author: By MAIDEN, J.

text:
    EAST FAIRFIELD COAL COMPANY et, Plaintiffs, v. MILLER, ZONING INSPECTOR, et, Defendants.
    Common Pleas Court, Mahoning County.
    No. 140481.
    Decided November 10, 1955.

      Zieger & Coope, Youngstown, Harrington, Huxley & Smith, Youngstown, and McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, for plaintiffs.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendants.
   OPINION

By MAIDEN, J.

I. Taking up the claims of the plaintiffs in the order above set forth, the first is that the enabling legislation (§519.01 et seq R. C.), containing exemptions for agriculture and other uses of land, the effect of which denies to other users of land the uniform protection bf the laws and violates the constitutional provisions above mentioned, is therefore unconstitutional and invalid. Sec. 519.20 R. C. classifies outdoor advertising as a business use and provides that it shall be permitted in all districts zoned for industry, business or trade, or lands used for agricultural purposes. Sec. 519.21 R. C. provides that nothing in the Act shall confer any power on any board of township trustees or board of zoning appeals to prohibit the use of any land for agricultural purposes, and defines the meaning of the word, “agriculture.” Sec. 519.21 R. C. provides that nothing in the Act shall confer any power on the township trustees or board of zoning appeals in respect to buildings or structures of any public utility or railroad or the use of land by any public utility or railroad for the operation of its business; it further provides that no power is conferred on any board of county commissioners, township trustees or board of zoning appeals to prohibit the use of any land or building for the maintenance and operation of any mercantile, or retail establishment, drug store, hotel, lunch room, restaurant or place of entertainment in any area zoned for trade or industry.

Plaintiffs state on Page 7 of their trial brief as follows:

“The effect of the foregoing sections of the enabling act would preclude township trustees from regulating the construction or maintenance of hog pens, chicken yards and stables within a residential district of the township but would permit them, as in the Canfield Township Zoning Ordinance, to prohibit the owner of the land on which such improvements are located from removing mineral resources worth $4,000 per acre, exclusive of their value to the community.”

It is the claim of the plaintiffs that this type of exemption for agriculture and other purposes has been held unconstitutional by the Supreme Court of the United States in the ease of Connolly v. Union Sewer Pipe Company, 184 U. S. .540 (1902), wherein the Court was considering an anti-trust statute of the State of Illinois which contained the following language:

“The provisions of this act shall not apply to agricultural production or live stock while in the hands of the producer or raiser.” The Court held the foregoing exemption was unconstitutional and void because it denied to those pursuing activities other than agriculture the equal protection of the laws, and that since the exemption was invalid and the producers of agricultural products would thereby be subjected to the anti-trust law of Illinois, contrary to the intention of the legislature, the entire anti-trust law was unconstitutional.

Plaintiffs further cite Smith v. Cahoon, 283 U. S. 553 (1930), wherein the Court considered a Florida statute requiring motor vehicle carriers to obtain certificates of necessity and convenience, which statute exempted from such requirements transportation companies engaged exclusively in transporting agricultural, horticultural, dairy or other farm products. As stated, the Court held there was no justification for the distinction exempting carriers of agricultural products from the requirements of the act and held it was discriminatory and unconstitutional.

Other cases cited by plaintiffs are: Winter v. Barrett, 352 Ill. 441; 186 N. E. 113 (1933); Kellyville Coal Co. v. Hanier, 207 Ill. 624; 69 N. E. 927 (1904); Columbus Metropolitan Housing Authority v. Thatcher, 140 Oh St 38; 42 N. E. (2d) 437 (1942).

It would seem that those cases are entirely distinguishable from the matter at bar. In the Connolly case we have a penal statute enacted for a certain distinct purpose which exempted for no sound or logical reason whatever certain individuals and corporations from its operation; similarly, in the Smith case, as well as in the other cases cited. In those cases the classification is not based on anything having relation to the purpose for which it is made. Here we have no penal or regulatory statute legislating against a course of conduct or action which arbitrarily exempts anyone from that prohibited conduct or action. Here we have a grant of authority by the Sovereign to one of its branches, namely, the township trustees, and in conneciton with that grant of authority, the Sovereign puts certain limitations upon the local power to act. Here the classification is based on sound and logical factors having relation to the purpose for making it, as well as a definite relation to the Act itself. There is no doubt that the legislature has power to make a classification provided the basis of classification is not an arbitrary one; a statute is general and uniform within the requirements of the Constitution if it operates equally upon every person and locality within the circumstances covered 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. It is said the clasification must not be arbitrary, artificial, ficticious or evasive, used to circumvent the constitutional requirement of uniformity but must be based upon a real and substantial distinction in the nature of the class or classes upon which the law operates. 8 O. Jur. Page 630; 58 Am. Jur., Zoning, Paragraph 75, Page 989.

“The permissible location within a municipality of particular public utilities is sometimes designated by ordinance and the validity of such an ordinance has been upheld as a proper exercise of the police power, but public utilities are also often expressly excepted from the prohibitions or restrictions of zoning laws. * * * Such provisions are not invalid as * * * class legislation or a denial of the equal protection of the laws, since there is sufficient reason for the distinction based upon the comfort and convenience of the public.” 58 Am. Jur., Zoning, Paragraph 122, Pages 1009-1010.

“Zoning ordinances sometimes exempt farming, truck gardening or horticultural or agricultural activities generally from inclusion among businesses prohibited in specified zones. Such exception does not render the ordinance void.” 58 Am. Jur., Zoning, Paragraph 75, Page 989 (cited above).

The same principle would apply where the constitutionality of a statute is challenged. The nature of the business in which railroads and public utilities are engaged and its relation to the public welfare clearly justify the legislature’s action; the same thing is true as to agriculture in connection with township and county zoning. As to outdoor advertising, sound reason can readily be seen for the exemption, without going into detail.

The Court holds that the township zoning enabling act and the Canfield Zoning Ordinance are not upon the basis of this claim unconstitutional.

• II. Plaintiffs’ next claim is that the regulation of strip-mining is a matter of state-wide concern over which township trustees have no power and, therefore, the zoning ordinance is invaild. They point out that Article II, Section 1, of the Ohio Constitution provides that the legislative power of a state shall be vested in a General Assembly, and that Article II, Section 36, reads in part as follows:

“Laws may be passed to encourage forestry * * * to provide for the conservation of the natural resources of the state, * * * and to provide for the regulation of methods of mining, weighing, measuring and marketing coal, oil, gas and all other minerals.”

It should be noted that this quoted language ■ invests the legislature with power for the regulation of methods of mining, etc., rather than providing for regulations where coal might or might not be mined. It is not material to discuss' whether or not the Legislature would have power to control by statute where coal may be mined; it has not done so. The power to pass laws providing for the enactment of county find township zoning laws flows rather from Article II, Section 1, vesting the legislative power of the State in the General Assembly; that necessarily includes the police power. Article II, Section 36, is not to be construed as a limitation on Article II, Section 1; the language is not susceptible of that construction. It has been held that the legislative power “includes all legislative power which the object and purposes of the state government may require Hence the difference between the Constitution of the United States and our State Constitution. In the former we look to see if the power is expressly given; in the latter to see if it is denied or limited.” Baker v. Cincinnati, 11 Oh St 534; Williams v. Scudder, 102 Oh St 305, 131 N. E. 481.

Hence, the Legislature in §519.02 et seq R. C. invested the township trustees with the power to regulate location, size and use of buildings and lands, the pertinent part of which section is as follows:

“* * * regulate * * * the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of * * * (the township, and for such purposes * * * the power to * * * divide all or any part of the unincorporated territory of the township into districts or zones of such number, shape and area as the board determines * * *. All such regulations shall be uniform for each class or kind of * * * use throughout any district or zone, but the regulation in one district or zone may differ from those in other districts or zones.”

Plaintiffs assert that the State, by the enactment of the statutes dealing with mining, §4151.02 et seq R. C., has pre-empted the field, “and where the General Assembly has occupied the field to regulate that subject matter, any ordinance seeking to regulate the same matter, let alone prohibit it where it is an otherwise lawful activity, is invalid as being in conflict with general law.” Many cases are cited and discussed in plaintiffs’ brief dealing with the home rule provision of the Constitution as applied to municipalities. There is no doubt that a city under the home rule provision cannot enact regulations which conflict with the general law or which encroach upon areas where the matter is of state-wide concern and the state has acted. The answer in the case at bar is that the legislature has authorized the townships in their zoning ordinances to regulate the use of land in the terms above quoted, and the courts have upheld that power so long as the regulations are reasonable and not arbitrary and not prohibitory. As stated in defendants’ brief, “How strip mining shall be carried on is one thing. Where it may be carried on is quite another.” Also: “By not including strip-mining among those businesses which it specifically exempted from the operation of township ordinances, it clearly intended that strip-mining should be subject to such ordinances.” Smith v. Juillerat, 116 Oh St 424, 119 N. E. (2d) 611 (1954), wherein the Court said:

“The purpose of a zoning ordinance is to limit the use of land in the interest of the public welfare: If a zoning ordinance is general in its application, the classification as to uses to which the property may be devoted are reasonable, and pre-existing vested rights are recognized and protected, it is a valid exercise of the police power. Village of Euclid v. Amber Realty Co., 272 U. S. 365, 71 L. Ed., 303, 47 S. Ct., 114, 54 A. L. R. 1016; Pritz v. Messer, 112 Oh St 628, 149 N. E. 30; Koch V. City of Toledo, 37 P. (2d) 336.

