source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    DODSON, Plaintiff-Appellant, v. URBANA (City) et, Defendants-Appellees.
    Ohio Appeals, Second District, Champaign County.
    No. 131.
    Decided October 23, 1952.
    Arthur W. Gurklies, Urbana, for plaintiff-appellant.
    C. William O’Neill, Atty Geni., Robert E. Leach, Chief Counsel, Columbus, Richard P. Faulkner, Pros. Atty., Clifford R. Wagner, City Solicitor, Urbana, for defendants-appellees.
   OPINION

By THE COURT:

This is an appeal on questions of law and fact from a judgment rendered in favor of the defendant by the Common Pleas Court of Champaign County.

This is an action for a declaratory judgment, accompanied with a prayer for injunctive relief, in which the plaintiff alleges that §§13066-1, 13066-2, 13066-3 and 13066-4 GC, effective September 18, 1951, are unconstitutional. In his petition plaintiff alleges that he owns and possesses slot machines and mechanical devices as defined in §13066-1 GC, and, therefore, brings himself squarely within the provision of the statute. The contention of the plaintiff is twofold: First, that it is beyond the power of the Legislature to prohibit the ownership and possession of gambling devices, unless such ownership and possession is coupled with proof of .the actual use of such devices for gambling purposes; second, that the legislature may not prohibit the ownership and possession of gambling devices which were acquired before the effective date of the sections enumerated above, and at a time when the statute made unlawful only the keeping or exhibiting of such devices for gain. Plaintiff alleges, which is supported by the evidence, that he acquired the devices before the effective date of the enumerated sections and that such gambling devices are not now in use.

Plaintiff-appellant assigns six grounds of error. However, only one ground of error is discussed in the brief of counsel for appellant, which is to the effect that the judgment is contrary to law. The principle question for determination is whether the sections enumerated are constitutional.

The trial court declared that plaintiff’s possession of the slot machines and kindred mechanical devices in question is unlawful within the purview of §13066-1 to §13066-4 GC, inclusive, and that such statutes are constitutional. The temporary injunction was dissolved and permanent injunctive relief was denied. This Court will enter a like judgment.

Judgment accordingly.

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


author: By BARTLETT, J.

text:
    BOWERS, Plaintiff, v. VIERECK et, Defendants. DURBAN, Plaintiff, v. NORWICH TOWNSHIP et, Defendants.
    Common Pleas Court, Franklin County.
    Nos. 183557, 184560.
    Decided August 3, 1953.

      Hamilton & Kramer, Columbus, for plaintiff, Helen Bowers and Dr. Donald Bowers.
    John Mitchell, Columbus, for Clifford Durban.
    John R. Schikler, for defendant, Louis Viereck.
    Ralph J. Bartlett, Robert Barnhart, Columbus, for defendant, Trustees.
   OPINION

By BARTLETT, J.

Upon complaint, the Township Trustees on March 12, 1951, viewed the premises where á partition fence was to be built, and assigned in writing to each owner his share thereof to be constructed. The notice of the time and place of the meeting was served on the husband rather than on the record holder of the title as one of the adjoining owners of the land. The notice was sent on March 2, 1951, by registered mail to the husband’s office outside the township and received March 3, 1951. The husband had purchased the property and put the title in his wife’s name, but retained dominion and control over the premises. The husband and wife failed to build their portion of the fence, and the Trustees sold the contract according to law to build the fence for $675.00 which was certified to the County Auditor.

The wife filed suit to enjoin the Auditor from placing such cost of the fence on the tax duplicate to be collected as other taxes, and a temporary restraining order was granted.

The contractor filed action against the Trustees, the legal holder of title to the adjoining land, and her husband, and also the land owner who filed the complaint for the partition fence.

The court ordered the two actions tried together which was done.

HELD:

1. THE WIFE AS THE NAKED HOLDER OF LEGAL TITLE, CANNOT MAINTAIN HER ACTION, SINCE §11241 GC, REQUIRES THE ACTION BE BROUGHT IN NAME OF THE REAL PARTY IN INTEREST.

2. NOTICE TO THE HUSBAND AS ACTUAL OWNER WOULD BE COMPLIANCE WITH §5910 GC, REQUIRING NOTICE TO ALL ADJOINING LAND OWNERS.

3. NOTICE OF MEETING ON MARCH 12, 1951, RECEIVED MARCH 3, 1951, BY THE HUSBAND, FAILED TO COMPLY WITH §5910 GC, SUPRA, WHICH PROVIDES NOT LESS THAN TE'N DAYS WRITTEN NOTICE TO THE LAND OWNERS OF THE TIME AND PLACE OF TRUSTEES’ MEETING TO VIEW THE PREMISES, SINCE IN COMPUTING THE TIME WITHIN WHICH AN ACT IS REQUIRED BY LAW TO BE DONE, THE FIRST DAY IS EXCLUDED AND THE LAST DAY INCLUDED, BY VIRTUE OF §10216 GC. ONLY NINE DAYS NOTICE WAS GIVEN.

4. UNDER §5910 GC, IF ALL ADJOINING LAND OWNERS ARE NOT GIVEN THE REGULAR NOTICE OF NOT LESS THAN TEN DAYS, THE TOWNSHIP TRUSTEES DO NOT ACQUIRE JURISDICTION TO ASSIGN TO ANY OF THE LAND OWNERS THEIR PORTION OF THE PARTITION FENCE TO BE BUILT: AND ANY ACTION SO TAKEN BY THE TRUSTEES IS VOID.

5. THE RECORD HOLDER OF THE TITLE AND HER HUSBAND ARE NOT LIABLE FOR THE COST OF BUILDING SUCH FENCE WHEN THEY REJECT THE BENEFIT THEREOF.

6. THE TOWNSHIP TRUSTEES ARE NOT LIABLE FOR THE COST OF THE FENCE, SINCE THE BUILDER MUST TAKE NOTICE OF THEIR LACK OF AUTHORITY WHEN THE REQUIRED NOTICE IS NOT GIVEN.

7. THE COMPLAINING LAND OWNER IS NOT LIABLE FOR THE COST OF THIS FENCE, SINCE §5910 GC, SUPRA, EXPRESSLY FIXES HIS LIABILITY TO PAY FOR HIS OWN PORTION OF THE FENCE WHICH HE DID.

8. THE TRUSTEES AND CLERK ARE NOT ENTITLED TO THEIR COSTS, DUE TO THEIR FAILURE TO GIVE THE NOTICE REQUIRED BY LAW.

9. FINAL ORDER SUSPENDED UNTIL THE COURT CONFERS WITH COUNSEL FOR ALL PARTIES.

This a proceeding to determine the liability for the construction of a partition fence, wherein the Township Trustees sold the contract for the erection thereof under §5913 GC, after the party failed to build this portion of the fence assigned to him; and thereafter said trustees certified the cost of constructing said fence to the County Auditor to be placed upon the tax duplicate as a lien and collected as other taxes.

Louis F. Viereck, owner of 9.447 acres in Norwich Township, complained to the Trustees of said township under §5910 GC, that Dr. Donald F. Bowers, the owner of 9.696 acres of land, adjoining the complainant on the north, had neglected and refused to build his share of a partition fence between their lands.

On March 12, 1951, after notice to Viereek and Dr. Bowers of the time and place of meeting, said Trustees viewed the premises where such fence was to be built and assigned in writing the west half of the fence to be constructed to Dr. Bowers and the east half to Viereek. Thereafter Viereek constructed his portion of the fence.

Dr. Bowers failed to build the portion of the fence assigned to him, and the Township Trustees, upon application of Viereek, sold the contract to build the fence to Clifford Durban in accordance with §5913 GC, for the sum of $675.00; and said Durban on July 25, 1951, completed said work in conformity with said contract and to the satisfaction of the Trustees, who certified the costs to the Township Clerk, and not having been paid within thirty days, such Clerk certified the same to the County Auditor pursuant to §5914 GC.

On August 17, 1951, Helen Bowers filed her petition setting forth that she was the owner of the 9.696 acres of land aforesaid, and that at the instance and request of said Viereek, the Trustees and Clerk of said township would certify the expense of constructing said fence to the County Auditor, and said Auditor will place upon the tax duplicate against her said land the said expense to be collected as other taxes. Helen Bowers claimed said fence would be of no value to her, and that she had no notice of any proceeding to build said fence until August 6, 1951, and no opportunity to appear before the Trustees to present her objections thereto. She asks for an injunction, and a temporary restraining order was issued to the County Auditor not to place said costs on the tax diiplicate, etc. until the further order of the Court.

On January 30, 1952, Clifford Durban filed suit for judgment on his claim of $675.00 for the construction of the aforesaid fence, against the trustees of the township, Louis Viereek, Donald F. Bowers and Helen Bowers, setting out the aforesaid facts, and that the notice to view the premises has been sent to Donald F. Bowers, husband of Helen Bowers, and that she had actual knowledge thereof that the service of notice on her husband rather than herself as record holder of title, was negligence on the part of the trustees, etc.

Thereafter the Court ordered the two cases to be tried at the same time.

Louis Viereek was dismissed as a defendant on demurrer and at the trial application was made to reinstate him as a defendant, but the Court reserved judgment on the application.

The evidence at the trial developed that the Trustees on February 28, 1951, ordered the Clerk to notify the parties, they would view the premises March 12, 1951; and the Clerk on March 2, 1951, sent a registered letter to Dr. Donald F. Bowers at his office in Columbus and the return receipt showed it was received March 3, 1951, by Dr. Bowers’ father who was then at the office.

