author: By McNAMEE, District Judge.

text:
    LYDLE, Plaintiff, v. SCOTT et, Defendants. QUAKER STATE OIL REFINING CORPORATION, Defendant in Attachment.
    United States District Court, N. D. Ohio, E. D.
    Civ. A. No. 33569.
    Decided December 23, 1957.

      Dan B. Cull, Cleveland, for plaintiff.
    Frank C. Heath, Thomas P. Mulligan (of Jones, Day, Cockley & Reavis), Cleveland, for principal defendants.
   OPINION

By McNAMEE, District Judge.

The issues here presented arise upon the motion of defendants “to dissolve an attachment and to dismiss the action for lack of jurisdiction over the person and property of the defendants.”

The facts essential to an understanding of the decision reached herein are:

This action was commenced in the Common Pleas Court of Summit County, Ohio, by the filing of a petition on April 13, 1957. All the principal defendants are nonresidents of the State of Ohio, and service by publication was had pursuant to the applicable Ohio statutes. After the commencement of the action, plaintiff filed an affidavit in attachment asseverating that the defendants are justly and truly indebted to plaintiff in the sum of $72,283.59; that said claim is a debt or demand arising upon contract, and that the Quaker State Oil Refining Corporation defendant in attachment, is indebted to the principal defendants and has in its possession money, credits, etc. belonging to said defendants. An order in attachment was served upon the branch manager of the defendant in attachment in Marietta, Ohio, on April 4, 1957. Thereafter the case was removed to this court on the ground of diversity of citizenship.

The motion to dissolve the attachment is based upon two grounds:

“1. That all the defendants are nonresidents of Ohio and have not been served personally with process. 2. That the order of attachment is ineffective because (a) This is not the type of action in which attachment is proper, and (b) The interest, if any of the defendants in said property is contingent and uncertain.”

The nature of the action is evidenced by the allegations of the Complaint, from which it appears that on May 25, 1956, the plaintiff and defendants entered into a contract by the terms of which plaintiff agreed to pay $372,000 for the purchase of certain oil leases in Pennsylvania and New York. At the time of executing the contract plaintiff paid $10,000, which sum was to be held in escrow pending the closing of the transaction. The contract provided that at the time of closing defendants were to deliver to plaintiff good and sufficient instruments of.transfer conveying merchantable title free and clear of all liens and incumbrances. It was further agreed that plaintiff should take possession of and operate the properties on June 1, 1956, pending the closing of the transaction which, upon its consummation, would become effective retroactively as of June 1, 1956. The parties also agreed that the defendants were to “embargo” the oil runs from June 1, 1956. Pursuant thereto the defendants issued an order to the Quaker State Oil Refining Corporation to hold the proceeds of the oil runs until further order.

On June 1, 1956, plaintiff took possession of and operated the properties until January 18, 1957, at which time he notified defendants of his election to rescind the purchase agreement on the ground of fraud, and on January 21, 1957, plaintiff turned over the possession of the properties to the defendants. It is apparent that at the times last mentioned the transactions had not been closed. Plaintiff alleges further that he elected to rescind the agreement upon the ground that he was induced to purchase the property by the false and fraudulent representations of defendants’ sales agent, which are specifically stated in the Amended Complaint. Plaintiff avers further that in addition to the down payment of $10,000, he made disbursements and incurred liabilities in the operation and improvement of the properties amounting to $62,283.59, all to his total damage in the sum of $72,283.59, and that defendants refused to comply with plaintiff’s demand for payment thereof. In his Amended Complaint plaintiff prays for a judgment against the defendants in the above amount or such part thereof as may be satisfied out of the property and funds in the hands of the defendant in attachment; that the agreement between the plaintiff and defendants be declared null and void by reason of plaintiff’s election to rescind, and for such other and further relief as may be just and equitable.

At the time he elected to rescind the contract, plaintiff also sent the following notice to counsel for defendants: “I hereby further notify you and all your associates that you will be held accountable for all funds now in the oil escrow and going in, plus funds presently in the down payment escrow.”

Plaintiff objects to the consideration of the copy of the contract of May 25, 1956, which is attached to defendants’ brief and to the copy of the notice sent by plaintiff to defendants on January 18, 1957, which is also attached to defendants’ brief and which is set out in full above. It is plaintiff’s position that under Ohio law the court cannot consider such exhibits in ruling upon a motion to dissolve an attachment. For the purposes of this proceeding, however, it is immaterial whether such exhibits are considered. The inclusion of such exhibits as a part of the record made on this motion leads to the same ruling that would be made if the exhibits were excluded.

Defendants submit no argument in support of the first ground of their motion. Non-residence constitutes no basis for dissolving an attachment. On the contrary, §2715.01 R. C., specifies non-residence as one of the grounds of attachment in cases where the debt arises upon contract.

In support of their claim that this is not the type of action in which attachment is proper, defendants contend that plaintiff seeks a judicial determination that the contract between the parties is void and that inasmuch as such a declaration must rest upon jurisdiction of the persons of the defendants, which is lacking here, the court is without power to grant such relief.

The defendants are on sound ground in arguing that a court is without jurisdiction to rescind a contract where all parties whose rights would be affected thereby have not been personally served or voluntarily entered their appearances in the action. However, defendants’ contention that plaintiff’s right to a money judgment is dependent upon and incidental to a judicial decree of rescission stands upon a different and less secure foundation.

Where a contract has been rescinded by the act of one of the parties on the ground of fraud and an action brought for the recovery of money paid or expended thereunder, it is not an essential prerequisite of the plaintiff’s right to recover a money judgment that his rescission of the contract be confirmed by judicial decree. This is true even though in such case, in addition to a prayer for a money judgment, plaintiff asks for a rescission of the contract or a judicial declaration that the rescinded contract is void. In Taylor v. Brown, 92 Oh St 287, 110 N. E., 739, 743, the plaintiffs, who had purchased undivided interests in land from the defendant, rescinded the contract on the ground of fraud, tendered back the conveyances received by them and demanded a return of the money paid. Thereafter, in an action to recover money, the plaintiffs also sought an accounting, a rescission of the contract, and other equitable relief. The Supreme Court of Ohio held that the action was one at law, triable to a jury, and declared that the prayer for equitable relief of accounting and rescission was unnecessary. Pertinent here is the observation of the court that:

“Rescission may obtain in equity where there is no adequate remedy at law, but in other cases the party aggrieved may himself rescind and recover damages. This action proceeds upon the theory that the plaintiffs have rescinded, and the authorities are uniform that in a case like the present, where the remedy at law is adequate and full, it may be had without a judicial rescission. 24 Am. & Eng. Ency. Law (2 Ed.), 614; 1 Pomeroy’s Eq. Jur. (3 Ed.), §110; Gould v. Cayuga County Nat. Bank, 86 N. Y., 75, 84; and Getty v. Devlin, 54 N. Y., 403, 415.”

See also Par. 4 of the syllabus. The weight of authority in other jurisdictions is to the same effect. This is made clear by reference to two comprehensive notes on the subject at pp. 1000 et seq. and 1028 et seq. of Vol. 95 A. L. R. Referring to the case preceding the second note mentioned above, the annotator says:

“In McCall v. Superior Ct., 1934 [1] Cal. [2d 527], 36 P. (2d), 642, 95 A. L. R., 1019, the view was distinctly affirmed that, in fraud as in other cases, where there has been a rescission of the contract by act of the parties before suit, an action thereafter brought for the recovery of money paid on the contract is one at law upon a contract implied by law to make restoration, and this notwithstanding the complaint prays that the rescission be confirmed, and demands equitable relief in the cancellation of various written instruments, contracts, and obligations entered into between the parties as a part of the transaction in question; the court emphasizing that such an action is to be distinguished from a purely equitable suit to obtain a rescission by decree of court.”

In Philpott v. Superior Court, 1 Cal. (2d), 512, 36 P. (2d), 635, 95 A. L. R., 990 at page 1000 et seq., an action was brought for the recovery of money paid for the purchase of stock upon a contract which had been rescinded by the defrauded party, who also prayed for equitable relief. In that case the court held that the action was one at law and that a judgment of rescission in such case was “entirely superfluous.” In commenting upon the quoted statement of the court, the annotator says at p. 1017:

“In so holding, the court emphasized that the circumstance that the action was founded upon an equitable obligation did not prevent its being one at law.”

Cf. Weirick v. Mansfield Lumber Co., 96 Oh St 386, 117 N. E., 362: Hart v. Andrews, 103 Oh St 218, 132 N. E., 846. While a definitive ruling on the merits of plaintiff’s claim must await a determination on the merits, a liberal construction of the Amended Complaint requires the determination on this motion that plaintiff’s action be regarded as one at law for the recovery of money.

A further contention of defendants is that plaintiff’s rescission of the contract was ineffective because he did not offer to restore to the defendants all benefits received by him under the contract. It is urged that plaintiff “had not alleged and could not allege such an offer,” presumably because of his notice of January 18, 1957, to defendant’s counsel that he would hold them and their associates accountable for the moneys held in the down payment escrow and the oil escrow.

I find no merit in this argument. Plaintiff restored possession of the properties to the defendants within three days after he notified them of his election to rescind. The defendants were likewise restored to their right to operate the properties. These were the only benefits plaintiff received. It has not been shown that the defendants delivered or tendered any instruments of title to plaintiff. Nor did plaintiff receive any money for the oil delivered to Quaker Oil Refining Corporation during the period he operated the properties. While it was agreed that the proceeds of such sales were to be embargoed, this was accom- ■ plished by an order of the defendants to Quaker. Apparently defendants at all times had constructive possession and control of the embargoed funds. From the allegations of the Amended Complaint it would appear that the interest, if any, of plaintiff in those funds was merely an inchoate right to their payment to him upon defendants’ order when and if the transaction was consummated, and that upon rescission of the contract plaintiff’s inchoate right under the agreement was extinguished. Even if this were not so, under the circumstances shown by the record it would be inequitable and repugnant to the underlying principle of the doctrine of restoration to require plaintiff as a condition precedent to his right to rescind to relinquish whatever interest, if any, he had in the embargoed funds. Plaintiff claims he has suffered a loss of over $72,000 by reason of defendants’ fraudulent representations. Defendant in attachment has not filed an answer disclosing the amount it holds to the credit of defendants. However, counsel in oral argument indicated that the attached fund is substantially less than the amount for which plaintiff seeks judgment.