“The ordinance in question is similar to other zoning ordinances relating to the strip mining of coal in residential areas, the validity of which have generally been recognized.”

In Marshall Mining Company v. Village of Salineville, Seventh District Court of Appeals, Case No. 665, unreported, decided by the Third District Appellate Court sitting by assignment in the Seventh District, the Court held that the strip mining act recognized strip mining as a potential nuisance, and that the act did not purport to license strip mining or change the character of the potential nuisance, but only to regulate it, and that the ordinance did not conflict with the state strip mining act.

It should be stated at this point that there are some provisions of the Canfield ordinance which are invalid under the preemption doctrine; this will be discussed later.

It is the holding of the Court that the township trustees in accordance with the enacted zoning ordinance do have the power to legislate, regulate and prohibit the removal of the natural mineral resources contained in the township, but the application of this principle to any specific parcel of land is subject to constitutional limitations and safeguards, as will be analyzed hereinafter.

III. The next claim is that inasmuch as the statute requires the township trustees to promulgate any zoning ordinance in accordance with a comprehensive plan, the township trustees had no such plan and there was no such plan on a county or state level to supply the deficiency: hence the ordinance is invalid because not adopted in accordance with mandatory statutory requirements.

Inasmuch as §519.02 R. C. omits the words, “all in accordance with a comprehensive plan,” §1.24 R. C. providing that is was the intent of the General Assembly not to change the law as heretofore expressed by the section or sections of the General Code in effect on the date of the enactment of the Revised Code, the Court is required to construe §3180 GC as it was in effect at that time.

Sec. 3180.26 GC, effective September 25,1947, reads, in part, as follows:

“Sec. 3180.26 GC. (Effective September 25, 1947.) For the purpose of promoting public health, safety, morals, comfort or general welfare, to conserve and protect property and property values, to secure the most appropriate use of land, or to faciliate adequate but economical provision of public improvements, all in accordance with a comprehensive plan, the Board of Trustees of any Township is hereby empowered to regulate by resolution the location, height, bulk, number of stories, size of buildings, and other structures * *

Sec. 3180.29 GC reads, in part, as follows:

“Sec. 3180.29 GC. It shall be the duty of the township zoning commission to submit a plan, including both text and maps representing the recommendations of the zoning commission for the carrying out by the Board of Township Trustees of the powers, purposes and provisions set forth in this act.

“The township zoning commission may within the limits of the monies appropriated by the township trustees for the purpose, employ or contract with such planning consultants and executive and clerical assistants as it deems necessary- The commission shall organize, adopt rules for the transaction of its business and keep a record of its action and determinations. Members of the zoning commission shall serve without compensation. No township trustee shall be employed by the zoning commission of his township.

“The township zoning commission is directed to make use of such information and counsel as may be available from appropriate public officials, departments and agencies; and such public officials, departments and agencies having information, maps and data pertinent to township zoning are hereby directed to make the same available for the use of the township zoning commission.

“In any county where there is a county or regional planning commission, the township zoning commission may request said planning commission to prepare or make available to said township zoning commission a zoning plan including text and maps of the unincorporated area of the township or any portion of the same.”

Plaintiffs assert the following to be a definition of the statutory requirement of a comprehensive plan;

“Planners have developed methods and practices for guiding the commissions which they assist. Certain studies are considered essential; knowledge of mineral and other resources, sources of population, its probable increase or decline, educational facilities available and to become necessary, the economic base of the community, the present uses of the land, transportation facilities presently available and probable future requirements, utility services presently available and provable future requirements, are a few, by way of example, of the topics considered basic to the promulgation of a ‘comprehensive plan’ for the community. When the planning commission has had the opportunity to consider all of the information which can be assembled, it is then in a position to determine upon a ‘comprehensive plan.’

“A ‘comprehensive plan,’ therefore, is the sum total of the considered opinion of the planning commission or board as to the future development of the entire community from the standpoint of general welfare, health, safety and morals. This opinion is based upon a studied consideration of all factors of community life and recorded in the form of text and maps. Charts and photographic reproductions serve as part of the text for the purpose of clarity.” (Plaintiffs’ trial brief, Page 27.)

A reference to Webster’s New International Dictionary, Second Edition, defines “comprehensive” to mean: “Including much, comprising many things, having a wide scope.” These meanings were approved in Fairlawn Cemetery Association v. Zoning Commission, 86 A (2d) 74, 77, 138 Conn. 434.

It is said that the limitation that zoning regulations must be made in accordance with a “comprehensive plan” means a general plan to control and direct the use and development of property in a municipality, or a large part of it, by dividing it into districts according to the present and potential use of the property. Bartrum v. Zoning Commission, 68 A (2d) 308, 136 Conn. 89; Couch v. Zoning Commission, 106 A (2d) 173, 141 Conn. 349. In City of Yougstown v. Kahn, 112 Oh St 654, 148 N. E. 842, the Court stated: . “In other words, this is not a comprehensive zoning ordinance, but is a so-called block ordinance, relating only to a certain small district of the City of Youngstown.”

The Canfield ordinance is not a block ordinance in any sense of the word, but is a complete ordinance covering the entire township. The evidence shows that the members of the zoning commission first made a use map of all the lands in the township adjoining public highways by driving along thé highways and noting the uses of the various properties and buildings thereon. Assistance was obtained from the County Planning Engineer and it appears that a form of ordinance was submitted by him to the township zoning commission as well as to the zoning commissions of some of the other townships. The township zoning commission held many meetings and discussed many phases and details of the contents of the proposed ordinance; regulations as to strip mining were discussed and drafted into the section of the ordinance dealing with industrial lands. Open hearings were had at which many people appeared and raised questions for the consideration of the zoning commission.

It is the further contention of the plaintiffs that the zoning act must necessarily require an economic consideration of the entire community inasmuch as the economic life of each unit of the community is said to be dependent upon the economic well-being of the whole community. Hewlett v. Town of Hempstead, 133 N. Y. (2d) 690 (1954) is cited holding that a town board in exercising its legislative power to zone property in the town must consider the overall effect on the area 'zoned and adjacent areas. Other cases are cited from New York and New Jersey containing either holdings or dicta to the same effect. Expert planning engineers testified similarly and to the effect that a comprehensive plan would require the Canfield zoning commission to take into account the economic and industrial needs of the Mahoning Valley, not only Mahoning County but Trumbull County and perhaps a further distance, asserting that the availability of mineral resources by reason of their location required special consideration in any comprehensive plan.

The answer would seem to be that the word, “comprehensive,” is a relative term; what might be comprehensive in an agricultural township in Mahoning .County would very likely not be comprehensive in the metropolitan area of Cleveland or Cuyahoga County. That would seem to distinguish the New York and New Jersey cases where town and borough lines are indistinguishable from the physical terrain and where great congestion of population and industry and commerce exists. If we were to hold that the Canfield Township zoning commission in the preparation of a zoning resolution must take into account the coal requirements of the Ohio Edison plant in Niles, might it not also become a question whether they should take into account the coal requirements of the Republic Steel Corporation in Warren? And if they did not in such a situation, would the ordinance be void? Are they mandatorily required to take into account the coal tonnage underneath the township and then make a detailed investigation to see whether the various industries of the Valley might either now or at some future time desire to use Canfield coal if some strip mining concern might sometime in the future desire to mine it? The answer would seem to be that the enabling statute permits the township to set up its own zoning ordinance having relation to the health, safety, morals and general welfare of the township; it is in form an exercise of local power, home rule within the framework of the enabling act.

The studies and investigations argued for by plaintiffs are, of course, highly desirable depending upon local conditions, as in Pritz v. Messer et al, 112 Oh St 628, 639 (1925). However desirable it may be in New Jersey and New York to make mandatory as a matter of law the definition urged by plaintiffs, that has no place in our state, as a mandatory requirement in all cases. Here it should be a question of fact to be decided by the zoning commission in the light of all the facts and circumstances entering into the problem and using reasonable judgment. As stated in Village of Euclid v. Ambler Realty Co., “If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Likewise here, note in State, ex rel Jack v. Russell, 162 Oh St 281 (1954), 123 N. E. (2d) 261, the Court at Page 289 uses the words, “reasonably comprehensive.”

Having in mind these principles and taking into consideration the evidence disclosed in many pages of the record and many exhibits, which are too detailed to be set forth herein, the conclusion is inevitable that the zoning commission and the trustees acted in accordance with a comprehensive plan within the meaning of the enabling act.

IV. The next claim of the plaintiffs is that the removal of coal by the strip-mining method has no substantial deleterious effect upon the health, safety, morals and general welfare of the community, and, therefore, the ordinance cannot be sustained as a proper exercise of police power, for these are the constitutional prerequisites laid down by the United States Supreme Court in Village of Euclid, et al v. Ambler Realty Company, supra.

The same principle is reiterated in Pritz v. Messer, supra. Squarely in-point in support of the plaintiffs’ position is Midland Electric Coal Corporation v. County of Knox, 1 Ill. (2d) 200, 115 N. E. (2d) 275 (1953), wherein the Supreme Court of Illinois held a county zoning ordinance, which prohibited strip mining of coal in all districts except the “C” District, approximately 90 per cent of the unincorporated area of the county lying outside of “G” District, to be unconstitutional. In that case the gross value of underlying coal was in excess of $25,000,000, and the value of the land exclusive of such coal was approximately $750,000. In the instant case the coal underlying the McCullough tract has a gross value of approximately $1,000,000, whereas the land itself exclusive of such coal is worth $17,000, according to the testimony.