The evidence further showed that Dr. Bowers paid for the land and placed the title in his wife’s name. Dr. Bowers and his wife both testified, but there was an absolute absence of any evidence that the doctor had given the property to his wife, and during all the discussion concerning the fence, he at no time consulted his wife as to what she wished done, but instead proceeded to make all decisions and handled the affair to suit himself through his own attorney.

The Court feels that Helen Bowers, “as the holder of the naked title to such premises without any other rights or duties, is not the real party in interest” and did not have the capacity to maintain the original action, since §11241 GC requires that all actions shall be brought in the name of the real party in interest. Dr. Bowers placed the legal title in the name of his wife, but retained dominion and control over the property, and, therefore, was the “actual owner,” known in law and equity as the beneficial or equitable owner. Lehman Co. v. Piggly-Wiggly Corp., 45 Abs 528; Brown v. Ginn, Trustee, 66 Oh St 316.

Under §5919 GC, defining “the owner of suph land,” Dr. Donald F. Bowers as the actual owner, the beneficial owner or the equitable owner would come within the terms of the statute, and upon proper notice as required by §5920 GC, would be bound by the action of the trustees, on view, in assigning his portion of the fence to be built. 30 O. Jur. Parties, Sec. 17, p. 721; 32 O. Jur. Property, Sec. 24, p. 629, et seq.; 42 Am. Jur. Property, Sec. 37 and 38, p. 214-216.

Sec. 5910 GC, provides in part as follows:

“Such trustees, after not less than ten days’ written notice to all adjoining land owners of the time and place of meeting, shall view the fence or premises when such fence is to be built, and assign, in writing, to each person his equal share thereof, to be constructed * * *.” (Emphasis ours.)

On February 28, 1951, the Trustees ordered the Clerk to notify the parties they would view the premises at noon March 12, 1951, but the Clerk delayed sending the notice until March 2nd and registration return shows the Clerk’s notice did not reach Dr. Bowers’ office until March 3, 1951.

Sec. 10216 GC provides:

“Unless otherwise specifically provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; except that the last shall be excluded if it be on Sunday.”

In 1951 March 12th fell on Monday, and the partition fence law provides no other manner of computing the time within which a required act shall be done, consequently, §10216 GC, controls. Excluding March 3rd and including March 12,th, only gives nine days’ notice to Dr. Bowers and §5910 GC, supra, provides “after not less than ten days’ written notice to all adjoining lands owners of the time and place of meeting, * * Sec. 5919 GC of the partition fence act, after defining the term “owner,” then provides, “but these proceedings shall not bind the owner unless notified as provided herein.” Dr. Bowers was only given nine days’ notice and the law requires not less than ten days’ written notice; and, therefore, Dr. Bowers is not bound by the action of the trustees, even as the actual, beneficial or equitable owner of the land.

If this matter were to be decided on Helen Bowers’ action for injunction alone, no doubt she could not maintain the action, since she is not the real party in interest; but Clifford Durban made both Helen Bowers, record holder of the title, and Donald P. Bowers, the equitable owner thereof, parties to his action; and the Court consolidated the two actions.

Helen Bowers no doubt brought the action under an honest belief that she had the right of action, and the actual owner, her husband, the real party in interest, having been made a party thereto by the Court, and having joined his wife in resisting the claim, the defect in parties was cured without changing the cause of action. Lehman Co. v. Piggly-Wiggly Corp., supra.

Now let us consider the action brought by Clifford Durban. He claims the township trustees are liable, because of negligence in the performance of the duties of their office, in serving notice on. Dr. Bowers instead of his wife, Helen, the holder of the legal title; but whatever negligence there may have been, in serving the proper notice, it occurred before Durban bid in the contract to build the fence, and he was on notice, and bound to know, the trustees had no power to thus award the bid, in the absence of proper notice to the landowner.

“2. Where a public contract by a board of township trustees is not let in conformity to the statutes on that subject, such contract is void and cannot be the basis of an action by a materialman against the board, where no notice of the contractor’s indebtedness to the materialman was given to the board before it had paid the contractor.”

Ray, Trustee, v. Board of Trustees of Trenton Township, Delaware County, 49 Oh Ap 172.

The above case cites Buchanan Bridge Co. v. Campbell, et al. Commrs., 60 Oh St 406, where the Court considered the right of one who contracted with a board of County Commissioners to recover upon a void contract for a bridge furnished. The rule therein stated is equally applicable to a void contract entered into by township trustees.

In the case of Trustees of Prairie Township v. Garver, 41 Oh Ap p. 232, a Taxpayer brought suit to enjoin the township trustees from advertising for bids for constructing a partition fence, and paying the moneys raised by taxation in the township for its erection, a demurrer was filed to the petition and was overruled and the injunction allowed. The Court of Appeals held:

“5. Cost of erection of partition fence by township trustees is assessed only against those directly interested.”

On p. 237 of his opinion in the foregoing case, P. J. Sherick says:

“The statutes do not provide that the township shall pay anything.”

The Appellate Court then held the petition did not state a cause of action and sustained the demurrer.

This Court is firmly convinced and so holds that the Trustees are not liable to Durban for the cost of building the fence: but due to their failure to give the proper notice and the Clerk’s carelessness in sending the notice in time, neither the Trustees nor the Clerk are entitled to their costs in the proceeding.

Next let us consider the liability of Dr. Bowers and wife which Durban claims is based upon the doctrine of unjust enrichment or quasi-contract.

“Services for labor performed for another without his privity or request, however beneficial, cannot ordinarily be made the basis of recovery. * * * Moreover, when the work is done without knowledge or assent, the circumstances may be such as to give the person benefited the option to accept or reject the benefits; and in the event he accepts them, the law will imply an agreement to pay, whereas if he rejects them, no implied obligation to pay will exist.”

42 O. Jur. Work, Labor, etc., Sec. 6, p. 489.

In the case of Harold Furnace Co. v. Johnson, 61 Abs 177, the plaintiff company installed furnace at request of tenant but without privity of contract with the owner of the residence held:

“2. The claim of unjust enrichment or quasi-contract is completely negatived by the testimony of plaintiff’s own witness, testifying that the fee owner told him they ‘had no business putting it (the furnace) in’ and they should take it out and put her own furnace back in.”

There can be no liability on the part of Dr. Bowers and his wife on the basis of unjust enrichment, where, as in the instant case they reject the benefits, in fact insist that the fence is of no benefit to them and that they do not want the fence, and would be very well pleased if it were removed. Under such circumstances there can be no implied obligation to pay.

Finally, let us consider the alleged liability of Louis F. Viereck who filed the complaint with the trustees that finally led to the building of the fence. In filing the complaint as to the failure to build the fence, Viereck was in the exercise of his statutory right. Durban asks that Viereck be held liable on the basis of unjust enrichment, but he has fulfilled his obligation as expressed by statute, since he paid for his half of the partition fence.

“Generally speaking, where there is an express contract, none can be implied relating to the same subject matter, and no recovery can be had upon a quantum merit.”

42 O. Jur. Work and Labor, Sec. 25, p. 506.

If the express terms of a contract, defining the obligation of a party thereto, bars an implied obligation of such party to the same subject matter, then the express terms of a statute creating the obligation of such a party, would certainly exclude an implied obligation by law that was in conflict with such statute.

However, it is said that Viereck misled the trustees by stating the property was owned by Dr. Bowers instead of his wife. This Court finds no duty on the part of Viereck to determine who all the adjoining land owners were, but considers it to be the duty of the trustees acting as a quasi-judicial body to determine such owners, before they had any jurisdiction to proceed to assign to the owners their respective shares of the fence to be built.

“By the terms of §5910 GC, in order to vest jurisdiction in a board of township trustees to make the assignment therein provided, written notice must be given to all adjoining land owners.”

1928 Opinion of the Attorney General, No. 2366.

This requirement is mandatory and the mandate is to the trustees to give said notice.

Moreover, the Court, as already indicated, is of the opinion that Dr. Bowers was the actual owner and notice to him would meet the requirement of the statute of notice to the owners.

In the final analysis the fatal defect in the notice lies in the fact that the statute requires not less than ten days such notice, and the trustees gave Dr. Bowers only nine days notice.

The motion to reinstate Louis F. Viereck as a party defendant herein, is overruled.

“It by no means follows, however, that the plaintiffs are entitled to an unconditional injunction against the collection of the tax. They ask equity, and must do equity. They invoke the exercise of an extraordinary power of the Court for their relief, and the Court in its discretion should refuse that relief, except upon conditions that are equitable and just. We think, therefore, that the plaintiffs, or their bank, shall first pay to the treasurer of Hamilton County * * * such sum as might lawfully have been assessed upon the plaintiffs or their banks, under said act, had it been one of said state banks. If the parties cannot agree upon this sum, proceedings can be adopted to ascertain it by the Court; * *

Welch, J., in the case of Frazer et al. v. Seibern et al., 16 Oh St 615, 625.

A Court of Equity is where reasonable minds should prevail. Dr. Bowers and his wife must without question permit the removal of the fence by the contractor, Mr. Durban, and it may not be amiss, to remind them that there always remains the possibility that a new assignment may be made after proper notice as provided by §5910 GC, and a sale of the contract to build the fence pursuant to §5913 GC, later may cost more money than the $675.00 price of Mr. Durban.

Mr. Durban should realize the possibility of having this fence on his hands without other compensation.

Mr. Viereck desires the fence to remain, and in the spirit of give and take, might be prevailed upon to stand part of the expense of this unfortunate venture, even though he has no legal obligation to do so.

