text:
    STATE, ex rel. BOARD OF EDUCATION OF COLUMBUS, Relator, v. DUNN, County Auditor, Respondent.
    Common Pleas Court, Franklin County.
    No. 202718.
    Decided November 29, 1958.

      William Saxbe, Attorney General.
    Russel Leach, City Attorney.
    Earl Allison, Asst. Prosecuting Attorney.
   OPINION

By SATER, J.

Relator has brought its petition in mandamus. It alleges that on June 25, 1956, a majority of the adult resident freeholders in a portion of Jefferson and Truro Townships of Franklin County petitioned the Board of County Commissioners of that county for annexation of that territory to the City of Columbus. The Board duly approved this petition on October 5, 1956, and on June 3, 1957, the Council of the City of Columbus by ordinance duly accepted the annexation of that territory: by reason of the foregoing, that territory became and constituted a part of the City of Columbus and also of the Columbus City School District. The petition further alleges that despite the foregoing, respondent Auditor has failed and refused, and still fails and refuses, to list the real property within that territory for taxation within the said Columbus City School District and to certify to the Franklin County Treasurer for collection the levies of relator Board upon such property, in that territory, as a result of which nonfeasance relator has suffered and will continue to suffer irreparable loss of tax revenue, and, for this, it has no adequate remedy at law. The prayer is for an alternative writ and, in due course, for a final writ requiring respondent Auditor to list such property in that territory for taxation within the relator District and to certify to the Franklin County Treasurer for collection relator Board’s levies upon such property in that territory.

Following the granting of an alternative writ by this Court, respondent Auditor demurred to the petition on the ground that it does not set forth facts sufficient to constitute a cause of action. Soon thereafter, the Ohio State Board of Education was granted leave to intervene as a party respondent, and in the course of a few days it, too, demurred on the ground that the petition does not state facts sufficient to constitute a cause of action. Since neither respondent raised the question of sufficiency or lack of parties relator or respondent, we may take it that for the purpose of this proceeding, all parties are before the Court necessary to a ruling on the factual sufficiency of the petition. As to parties relator, see State, ex rel. Spiker v. Commission, 141 Oh St 174; as to parties respondent, further meritorious joinder in view of what follows herein is difficult to imagine. Let it further be noted that neither party respondent chose to controvert by answering any of the allegations of the petition, or to modify them in any way. See High School Board of Education v. Board of Education, 96 Oh Ap 429, 435.

That the factual situation may be clearly before the reader to aid his understanding of the ruling that is to follow, it is well to point out here that the parties have agreed for the benefit of the Court on two matters; (1) The territory involved by annexation herein, consisting of about 620 acres, is contiguous to the eastern limits of the City of Columbus, is roughly rectangular in shape and lies astride the JeffersonTruro Township’s line with the larger segment being in Jefferson Township on the north and the remainder in Truro Township on the south. The territory constitutes only a small part of either Jefferson Township School District or of the Reynoldsburg School District of Truro Township. Within this territory and on running south from the JeffersonTruro line is a tract of about eight acres, the owner of which refused to enter the Columbus City School District; thus this tract is (a) in and a part of the Reynoldsburg School District of Truro Township, although isolated from it and from the Jefferson Township School District, is (b) in and a part of the City of Columbus for all except school purposes, and is (c) in and a part of Franklin County. There is no indication whether any one of school age resides on that eight-acre tract. (2) The Court may consider as though offered in evidence the two exhibits, A and B, attached to relator’s answer brief to the demurrer of respondent Auditor. Exhibit A is the “Policy Guide Relative To Transfer of Territory For School Purposes Pursuant To A Municipal Annexation” which is dated September 16, 1957, and was passed by respondent State Board on September 9, 1957, three months after the annexation in question had been completed. Exhibit B is a tabulation showing the present mandate tax rates, in mills, on the eight-acre tract referred to above, the downward proration necessary to bring these rates within the 10-mill limit, and the resultant dollar loss that such proration will bring to County, School District and City if the status quo continues. It reads as follows:

Mandated Rates

2.35 Franklin County

6.40 Reynoldsburg S. D.

3.14 Columbus___________

11.89

' 10 mills divided by 11.89 = 0.8410428 mills

Franklin County 0.8410428 x 2.35 = 1.9764 2.00

Columbus 0.8410428 x 3.14 = 2.6409 2.60

10.000 Mills 10.00

Loss based on present estimated Tax Duplicate - -

Man Adjusted Loss Rate Millage Estimated Loss In Valuation Dollars

Franklin County 2.35 2.00 0.35 $1,542,762,610 $ 539,967

Reynoldsburgh S. D. 6.40 5.40 1.00 8,838.930 8.839

Columbus 3.14 2.60 0.54 1,017,814,360 549,620

11.89 10.00 1.89 $1,098.42«

As to the eight-acre tract, the first of these three tabulations shows in mills the mandated tax rates of each of the three subdivisions wherein, as noted above, it is located. The second tabulation shows how the three rates must be prorated downward in order to meet the 10-mill maximum. The third tabulation shows the loss in dollars to the three subdivisions from the proration which must take place if the status quo continues; the dollar loss column on the right represents the estimated valuation times mandated rate in the first column less the estimated valuation times the adjusted rate in the second column. Also, let it be noted that the mandated rate for relator School District is not set out because it is not affected by this proceeding, at least at this moment.

