author: By HUNSICKER, PJ.

text:
    COTOFAN et, Appellants, v. STEINER, a. k. a., etc., Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24135.
    Decided August 15, 1957.
    Snyder, Neff & Vintilla, for plaintiffs-appellants.
    A. R. Fiorette, J. A. Pasquale, for defendant-appellee.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District; GRIFFITH, J, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law.

Eli and Mary Cotofan, appellants herein, husband and wife, were indebted to George Steiner, appellee herein. This debt was evidenced by a promissory note, secured by a mortgage on real property belonging to the Cotofans.

Mr. and Mrs. Cotofan borrowed from a bank sufficient money to pay the note to Mr. Steiner, but Mr. Steiner refused to accept the money.

The appellants, Cotofan, then filed an action in the Court of Common Pleas to determine their right to accelerate the payment of the note, and upon payment thereof to obtain the note and the canceled mortgage.

The trial court determined that payment of the note could be accelerated, and ordered that upon payment thereof the note should be returned to the Cotofans and that the mortgage deed should be canceled and discharged by Steiner. .

This order of the trial court was entered on December 15, 1956, and a motion for a new trial was thereafter overruled on January 2, 1957.

On January 4, 1957, Steiner filed a notice of appeal on questions of law and fact.

On January 22, 1957, bond in the amount of $1,000 was filed with the clerk of courts in the principal case.

Thereafter (on January 29, 1957) a motion in contempt was filed in the Court of Common Pleas by the Cotofans, wherein they asked that Steiner be found guilty of violating the order issued with respect to a surrender of the note and cancellation of the mortgage.

Upon bearing, this contempt action was dismissed because the trial court determined it did not have jurisdiction in the premises. Appeal on questions of law was then lodged in this court.

The sole question in this appeal is: After notice of an appeal on questions of law and fact has been filed, and a proper bond duly filed in the trial court, does such court retain jurisdiction over a portion of the case for the purpose of enforcing orders made by such trial court?

In other words, Did the trial court lose jurisdiction when Steiner perfected his appeal on law and fact?

It should be again pointed out that the request for a citation in contempt was not filed until after all necessary jurisdictional steps had been taken by Steiner to remove the case for a trial de novo in the Court of Appeals.

In 3 O. Jur. 2d, Appellate Review, Sec. 353, the author, citing many sustaining authorities, says, with respect to appeals on law and fact:

“* * * A peculiar feature of appellate jurisdiction on such questions in Ohio is that unlike an appeal on questions of law which passes upon the record, and unlike an appeal to the Supreme Court of the United States and to appellate courts of some other states, an appeal on questions of law and fact in Ohio takes up the subject matter of the action where the court below took it up and proceeds in respect of pleadings, necessary parties in chancery, testimony, trial, and judgment as if the cause had never been tried below. It presents, as stated, a different situation from old error proceedings, and has a different effect; the perfecting of such an appeal removes the whole case to the appellate court, and it is there as it was before the lower court and is tried de novo.”

The effect of perfecting an appeal on law and fact is to suspend the judgment of the trial court and to render inoperative the judgment of that court. Emery v. City of Toledo, 121 Oh St 357, at p. 265; Jenney, Admr., v. Walker, 80 Oh St 100; State, ex rel. Gaddis, v. Industrial Comm., 133 Oh St 553, at p. 558; Union Trust Co. v. Lessovitz, 122 Oh St 406, at p. 416.

We have raised in this case a question as to the effect of §2505.18 R. C., which reads as follows:

“When an injunction is appealed from, it shall be suspended only by order of the court of appeals, or two judges thereof, on reasonable notice to the adverse party.”

What, then, was the nature of the judgment from which this appeal was 'taken? We have examined and considered the judgment rendered by the trial court in the original action, and it has some of the aspects of a mandatory injunction. The operative effect of that order is as follows:

“It is, therefore, ordered, adjudged and decreed that plaintiffs shall pay to the defendant the sum of $22,321.08; that upon payment of said sum the defendant shall cancel the promissory note of these plaintiffs and shall execute a complete and full satisfaction and discharge of the mortgage deed of record; that in the event the defendant fails and refuses to abide by the order of this court to cancel and discharge the said mortgage deed, then the order of this court spread upon its journal shall operate as a complete and full satisfaction and discharge of the said mortgage deed.”

If this order can be considered an injunction within the terms of §2505.18 R. C., we believe, under the rule announced in Menuez v. Grimes Candy Co., 77 Oh St 386, that the proceedings to enforce such injunction, after the appeal was perfected, should be prosecuted in the Court of Appeals.

In the Menuez case, supra, the court said:

“2. An appeal having been taken to the circuit court from a judgment of the common pleas granting a perpetual injunction, a subsequent violation of the decree should be punished as a contempt by the circuit court, the statute providing that notwithstanding the appeal the injunction shall continue in force until suspended by the circuit court or two judges thereof.”

In the light of this case, which has not been overruled or modified by the Supreme Court of Ohio, this court must determine that, in such a situation as we have in this case, where a mandatory injunction is appealed on questions of law and fact, the trial court cannot, after the appeal is perfected, entertain a proceeding in contempt. See: Stewart, et al., v. O’Neil, 237 Fed. 897, at p. 904, et seq., 14 O. L. R. 553, at p. 563, et seq., for a review of Ohio authorities.

Annotations on the subject of the effect of an appeal from injunction upon the jurisdiction of the trial court to punish for contempt for its violation may be found in L. R. A. (N. S.) 1150; L. R. A. 1918F 794; and 93 A. L. R. 706 and 709. See also: 3 Am. Jur., Appeal and Error, Sec. 559, and 4 C. J. S„ Appeal and Error, Sec. 622.

From our examination of these authorities, we find a great conflict of opinion. However, only a few states, among them Maryland, Kentucky and Florida, have statutes similar to the Ohio statute.

The judgment in this case must be affirmed.

Judgment affirmed.

DOYLE and GRIFFITH, JJ, concur.


source: Caselaw Access Project

author: By SKEEL, J:

license: Public Domain

text:
    EAST CLEVELAND (City), Plaintiff-Appellee, v. FERELL, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24072.
    Decided October 2, 1957.
    Stanley G. Webster, for plaintiff-appellee,
    Woodle & Wachtel, Edwin F. Woodle, of Counsel, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal is in this court on questions of law from a judgment of guilty entered by the trial judge upon trial of the defendant on a charge of speeding. The defendant, after this court entered a judgment affirming the decision of the trial court, filed an application for rehearing, basing such claim on the failure of this court to give consideration to the appellant’s claim that the electrical timing of the speed of the defendant’s vehicle was not established to have been accurately applied, and that the court “subordinated the application of established legal principles to expediency or to what may appear to be a matter of public convenience.”

The assertion of the defendant that it is legally impossible to “determine the speed of a motor by some mechanical device located outside of that vehicle,” the quotation from defendant’s brief undoubtedly having reference to traffic control by electrical speed meters called “radar,” is without any foundation in law. This means of controlling the dangers caused by speeding motorists on our highways is recognized by the statutes of this State. Sec. 4511.091 R. C., effective October 16, 1853, provides for “Radar or electrical speed control; warning signs.”

In the case of State v. Dantonio, 18 N. J. 570, 115 A 2d 35, the Supreme Court of New Jersey gave careful consideration to the whole question, citing many authorities. The second and third paragraphs of the syllabus provide:

“2. Evidence of radar speedmeter readings should be received in evidence in prosecutions for speeding upon a showing that the speed-meter was properly set up and tested by police officers without any need for independent testimony by electrical engineers as to its general nature and trustworthiness.
“3. In prosecution for speeding, readings of radar speedmeter were not conclusive, but merely constituted admissible evidence to be weighed by trier of facts along with all other evidence which was logically relevant, and possibility of error in operation of speedmeter would not wholly deny admissibility of speedmeter readings, but would simply affect their weight.”

And on page 579 of the opinion, beginning with a quotation from an article by Professor Woodbridge, the court said:

“Under the Uniform Rules of Evidence, already approved by the American Bar Association at its 1953 meeting, judicial notice ‘shall be taken without request by a party * * * of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.’ Radar speed meters are now in this category. Why should the time of experts be wasted and the expenses of litigation be increased by compelling such men to appear in court after court telling the same truths over and over? While it is agreed that every reasonable doubt about the accuracy of new developments should promptly be resolved against them in the absence of expert evidence, there is no longer any such doubt concerning radar. Rather, the applicable maxim should now be, ‘What the world generally knows a court of justice may be assumed to know.’ ”
“See also Baer, supra, at 381 where Professor Baer, a member of the New Jersey bar and the faculty of the University of North Carolina School of Law, expressed the view that there was now ‘more than adequate knowledge of the operation and accuracy of radar speedmeters in the area of science to which these devices belong to warrant their being accorded judicial recognition without the aid of expert testimony or legislative direction.’ ”

One of the greatest dangers on the public highway, next to driving a motor vehicle while under the influence of intoxicating liquor, is driving in excess of a reasonable speed. 'The law must meet this danger in a forthright manner. The speeder’s conduct requires drastic action. The apprehension of violators must be accomplished with reasonable certainty and insofar as possible with reasonable accuracy. If science can point the way to a safer way of enforcing the speed law by an accurate mechanical device to replace the use by traffic officers of the bicycle, the motorcycle and the automobile, all of which enhance the dangers of lawful street uses as well as the officers in pursuit of a violator to make an arrest, it must do so.