The Court has fully expressed its opinion as a chancery judge, in the hope that the parties may lend a willing hand through their counsel, in an effort to reach a sensible and just solution of the problem involved.

The writer of this opinion will be on the bench during the current vacation, from August 24th to September 5th, and requests a conference with counsel on August 24th or the earliest date thereafter convenient to all concerned, to determine the final form of the Court’s order herein.


text:
    BRUNER, Plaintiff-Appellant, v. McGLOTHIN, a minor et, Defendants-Appellees.
    Ohio Appeals, Second District, Darke County.
    No. 693.
    Decided November 15, 1951.

      Spidel, Staley & Hole, Greenville, for plaintiff-appellant.
    Marchal & Marchal, Greenville, for defendant-appellee, William Jacob McGlothin.
    Jess K. Brumbaugh, Greenville, for appellee, Lois Mollenkoph.
   OPINION

By THE COURT:

The first question presented by this appeal is whether or not the condition of the automobiles after a head-on collision is sufficient to raise an inference of negligence that the defendant was operating the automobile at a dangerous rate of speed or that she failed to keep it under control. We think that this evidence was insufficient to establish any negligence upon the part of the defendant, and that the trial court did not err in directing a verdict for the defendant at the close of the plaintiff’s case. Negligence is never presumed but must be proven and the evidence offered did not tend in any way to establish such on the part of the defendant.

The next question is whether an emergency arises when the lights of a motor vehicle being lawfully driven on the highway suddenly and without warning go out. If it does then §6307-83 GC has application and there is no violation of the statute which requires certain lights to be on such vehicles. The record discloses that the driver of the car, upon the lights going out, immediately stopped the same with the right wheels upon the berm of the road, and before he could get out of it the collision occurred, the plaintiff striking it from the rear while parked as previously stated. Under the state of the record we think that the trial court properly concluded that an emergency arose and that §6307-83 GC was applicable. All of the dictionaries we have consulted seem to agree that an emergency arises when there is a sudden or unexpected occurrence or combination of occurrences which demand prompt action. As was held in the case of Sheridan v. Werkheiser, 88 Oh Ap 474, whether or not an emergency exists can be determined only after the facts are presented. They were fully presented in the case at bar, and from them we think the court properly concluded that an emergency arose and that reasonable minds could not differ upon this question or whether or not ordinary care was exercised by the defendant thereafter.

Finding no error in the record the judgment is affirmed.

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


text:
    STATE, Plaintiff-Appellee, v. EDWARDS, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2166.
    Decided April 10, 1952.
    Mathias H. Heck, Pros. Atty., Herbert M. Jacobson, Asst. Pros. Atty., Dayton, for plaintiff-appellee.
    Phillip F. Blum, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court, Division of Domestic Relations, finding the defendant guilty of violating §1639-45 GC in that he engaged in indecent and immoral conduct with one Phyllis Rogers, a minor under eighteen years of age.

We have no bill of exceptions; hence all errors complained of must appear on the face of the record. The appellant first urges that the judgment is contrary to law for the reason that his constitutional rights were violated in not granting him a trial by jury. The judgment entry recites that the defendant waived a jury trial and submitted himself to be tried by the Court. This may be done in misdemeanor cases without the same being in writing. Hoffman v. State, 98 Oh St 137. Under §1639-44 GC the appellant would have been entitled to a jury trial only upon demand being made for the same.

This section provides:

“That any adult arrested under the provisions of this chapter at any time before the hearing may demand a trial by jury, * *

The Hoffman case, supra, holds that before error may be prosecuted to the action of the trial judge in trying the case without a jury, the record must show demand and a refusal to grant same.

It is néxt urged that the appellant did not understand that his case was being tried on the merits but that he thought the hearing was one for the purpose of fixing bail. We find nothing in the record to support this charge but on the contrary the judgment entry shows that he submitted himself to be tried by the Court. The appellee is also entitled to the presumption of regularity in the conduct of the hearing. It is said in 17 O. Jur. (Evidence), Secs. 104, 105, pp. 129 and 130:

“Not only does the law presume a public officer to have performed the duties of his office, but, for the purpose of sustaining the acts of public officers, it presumes the legality and regularity of their official acts in the performance of those duties, that formal requisites have been complied with, and that they have acted within the scope of their authority.”

The third error assigned is that the appellant was not granted ample time to properly prepare his defense, citing Section 10 of the Bill of Rights. The record reveals that the arrest was made on July 18, 1951, and that the trial was had on the following day. It may be conceded that not much time was had in which to prepare a defense, but when a defendant submits himself to a trial without making a request for a continuance he waives this constitutional right. Were the appellant correct in his conclusion a travesty on justice could prevail by submitting to an immediate trial and if the judgment is not that desired, then a second trial could be demanded under Section 10 of the Bill of Rights.

We therefore find no error in this assignment.

The, judgment will be affirmed.

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


author: By WISEMAN, J.

text:
    STATE, Plaintiff-Appellee, v. SOLOMON, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4628.
    Decided February 20, 1952.
    Richard W. Gordon, City Atty., Glenn E. Kemp, Police Prosecutor, J. Russell Leach, Asst. City Atty., Columbus, for plaintiff-appellee.
    Howard H. Gillard, Columbus, for defendant-appellant.
   OPINION

By WISEMAN, J.

This is a law appeal from the Municipal Court of Columbus from a conviction on a charge of selling intoxicating iiquor without a license.

In response to a complaint a police officer called at defendant’s residence and asked the defendant whether she hed any whiskey; the defendant stated that she did not have any whiskey; then the officer asked the defendant to get the whiskey for him and gave her money; she then stated she would get the whiskey for him; whereupon she left the residence and in about five to ten minutes thereafter returned with the whiskey and delivered it to the police officer and, also, the change.

Where the evidence shows that the defendant delivered the whiskey and accepted the money therefor upon the solicitation of the purchaser, who was a police officer, a strong inference arises that the defendant made the sale, and the conviction will not be set aside on the ground that defendant acted as an agent for the purchaser. Johnson v. State, 77 S. W. (Tex.) 225; State v. Turner, 83 Kan. 183, 109 P. 983; State v. Russell, 6 Pen. 573 (Del.), 69 A. 839; Ledbetter v. State, 143 Ala. 52, 38 So., 836; Wiley v. State, 74 Miss. 727, 21 So. 797.

The fact that a police officer made the purchase does not constitute entrapment under the law of Ohio. State v. Miller, 85 Oh Ap 376; State v. Schubert, 80 Oh Ap 132; Davis v. State, 26 Oh Ap 340; State v. Foster, 75 N. E. (2d) 214; Vol. 12, O. Jur. page 80, Sec. 38. See also Vol. 15 Am. Jur. page 24; Vol. 22 C. J. S. Sec. 45, pp. 99, 102.

Finding no prejudicial error in the record the judgment is affirmed.

HORNBECK, PJ, MILLER, J, concur.


text:
    PEPPERIDGE FARM, INC., et, Plaintiffs, v. FOUST et, Defendants.
    Common Pleas Court, Franklin County.
    No. 187005.
    Decided September 24, 1953.

      Adams, Tyler & McCann, Columbus, for plaintiffs.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for defendant.
   OPINION

By BARTLETT, J.

This is an action to enjoin the State Director of Agriculture from interfering with the sale of plaintiff’s “Brown and Serve French Rolls.” The plaintiff, a Connecticut corporation, owns and operates a bakery, and merchandises its products in 44 states including Ohio. The company sells its merchandise to retailers by independent distributors who own exclusive franchises for the wholesale distribution of such products in certain territories;. such products are shipped via Railway Express from Norwalk, Connecticut, one of the products is known as “Brown and Serve French Enriched Rolls” which weigh 5 ounces each and are sold in packages containing two rolls each.

Sec. 1090-37 GC, prohibits the sale of units of bread weighing less than 16 ounces, and the Director of Agriculture has determined that the product in question is within the prohibition of this section. The section expressly exempted rolls from this unit weight, and the company claims their product comes within this exception. The Director has set the maximum weight of such rolls at 3 ounces.

Sec. 1090-38 GC, which provides in part as follows:

“The director of agriculture shall prescribe such rules and regulations as may be necessary to enforce the preceding section * * *.” (Emphasis ours.)

Sec. 1172-13 GC, provides in substance for the adoption of standards for foods which shall conform to the standards for foods adopted by the U. S. Department, and the Secretary of Agriculture (now director) shall make such rules and regulations as may be necessary for the enforcement of the food, drug, dairy and sanitary laws of this state, which shall, where applicable, conform to those adopted from time to time for the enforcement of “the food and drug act of congress approved June 30, 1906 and amended March 3, 1913.” (Emphasis ours.)

. Pursuant to the mandate of Sections 341 and 371 (d) of the federal food and drug act (21 re SCA), the Federal Security Administrator on May 12, 1952 promulgated definitions and standards of identity for bread and rolls. (Federal Register, Vol. 17, No. 96, pp. 4463-4) which define and identify bread as baked in units which weight % pound or more after cooling, and rolls as baked in units which weigh less than % pound after cooling.

The defendant company insists the term “rolls,” as exempted from the unit weight required in §1090-37 GC, supra, has no universally accepted meaning; and, therefore, it becomes necessary for the defendant Director to adopt some rule or standard as to what is or is not a roll under the statute. The company concedes the record is clear that for the purpose of enforcement of said §1090-37 GC, the Director actually has adopted a rule that 3 ounces is the maximum weight of a roll, and is using that standard for enforcing the statute; but complains the Director has promulgated no such rule formally and in writing as required by law to conform to such federal rules.