Professor Williston, in his work on Contracts, Volume 5, pages 4292-4293, Section 1530, says:

“ ‘That a party seeking rescission of a contract must return, or offer to return, what he has received under it, and thus put the other party as nearly as is possible in his situation before the contract, is the law. But this rule is wholly an equitable one; impossible or unreasonable things, which do not tend to accomplish equity in the particular transaction, are not required.’ In some cases even where restoration of the consideration is entirely possible, it has not been required * * * or where the party seeking relief has suffered for any reason by the fraud a greater loss than the consideration which he retains. Where circumstances permit, some courts also have allowed as a substitute for restoration of the consideration a deduction of the amounts of it from the recovery against the wrongdoer. This is the most satisfactory disposition of many cases.” (Emphasis supplied.)

Clearly it would be entirely unreasonable to hold upon this motion that plaintiff ought to have done more than he did by way of restoration. Pie has restored all that he received and, in the language of Professor Williston, he has put the defendants as nearly as possible in their situation before the contract.

As a further ground in support of their motion defendants advance the argument that “The property held by Quaker is not attachable because it is a part of the dispute between the parties and its ultimate disposition is uncertain and wholly contingent on the result of this lawsuit.” This contention may be disposed of with brief comment. Defendants do not deny that they have an interest in the alleged fund; por do they deny that Quaker has funds or credits in its possession belonging to them. Indeed, a disclaimer by defendants of any interest in the attached funds would not render such funds unattachable. See Rice v. Wheeling Dollar Savings & Trust Co., 155 Oh St 391, 44 O O. 374, 99 N. E. (2d), 301. Defendants’ interest in the attached fund has become contingent because of the order of attachment. Upon the record here made, Quaker’s debt to defendants is a mature obligation and meets the test laid down in Marquis v. New York Life Ins. Co., 92 Oh Ap 389, 48 O. O. 354, 108 N. E. (2d), 227, 37 A. L. R. (2d), 261, that it must be an indebtedness owing in praesenti by the garnishee defendant to the nonresident principal defendant. There can be no doubt that if the attachment were dissolved, defendants could enforce collection of the funds in the possession of Quaker.

For the foregoing reasons I am of the opinion that the order of attachment is valid and that the court has jurisdiction of the subject of this action. It is unnecessary to add that nothing hereinabove stated is intended as an expression, of opinion on the merits of the controversy.

The motion to discharge the attachment and to dismiss the action is overruled.


source: Caselaw Access Project

author: By KERNS, J:

license: Public Domain

text:
    HALCOMB, Petitioner, v. ECKLE, Superintendent, London Prison Farm, Respondent.
    Ohio Appeals, Second District, Madison County.
    No. 269.
    Decided March 31, 1959.

      Earl Halcomb, London, petitioner.
    Mark McElroy, Atty. Geni., William M. Vance, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By KERNS, J:

This is an original action in habeas corpus wherein the petitioner, Earl Halcomb, a prisoner confined at London Prison Farm, seeks his release.

The petitioner was arrested in April, 1953, for the armed robbery of a taxi driver in December, 1947. At the time of the offense in 1947, petitioner was wanted in Kentucky to answer a charge of armed robbery. He was therefore turned over to Kentucky authorities and was convicted of assault with intent to rob and sentenced to the Kentucky State Reformatory where he served from March, 1948, until August, 1951, except for time on parole from November, 1949, until returned as a parole violator in October, 1950.

The complaint charging the offense of armed robbery in December, 1947, was filed in July, 1950, and warrant issued. Petitioner was arrested on the warrant on April 10, 1953, and taken before the Municipal Court of Hamilton, Ohio, on April 14, 1953. On the same day, he was bound over to the grand jury. He was indicted May 11, 1953, arraigned May 14, 1953, tried and found guilty by a jury on May 18, 1953, and sentenced to the Ohio Penitentiary on June 30, 1953.

In seeking release, petitioner contends that he was denied effective counsel and that he was denied a speedy trial.

The first contention may be resolved by reference to the case of McConnaughy v. Alvis, 185 Oh St 102, wherein the court held that the issue presented as to denial of fair trial because of inefficient counsel must be determined on appeal in the criminal action rather than by an action in habeas corpus. See also Beard v. Alvis, 164 Oh St 488, and Kramer v. Alvis, 103 Oh Ap 324,

With reference to the second contention, petitioner cites the Sixth Amendment to the Constitution of the United States and Section 10, Article I, Ohio Constitution, both of which guarantee a person charged with crime a speedy trial.

However, extensive research discloses that the term “speedy trial” admits no precise definition. It is a relative term and dependent upon circumstances.

In considering the arguments of the petitioner, we cannot agree that there is any relation between the date of the trial in 1953 and the date of the crime in 1947. At that time, no charges were filed and petitioner was not denied his liberty. There is no statute of limitations for prosecution for armed robbery in Ohio, and the guarantee of a speedy trial was certainly never intended to envelop a situation where law enforcement authorities might be required to work against time in the apprehension of fugitives.

We also fail to find any merit in the argument that there is some relation between the filing of the complaint in 1950 and the trial date in 1953. The petitioner was not in jail or on bail during said time. He was not arrested on the warrant until 1953. The constitutional guarantee of a speedy trial was designed to prevent unjust restraint and oppression.

Between 1950 and 1953 there was no restraint or oppression which might place the petitioner in this case within the scope of the constitutional provision upon which he relies.

The right to a speedy trial means the right to have heard speedily the charge on which the accused is detained or under bail. Such right has no relation to the time the complaint is filed.

The petitioner was not arrested until April, 1953. From that time on, there was no delay, as evidenced by the facts heretofore set forth. Less than three months elapsed between arrest and admission to the penitentiary, and during said time, petitioner was given a preliminary hearing, bound over to the grand jury, indicted, arraigned, tried by jury and sentenced.

In briefly discussing the arguments advanced by petitioner in his brief, we are not unmindful of a more compelling reason why the issue raised by petitioner cannot be favorably considered in this habeas corpus proceeding. It has been noted that the Common Pleas Court had jurisdiction of both the subject matter and the person of petitioner in the criminal action. Therefore, the issue presented as to denial of a speedy trial could have been raised in the trial court.

In the case of In re Knight, 144 Oh St 257, the court refused to substitute habeas corpus for appeal where the trial court had overruled a motion for discharge upon the contention that petitioner was denied a speedy trial. The court, at page- 264, said, “the question of whether petitioner’s rights under Section 10, Article 1, Ohio Constitution, were invaded by the trial court can be reviewed only upon appeal, it being clear that the trial court does have jurisdiction of the case.”

In the case of Keller v. State of Ohio, 126 Oh St 342, the court held that where an accused has failed to demand his discharge before trial of the accusation against him he will be deemed to have waived his constitutional right to a speedy trial.

We therefore cannot reasonably conclude that the constitutional rights of the petitioner have been denied, and we find no allegations in the petition or elsewhere in the record which might justify the relief sought in this case.

The prayer of the petition is therefore denied.

WISEMAN, PJ, CRAWFORD, J, concur.


author: By SKEEL, J:

text:
    CHARLES MELBOURNE & SONS, INC., Plaintiff-Appellee, v. JESSET et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24943.
    Decided January 15, 1960.

      Clifford Bruce, for plaintiff-appellee.
    Michael A. Picciano, for defendants-appellants.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a judgment for the plaintiff entered in the Municipal Court of Rocky River. The plaintiff, a funeral director, at the request of Mrs. Laura Jesset, on August 5, 1955, entered into a contract with her to conduct the funeral services of her husband and to furnish the necessary material for the sum of $1,054.69. The services were performed as providéd by the contract. A claim was made against the estate which was determined to be insolvent and $350.00 of the estate’s assets paid on the claim as the plaintiff’s share.

This action was filed against the defendant through her guardian appointed April 15,1957. The defendant, Laura Jesset, was first adjudged incompetent in the Probate Court of Cuyahoga County after hearing on the affidavit sworn to and filed by William G. Jesset on July 10, 1940 The date of the adjudication was October 29, 1940. She was thereafter discharged from the State Hospital as improved July 31, 1944. On August 12, 1955, her son, William G. Jesset, filed a second affidavit charging mental incompetence against his mother, Laura Jesset, and upon hearing, she was again committed to Hawthornden State Hospital. The second adjudication was dated August 17, 1955. On September 16, 1955, a guardian was appointed for her estate who served until April 15, 1957, and filed his final account. The present guardian, William G. Jesset, son of Laura Jesset, was then appointed guardian of her estate and is still acting in that capacity.

From July 31, 1944, until the date the contract was signed, and from then until August 12, 1955, she was a free agent to act for herself without guardian or any other court supervision. It is also shown by the record that when the contract was signed, Laura Jesset was in the company of her two children, her son, William G. Jesset (now guardian), and her daughter, Joan Supplee, a resident of California, with whom Laura Jesset now resides. Neither of the children suggested anything about the mental history of their mother, nor is there any suggestion that at the time the contract was signed, her conduct was anything other than normal.

The second affidavit was signed by William G. Jesset after the defendant’s husband had died, certainly a most disturbing incident in the now incompetent’s life, the action being taken when no member of her family was available in this community for her care or companionship except the affiant, William G. Jesset.