All that remains of the defendant’s argument in this case is as to whether or not there is evidence in the record by which the court could find beyond a reasonable doubt that defendant, in the operation of his motor vehicle, exceeded a reasonable speed. The record presents considerable credible evidence that the device used was tested for accuracy by one who was competent to make the tests and to testify on the subject. Under these circumstances, the defendant’s claims are wholly unwarranted and without legal foundation, and his application for rehearing is dismissed.

Exceptions noted.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


author: By HOLTSBERRY, J.

text:
    DASE, Plaintiff, v. DASE, Defendant.
    Common Pleas Court, Licking County.
    No. 43914.
    Decided February 11, 1958.

      Virginia Weiss, Newark, for plaintiff.
    Leonard Zdara, Newark, for defendant.
   OPINION

By HOLTSBERRY, J.

Defendant moves for judgment on the pleadings, contending that the failure of the plaintiff to reply to his affirmative defense of condonation set up in his answer entitles him to such disposition of the case.

Defendant in his brief sets forth authority that when condonation is urged as a defense to an action in divorce, it is an affirmative defense and must be specially pleaded. He further contends that where an answer sets up new matter, a reply is necessary, otherwise the matter set up must be taken as having been admitted by plaintiff.

An examination of the authority cited by defendant leaves the Court with the conclusion that generally such is the law, but is not applicable to the situation herein.

The very nature of a divorce proceeding makes it more than a mere private controversy, since a matter of public' policy arises out of the principle that the family relation is the basis of organized society, and should be preserved until such time as it appears to the Court that the legal right to a divorce is established. Therefore, such suits must, in certain instances, be accorded different treatment and consideration than ordinary civil actions.

Divorce in Ohio is a matter regulated entirely by statute. Condonation is a voluntary forgiveness of a matrimonial offense by an aggrieved spouse; for it to be voluntary, there must be knowledge of the offense, freedom of consent, and resumption or continuance of marital relations. (17 O. Jur., 2nd, Section 30, page 686.) The condonation to be effective must not have been induced by fear, intimidation, or fraud, nor secured by trick ór artifice. (Rex v. Rex, 39 Oh Ap 295; 9 Abs 338; 377 Northeastern, 527.)

The practical effect of condonation is to prevent a wrong or injury from being afterward asserted as a ground for divorce.

Condonation is conditional upon future good behavior of the offending party, and subsequent repetition of the offense operates to remove the bar of condonation, and revive prior acts as grounds. (Rousey v. Rousey, 7 Abs 467; Kleinberg v. Kleinberg, 22 Abs 658; Amole v. Amole, 71 Abs 111.

In a divorce action there is no such thing as obtaining a divorce without evidence such as may sometimes be accomplished by default in certain other actions. Sec. 3105.11 R. C., provides that: “A judgment for divorce or for alimony shall not be granted upon the testimony or admissions of a party unsupported by other evidence.”

An Ohio divorce action being one provided for by statute and the nature of the action being such that the state or public is necessarily a party, neither technical rules of pleading nor the failure to plead by reply can be considered as admissions to take the place of required proof.

For the reasons stated, the failure to file a reply herein does not constitute an admission of the defense of condonation, and motion for judgment on the pleadings is overruled.


author: By SKEEL, PJ.

text:
    CENTRAL NATIONAL BANK OF CLEVELAND, Plaintiff-Appellant, v. IRVINE, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24002.
    Decided March 7, 1957.
    Richard I. Kuhn, for Central National Bank of Cleveland.
    Joseph o. Coy, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from an order of the Municipal Court of Cleveland granting a petition to vacate a judgment entered against the defendant on a cognovit note. The court granted the petition to vacate on the ground that the judgment taken was for more than the amount due. It granted defendant leave to plead and returned the case to the docket for trial on the merits. The petition was filed and the order made upon the authority of §2335.01 et seq, R. C.

The facts show that the defendant purchased a new automobile in September, 1953, and financed the purchase of the automobile by giving plaintiff a cognovit note and chattel mortgage on the automobile in the sum of two thousand dollars. When defendant failed to make his payments, plaintiff repossessed the automobile on February 11, 1955, and took a judgment by virtue of the power of attorney contained in the cognovit note in the amount of $446.31. The defendant testified that he had driven the automobile about 20,000 miles and that the balance due at the time it was repossessed was $1450. This would indicate that the plaintiff sold the automobile under the provisions of the mortgage without foreclosure for about $1,000. The defendant testified in his opinion the automobile was worth between seventeen and eighteen hundred dollars when repossessed.

The petition alleges, in seeking to. vacate the judgment, that the judgment was one growing out of an automobile financing transaction; that the plaintiff repossessed the automobile and sold it to persons unknown at less than its true market value; that the sale was not concluded at the time and place as required by law and that the judgment was taken for more than was due.

By' affidavit attached to the petition to vacate, the defendant, in addition to stating facts surrounding the purchase of said automobile, the mortgage given to secure the balance of the purchase, the repossession of the automobile and its sale at a price alleged to be greatly under the market value, states that the plaintiff, in making the resale “did not comply with the Hoffman Act concerning deficiency judgments and is not entitled to any deficiency judgment against the defendant whatsoever.” He also stated that the judgment was taken for more than was due.

The brief of the appellant states that there is but one question presented. The question is — does §1319.07 R. C., require that property sold by a chattel mortgagee pursuant thereto be sold at the exact time set forth in the notice of sale sent by chattel mortgagee, in order that chattel mortgagee be entitled to a deficiency judgment?

Notwithstanding this statement, however, the appellant’s brief does consider whether or not there is any evidence to support the claim that the judgment was taken for more than was due. In dealing with this point, it must be true that unless it is established that the plaintiff, under the facts, was entitled to a deficiency judgment,.there is not a word of evidence that the judgment exceeded the balance due after crediting the amount received from the sale.

The appellee’s brief states that he accepts the facts set forth in the appellant’s brief which, in fact, go outside the allegations of the petition and the evidence contained in the bill of exceptions in that it sets forth an alleged date when the automobile was repossessed and the amount realized in the resale.

Sec. 1319.07 R. C., prohibits enforcing a deficiency resulting from the resale of property repossessed under a chattel mortgagee before foreclosure except that:

“* * * This section does not apply if the mortgagee, his executors, administrators, successors, or assigns, gives at least ten days’ written notice to the mortgagor, his executors, administrators, successors, or assigns, personally, or by mailing it to him by registered mail, at the address of the mortgagor given in the mortgage, of the time, place, and the minimum price for which the mortgaged property may be sold, together with a statement that the mortgagor may be held liable for any deficiency resulting from said sale. * * *”

Again referring to the bill of exceptions, the only evidence on the subject of notice as required by the statute before a resale (without foreclosure) of repossessed property under the terms of a chattel mortgage, is that the defendant did not receive it and that for a considerable period about the time of the resale, he was out of the city, and not at his address given in the chattel mortgage and cognovit note. (West Side Y. M. C. A.) It is also true that there is not a word of evidence as to the day the automobile was resold or whether or not it was sold on the day and at the place specified in the notice.

Because of the complete absence of any evidence to establish the essential elements of the grounds upon which defendant seeks to vacate this judgment, the order vacating said judgment is reversed and the cause is remanded with instructions to overrule the same.

Exceptions noted. Order see journal.

HURD, J, concurs.

KOVACHY, J, not participating.


author: By PHILLIPS, J.

text:
    WILLIAMS, Plaintiff-Appellant, v. YOUNGSTOWN SHEET & TUBE COMPANY et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3907.
    Decided May 10, 1957.

      Marvin Traxler, Youngstown, for plaintiff-appellant.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendantsappellees.
   OPINION

By PHILLIPS, J.

Defendant, Youngstown Sheet and Tube Company, a self insurer under the Workmen’s Compensation Act of Ohio, demurred to plaintiff’s petition filed in the court of common pleas on the ground that plaintiff’s petition did not state a cause of action. The trial judge sustained defendant’s demurrer.

Plaintiff electing not to plead further in the court of common pleas appealed to this court on questions of law.

In his petition plaintiff claimed he was permanently and totally disabled as the direct and proximate result of an injury sustained on November 18, 1950, while in the course and scope of his employment with defendant, Youngstown Sheet and Tube Company.

Plaintiff received temporary total disability until 1955. On October 20, 1955, plaintiff filed a motion with the Industrial Commission of Ohio, together with medical proof, contending that he was temporarily and totally disabled as a result of the injury of November 18,1950. On October 3, 1956, the Bureau of Workmen’s Compensation ordered that the claimant’s motion be denied “for the reason that as shown by the preponderance of the medical proof, the claimant is not totally disabled by reason of the injury in this claim.”

The sole question presented to us is whether §4123.519 R. C., effective October 5, 1955, is applicable since plaintiff was injured on November 18, 1950.

Sec. 4123.519 R. C., provides in part:—

“The claimant or the employer may appeal a decision of the industrial commission in any injury case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted * *

Plaintiff contends that “§4123.519 R. C., effective October 5, 1955, is unconstitutional so far as the plaintiff is concerned, and cannot be retroactive in nature as it involves substantive rights.”