The question of the constitutionality of §1090-37 GC, supra, cannot be now seriously raised, as to its requirement that bread shall be sold “only in units of not less than sixteen ounces,” notwithstanding the Federal administrator’s rule that identifies bread as baked in units of % pound or more, supra.

“1. Unless there is a clear and palpable abuse of power, a court will not substitute its judgment for legislative discretion. Local authorities are presumed to be familiar with local conditions and to know the needs of the community.
“2. A city ordinance, fixing standard sizes of bread loaves and prescribing loaves of one pound avoirdupois as the minimum weight that may be manufactured and sold by a baker, is not an unreasonable or arbitrary exercise of police power and is constitutionally valid.” Allion v. The City of Toledo, 99 Oh St 416.
“The making and selling of bread, particularly in large cities, is obviously a trade subject to police regulation.
“Local legislative authorities, and not the courts, are primarily the judges of the necessities of local situations calling for police regulation, and the courts can only interfere when such regulation arbitrarily exceeds a reasonable exercise of authority.
“The fact that laws prescribing standard sizes of loaves of bread and prohibiting the sale of other sizes have been sustained by the courts of several States shows the necessity for police regulation of the subject.
“Mere inconvenience to merchants conducting a business subject to police regulation does not vitiate the exercise of the power.
“The ordinance of Chicago of 1908 enacted under legislative authority, fixing standard sizes of bread loaves and prohibiting the sale of other sizes, is not unconstitutional as depriving those dealing therein of their property without due process of law or as denying them equal protection of the law or as interfering with their liberty of contract.” Schmidinger v. City of Chicago, 226 U. S. 578.
“3. FOOD.
“Adoption by statute of standard one-pound loaf as minimum unit in which bread may be manufactured and sold held not unreasonable exercise of state’s police power (Const. Amend. 14; §§1090-37, 1090-38 GC).
“4. CONSTITUTIONAL LAW.
“Court is not concerned with wisdom of legislation in passing on its constitutionality.” Wonder Bakeries Co. v. White, 3 F. Supp. 311.

This case involved the constitutionality of §§1090-37 and 38 GC.

It is true that §§1090-38 and 1173-12 GC both required the director of the agriculture department to prescribe such rules and regulations, as may be necessary and where applicable, to enforce such sections and to conform to those adopted from time to time by the Federal Security Administrator for the enforcement of the federal food and drug act. (Emphasis ours.)

Counsel for the plaintiff insist that it is mandatory that such rules be adopted to determine the identity of the term “rolls” as used in §1090-37 GC, supra, and counsel for the defendant urge that no such rule is necessary for that purpose, since the term “roll” has a common meaning as to its basic features in the baking industry by custom and usage of the trade, such as that a roll constitutes an individual serving, weighing not to exceed three ounces and sold in multiples of a dozen; while the product in question weighs one and one-half to twice as heavy as that which is usually considered to be a roll, and is what is generally called bread, being made of bread type dough.

“The court may not substitute its judgment for that of the agency but is confined to determining the rights of the parties in accordance with the * * * law applicable.” Farrand v. State Medical Board of the State of Ohio, 151 Oh St 222.

Turner, J., in delivering the opinion of the court in the foregoing case, at p. 224 says:

“The purpose of the General Assembly * * * was to facilitate such matters by placing the decision on facts with boards or commissions composed of men equipped with the necessary knowledge and experience pertaining to a particular field.”

It would seem certain, therefore, that'the general assembly lodged the decision as to necessity of such rules in the first instance in the discretion of the Director of the Department, and that he and his staff are presumed to be men with the necessary knowledge and experience in that field.

It is difficult to conceive that §1172-12 GC, supra, is controlling in the enforcement of §1090-37 GC, supra, since the latter section came into existence many years after the previous section and makes no reference to such prior law.

It should be noted that in §1090-37 GC, supra, the exception to the general prohibition expressly required the director to define “fancy bread” but contains no such express requirement as to rolls; which would indicate the general assembly presumed “rolls” had an accepted meaning in the trade but that “fancy bread” did not.

“Technical words or phrases in a statute are presumed to have been used by the legislature in a technical sense, and they are generally so construed where there is nothing in the statute to indicate that they were employed in another sense.
“* * * where technical words, or terms of art, are used in a statute, the evidence of people engaged in the profession, trade or occupation to which they pertain may be admitted to explain their meaning.” 37 O. Jur., p. 576; Order of Ry. Conductors, etc. v. Swan, 329 U. S. 520; Cambridge Glass Co. v. Evatt, 19 O. O. 162; and Hosack’s Sutherland Statutory Construction, 3rd Ed. Vol. 2, Sec. 4919.

If the Director of the Department of Agriculture should promulgate rules and regulations fully in accord with the demands of the plaintiff company, to conform with the federal regulations as to bread, such rules and regulations would vitiate §1090-37 GC, supra, since the federal regulations define bread in units of ^ pound or more, and the Ohio Code requires a weight unit of not less than one pound. In the light of the decisions heretofore cited, surely counsel for plaintiff can not claim the Ohio statute unconstitutional because in conflict with a later regulation promulgated at a later date. If this statute was reasonable and constitutional at the time of these decisions, its validity cannot be challenged because of later rules and regulations. Would counsel for plaintiff claim that their client has the right to sell bread in Ohio in units of one-half pound but less than one pound because the Ohio law must conform with the federal regulation. We have not reached the place in our jurisprudence where the rules and regulations of a department, either federal or state, may determine the constitutionality or reasonableness of a statute. Section 154-63 of the Ohio Administrative Procedure Act, cited by counsel for plaintiff, expressly provides;

“* » * no agency shall adopt any rule which is inconsistent with * * * any law of this state.”

The Court is of the opinion that there has been no showing in this case of an abuse of discretion by the Director of the Department of Agriculture in failing to prescribe rules and regulations to enforce §1090-37 GC, supra, since the record does not establish the necessity thereof, and more particularly this is true, as to plaintiffs’ product in question, for the term “rolls” as used in the statute is sufficiently identified in the baking industry as to its basic features, by the custom and usage of that trade.

It is claimed that the stopping of the sale of the product in question is an interference with Interstate Commerce.

“Although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation. Ever since Willson v. Black-Bird Creek March Co., 2 Pet. 245, and Cooley v. Board of Wardens, 12 How. 299, it has been recognized that in the absence of conflicting legislation by congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even to some extent, regulate it. (Cases cited.) Thus the states may regulate matters which, because of their number and diversity, may never be adequately dealt with by Congress. (Cases cited.) When the regulation of matters of local concern is local in character and effect, and its impact on the national commerce does not seriously interfere with its operation, and the consequent incentive to deal with them nationally is slight, such regulation has been generally held to be within state authority. (Cases cited.)”

Justice Stone in Southern Pacific Co. v. Arizona, 325 U. S. 761.

"It has long been recognized that in these fields of commerce where national uniformity is not essential, either the state or federal government may act. * * * When this power to legislate exists, it often happens that there is only partial exercise of that power by the federal government. In such cases the state may legislate freely upon those phases of the commerce which are left unregulated by the nation. * * *
“Where the prohibition of state action is not specific but inferable from the scope and purpose of the federal legislation, it must be clear that the federal provisions are inconsistent with those of the state to justify the thwarting of the state regulation.”

Justice Reed in Cloverleaf Co. v. Patterson, 315 U. S. 148. 155.

The purpose of the Federal Food and Drug Act is to keep misbranded and adulterated articles out of the channels of interstate commerce; while §1090-37 GO is designed to prevent fraudulent underweight retail sales of bread.

“The making and selling of bread, particularly in a large city where thousands of people depend upon their supply of this necessity of life by purchases from bakers, is obviously one of the trades and callings which may be the subject of police regulation.” * * *
“This court has frequently affirmed that the local authorities entrusted with the regulation of such matters and not the courts are primarily the judges of the necessities of local situations calling for such legislation, * * *”
“Furthermore, laws and ordinances of the character of the one here under consideration (fixing the standard size of loaves of bread and prohibiting the sale of other sizes) and tending to prevent frauds and requiring honest weights and measures in the sale of articles of general consumption, have long been considered lawful exertions of the police power. McLean v. Arkansas, supra, 550 (211 U. S. 539); Freunds on Police Power, Sections 274, 275.”

Mr. Justice Day, pages 587 and 588, Schmidinger v. Chicago, supra.

Laws such as §1090-37 GC, fixing the standard size of loaves of bread and prohibiting the sale of other sizes, to prevent frauds and requiring honest weights in an article of such general consumption as bread, having long been considered as lawful exertions of the police power of the state, by the Supreme Court of the United States, because the matter is of local concern and effect, it would seem safe to assume that under the decisions of that august body, if the impact of such state legislation on the national commerce does not seriously interfere with its operation, such regulation would be held within the state authority, and in any event it must be clear that certain federal legislation is inconsistent with those of the state to justify the thwarting of the state regulation, since there is no specific or express prohibition of such state action.

“Where an act of Congress relating to a subject on which the state may act also, limits its prohibitions, it leaves the subject open to state regulation as to the prohibitions which are unenumerated.”

Savage v. Jones, 225 U. S. 501;

“Although the Food and Drug Act prohibits misbranding, it does not require publication of ingredients, and in that respect the field is left open for state legislation.”

Savage case, supra.