In both situations the coal could not be practically, economically or safely recovered by any process other than strip mining. In both cases the land in question was immediately adjacent to property upon which strip mining is not only permitted but actively conducted. (There is an active strip mine across the road in Ellsworth Township.)

In the Illinois case the Court stated:

“Zoning that prevents mining has the effect of prohibiting any use at all of mineral property. Authorization to use the surface for fanning purposes provides no use for the mineral properties beneath it. * * * The instant resolution does not regulate the use of that property but denies its use without compensation.”

It should be observed, however, that the land structure in Illinois is bottomed on a great amount of limestone, and that they do not have the acid conditions which exist at times in Ohio in strip mining. The result is that the Illinois land returns quickly to normal upon being leveled, and is good crop land without any question. That fact alone is sufficient to render the Illinois principle not applicable here in Ohio.

Many hundreds of pages of testimony were taken on this branch of the case; highly qualified experts in their various fields of learning, in fact one can state with absolute fairness that these experts were the best in the country, were in court from far and near and testified in detail on their particular aspects of the problem. Many interesting and valuable exhibits were before the Court. Plaintiffs’ claims can best be summarized by quoting from their summary on Pages 91 and 92 of their direct brief:

“Briefly reviewed, the uncontradicted evidence above set forth in Section IV of this trial brief has proved that (1) the McCullough farm is a marginal one worth about $17,000, (2) the underlying coal is worth about $1,078,000, (3) such coal and other locally stripped coal is essential to the industries of the Youngstown area, (4) the proposed strip mining will not reduce real estate values, (5) reclaimed lands can be and have been used as building sites, (6) forest crops, sorely needed in this county, can be successfully grown on strip-mined land and on the McCullough tract following stripping, (7) forage and other crops can be successfully grown on strip-mined land and on the McCullough tract following stripping, (8) the Ohio Reclamation Association can and will successfully reclaim the McCullough tract according to plans in the record, (9) the proposed operation will not affect surface water, underground water, or pollute the area water supply, and (10) the proposed mining operation will require no blasting, nor create additional noise, dust, traffic or other safety or health hazards.”

All of these claims were analyzed carefully by the defendants; similiarly qualified experts testified on their side of the issues and many valuable exhibits were placed in evidence. Defendants assert that the Jaw is settled in Ohio by the case of Smith v. Juillerat, (1954) supra. An examination of the briefs in that case as well as the opinion of the Court shows that none of the issues in the case at bar was raised there; it was assumed that the removal of coal by the strip-mining method did have a relation to the health, morals, safety and general welfare of the community, and was subject to prohibition under the police power in an area zoned as residential. At any rate the Supreme Court so held on Pages 428 and 429, quoted supra.

The case of Marshall Mining Company v. Village of Salineville, 665, unreported, supra, involved an ordinance regulating the mining of coal within the Village of Salineville, and it prohibited the mining of coal by the strip-mining process within that village. The plaintiff-appellant contended that the ordinance deprived owners of property of lawful and valid use of their property without due process of law, and that it was in direct conflict with the strip-mining act, known then as §898-203 et seq GC. The Court held that the strip-mining act as hereinbefore stated recognized strip mining as a potential nuisance and regulates it as such; that it does not purport to license it or change the character of the potential nuisance but only to regulate it. It held further that it is obvious that strip mining, a potential nuisance, becomes an actual nuisance when such activity is pursued in a center of population, and that the more thickly populated such center is the more intensive and extensive such nuisance becomes.

It should be obseved further that the determination of the question whether or not the regulations prescribed by an ordinance have a real or substantial relation to the public health, safety, morals or general welfare is committed in the first instance to the judgment and discretion of the legislative body. Courts cannot pass upon the wisdom of the zoning ordinance, and the Court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question. Village of Euclid v. Ambler Realty Co. supra, Page 388; State, ex rel Jack v. Russell, supra; Zahn v. Board of Public Works, 274 U. S. 325, 47 S. Ct. 594; City of Dayton v. Kresge, 114 Oh St 624, 150 N. E. 726; Allion v. City of Toledo, 99 Oh St 416; 124 N. E. 237, 240; 11 O. Jur. Para. 307, Page 1089.

This Court holds that the removal of coal by the strip-mining method is subject to regulation, control and, under some circumstances, prohibition, as a proper exercise of the police power. •

V. Plaintiffs’ last contention is that the ordinance in question prohibiting the removal of this coal in an agricultural district unreasonably and arbitrarily deprives plaintiffs of their property without due process of law in violation of the applicable provisions of the Constitutions.

It should be noted that the strip mining of coal is permitted in industrial districts under certain conditions, the applicable provisions of the ordinance being as follows:

“In ‘Industrial’ Districts there shall be permitted all buildings, structures and uses permitted in any of the other districts and,all other buildings, structures and uses except the following, which are specifically prohibited:

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“6. Strip mining for mineral, sand, gravel, clay, limestone or sandstone deposits except upon adherence to the following provisions:

“(A) The operator shall file with the Township Clerk a bond on a form to be prescribed and furnished by the Clerk, payable to the Township and conditioned for the faithful performance of all the requirements contained in this section.

“The bond shall be in the amount of Five Hundred ($500.00) Dollars per acre based upon the number of acres of such deposits which the operator estimates will be mined by strip mining during one year thereafter; provided, that no bond shall be for less than Five Thousand ($5,000.00) Dollars. Liability under such bond shall be for the duration of strip mining at each operation, and for a period of five years thereafter. Such bond shall be signed by the operator as principal, and by a surety company, authorized to transact business in this state, as surety.

“Upon receipt of a completion or yearly report, the Township shall charge the area of land, affected by strip mining against the bond filed by the operator at the rate of Five Hundred ($500.00) Dollars per acre. 4e 4c *»*

There follow other provisions as to the method of collection upon the bond, the distance of excavations from a public road or highway, the restoration of land excavated to a level of not more than 15 V2 per cent, the extent of the resulting slope between excavated and unexcavated areas, the reseeding and reforestation at the discretion of the zoning inspector of areas strip-mined, the distance of an excavation from adjoining property lines, and the removal of buildings, machinery, and appurtenant equipment.

The Coal Strip Mine Land Reclamation Act (§898-223 et seq GC; §1513.01 et 'seq R. C.) sets forth in detail the manner, method and requirements under which coal may be mined by the strip-mining methods. The Division of Reclamation has direct, complete control over methods of mining and reclamation, with full power by the terms of the statute to make rules and regulations governing all these matters. It follows that the provisions of the ordinance above quoted, beginning with 6(A), are invalid as invading a field which the legislature has covered in the Reclamation Act. Defendants’ counsel states on Page 11 of his brief: “We concede that since the legislature has undertaken to regulate reclamation that township authorities have no right to do so.” Construing the above quoted provision dealing with the permissive uses in Industrial Districts, it is therefore obvious that the words, “which are specifically prohibited,” absolutely prohibit strip-mining in Industrial Districts, for the reason that the exceptions under Section 6 fall as a matter of law.

So that we have here an ordinance which prohibits the strip-mining of coal anywhere in the township. Of course, the plaintiffs cannot complain of anything regulating industrial districts, but this analysis is made to indicate the effect and scope of the ordinance on an overall basis.

The enabling statute permits the township to “regulate” uses. The word, regulate, does not ordinarily include “prohibit,” (although it may, as in Smith v. Juillerat, supra) and express authority to regulate as a general rule negatives by implication the power to prohibit. Ex Parte Kelso, 147 Cal. 609, 82 P. 241; Frecker v. City of Dayton, 88 Oh Ap 52, 85 N. E. (2d) 419, affirmed 153 Oh St 14, 90 N. E. (2d) 851 (1950); State ex rel. Euverard v. Miller, 98 Oh Ap 283, 129 N. E. (2d) 209, Ohio Bar, Oct. 3, 1955. The State of Ohio has recognized strip-mining as a legitimate business by the very enactment of the various statutes dealing with it, and no township may arbitrarily prohibit the conduct of that business. Village of Terrace Park, et al, v. Errett, 12 Fed. (2d) 240 (1926) (6th Circuit) .

But from here on we must consider the protective effect of the constitutional guarantees upon the owner of the land in question; whether the power exists to forbid the use must not be considered abstractly, but in connection with all the circumstances and locality of the land itself and its surroundings. Village of Euclid v. Ambler Realty Co., supra, Page 387. Hence viewed in that light, is the impact of the ordinance on plaintiffs’ land reasonable or arbirtary? Is it regulation or is it confiscation of the coal without due process of law?

From the cases cited above it appears that the factor of the temporary use of the land for mining purposes as compared to a total destruction is to be taken into account, as well as the degree in which the values of the property are diminished by the regulation in question. It appears from Plaintiffs’ Exhibit No. 72, being an economic report on Ma-honing County and the State of Ohio, that there are 13,375 acres of farmland in the township, of which 35 to 40 per cent is crop land. The total valuation in 1952 of farmland (roads deducted) was $712,810; exclusive of farms, the land value in the township was $1,004,550 (Record 1358). In 1950 agricultural income in the State of Ohio was $908,241,600, Mahoning County only contributing $8,703,800. In 1951 Mahoning County was 8th of 88 in population, 8th of 88 in tax duplicate valuation, but 58th in agricultural income. The bulk of agricutural income in Mahoning County comes from dairy products and poultry (Record 1362). A computation from the zoning map in evidence (Plaintiffs’ Exhibit 3) shows the relations of the various districts under the zoning ordinance in acres; all of this, of course, is exclusive of the Village of Canfield: agriculture, 11,921 acres, 70 per cent; industrial, 576.6 acres, 3.4 per cent; residential 1 and 2, 4,425 acres, 26 per cent; and business, 84 acres, .6 per cent. In Terrace Park, et al v. Errett, supra, the evidence showed that the gravel had a value of approximately $50,000.00 which would be entirely lost as a result of the prohibition and that the land for permitted uses had a value of less than one-tenth as much. In the case at bar the value of the tract, exclusive of coal, was shown not to exceed $17,000; or 1.7 per cent of the value of the coal, which the evidence shows exceeds $1,000,000.00.