Further plaintiff claims:—

“Under the existing law at the time of the injury the plaintiff had a right after receiving the maximum amount of temporary total and temporary partial disability and after the commission found claimant was not permanently and totally disabled, as a result of the injury, to appeal or file for rehearing. It was so provided by §1465-90 GC, and following a rehearing by the commission, the claimant had the right to appeal to the common pleas court in the county in which the injury was inflicted If the claim was denied on rehearing.”

Plaintiff alleged in his petition inter alia as follows:—

“* * * that on November 18, 1950 he sustained an injury while working for the defendant, Youngstown Sheet & Tube Company, when he was struck by a cable from an overhead crane, causing severe cerebral concussion, possible skull fracture, laceration of the scalp, nose and side of the face, together with injury to his neck and back.
“Plaintiff states that for a period of time he was paid compensation and thereafter he filed a motion with the Industrial Commission of Ohio, together with medical proof, contending that he was temporary and totally disabled as a result of the injury of November 18, 1950. This motion came on to be heard by the Industrial Commission and was finally disallowed on October 3, 1956 at which time the Industrial Commission found that the plaintiff was not permanently and totally disabled as a result of the injury of November 18, 1950.
“Plaintiff states that such disallowance was in disregard of his rights under the Workmen’s Compensation Law of Ohio and an unjustified denial thereof by reason of which he appeals to this court and demands a trial by jury.”

The demurrer of defendant company was based upon the theory that the finding by the Industrial Commission that plaintiff was not permanently and totally disabled was not a proper subject of appeal. Defendant, Youngstown Sheet & Tube Company, claims:—

“The real problem to be decided preliminary to determining whether the trial court acted properly in sustaining the demurrer is: was the plaintiff deprived of a vested substantive right, for the statute in question is specifically retroactive.”

Section 28, Article II, Ohio Constitution, provides:—

“The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.”

Further defendant, Youngstown Sheet & Tube Company, claims:—

"This constitutional provision concerns matters of substance and has no application to remedial matters.”

In the case of State, ex rel. Slaughter v. Industrial Commission of Ohio, 132 Oh St 531, the third paragraph of the syllabus reads:—

“Section 28, Article II, Ohio Constitution, prohibiting the passage of retroactive laws, has application to laws disturbing accrued substantive rights, and has no reference to laws of a remedial nature providing rules of practice, courses of procedure or methods of review.”

The writer is impressed with the argument of counsel for defendant, Youngstown Sheet & Tube Company, stated by brief, which argument in his opinion compels the affirmance of the judgment of the court of common pleas.

That argument is as follows:—

“A most recent consideration of the problem with which we are dealing was by the Second District Court of Appeals (Franklin County! in the case of State, ex rel. Michaels v. Industrial Commission, No. 5372, decided February 7, 1956, and currently unreported. In the opinion by Fess, J. (sitting by designation) it was stated:
“ ‘s- ' * Although Article II, Section 28, Ohio Constitution, has application to laws disturbing accrued substantive rights, it has no application to laws of a remedial nature providing rules of practice, courses of procedure or methods of review. * * *
“ ‘The Legislature has complete control over the remedies afforded to parties in the courts of Ohio, and it is a fundamental principle of law that an individual may not acquire a vested right in a remedy or any part of it — that is, there is no vested right in a particular remedy.
“The enactment of §4123.519 R. C., did not take away from the plaintiff the right to be declared permanently and totally disabled. He still retains that right, subject to the determination of the Industrial Commission of Ohio. The only change was as to the procedural remedy involved. Article H, Section 35, Ohio Constitution, which is the basis of the Workmen’s Compensation Act, provided neither for jury trial nor appeal from decisions of the Industrial Commission. The Legislature is vested with the power of determining the question of mode of attainment or rights granted by the Workmen’s Compensation Law. The choice of refusing to allow appeal from determinations by the Industrial Commission as to the extent of disability of injured workmen was solely that of the Legislature and certainly did not violate a constitutional protection or a statutory privilege.
“The plaintiff did not acquire a vested right in the remedy of appeal provided in §1465-90 GC, therefore, Article II, Section 28, Ohio Constitution, was not violated. The change provided by §4123.519 R. C., concerned a remedial matter. This was perfectly proper and within the discretion of the Legislature in that §1.20 R. C., was not violated because of the direct expression in §4123.519 R. C., that the enactment would govern all claims pending determination by the Industrial Commission on the effective date of this Act.”

The parties are respectfully referred to the case of Peter Stoich v. Truscon Steel Division of Republic Steel Corporation and Joseph Scanlon, Administrator Bureau of Workmen’s Compensation, Mahoning Appeals No. 3859 (77 Abs 111), in which the Supreme Court overruled plaintiff’s motion to certify, and the unreported case of Jim Frank v. Youngstown Sheet & Tube Company, and Joseph J. Scanlon, Administrator Bureau of Workmen’s Compensation, Mahoning Appeals No. 3872, Ohio Supreme Court, No. 35311. MCO 11-20-57.. Both of these cases were decided by this court by a two to one decision, one member of the court dissenting.

It is clear from what we have said that plaintiff was not deprived of a vested substantive right, and that the trial judge did not err in sustaining defendant’s demurrer. Accordingly the judgment of the trial court must be and hereby is affirmed,

GRIFFITH, J, concurs.

NICHOLS, PJ, dissents.


author: By BRYANT, J.

text:
    BENUA, Plaintiff-Appellant, v. COLUMBUS (City), Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5795.
    Decided April 1, 1958.
    Willis H. Liggett, Columbus, for plaintiff-appellant.
    Russell Leach, City Atty., John W. E. Bowen, Chief Counsel, John C. Young, Senior Asst. City Atty., Columbus, for defendant-appellee.
   OPINION

By BRYANT, J.

This is an appeal on questions of law and fact from the judgment of the Court of Common Pleas of Franklin County in favor of the defendant-appellee, City of Columbus. Benua filed a petition seeking a declaratory judgment in said Common Pleas Court and at the conclusion of the case all issues were decided against him and in favor of the City of Columbus. Benua filed his notice of appeal and the matter is before this court for determination upon the pleadings, transcript of docket and journal entries, bill of exceptions, certain stipulations, exhibits, papers, briefs and the arguments of counsel.

The questions presented, in the petition have to do with the validity of .the Columbus ordinance imposing an income tax and particularly with reference to their application to Benua.

In his petition Benua alleges that he is a resident of Bexley, that the City of Columbus is a municipal corporation, that he owns several tracts of real estate, located in the City of Columbus, all of which are rented and for which he is paid the agreed rental periodically as provided in the various leases.

In the amended petition, and by stipulation, the several ordinances having to do with Columbus income tax are made a part of the record in full together with instructions promulgated in connection therewith.

Benua says the City of Columbus insists that he include in his individual tax return to be filed with City Income Tax Division all income received as rent from the said several tracts of land owned by Benua and located within said City. It is Benua’s contention that the rent from the said tracts is not subject to the several ordinances enacted by the City of Columbus levying a city income tax, initially one-half of one percent and later increased to one percent.

Benua says and the defendant-appellee admits that he has exhausted his administrative remedies. He further contends the City of Columbus threatens civil and criminal action against him with reference to including said rental income in his city income tax return.

Benua asks for a declaration of his rights and duties and with reference to the said income tax ordinance and said rentals whether or not they are (a) subject to said city income tax; (b) exempt by preemption of the State of the right to tax plaintiff’s real estate; fc) exempt by tax statutes enacted by the State; (d) exempt under the Constitution of Ohio and (e) exempt by implication of the statutes and laws of Ohio. He also asks for a permanent injunction against the enforcement of the several city income tax ordinances.

The answer filed by the City of Columbus admits most of the operative facts but denies the legal conclusions.

The record contains the several ordinances having to do with levying of the said Columbus income tax from the time of its first enactment until the filing of the amended petition. The rate (or percentage) imposed is not in controversy. The questions here raised appear to be substantially the same when considered under either the earlier or later forms of the ordinance involved. We shall therefore make reference to the City of Columbus Ordinance 1073-56 passed July 30, 1956 and identified herein as Exhibit E.

Referring to the introductory portion of the ordinance we find that it has for its purpose the levying of a tax “on the net profits earned on all businesses, professions or other activities conducted in the City of Columbus by non-residents.” In Section 2 thereof it provides in part as follows:

“* * * there be and is hereby levied a tax at the rate of one (1) per centum per annum upon the following:
“* * * (3) (b) on the net profits earned on and after January 1, 1957 of all unincorporated businesses, professions, or other activities conducted in the City of Columbus by non-residents * *

In Section j of said ordinance there are definitions which are applicable to the question now before the court. The word, “business,’’ is defined as follows:

“An enterprise, activity, profession, or undertaking of any nature conducted for profit or ordinarily conducted for profit, whether by an individual, co-partnership, association, corporation, or any other entity ”

The words, "net profit,” are also defined in said Section 1 as follows:

“The net gain from the operation of a business, profession, or enterprise, after provision for all costs and expenses incurred in the conduct thereof, either paid or accrued in accordance with the accounting system used, and without deduction of taxes based on income.”