If the state may supplement the prohibition of misbranding contained in the Federal Food and Drugs Act, by requiring publication of the ingredients, then it stands to reason that the state may also supplement such federal act, by legislation to prohibit the sale of bread under a certain weight unit to prevent frauds and require honest weights in the sale of such food product.

“The net weight lard statute of North Dakota is directed to the manner of selling lard at retail and is not repugnant to the Food and Drugs Act of June 30, 1906, * * * which is directed against adulteration and misbranding of articles of food transported in interstate commerce.”

Armour and Co. v. North Dakota, 240 U. S. 510.

Again the state regulation is held valid where it merely supplements the federal law, by requiring the containers to hold a specified number of pounds net weight of lard or even multiples thereof and label as specified.

“State laws forbidding sale of food articles containing benzoate of soda are not inconsistent with the commerce clause or the purpose of the Federal Food and Drugs Act, although the preservative, as used, is allowed by the federal act and regulations and the containers are labeled in conformity therewith.”

Weigle v. Curtice Brothers Co., 248 U. S. 285.

Justice Holmes on p. 288 of his opinion in this case observes:

“The fact that a food or drug might be condemned by Congress if it passed from state to state, does not carry an immunity of foods or drugs, making the same passage, that it does not condemn. * * * The Food and Drugs Act does not interfere with state regulations at retail.”
“A state statute making the manufacture or sale of yellow oleomargarine an offense is not invalid on the ground that the federal government had exercised exclusive control over the matter because the Federal Security Administrator had promulgated under the Federal Food, Drug, and Cosmetic Act an order including as an optional ingredient of oleomargarine artificial coloring.”

People v. Breen, 40 N. E. 2d, 778, 326 Mich. 720.

“Where there has been only a partial exercise by the federal government over power to regulate interstate commerce, state may legislate freely on those phases of commerce which are left unregulated by a federal government, * * *.”

Breen case, supra.

Sharpe, J., in this case says:

“By making coloring matter optional the Federal regulation has only partially preempted the field. It follows that there is no conflict between the Federal regulation and the Michigan statute prohibiting the sale of colored oleomargine.”

Counsel for plaintiffs plant the right of the bread company to disregard the Director’s instruction that the product in question shall not be sold as a “roll” if it exceeds 3 ounces in weight, upon the fact that the Federal Security Administrator has identified “rolls as baked in units, each of which weighs less than one-half pound after cooling.” From this it is argued that to comply with the Director’s order, the bread company would be required to violate the federal regulation as to “misbranded food,” and consequently the Director’s order as to “rolls” constitutes an interference with interstate commerce. The Federal Administrator does not require that “rolls” weigh one-half pound; this is merely permissive, and the state in the interest of honest weight may require that rolls weigh not to exceed three ounces which does not conflict with the federal regulation that they may weigh more. If they comply with the Director’s order of not to exceed three ounces and are branded as “rolls,” there is no violation of the federal “misbranding act.”

It is also argued upon behalf of the bread company that the product having been identified by the federal government, that such identity is for all purposes; and that the state cannot affix an entirely different identity for purposes of sale within the state. Again, it must be pointed out that the Security Administrator has only made it permissive that “rolls” may weigh not to exceed one-half pound, and has not created a right to weigh that amount. The state may require that such rolls weigh less in the interest of honest weight.

The Security Administrator’s permissive rule does not make rolls immune to a state regulation that they weigh less. In other words, if the plaintiff company respects the Director’s order that “rolls” sold at retail shall weigh not to exceed three ounces, there will be no occasion to violate the federal law on misbranding.

Finally, it was argued by counsel for the plaintiff bread company that the three ounce maximum weight for rolls is unreasonable and arbitrary, and hence repugnant to the constitutions both of Ohio and the United States.

This argument loses most of its force when we consider, that the present legislation in Ohio has been successfully administered for many years, and that the baking industry has understood and accepted by usage and custom the definition of rolls as applied by the Director and his staff. This standard of not to exceed three ounces in weight for a roll became unreasonable and arbitrary, only when a foreign corporation, admittedly, undertook to introduce in Ohio a novelty in the way of bread by creating a miniature loaf of bread, and calling it a “roll” in utter disregard of its abnormal weight as such.

“3. A statute of Nebraska prescribes the minimum weights of loaves of bread to be made, or offered, for sale in the State, and, in order to prevent the palming off of smaller for larger sizes, fixes a maximum for each class, by allowing a ‘tolerance’ of only two ounces per pound in excess of the minimum, the weights to be determined by averaging loaves of each class in lots of twenty-five, and to apply for twenty-four hours after baking. The evidence demonstrated that owing to normal evaporation from bread under conditions of temperature and humidity often prevailing in Nebraska, it is impossible to manufacture good bread in the regular way without frequently exceeding the prescribed tolerance and incurring the burden of penalties prescribed by the statute, and that compliance would necessitate selection of ingredients making an inferior and unsalable bread, or wrapping the loaves, although wrapping is not required by the statute and unwrapped loaves are wholesome food in much demand by consumers. Held, That, in the circumstances, the provision that average weights shall not exceed these maxima is not necessary to protect purchasers against imposition and fraud by short weights, and not calculated to effectuate that purpose; and that it subjects bakers and sellers of bread to restrictions essentially unreasonable and arbitrary; and is therefore repugnant to the Fourteenth Amendment.”

3rd Syl. Burns Baking Co. v. Bryan, 264 U. S. 504.

In the case of Holsum Baking Co. v. Green, Director, etc. 45 F. (2d) 238, the provision of §1090-37 GC, at that time fixing the maximum weight of loaves of bread was held invalid on the authority of the Burns case, supra.

Counsel for plaintiff company urge that since the Burns case and the Holsum Baking Company case, supra, both hold that a provision for a minimum weight of a loaf of bread was in the public interest, but that such a provision for a maximum weight served no public interest, since it is short weight that the public needs protection against, not overweight; that, ■therefore, the statute imposing such a maximum weight is invalid and unconstitutional, since it imposes unnecessary, arbitrary and unreasonable requirements on the baking industry; and, consequently the imposition of a maximum state regulation on the weight of “rolls” in an effort to enforce the Ohio Statute regulating the weight of bread, is unreasonable and arbitrary, and hence invalid and unconstitutional.

The fallacy of the reasoning in this instance lies in the fact that the chief concern of the Director and his staff lies in preserving and enforcing that part of the statute prescribing the minimum weight of a loaf of bread offered for retail sale, and their concern as to the maximum weight of a roll, lies solely in the threat of the plaintiff to defeat and destroy the minimum weight requirement for a loaf of bread, by creating a miniature loaf of bread, and calling it a roll, notwithstanding its abnormal weight as such. In other words, the prohibition of the statute is that a loaf of bread for retail sale shall weigh not less than sixteen ounces, but that such weight shall not apply to rolls. The rule establishes the minimum weight of a loaf of bread for retail sale, with a saving exception for rolls. Must the Director and his staff stand idly by and see the protection afforded the public by this statute dissipated and destroyed by an abuse of the exception created in favor of rolls, in an utter disregard of what the term rolls has always meant in the baking industry? Shall the exception recognized by the statute be permitted to destroy the principle established by the statute itself? The more sensible rule of construction would be that if the effect of the devise resorted to by plaintiff is such as to deprive the public of its protection under the statute as to the fraud of short weights in bread, under the guise of being an exception thereto, then such device must be treated as illegal and in violation of the principle of the statute.

Constitutional protection having been invoked, it is the duty of the court to determine whether the challenged regulation or order of the Director of Agriculture, has reasonable relation to the protection of the purchasers of bread against fraud by short weights and really tends to accomplish the purpose for which it was created. Burns Baking Co. v. Bryan, supra. The provision as to the minimum weight of a loaf of bread is manifestly considered as a proper exercise of the state’s police powers, since it is in the public interest as a safeguard against imposition, and, moreover, observance of it entails no substantial embarrassment to the baker. Holsum Baking Co. v. Green, supra.

This Court is of the opinion that it is the duty of the court to guard and preserve the valid principle of such a statute by refusing to permit a capricious and unreasonable use of the exception therein, to destroy the public protection the legislation intended to afford.

A permanent injunction will be granted only when a party shows a clear legal right thereto. Spangler v. City of Cleveland, 43 Oh St 536; and a Court of Equity should not interfere when the right is doubtful. Stewart v. Ry., 14 Ohio 353, Malchus v. Grasselli Chemical Co., 5 N. P. 359. The extraordinary character of the remedy of injunction requires that it shall be exercised sparingly and cautiously. 21 O. Jur. p. 1007; Goodall v. Crofton, 33 Oh St 271.

A broad restraint upon the discretionary powers of the executive department would not be justified in the light of the constitutional separation and independence of the power of the executive and judicial departments. It is plain that the judicial department of the government should not, even if it could, interfere with the executive department in the apprehension of law violators. Lyon v. City of Cincinnati, 55 Oh Ap 458. By the same token, a Court of Equity should not interfere with the administrative agencies set up by the General Assembly for the regulation and control of the sale of food stuffs and the prevention of short weights in the sale thereof, unless a clear legal right thereto be shown, with no adequate remedy at law.

“Equity will not interfere with officers charged with the duty of enforcing penal statutes so long as they act reasonably and in good faith within the discretion conferred by their office. * * * Where a court of law can do as full justice to the parties and to the matters in dispute as can be done in equity, a Court of Equity will not stay proceedings at law.”

21 O. Jur. Injunction, Sec. 157, p. 1231; Troy Amusement Co. v. Atteneiler, et al., 137 Oh St 460.

“If the law is invalid, or if the parties are not guilty of the violation of any law, they ordinarily have a clear and adequate remedy at law, either in an action for damages or by pleading its invalidity as a defense in a criminal proceeding.”