The evidence shows that this land is run-down farmland, located on the edge of the township approximately two miles from built-up areas, about 300 yards away from a presently operating strip mine in the adjoining Township of Ellsworth, which mine is taking coal from the same vein.

An opinion worthy of study bearing upon this problem is The Cleveland Builders Supply Co. v. The City of Garfield Heights, Common Pleas Court of Cuyahoga County, No. 644,841, Culbertson, Judge, sitting by assignment, decided March 17, 1955, now pending in the Cuyahoga County Court of Appeals, on appeal on law and fact by the defendant city.

Under all the evidence in the case and under the law as indicated it is the ruling of the Court that this ordinance to the extent to which it applies to the property of the plaintiffs is unreasonable and arbitrary in that it deprives plaintiffs of their property without due process of law in violation of Article XIV of the Amendments to the Constitution of the United States and Article I, Sections 1, 16 and 19 of the Constitution of Ohio. It should be noted that in Midland Electric Coal Corporation v. Knox County, supra, the Supreme Court of Illinois concluded with this language;

“* * * By this conclusion we do not mean to imply that all zoning regulations prohibiting the strip mining of minerals are necessarily invalid. To the extent to which the decree of the trial court may be construed to apply to property in a different situation and involving different physical facts, it is inappropriate and the decree is modified to apply only to the property in question.”

The Court finds against plaintiffs on Issues 1, 2, 3 and 4 but rules for the plaintiffs on 5 to the extent indicated above. This holding and decree as to Issue 5 as indicated is limited to and applies only to plaintiffs’ property involved in this case.

Counsel may prepare and submit a decree accordingly.


source: Caselaw Access Project

author: By PHILLIPS, J.

license: Public Domain

text:
    O’HARA, Plaintiff-Appellee, v. REPUBLIC STEEL CORPORATION, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3632.
    Decided March 24, 1954.
    Traxler & Beil, Youngstown, for plaintiff-appellee.
    Harrington, Huxley & Smith, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant, a corporation, appeals to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for plaintiff in her action on appeal thereto from a decision for defendant made by the Industrial Commission of Ohio, on rehearing of plaintiff’s claim of right to participate in the Workmen’s Compensation Fund of Ohio because of the death of her husband, Michael O’Hara, upon whom she was wholly dependent for support at the time of his death, at which time he was employed by defendant.

Decedent, Michael O’Hara, was burned on his left lower leg on September 21, 1945, while engaged in performing his regular duties as defendant’s employee. He received first aid at defendant’s hospital, worked until his regular quitting hour, and also the next day. He returned to work next on January 6, 1946, when he reported off duty on account of grip and bronchitis. Between the date of injury, which it was stipulated was a third degree burn, and January 6, 1946, he was under the care of defendant’s medical staff. He never returned to work after October 31, 1946, became bedfast in December 1947, developed uremic poisoning on August 1, 1949, and died from that condition on August 21, 1949.

As stated by defendant’s counsel by brief:—

“The issue in this appeal is very simple. The primary question presented is, whether or not the evidence sufficiently supports a jury verdict finding, that the death of Michael O’Hara on August 21, 1949 was caused by the burn which he received September 21, 1945 nearly four years earlier. It is the contention of the defendant that the evidence does not meet the burden of proof on this issue, which the law places on the plaintiff and that accordingly, the trial court should have directed a verdict for the defendant denying this claim as did the Industrial Commission.”

Notwithstanding defendant assigned numerous grounds of error, in view of its statement of the question presented, and the statement of its counsel in open court that it relied solely upon the urged errors, and since it has assigned no error other than that “the trial court should have directed a verdict for the defendant denying this claim, as did the Industrial Commission,” and that the verdict is against the manifest weight of the evidence, those are the only questions we shall determine in this appeal.

Three medical witnesses of the parties based their opinions as experts on the issue of causal connection upon the findings of decedent’s attending physician, who alone testified as to his condition, progress or lack of progress, and cause of death, and who testified:

“Q. That is, five years before his death you had been seeing him?

“A. I would think so.

“Q. Doctor, during that time, and the times you examined him, can you recall any of the findings of your examination?

“A. Yes, I do. Mr. O’Hara had a malignant hypertention, and went through the sequels of such an affection. By that I mean he had successive cerebral accidents, small hemorrhages probably in the brain, with resulting increasing degree of paralysis and spasticity, and later on he terminally died of a suppression of urine due to kidney failure, and died in the condition known as uremia.”

One of plaintiff’s expert witnesses testified inter alia:

“The decedent died from kidney failure in this case, uremia. It is my opinion that the burns, with their deliterious effect upon the kidney, liver and blood vessels, aggravated or accentuated the underlying causes of hypertension, and the hypertension itself, that is, its manifestation, and hastened the death of the decedent by its toxic effect on the kidney, also. The burns, such as described in this hypothetical question, can, and do cause damage to the capillaries in the kidneys, and kidney failure, complicating hypertension, does occur, and will hasten the death of the decedent, as, in my opinion, occurred in this case.”

Conflicting and unworthy and impossible of belief, as counsel for defendant contends such testimony is, yet it' is the testimony of an expert given under oath, and in view of evidence that plaintiff’s decedent’s burn had not healed at the time of his death, neither the trial judge nor we can say as a matter of law that it does not furnish “a reasonable basis for sustaining his (plaintiff’s) claim”; nor that the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, and that accordingly “he (plaintiff) fails to sustain the burden of such issue” as the Supreme Court has held in Gerich v. Republic Steel Corp., 153 Oh St 463, cited by defendant.

Since such testimony conflicts with the testimony of defendant’s expert witness that “death would follow shortly after the burn, if it was sufficient to damage the kidneys,” and “within a few weeks if the burn had been sufficient to aggravate decedent’s hypertension” clearly a question was presented for the determination of the jury, thus freeing the trial judge of the charge of erroneously failing to direct a verdict for the defendant “denying this claim as did the Industrial Commission”; and we do not find that the verdict of the jury and judgment entered thereon are against the manifest weight of the evidence.

Finding no error of the trial judge in the respects argued we are compelled to affirm the judgment of the trial court.

GRIFFITH, PJ, and NICHOLS, J, concur.


author: By McNEILL, J.

text:
    JARUS, Appellant, v. ROBINSON, SUPT. OF INSURANCE, Appellee.
    Common Pleas Court, Cuyahoga County.
    No. 660,452.
    Decided December 29, 1954.

      George A. Nelson, Newburgh Heights, for appellant.
    C. William O’Neill, Attorney General, Franklin A. Kropp, Asst. Attorney General, Columbus, for appellee.
    (McNEILL, J., of the Van Wert County Common Fleas Court, sitting by designation in Cuyahoga County.)
   OPINION

By McNEILL, J.

In this case, the superintendent of insurance refused to renew an insurance license held by appellant. The denial was based on §3905.04 R. C. in that more than ñfty-one per cent of appellant’s business was so-called captive business.

The facts are not in dispute. Appellant is a real estate broker and is primarily engaged in the brokerage business and incidentally in the insurance business, and that more than fifty-one per cent of the property that he insures is upon real estate that he has acted as a broker, selling the insurance to the purchaser.

The statutes in question are §§3905.01 and 3905.04 R. C. The pertinent part of §3905.01 R. C. states, in regard to granting a license:

“it is not appointee’s purpose or intention principally to solicit or place insurance on appointee’s own property or that of relatives, employers, or employees or that for which they or the appointee is agent, custodian, vendor, bailee, trustee, or payee * *

Sec. 3905.04 R. C., on re-issuance, states:

“The superintendent of insurance shall refuse to grant any license applied for, shall refuse to renew, and shall revoke any license of or to any appointee, agent, solicitor, or foreign broker, when the superintendent is satisfied that the principal use of such license has been or is to procure, receive, or forward applications for insurance of any kind, other than life, or to solicit, place, or effect such insurance directly or indirectly upon or in connection with the property of such appointee, agent, foreign broker, or solicitor or that of relatives, employers, employees, or that for which they or the appointee, agent, foreign broker or solicitor are or is the agent, custodian, vendor, bailee, trustee, or payee, or to evade or violate §3933.01 R. C.”

The only question of interpretation is that of question of law. As applied to this case, the court feels that the statute should read that; the superintendent of insurance shall not renew any license when the superintendent of insurance is satisfied that the person seeking the same will principally with such license solicit insurance, directly or indirectly, in connection with property for which the one seeking the license is an agent, custodian, vendor, bailee, trustee, or payee.

There is no doubt that a real estate broker is an agent of the vendor, in most cases, and in some cases, he is agent of the vendee. The courts are replete with cases where he attempts to become the agent of both parties.

This being the case, it is impossible to see how appellant can escape the terms of the statute. It is admitted that the great bulk of his insurance sales are on property which he sold as an agent. It is true that technically, he first sold and then placed the insurance on the property. The statute includes the words “directly or indirectly.” The merits of the statute are not before the court, but under its terms, it is clear that appellant falls within its operation. In many real estate deals, financing is involved. One must have insurance to finance. Such transactions occur almost simultaneously. Whether or not this happens is immaterial. It is still semi-captive business.