As before stated, the facts are not in dispute and it is admitted that plaintiff is a nonresident of the City of Columbus residing in another municipal corporation of Franklin County to wit: Bexley. It is likewise admitted that plaintiff is the owner of several parcels of improved or unimproved real estate located in Columbus and is the one entitled to and actually receiving the income therefrom in the form of periodic leasehold rent. It is further not disputed and the plaintiff introduced tax bills to show that a tax upon real property was paid by him as to each of the parcels in question. The principal objection advanced by plaintiff is that the levying of a tax upon the earnings of real estate is identical with a tax upon the real estate itself, and that the city is forbidden to do so because the State has already made such a levy, thereby pre-empting such field to itself. In other words, plaintiff claims that the city is barred from levying an income tax on rental income due to the fact that a tax has already been .levied against real estate in the form of the general property tax and as a result, the State has preempted this field of taxation. If this argument by plaintiff be sound, the city might well be without power to levy income tax against such rental income, payable either to nonresidents of Columbus or to owners who are residents of Columbus.

Counsel for Benua places much weight upon a decision of the United States Supreme Court handed down in 1895 in the case of Pollock v. Farmers Loan and Trust Company, 157 U. S. Reports 429. In that case the fifth and a portion of the seventh branches of the syllabus are as follows:

“A tax on the rents or income of real estate is a direct tax, within the meaning of that term as used in the Constitution of the United States.
“So much of the act ‘to reduce taxation, * * *’ as provides for levying taxes upon rents or income derived from real estate, * * * is repugnant to the Constitution of the United States and is invalid:”

The report of the syllabus, facts, arguments of distinguished counsel, opinion of the court, concurring opinion, dissenting opinion, joined in by two Justices, and an additional dissenting opinion of one of them occupy 230 pages in the volume of United States Supreme Court Reports just above referred to.

There are a number of difficulties in applying the Pollock case, supra, to the question now before this court. In the first place, it was an act of Congress which was being construed and the question decided was that a tax upon the income or rent from land was a direct tax and therefore required to be apportioned among the several States in proportion to the census or enumeration of population. It must be remembered that the decision in the Pollock case, supra, was handed down long before the enactment of the Sixteenth Amendment to the United States Constitution specifically authorizing federal income taxes and in fact was one of the principal reasons why it was necessary to enact the so-called income tax amendment. In handing down the Pollock decision, supra, the United States Supreme Court relied upon language found in the Constitution of the United States, Article I, Section 9, which provides in part as follows:

“No capitation, or other direct tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

The income tax before the court in 1895 was not apportioned among the States on the basis of population and, being a direct tax, the court had no difficulty in finding it in conflict with the language of the said Article I, Section 9.

No question of pre-emption or the right of a State, to levy an income tax or the right of a municipal corporation to levy an income tax was before the court in the Pollock case, supra.

The effect of' the decision in the Pollock case, supra, was nullified when in 1913 the several states in the United States adopted the so-called income tax or Sixteenth Amendment to the Constitution of the United States reading as follows:

“The Congress shall have power to lay and collect taxes on income, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.”

Thus it will be seen that the constitutional foundation for the Pollock case, supra, is now completely gone. Furthermore, at least so far as the levying of a tax by a state is concerned, the United States Supreme Court in 1937 announced a decision arriving at a different result and said by it to distinguish the Pollock case, supra. This was the case of New York ex rel. Cohn v. Graves et al., 300 U. S. Reports 308, in which a taxpayer residing in the State of New York challenged the right of that State by a State Income Tax Law to tax rental income arising from land located outside of the State of New York but payable to the New York resident as the owner thereof. Said taxpayer also objected to paying New York Income Tax upon interest received by said taxpayer on bonds which were not within the State of New York and which were secured by mortgages upon land also outside the State of New York. Branches one to six, inclusive, of the syllabus in the said Graves case, supra, are as follows:

“1. A State may tax her citizen upon the income he receives by way of rents from lands situate in another State and by way of interest on bonds secured by mortgage on lands situate in another State. P. 312, 316
“2. The receipt of income by a resident is a taxable event. P. 312.
“3. Domicil itself affords a basis for such taxation. ■ P. 313.
“4. Enjoyment of the privileges of residence in the State and the attendant right to invoke the protection of its laws are inseparable from responsibility for sharing the costs of government. Id.
“5. Neither the privilege nor the burden is affected by the character of the source from which the income is derived. For that reason income is not necessarily clothed with the tax immunity enjoyed by its source. Id.
“6. A tax on the income from land is not a tax on the land (Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, distinguished), and taxation of both, by the same or different States, is not double taxation. P. 314.”

Thus, it will be seen that the persuasive force of the Pollock case, supra, is practically nil at this time.

There has been a great amount of litigation involving the many questions arising under federal and state income tax laws and local ordinances. In the early days of income taxes the argument frequently was advanced that all income is a form of property and hence that constitutional provisions in the several states limiting the rate or amount of taxation on property were applicable to income taxes. It also was argued and sometimes decided that income taxes were required to be considered along with other taxes in determining whether the limits upon taxation had been exceeded. In a great majority of the cases examined, such theories are rejected. See Opinion of Justices (N. H.— 1915), 77 N. H. 611, that a tax on income is n#t a tax on property, and a multitude of cases annotated in 11 A. L. R. 313, 70 A. L. R. 468 and 97 A. L. R. 1488. In the overwhelming majority of cases cited, a clear distinction has been recognized between taxes on land and on the rent or income from land. For further discussion as to what are property taxes, see 103 A. L. R. 18.

Further considering the question in general of the right to tax nonresidents under a state income tax statute, the rule is stated in 15 A. L. R. 1329 as follows:

“State statutes imposing a tax upon incomes of nonresidents earned or accruing within the taxing states have been upheld as against practically all constitutional objections which have been raised.
“It has been held that a state may, consistently with due process of law, impose an annual tax upon the net income derived by nonresidents from property owned by them within the state, and from any business, trade, or profession carried on by them within its borders.”

In a supplemental annotation in 90 A. L. R. 486 with reference to state statutes, it is said:

“A state may constitutionally impose a tax upon the net income of a nonresident derived from property owned and business carried on in the taxing state.”

Again in 156 A. L. R. 1373 (1945) in a supplemental annotation referring to state statutes, it is said:

“Nonresident individuals may be subjected to a state tax on income earned within the state, Atkinson v. State Tax Commission (1937) 156 Or 469, 67 P (2d) 161 (reversing on rehearing (1936) 156 Or 461, 62 P (2d) 13, affirmed in (1938) 303 US 20, 82 L. ed. 621, 58 S. Ct. 419): Scobie v. Wisconsin Tax Commission (1937) 225 Wis. 529, 275 NW 531. A state may impose an income tax on nonresident individuals in respect of income derived from business or property located in the taxing state or from services performed there.”

Coming now to the question of the power of a municipal corporation to levy a tax upon property within its limits, it is stated in 38 Am. Jur. 78, Municipal Corporations, §389:

“It is well settled that a municipality which has been given the power of taxation by the legislature has the power to subject all property within the corporate limits to municipal taxation.”

Further, in the same authority at page 79, §390, it is said:

“It is now almost universally held that property within the limits of a municipal corporation is subject to municipal taxation, even if it is so situated that it cannot and does not derive any benefit from the expenditure of the money so raised.”

There can no longer be any question in Ohio as to the power of municipal corporations to levy an income tax. In 1944 Williams, J., in a concurring opinion in State, ex rel. v. Sherrill, 142 Oh St 574, at page 583 stated:

“The power of a municipality to adopt an excise exists so long as the state has not invaded or pre-empted this particular field by passing a law providing for the same kind of excise. See State, ex rel. Zielonka, City Solicitor, v. Carrel, Auditor, 99 Oh St 220, 124 N. E., 134; City of Cincinnati v. American Telephone & Telegraph Co., 112 Oh St 493, 147 N. E., 806; Firestone v. City of Cambridge, 113 Oh St 57, 148 N. E., 470. Compare Hall v. Industrial Commission, 131 Oh St 416, 3 N. E. (2d), 367.”

• This, of course, was directly contrary to. a statement in a case decided much earlier. See State, ex rel. Zielonka, City Solicitor, v. Carrel, Auditor, 99 Oh St 220, where at page 228 the court said:

“It may be said in this connection that it is clearly to be implied from the constitution that municipalities are without power to levy an income or inheritance tax.”

Another landmark in the field of municipal income taxation is the case of Haefner, et al. v. City of Youngstown et al., 147 Oh St 58, where an ordinance of the City of Youngstown was invalidated. Said ordinance sought to levy a tax of two and one-half percent upon the net rate charged for certain public utility services including natural gas, electricity, water and telephone.

The ordinance was held unconstitutional under the doctrine of preemption. The opinion stated that the state already had levied a tax on the gross receipts of utility companies and that this had the effect of pre-empting this field of taxation in. favor of the state and deprived municipalities of the right to enter such field.

As to the general power of municipalities to levy such taxes within limits, syllabus three of the Haefner case, supra, provides as follows:

“3. Municipalities have power to levy excise taxes to raise revenue for purely local purposes; but under Section 13, Article XVIII, Ohio Constitution, such power may be limited by express statutory provision or by implication flowing from state legislation which pre-empts the field by levying the same or a similar excise tax.”

Williams, J., in course of the opinion in the Haefner case, supra, states categorically there is no express grant of taxing power to municipalities so to do. At pages 60 and 61, he wrote as follows:

“The power to tax has not been expressly conferred upon municipalities and, were there no binding precedents, the question as to the existence of any such power would present some difficulty, as was pointed out lay Judge Robinson in City of Cincinnati v. American Telephone & Telegraph Co., 112 Oh St 493, 147 N. E„ 806.”