We now pass to a consideration of the matters raised by the demurrers, bearing in mind that factually we have a 360-aere annexed territory contiguous to the City of Columbus lying in two townships each of which for the purpose of this case, has its own school district covering its share of that territory; and in its southern segment, Truro Township, there is an eight-acre tract that is not a part of relator School District, i. e., it is an island fronted on the north by Jefferson Township with its school district, is situated in Truro Township, and is also surrounded in the west, east and south by the Reynoldsburg School District which is a part of Truro Township.

Two portions of the Ohio Constitution relate to the matter at hand.

Section 4, Article VI, states that:

“There shall be a state board of education which shall be selected in such manner and for such terms as shall be provided by law. There shah be a superintendent of public instruction, who shall be appointed by the state board of education. The respective powers and duties of the board and of the superintendent shall be prescribed by law.”

The other is the first, and for our present purpose, the only relevant, clause of Section 2, Article XII, Ohio Constitution:

“No property, taxed according to value, shall be so taxed in excess of one percent of its true value in money for all state and local purposes, * * *”

Article II, Section 26, Ohio Constitution, may also be apposite and should therefore be set out:

“All laws, of a general nature, shall have uniform operation throughout the State; nor, shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except, as otherwise provided in this constitution.”

Pursuant to section 3 of Article VI which need not be quoted here in full, the General Assembly by a succession of enactments over the decades, made due legislative provision for the creation and functioning of city, village, township and county school districts and boards of education. Pages 1499-1504, 1914-1918 and 1928-1933 of volume II of the Proceedings of the Constitutional Convention of 1912 show the deep concern for local control of local school matters. Sometime later, the General Assembly created the State Board of Education of Ohio, the intervening respondent herein. To give added authority to respondent, the General Assembly enacted what is now §3311.06 R. C., which reads as follows:

“The territory included within the boundaries of a city, local, exempted village, or joint vocational school district shall be contiguous except where a natural island forms an integral part of the district.

“When territory is annexed to a city or village, such territory thereby becomes a part of the city school district or the school district of which the village is a part, and the legal title to school property in such territory for school purposes shall be vested in the board of education of the city school district or the school district of which the village is a part; provided, that when the territory so annexed to a city or village comprises part but not all of the territory of a school district, the said territory shall become a part of the said city school district or the school district of which the village is a part only upon approval by the state board of education. In event territory is transferred from one school district to another under this section, an equitable division of the funds and indebtedness between the districts involved shall be made under the supervision of the state board of education and that board’s decision shall be final. After the effective date of this section, no action with regard to the transfer of school district territory pursuant to annexation to a municipality shall be completed in any other manner than that prescribed by this section.”

This is not a new statute but its last sentence and the clause,

“provided, that when the territory so annexed to a city or village comprises part but not all of the territory of a school district, the said territory shall become a part of the city school district or the school district of which the village is a part only upon approval by the state board of education,”

were passed June 20, 1955, and became first effective on September 9, 1955.

The last sentence just referred to provides that,

“After the effective date of this section, no action with regard to the transfer of school district territory pursuant to annexation to a municipality shall be completed in any other manner than that prescribed by this section.”

Since their enactment, these two amendments have created such legal uncertainty among all affected political and educational agencies and subdivisions and have caused such harrassment of the statutory legal advisors of those agencies and subdivisions that they approach unwarrantedly close to Herbert Hoover’s apt phrase “an experiment noble m purpose.” But in obvious recognition that nobility alone does not constitute here constitutional clearance, all counsel have furnished the Court with full briefs ably and cogently aimed at guiding us properly through the labyrinths of these amendments as they impinge upon other statutes and upon their foundation in the Ohio Constitution. These briefs turned, pro or con, on the three issues felt to be involved: (1) the unwarranted and unconstitutional delegation, especially without statutory rules, standards, guidance or limitation, of legislative power by the General Assembly to respondent State Board, — in many respects a blanket delegation of the power of absolute veto over the acts and wishes of any subordinate governmental body or citizens group, (2) the possible future proliferation of small, independent school boards and districts all incidental to annexations by expanding municipalities and often without regard to either economic or educational ability to function properly, and (3) the impact of Section 2, Article XII, Ohio Constitution, as quoted above.

Consideration of the first of these three issues is presently needless, not only because what may therein be unconstitutional in one situation may conceivably be proper in another, but also because, primarily, any such delegation, even if made must ultimately stand or fall on the constitutional power of the General Assembly to make any such delegation. Furthermore, consideration of the second of these issues, especially since it does not exist herein at this time, should be deferred until actual need for consideration arises. In turning, then, to the third issue, we will shortly review the relevant constitutional principles, even at the risk of being elementary in the process.

The government has only such sovereign power as the people have conferred upon it. Any prerogatives that the state may have come only from the sovereign power of the people and must be looked for in the grant of powers expressed in the Constitution itself. These powers cannot be enlarged by the repository of the delegated authority; otherwise the Constitution would be made more than it was when it came from the people’s hands, changed, if not actually subverted without the author’s consent. So set down, the Ohio Constitution is the primary and paramount law, prevailing over statutes repugnant to it. No exigency can arise great enough to justify a violation of the provisions of the Constitution; what the Constitution grants, no statute may take away; where the Constitution speaks, statutes should remain silent. And courts may declare legislation void when the General Assembly has exceeded its power; yet in this process, where the validity of an act is assailed, and there are two possible interpretations, one of which would render it valid and the other invalid, the Court will adopt the former so as to bring the act into harmony with the Constitution. 10 O. Jur. 2d, 278-279, 176, 189, 242, Youngstown v. Fishel, 89 Oh St 247, 255, State, ex rel. Columbus v. Ketterer, 127 Oh St 483, 495, Russian Fleet v. U. S., 282, U. S. 481, 492, 75 L. Ed. 473, 478, N. L. R. B. v. Steel Corp., 30 U. S. 1, 30, 81 L. ed. 893, 908, Rose Institute v. Myers, 42 Oh St 483. It is settled that a constitutional question will not be decided until the necessity arises on the record before the Court. Belden v. Ins. Co., 143 Oh St 329, Cancer Society v. Dayton, 160 Oh St 114, 125; but that necessity exists here both because the issue of multiple new school districts is not dis-positive of this case and also because the effect of delegation of legislative powers and of rule making activities are the tail that go with the hide of underlying statutory constitutionality.