Two questions are present: first, is the contract with the plaintiff enforceable, that is, is the adjudication of incompetence in 1940, under the undisputed circumstances here set out, a complete defense, and second, were the services rendered by the plaintiff necessaries which the guardian of the now adjudged incompetent’s estate is bound to pay.

The defendant in his brief sets up a defense of lack of jurisdiction for want of service on the plaintiff’s amended petition. The record shows that the original petition described the debt as for the funeral services of the now incompetent defendant’s deceased husband and that the only change in the amended petition was to characterize such services as “necessaries.” Upon leave having been granted plaintiff to file its amended petition, the defendant, by stipulation, directed the answer filed to the first petition to be considered as the answer to the amended petition. Thereupon the parties stipulated the evidence upon which they relied in support of their respective contentions on the issues.

After judgment for the plaintiff, a motion for new trial was filed which did not mention the claim of the need for service on the amended petition. Such claim has been raised for the first time in this court. Aside from the fact that on the face of the record such claim is not well taken, it is now too late to raise the question in this court.

Funeral expenses of a deceased husband are the obligation of the widow, and as to her, are to be characterized as necessaries when the estate of the husband is insolvent, as is shown by the undisputed facts in this case. The public health, as well as the moral well-being of the widow, requires this to be so. The satisfaction of such a debt cannot be measured by the assets of the deceased’s estate where the contract of the widow induced the expenditure of monies for the services rendered for her, and for which she agreed to pay.

It is true, as suggested by the defendant, that the amount recoverable for necessaries furnished a minor must be based on reasonable value under the circumstances and not the contract price unless such amount is less than the value determined to be reasonable, which rule has some limited application in the case of an incompetent. Whether the liability of an incompetent for necessaries would represent the only basis for recovery, without deviation, on his contracts, is not so clear. Some qualifications of the rule concerning the liability of persons said to be insane on their executed contracts is to be found in the cases. In the first place, the contract of a person non compos mentis is voidable and not void so that the party claiming disability must set up the lack of mental capacity as an affirmative defense and must assume the burden of proof on that issue.

In the case of Finch v. Goldstein, 245 N. Y., 300, 157 N. E., 146 (Ct. of Appeals, N. Y., 1927), the court had for consideration the question of whether the deed of an insane person having been summarily committed to an asylum prior to its execution was void, and whether the insane person’s committee could enforce the provisions of the mortgage back. The facts in the case show that on September 16, 1920, Finch was determined to be mentally deranged and committed to the Hudson River State Hospital for the Insane. While there, to the knowledge of the defendant, Goldstein, he executed a deed of a farm, part of the consideration of which was a mortgage back to the incompetent. Thereafter, a committee was appointed for the incompetent and foreclosure brought on the mortgage. The first and third paragraphs of the headnotes of the North Eastern Reporter provide:

“1. Deed made by one while confined in the state hospital under a summary commitment by the county judge * * *, and before the appointment of a committee for his person and property * * *, was voidable only, and not void, and the committee on ratifying the conveyance was entitled to foreclose the purchase-money mortgage.

“3. A lunatic retains exclusive possession and control of his property after his commitment to the state hospital by the county judge, * * * until such time as a committee to take possession of his property may be appointed, * *

The answer in this case, denying all material allegations of the petition prejudicial to the defendant, was in accord with §2309.20 R. C. However, that does not relieve the defendant from the burden of proving his affirmative defenses on the issues which was not done in this case. In the second place, courts have departed from the view that contracts with persons of unsound mind are not enforceable in all events. Where the other party to a contract is ignorant on the lack of mental capacity of the party he is dealing with, and the transaction was fair, and no advantage was taken of the incompetent, and he has received the full benefits of the transaction and cannot put the other contracting party in status quo, such contract may be enforced against the incompetent party. Williston in his single volume work on Sales (1909) paragraph 33, page 36, states: “In the leading case of Molton v. Camroux, (2 Ex. 487; 4 Ex. 17), the ru)e was stated ‘The modern cases show that when that state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defense cannot prevail, especially where the contract is not merely executory but executed in the whole or in part and the parties cannot be restored altogether to their original positions.’” And on pages 37 and 38. “In this country the weight of authority certainly supports the rule quoted above from Molton v. Camroux. * * * So negotiable paper executed by a lunatic is binding in the hands of an innocent holder for value, if the lunatic received a proper consideration therefor.” See Hosler v. Beard, 54 Oh St 398, 43 N. E. 1040, 35 L. R. A. 161, 56 Am. St. Rep. 720 (1896). In the case of Pichel v. Fair Store Co., 29 Oh Ap 322, 163 N. E. 511, the court said:

“1. Where contract has been entered into with insane person in good faith, without knowledge of insanity, and for fair and adequate consideration, and consideration that passed to insane person cannot be returned, contract can be enforced in favor of the other party.

“2. Where insane person entered into contract to pay certain sum in consideration for plaintiff’s dismissal of suit on an account for necessaries, and plaintiff acted in good faith, and did not know of insanity, contract was enforceable against deceased insane person’s estate, where action was barred on the original account, and thus it was impossible to restore to plaintiff consideration received from it by insane person.”

In the case of Middleton, Trustee, v. Bradstreet, 11 Abs 413, the first paragraph of the headnotes provides:

“1. A contract with an insane person will not be set aside when entered in good faith and without notice of the infirmity unless the parties can be restored to status quo.”

Under the undisputed facts, as stipulated, not only was the plaintiff completely unaware of any lack of mental capacity on the part of the now supposed incompetent defendant but the conduct of the children, who were fully cognizant of their mother’s past history, and who were with her when the funeral was contracted for, did not indicate any possible lack of mental capacity on her part.

This presents the final question as to whether or not the adjudication of mental incompetency on the public records of the Probate Court in 1940, which records also show that she was discharged from the state mental hospital as “improved” in 1944, could charge the plaintiff with knowledge of her then mental condition. In considering the facts, one fact must be kept clearly in mind. Upon the first adjudication of mental incapacity in 1940, the court did not appoint a guardian either of her person or her estate. Upon her release in 1944, until after the death of her husband in 1955, she lived with her husband with no suggestion in the evidence of other than a normal life. It is significant that, as shown by the record, when she was again committed in 1955, a new affidavit was filed by her son (the first affidavit having been signed by her husband) and she was not returned under the first commitment from which the guardian now claims she was not fully released.

Referring again to Williston on Sales, supra, at page 42, paragraph 36, after stating that the guardian when appointed must act for his ward, he, the guardian, being vested with the control of the ward’s property, and stating further that the guardian alone is capable of dealing with the ward’s property, it is stated that any attempt of the ward to contract during guardianship is absolutely void. The author then says “The contrary has, however, been held where the lunatic had regained his reason and the guardianship had been allowed to fall in disuse although not legally terminated.” Then, after stating that some cases stress whether lunacy has been found by inquisition, and if so, his transactions are void, the author then says “The truth seems to be, however, that the finding merely establishes the fact of insanity, and the legal effect of the transaction is the same as it would be in any case of proved insanity. It is the appointment of a guardian which works the change in the legal power of a lunatic to act for himself.”

In the case of Weeks et al v. Reliance Fertilizer Co., 20 Ga. App. 498, 93 S. E. 152 (1917), the second syllabus provides:

“2. After the fact of insanity has been established by a court of competent jurisdiction in this state, and after the affairs of the insane person have been vested in a guardian, the power of the ward to contract, while such judgment and appointment remain of force, is gone, but where no guardian has been appointed and a contract is made by one engaged in business in his own behalf, who has been previously adjudged insane, the validity of the contract depends upon whether or not he was actually insane at the time the contract was entered into, and such a previous adjudication furnishes prima facie evidence that such condition continued to exist. The presumption so raised may be rebutted by proof.”

The evidence in the instant case clearly rebuts the continuation of the so-called prima facie presention suggested as the law of the Weeks ease. Mrs. Jesset for eleven years was about her neighborhood and circle of friends without claims of ineompetency being suggested or that her improvement, which was sufficient to cause her discharge from the institution, did not continue. When recommitment was made after the death of her husband, it was by a new inquest and when the contract was made for the funeral, the man who signed the affidavit of ineompetency was with his mother when she signed the contract. Certainly he must have thought she was sufficiently competent to enter into the contract for he did not speak out or suggest that his mother could not be held liable under the funeral contract by reason of insufficient mental capacity formerly established by adjudication or otherwise. We certainly would not want to conclude that William G. Jesset stood mute, expecting thereby to defeat the right of the undertaker to be paid what was agreed to for the burial of his father.

Also in the case of Summer v. Boyd, 208 Ga. 207, 66 S. E. 2d 51 (1951), in the third paragraph of the headnotes of the South Eastern Reporter, it is said:

“3. Where one has been adjudged insane by court of competent jurisdiction, but no guardian was appointed, validity of such person’s contracts depends upon his sanity at time of execution.”

The conclusion must be that the plaintiff dealt with the defendant honestly, without knowledge of any lack of mental capacity, dr any indication that such was the fact, that full value was furnished (this question not being denied or the denial supported by evidence), and that any presumption that might be derived from the adjudication of mental ineompetency adjudged in 1940, being completely dispelled, that under the stipulated facts of the case, the defendant is liable on her contract with the plaintiff. It must also be concluded that the services of the plaintiff were necessaries, and there being no attempt to show that the charges were unreasonable or unfair, the incompetent’s estate is liable for the balance due for such services.

The judgment of the trial court is, therefore, affirmed.

HURD, PJ, KOVACHY, J, concur.


author: Per CURIAM.

text:
    DRISCOLL et, Appellants, v. BAILEY DEVELOPMENT CO., Appellees.
    Ohio Appeals, Sixth District, Lucas County.
    Decided November 28, 1955.
    William D. Driscoll, Toledo, for appellants.
    James M. Evans, Toledo, for appellee.
   OPINION

Per CURIAM.