Directly bearing upon the question of taxing of a nonresident is the case of Angell v. City of Toledo, et al., 153 Oh St 179. This case involved the question of the power of the City of Toledo to levy an income tax upon a nonresident who worked in and was paid in the City of Toledo. The decision of the court held that Toledo had such power and there was no valid objection, either pre-emption or otherwise, to the assessment and collection of said tax against such a nonresident. The court also approved the. withholding features of the Toledo ordinance.

The court in course of the opinion was careful to limit its holding to the two express questions above set forth. As to the question of nonresidence of the plaintiff, the court points to the benefits accruing to both plaintiff’s employer and plaintiff while at work resulting from services furnished by the City of Toledo. At page 185 of the opinion by Turner, J., it is stated:

“The municipality certainly does afford protection against fire, theft, et cetera, to the place of business of plaintiff’s employer and the operation thereof without which plaintiff’s employer could not as readily run its business and employ help. In other words, the city of Toledo does afford to plaintiff not only a place to work but a place to work protected by the municipal government of Toledo.”

One of the more recent cases, where the pre-emption doctrine is upheld is the Ohio Finance Co. v. City of Toledo, 163 Oh St 81, decided March 23, 1955 by a four to three decision. In that case the syllabus is as follows:

“In view of the provisions of the state tax laws, providing generally for a tax against the owner of 5 per cent on the income yield from his intangibles but then providing for taxation of the shares of a dealer in intangibles at 5 mills of their fair value and further providing that such latter tax should be in lieu of all other taxes on property such as intangibles owned by such a dealer, a municipality may not impose an income tax on such portion of the net profits of such a dealer as are derived from the income yield of intangibles owned by such dealer.”

It was stated that the Ohio Finance Co. was engaged principally in making small direct loans to borrowers, taking in return interest-bearing promissory notes and purchasing from mercantile establishments interest-bearing promissory notes representing the unpaid purchase price of articles sold by such merchants to their customers.

The Common Pleas Court had held in favor of the finance company but was reversed by the Court of Appeals on the ground that the tax imposed by the State law in the shares of stock in the finance company is essentially a property tax and not a direct income tax. This decision of the Court of Appeals was reversed by the Supreme Court of Ohio upon the ground that under the doctrine of pre-emption, levying of a state tax, either on income or value of intangibles and expressly exempting them from other taxes, barred the city from levying its income tax against plaintiff. Zimmerman, J„ in a strong dissenting opinion in the Ohio Finance Company case, supra, starting at page 86, disagreed with the majority of the court and his dissenting opinion is concurred in by Hart and Matthias, JJ. Whether or not there has been a pre-emption is admittedly a question difficult to determine in some cases.

A number of income tax cases discuss allegedly discriminatory features such as granting exemptions to corporations having their principal places of business inside the city from profits earned outside the city, while the income of residents of the same city whose earnings come from outside the city limits are not exempted. See City of Springfield v. Krichbaum, 88 Oh St 329, the second branch of the syllabus reading as follows:

“2. A municipal ordinance levying an income tax is not discriminatory by reason of a provision therein that corporations having a principal place of business within the city are exempt on that portion of their income earned outside the city, whereas individuals residing in the city and earning wages elsewhere are not so exempt.”

The taxpayer in that case attempted to raise the question as to the right of said city to tax his earnings where the employment was outside the city but the court held the question was not properly raised by the pleadings.

The principal questions before us have to do with the power of Columbus to tax income from land and improvements within said city and if it has such power whether it can be made to extend to the income arising from land and improvements thereon inside the city limits where the owner is a nonresident of Columbus.

Many decisions by courts within Ohio and elsewhere have been reviewed. One of the most enlightening discussions of the power to tax incomes from the standpoint of the State and political subdivisions thereof, as limited by the residence or nonresidence of the taxpayer inside the boundaries of the taxing authority and particularly as to income on property inside a municipality owned by a nonresident taxpayer,.may be found in Cooley’s “The Law of Taxation,” Volume I (Fourth Edition). At page 218 thereof, it is stated:

“The political jurisdiction of a state does not extend beyond its territorial limits, and therefore it cannot lawfully impose taxes upon persons, natural or artificial, or property, residing or situated beyond such limits. A state cannot tax where it has jurisdiction over neither the owner nor the property. In such a case the state affords no protection, and there is nothing for which taxation can be equivalent. But it is not necessary that both person and property should be within the jurisdiction in order to be taxable: It is sufficient if either is, subject to the rules as to taxable situs laid down in another chapter. If tangible property is within the jurisdiction, so as to acquire a taxable situs therein, the residence of the owner is immaterial. For instance, all real estate of a nonresident is taxable where it lies, though the tax will be a lien upon the land only, and cannot be made a personal charge upon the nonresident owner. So in case of intangible personal property which is taxable where the owner resides, the location of the written evidences of such property outside the state is no bar to taxing such property. * * (Emphasis added.)

There is admittedly a dearth of authority in Ohio upon the precise question now before this court. It is our opinion that based upon fairness, reasonableness and logic, there is no reason why the income from property owned by a nonresident located within the city should not be taxed exactly the same as it would be if the title were held by a resident of Columbus.

As stated by Cooley (see extract above):

“* * * it is not necessary that both person and property should be within the jurisdiction in order to be taxable; it is sufficient if either is, subject to the rules as to taxable situs * *

The benefit of local government to a piece of real property, whether improved or unimproved, which is located within a municipality, is real and substantial. It is neither diminished nor enhanced by the fact that the owner resides outside the city.

An acre of ground located near the center of a great metropolis usually is worth many times that of an acre of ground located in a sparsely populated or inaccessible area. The difference is the population, trade, commerce restrictions, protection and the many other things which make up a municipality, some benefits and some burdens. The exemption of an individual or class within a taxing district from taxation has the effect of increasing the tax burden of those not exempt.

For the reasons above set forth this court agrees with the conclusions reached by Judge Gessaman in the court below, and coming to answer the prayer of plaintiff for a declaratory judgment upon five specific questions set forth in the amended petition, is of the opinion as follows:

(a) That rents received by plaintiff, a nonresident, from real estate located within the City of Columbus are subject to the Columbus' Income Tax;

(b) That said rents are not exempt from said tax by reason of pre-emption by the State of Ohio and the right to tax plaintiff;

(c) That said rents are not expressly nor otherwise exempt from said tax by the statutes of the State of Ohio;

(d) That said rents are not exempt from said tax by virtue of the Constitution of the State of Ohio, and

(e) That said rents are not exempted from said tax by implication of the statutes and laws of the State of Ohio.

Further, that the prayer of the plaintiff for a permanent injunction against the enforcement of the Columbus Income Tax be and the same hereby is denied.

PETREE; PJ, MILLER, J, concur.


author: By BARTLETT. J.

text:
    CIPRIANO et, d. b. a. G. & M. Tavern, Appellant, v. BOARD OF LIQUOR CONTROL, etc., Appellee.
    Common Pleas Court, Franklin County.
    No. 195160.
    Decided November 13, 1956.
    Charles T. Kaps, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT. J.

THE ORDER OF THE BOARD OF LIQUOR CONTROL (REVOKING THE D-l and D-2 PERMIT OF APPELLANT), IS REVERSED, AND THIS CAUSE REMANDED FOR FURTHER HEARING BY SAID BOARD.

This is an appeal from the order of the Board of Liquor Control under §119.12 R. C., revoking appellants D-l and D-2 permits, based on the alleged possession of whiskey on the permit premises without a proper permit therefor.

The court does not consider a mere affidavit as to the chemical analysis of the specimen submitted, reliable proof in support of the order of the Board, and especially since the affiant is only identified as “Howard C. Prisk, Chief Chemist,” with no proof as to his qualifications as such, also the raid was on February 17, 1956 and the affidavit snows the specimen was received March 19, 1956, but the officer failed to testify as to what became of the specimen after the raid.

Consequently, this court fails to find the order of the Board is supported by reliable, probative and substantial evidence; and, therefore, reverses said order, and remands said cause to said Board for further hearing.


text:
    STATE, ex rel., DONNELLY, Plaintiff-Relator, v. GREEN et, Defendants-Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24479.
    Decided March 19, 1958.
    John V. Donnelly, Gordon T. Canning, Jr., for plaintiff-relator.
    John T. Corrigan, County Pros., Saul S. Danaceau, Asst. County Pros., for defendants-respondents.
   OPINION

By SKEEL, PJ.

This is an original action in this court seeking a writ of mandamus directing the Board of Elections of Cuyahoga County not to print the name of William H. Corrigan on the Democratic Primary ballot for the office of State Senator, four year term, for the Primary Election to be held May 6, 1958.

The petition alleges that at 2:00 P. M. on February 5, 1958, William H. Corrigan filed a declaration of candidacy as a candidate for the two year term commencing January 1, 1959, for the office of State Senator from Cuyahoga County on the Democratic ticket. On the same day at about 4:00 P. M., William H. Corrigan filed a like petition for a four year term for the office of State Senator, beginning January 1, 1959; that the last day for filing declarations as candidates for the Primary Election to be held May 6, 1958, as provided by law, was by 4:00 P. M. of February 5, 1958. That the declaration filed at 4:00 P. M. on February 5, 1958, was invalid as not in accord with the statutes of Ohio; that the two year term and the four year term of the office of State Senator, both commencing January 1, 1959, are incompatible and cannot be held by one person.