We are not confronted here with the irreconcilibility of two statutes as was the case in State, ex rel. Guilbert v. Halliday, 63 Oh St 165, nor with judicial compulsion to elect between two or three equally proper and constitutional courses of action as in State, ex rel. Masters, v. Beamer, 109 Oh St 133. But we are confronted with the principle that before a statute may be declared unconstitutional, it must be clearly in conflict with some provision of the Constitution. Miami County v. Dayton, 92 Oh St 215, 222. That conflict is here present.

We are confronted with a statute which, with its recent amendments, is a clear execution of Section 4, Article VI, Ohio Constitution, which reasonably comports with Section 3 of the same Article and which (though it is a question not here in issue) does not present violence to Section 26, Article II, Ohio Constitution; but which on the agreed factual picture of Exhibit B, quoted above, is a patent, irreconcilable violation here of the first clause of Section 2, Article XII, Ohio Constitution, also quoted above, insofar as it creates, permits, or allows to continue in existence, a mandated tax rate of more than ten mills, here 11.89. The appearances of respondents Dunn and the State Board in this case in this Court are general. Even the Attorney General candidly agrees on page 5 of his brief that relator (city) Board of Education is a proper party to maintain this action. Yet we have here, also, an eight-acre tract in Franklin County, in the Reynoldsburg School District and in the City of Columbus with a resultant mandated tax rate that is unconstitutional so far as it exceeds ten mills. Opinion No. 7421 of the Attorney General, cited 1956 O. A. G., 813, provides that in such a situation all mandated levies be prorated downward until they then total no more than ten mills. This seems to us to be as proper as it is necessary a solution; and all necessary parties are before the Court to accomplish that result. In discussing that opinion in his brief here, the Attorney General again candidly, and accurately, stated that he “was faced with a direct and irreconcilable conflict between the constitution and a particular statute, and he held logically that at that point of direct conflict the former must prevail.” We accept that statement for the purposes of this case as being sound in logic and law; further, what applies to one phase of the public education program through §5705.31 R. C., applies with equal force to a complementary phase of the same program through §3311.06 R. C., as amended.

The irony of our situation lies in the application of this principle of proration, as the sole acceptable alternative to patent unconstitutionality, to the facts of our case. Thus: our eight-acre tract with its 11.89 mandated tax rate lies within the three separate taxing districts listed above. Also, a subsequent sentence of Section 2, Article XII, Ohio Constitution, requires that a tax levy be uniform throughout the entire taxing district. There is no blinking the fact that the necessary and unavoidable proration for the benefit of the eight acres lowers the millage for all of Franklin County by 0.35 mills, the millage for all of the Reynoldsburg School District by 1.0 mills and the millage for the entire City of Columbus by 0.54 mills. What tabulation No. 3, above, shows this to mean dollarwise is of as little import as is our comment that the foregoing is a perfect illustration of three taxing districts being wagged by their constitutional tail; what is important is that when the Constitution speaks, statutes are silent whether it be mills or dollars. What is important is that here, the seeming discretion of respondent State Board may be lawfully and constitutionally be exercised in only one direction; under such circumstances, relator demand of the respondent State Board is as pure a formality as is the action of that Board itself. No order of this Court in such a situation can impede or improperly compel exercise of administrative discretion; there is none.

Nor must we await injunctive action by the resident owner of the eight-acre tract. If our Court may note in Matz v. Cartage Co., 132 Oh St 271, 286, that “The Legislature is not always in session * * *,” so here may we note that injunctive relief is not always sought regardless of the righteousness and certainty of the cause. Of equal if not greater significance is a factual situation which no legislature could reasonably have been expected to foresee; yet again, “The Legislature is not always in session,” nor are its future enactments always capable of correct or even approximate anticipation.

The foregoing leaves §3311.06 R. C., pro tanto constitutional for the purposes of this case. It strikes down only the use of any portion thereof which creates or allows the continuance of an unconstitutional result. There is ample authority for this especially because it follows our Ohio Constitution without placing subdivisional “grab” above educational individuality in situations such as are found here.