This is an appeal on questions of law from a judgment of the court of common pleas of Lucas County. The parties will be referred to as they appeared in the trial court.

The suit was instituted in the court of common pleas by the plaintiffs pursuant to the Declaratory Judgment Act, seeking a declaration of rights with respect to certain building restrictions and requirements, relating to a certain lot purchased by the plaintiffs from the defendant, as the developer of a residential section, and upon which lot plaintiffs proposed to build a residence.

At the conclusion of the trial in the court of common pleas, following the introduction of testimony by the parties respectively, the court dismissed the petition of the plaintiffs and entered a judgment in favor of the defendant, without making a declaration of the rights of the parties, arising as claimed by virtue of the agr#ement to purchase, the deed conveying the lot in question, and the written restrictions applicable, as claimed by the defendant as the developer of the residential section involved.

Article 1, Section 1, of the restrictions sought to be imposed by the defendant in the development of the residential section involved in the action, is as follows:

“Article One.

“Section 1. No building, fence, wall, sign, or other structure shall be erected or maintained on said lots unless erected or maintained in accordance with plans and specifications showing the nature, kind, shape, type, material, color scheme and location of such structure, which shall be submitted to Bailey Development Company, its successors or assigns, and approval thereof endorsed thereon in writing.”

Several specific restrictions follow the foregoing restriction, which relate to fences, porches, easements, locations of structures on lots and other matters designed to require conformity to a general plan of the developer of the residential section involved. It is undisputed that the only drawings or specifications submitted by the plaintiffs, prior to the commencement of the action, were sketches of a proposed residence to be built upon the lot in question, designated by the plaintiffs as:

“Note: The above sketches are preliminary drawings only — to be changed to owners wishes.”

It is significant in our view that the above and foregoing quoted condition appears upon the sketches as submitted by the plaintiffs and as same were received in evidence upon the trial of the cause.

Sections of the Revised Code of the state applicable and pertinent to a consideration of the record on this appeal, which are a part of the Declaratory Judgment Act of the state, are as follows:

“Sec. 2721.06 R. C. Powers not restricted.

“Secs. 2721.03 to 2721.05 inclusive, R. C., do not limit or restrict the exercise of the general powers conferred in §2721.02 R. C., in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.”

“Sec. 2721.07 R. C. Court may refuse judgment.

“Courts of record may refuse to render or enter a declaratory judgment or decree when such judgment or decree would not terminate the uncertainty or controversy giving rise to the proceedings.”

Secs. 12102-5 and 12102-6 GC.

It appearing, therefore, that plaintiffs failed to submit plans and specifications which would indicate an intention on the part of the plaintiffs to conform unconditionally to any of the restrictions required by the defendant, we conclude that the trial court was justified in declining to enter a declaratory judgment, for the reason that same would “not terminate the uncertainty or controversy,” such action by the trial court being in accord with §2721.07 R. C., quoted above.

Therefore, in view of the failure of the plaintiffs to submit definite “plans and specifications” which were unconditional, prior to the commencement of the action, which would enable the court to “terminate the uncertainty or controversy,” we find no error prejudicial to the rights of the plaintiffs in the proceedings and judgment of the trial court. Finefrock v. Muskingum Watershed Conservancy District, 56 Oh Ap 271, 10 N. E. 2d 638; Fairfax Community Ass’n v. Boughton, 70 Abs 178; Smith v. Volk, 85 Oh Ap 347, 86 N. E. 2d 30; Dixon v. Van Sweringen Co., 121 Oh St 56, 166 N. E. 887; Walker v. Walker, 132 Oh St 137, 5 N. E. 2d 405; Radaszewski v. Keating, 141 Oh St 489, 49 N. E. 2d 167; See also Anderson Declaratory Judgments, Secs, 224, 225 and 226, Vol. 1, 2nd Edition.

The judgment of the court of common pleas will be affirmed.

Judgment affirmed.

CONN, PJ, DEEDS and FESS, JJ, concur.


author: By BETTMAN, J.

text:
    STATE, Plaintiff, v. DAVIS et, Defendants.
    Cincinnati Municipal Court.
    Nos. 31425, 31426, 31427, 31428, 31429, 31430, 31431, 31432.
    Decided December 10, 1959.

      Lyle W. Castle, Paul N. Gorman, Asst. City Solicitors, Cincinnati, for plaintiff.
    Edgar I. Shott, Jr., James G. Andrews, Jr., for defendants.
   OPINION

By BETTMAN, J.

There are eight defendants in the above matter, four men and four women. The female defendants are charged with engaging in prostitution, lewdness or assignation in violation of §2905.27 (E) R. C. The male defendants are charged with aiding and abetting prostitution, lewdness or assignation in violation of the same section. The cases were all tried together before this Court sitting without a jury.

The evidence showed that at about 10:00 or 11:00 A. M., on August 10, 1959, each of the female' defendants was found by the police in a hotel room with one of the male defendants. All defendants were in various stages of undress. Some of the defendants admitted having had sexual intercourse with his or her partner and from their state of undress it could be inferred that the other couples also had or planned to have some sexual relations. The evidence further showed that the parties had all met each other the preceding evening at a night club where the male defendants were performing. Three of the girls had driven down from Hamilton, Ohio, to hear the men sing. Although there was some conflict of evidence, it could generally be said that each of the defendants knew his or her partner’s first name but not the last. It was not entirely clear whether the arresting officers had inquired concerning last names.

There was little or no evidence that the male defendants had given the female defendants any money and certainly no evidence in any of the four situations from which a trier of fact could conclude beyond a reasonable doubt that money had changed hands.

The arresting officers testified that their investigation had not revealed any criminal record of any of the accused. No testimony was introduced as to the character or reputation of any of the defendants or that the officers had any previous contact with any of them. The defendants did not take the stand.

The broad issue here presented is, were the defendants guilty of engaging in or aiding and abetting prostitution, lewdness or assignation in violation of §2905.27 R. C. In this connection §2905.26 R. C., gives the following definitions:

“(A) ‘Prostitution’ includes the offering or receiving of the body for sexual intercourse for hire and the offering or receiving of the body for indiscriminate sexual intercourse without hire.

“(B) ‘Lewdness’ includes any indecent or obscene act.

“(C) ‘Assignation’ includes the making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement.”

The facts present the Court therefore two legal issues:

1. What is the legal meaning and effect of the word “lewdness” in the phrase “prostitution, lewdness, or assignation” in §2905.27 R. C., as elaborated by the definition in §2905.26 R. C.?

2. What is the meaning of the word “indiscriminate” in the definition of prostitution?

I

In making these determinations certain rules of statutory construction must be kept in mind. First of all, it has always been basic to our concept of justice that penal statutes are to be strictly construed. As stated by the Supreme Court of Ohio in Hirn v. State:

“It is well settled that penal .statutes must receive a strict interpretation, and must not be extended in their operation beyond the manifest intention of the legislature. The subject matter and the reason and effect of a law, must be looked to in giving it a construction;”

It would seem appropriate therefore in the interest of ascertaining the intent of the Ohio Legislature in enacting §§2905.26 and .27, R. C., to examine the historical and statutory background.

These sections became part of the law of Ohio on June 23, 1919, when the Ohio Legislature enacted a bill entitled “To Further Supplement §13031 GC, by the Enactment of Sections . . ., Providing for the Suppression of Prostitution.” Sec. 13031 GC, had been in effect since 1831, and since its last major amendment in 1888 had done no more than make unlawful the maintenance of a house of ill fame. There was no provision of law making either prostitution or the aiding or abetting of a prostitute an offense. This was typical of the situation generally throughout the Country. In a book entitled “Prostitution in the United States” Dr. Howard B. Woolston says:

“It was not until the early years of the twentieth century that the whole country awoke to the disgrace of a system of commercialized vice which, unknown to the vast majority of our citizens, had grown up in our midst.

“We were practically without laws aimed at the exploiters of women, such as panderers, procurers, pimps and others who make vice a busines.

. . The circumstances attending the entrance of the United States into the World War brought home to the American people as nothing-in our previous history had ever done, the menace of prostitution and venereal diseases to the young manhood of our country.”

It was in response to this situation that Ohio, along with many other states, then enacted laws to deal seriously with commercialized vice. It must be concluded, therefore, that this was the evil which §§2905.26 and .27 R. C., were designed to meet. An analysis of the numerous other provisions of §2905.27 R. C., confirms the conclusion that the elimination of commercialized vice was the object of the enactments.

II

In the light then, of the principle of strict construction of penal statutes; the history of the enactment of the law; its announced purpose to suppress prostitution; and its other provisions dealing with prostitution; what does the word “lewdness” mean?

After a considerable analysis of the case law, dictionaries and texts on the subject the Court has concluded that “lewdness” in the sentence “Engage in prostitution, lewdness, or assignation” means sexual acts by a male or female which are either indiscriminate or involve the giving or receiving of money.

In arriving at this conclusion the Court is impelled by the virtual interchangeability of the words “prostitution” and “lewdness” throughout the authorities. For an example, Bouvier defines prostitution as “The common lewdness of a woman for gain. The act of permitting a common and indiscriminate sexual intercourse for gain.” Ballentine states, “ ‘Prostitution’ and ‘lewdness’ when used distinctly in a penal statute applying to both sexes are not synonymous words. If a man and woman resort to a house of ill fame for the purpose of sexual relations, her purpose is ‘prostitution,’ and his, ‘lewdness.’ ” Webster defines a prostitute as “A woman given to indiscriminate lewdness.” • Mr. Eustace Chesser in a recent book dealing with prostitution in England says, “For - legal purposes in this country -the term ‘common prostitute’ is taken to mean a woman who offers her body for acts of lewdness for payment.” Corpus Juris Secundum summarizes, “Prostitution . . . has been defined as common lewdness of a woman for gain, the act or practice of permitting a common and indiscriminate intercourse for hire, or the offering of the body to indiscriminate lewdness for hire . . .” In Kavas v. State, the Court of Appeals of Cuyahoga County in reference to a defendant who had illicit sexual intercourse, used the words “prostitution” and “lewdness” without distinction.