21 O. Jur. Injunctions, Sec. 158, p. 1233; Gustafson v. Cleveland, 8 Abs 200, petition in error dismissed, 122 Oh St 60; Gassman v. Kearns 7 N. P. (n. s.) 317, affirmed without opinion, 81 Oh St 496.

Nor will an injunction issue to prevent officers from prosecuting one conducting a bakery in violation of statute. 12 N. P. (n. s.) 298.

“3. Even though property rights are threatened, courts of equity will not interfere to prevent criminal proceedings under a law or ordinance alleged to be void unless its invalidity is clearly demonstrated.”

Fisco v. East Cleveland, 59 Abs 385.

McNamee, J., in delivering the opinion of the court in the foregoing case further says on p. 389:

“The same basic principles govern where the inter-position of equity is sought to restrain criminal proceedings under a valid ordinance upon the claim that the prosecuting officials have misconstrued its provisions. In such cases before equity will intervene it must be clearly shown that the prosecuting officials’ interpretation of the law is clearly erroneous. All doubts will be resolved in favor of the correctness of the construction of the ordinance by the officials charged with its enforcement. Courts will not encroach upon the duties and prerogatives of other co-ordinate branches of the government.”

As was so well said in the Wonder Bakeries Co. Case, supra, “the court is not concerned with wisdom of legislation in passing on its constitutionality,” and the same may be said as to the regulations of departments for the enforcement of such laws, yet this Court feels that it may not be amiss to say that during the consideration of the instant case, the Court has found from observation and reports that the product in question has met with wide public favor, even to the extent of the Court’s own family; and while the requirements of the Director of Agriculture as to the size of rolls may be justified by usage and custom of the baking industry, yet, it must be remembered that the consuming public is not and should not be a slave to such usages and customs. If there is a public demand for plaintiff’s product, it should be made available to the public in a legal manner. It may be that the Director and his staff should revaluate the problem involved here, and possibly revamp his requirements concerning the product in dispute. It may be that this could be accomplished by revising the department’s definition of “fancy bread.” without sacrificing the public protection afforded by the law against short weights in bread. Such are matters that lie within the discretion of the officers charged with the enforcement of the law.

The injunction will be denied. Entry accordingly with exceptions by counsel for plaintiff.


text:
    TORO, Plaintiff-Appellee, v. GEYER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2161.
    Decided November 16, 1951.

      I. L. Jacobson, Dayton, for plaintiff-appellee.
    John W. Dale, A. K. Meek, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Court of Common Pleas entered in favor of the plaintiff upon a special verdict returned by the jury. The record reveals that on February 15, 1950, the plaintiff made an offer to purchase the defendant’s place of business and to secure the same gave a check in the sum of $5,000.00. The purchase agreement provided:

“If this agreement is not accepted by Michael Geyer on or before March 1,1950, the above mentioned check in the amount of $5,000.00 shall be returned to Jack Toro.”

The petition seeks the return of the $5,000.00 alleging that the offer was not accepted on or before March 1, 1950. Also, alleging that the offer was withdrawn on March 1, 1950 and before the same had been accepted. The answer alleged that the offer was accepted on February 27, 1950 and that he, the defendant, again notified the plaintiff on March 1, 1950, that he accepted the offer; that after he had notified the plaintiff of his acceptance he received through the mail the plaintiff’s notice of cancellation of the same. The record discloses that on or about February 23, 1950 the defendant cashed the plaintiff’s check, but no notice of acceptance was given the plaintiff, it being urged by the defendant that this act alone constituted an acceptance of the offer as a matter of law.

An examinaion of the contract reveals that it contained mutual promises to do certain acts in the future. It was, therefore, a bilateral contract as distinguished from a unilateral one. To constitute an acceptance of an offer to enter a bilateral contract there must be an expression of the intention by word, sign, writing or act, communicated or delivered to the person making the offer or his agent. A mere private act of the person to whom the offer is made does not constitute an acceptance. 12 Am. Jur. 535; 9 O. Jur. 266.

Therefore, we are of the opinion that the mere cashing of the check without actual notice to the plaintiff did not constitute an acceptance of the offer. Next, we shall give consideration to the question of the alleged withdrawal of the offer in the contract before acceptance, which unquestionably may be done. 9 O. Jur. 257. Whether or not this was done was a matter for the determination of the jury as there was a conflict in the evidence on this question. By its special verdict the jury found that the offer of the plaintiff was cancelled before the defendant gave him notice of its acceptance. Therefore, the court did not err in entering its judgment for the plaintiff.

Finding none of the errors assigned well made, the judgment will be affirmed.

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


author: By MERRICK, J.

text:
    STARY et, Plaintiffs, v. BROOKLYN (City) et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 631590.
    Decided September 30, 1953.

      Frank G. Mercer, Cleveland, Earl L. Stary, Todd & Todd, Pickrel, Schaeffer & Eberling, Dayton, for plaintiffs.
    Michael L. Hearns, for defendants.
   OPINION

By MERRICK, J.

This is an action for declaratory judgment and injunction, brought to invalidate the trailer camp ordinance of the City of Brooklyn on the basis that such ordinance is unconstitutional, on the theory that it is in conflict with state law.

Plaintiffs and their predecessors in title have owned and operated a trailer camp in the City of Brooklyn since the year 1940. In that year an ordinance was passed regulating trailer camps in that municipality. Several amendments have been passed in the ensuing years and are now in full force and effect.

As soon as the original ordinance became effective, it was attacked in the courts. One of the principal complaints lodged against it was based on a provision in the ordinance which limited the period of time a person could park in a trailer camp. It should be noted that, at the time of the passage of the original ordinance, there was no state enactment on the subject. This litigation soon reached the Supreme Court of Ohio and for the first time we had a decision on the questions raised. The entire ordinance was under attack, with special criticism of Sections 6, 7 and 8, which are in the present ordinance.

Section 6 requires the operator of a trailer camp to keep a duplicate daily registration book containing the name and address of each occupant of the camp. One copy must be given to the village marshal.

Section 7 limits the parking of occupied trailers to a period of 60 days. It further provides that no trailer or its occupants may again occupy any camp within the municipality for a period of 90 days thereafter.

Section 8 makes it the duty of the village marshal to inspect the trailer camp daily.

The decision of the Supreme Court in this case is found in Renker v. Brooklyn, 139 Oh St 484. The syllabus of the case disposes of the question as follows:

“A municipal ordinance which provides for (1) daily inspection of trailer camps, (2) the keeping of a duplicate daily registration book (one copy to be given to the marshal) containing the name and address of each occupant of such a camp, and (3) a 60-day maximum period of occupancy with a 90-day minimum period of withdrawal before again occupying any camp within the village is not an unconstitutional exercise of legislative power.”

It is interesting to note some of the reasoning contained in the opinion of Chief Justice Weygandt and found at page 487. I am taking the liberty of quoting an excerpt:

“. ... It is true that the ordinance imposes upon trailer camp owners and guests certain regulations not applicable to other residents of the municipality. However, in return for this disadvantage they receive from the municipality certain concessions not available to other residents. As illustrative of this, the evidence discloses that the average trailer is approximately 7 feet in width and 17 feet in length, thus having a floor area of but 119 square feet, with as many as five people living therein .... In contrast with this, the building code of the village requires a minimum area of 700 square feet in houses with one floor, occupied by other residents . . . . A study of the record demonstrates that trailers and trailer camps have their proper place in present-day life when they are used as temporary accommodations for transients as originally intended, but they cannot be expected to meet the more exacting requirements of a permanent home.”

This decision was far-reaching in its import and seemed to settle all legal controversy revolving around the question of the right of a municipality to pass legislation regulating trailer camps, their mode of operation and the time limitation upon the period and length of stay of the occupants.

This decision certainly disposed of the claim that an automobile trailer was not a residence in the legal use of that word.

An exhaustive discussion of this latter theory is found in the opinion of Judge Charles L. Mills of the Common Pleas Court of Montgomery County in the case of Brodnick v. Munger, 64 Abs 292 and affirmed by the Court of Appeals of the Second District in 64 Abs 306.

In the year 1951, the State of Ohio entered the field of trailer camp legislation. This is contained in Revised Code Section 3733.

Where the General Assembly has spoken through legislation, on a matter of state-wide concern, a municipal ordinance in conflict with such legislation must give way to the superior authority. Cincinnati v. Gamble, 138 Oh St 220, State, ex rel. Arey v. Sherrill, 142 Oh St 574, Neil House Hotel Co. v. Columbus, 144 Oh St 248.

It has been urged that because the State of Ohio has by legislation undertaken to police the construction and operation of trailer camps within the state, that, therefore, it has preempted the field and that all municipal ordinances touching upon this activity are void for that reason.

Municipalities in Ohio receive their law making powers directly from the state Constitution in the following language of Section 3, Article XVIII:

“to adopt and enforce within their limits such local police, sanitary and other similar ^regulations, as are not in conflict with general laws.”

As may be readily observed, the General Assembly cannot withdraw from municipalities powers expressly conferred upon them by the Constitution. The power granted to municipalities to adopt and enforce police regulations is limited only by general laws in conflict therewith upon the same subject-matter. City of Fremont v. Keating, 96 Oh St 468; Heppel v. City of Columbus, 106 Oh St 107; Village of Struthers v. Sokol, 108 Oh St 263; City of Youngstown v. Evans, 121 Oh St 342.