A similar case has once been before the courts in Motors Insurance Corp. v. Robinson, 62 Abs 58. The opinion of the trial court in 62 Abs 72; motion to certify overruled, 157 Oh St 354. In that case the court said: (Emphasis ours.)

“It is the contention of plaintiffs that even should the statute be construed most unfavorably to them, that the restriction as to the insurance involving property for which certain named persons are vendors, that it could refer only to the time that the named persons held the property either actually or theoretically and that as soon as the property was sold and the property belonged to the purchaser, the restriction no longer applies.

“In other words it is desired to construe the restrictive provisions of the statute as relating to insurable interests of the licensees, their relatives, employers, etc.

“If this had been the intention of the legislature a great deal of trouble was indulged to express a simple purpose, and which could have been simply and directly stated.

“Nor can the court agree that the primary purpose of the legislative enactment was to further lessen the chances of rebating or the affording of unfair advantages to persons insured, and to accomplish this the legislature was narrowing still further the field of activity of the license.”

At page 69, the court also stated:

“The purpose of the restriction was undoubtedly intended to prevent an unfair advantage in the placing of insurance and the licensing of persons who were not intending to do a general insurance business, but simply to supplement their primary business of selling automobiles.”

This court is in agreement with the court in the case of Motors Insurance Corp. v. Robinson, supra. As held by the court therein, the technical matter of timing as to whether the other party owned the property at the exact moment the insurance was placed is immaterial.

The appellant in this case was the agent immediately prior to the sale. Thereafter, he has a semi-captive clientele and that is exactly what was attempted to be prohibited.

Therefore, it is the opinion of the court that the appeal from the judgment of the superintendent of insurance should be overruled.


author: By LEACH, J.

text:
    BROWNEWELL, Plaintiff, v. COLUMBUS CLAY MANUFACTURING COMPANY et, Defendants.
    Common Pleas Court, Franklin County.
    No. 183364.
    Decided March 7, 1955.

      Miller & Miller, Columbus, for plaintiff.
    Willis H. Liggett, Columbus, for defendants.
   OPINION

By LEACH, J.

HEARD ON DEMURRER OF DEFENDANT CROCKER FIRST NATIONAL BANK OF SAN FRANCISCO

This cause is now before the Court on a demurrer to the petition filed by defendant Crocker First National Bank of San Francisco, hereafter referred to as defendant bank on the ground that it appears on the face of the petition that this Court has no jurisdiction of the subject of this action.

It appears that by decision dated June 23, 1954, entered on the Journal June 26, 1954, another branch of this court overruled an identical demurrer filed by defendant Edszen B. Landrum. Plaintiff contends, therefore, that this previous ruling of the court should dispose of the'demurrer now under consideration. An examination of the decision of June 23, 1954, however, reveals that the Court did not actually pass on the merits of the claim that this Court does not have jurisdiction of the subject of the action. The decision was based solely on the conclusion that “Only one demurrer is allowed to a party as to a particular pleading.” Defendant Edszen B. Landrum had previously filed a demurrer asserting (a) That the petition did not state facts which showed a cause of action and (b) That the action was not brought within the time limited for the commencement of such actions. This demurrer had been overruled by a third branch of this court by decision of November 27, 1953, journalized December 2, 1953. We find, therefore, that no branch of this Court had ever passed directly on the specific question of whether or not this Court has jurisdiction of the subject of this action. Since this is the first and only demurrer filed by the bank, the reasoning of the decision of June 23, 1954, that “only one demurrer is allowed to a party as to a particular pleading” has no application.

Plaintiff herein is a Franklin County resident. Defendant Edszen B. Landrum is the brother of the plaintiff and resides in San Francisco, California. Defendant bank is located in San Francisco and is the Executor of the estate of -Emma B. Landrum, such estate being administered by the Probate Court of San Francisco County, California. Emma B. Landrum was the mother of plaintiff and of defendant Edszen B. Landrum. Defendant Columbits Clay Manufacturing Company is an Ohio corporation with its principal place of business in Franklin County, Ohio. Defendant Rush Creek Clay Company is an Ohio corporation with its principal place of business in Perry County, Ohio. Defendant Frederick M. Brownewell, is the Ancillary Administrator with the Will Annexed of the Estate of Emma B. Landrum, having been appointed such by the Probate Court of this county.

The petition alleges that the bank has in its possession a certificate of stock in the amount of forty shares issued by Columbus Clay Manufacturing Company to and in the name of Emma B. Landrum on June 10, 1928, and a certificate of stock in the amount of forty shares issued by Rush Creek Clay Company to and in the name of Emma B. Landrum on June 10, 1928; that each of such certificates had been transferred from G. C. Landrum, father of plaintiff, to Emma B. Landrum, mother of plaintiff, the original certificates having been issued to G. C. Landrum on June 1, 1926.

The petition further recites:

“Plaintiff further says that on or about the fifth day of August, 1926, said G. C. Landrum made a gift of said shares to his daughter, the plaintiff herein, and from said date to on or about April 15, 1927, plaintiff had possession of said shares, to all of which defendants, Columbus Clay Manufacturing Company, Rush Creek Clay Company and Edszen B. Landrum, had knowledge. On or about the 15th day of April, 1927, plaintiff delivered said shares to said Emma B. Landrum, Mother of plaintiff and Executrix of the Estate of Said G. C. Landrum, for transfer to plaintiff; that said Emma B. Landrum did not transfer said shares to plaintiff, but on January 10, 1928, fraudulently had the same transferred to herself. Plaintiff thereupon protested to said Emma B. Landrum and defendants, Columbus Clay Manufacturing Company and Rush Clay Creek Company, at which time, said Emma B. Landrum stated that said shares and some additional shares in the defendant companies would be willed to plaintiff, and that in reliance upon said representations of said Emma B. Landrum, plaintiff took no legal action against her Mother, said Emma B, Landrum, to recover said shares. Said Emma B. Landrum died testate on the 9th day of May, 1951 in San Francisco, California and said Will did not will said shares to plaintiff but willed the same to her son, brother of plaintiff, Edszen B. Landrum, a defendant herein.”

The petition prays for injunctive relief, both temporary and permanent, and that “defendants be ordered to transfer this stock and pay accrued dividends from May 9, 1951, to plaintiff.” In order to determine the jurisdiction of this Court over the subject of the action, it is necessary, of course, to determine just what is the “subject” of this action. •Just what is the nature of the action and what relief can this Court afford plaintiff if all of the allegations of the petition are proven?

Another branch of this court by decision on a demurrer of Edszen B. Landrum on November 27, 1953, held that “This is an action to enforce a trust and is clearly equitable * * * the mother, who held the stock in trust * * * induced the daughter to refrain from enforcing the trust during her lifetime on the promise that her will would protect the daughter’s rights. Her conduct was, therefore, fraudulent and could not be discovered until after her death.”

On the authority of Kershaw v. Snowden, 36 Oh St 181, we are inclined to disagree as to the conclusion there expressed that this is an action to enforce a trust. The first paragraph of the syllabus of that case reads:

“A plaintiff sued an administrator for money placed in the hands of his intestate, which it was averred was so received upon the ‘express trust,’ to be repaid to the plaintiff on the death of the intestate. Held that the transaction did not constitute an equitable trust, but merely created the relation of debtor and creditor between the intestate and the plaintiff.”

It would appear that when the daughter delivered the certificates to the mother as executrix of the estate of her father on April 15, 1927, for transfer to the daughter and when the mother instead had them transferred to her own name, there was a conversion by the mother and possibly a breach of her duties as executrix of the father’s estate. We may take judicial notice of the fact that under Ohio law such certificates standing in the name of the father, were included in his estate and of the fact, therefore, that the transfer to .the mother was pursuant to order of the Probate Court. At that time the daugher did nothing to assert any claim to the certificates either by claim filed with the Probate Court or by action in any other court but instead accepted the statement of the mother that “said shares and some additional shares” would be willed to the daughter. By such acceptance the daughter waived any claim which she might have had to legal ownership of the certificates and acquiesced in the inclusion of such certificates as a part of the assets of the estate of her father.

In legal effect we believe that the petition alleges a contract to make a will which was breached by the mother. If a trust existed, such of course would have been in effect from April 15, 1927 on and would not have come into existence only upon the death of the mother on May 9, 1951. The existence of such a trust would mean that the daughter could have brought an action to “enforce the trust” by compelling delivery of the certificates from the mother to the daughter at any time during the lifetime of the mother. It would not appear, however, that she could have done so since she had in legal effect transferred her interest in the shares to the mother in return for the mother’s agreement to make a certain will. In this connection it will be noted that plaintiff apparently assumes in the petition that full ownership of the certificates was in the mother until the time of her death since plaintiff prays that defendants pay accrued dividends to her from May 9, 1951, the date of the mother’s death.

If the petition alleges a cause of action for breach of a contract to make a will, this Court, of course, has no jurisdiction of the subject of the action. Such would be a claim for damages for such breach brought against the bank as executor in the California courts where personal service could be had against such executor. Such a claim would not involve a transfer of the stock itself and, of course, any judgment rendered would have to be satisfied out of all the assets of the estate and not solely from those assets devised to the brother. Incidentally it should be noted that the “trust” theory would assume that the daughter is entitled to a transfer of the stock regardless of whether the assets of the estate over liabilities would permit the transfer in kind of the stock in question to the son to whom it was devised in the absence of any claim by the daughter. This claim is made by the daughter even though by consenting to her mother passing title to the stock by will, she in effect acquiesced in its inclusion in her mother’s estate.

