722.

In support of the above statement the text cites Ex Parte Schoepf, which is quoted hereafter.

Ohio Jurisprudence has this to say on the examination of an adverse party:

“With respect to the right to compel a disclosure of evidence in the possession or under the control of the adverse party, in his examination by deposition, under the provisions of §11497 or §11521 GC, it may be regarded as definitely settled that, as a general rule, the examination may extend to all matters which are competent and relevant under the issues made by the pleadings, as in the case of an ordinary witness, but not to matters which are incompetent or irrelevant, or which are privileged, or which relate exclusively to the case of the adverse party, or to the mere manner in which, or the names of the witnesses by whom, the adverse party’s case is to be established, as distinguished from evidence relating to the merits of the case as a whole.” 14 O. Jur., p. 37.

The text relies chiefly on the authority of Ex Parte Schoepf.

The leading case, for many years, on the question here in issue is Ex Parte Schoepf, 74 Oh St, 1. The law is stated in paragraph 2 of the syllabus as follows:

“The rule in chancery as to compelling the production of documents for the purpose of evidence and inspection was and is that a party is entitled to a discovery of such facts or documents in his adversary’s possession or under his control, as are material and necessary to make out his own case: but that this right does not extend to a discovery of the manner in which the adverse party’s case is to be established, nor to evidence which relates exclusively to the adverse party’s case.”

Much water has flowed under the bridge since Ex Parte Schoepf was decided in 1906, and there have been frequent pronouncements of the Supreme Court of Ohio on the question of the rights and duties of a party or a witness being examined before an officer taking a deposition. A quick summary of some of the leading cases will be helpful.

In the case of In re Martin, Jr., 141 Oh St, 87, 25 O. O. 225, the court reviewed many past decisions bearing on this general subject. It observed that the Schoepf case was “decided upon the question of privilege and not upon the question of relevancy, competency or materiality of testimony” (page 95). It overruled one paragraph of the syllabus in the Schoepf case in the following language:

“A witness who is not a party has no legal right, upon the taking of his deposition, to refuse to answer any question, upon the advice of his attorney, merely because the attorney believes that the testimony sought is irrelevant, incompetent or immaterial. (Paragraph four of the syllabus in Ex Parte Schoepf, 74 Oh St, 1; and In re Martin, Jr., 139 Oh St, 609, 23 O. O. 100, overruled.)”

It should be noted that In re Martin, Jr., is authority for the proposition that a mere witness, who is not a party, cannot refuse to answer a question on the taking of his deposition, upon being ordered to do so, on the ground that it is irrelevant, incompetent, or immaterial. The right to object on these grounds rests solely with a party, and the question of exclusion of evidence on such grounds is one which must be settled by the trial court. In re Martin, Jr. is not directly concerned with the question raised by the plaintiff in the instant case.

The ease of In re Hyde, 149 Oh St, 407, 37 O. O. 94, dealt with the question of whether or not- an employe of a defendant in a personal injury suit must reveal on deposition, company records of busses operating on a certain line at about the time of the alleged collision. Judge Stewart in his opinion reviews the trend of Ohio cases on this general subject.

The court held that:

“The names and addresses of the operators and the times of operation of public transportation vehicles of a company, as well as the times of their operation in reference to an accident involving one of such vehicles, which information, for general purposes, is a matter of record with the company, are not privileged and are relevant and competent as evidence in an action predicated on such accident claimed to have been caused by the negligence of the operator of such a vehicle. Such information may be elicited through a subpoena issued by a notary public, to one having control of the records of the transportation company, for the taking of his deposition in such action.” (Syllabus 2.)

In effect the court said that the information sought to be elicited, although it related exclusively to the defendant’s ease, was relevant, not privileged, might be brought out at the time of trial and must be given in a deposition.

Further light is thrown on the question at issue by the case of In re Keough, 151 Oh St, 307, 39 O. O. 141. Here one Gebauer, a party to a suit, sought from the defendant on deposition information as to the barn in which a certain street car was kept on the date of an accident, and the names of the operators of cars. The court said that:

“Gebauer was entitled to elicit that information only from the records kept for general purposes by the city and not from any records which were prepared for use in connection with the defense of Gebauer’s action. Gebauer was not entitled to the names or reports of any witnesses to his accident, which the city had secured, or to any records of information of any kind which were made or came into existence as the result of or concerning the accident. Such records were privileged in the hands of the city,” (page 311.)

In re Shoup, 154 Oh St, 221, 43 O. O. 5, is authority for the proposition that slips of paper containing the names of witnesses to an accident procured by an employe of the defendant after an aoeident and turned over to the defendant’s legal department are privileged and the other side cannot enforce their production.