In 1939, the Supreme Court of Ohio decided the case of City of Akron v. Scalera, 135 Oh St 65. It sustained the validity of an ordinance which prohibited the sale of beer on Sunday. The state law regulates the sale of beer and intoxicating liquor and issues permits therefor. The state law authorizes The Board of Liquor Control to adopt “rules, regulations, and orders consistent with the provisions of this act, with reference to sales of beer and intoxicating liquor on Sundays and holidays and with reference to the hours of the day during which and the persons to whom intoxicating liquor of any class may be sold, and regulations with reference to the manner of sale.” At that time, while it had the authority to do so, the Liquor Board had no rule or regulation with reference to the sale of beer on Sunday. In fact, the opinion of Judge Matthias at page 67 uses this language:

“It is to be observed that this statute contains no regulation or restriction of, in fact no reference to, the sale of beer other than to prohibit its sale at any time to any person under 18 years of age.
“Among the powers of the Board of Liquor Control enumerated by §6064-3 GC, is the power to adopt ‘rules, regulations, and orders consistent with the provisions of this act, with reference to sales of beer and intoxicating liquor on Sundays and holidays and with referencce to the hours of the day during which and the persons to whom intoxicating liquor of any class may be sold, and regulations with reference to the manner of sale.’
“Our attention is not directed to any rule or regulation adopted by the Board of Liquor control with reference to the sale of beer on Sunday. We are therefore not called upon to determine whether an ordinance in conflict with any such rule or regulation would be violative of the ■ constitutional requirement that local police regulations shall not be in conflict with general laws.”

And further on page 68 of the opinion:

“Applying the principle announced in the cases above cited, it is to be seen that there is no conflict with the general law merely because certain specific acts made unlawful by ordinance are not referred to in any general law.”

An ordinance is not necessarily to be regarded as in conflict with a general law relating to the same subject, however, merely by reason of the fact that it contains requirements or prohibitions in addition to those contained in the general law, or because specific acts which are offenses under the general law are not prohibited by the ordinance. 28 O. Jur., Page 443.

A police ordinance is not in conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, which acts are not referred to in' the general law, or because certain specific acts are omitted in the ordinance but referred to in the general law, or because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance. Village of Struthers v. Sokol, supra.

Section 3, Article XVIII of the Constitution, clearly contemplates that both the state and the municipalities of the state may exercise the same police power; the only limitation being that the exercise of that power by a municipality shall not conflict with the general laws of the state. Greenburg v. Cleveland, 98 Oh St 286.

Former §6307 GC specifically provides that local authorities shall not regulate the speed of motor vehicles by ordinance, by-law or resolution. In the case of City of Fremont v. Keating, supra, the Supreme Court of Ohio declared this statute unconstitutional for the reason that: “. . . the General Assembly of Ohio cannot deprive a municipality of its constitutional rights. This section is clearly in violation of Section 3 of Article XVIII of the Constitution of Ohio and void.”

Sec. 715.29 GC provides as follows:

“Any municipal corporation may: — (A) Regulate by ordinance the use, control, repair, and maintenance of buildings used for human occupancy or habitation, the number of occupants, and the mode and manner of occupancy, for the purpose of insuring the healthful, safe, and sanitary environment of the occupants thereof: — (B) Compel the owners of such building to alter, reconstruct, or modify them, or any room, store, compartment, or part thereof, for the purpose of insuring the healthful, safe, and sanitary environment of the occupants thereof: — (C) Prohibit the use and occupancy of such buildings until such rules, regulations, and provisions have been complied with.”

The so-called State Building Code has a provision which allows municipal legislation on the same subjects covered in the state code. This may be found in §3781.01 GC which reads as follows:—

“Municipal corporation may make regulations. Chapters 3781, 3783, 3785, 3787, 3789 and 3791 of the Revised Code do not prevent the legislative authority of a municipal corporation from making further and additional regulations, not in conflict with such chapters or with the rules and regulations of the Board of Building Standards determining equivalents

Municipalities may adopt and enforce local regulations covering the same subject so long and so far as the same are not in conflict with general laws. City of Fremont v. Keating, supra.

Reconciling these theories of the law with the facts in the instant case leaves but one conclusion: — After a very careful reading and comparison of the trailer laws of the City of Brooklyn and the State of Ohio and the regulations of the Ohio Department of Health, it cannot be said that the ordinance permits or licenses that which the statute forbids and prohibits and vice versa. This is the real query to be applied in this case. This has been the test followed by all Ohio Courts since the decision of the Supreme Court, in the case of Struthers v. Sokol, supra. (1923.)

Following these conclusions, it is the opinion of the writer that the ordinance in question is a valid exercise of police power and is not in conflict with any state law.

Counsel may prepare an entry accordingly. Costs are assessed against the plaintiffs.


author: By THE COURT. By THE COURT.

text:
    CASBARRO, Sr., Plaintiff-Appellee, v. CASBARRO, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4856.
    Decided February 17, 1953.
    John F. Seidel, George E. Walsh, Columbus, for plaintiffappellee.
    Carl Gaeton Nappi, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from a decree of the Common Pleas Court granting a divorce to the plaintiff-appellee from the defendant-appellant on the ground of gross neglect of duty. The plaintiff is the husband and the defendant, the wife.

The decree is specific in stating the facts upon which determination was made that the defendant was chargeable with gross neglect of duty. This is the applicable part of the decree:

• “The Court further finds that the plaintiff moved into the new house on May 6, 1951, that the defendant refused to move into said new house, that the defendant had no reasonable abode, that defendant’s refusal was a violation of her mandatory duty under §8002-2 GC, and thus a breach of the marriage contract, that such breach by the defendant of her statutory duty by refusing to move into said new home was gross neglect of duty on the part of the defendant and against the plaintiff, and that by reason thereof, the plaintiff, Louis J. Casbarro, Sr., is entitled to a divorce as prayed for. in his petition.”

The Court also found the jurisdictional requisites to the granting of the divorce.

Eleven errors are assigned. The 4th, error in admission and rejection of testimony. The 5th, disregarding evidence of recrimination and other improper conduct on part of plaintiffappellee. See Opperman v. Opperman, 77 Oh Ap 73, 6th, that the defendant refused to move on May 6, 1951. 7th, in holding that the defendant-appellant had no reasonable excuse for not moving. 8th, in holding that the new house was a reasonable abode for defendant and the 9th, plaintiff did not refuse to move into the new house in good faith. Without comment, we find that No. 8 refers to a finding which is not material and no one of the other assigned errors is established.

We briefly consider assignment of error No. 2, that the jurisdictional residence requirements were not proven. This claim is based upon the contention that although the plaintiff expressly testified that he had been a bona fide resident of Franklin County for more than 90 days immediately preceding the filing of his petition, he did not testify nor offer probative evidence that he had been a resident of the State of Ohio for a year next preceding the date of the filing 'of the petition.

It is true that the plaintiff did not expressly state that he had been a resident of the State of Ohio for a year prior to the filing of his petition. However, a consideration of all of the record permits the conclusion that he had been such a resident not only for a year immediately preceding the filing of his petition, but for many years prior thereto.

The first and material assignment of error is, that the Court erred in finding and adjudging that the defendant was chargeable with gross neglect of duty because the facts as found did not constitute gross neglect of duty, and the record, in its most favorable light to the plaintiff, established only willful absence which did not continue for one year, the requisite for a decree for divorce on such grounds. The 10th assignment included the first, viz., the decree of divorce is contrary to law.

The material facts disclose that the parties had lived together for more than thirty years prior to May 6, 1951. Prior to that date they had resided on Cambridge Boulevard in the City of Columbus, Ohio, and on that date the plaintiff alone moved into a new building, also on Cambridge Boulevard not far removed from the former home. This new residence was a one story building, ultramodern in construction and cost about $55,000.00. The record discloses that the wife did not approve of the new building and took very little part in its construction, but did sign the building contract and a mortgage on the premises.

Defendant denied that she refused to move into the new home and the trial judge, upon her testimony, could have so found. But he was within his discretionary right in holding that she did wilfully refuse to move into the new house. About five months elapsed between the date that the plaintiff moved into the new home and the date when he filed his petition for divorce. The record does not disclose any aggravated circumstances connected with the defendant’s refusing to move, nor that the husband was particularly distressed or discommoded by the absence of his wife. Indeed, it may be safely said that there were no unusual or distressing circumstances attending the refusal of the wife to move.

The finding of facts embodied in the decree, together with the opinion of the trial judge which we have considered is convincing that he relied upon Mark v. Mark, et al., 145 Oh St 301. This was an opinion by Judge Turner, three associates concurring and three judges dissenting. It should be noted briefly, that in the Mark case Judge Turner was differentiating the legal obligation of the husband there to provide present support for his wife from his moral obligation to afford such support in the future. It was in this connection that the pronouncement was made in the third syllabus and also in the opinion that.

“ ‘Any gross neglect of duty’ as used by §§11979 and 11997 GC. refers to an omission of legal duty."