In the balance of this opinion, however, we will accept the theory that the petition states an action to enforce' a trust and that some court would have the authority to direct that the stock itself, either the certificates or the shares, or both, be transferred to the plaintiff. Under such a theory it is the contention of the plaintiff that the “situs” of the stock is in Ohio in view of the fact that it was issued by Ohio corporations with their principal places of business in Ohio. Service therefore was had on the bank and the brother under the provisions of §11292 GC (now §2703.14 R. C.). This statute authorizes service by publication “In an action which relates to or the subject of which is * * * personal property in this state, when the defendant has or claims * * * an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is not a resident of this state or is a foreign corporation or his place of residence cannot be ascertained.”

There is no question as to the power of this state to enact statutes providing for constructive service on non-resident defendants in actions where the controversy relates to property which is within the jurisdiction of the court. 126 A. L. R. 664. Such actions are spoken of as being in rem or quasi in rem as contrasted with in personam. They are based on the theory that no personal judgment need be made against the non-resident defendant since the Court itself has the full power to make an order directing the disposition of the property itself which order will effectively dispose of the dispute between the parties. It seems, therefore, that the issue presented here is whether this Court has the authority to make such an order. In other words, if plaintiff establishes the right to have the shares transferred to her can this Court make an order which will effectively do so?

This brings us to a consideration of the “situs” of the stock or in more exact language the “situs” of the certificates and the “situs” of the shares and the effect, if any, of the passage in Ohio of the Uniform Stock'Transfer Act.

While “situs” has a fixed meaning when applied to real property and a fairly definite meaning when applied to tangible personal property, its attempted application to intangible personal property has not produced very satisfactory results. We quote from Davies Ohio Corporations, Sec. 25:

“The idea of a fixed situs for shares has proved a source of confusion. The share certificate has a physical location, but a share is something more than the certificate; a share is one of the units into which the legal relations of the shareholders as a group have been divided. ‘There can be,’ concludes one writer, ‘no actual “situs” of a share of stock. If “situs” is to be used in the sense of physical location it might better be abandoned entirely. What Professor Powell has said of the debt is equally applicable to the corporate share: “It isn’t- that kind of an animal. Any talk about its location is necessarily a medley of metaphor and analogy.” “Situs simply means the place where shares may effectually be dealt with.” Or perhaps one should say places, because it is not impossible that several jurisdictions may deal effectually with the same shares of stock. Nor need the place be the same for every purpose, for perhaps a jurisdiction which cannot deal effectually with shares for one purpose can for a different purpose. “Situs” would seem to be pretty much what the courts make it. At different times, and for different purposes, they have made it the domicile of the owner, the place where the certificate is located, the state of incorporation, the place where the corporation owns property and does business.’”

See also Fletcher Cyclopedia Corporations, Sec. 5101.

While considered as having a “situs” for tax purposes in the state of the domicile of the owner of the certificate, in the absence of a Uniform Stock Transfer Act, shares were formerly held to have a “situs” at the domicile of the corporation for purposes of jurisdiction in rem or quasi in rem. The state of the domicile of the corporation therefore was considered as the proper forum to determine litigated matters as to the ownership of such shares. 131 A. L. R. 203; 145 A. L. R. 1393.

The effect of a passage of a Uniform Stock Transfer Act on this matter appears to be in dispute. The courts in at least two cases have adhered to the view that the provisions of the Uniform Stock Transfer Act, in many respects identifying the shares with their certificates, have not altered the conclusions that, in actions respecting the right, title, or ownership of stock in a domestic corporation, the courts of a corporation’s domicile have jurisdiction by constructive service of process upon a non-resident defendant. Harvey v. Harvey, 290 Fed, 653; McQuillen v. National Cash Register Co., 13 Fed. Supp. 53.

On the other hand, other courts have taken a contrary view, at least where the action seeks to effect a transfer of the certificates as well as the shares. We quote again from Davies Ohio Corporations, Sec. 25:

“In the absence of an enactment such as the Uniform Stock Transfer Act, shares are uniformly held to have a situs at the domicile of the corporation for the purpose of jurisdiction in rem or quasi in rem. The effect of the Uniform Stock Transfer Act, generally speaking, is to embody the shares in the certificate, and where the Act is in force in the state of incorporation, the situs of the shares is that of the physical location of the certificate, even though such location is a foreign state. In the Restatement of Conflict of Laws the rules as to jurisdiction over shares have been stated as follows:

“‘(1) Shares in a corporation are subject to the jurisdiction of the state in which the corporation was incorporated.

“‘(2) The share certificate is'subject to the jurisdiction of the state within whose territory it is.

“ ‘(3) To the extent to which the law of the, state in which the corporation was incorporated embodies the share* in the certificate, the share is subject to the jurisdiction of the state which has jurisdiction over the certificate.’”

In Gallagher v. Rogan, 185 Atl. 707 (Supreme Court of Pennsylvania) an action was brought by the administrator of an estate, alleging that defendant, a resident of another county, had obtained stock from the decedent by fraud and undue influence. Constructive service was had on the non-resident defendant on the basis that the res, the shares, was situated in the county where the corporation was domiciled. The Court distinguished that case from the case of Jellenik v. Huron Copper Mining Co., 177 U. S. 1, which is the landmark case deciding before the passage of any Uniform Stock Transfer Acts that suits to determine disputes of ownership of stock may be brought in the state of the domicile of the corporation and constructive service had upon non-resident defendants, stating:

“The present suit, however, is not one in which there is any claim made against the company or its directors with reference to the status of the stock or any assessment or lien upon it, but is concerned merely with the ownership of the certificates, and therefore is subject to the well-established doctrine that they, like other personal property, are located at the domicile of their owner. * * *

“It is clear, therefore, that no property of defendant Delia M. Rogan was within the county of Philadelphia when this action was instituted. Even were the fact otherwise, it would not avail plaintiff, because the mere presence of property within the jurisdiction does not, by virtue of the Act of 1859, permit the bringing in of the nonresident owner of such property where the decree sought is in personam. * * * The present suit is not a proceeding in rem, but seeks a personal decree against defendant Delia M. Rogan for the retransfer of the property involved. As stated in Atlantic Seaboard Natural Gas Company v. Whitten, supra, 315 Pa. 529, at page 534, 173 A. 305, 307, 93 A. L. R. 615, ‘There is a wide distinction between a course of judicial procedure, the object of which is to subject the res to the power of the state directly by the judgment or decree which is entered and a procedure which only affects or disposes of the res by compelling a party to the action to control or dispose of the res in accordance with the mandate or decree. The former is a proceeding in rem; the latter is a proceeding in personam. The suit before us is not specifically directed toward the res; it is directed toward the owner of the res. The status of the res is not in the slightest degree affected until after the suit against the owner is terminated adversely to the latter. Until that stage is reached, the suit is entirely a proceeding between persons and not between a person and a certain piece of land as, for example, in condemnation or foreclosure proceeding.’ ”

We believe that the reasoning of this case is particularly applicable to the instant case. Here, too, there is no claim made against either of the corporations or its directors with reference to the status of the stock and' this case is concerned merely with the ownership of the certificates. It was the certificates which the father allegedly gave to the daughter, which the daughter turned over to the mother and which the mother now seeks to will to the son. Furthermore, for reasons set forth in more detail later, it would appear that plaintiff could not have the relief which she seeks without an actual transfer of the certificates by the bank as executor and, of course, an order by this Court to the bank to transfer such certificates would be a judgment in personam and not in rem.

This same general reasoning was followed by the district court of the Southern District of Maine in Pennsylvania Company for Insurance, etc. v. United Railways of Havanna and Regia Warehouses, 26 Fed. Supp. 379. The Court therein held in an action begun by attachment that while for many purposes the so-called “situs” of shares of a corporation is in the home state of the corporation, in the State of Maine as between a stockholder and third parties, the “situs” is identified with the certificate under the provisions of the Uniform Stock Transfer Act.

In Ohio State Life Insurance Company v. Sharp, 20 Abs 497, the Court of Appeals of this district held that in view of the provisions of the Uniform Stock Transfer Act of Ohio, the Probate Court had no authority to direct a corporation to cancel upon its records a stock certificate for shares of its capital stock and to order the issuance of a new certificate in lieu thereof when such certificate was neither lost nor destroyed but held in another state, since neither the Probate Court nor its administrator could surrender the certificate to the corporation.

In LeVeque Company v. Ross, 31 O. N. P. (N. S.) 185, Judge Reynolds of this court held that in view of the provisions of the Ohio Uniform Stock Transfer Act, attachment could not be had of shares of stock merely because the corporation issuing the same was within the jurisdiction of the Court where the certificates were held out of state. Judge Reynolds cited with approval the case of Hotel Gibson Company v. Cino Theatre, 30 O. N. (N. S.) 41, and cited with disapproval the case of Maescher v. Sammann, 22 O. L. R. 681, wherein a contrary conclusion had been reached.

While these cases dealt with attachment and not with disputes of “ownership,” it would seem that the same basic reasoning should apply herein. Here as in the attachment cases, is a dispute between third parties which in no way involves any claim against the company or its directors with reference to the status of the stock.