It would seem that the courts have moved away from the old theory that a lawsuit is a game of wits and that secrecy must surround a party’s case until the day of trial. The courts have conceded many advances toward “the abandonment of the rigid common-law doctrine of secrecy.” Wigmore VI, p. 435.

In the federal courts the Federal Rules of Civil Procedure have recognized the need of getting at the truth of controversies at an early stage with a view to clearing the issues and eliminating surprise. Hickman v. Taylor, 329 U. S., 495. It is logical that state courts should arrive at the same result. After all, a lawsuit is a quest for truth: relevant matters testified to on deposition will be as true today as at the time of trial.

Turning now to the instant case the court observes that the defendant did not seek at the deposition to obtain the names of witnesses which the plaintiff had gone out and got following the accident, as had been done in the Shoup case. On the authority of the Shoup and the Keough cases such names would have been privileged.

At the deposition the defendant asked for the names and addresses of the persons who accompanied the plaintiff at the time of the accident. This information did not relate exclusively to the plaintiff’s case. It was part of the res gestae. It would have been relevant testimony at the time of trial. The questions asked of.the plaintiff in the deposition were relevant and not privileged. The notary public is therefore instructed that the questions asked of the witness, Evelyn Furman, are relevant questions which she should have answered; and the witness is ordered to answer the same. The defendant may draw a suitable entry in keeping with this opinion.


author: By PHILLIPS, J.

text:
    BREDENBECK, Plaintiff-Appellant, v. HOLLYWOOD CARTAGE COMPANY, INC., Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3465.
    Decided January 9, 1952.
    Morris Mendelssohn, Youngstown, for plaintiff-appellant.
    William E. Pfau, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, J.

Plaintiff appealed to this court on questions of law from a judgment of the court of common pleas sustaining defendant’s motion for judgment to be entered in his favor notwithstanding the verdict of the jury in the amount of $30,000.00 returned for plaintiff, in his action filed in that court to recover damages from the defendant for personal injuries sustained allegedly as the result of defendant’s carelessness and negligence.

In his petition plaintiff alleged that about 12:30 o’clock on the morning of October 26, 1948, he was operating a 1941 sedan automobile in a westerly direction on Route 18, and had reached a point thereon approximately four miles west of Austintown, Mahoning County. Ohio, where his visibility ahead was limited to thirty or forty feet, when a small animal attempted to cross his path; that to avoid striking that animal plaintiff operated his automobile sharply to the northerly, or right hand, side of that highway and came into collision with defendant’s unlighted, unguarded, tractor parked on the northerly side of that highway, without warning by defendant, in any manner, that his tractor was so parked on. that highway; and that as the result of such collision plaintiff was injured.

By brief plaintiff contended:—

“* * * that if the defendant had operated the said trailer at the time of the accident with lights and reflectors and/or had placed fuses and markers on said Route 18, directly behind said trailer, after it was parked, this plaintiff would have been warned of the location of the defendant’s vehicle and plaintiff would have been aware of the presence of that impediment on the roadway and so could have operated his vehicle so that he could have struck the animal that came in front of him or turned to the left and thus avoided defendant’s tractor and that had plaintiff known of the precise position and location of the defendant’s trailer in the right-hand lane it would not have been necessary for him to have veered as sharply to the right or to have traveled as far to the right as he did in order to avert striking the animal that darted in front of him, -but that since the trailer was unlighted the plaintiff was wholly unaware of its position and had the right to assume that the righthand lane of traffic was free and unobstructed. He was justified in allowing himself a greater margin of safety in turning aside and avoiding the animal that had crossed his path.”

Further plaintiff contends that he was confronted with a sudden emergency and cannot be held to have violated the assured clear distance provision of §12603 GC, in operating his automobile at the time and in the manner stated. Plaintiff endeavors to support his argument by citing the cases of Hangen v. Hadfield, 135 Oh St 281, 14 O. O. 144; Erdman v. Mestrovich, 155 Oh St 85; The Shaeffer Weaver Co. v. Mallonn, 45 Oh Ap 1; Farris v. City of Columbus, 85 Oh Ap 385, 85 N. E. (2d) 605; and Brown v. Wackman, 55 Abs 159.

The following interrogatories were submitted to the jury, which they answered as indicated:—

“1. How far could the plaintiff see a substantial object in front of his car just before the accident happened?
Answer: “30 to 40 feet.
“2. Within how many feet could the plaintiff stop his car just before the accident happened?
Answer: “40 feet.
“3. How fast was the plaintiff’s car traveling before he applied his brakes just before the accident happened?
Answer: “25 to 30 ft.
“4. Was there any obstruction, other than darkness or fog, between the rear of the defendant’s trailer and the plaintiff which prevented the plaintiff from seeing the defendant’s trailer just before the accident happened?
Answer: “No.”