The words “indecent or obscene” in §3905.26 R. C., add nothing to the breadth of the concept of lewdness. They are simply modifying adjectives. Lewd acts are indeed indecent or obscene but certainly all acts which are indecedent or obscene are not lewdness. Especially are they not lewdness as the word is written in statute to suppress prostitution.

This specific point was discussed by the Supreme Court of Louisiana. In a unanimous decision the Court reversed the lower Court’s conviction of the defendants who had been living together in a state of fornication. They had been charged under an ordinance making it unlawful to use a hotel, house, room, etc. “for the purpose of prostitution, assignation or other lewd or indecent act.” The Court stated:

“the words ‘or other lewd or indecent act,’ in the ordinance in question, add nothing to the ordinance, except to make plain the meaning of ‘prostitution’ and ‘assignation.’

“Our opinion is that the object and purpose of the ordinance in question is very plainly confined to the suppression of places that might be injurious to the health or murals of the soldiers in or about the City of Shreveport; i. e. places of prostitutibn or assignation. Although living in open and notorious concubinage might be regarded as a lewd and indecent affair, offensive to public morals, it is not the lewd or indecent state that this ordinance was intended to suppress.”

It requires little imagination to think of any number of indecent or obscene acts which the Legislature would have been shocked to have thought they were making punishable by a one year jail sentence.

The word “lewd” is used in the law in numerous connections. There are many statutes and cases dealing with “open, gross, or notorious lewdness”; “lewd language”; “lewdness” as a defense to statutory rape; “lewd pictures or publications”; and others. It is careless thinking to simply take a definition of “lewdness” as it is used in one type of statute or factual situation and attempt to use it as a Procrustean bed into which all situations are thenceforth fitted. Nor can one simply do as did the Supreme Court of Arkansas and reason as follows: lewdness includes any indecent or obscene act; the dictionary gives morally offensive as a definition of indecent; it is certainly morally offensive for a man and woman not married to each other to spend a night in a hotel; therefore they are guilty of prostitution, lewdness and assignation. The illogicality of such mechanical statutory construction is clear when one asks oneself, how many morally offensive acts there are which the law, in its wisdom, has left to the jurisdiction of the church and the home.

There has always been a distinction between crime and sin. The criminal law must be based upon the moral law, but there are fundamental reasons why all moral offenses should not be designated as crimes. The purpose of the criminal law is to maintain and safeguard the common good, not to punish individuals for their private sins.

It is noteworthy to recall in this connection that individual acts of adultery or fornication were not punishable offenses at common law, nor are they proscribed by the lav/ of Ohio. As at common law, Ohio law has provided since 1831 for the punishment of persons who openly cohabit in a state of adultery or fornication, but this has never been deemed to cover illicit intercourse where the parties do not live together to the affront of the neighborhood. By dicta in State v. Brown the Supreme Court established that a single act of sexual intercourse is not a violation. This interpretation of the statute has been accepted by the Courts and the Legislature of Ohio for the 80 years since the Brown case. It is also the law in a great many other jurisdictions of the Country.

To return then to the definition of “lewdness” in the section in question — the legislative intent in including it could only have been to cover commercialized vice cases which might be commonly understood as such by the layman but which might slip through a strict legal definition of “prostitution.” Three examples come to mind. First, prostitution is defined as offering or receiving of the body for sexual intercourse for hire and the offering or receiving of the body for indiscriminate sexual intercourse without hire. Sec. 2905.05 R. C., states:' “. . . sexual intercourse is complete upon penetration.” In the light of this section one could foresee that there might be difficulties in proving that there either had been or was about to be sexual intercourse, even though the parties were discovered in a most compromising position. Second, an examination of medical books shows that there are other sexual acts between individuals which are not included in a strict definition of “sexual intercourse.” Third, the three words “prostitution, lewdness, or assignation” are used throughout the section and in view of a definition such as Ballentine’s, a legislative drafstman would want to make clear that men as well as women were covered.

An anlysis of the statutes and ordinances of many states shows that almost every law dealing with prostitution uses several or all of the words “prostitution, lewdness or assignation or any other indecent or obscene act.” Since 1888, §2905.14 R. C., dealing with houses of ill fame, has contained the words, “No person shall keep a house or place of ill fame or assignation for the purpose of prostitution or lewdness, or a house or place for persons to visit for unlawful sexual intercourse or for any other lewd, obscene, or indecent purpose . . .”

Despite the general use of these words there is no Ohio decision and no decision of any other jurisdiction which has been brought to the Court’s attention, except the Arkansas case mentioned above, which finds anyone guilty under such statute or ordinance except where the facts show what the law and layman consider prostitution, namely, the offering or receiving of the body for indiscriminate sexual relations with or without hire.

m

Having concluded as a matter of fact that the prosecution has sustained the burden of proof beyond a reasonable doubt that there was an offering or receiving of the body for sexual intercourse and that it has failed to prove that any money was involved, the determination of the case rests upon the legal force and effect of the word “indiscriminate” as used in the statute and in the Court’s definition of “lewdness.”

Only two cases have been discovered which discuss the meaning of “indiscriminate.” Although neither present the same factual problem as the matter before us, we should consider them. They are: Bates v. The Státe of Ohio, decided by the Court of Appeals for Knox County, and State v. Poague, decided by the Supreme Court of Minnesota.

In both these cases the defense contended that “indiscriminate” required a showing that the defendant engaged in illicit intercourse with more than one person. The defense in the case at bar makes the same argument. Such is apparently the law in New York, where it has been held that in order to establish indiscriminate sexual intercourse where no compensation is involved it is necessary to prove a prior act of submitting to such intercourse, in addition to proof of the act complained of. The defense also points out, with considerable logic, that since §2905.29 R. C., specifically permits testimony of a prior conviction and of the reputation of the defendant in support of a charge of violating the section here under consideration, namely §2509.27 R. C., the Legislature must have intended to require proof of prior acts to establish “indiscriminate” conduct.

Such an interpretation, we believe, would in fact thwart the intent of the Legislature and place impediments in the way of law enforcement officers, not necessary to protect innocent persons. Its practical effect would be to virtually negate in toto the words “indiscriminate without hire” and would mean that every prosecution for engaging in prostitution would fail unless there were proof that cash had changed hands. As long as “indiscriminate” is given the strict interpretation which the law requires and proof of it is sustained beyond a reasonable doubt innocent persons are no more likely to be caught in its snare than under the “sexual intercourse for hire”' clause.

In determining the legal force and effect of the word “indiscriminate” the language of the Bates case bears repetition:

“Courts in construing statutes must give effect to the intent of the lawmaking body, and seek for that intent in every legitimate way. The language of a statute is its most natural expositor; and, when the language and the words therein are susceptible of a sensible interpretation, they are not to be controlled by any extraneous considerations.

“The words and language of a statute are to be construed with reference to their manifest object.

“Therefore, if the words and language are susceptible of two constructions, one which will carry out and the other defeat such manifest object and purpose, they should receive the former construction.”

The manifest and announced object of §2905.27 R. C., is to suppress prostitution. In that light the sensible interpretation of the word “indiscriminate” is its common and everyday meaning as given in Webster: “That is indiscriminate which lacks, or shows the absence of selection or discrimination.” It must be noted that the dictionary definition says the absence of selection — not poor or hasty selection or a selection abhorrent to others. Furthermore the prefix “in” comes from the Latin, meaning “not, non or un.” In layman’s language a person who indulges in “indiscriminate” intercourse is one who “will do it with anyone who comes along.”

With Webster’s definition in mind we should examine the facts in the two cases which discuss indiscriminate. In the Bates case the defendant’s ex-girlfriend was the prosecuting witness. She testified to having had intercourse with him a number of times. The Court refused to upset his conviction for “receiving of the body for indiscriminate sexual intercourse without hire.”

Such a conclusion surely perverts the clear meaning of the word “indiscriminate” and defies the avowed intent of the lawmakers. What clearer indication of selection could one have than repeatedly choosing the same girl. On the basis of its facts and its faulty legal conclusion, it furnished this Court with no precedent.

The facts of the Poague case gives us small help, but the Court’s reasoning deserves our consideration. In that case the defendant ran a “date and escort club.” When one of the members of the vice squad asked her to find him a girl she suggested that since no one else was available, she “take care of him herself.” The price, she said would be $30.00. After he had paid the $30.00, she provided him with a contraceptive, took him into the next room and undressed.

Even in such a clear case of non-selection and even though under Minnesota law proof beyond a reasonable doubt is not required in misdemeanor cases, the Court in its opinion seemed loathe to reach a finding of guilt. Chief Justice Dell emphasized that Courts must carefully scrutinize the evidence in cases such as this where a conviction places on the defendant a stigma virtually impossible to erase. The Justice set out the method of reaching his decision as follows:

“We conclude that whether a woman is a common prostitute does not depend alone upon the number of persons with whom she had illicit intercourse but rather may be judged from all the surrounding circumstances, including her acts, conduct, and utterances in determining whether slie was lacking in discrimination within the commonly accepted meaning of that word in submitting to, or offering her body for, illicit sexual intercourse.”

IV

On the basis of the evidence set out at the beginning of this opinion, did the defendants exercise no selection in choosing his or her partner? The question we believe suggests its own answer. We simply do not know. On the one hand, we know that three of the girls drove from Hamilton to see the male defendants. On the other hand, so far as the evidence showed each defendant knew only his or her partner’s first name. Our law requires that in considering circumstantial evidence in a criminal prosecution the particular facts and circumstances when taken together must be so convincing as to be irreconcilable with the innocence of the accused or as to admit of no other hypothesis than the guilt of the accused. The facts in this ease do not meet that test.