The case does not hold, as we interpret it, that proof of an omission of a legal duty, in itself, constitutes gross neglect of duty under these sections. It is worthy of note that in the majority opinion no mention is made of Porter, Exr., et al., v. Lerch, 139 Oh St 47, or of any of the many cases which have held that wilful absence alone does not constitute gross neglect of duty. The effect of the decree here is to accomplish that result. In our judgment, the decree is not required by the Mark case, and is in conflict with all of the other authorities on the subject in Ohio. The latest expression of the Supreme Court prior to the Mark case was that of Porter, Exr., et al. v. Lerch, 129 Oh St 47. This case was appealed from a judgment of this Court of Appeals for Franklin County, 16 Abs 375. This Court was reversed and the Common Pleas Court affirmed. Upon its judgment supporting the granting of the decree, the Supreme Court held that our reversal was on the weight of the evidence and as there was a dissenting judge, it was not supported by the statutory requirement of an unanimous concurrence. The two concurring members of the Court had prepared an entry wherein it was found that, as a matter of law, the facts did not prove gross neglect of duty. In that case, not only did it appear that the plaintiff had left the defendant, failed and refused to live with him but also that he was generally in poor health, constantly under the care of physicians and ill at the time of the filing of the cross-petition. The 10th syllabus in this case, in our judgment, announces the law controlling here:

“Willful absence for a period of less than three years, unattended by any aggravating circumstances, is not a cause for divorce in this state and cannot be classed as gross neglect of duty; but desertion for a shorter period than three years, accompanied by aggravating circumstances, may constitute gross neglect of duty.”

We do not cite the many other cases in Ohio which announce the principle set forth in the 10th syllabus of the Lerch case, as practically all of them except some very early cases, are from lower court*.

The statute setting forth the various grounds for divorce, in probability, does not contemplate that any one is synonymous with the other. The failure of the husband to provide support for one day for his wife would be a breach of his statutory duty under §7997 GC, and would be neglect of duty but by all the authorities prior to the Mark case would not constitute gross neglect of duty. Likewise, the refusal alone of the wife to conform to any reasonable place or mode of living that the husband may choose is contrary to the requirements of §7996 GC and would constitute wilful absence but, unless it continues for the period required by statute, formerly three years, now one year, it would not be a ground for divorce. The refusal of the wife to move to the new home prepared for her by the husband was wilful absence and no more and must have continued one year prior to the filing of plaintiff’s petition to support the decree.

We are of opinion that the facts found in the divorce decree constituted wilful absence only and not gross neglect of duty.

The third assignment of error is that there was no corroborative evidence to support the finding of the trial judge and the granting of the decree. Appellant cites §8003-12 GC, formerly §11988 GC,

“Judgment for divorce or alimony shall not be granted upon the testimony or admissions of a party unsupported by other evidence.”

Neither counsel cite authorities supporting or contra appellant’s contention. This Court in Geiger v. Geiger, 80 Oh Ap 161, had the above section under consideration and said in the 4th syllabus:

“Under the provisions of §11988 GC a decree of divorce cannot be granted solely on the admissions of a party unsupported by other evidence.”

In this case there was a charge of adultery and there was proof of its admission by the party charged and no other supporting testimony. This presented a factual situation which clearly required application of the letter of the statute because the only evidence of the adultery was the admission of a party.

The statute, by its terms, does not say that testimony by a party supported by admissions of the other party which are not collusive may not constitute sufficient proof of a ground for a divorce decree. Separating the section, it may be read:

A divorce shall not be granted upon the testimony of a party unsupported by other evidence nor may a divorce be granted upon admissions of a party unsupported by other evidence.

Decided September 9, 1953.

John F. Seidel, George E. Walsh, Matthew L. Bigger, Columbus, for plaintiff-appellee.

Carl Gaeton Nappi, Columbus, for defendant-appellant.

This is quite different from the determination that a divorce may not be granted on both the testimony and the admissions of a party. We hold in the Geiger case, supra, that where it appears that a party who is resisting a decree makes an admission, the Court is justified in finding that no collusion exists.

The trial judge had the right to consider the evidence and admissions of the defendant and to find that they were corroborative of the testimony of the plaintiff, and upon such proof to make determination of a material fact essential to the finding in the judgment entry. The defendant insists that she did not refuse to move and explained that, although she intended later to move she was sick and unable to do so. However, we cannot say that the trial judge may not properly have inferred from her testimony that her refusal to move was wilful.

We have now considered all of the errors assigned except the eleventh, as it relates to the weight of the evidence. In our view of the record this assignment is not presented. If it were, we would hold that it is not established.

. We find the first and tenth assignments of error well made requiring the judgment in this Court, which should have been made in the trial court, that plaintiff’s petition be dismissed. It will be so ordered and the cause will be remanded. No other error assigned is established.

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

ON MOTION TO VACATE JUDGMENT

No. 4856.

OPINION

By THE COURT.

This is a motion to open up and vacate the judgment rendered by this Court on February 26, 1953.

We have carefully' examined the brief filed by counsel in support of the motion and find nothing therein which would warrant this Court in changing its former order. The motion will be overruled.

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


author: By THE COURT.

text:
    REISS, Plaintiff, v. GORDON, City Atty., Defendant.
    Ohio Appeals, Second District, Franklin County.
    No. 4651.
    Decided September 17, 1951.
    Emile Reiss, Columbus, for plaintiff.
    Richard W. Gordon, City Atty., Columbus, for defendant.
   OPINION

By THE COURT.

This is a demurrer to the petition on the following grounds:

1. The court has no jurisdiction of the subject of the action.

2. The plaintiff does not have legal capacity tQ sue.

3. The petition does not state facts which show a cause of action.

The petition reveals that the action is one in mandamus brought by Emile Reiss as a resident of the City of Columbus and a taxpayer thereof. Although not separately stated and numbered, two causes of action are set forth, the first of which we shall designate as cause of action No. 1, which seeks an order compelling the defendant, Richard Gordon, as City Attorney for the City of Columbus, Ohio, to appear and defend in case No. 183,013, in the Common Pleas Court of Franklin County, Ohio, in which the City of Columbus is named as a defendant.

What we shall designate as a second cause of action sets forth that Richard Gordon, the defendant, is the duly elected City Attorney for the City of Columbus, Ohio; that in accord with Section 69 of the City Charter and §4308 et seq., GC, it becomes the duty of the said defendant to prosecute and defend for and on behalf of the City all complaints, suits and controversies in which the city is a party; that a written demand was made upon the defendant to bring legal action against the Columbus Transit Company and the Southern Ohio Electric Company for damages to the city streets occasioned by the negligent, careless and improper operation of its busses, and that said demand was refused.

As to the first cause of action we are of the opinion that the demurrer is not well taken, for Section 69 of the said City Charter sets forth as one of the duties of the City Attorney that he is to defend the City against “all complaints, suits and controversies in which the city is a party.” As to the first designated cause of action the demurrer will be overruled.

As to the second cause of action the question presented is whether or not a duty was imposed upon the City Attorney to institute the action requested by this plaintiff. Section 67 of the Charter of the City of Columbus provides that the City Attorney shall be the legal adviser and counsel for the city and all city offices and departments and that he shall prosecute all suits for and on behalf of the city.

Section 69 of said Charter provides:

“The city attorney shall prosecute or defend for and in behalf of the city, all complaints, suits and controversies in which the city is a party, and such other suits, matters and controversies relating to city affairs as he shall, by resolution or ordinance of council, be directed to prosecute or defend.”

The petition does not allege that the City Council has by resolution or ordinance directed the City Attorney to prosecute a suit of the.character requested by the plaintiff and in the absence of such an ordinance or resolution no duty or obligation was imposed upon the City Attorney to bring such an action. The type of action requested does not come within the purview of Sections 71, 72 and 73 of the City Charter and hence they are not applicable.

Section 74 of the City Charter provides when a taxpayer may institute a suit or proceedings in his own name on behalf of the city. This section does not confer such authority upon a taxpayer under the facts pleaded.

The demurrer to the designated second cause of action will therefore' be sustained.

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


author: By WATTERS, J.

text:
    STATE, Plaintiff, v. HINKLE et, Defendant.
    Common Pleas Court, Summit County.
    No. 183852.
    Decided June 9, 1953.
    C. William O’Neill, James F. De Leone, Brown Pettit, Columbus', for plaintiff.
    E. L. Cunningham, Akron, for defendant.
    Richard Nye, Akron, for Marinda Look.
   OPINION

By WATTERS, J.

This matter was tried to the Court, a jury being waived. In Case Number 174480 Judge Emmons found for and entered judgment for the plaintiff there, Marinda Look, that being a Workmen’s Compensation ease against the defendant here, in which the court found the defendant amenable to the Act and that the plaintiff was entitled to share in the State Fund. That judgment is in full force and effect. Thereafter the Industrial Commission made an award to Marinda Look against the defendant which defendant failed to pay, and the State of Ohio brought this action for collection of said award, to-wit, $1517.20 plus interest from April 3, 1951.

In this action the defendant again raised the defense of not being amenable to the Workmen’s Compensation Act in that he did not have three (31 employees, etc., and other matters.

The plaintiff State, however, claims all such matters in defense are res adjudicata in the action before Judge Emmons.

By agreement the parties agreed to submit to the Court the transcript of the testimony before Judge Emmons in the Workmen’s Compensation case, and other pertinent matters stipulated, and the defendant was allowed to offer further evidence before this court on the question of amenability.

From all the evidence before the Court, this Court finds the plaintiff State of Ohio entitled to a judgment against the defendant in the amount specified above. In this correction the Court considered all the evidence, including that offered in this court and before Judge Emmons on the question of amenability.

However, T am also of the opinion that the former adjudication by Judge Emmons in the former case is res adjudicata of the questions the defendant has raised in this case.-

True, the State is a different party in this case, but only nominally, because this action is under the statutes provided and the State in reality represents and stands in the shoes of the claimant for whose benefit the case was brought.

A journal entry may be drawn in accordance with this finding. Exceptions to defendant.