The petition then requests that the respondents be directed to reject the declaration for the four year term (above more fully described) filed by the candidate William H. Corrigan, and to cause ms name to be stricken from the list of Democratic Party candidates certified to the Secretary of State as candidates for the four year term of State Senator to be presented at the Primary Election to be held May 6, 1958

The answer admits that a candidate, William H. Corrigan, filed the two declarations of candidacy as alleged in the relator’s petition and paid the fees therefor which declarations were received and filed by the Election Board. It is also alleged that on the 80th day before May 6, 1958, the candidate, in writing, withdrew as a candidate for the two year term whereupon the respondent Board of Elections for Cuyahoga County did rule that the declaration of candidacy and petition papers of the said William H. Corrigan for the four year term were valid. It is further alleged that no protest was filed challenging the declaration of candidacy of William H. Corrigan seeking nomination on the Democratic ticket for the four year term of State Senator at the Primary Election to be held May 6, 1958.

It is further alleged that since the declaration as a candidate for the two year term of State Senator had been withdrawn as provided by the express provisions of the Statutes of Ohio, whereby only the declaration as candidate and petition papers for the four year term remained, and the Board of Elections having found that the declaration and petition papers for such term were sufficient, there was then no incompatibility of offices sought by the candidate.

The reply of the relator denies all of the allegations of the answer except those consistent with the allegations of his petition. The reply further alleges that no protest was filed against the second declaration filed by William H. Corrigan seeking nomination for the four year term because of the Board’s announced ruling that William H. Corrigan was disqualified. That on February 17, 1958, the same day the Board stated it had changed its opinion on the eligibility of William H. Corrigan for the four year term, a written protest was filed.

In open court (although the fact of the written withdrawal of the declaration for the two year term is denied by the reply) the relator admitted the fact that within the period provided by statute after the last day and hour for filing declarations of candidacy for the May 6, 1958 Primary Election, a written withdrawal, properly executed by the candidate William H. Corrigan was filed withdrawing his declaration of candidacy for the two year term of State Senator.

There is no provision of the statute preventing a candidate from filing more than one declaration of candidacy for public offices to be filled by popular vote as provided by law. In fact, the theory of open elections, uncontrolled by party convention, is to invite all who desire to hold public office to present themselves to the electorate. In a Primary Election, the members of each party select their candidates by popular vote of declared party members.

The Election Board is the supervisor of elections under the direction of the Secretary of State. Sec. 3501.11 (K) R. C., defines the duties of the Board with regard to determining the sufficiency and validity of petitions and nominating papers as follows:

“Sec. 3501.11 R. C. — Duties of Board.
“Each board of elections shall exercise by a majority vote all powers granted to such board by Title XXXV R. C., shall perform all duties imposed by law, and shall:
“(K) Review, examine, and certify the sufficiency and validity of petitions and nominating petitions and nominating papers; * * *”

The issues in this case are first whether or not the Board of Elections of Cuyahoga County abused its discretion or acted in bad faith in holding that until the legal period for withdrawal of declarations of candidacy filed by persons seeking nomination as a party candidate has passed, it was not required to pass on the question of whether or not the filing of a second declaration of candidacy by a candidate who had already filed a declaration seeking nomination to a public office (such offices being admittedly incompatible), was in violation of law, and second, whether or not the Board of Elections was in error in determining that after the first declaration filed was withdrawn as provided by law within ten days after the filing deadline, the second declaration that remained, was valid, requiring the Board to certify such candidate for the office declared in his declaration.

The finality of the act of filing a declaration of candidacy so far as the obligation of a candidate is concerned has been extended by §3513.38 R. C., which provides that at the discretion of the candidate, he may withdraw a declaration if he acts within ten days from the final filing-date in the manner therein prescribed.

The Election Board, as the supervisor of the election, unquestionably gave fair consideration to the procedural question here presented. Its decision at least has the virtue of sustaining, rather than denying, the inalienable right of a citizen otherwise eligible in every respect to present himself as a candidate for public office to the electorate of this county.

In the case of Pierce v. Brushart, 153 Oh St 372, 92 N. E. 2d 4, the Supreme Court of Ohio had for consideration the question of the discretion vested in the Board of Elections by law in determining the validity of a declaration and petition papers of a candidate seeking public office. The candidate had used two different names intermittently for many years occasioned by the fact that his mother had been remarried when he was seven years of age. In filing his declaration of candidacy in this instance, he used the name “Phillips” which was the name of his mother’s second husband and by which name he was well known in the community. No protest was filed by the relator within ten days of the final filing date for declarations of candidacy for the Primary Election of that year. The Election Board determined the declaration of candidacy and petition papers of this candidate to be valid. In the first paragraph of the syllabus, the Court said:

“In the absence of fraud or bad faith, the courts may not override a finding of a board of elections, having jurisdiction of the subject matter, to the effect that a declaration of candidacy and petition of a candidate for nomination to a public office is valid, where no protest against such declaration and petition was filed with such board within the time required by statute.”

In the case now being considered, no protest was filed within the time provided by §3513.05 R. C., effective 8/20/57. This section, in part, provides:

“Protests against the candidacy of any person filing a declaration of candidacy for party nomination or for election to an office or position, as provided in this section, may be filed by any qualified elector who is a member of the same political party as the candidate, or by the controlling committee of such party. Such protest must be in writing, and must be filed not later than four p. m. of the eightieth day before the day of the primary election. Such protest shall be filed with the election officials with whom the declaration of candidacy and petition was filed. Upon the filing of such protest the election officials with whom it is filed shall promptly fix the time for hearing it, and shall forthwith mail notice of the filing of such protest and the time fixed for hearing it to the person whose candidacy is so protested. They shall also forthwith mail notice of the time fixed for such hearing to the person who filed the protest. At the time fixed such election officials shall hear the protest and determine the validity or invalidity of the declaration of candidacy and petition. If they find that such candidate is not an elector of the state, district, county, or political subdivision in which he seeks a party nomination or election to an office or position, or has not fully complied with §§3513.01 to 3513.32, inclusive, R. C., his declaration of candidacy and petition shall be determined to be invalid and shall be rejected, otherwise it shall be determined to be valid. Such determination shall be final.”

In the Brushart case, supra, the Supreme Court said on page 379:

“In the opinion of the court, the filing of the protest in the instant case after the time designated in the statute was a nullity and the board was warranted in disregarding it. Since there was no protest seasonably filed with the board of elections and since the board found the candidate’s declaration and petition valid, were the courts warranted in enjoining the board from permitting the name of Hubert Phillips to appear on the ballot? Secs. 5904 to 5007, inclusive, GC, in force prior to 1912, were analogous to present §4785-92 GC, and contained the provision that the findings of the Secretary of State, State Supervisor of Elections and deputy state supervisors as to the sufficiency of certificates of nomination papers were final.”
“In the case of State, ex rel. Buel, v. Joyce, et al., Deputy State Supervisors, 87 Oh St 126, 100 N. E., 325, this court said:
“ ‘The sections of the election laws which are now numbered §§5005, 5006, 5007 GC, have been under consideration by this court several times; and it has been uniformly held that the decision of the Secretary of State, when acting in the capacity of State Supervisor of Elections, upon written objections to certificates of nomination and nomination papers or upon other questions arising in the course of nomination of candidates, is final. Chapman v. Miller, 52 Oh St 166; Randall v. State, ex rel., 64 Oh St 57; State, ex rel., v. Stewart, 71 Oh St 55. The statute so declares; and as at present advised, this court is of the opinion that those matters are not per se the subject of judicial cognizance, but are matters for political regulation and well within the legislative power.’”

Sec. 4785-92 GC, therein cited, became §3513.29 R. C., which was repealed effective 1/1/54 but the provisions for protest were brought into §3513.05 R. C., by the same amendment changing the requirement of presenting protests to the Secretary of State to require that protests be filed wih the election official with whom the declaraion of candidacy and peition were filed. Sec. 3513.05 R. C., was again amended effective 8/20/57 but the substance of this paragraph of the section was not changed.

We must conclude, therefore, that the failure of the relator to file a protest, as required by §3513.05 R. C.. and for the further reason that the action of the Election Board came clearly within its jurisdiction, the question being for its determination, there being no showing of fraud or bad faith or abuse of discretion, the matters here presented are not per se the subject of judicial cognizance and the relator’s petition must be dismissed.

Writ denied.

HURD and KOVACHY, JJ, concur.


author: By WALCUTT, J.

text:
    SCHAAF, Estate of, In re.
    Probate Court, Franklin County.
    No. 167009.
    Decided August 7, 1956.
    Rodney J. Baldwin, for the Executor.
    Earl N. Merwin, Asst. Atty. Geni., for the Tax Commission.
   OPINION

By WALCUTT, J.

May Schaaf died testate in Marion Township, Franklin County, Ohio, on July 6, 1955.

In the inventory and appraisal of her estate there is listed 250.84 acres of land in Marion Township, Franklin County, Ohio. In the application for transfer of real estate and in the application to determine inheritance tax the interest of May Schaaf is shown to be an undivided one-half.

In the application to determine inheritance tax there is set up, among the debts, a note signed by May Schaaf, the decedent, and Daniel J. Schaaf, her husband, in the amount of $60,000.00, secured by mortgage on the real estate hereinbefore referred to.