That the defendants’ conduct was reprehensible, that it was loose and lustful, admits of no argument. However, this Court cannot say. as the law requires of it, that it has an abiding faith to a moral certainty that the defendants’ acts were without any choice, selection, or discrimination. The State has consequently failed to prove its case and the defendants must be dismissed.

      . Sec. 1.11 R. C.; Hall v. State, 20 Ohio 8 (1851); Hirn v. State, 1 Oh St 15 (1852); 15 O. Jur. (2d) 253, “Criminal Law” Sec. 20, and eases cited therein.

      . 108 Laws of Ohio, Pt. 1, pg. 730.

      . 85 Ohio Laws 137.

      . “Prostitution in the United States” by Howard B. Woolston, Ph. D.. The Century Co., New York, 1921, pp. 81, 33,

      . Bouvier’s Law Dictionary, Baldwin’s Edition, 1934 Ed.

      . Ballentine’s Law Dictionary, 1954 Supp to 1948 Ed.

      . Webster’s New International Dictionary, 2nd Ed., unabridged.

      . “Live and Let Live,” Eustace Chesser, Philosophical Library, Inc., New York, 1958, pg. 96.

      . 33 O. L. Rep. 298 (1929).

      . City of Shreveport v. Wilson, 145 La. 906, 83 So. 186 (1919).

      . Dillard v. Arkansas, 226 Ark. 720, 293 S. W. (2d) 697 (1956). For the exact opposite conclusion see State v. Brenner, 132 N. J. L. 607, 41 A. (2d) 532 (1945), in which the highest court of New Jersey unanimously reversed a conviction even though the statute specifically proscribed “secret indecency.”

      . In this connection the Court would call attention to the report made to the British Home Office in London by a committee of seven Catholic clergymen and laymen, appointed by the late Bernard Cardinal Griffin, Archbishop of Westminster. Their report set forth the following principles, among others, as being applicable to prostitution:
      “It is not the business of the State to intervene in the purely private sphere but to act solely as the defender of the common good. Morally evil things so far as they do not affect the common good are not the concern of the human legislator.”
      “Sin as such is not the concern of the State but affects the relations between the soul and God.”
      “Attempts by the State to enlarge its authority and invade the individual conscience, however high-minded, always fail and freqiiently do positive harm.”
      “It should ... be clearly stated that penal sanctions are not justified for the purpose of attempting to restrain sins against sexual morality committed in private by responsible adults. They . . . should be discontinued because:
      “(a) they are ineffectual;
      “(b) they are inequitable in their incidence;
      “(c) they involve severities disproportionate to the offense committed;
      “(d) they undoubtedly give scope for blackmail and other forms of corruption.”
      This Court is not concerned, except as a citizen, with the question of whether a law is good or bad. However, consideration of principles such as enunciated by the Committee do play a part in legislators’ determinations and can therefore properly be considered in ascertaining legislative intent.
      The Court has not been able to obtain a copy of the Committee’s report and is indebted for the facts recited in this footnote to Hon. John M. Murta.gh, Chief Magistrate of the City of New York in whose book “Cast the First Stone,” published by McGraw-Hill Book Company, Inc., New York (1957), they appear at page 300.

      . 47 Oh St 102, 23 N. E. 747, 21 Am. St. 790 (1890).

      . See annotation to Robert Warner v. Indiana, 202 Ind. 479, 175 N. E. 661 (1931), in 74 A. L. R. 1357.

      . Such a defense was effective in City of St. Louis v. Wyatt, Mo. App., 189 S. W. (2d) 129 (1945).

      . 27 Oh Ap 391, 6 Abs 146, 161 N. E. 344 (1927).

      . 245 Minn. 438, 72 N. W. (2d) 620 (1955).

      . People v, Webb, 25 N. Y. S. (2d) 554 (1941).

      . supra, note (7).

      . Under the Ordinances of the City of Cincinnati, as in most cities, a woman, once convicted of engaging in prostitution, can thereafter be arrested by the police as a “common prostitute” at any time and from time to time, if she appears on the street or in any public place.

      . 15 O. Jur. (2d) 631, “Criminal Law,” Sec. 462.


author: Per CURIAM:

text:
    BREEDS, Plaintiff-Appellant, v. McKINNEY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24881.
    Decided December 16, 1959.
    Simon & Goldsmith, for plaintiff-appellant.
    Nelson G. Karl, for defendant-appellee.
   OPINION

Per CURIAM:

Under date of October 30, 1959, the following entry was made:

“Judgment dismissing plaintiff’s proceedings in aid of execution and enjoining plaintiff from enforcing her judgment against the defendant for the reason that said judgment debt had been discharged in bankruptcy is reversed and final judgment for the plaintiff entered on said motion for the reason that the debt of the judgment as journalized by the trial court shows that it was the result of the defendant’s reckless, willful and wanton conduct, which was the proximate cause of her injury, and that said judgment debt is, therefore, not dischargeable in bankruptcy. See Section 3332, Remington on Bankruptcy, Vol. 8, Sixth Edition.”

The matter now comes before this court upon the application of the appellee for rehearing.

In the instant case, the petition charges “that the defendant, who had been operating his automobile in a general easterly direction on East Memorial Shoreway, while in a highly intoxicated condition and while under the influence of intoxicating liquors, carelessly, negligently, recklessly, willfully and wantonly drove his automobile over and across the center lane of such highway while going at an illegal and unlawful speed, to-wit: 70 miles per hour, and ran into and collided with plaintiff’s automobile, thereby causing the injuries to plaintiff” which are set forth at some length in said petition.

The defendant-appellee did not file an answer to the petition, and, consequently, in due course, judgment was entered against defendantappellee by default in the sum of $105,400.00, and the costs of the action. .There are certain salient facts set forth in the pleadings, such as 1) drunken driving, 2) traveling at a high and unlawful rate of speed, 3) crossing over the center line onto the wrong side of the road, which, considered in the aggregate, amount to willful and malicious misconduct.

The trial court, by its journal entry, stated the following:

“The Court being fully apprised in the premises finds that the defendant has been guilty of reckles, willful and wanton conduct and has been guilty of carelessness and gross negligence as a direct and proximate result of which the plaintiff was injured and damaged, and that she is entitled to judgment as prayed for in her petition.”

In our opinion, the facts as set forth in the record, to which our judgment must be confined, bring the case squarely within the rules set forth in Volume 8, Remington on Bankruptcy, Section 3332, wherein it is stated:

“Drunken driving, if established, gives rise to a nondischargeable liability for damage or injury chargeable to it, and if it is accompanied by such other circumstances as high speed and driving on the wrong side of the road, the aggregate recklessness even more clearly amounts to wilful and malicious misconduct.

“* * * But a default judgment expressly reciting that the defendant ‘wantonly, willfully, and without regard to the safety of the plaintiff’ did the act causing the injury may be regarded as conclusive.”

It is our view, upon a careful consideration of the applicable law on this subject as applied to the facts set forth in the record, that defendant’s conduct was such that he may not sit idly by and permit a default judgment to be taken against him and then proceed to file a petition in bankruptcy for the purpose of discharging a debt so wantonly, willfully, maliciously and criminally incurred.

We hold, therefore, that the debt incurred is a nondischargeable liability for damage or injury and that the words “carelessness” and “negligence” may be regarded as surplusage. Therefore, we must adhere to the judgment heretofore rendered herein.

A journal entry may be prepared in accordance with the previous entry made on October 30, 1959.

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


author: By McBride, J.:

text:
    STATE, Plaintiff, v. CENTERS, Defendant.
    Common Pleas Court, Montgomery County.
    No. 21591-A.
    Decided December 10, 1959.
    Mathias H. Heck, Pros. Atty., for plaintiff.
    John R. Hoover, Dayton, for defendant.
   OPINION

By McBride, J.:

A proceeding accusing Reece Willis Centers with the crime of operating a motor vehicle without the owner’s consent was instituted by the State of Ohio by filing an “information” instead of by indictment by the grand jury. A motion to dismiss was filed by counsel for the defendant.

The “information” followed the provisions of §2941.021 R. C., enacted at the last session of the General Assembly. The statute provides as follows:

“Any criminal offense which is not punishable by death or life imprisonment may be prosecuted by information filed in the common pleas court by the prosecuting attorney if the defendant, after he has been advised by the court of the nature of the charge against him and of his rights under the constitution, is represented by counsel or has affirmatively waived counsel by waiver in writing and in open court, waives in writing and in open court prosecution by indictment.”

In the instant case the defendant, in writing and in open court, previously waived counsel and waived presentment to the grand jury.

Doubts as to the constitutionality of this statute are so prevalent that few counties have used the procedure. At a recent Ohio conference of trial judges, Judge Saul S. Danaceau of Cuyahoga County presented a discussion on the subject and this court would be ungrateful if it failed to acknowledge the benefit of his research as well as the assistance of counsel.

The provisions of the constitution may be either a matter of personal privilege or of mandatory public duty. The former can be waived; the latter can not. The Supreme Court held that the right to a jury trial is personal and may be voluntarily waived. State, ex rel. v. Baer, 103 Oh St 585. Whatever the constitution prescribes as essential in a criminal prosecution can neither be omitted nor waived. Stewart et al v. State, 41 Oh Ap 351.

Article I, Section 10, Ohio Constitution, provides in part that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” The right and duty to accuse individuals with crime only through the grand jury is a public fundamental right, the exercise of which is requisite to jurisdiction to try, to condemn and to punish and takes precedence over the personal convenience of the parties, including the wishes of the accused. In solemn and absolute language the constitution dictates the only method by which a person can be prosecuted for a felony. The pressure formerly applied by the Crown is gone however other forces at work in society justify the public policy and the constitutional provision requiring the use of the grand jury.