The case of Knight, Exe. v. Shutz, 141 Oh St 267, involved a situation where the defendant had obtained certain stock certificates by duress and fraud from the decedent. An action was brought in the Common Pleas Court of Stark County, where defendant was ordered to assign and deliver such stock certificates to the executor. Upon failing to do so, she was found guilty of contempt and imprisoned-pending performance. Without surrendering the certificates, she was then released from jail and thereafter sold or delivered one of the certificates in question in the open market. She was again committed to jail and later released without having complied with the order of the court to surrender the certificates. Thereupon an action was brought in the Court of Common Pleas of Stark County by the executor against the several corporations which had issued the certificates which defendant had refused to surrender, praying among other things, that these corporations and their transfer agents be ordered to issue in the name of the executor certificates of stock in lieu of the certificates held by the defendant.

The Supreme Court affirmed the lower courts which had held that the Common Pleas Court lacked authority to compel the issuance of certificates of stock in lieu of the certificates held and outstanding. They concluded that “She may still be compelled to surrender the certificates.”

The Court concluded that the Uniform Stock Transfer Act applied to all certificates of stock issued by Ohio corporations since July 1, 1911, that this act is all inclusive and admits of no exception, that such stock certificates possessed the quality of negotiability, that the title to a stock certificate and the shares represented thereby can be transferred only by delivery of the certificate properly endorsed or accompanied by a separate document containing a written assignment or a Power of Attorney to assign or transfer the certificate or the share represented thereby and that a Court is without authority to compel a corporation to pay dividends to anyone except a registered holder of its stock.

Here, as in the Knight case, the stock certificate allegedly was procured by fraud. Such stock certificates are outstanding and under the ruling of the Supreme Court title to the certificates and the shares represented thereby can be transferred only by delivery of the certificates properly endorsed. It would appear therefore, that the relief which plaintiff seeks, namely, a transfer of the certificates and the shares cannot be accomplished except by delivery of the outstanding certificates properly endorsed to the Ohio corporations. To accomplish this, an order requiring defendant bank to deliver such certificates so endorsed would be required. Such, however, in our opinion, would not be a judgment in rem but a judgment in personam. It is our opinion that this Court lacks such power to make such an order.

The demurrer of defendant Crocker First National Bank of San Francisco therefore is sustained for the reason that even assuming this action to be that to enforce a trust, this Court lacking the power to make any order directing Crocker First National Bank of San Francisco as executor of the estate of Emma B. Landrum, to deliver the certificates of stock in their possession, endorsed to the plaintiff, to the Ohio corporations, therefore lacks jurisdiction of the subject matter of this action. The demurrer is sustained. Entry may be prepared accordingly.


text:
    BROWNEWELL, Plaintiff, v. COLUMBUS CLAY MANUFACTURING COMPANY et, Defendants.
    Common Pleas Court, Franklin County.
    No. 183364.
    Decided June 16, 1955.
    Miller & Miller, Columbus, for plaintiff.
    Willis H. Liggett, Columbus, for defendants.
   OPINION

By LEACH, J.

Heard on motion of plaintiff for reconsideration of decision of March 7, 1955, sustaining demurrer of defendant, Crocker First National Bank of San Francisco; and on motion of defendant, Edszen B. Landrum for judgment in his favor on the pleadings.

On March 7, 1955, decision was rendered by this Court sustaining a demurrer to the petition filed by defendant Crocker First National Bank of San Francisco on the ground that it appeared on the face of the petition that this Court had no jurisdiction of the subject of this action.

On March 12, 1955, defendant Edszen B. Landrum filed a motion for judgment in his favor on the pleadings on the basis that, so far as he is concerned, this Court has no jurisdiction of the subject matter of this action.

On March 14, 1955, plaintiff filed a motion for rehearing as to the decision of this Court of March 7, 1955, and requested an oral hearing at some time after April 16, 1955. Such a hearing was had on April 23, 1955, at which time plaintiff also filed a memorandum which has been carefully examined and considered by this Court. In view of the fact that a “rehearing” was in effect held on April 23, 1955, we shall consider plaintiff’s motion of March 14, 1955, as a motion for reconsideration.

Counsel for both sides appear to agree that the issue involved in the motion of defendant Edszen B. Landrum for judgment in his favor on the pleadings is not distinguishable from the issue involved in the motion of plaintiff for reconsideration. In other words, if as we concluded in our decision of March 7, 1955, this Court has no jurisdiction of the subject matter of this action, it would follow that defendant Edszen B. Landrum is entitled to judgment in his favor on the pleadings and it also would follow that plaintiff’s motion for reconsideration should be overruled.

The single issue involved at this time, therefore, is whether we were correct in our conclusion reached in the decision of March 7, 1955, that this Court lacks jurisdiction of the subject matter of this action. After a careful reconsideration of our previous decision and of the contentions of the plaintiff and of the cases cited by counsel for plaintiff in his memorandum, we are firmly of the opinion that our previous decision is a correct statement of the law.

Since defendant Crocker First National Bank and defendant Edszen B. Landrum both are residents of California and since service was obtained on them in California, presumably under the provisions of §11292 GC (now §2703.14 R. C.J counsel for plaintiff must and does concede that this Court cannot have jurisdiction of the subject of this action unless the action relates to or the subject of which is personal property in this state. Is this an action in rem? Plaintiff asserts that it is. We cannot agree. If this be an action in rem, it would follow that this Court would have the power to make an order directed to the property itself without the necessity of compelling the non-resident defendants to take any personal action.

Assuming that plaintiff otherwise would prevail in this action and establish in this court the right to the return to her of the certificates of stock in question and the shares represented thereby, just how could this Court effectuate such a redelivery? By an order directed to defendant Crocker First National Bank or defendant Edszen B. Landrum to take action to re-deliver such certificates, enforceable by contempt of court? Obviously not. Such would be an order in personam and not an order in rem. By an order in rem directed to the certificates themselves? Such an order, however, since the time of the passage in Ohio of the Uniform Stock Transfer Act in 1911, clearly is not within the power of this Court under the decision of the Ohio Supreme Court in Knight v. Shutz, 141 Oh St BS7. We quote from the opinion of Turner, J. at page 281:

“There have been cases in which a court of equity, having all parties before it, has entered a decree which operated upon the title of stock and transferred it to a third person while the certificate was outstanding. Yet no such case, insofar as we have been able to find, has been decided where the Uniform Stock Transfer Act was applicable.”

The Knight case was reviewed at greater length in our March 7, 1955 decision and no useful purpose would be served by repeating herein all of our reasoning as contained in that decision. Suffice it to say that even if a trust relationship were created, and we do not believe that it was, nevertheless, this Court lacking the power to enter a decree operating upon the title of the stock and transferring it, and lacking the power to make an order in personam directed to the non-resident defendants, ordering them- to transfer the certificates and the shares represented thereby, necessarily lacks jurisdiction of the subject matter of this action.

The motion for re-hearing filed by plaintiff on March 14, 1955, may be considered as a motion for re-consideration of our previous decision of March 7, 1955, and as such overruled. The motion of defendant Edszen B. Landrum for judgment in his favor on the pleadings may be sustained and the cause of action against him dismissed at the plaintiff’s costs. Entry may be prepared accordingly.


author: PER CURIAM.

text:
    BOWMAN, Appellant, v. ALVIS, WARDEN, etc., Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12442.
    Decided June 10, 1955.
    James G. Andrews, Jr., Cincinnati, for appellant.
    C. William ONeill, Attorney Genéral, Roger B. Turrell, Assistant Attorney General, Columbus, for appellee.
    Before MARTIN, MILLER and STEWART, Circuit Judges.
   OPINION

PER CURIAM.

In this case, Donald Bowman, a convict now confined in the Ohio State Penitentiary, has appealed from an order entered by the United States District Court for the Southern District of Ohio denying his petition for habeas corpus. He has filed in this court numerous petitions, motions, briefs, and various assorted documents, including his application to the governor of Ohio for pardon.

All the pleadings, documents and communications which appellant-petitioner has presented have been duly considered and found to be without .merit in support of his appeal. This court previously has held that appellant had exhausted all his state remedies and was, therefore, entitled to a hearing in the United States District Court on his application for habeas corpus. District Judge Cecil accorded him the benefit of a fair and adequate hearing, following which findings of fact and conclusions of law were appropriately filed by the judge, wherein the conclusion was reached that appellant had been properly tried, convicted and sentenced in the Common Pleas Court of Eichland County, Ohio: and that, in habeas corpus proceedings, the United States District Court determines only the question of legality of confinement and does not consider whether or not there were errors committed in the original trial of the case.

On this appeal, it appears that appellant actually is seeking a remedy which could have been sought only by direct appeal. This embraces the proposition that he was convicted upon evidence erroneously admitted. This court and other federal courts have held many times that application for habeas corpus may not be employed in lieu of an appropriate review by writ of error or appeal. See Goss v. United States (6 Cir.), 179 F. (2d), 706. This principle is so well settled as to require no citation of authority.

In our opinion, the judgment of the district court should be affirmed and the appeal dismissed; and it is so ordered.


author: By KOVACHY, PJ. HURD, J,

text:
    KALLINS, Plaintiff-Appellee, v. REX, INC., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23331.
    Decided March 30, 1955.

      N. R. Simon, G. W. Rosenberg, Cleveland, for plaintiff-appellee.
    Kuth & Meyers, Cleveland, for defendant-appellant.
   OPINION

By KOVACHY, PJ.