In the determination of the inheritance tax the amount of the indebtedness on this note and mortgage was reduced by one-half, apparently on the ground that the husband and surviving spouse was liable for the payment of one-half. The full claim of $60,000.00 had been allowed as a proper claim against the estate by the executor.

Exceptions to the determination of the inheritance tax were filed by the executor on the ground that the estate was entitled to a deduction of the full amount of the indebtedness of $60,000.00.

After listening to the statements and arguments of counsel, the Court believes that the executor is entitled to the deduction of the full amount, $60,000.00, from the gross estate.

At the same time the estate has a claim against the surviving spouse, Daniel J. Schaaf, for contribution of one-half of the amount due if the estate were compelled to bear the full burden of the debt, and that claim constituting an asset of the estate, should be listed as $30,000.00.

The exceptions are sustained, after the addition to the assets of the estate of the amount of the claim against the surviving spouse, who is a co-maker of the note and who joined in the mortgage securing the obligation.


author: By MARSHALL, J.

text:
    CIVILIAN DEFENSE, INC., Plaintiff, v. EGAN-RYAN UNDERTAKING COMPANY et, Defendants.
    Common Pleas Court, Franklin County.
    No. 193588.
    Decided July 19, 1957.
    Marion A. Ross, for plaintiff.
    J. Maxwell Maher, for defendants.
   OPINION

By MARSHALL, J.

On December 7, 1956, defendant, Egan-Ryan, filed its motion to strike from the files plaintiff’s Fourth Amended Petition and also the Amended Answer and Cross Petition filed by defendant, Ross, on November 28, 1956. At the same time said defendant, Egan-Ryan, alternately demurred to each cause of action of said pleadings, and also asked for final judgment of dismissal of this action.

This Court rendered its decision on April 1, 1957, sustaining the demurrer of defendant, Egan-Ryan, as to the 2nd, 3rd and 4th causes of action, but overruling its demurrer as the 1st cause of action of the Fourth Amended Petition and made similar rulings as to the demurrer directed to the four causes of action of the Cross Petition filed by defendant, Ross. The Court overruled other motions of defendant, EganRyan.

Thereafter, before said decision was journalized, defendant, EganRyan, made a motion for reconsideration of said decision and an oral hearing was had therein on July 9, 1957, at 3 P. M. The Court is willing to and does hereby sustain said motion for reconsideration. We will, therefore, fully reconsider the motions and demurrers filed by defendant, Egan-Ryan, on December 7, 1956.

A comparison of the four causes of action in the Fourth Amended Petition and those in the Third Amended Petition (to each of which a demurrer was sustained by Judge Draper), will show a marked resemblance. Likewise, a comparison of the four causes of action of the amended Cross Petition of defendant, Ross, filed November 28, 1956, and those in the amended Cross Petition of defendant, Ross, filed October 10, 1956 (to each of which a demurrer was sustained by Judge Draper), will show a marked resemblance. Also, the Fourth Amended Petition is substantially identical to the Amended Cross Petition of defendant, Ross, filed November 28, 1956. Nevertheless, we believe we should fully reconsider and rule on all motions and demurrers filed by defendant, EganRyan, on December 7, 1956.

Plaintiff claims it has a right of way or easement across land that Delongs to defendant, Egan-Ryan. Efforts have been made by defendant, Egan-Ryan, to require plaintiff to identify the kind of right of way or easement it claims, and state how it secured the same. Plaintiff has resisted such attempt, declining to give a specific name to its claim, but instead has made a . recital of the history of the development of the right and has asked the Court to name it and see that it is protected as against defendant, Egan-Ryan.

We will attempt to summarize the history of plaintiff’s claim, as set forth in its first cause of action. Incidentally, plaintiff’s claim is made as a lessee of defendants, Rqss, who claim as owners of the premises facing Capital Street. Both claims arise out of the same facts and for the sake of simplicity, we will use the expression “plaintiff” to indicate the one who claims the right of way or easement over the land of defendant, Egan-Ryan. Also for the sake of simplicity, we will designate the lot facing Capital Street as Parcel 1. (containing thereon the Ross building) and will designate the lot facing Oak Street as Parcel 2, (containing the Ryan house and the easement in question, extending from the south entrance of the Ross building southwardly over a cement walk to Oak Street).

Nellie M. Ross acquired Parcel 2 on March 26, 1904. At that tune there was a walk east of the house which was used by the occupants of Parcel 1, in passing between Oak Street and the building located on Parcel 1.

On October 23, 1926, the same Nellie M. Ross acquired also Parcel 1. She remained the common owner of both parcels from October 23, 1926, until March 12, 1937, when the Columbian Building and Loan Association, through foreclosure, took title to Parcel 2.

Parcel 2 changed hands several times after March 12, 1937, the last conveyance being to defendant, Egan-Ryan, on March 31, 1954.

For the period prior to 1904, to the time defendant, Egan-Ryan acquired Parcel 2 in 1954, the cement walk east of the residence located on Parcel 2, and connecting Oak Street on the south to the building located on Parcel 1, on the north, was freely used by the occupants and invitees of the owner of Parcel 1. In other words, during the entire period from 1904 to 1954, the walk extending from Oak Street to the building on Parcel 1, and crossing Parcel 2, was recognized as one of the means of ingress and egress from the building on Parcel 1 to Oak Street. When defendants, Egan-Ryan, acquired Parcel 2 on March 31, 1954, they were aware of the presence of the walk and of its long history of use by the public in travelling between Oak Street and the building located on Parcel 1.

On or about August 7, 1955, the defendant, Egan-Ryan, as the owners of Parcel 2, attempted to close off the said walk or right of way and deny the same for use by the defendant, Ross, and the public, in travel-ling between Oak Street and the building located on Parcel 1.

On October 4, 1955, an order was made in this case, at the request of plaintiff, requiring all obstructions to be removed from the way and easement described in the petition until further order of this court.

The second cause of action, by the process of incorporation, recites substantially the same set of facts as summarized above for the first cause of action. It then characterizes the right of way as one of convenience and necessity to the occupants of Parcel 1.

The third cause of action also incorporates by reference, and recites the earlier history of the subdivision and the existence at such time of the right of way in question. Plaintiff suggests that when the Columbian Building and Loan Association took Parcel 2 by foreclosure, that there was no disturbance of said right of way and by implication it was continued for the benefit of Parcel 1.

The fourth cause of action incorporates by reference the basic facts and history of the claimed right of way and states that defendant, Egan-Ryan, bought Parcel 2 with full knowledge of the long-existing x’ight of way over that parcel in favor of the owners and occupants of Parcel 1, and took title to Parcel 2 subject to such right.

Frankly, we do not believe plaintiff has stated four separate causes of action. They are all based essentially on the same set of - facts, repeated by reference. Considering all facts alleged, we must determine whether or not plaintiff has stated one or more causes of action, and the same applies to the defendant, Ross.

We first hold, as we have before, that there was no easement or right of way over Parcel 2 in favor of Parcel 1, between October 23, 1926, and March 12, .1937. During this time Nellie M. Ross was the owner in fee of both parcels and there was no easement or right of way of record. Any easement by custom or adverse use which may have been in existence prior to October 23, 1926, was extinguished by merger of title. Between 1926 and 1937 said Nellie M. Ross could have continued the use of the walk way where it had been theretofore maintained, or changed its location, or eliminated it entirely, without formal action or affirmative act of any kind.

No easement or right of way which may have existed prior to 1926 can benefit plaintiff in any way in this action. After merger of title, any prior easement ceases and does not revive on subsequent severance of ownership of the two estates. (See 18 O. Jur. 2d, 619, Easements.)

What easement could have arisen since March 12, 1937? Let’s see what plaintiff alleges as the basis of its claimed easement or right of way.

The traditional or customary use which existed prior to 1904, and persisted through the ownership of Nellie M. Ross, between 1926 and 1937, cannot give rise to any rights in favor of plaintiff as already herein stated.

No easement by express grant has been claimed; When Parcel 2 was taken by foreclosure on March 12, 1937, no mention was made of an easement in favor of Parcel 1, so far as is known or claimed, in the Sheriff’s deed to the purchaser.

Admitting that the various owners of Parcel 1 acknowledged the existence of the walk on their property, and let it be freely used by occupants of the building on Parcel 1, and the public generally, in going to and from Oak Street, between March 12, 1937, and August 7, 1955, when the defendant, Egan-Ryan, first erected the barricade, no easement was created by prescription. Such period of usage was short of the required twenty-one years.

The second cause of action suggests an easement based on convenience or necessity. Certainly there is inferred a convenience to occupants of Parcel 1 to pass freely between their building and Oak Street, as well as members of the public, including invitees. However, mere convenience cannot establish a legal easement or right of way, short of the 21 year period required to obtain a prescriptive right.

As to the necessity for such easement, or right of way, none is claimed. Each parcel actually has access to a duly dedicated public street. No easement in the form of a way of necessity will be implied where there is available another way of ingress and egress to and from the land involved, even though the alternate way is less convenient. (See Trattar v. Rausch, 154 Oh St 286.)

When Parcel 2 was taken on foreclosure on March 12, 1937, leaving the title to Parcel 1 in the name of Nellie M. Ross, there was no reservation of easement by implication in favor of Nellie M. Ross. Such an easement must be based on strict necessity, which in fact did not exist in this case. The fact that Nellie M. Ross would be inconvenienced by not being able to continue to use the walk to get to and from Oak Street, as she had enjoyed for many years before, is not determinative of the issue. Furthermore, the knowledge by the grantee of Parcel 2 that such walk had long been used by the occupants of Parcel 1 would not preserve or create any such easement by implication. (See Meredith v. Frank, 56 Oh St 479.)