Mandamus is the proper remedy for the situation confronting us. Fischer v. Damm, 36 Oh Ap 515, State, ex rel. Bruml, v. Brooklyn, 126 Oh St 459; State, ex rel. Selected Properties v. Gottfried, 136 Oh St 469, 475, High School Board v. Board of Education, 96 Oh Ap 429, State, ex rel. Bridge Com. v. Griffith, 136 Oh St 334, Neff v. County Commissioners, 166 Oh St 360. In and by virtue of §3311.06 R. C., respondent State Board is given as absolute and unfettered a discretion to accept or reject an act of annexation as one might readily imagine. Yet that discretion must fall within the ambit of Section 2, Article XII, as well as Section 4, Article VI, Ohio Constitution, both quoted above. Here there is neither room nor place for utilization of discretion, it is simply nonexistent until the ten mill maximum, or less, is reached. We consequently need presently consider neither the “Policy Guide" of respondent Board of Education nor the propriety or the extent of the powers statutorily delegated to respondent Board; consideration of each of them may await appropriate future challenge since their propriety here coincides with that of the statute which gave them birth. This is a situation which completely distinguishes In the Matter of the Adoption of Uniform Rules and Regulations, No. 5947, 80 Abs 129, decided by our own Court of Appeals last month.

We acknowledge the sixth syllabus of Belden v. Ins. Co., supra, that he who claims a statute is unconstitutional under a given set of facts must prove it so, but we find that such proof is amply present. The constitutionality of a law, however, may be determined by its operative effect though on its face it may be apparently valid; though proper and valid when passed, its future operations may directly contravene the organic law. Castle v. Mason, 91 Oh St 296, State, ex rel. Columbus v. Ketterer, supra, Ry. v. Walters, 294 U. S., 405, 415, 79 L. ed. 949, 955. Though it is a canon of construction that statutory enactments are passed with reference to the provisions of the existing constitution and are to be interpreted, if possible, in accordance therewith, it is not unknown to find a statute valid under one article of the constitution, yet void under another. State, ex rel. Shaffer, v. Otter, 106 Oh St 415, 420. This principle was recognized and approved by the statement that “The question of constitutionality must be determined in the light of the Constitution in its entirety” found on page 282 of Board of Elections v. State, ex rel., etc., 128 Oh St 273. As noted above, if a statute is susceptible of two constructions, one making it constitutional and the other unconstitutional, it is the duty of the court (as we have done here) to adopt the former construction and to restrict the operation of the statute within constitutional limits. N. L. R. B. v. Steel Corp., and Russian Fleet v. U. S., both cited above; and also New American Library v. Allen, 114 Fed. Supp. (Ohio), 823, syll. 7. Here, as in Ry. v. Walters, supra, we find that a statute valid on one set of facts may be invalid on another. Porter v. Investors Syndicate, 286 U. S. 461, 470, 76 L. ed., 1226, 1231-32, holds that if possible a statute should be so construed as to avoid unconstitutionality. This we have here done.

In passing, the remedy proposed by the attorney general for the financial difficulties of the subdivisions revealed in this case is for the General Assembly to provide; yet by the Matz case, supra, upon which he elsewhere relied, “The legislature is not always in session * * *,” a situation which is true here and now. Yet there are present in this case all parties needful to a prompt disposition of those financial difficulties if they are material to a prompt determination and lawful disposition of the case — the respondent State Board which for one reason or another, be it lack of request, uncertainty of power, reluctance to act, or whatnot, has done nothing for more than a year, even though it had here no constitutional choice over its course of action; and respondent Dunn who should be able to move promptly under the circumstances though ordinarily his function would be purely ministerial in conjunction with some prior administrative act for which here this decision and ensuing entry shall perforce substitute. And agreedly we have a proper relator.

Nor can the Attorney General be overly happy in his official capacity and duty in defending a statute and a client in the face of Section 2, Article XII, supra. His opinion No. 1472 cited also above and written in 1S58, is followed by two later opinions to the same respondent State Board concerning its powers, its functions and their lawful proper use. In the first, No. 1308, dated November 19,' 1957, relating to the vexities of territorial contiguity, we find this paragraph.

“Where any action is taken by the board, relative to changes in the boundaries of school districts, that involves very considerable tax losses to other subdivisions which share these revenues, and where there is no showing that the efficiency of the schools in either district compellingly requires such losses to such other subdivisions, a very serious question is raised whether the board is not, in bringing about such tax revenue losses, abusing its discretion in the matter; and if the validity of the board’s action should be challenged in litigation, I should not relish the task of defending its action in such a situation.”

A'month later, December 20, 1957, Opinion No. 1452 closed with the following:

“In my Opinion No. 1308, supra, I stated that I should not relish the task of defending the board’s action in bringing about the million dollar tax revenue loss therein described in a case where the welfare of the schools involved did not compellingly require such loss.

“In the instant case, I shall be equally candid. I should relish even less having the board, by delaying action beyond January 1, 1958, make what is in effect a wager of one million dollars of the city and county revenues that the conclusions I have expressed above are correct. Accordingly, I suggest that the conservative course is to avoid the possibility of such loss of revenues by action in the pending case prior to January 1, 1958.”

We respect the Attorney General’s candor and insight into the impossible choice between action resulting in unconstitutional rate or non-action resulting in a million dollar loss.

The demurrers of both respondents are overruled. Exceptions noted. Submit entry.


source: Caselaw Access Project

author: By BRYANT. PJ.

license: Public Domain

text:
    STATE, ex rel. BOARD OF EDUCATION OF COLUMBUS, Relator-Appellee, v. DUNN, County Auditor, Respondent, and STATE BOARD OF EDUCATION, Intervening Respondent-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6076.
    Decided August 25, 1959.

      Russell Leach, City Atty., Alba L. Whiteside, Asst. City Atty., Columbus, for relator-appellee.
    Earl W. Allison, Pros Atty.. Columbus, for respondent.
    Mark McElroy, Atty. Geni., John A. Hoskins, Asst. Atty. Geni., Columbus, for State Board of Education.
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By BRYANT. PJ.