In the words of the New York Court of Appeals in People v. Christian, 249 N. Y., 314, 164 N. E., 111, 61 A. L. R., 793, and under a constitutional provision identical with that of Ohio;

“1. The constitutional provision for indictment cannot be waived by one accused of crime.

“2. A statute authorizing an information in a criminal case when the Constitution requires an indictment by a grand jury is void.”

Since both Cardozo and Pound concurred we are reluctant to reject such distinguished company.

Whether some of the expense and the delay of the grand jury procedure may be reduced, when the defendant so desires, by a consent to a presentment, by a consent to an indictment, or by some similar method which complies with the constitution is a matter for legislative consideration.

The motion to dismiss the “information” is sustained without cost to the defendant.


author: By HOLTSBERRY, J.

text:
    PARK NATIONAL BANK OF NEWARK, as Exr., Plaintiff, v. DILLON et, Defendants.
    Common Pleas Court, Licking County.
    No. 45510.
    Decided September Term, 1959.

      Robert H. Flory, for plaintiff.
    Thomas E. Norpell, for defendants Frances Dillon Harlan, William Thomas Dillon and Helen Wilson Dillon.
   OPINION

By HOLTSBERRY, J.

This action asks for the interpretation and construction of the last will and testament of Carl J. Dillon. The aged testator had devoted many years of his life to his profession of medicine, with offices in Newark. About one year before his death in September, 1958, the will in question was drafted. The typography, spelling and choice of words, the failure to complete a number of blank spaces, together with the evidence adduced and reasonable inferences therefrqm, all clearly indicate that the scriviner was not an attorney. It is apparent that the drafted will upon the printed blank Dr. Dillon obtained, was drafted by a layman, quite probably by himself.

The will, dispositive of a rather sizeable estate, includes ten items. He favorably remembered some 17 individuals, a hospital, church and public library. Each of the first nine items begins with the expression:

“I give, devise and bequeathe” (sic).

Item 1 “gives, devises and bequeathes” an apartment building and a sum of cash. Item 2 “gives, devises and bequeathes” a duplex residence. Item 3 “gives, devises and bequeathes” a residence. Item 4, Item 5, Item 6, Item 7, Item 8 and Item 9 “give, devise and bequeathe” cash legacies.

The problem confronting the Park National Bank of Newark as Executor concerns the distribution of the rather sizeable residue of the estate, and such problem is raised by Item 10, which reads:

“Item 10 I hereby direct that rest and residue of my estate be converted into cash and be divided equally among all devisees herein before named.”

Who are “all devisees,” contemplated by the testator? Did he mean all named beneficiaries in the preceding nine items, or only those individuals given real property?

The first three items of the will specifically devise separate, distinct and individual parcels of real estate. The next six are specific gifts of money to individual persons and institutions.

The technical, legal meaning of the word “devisee” is: “The person to whom lands or other real property are devised or given by will.”

Concerning the use of this word, the same dictionary at page 573 says:

“The term ‘devise’ is properly restricted to real property, and is not applicable to testatmentary dispositions of personal property, which are properly called ‘bequests’ or ‘legacies.’ But this distinction will not be allowed in law to defeat the purpose of a testator; and all of these terms may be construed interchangeably or applied indifferently to either real or personal property, if the context shows that such was the intention of the testator.”

Rawle’s Third Revision of Bouvier’s Law Dictionary defines bequest, legacy and devise as follows:

“Bequest: A gift by will of personal property. Vol. 1, page 399.

“Legacy: A gift of personal property by last will and testament, Vol. 2, page 1900;

“Devise: A gift of real property by a last will and testament. Vol. 1, page 861.”

Webster’s unabridged dictionary defines the words bequest, legacy and devise in this manner:

“Bequest: 1. The act of bequeathing or leaving by will.

“2. Law. A legacy of personal property.

“Legacy: Property, especially personal property, bequeathed by a testator: a bequest;

“Devise: 1. Law. A gift of lands by a last will and testament.

“A bequest and a legacy differ from a devise in that they bequeath personal property, but the word is sometimes loosely used for any testamentary disposition of property.

“2. The act of bequeathing lands.

“3. A will, or a clause of a will, conveying real estate.”

It must be remembered in searching for judicial interpretation of the word “devise,” that certain references made in the Volume of Ohio Jurisprudence on the subject of wills, deals solely with the differences between ancestral and non-ancestral property, and the law cited therein has nothing to do with the problem here involved.

In a strict sense, the word “devise” is the proper term- to be used in a will to denote a gift of real property, and a “devisee” is, then, in this strict sense, a recipient of real property. .

But it must be noted that in the will under consideration, written apparently by a layman, the descriptive verbs “give, devise and bequeathe” are used repeatedly in each of the first nine items, without any attempt by choice of verbs to distinguish beween gifts of real property and personal property.

Under the circumstances it seems unlikely and artificial suddenly, in Item 10, to impose on the testator’s apparent intent a strict construction of the word “devisee.” There had been no intent in the preceding nine items to place a strict technical meaning on these legal words. In fact, one can imagine the testator asking, “What shall I call the various beneficiaries, if not ‘devisees’? ‘Bequeathees’? ‘Bequestees’?”

It is stated in Moon, Admr., v. Stewart, 87 Oh St 357: “Rules for construing wills are less rigid than those for construing other instruments. Where a will bears the earmarks, as in this case, of having been drawn by a layman, and not by a lawyer, the court in the endeavor to arrive at the intent of the testator will not view the language technically, but liberally, and with reference to its popular meaning. It is very rare that any two wills present precisely the same question, and, therefore, in construing doubtful clauses the court will ascertain the intention of the testator, as the language of such clauses may reasonably be interpreted in the particular case, it has been well said that cases on wills may well guide as to general rules of construction, but unless a case be directly in point in its essentials circumstances and data, it should have little weight with the court.”

In Page on Wills, Volume 1, under the subject of Definitions, this Court notes that there are two classifications of definitions, technical meanings and popular meanings. Under popular meanings the work says that the word “devisees” in a loose and popular sense may be applied to one to whom personalty is given by will, and that “bequeath,” and “devise,” are frequently interchanged in popular usage. “Devise” is often used to refer to personalty and “bequeath” to include realty. See: Evans v. Price, 118 Ill. 593; Borgner v. Brown, 33 Ind. 391; Ladd v. Harvey, 21 N. H., 514; Allen v. Cameron, 181 N. Car., 120; Breen v. Davies, 94 Kan., 474; In re White, 125 N. Y., 544; In re Campbell, 27 Utah, 361; White v. Mass. Institute, 171 Mass. 34; Tyrell v. Kelley, 104 Neb., 555.

There can be no hard and fast rule which would prevent words from being wings of intended action. The term “goods and effects,” has been held to be broader than the word “goods,” and is generally held to pass real estate as well as personalty. 54 A. L. R., 97. In such cases a court must look into the whole will with the view of ascertaining the sense in which the terms were used by the testator, and, when such sense is ascertained, to give it the effect intended. The words “personal estate,” concededly have the technical reference only to personal property, but when there is apparent intent to include real estate, courts have given such construction. Davisson v. Sparrow, 58 Abs 529. The obvious intent of the testator must prevail over the strict grammatical construction of testamentary language. All rules of construction, however logical or authoritatively promulgated, are useful only so far as they aid, if they do, in reaching the correct conclusion of testator’s intent. 41 O. Jur., pages 576 and 642.

Where intent appears otherwise courts ought not permit themselves to be enslaved by mere technical words. This Court’s extensive study of the instant case reveals, from voluminous litigation, that evils have resulted from some lawyers and judges seemingly love for the past, and technicality. We have greatly contributed to the eclipse. Legal language should not be the lawyers mystic art, but must communicate to be his tool. His words must deal with the ordinary happenings and facts of everyday life, and activity. Slow has been the lawyers willingness to loosen his grip on legal .jargon. It is said that as late as 1800, lawyers in the accounting office of the English Exchequer, kept money accounts in Roman numerals rather than Arabic. Antiquity can only be justified if accuracy demands it. Useless and redundant words are common in wills. Commonly used is “I give, devise and bequeath my property, real, personal and mixed.” What meaning could be given the word give, that is not covered by bequeath and devise? How does mixed property, whatever it is, differ from real or personal property?

Unless a testator attempts to offend the law, or public policy, his intent must become the guiding rule. This must be ascertained from the language used in the will, read in the light of known surrounding circumstances at the time of execution of the will, and with an eye kept on the subject matter of disposition.

Construction given to any part of the will should conform to the general scope and purpose, each part shall be construed with the others to make a consistent whole. Parker v. Parker, 13 Oh St 95; Townsend v. Townsend, 25 Oh St 477. Intention is not to be gathered from a detached portion alone. Williams v. Leach, 17 Oh St 171; Ashworth v. Carleton, 12 Oh St 381; Creamer v. Harris, 90 Oh St 160.

It is stated in Page on The Law of Wills, Vol. 2, at See. 921:

“In construing his will the Court may take into consideration the fact that the draftsman of the will was on the one hand a lawyer who knew and appreciated the problems which were involved, and who was able to use technical legal terms to express the intention of the testator, or on the other hand, a man who was not learned in the law, who did not understand the problems which were involved (and) who did not know the correct use of technical legal terms ... if the will is drawn by one who is not a trained lawyer, the Court will be more inclined to assume that the will is written in the language of the layman, and will regard the language of the will as used in its popular rather than its technical meaning.”

It is concisely stated in 95 C. J. S., Sec. 611:

“As a general rule, the meaning of a doubtful word, phrase, or sentence may be ascertained by reference to the meaning of words, phrases, or sentences associated with it, or by comparison with words used in other parts of the will. . . . (A)nd so a doubtful word, phrase, or sentence may be construed by comparing it with similar words, phrases, or sentences in other parts of the will in which the intent of the testator is clear.”