With reference to such interrogatories plaintiff contends that Interrogatory No. 1 is ambiguous, “cleverly written” as “a catch question fully intended to confuse the jury,” and does not test the correctness of the verdict of the jury. Interrogatory No. 2 was submitted to the jury “with the full intent of confusing the jury”; that Interrogatory No 3 “entirely confused” the jury, and that its answer thereto was “unresponsive”; and that Interrogatory No. 4 was answered correctly.

Further plaintiff contends that “not one of the interrogatories submitted by the defendant elicited findings from the jury on a particular question of fact of an ultimate and determinative nature, but that the questions merely called for answers as to evidentiary or probative facts which simply amounted to a cross-examination of the jury”; and that the trial court erred in submitting interrogatories numbered 1, 2 and 3 to the jury. Plaintiff attempts to support this contention by citation of the cases of McFadden, Appellant v. Thomas, Admx., et al, Appellees, 154 Oh St 405, and Bradley, an infant, v. Mansfield Rapid Transit, Inc., 154 Oh St 154.

“To be proper, under §11420-17 GC, interrogatories prepared and submitted by counsel must call for findings by the jury on particular questions of fact of an ultimate and determinative nature — such findings as will test the correctness of the general verdict returned and enable the court to determine as a matter of law whether such verdict shall stand.” Bradley v. Mansfield Rapid Transit, Inc., 154 Oh St 154.
“It is error to submit to a jury an interrogatory based upon an erroneous proposition of law.
“* « * are 0f opinion that because answers to interrogatories given pursuant to §11420-17 GC, do test the correctness of a general verdict returned by a jury and enable the court to determine as a matter of law whether such verdict shall stand, it is exceedingly dangerous to the administration of justice to submit interrogatories except in strict accordance with the statute.” McFadden v. Thomas, 154 Oh St 405, 411.

In our opinion the quoted interrogatories were submitted to the jury “in strict accordance with the statute” to which reference is made supra, and accordingly we believe the trial judge did not err prejudicially to plaintiff, as urged by him, in submitting such interrogatories to the jury. On the contrary, it was the duty of the trial judge in this case to submit such interrogatories to the jury, after presentation to him. See §11420-17 GC.

“When a special finding of facts is inconsistent with the general verdict” (interrogatory No. 4), as in this case, “the former shall control the latter, and the court may give judgment accordingly.” Sec. 11420-18 GC.

Where the answer to a special interrogatory is inconsistent with the general verdict, as in the case we review, and cannot be reconciled with the general verdict “it is the duty of the trial court to sustain defendant’s motion to set aside tlié verdict of the jury.” McDermott v. Irwin, 148 Oh St 67, syllabus 3.

Also see Elio v. The Akron Transportation Co., 147 Oh St 363; and Klever v. Reid Brothers Express, Inc., 151 Oh St 467.

“To comply with the assured-clear-distance-ahead provision of §12603 GC, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.” Smiley v. The Arrow Spring Bed Co., 138 Oh St 81.

The quoted syllabus of the case of Smiley v. Arrow Spring Bed Co., supra, announces the legal excuse for failure to comply with the provisions of the applicable statute which the supreme court uniformly has followed without exception or modification from the time of announcement up to and including the recent case of Erdman v. Mestrovich, 155 Oh St 85.

In our opinion a study of the evidence submitted to us for review discloses no legal excuse for plaintiff’s failure of non-compliance with the assured clear distance ahead rule announced in the second syllabus of Smiley v. The Arrow Spring Bed Co., supra.

We agree with the contention of counsel for defendant that “the answer to interrogatory number 4 is a specific finding of fact which * * * is determinative of the question of whether or not there was any evidence of a legal excuse as set forth in the Smiley case for the noncompliance with the assured-clear-distance-ahead rule”; and that “the foregoing interrogatory is determinative of” the question presented “and was a proper interrogatory.”

Admittedly plaintiff operated his automobile on Ohio State Route 18, in the night season, when his visibility in the direction he was proceeding by reason of darkness and fog was but thirty to forty feet, at the stated speed, under the conditions shown by the evidence to exist, in violation of the. statutory requirement governing lights, into collision with defendant’s “parked, unlighted, unguarded” tractor. His actions prevented him from knowing “of the presence, position’and location of the defendant’s trailer” in the place it was parked, and in our opinion created the argued and claimed sudden emergency in which he found himself, precluded recovery by plaintiff in this case, and would have justified the trial judge directing a verdict for defendant at the close of plaintiff’s case or at the close of all the evidence. '

Finding no error prejudicial to the plaintiff in any of. the respects urged by him the judgment of the court of common pleas is affirmed.

NICHOLS, PJ, concurs in judgment.

GRIFFITH, J, concurs.