The Columbus Board of Education, relator-appellee herein, filed a petition for writ of mandamus in the Common Pleas Court of Franklin County, Ohio, naming as respondent, Fred C. Dunn, Auditor of Franklin County, Ohio.

It was alleged in the petition that a tract of 630 acres, formerly located in Truro and Jefferson Townships in Franklin County, had been annexed to the city of Columbus and it was further alleged that as a result of this annexation, the tract automatically became a part of the Columbus School District. The petition further alleged that notwithstanding this fact, the county auditor refused to treat the said tract as a part of the Columbus School District, refused to impose on real prop erty located in said tract the tax levies for school purposes of the Columbus School District and further refused to certify the amounts of said school taxes to the treasurer of Franklin County for collection.

The petition also contained allegations of irreparable injury to relator and further claimed that relator was without any other adequate remedy at law. The allegations and prayer of the petition read as follows:

“Now comes the relator, the Board of Education of the Columbus Ohio City School District, and says that it is a body corporate and politic organized and existing pursuant to the laws of the State of Ohio, with the power to sue and be sued: that the defendant Fred C. Dunn is the duly elected and qualified Auditor of Franklin County. Ohio.

“Relator further says that on June 23. 1956, a majority of the adult resident freeholders in a portion of Jefferson and Truro Townships, Franklin County, Ohio, hereinafter described, filed a petition with the Board of County Commissioners of Franklin County, Ohio, for annexation of sa^d territory to the City of Columbus, a municipal corporation: that on October 5. 1956 the aforesaid Board of County Commissioners, after a hearing and due consideration of the petition and the merits thereof, approved the request for annexation: and that on June 3, 1957, the Council of the City of Columbus, by Ordinance No. 781-57. accepted the annexation of said territory and that said territory thereby became and constitutes a part of the City of Columbus, Ohio.

“Relator further says that by reason of the annexation of the aforesaid territory of the City of Columbus, the said territory became a part of the Columbus, Ohio City School District. Said territory being described as set forth in said Ordinance No. 781-57, a copy of which is attached hereto and marked Exhibit ‘A’ and made a part hereof as fully as if written herein.

“Relator further says that despite the fact that the aforesaid territory constitutes a part of the Columbus, Ohio City School District, the respondent has failed and refused and continues to fail and refuse to list the real property within said territory for taxation within the Columbus. Ohio City School District, and to certify to the County Treasurer for collection the levies of the Eoard of Education of the Columbus. Ohio City School District upon the real property situated in said territory.

“Relator further says that it will suffer irreparable injury if the respondent continues to fail to perform his duty through loss of tax revenue from the aforesaid territory and that it has no adequate remedy at law.

“WHEREFORE, the relator prays that an alternative writ of mandamus be issued ordering and directing the respondent to list the real property within the aforesaid territory for taxation within the Columbus, Ohio City School District and to certify to the County Treasurer for collection the levies of the Board of Education of said school district upon the real property situated in said territory or to show cause why said writ should not be issued, and upon the failure by the respondent to show cause, that a final writ of mandamus be issued so.ordering and directing the respondent, and for such other relief as relator may be entitled to, and for its costs herein expended.”

The county auditor demurred to the petition upon the ground “that the petition does not set forth facts sufficient to constitute a cause of action.” In the memorandum in support of the demurrer, it was argued that the petition fails to allege that the tract of land annexed was “the whole of the local school district in which said territory was formerly, and is located.” It was further argued that the petition fails to allege that the State Board of • Education has approved the transfer of the territory from the Jefferson Township and Reynoldsburg Local School Districts to the Columbus City School District. This argument was based on the provisions of §3311.06 R. C., which provides in substance that where an entire local school district is annexed to a city, said tract automatically becomes a part of the city school district, but if the tract is a part only of a local school district, annexation to the city does not transfer said tract to the city 'school district until the approval of the State Board of Education is obtained. Sec. 3311.06 supra, R. C., provides in part as follows:

“When territory is annexed to a city or village, such territory thereby becomes a part of the city school district or the school district of which the village is a part, and the legal title to school property in such territory for school purposes shall be vested’ in the board of education of the city school district or the school district of which the village is a part; provided, that when the territory so annexed to a city or village comprises part but not all of the territory of a school district, the said territory shall become a part of the said city school district or the school district of which the village is a part only upon approval by the state board of education. In event territory is transferred from one school district to another under this section, an equitable division of the funds and indebtedness between the districts involved shall be made under the supervision of the state board of education and that board’s decision shall be final. After the effective date of this section, no action with regard to the transfer of school district territory pursuant to annexation to a municipality shall be completed in any other manner than that prescribed by this section.”

In opposition to the demurrer, counsel for the Columbus School Board attacked the constitutional validity of said §3311.06 supra, R. C., claiming in substance that the power given to the State Board was a delegation of legislative power with no standard set up to guide the State Board in administering it.

Two exhibits are attached to the brief of the Columbus School Board. The first one, Exhibit A, consists of photostatic copies of a two-page “Policy Guide” adopted by the State Board and a copy of a letter of transmittal of said policy guide over the typed signature of E. E. Holt, Superintendent of Public Instruction. The policy guide has to do with the transfer of territory for school purposes pursuant to municipal annexation. The other exhibit, Exhibit E, consists of one-page of computations relative to the so-called mandated tax levies for Franklin County, the Reynoldsburg School District and the city of Columbus. Exhibit B was used to substantiate the claim of the relator that a severe reduction in tax revenues would follow if the provisions of §5705.31 R. C., were adhered to.