It is the opinion of this Court, and this Court so holds that the clear and obvious intent of the testator in Item 10 of his will was that all of the persons named in the preceding nine items thereof, including the Wright Memorial E. U. B. Church, the Newark Hospital, and the Newark Public Library, should share equally in the residuary estate, being all “beneficiaries” or, as stated by the testator, “devisees.”

This Court brings this opinion to a close with the hope it has not transgressed upon the admonition of Pope, who said words are like leaves, and where they most abound, much fruit of sense beneath is rarely found.


author: By HUNSICKER, PJ.

text:
    STATE, ex rel. FARLEY, Plaintiff, v. BOARD OF EDUCATION OF THE EUCLID CITY SCHOOL DISTRICT, Defendant
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24594.
    Decided December 29, 1958.

      George S. Womer, for plaintiff.
    Paul H. Torbet, Dir. of Law, for defendant.
    (HUNSICKER, PJ, of the Ninth District, HORNBECK, J, of the Second District, and PETREE, J, of the Tenth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

This is an original action in mandamus filed in this court by Charles W. Farley, a former teacher in the schools of the city of Euclid, Ohio, herein called “Euclid.” In this action, Mr. Farley seeks to compel the Board of Education of the Euclid City School District to grant him a continuing contract of employment as a teacher in the school system.

Charles Farley was first employed as a school teacher by Euclid on September 8, 1952, for the school year 1952-1953. He then held a four-year provisional teacher’s certificate, given to him by the Division of Certification of the Department of Education of the State of Ohio (§3319.24 R. C.). The contract by which Mr. Farley was hired is known as a limited contract, as provided for by §3319.11 R. C.

Mr. Farley was re-employed by Euclid on a limited contract basis for the school years 1953-1954, 1954-1955, 1955-1956, 1956-1957. For the school year 1957-1958, he was recommended for a limited contract probationary period as provided for by §3319.11 R. C. He was not employed by Euclid for the school year 1958-1959. It was the failure to grant him a continuing contract for the school year 1958-1959 that gave rise to this action.

In January, 1956, Mr. Farley made an application to the Department of Education of the state of Ohio for an eight-year professional certificate, as provided for by §3319.25 JR. C. The application was marked “certificate granted 9-1-56,” and further marked “certificate mailed 2-15-56.” (This was according to the custom of tl)e department to date all certificates as of September 1 of each year, although sent to the applicants immediately after they were processed and approved, which was usually a number of months prior to September.)

Mr. Farley said he received this certificate about February 18, 1956, and thereafter placed it in a container or bag known as the “school mail bag,” which was a method whereby written communication was maintained between the school where Mr. Farley was teaching and the office of the superintendent of schools for Euclid, herein called “superintendent.” No record was kept by Mr. Farley as to the date when he placed this certificate in the “mail bag.” No record was found in the office of the superintendent that the certificate was received in the regular course of the delivery of such interoffice communications.

In a memorandum kept by the secretary to the superintendent and directed to him, a statement was made that the professional certificates of Mr. Farley and others were “turned in” to the office of the superintendent after April 23, 1956. This memorandum also stated that Mr. Farley and the others named “should be eligible for a continuing contract for 1957-1958.”

Another memorandum made by the secretary to the superintendent, apparently a year later, stated that Mr. Farley and others would be eligible for continuing contracts effective with the school year 1958-1959.

Mr. Farley received and signed a limited contract for the year 1956-1957, and served under that contract for that school year. He knew that it was the same kind of limited contract under which he had previously taught, yet he made no inquiry regarding his status, and he did not inquire as to what had become of his professional certificate, which he said he had sent to the superintendent in February, 1956.

On April 25, 1957, the superintendent sent to Mr. Farley a letter to the effect that, in accord with §4842-8 GC (which was actually §3319.11 R. C.), he, the superintendent, would recommend Mr. Farley for a one-year limited contract with Euclid, for the school year 1957-1958. He further stated that, at the close of that school year, Mr. Farley would be eligible for a continuing contract. He requested Mr. Farley to make an improvement in this teaching, as previously outlined to Mr. Farley by a Mr. McBride. Mr. Farley served under that contract for the school year 1957-1958.

On April 23, 1958, the superintendent informed Mr. Farley, by letter, to the effect that he would not be recommended for a position in Euclid for the school year 1958-1959, and would not be granted a continuing contract as provided for by §3319.11 R. C. This original mandamus action, filed in this court, is the result of the failure of Mr. Farley to secure a teacher’s continuing contract with Euclid,

It must be noted that there is no provision in law for a board of education to receive notice, from any source, of the granting of a professional teacher’s certificate. There is nothing in the law which requires the teacher-recipient of such certificate to file it with a board of education. We do believe, however, since the teacher is the one who is to benefit by having such a certificate, that the teacher should, if he expects to secure the benefits, see that the professional certificate is filed in the office of the board of education, and he should not rely on others to take it to that board.

We find that Euclid did not have notice of the professional status of Mr. Farley until after April 23, 1956. We further find that Mr. Farley accepted a regular limited contract and performed, under that contract, services as a school teacher without bringing to the attention of the proper authorities that he could claim at least a recommended limited contract for a maximum period of two years.

That portion of the teacher’s tenure act (§3319.01 et seq, E. C.), which applies here, §3319.11 E. C., in part, reads as follows:

“Teachers eligible for continuing service status in any school district shall be those teachers, qualified as to certification, who within the last five years have taught for at least three years in the district, and those teachers who, having attained continuing contract status elsewhere, have served two years in the district, but the board of education, upon the recommendation of the superintendent of schools, may at the time of employment, or at any time within such two-year period, declare any of the latter teachers eligible.

“Upon the recommendation of the superintendent that a teacher eligible for continuing service status be re-employed, a continuing contract shall be entered into between the board and such teacher unless the board by a three-fourths vote of its full membership rejects the recommendation of the superintendent. The superintendent may recommend re-employment of such teacher, if continuing service status has not previously been attained elsewhere, under a limited contract for not to exceed two years, provided that written notice of the intention to make such recommendation has been given to the teacher with reasons therefor on or before the thirtieth- day of April, but upon subsequent re-employment only a continuing contract may be entered into.

“A limited contract may be entered into by each board with each teacher who has not been in the employ of the board for at least three years and shall be entered into,, regardless of length of previous employment, with each teacher employed by the board who holds a provisional or temporary certificate.

“Any teacher employed under a limited contract is, at the expiration of such limited contract, deemed re-employed at the same salary plus any increment provided by the salary schedule unless the employing board give such teacher written notice of its intention not to re-employ him on or before .the thirtieth day of April or thirty days prior to the termination of such teacher’s school year, whichever date occurs the earlier. Such teacher is presumed to have accepted such employment unless he notifies the board in writing to the contrary on or before the first day of June, and a contract for the succeeding school year shall be executed accordingly.”

A careful reading of the sections dealing with the employment of teachers (§3319.01 R. C., et seq), shows that, as to teachers who do not have or are not eligible for continuing service status, the superintendent of schools is not required to make a recommendation to the board of education before a limited contract is entered into with one who is hired as a teacher. The board of education enters into the contract with or without a statement from the superintendent of schools, and unless such board notifies a teacher, before the statutory date, of his nonemployment, the teacher is deemed hired on a limited contract for the ensuing school year. The superintendent of schools does not have the authority to hire or fire in such a circumstance. This, in effect, is the holding in State, ex rel. Rutherford, v. Barberton Board of Education, 148 Oh St 242, and the conclusion reached in State, ex rel. Foster, v. Madison Twp. Board of Education, 151 Oh St 413. Our case here is not similar to those cases.

The situation with a continuing contract is different from that involving a limited contract. In the employment of a teacher under a limited contract, there is no exercise of the discretion called for by an official and a recorded recommendation of the superintendent of schools.

Although there is undoubtedly a nomination of the teacher by the superintendent, for a limited contract of employment, he is not required, under the statute (§3319.11 R. C.), to take any official action with reference to that teacher. Where, however, a teacher has met the prerequisites for continuing service status, the superintendent must make a recommendation that such teacher be re-employed in the school system. This recommendation of employment must be accepted, unless the board rejects the recommendation by a three-fourths vote of its full membership.

It is thus seen that there can be no employment of a teacher, under a continuing contract, without a recommendation by the superintendent to that effect made to the board. Mr. Farley was not recommended for a probationary continuing-service contract in 1956-1957, but only for a limited contract, which contract he accepted and performed. Mr. Farley was recommended and notified for a continuing-contract probationary period for the school year 1957-1958, under the statute which provided for such probation period, when Euclid became aware that he had obtained the necessary prerequisite professional certificate and length of service status. This probationary recommendation was not made continuous by recommendation of the superintendent for the next school year, 1958-1959. Mr. Farley was notified by letter, dated April 23, 1958, that he would not be recommended by the superintendent for a continuing-service contract.

Unless Mr. Farley attained continuing-service status when he was re-employed for the school year 1956-1957, a time when he had a professional certificate and the required years of prior service, he cannot now claim the benefit of the statute providing for continuous-service status.

We do not believe he attained this status at that time. First, he did not notify the proper school authorities that he had the required professional certificate; second, he signed a contract for and performed his duties under a limited contract; third, he did not have the prerequisite recommendation from the superintendent to the board of education that he be hired under a limited contract (for a period not to exceed two years); and fourth, no written notice of the intention to make such a recommendation was given to Mr. Farley, with reasons therefor, on or before April 30, 1956.

Since Mr. Farley does not have the necessary recommendation of the superintendent for a continuing-service contract, he cannot compel the Board of Education of the Euclid City School District to employ him.

The writ sought herein must be denied.

Writ denied.

HORNBECK and PETREE, JJ, concur.