The defendant, Egan-Ryan, bought Parcel 2 on March 31, 1954, and knew of the existence of the walk and that it had been used for a long time as a means of travel between the building on Parcel l and Oak Street. We do not believe any such knowledge or any act done by defendant, Egan-Ryan, as alleged by the petition, would estop it from exercising its full rights of ownership and possession of Parcel 2. (See Waibel v. Schleppi, 77 Oh Ap 305.)

We therefore believe that no easement or right of way arose in favor of Parcel 1 and over Parcel 2 since March 12, 1937.

Finding that plaintiff, and defendant, Ross, have not set forth a cause of action for an easement or right of way over Parcel 2 in favor of Parcel 1, in any of the four causes of action set forth in the Fourth Amended Petition, or in any of the four causes of action of the Amended Answer and Cross Petition filed by defendant, Ross, on November 28, 1956, we sustain the demurrer of defendant, Egan-Ryan, as to each of same.

Since another branch of this court sustained similar demurrers to all four of the causes of action contained in plaintiff’s Third Amended Petition, and to all four of the causes of action of the amended Answer and Cross Petition filed by defendants, Ross, on October 10, 1956, we believe said Fourth Amended Petition and said amended Cross Petition, filed November 28, 1956, should now be dismissed and the same are accordingly dismissed.

The temporary restraining order made by this court on October 4, 1955 is dissolved.


author: By THE COURT.

text:
    CIVILIAN DEFENSE, INC., Plaintiff-Appellant, v. ROSS et, Defendants-Appellants, EGAN-RYAN UNDERTAKING COMPANY et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5801.
    Decided March 4, 1958.

      Marion A. Ross, Columbus, for plaintiff-appellant and defendants-appellants.
    J. Maxwell Maher, Joseph E. Ryan, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court sustaining a demurrer to each of the causes of action set forth in the 4th amended petition and to each cause of action in the 4th amended cross-petition' of Charles R. Ross and Marion A. Ross and denying further right to amend for the reason that the defects in said pleadings cannot be remedied.

The action is one seeking to enjoin the defendants, Ryan, et al., from interfering with the petitioner’s and cross-petitioners’ use of a way of ingress and egress to their property over that of the Ryans, defendants Such an easement “may be acquired only by grant, express or implied, or by prescription.” Trattar v. Rausch, 154 Oh St 286. The pleadings under consideration do not allege that a right to said easement exists either by prescription or express grant. It is urged, however, that they show a grant by implication.

“To be the basis of an implied easement upon the severance of the ownership of an estate a use must be continuous, apparent, permanent and necessary.” Trattar v. Rausch, supra, Par. 5 of the syllabus.

It appears in the pleadings that one of the above necessary elements is lacking for the alleged easement is not a necessity, the dominant estate having means of ingress and egress by way of Capital Alley. In paragraph 8 of the syllabus of the case cited, supra, the court says:

“An easement in the form of a way of necessity will not be implied, where there is available another way of ingress and egress to and from the land involved, even though such other way is less convenient and would necessitate the expenditure of an appreciable amount of labor and money to render it serviceable.”

See also, Meredith v. Frank, et al., 56 Oh St 479; Waibel v. Schleppi, 77 Oh Ap 305. It has been suggested that the Ryans, defendants, are estopped from denying the owners of the dominant estate the use of the walk. This, however, cannot be substantiated for the pleadings do not allege that the Ryan defendants misled the petitioner and cross-petitioner b> their conduct. Estoppel is something more than mere knowledge, acquiescence, permission or license. It is granted upon the legal premise that one shall not be permitted to deny that which he has induced another to assume to his prejudice or disadvantage. The Ryans have made no conveyances, grants, or agreements or by any conduct misled the other parties into a change of position by which they could be estopped. We note on page 2 of counsel for the appellant’s brief, that they say they will “devote much of this brief to the various types of easements, with the thought in mind that no lawyer can say what kind of an easement the plaintiff has, * * *.” We agree to a large extent with this statement, for it is our conclusion that no easement exists.

We have examined the well-considered opinion of Judge Marshall and find that it correctly expresses our views on the legal questions presented.

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

PETREE, PJ, BRYANT and MILLER, JJ, concur.


text:
    EMPIRE STATE ALUMINUM CORP., Plaintiff-Appellee, v. EMPIRE ALUMINUM CO., Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3931.
    Decided May 10, 1957.
    Falls, Hazel & Kerr, Youngstown, for plaintiff-appellee.
    Hyman L. Berman, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

In an action by the Empire State Aluminum Corp. against the Empire Aluminum Co. for a perpetual restraining order the court of common pleas permanently enjoined Empire Aluminum Co. “from directly or indirectly using or referring to the name Empire Aluminum alone, or in combination with other words, in connection with the advertising or operation of the business of manufacturing, fabricating, processing, purchasing, selling or distributing aluminum, or products incorporating aluminum therein.”

The case was submitted “to the court of common pleas on the petition, the amended answer, the reply,” and the evidence. The trial judge overruled defendant’s motion for a new trial, and on March 5, 1957, entered judgment on his finding for plaintiff, and it is from that judgment that defendant, Empire Aluminum Co. appeals to this court on questions of law and fact.

The case was submitted to this court on the pleadings filed, the evidence submitted, and the record made in the court of common pleas.

Plaintiff, a corporation, incorporated in New York in 1951, is and since incorporation has been engaged throughout the United States in buying, selling, and distributing metals and metal products, especially aluminum, in all forms, such as sheets, tubing', extrusions, angles, rods, all of which products it has advertised extensively at great cost to Empire State Aluminum Corp., which name it has featured prominently in such advertisements and mailing lists of upward of nine thousand names.

There is evidence that as the result of such activities the name Empire State Aluminum Corp., Empire State and Empire, are well and favorably known to the aluminum trade.

Also there is evidence that defendant, Empire Aluminum Co., a corporation incorporated in Ohio in January 1956, has since that time, over plaintiff’s protest, advertised its name and products in national trade journals and Youngstown telephone directories to the confusion of the buying public, and sells its products throughout the United States; and that previous to January 1956 Empire Aluminum Co. operated under the name Trimedge, Inc.

There is evidence that by its diligence plaintiff has established the name “Empire” as part of its corporate name, has an enviable reputation and good will within the aluminum industry by reason of that name in combination with the word “aluminum,” and that the word “aluminum” whenever used in industry is associated with the name and refers to Empire State Aluminum Corp. of New York City, the plaintiff herein.

It is claimed that this type of unfair trade practice and unfair competition of and by the defendant constitutes a fraud upon the public, and is one in which a court generally will enjoin since the damages resulting to plaintiff from such acts of defendant is so difficult, if not impossible, to ascertain that damages at law would be inadequate.

See 39 O. Jur., Pages 393-412, Section 51, et seq.; and 52 American Jurisprudence, Pages 599-611, Sections 127 et seq.

In the case of The Henry Furnace Co. v. Kappelman, et al, 91 Oh Ap 451, the first and second paragraphs of the syllabus read:—

“Unfair competition is not confined to cases of actual market competition between similar products but extends to cases in which plaintiff, by virtue of prior investment or appropriation, is entitled to be protected from confusion with the defendant and from consequent loss of money. or good will. If the defendant’s conduct is likely to cause such confusion that the public believes, or is likely to believe, that the goods of defendant are the goods of plaintiff, or that plaintiff is in some way connected with, or is sponsor of, defendant, a sufficient case may be made for equitable relief, even though there is no direct competition between the parties. That plaintiff is a manufacturer or wholesaler and sells only to dealers and distributors, while the defendant sells to the public or ultimate consumers, does not affect this principle.
“Injunctive relief against the use of another’s. trade name is not precluded by the fact that the defendant corporation may have received from the state a charter authorizing it to use the name as part of its corporate name.”

In The Cleveland Opera Co. v. The Cleveland Civic Opera Assn., Inc., 22 Oh Ap 400, the third, fourth and fifth paragraphs of the syllabus read:—

“3. Words, geographical or descriptive are not barred in a trade-name, unless in connection with other words they are precisely or so substantially similar that deception would arise.
“4. Defendant’s name, the Cleveland Civic Opera Association, Incorporated, held to be so substantially similar to plaintiff’s name of the Cleveland Opera Company that use thereof would amount to unfair competition; word ‘Civic’ meaning city, citizen, or citizenship, adding nothing to geographical word, Cleveland, and ‘Association’ being essentially a company.
“5. Equity, without other evidence, will enjoin use by a competitor of name which is so substantially similar that it causes confusion and thus unfair competition.”

Upon the evidence in this case and the law applicable thereto plaintiff, Empire State Aluminum Corp., is entitled to a permanent injunction restraining defendant, Empire Aluminum Co. from directly or indirectly using or referring to the name “Empire Aluminum” alone, or in combination with other words, in connection with the advertising or operation of the business of manufacturing, fabricating, processing, purchasing, selling or distributing aluminum, or products incorporating aluminum therein, as .found by the trial judge.

Finding and decree for plaintiff, Empire State Aluminum Corp., the same as in the court of common pleas as regards injunctive relief.

GRIFFITH, J, concur.

NICHOLS, PJ, dissents.