After the filing of said briefs, a motion was filed on behalf of the State Board of Education to be permitted to intervene in the case as a party respondent, the motion asserting that the State Board has “a vital interest” in the litigation “adverse to the relator.” It was further claimed that the State Board has “a justiciable interest” which apparently was its desire for “uniform application” throughout the state of law relating to the State Board.

In the memorandum supporting the motion, the State Board urged that it “can contribute its analysis of the facts and law to aid the court at arriving at a decision.” On behalf of the Columbus Board, the motion to intervene was opposed. The Columbus Board argued that the State Board had no interest in the controversy and was not entitled to be made a party to the case. Counsel for the Columbus Board conceded that the State Board should be permitted to file a brief as friend of the court but had no right to be made a party. This objection, however, was overruled by the trial court and the State Board was “permitted to intervene as a party respondent.”

Thereafter counsel for the State Board filed a demurrer to the petition “for the reason, apparent on its face, that said petition does not state facts sufficient to show a cause of action.”

After the various briefs were filed, the matter was submitted and the trial court handed down a seventeen-page decision upholding the contention of the Columbus Board that §3311.06 supra, ft, C., is unconstitutional as applied to the facts in this case. From this decision, it is revealed that the 630 acre tract not only was in Truro and Jefferson Townships prior to the annexation but that it also had been a part of the Reynoldsburg School District of Truro Township of which it was nor the whole but only a part, facts not found anywhere in the petition.

It would seem that if the real property in the tract in question formerly had been subject to school taxes in the Reynoldsburg School District and by the mandamus action now before the court was to be made subject to school taxes in the Columbus School District, due process would require that the Reynoldsburg School District be made a party to the litigation. It is true that the three parties to this lawsuit did not raise this issue, but it is also true that Reynoldsburg School District nowhere appears to be a party of record, nor was its appearance entered, nor were any waivers of its rights put into the record.

In the journal entry which followed the decision by the trial court, it was held that §3311.06 supra, R. C., “as applied to the facts of this case” was unconstitutional and contrary to the provisions of Section 2, Article XII, Ohio Constitution. It was further held that the two demurrers should be and were overruled and it was stated that neither the county auditor nor the State Board desired to file an answer to the petition or any further pleadings. It was therefore ordered by the trial court that final judgment be entered in favor of the Columbus Board and that a writ of mandamus be issued against the county auditor in accordance with the prayer of the petition. The journal entry specifically ordered the county auditor to list the real property in the 630 acre tract for taxation in the Columbus School District and to certify to the county treasurer for collection the school levies of the Columbus Board on said property.

Within the period allowed by law, notice of appeal was filed on behalf of the State Board which also filed its brief and assignment of errors containing twelve alleged errors committed by the trial court. An answer brief was filed on behalf of the Columbus Board and a reply brief on behalf of the State Board. The journal entry setting forth the judgment and final order of the court below was filed December 2, 1958. No notice of appeal was filed on behalf of the county auditor. As to him, the order of the trial court long since has become final. That order directed the county auditor to list the real property in question in the Columbus School District as subject to the school tax thereof and to certify to the county treasurer the school levies to be imposed.

The county auditor in electing not to appeal was under a clear duty to comply with a writ of mandamus issued by the trial court and we are entitled to assume that he has made a full and complete compliance with that order. The effect of all of this is to make the questions pending on appeal moot and to remove from this court the power to decide them. If the county auditor has listed the real property in the 630 acre tract as subject to the school tax levies of the Columbus Board and if the county auditor has certified the amounts of school taxes due, to the county treasurer for collection, what is left for the trial court or any other court to order him to do? Every act prayed for in the petition has been ordered to be performed and we assume has been done a long time ago.

It is true that the trial court or this court upon proper application might have stayed or suspended the order issued by the trial court awaiting the outcome of the appeal. However, we are unable to find where any such suspension or stay order was issued nor where any application therefor was made.

It is of course well settled that it is not the duty of courts to answer questions which have become moot. One of the early cases so holding was Miner v. Witt, City Clerk, 82 Oh St 327, decided by the Supreme Court of Ohio in 1910. The syllabus in this case reads as follows:

“It is not the duty of the court to answer moot questions, and when pending proceedings in error in this court, an event occurs without the ault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error.”

In 3 O. Jur. (2d) 539, Appellate Review, §603, Moot Cause, it is said: “It is well settled that where, by a change of circumstances or otherwise pending an appeal on questions of law, the questions which would be presented to the reviewing court have become purely academic or abstract, and any judgment which the court might render thereon would in no way avail, or be beneficial, to, any party, the proceeding will ordinarily be dismissed, because it is not the duty nor responsibility of the court to answer moot questions.”

To the same effect, see Smith, Aud., v. Board of Tax Appeals, 159 Oh St 183; Commercial Motor Freight, Inc. v. Public Utilities Commission of Ohio, 161 Oh St 58; Dudek, dba Joe Dudek Coal Mining Co., v. United Mine Workers of America et al., 164 Oh St 227, and The State, ex rel. Spencer v. Montgomery County Board of Elections et al, 166 Oh St 147.

For the reasons above set forth, the issues in the ease have become moot. It being impossible for this court to grant the relief sought, the several assignments of error and each of them will be overruled, the appeal will be dismissed and the judgment of the court below affirmed.