Plaintiff-appellee brought an action in the Cleveland Municipal Court for commission earned for obtaining a tenant on a five year written lease for premises owned by the defendant corporation. Although the building was reconstructed to house light commercial enterprises, it was located in a district zoned for residential purposes and classified for a non-conforming use. The lease was executed on January 23, 1952 for a term of five years, commencing on February 1, 1952 and ending on March 1, 1957 and stipulated a total rental of $47,130.00 payable in monthly installments of $785.50. It also provided for a deposit with its execution of $2356.50 as security for the obligation and to be used as advance rent to May 1, 1952. It contained the usual provisions of a written lease and in addition this significant condition: “In the event that it is impossible to secure approval by the Zoning Board of lessee’s occupancy, the above advance rent will be refunded to lessee and his contract will be considerd null and void.”

Prior to the effective date of the lease, the Zoning Board of Appeals granted a temporary permit to the defendant-appellant allowing use of the premises by the lessee for a period of one year. The lessee, even though only assured a one year occupancy by the temporary permit, took possession of the premises on February 1, 1952 and made the monthly installment payments called for by the lease.

Plaintiff-appellee in his petition alleged among other things that he had obtained a tenant for the defendant under a five year written lease and under the prevailing rates established by the Cleveland Real Estate Board was entitled to a commission of five per cent of the full rental to be paid under the lease or an amount of $2356.50 with interest from the 23rd day of January, 1952. The Municipal Court of-Cleveland on the basis of the facts stipulated by and between counsel in the case, rendered judgment for $589.22, representing commission for rentals received by the lessor up to the date of filing of the petition in that court, and further adjudged and ordered “That this judgment shall be without prejudice to the rights of the plaintiff to sue for any additional installment or installments of commission after the same may accrue.”

Defendant-appellant appeals here from this judgment on questions of law, claiming that the trial court rendered judgment on an issue not before it; and on a quantum meruit basis without evidence and in an erroneous amount.

The first question confronting us is the determination of the affect upon this written lease by the provision “In the event that it is impossible to secure approval by the Zoning Board' of lessee’s occupancy, the above advance rent will be refunded to lessee and his contract will be considered null and void,” in view of the fact that the Zoning Board of Appeals allowed a temporary permit for one year and not an occupancy for the full term of the written lease. We believe that the provision just mentioned is a condition precedent in the lease. The expression, “lessee’s occupancy” unquestionably refers to an occupancy for the full life of the lease for the reason that the parties had in mind when entering into this agreement that such occupancy would take place or none at all. The purpose of a written lease is to assure a lessee a definite term of undisturbed and peaceful use of premises demised and the lessor a guaranteed remuneration for the term specified. It seems obvious to us that at the time this lease was entered into, the parties had in mind a permissive right running to the lessee to occupy the premises for its full term and the voiding and cancellation of the same in the event such occupancy was not allowed by the Zoning Board of Appeals, and that under the circumstances the approval of the Board for occupancy for five years was a condition precedent and that upon the failure to obtain such approval, the lease, ipso facto, became null and void. It necessarily follows, therefore, that when the Zoning Board of Appeals refused to issue a permit allowing occupancy for the term of the written lease, it became “impossible to receive approval by the Zoning Board of lessee’s occupancy” and the lease under the clear and unequivocal language contained within it, became null and void.

Paragraph one of the syllabus in Gibson v. Warren Metropolitan Housing Authority, 65 Oh Ap 84 reads:

“A provision in a contract between a private corporation and a housing authority that 'in the event said site is not rezoned by the time herein mentioned or any extension hereof, then said contract shall be void, cancelled and of no effect,’ is a condition precedent to the liability of the housing authority on the contract.”

See Aubrecht v. Vanacek, 9 Abs 710 and 11 O. Jur. 2nd 436, Sec. 186.

When the lessee occupied the premises under this invalid lease and paid the installments or rent provided in the lease, it, by implication of law, became a tenant at will from year to year at the rent reserved in the lease and subject to all its provisions except as to duration.

In B & O R. R. v. West, 57 Oh St 161, paragraph one of the syllabus reads:

“An entry under a lease for a term of years at an annual rent, void for any cause, and payment of rent under it, creates a tenancy from year to year upon the terms of the lease, except as to its duration.”

In Grundstein v. Suburban Motor Freight, Inc., 92 Oh Ap 181, paragraph four of the syllabus reads:

“Where a purported lessee takes possession under a defectively executed lease and pays rent, a tenancy will be implied, the duration of the term of which is determinable by the provisions for payment of rent, and where the rent is reserved annually, although payable in monthly installments, a tenancy from year to year will be implied.”

Strangward v. Bedstead Company, 82 Oh St 121, paragraph three of the syllabus reads:

“A lease which provides for a term of two years, the rent to be a stated sum per year during the continuance of the lease, is a leasing for a fixed term and is not a renting from month to month although the rent is to be paid in specific installments on the first day of each month in advance.”

See 32 Amer. Juris. 71 Sec. 51 and 52; 24 O. Jur. 789, Sec. 54.

Defendant-appellant’s contention that under the circumstances a month to month rental ensued is not maintained under these holdings.

Plaintiff maintains that inasmuch as the landlord and the tenant in this case entered into a written five year lease that he had accomplished his mission and was entitled to the commission specified by the Real Estate Board, namely, five per cent of the gross rentals accruing under the lease.

We are of the opinion that his commission depended upon the actual leasehold that resulted from his efforts, in this case a leasehold from year to year. Under the law, to fulfill his duties as broker, he was required to obtain a person ready, willing and able to enter into a leasehold for occupancy of the premises involved. The lessee, in executing the lease here under consideration, exhibited its readiness and willingness to enter into a five year lease. Its ability to enter into such lease, however, was completely dependent upon the agreeableness of a third party to allow or not to allow, and when occupancy for the term of the lease was denied it by the Zoning Board of Appeals, it was found unable to enter into the tenancy for five years as contemplated by it and the landlord. The broker consequently obtained a tenant from year to year for the landlord and can claim commission or compensation on that basis alone.

4 Ruling Case Law 297, Section 42:

“In the absence of an express stipulation to the contrary, his (broker’s) right to compensation is contingent upon the successful culmination of his undertaking.”

See Mock v. Surdyk, 7 Abs 648.

Patton v. Alessi, 42 Oh Ap 91.

The parties herein agree that the prevailing rate established by the Cleveland Real Estate Board for commission on a long term lease is five per cent of the gross rental to be realized. The Lessee herein is in possession for the second full year, the defendant having obtained a renewal of a year’s temporary permit. The plaintiff, accordingly, is entitled to five per cent of the rentals accrued or to accrue for two full years. The rent for two years is $18,852.00 and five per cent thereof is $942.60.

We, as a result of the above, modify the judgment rendered by the trial court as to the amount due the plaintiff by entering judgment for $942.60 with interest at six per cent from the due dates .of the severable obligations and reverse that part of the judgment preserving further rights to the plaintiff for further commission, the trial court lacking authority in an action at law so to do.

The judgment of the Cleveland Municipal Court is modified in part and reversed in part and final judgment is rendered the plain tiff-appellee and costs. Exceptions. Order see journal.

SKEEL, J, concurs.

HURD, J,

concurs in the modification of the judgment to $942.60 but dissents as to that part which reverses the judgment as to further rights of action.

In my opinion the occupancy was taken under a five year lease which was neither invalid nor void but subject only to a condition dependent upon the consent of a third party, namely, the Zoning Board of Appeals.

It is my view that the lease being from year to year, the plaintiff is entitled to commission each year that the lessee remains in possession up to the full five year period.


author: By BARTLETT, J.

text:
    BROWN et, Plaintiffs, v. BAHRICK et, Defendants.
    Common Pleas Court, Franklin County.
    No. 189627.
    Decided September 24, 1954.

      Herbert, Tuttle, Applegate & Britt, Columbus, for plaintiff and defendant Schreiner, etc.
    Buchanan, Peltier & Fuller, Columbus, for defendant Angelo Loreti.
   OPINION

By BARTLETT, J.

MOTION OF PLAINTIFF TO STRIKE FROM THE FILES, THE ANSWER AND CROSS PETITION OF DEFENDANT LORETI, IS OVERRULED.

The Court has inherent power to strike sham pleadings from the flies in the due and speedy administration of justice, where the evidence introduced discloses no conflict on any material point and leaves no reasonable doubt that such order should be made. White v. Calhoun et al, 83 Oh St 401.

No such showing appears on the face of the pleadings, and the Court should not make such an order on mere assertions of counsel. The deposition referred to is not in the Clerk’s office and the Court has no evidence before it in support of such assertions.

Then, too, the cross petition of the defendants Bahrick and wife, owners of the real estate, to the cross-petition of defendant Loreti, lends substance to the latter answer to plaintiff’s petition,' and at least makes the striking of such answer from the files of little value. These matters should be heard on their merit in open court, if the parties are unable to compose their differences.

In any event, “the discretion of • the court in such case should be exercised wisely and with discrimination, and such motion sustained only upon such showing upon the part of the plaintiff as leaves no question whatever of the truth and conclusiveness of the plaintiffs’ evidence. A situation in which there is conflict of evidence upon any material point, or admitting of a rational doubt as to the proper order to be made, should result in the overruling of the motion.” Spear, C. J., p, 407, in delivering the opinion of the court in the case of White v. Calhoun, et al, supra.

The motion of the defendant Schreiner, etc., to strike from the files the answer of defendant Loreti to the former’s cross petition should be withdrawn, as no such answer has been filed. In the event this motion is not withdrawn, the entry may show it was overruled.

Entry accordingly with exceptions of counsel for plaintiff.