DUFFY and WISEMAN, JJ, concur.


author: By DUFFY, J.

text:
    STATE, ex rel. BURCHARD, Plaintiff-Relator, v. STATE BOARD OF EXAMINERS OF ARCHITECTS OF THE STATE OF OHIO, Defendant-Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6175.
    Decided September 15, 1959.

      Taft, Stettinius & Hollister, Cincinnati, Knepper, White, Richards, Miller & Roberts, Grant S. Richards, of Counsel, Columbus, for plaintiff-relator.
    Mark McElroy, Atty. Geni., Columbus, Maurice J. Leen, Jr., Special Counsel, Dayton, for defendant-respondent.
   OPINION

By DUFFY, J.

This is an original action in which a writ of prohibition is sought to prevent the State Board of Examiners of Architects from proceeding with an adjudication hearing involving the license of the relator to practice architecture. A charge was brought against the relator under the provisions of §4703.15 (B) R. C. The respondent board has filed a demurrer to the petition on the grounds that the petition does not state facts which show a cause of action. The petition sets forth a notice containing the charges against relator which were as follows:

“You are hereby notified that the State Board of Examiners of Architects of the State of Ohio proposes to revoke your certificate to practice architecture within the State of Ohio by reason of fraud and deceit in your professional practice, such action being a ground for revocation of certificates of architecture under §4703.15 (B) R. C., of the State of Ohio.

“The charges against you are based upon your continued course of conduct permitting an Ohio corporation, to-wit, A. M. Kinney, Inc., of Cincinnati, Ohio, to unlawfully practice architecture by acting as an agent of said corporation and as such performing services constituting the practice of architecture, well knowing that such practice of architecture by a corporation, through you, was unlawful; that while so engaged in making it possible for said corporation to unlawfully practice architecture, you did fraudulently and/or deceitfully represent, and allowed and permitted representations to be made by others to the effect that you were engaging in the practice of architecture as a partner in a fictitious non-existent partnership known as ‘A. M. Kinney Associates’ knowing full well you were in fact an agent of, and performing such service as, an agent of A. M. Kinney, Inc.”

The relator raises the question as to whether the respondent board is attempting to revoke relator’s license upon the basis of a charge, which in substance, describes no offense for which it has statutory authority of revocation and, therefore, the respondent should have no right to adjudicate. The brief of the relator also raises the question as to whether they have an adequate remedy other than prohibition.

The writ of prohibition is a high prerogative writ to be used with great caution in the furtherance of justice and only when there is no other regular ordinary or adequate remedy. See State, ex rel. Nolan v, Clem Denning, 93 Oh St 264, and Green v. Ohio State Racing Commission, 70 Abs 485. It is a writ which may be invoked against the courts or tribunals possessing judicial or quasi-judicial powers in order to keep them within the limits of their own jurisdiction. Prohibition is directed to the court or tribunal commanding it to cease from the exercise of jurisdiction which it does not possess. It will not issue to restrain action where the tribunal has jurisdiction of the subject matter and of the person, nor is it to be used to keep a tribunal from deciding the question erroneously.

Has the State Board of Examiners of Architects of the State of Ohio jurisdiction to do the acts which the relator is asking this court to prohibit? Sec. 4703.15 R. C., does give that board power to revoke any certificate of qualification to practice architecture under certain conditions, and the relator has been given notice of the charges brought, so that it appears the board does have jurisdiction to act.

The respondent State Board of Examiners of Architects of the State of Ohio is a board subject to the provisions of Chapter 119 R. C., commonly referred to as the Administrative Procedure Act.

Sec. 119.12 R. C., provides for an appeal from the order of the agency, and further provides that the court may grant a suspension of the order, fix its terms and, upon final determination, may reverse, vacate or modify the order or make such other ruling as is supported by the evidence and the law.

Relator concedes that it has been assumed by many that under the provisions of §119A2 R. C., an appeal could be made directly to the Common Pleas Court. However, he believes the Board of Review Act, Chapter 4743 R. C., adopted in 1953, alters this procedure since the law gives the Board of Review reviewing jurisdiction over the adjudicating agency’s acts and decisions. Relator states that insofar as they know, the provisions of Chapter 4743 R. C., have never been invoked but, in view of the decision of the Supreme Court of Ohio, in the case of State, ex rel. Lieux v. Westlake, 154 Oh St 412, he would be required to exhaust his administrative remedies which would include relief through the Board of Review before he could appeal to the court.

Sec. 4743.03 R. C., provides:

“Any person aggrieved by any act of any board, commission or agency created under or by virtue of Chapters 4701. to 4741., inclusive, R. C., may register such grievance with a board of review, consisting of the secretary of state, who shall act as chairman, auditor of state, and treasurer of state * *

The acts of this Board of Review are also subject to the provisions of the Administrative Procedure Act. It would appear that §4743.03 R. C., is a permissive section and such a review is not a prerequisite to an appeal to the courts under the provisions of §119.12 R. C., where the right of appeal is given “any party adversely affected by any order of an agency * *

The demurrer will be sustained for the reason that the State Board has jurisdiction to do the acts complained of and the plaintiff has an adequate remedy at law. The writ will be denied.

BRYANT, PJ, concurs.

MILLER, J, not participating.


author: By HUNSICKER, J.

text:
    GREENFIELD, Contempt, In re, Appellant.
    Ohio Appeals, Ninth District, Wayne County.
    No. 1152.
    Decided February 25, 1959.
    Funk & Funk, Brouse, McDowell, May, Bierce & Wortinan, for appeljgmk

      James K. Leedy, Pros. Atty., Richard Kauffman, Asst. Pros. Atty., for trial judge.
   OPINION

By HUNSICKER, J.

This is an appeal on questions of law from a judgment of contempt entered by the Judge of the Juvenile Court of Huron County, Ohio, sitting by designation in Wayne County, Ohio.

The judgment from which the appeal is taken is as follows:

“Julius Greenfield having this day been guilty of misbehavior in the presence of the Court in this, to wit, that he did take a photograph through the door of the court room while the Court was in session, after the Court had directly warned and cautioned him against taking any pictures of the Court Proceedings. It is ordered and adjudged that as a punishment for said contempt he pay a fine of $100 and costs and he shall be committed to the county jail until said fine and costs are paid and that a warrant be issued for such commitment.

“It is further ordered that in the event Julius Greenfield desires to appeal, the bond for appeal will be fixed at the sum of $150.”

The bill of exceptions is included herein in its entirety:

“This day, to wit, March 12, 1958, at a hearing in the Wayne County. Common Pleas Courtroom, Wooster, Ohio, before the Hon. Don. Young, Norwalk, Ohio, Judge of the Juvenile Court of Huron County, presiding in the matter of Case No. 2841, State of Ohio v. John P. and Salome Hershberger; Case No. 3109, State of Ohio v. Eli J. and Elizabeth Hershberger, and Case No. 3110, State of Ohio v. Emanuel and Mary Slabaugh, the following incident took place:

“The bailiff called to the Court’s attention the fact that a man was standing in the corridor outside the courtroom with a camera pointed toward the courtroom visible through the glass of the closed door. The Court commanded that the man be brought before him.

“The Court: What is your name?

“A. Julius Greenfield, Chief Photographer of the Akron Beacon Journal.

“The Court: I issued an order that no photographs were to be taken in the courtroom while Court was in session, — were you taking a photograph?

“A. Yes, outside the courtroom.

“The Court: I am going to find you in contempt of Court.

“Bailiff, will you have the sheriff step in and take this man into custody.

“Thereupon the sheriff appeared before the Court.

“The Court: Will you take this gentleman into custody until these proceedings are over and I will ask you to bring him Back. He is in contempt of court.

“Thereupon, after cases Nos. 2841, 3109 and 3110 were disposed of, the sheriff brought Julius Greenfield back to the courtroom.

“The Court: Mr. Greenfield, step forward. The statute says that a Court may summarily punish a person guilty of misbehavior in the presence of or so near the Court as to obstruct the administration of justice. If a person is found guilty he may be fined not more than five hundred dollars ($500), or imprisoned not more than ten (10) days, or both.

“The canons of judicial ethics require that no photographs be taken while the Court proceedings are in progress. I feel myself bound by the law which has been adopted by the Supreme Court.

“Through the bailiff I issued notice that no photographs were to be taken of these proceedings. You admit you were taking a picture?

“A. From the corridor.

“The Court: But you were taking it through the door.

“A. That’s right.

“The Court: I am going to fine you one hundred dollars ($100) and costs, and you are to be committed until the fine and costs are paid.”

The alleged contemptuous act which Julius Greenfield was charged with committing was based upon §2705.01 R. O., which reads as follows:

“A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.”

This section, it is seen, permits a finding of guilty of contempt for obstructing the administration of justice.

The record fails to disclose that Julius Greenfield obstructed in any manner the administration of justice. If there was any obstruction of justice by anyone, it was the court bailiff who “called to the court’s attention” the taking of pictures through a window of the closed door which opened into the courtroom. The record does not show that the court was disturbed by this act until notified by the bailiff.

The order which the court said had been disobeyed was an order “that no photographs were to be taken in the courtroom while court was in session * *

This order was not violated, because the unrefuted and uncontradicted evidence shows that pictures were taken only outside the courtroom.

It is upon such a record as this, that a finding of guilty is based. Julius Greenfield was then taken into custody by the sheriff, and remained in custody until disposition of the cases there being heard.

Thereafter, Julius Greenfield was brought back into court; and the trial judge, by way of explanation for his oral pronouncement of guilt, then stated that the order which the bailiff is supposed to have issued at the instruction of the trial judge was that “no photographs were to be taken of these proceedings.” Of course, that was not the order upon which he was found guilty and committed to the custody of the sheriff.

This court is unanimous in its opinion that no proof of a violation of the statute (§2705.01 R. C.), has been shown in this case.

The judgment must be reversed and the appellant discharged.

Judgment reversed, and final judgment rendered for the appellant, Julius Greenfield.

DOYLE, PJ, STEVENS, J, concur.


author: By LYBARGER, J.

text:
    STATE, Plaintiff, v. KOWAN, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 69234.
    Decided October 16, 1958.

      John T. Corrigan, Pros. Atty., Thomas L. Osborne, Asst. Pros. Atty., Cleveland, for plaintiff.
    Hertz & Kates, David Ralph Hertz, Cleveland, for defendant.
   OPINION

By LYBARGER, J.

The defendant, Michael Kowan, was indicted on two counts. The first being that he unlawfully and knowingly had in his possession and under his control certain magazines containing certain obscene, lewd, and lascivious writings, prints, pictures, photographs, drawings and articles. The second count being that he unlawfully and knowingly did exhibit certain magazines containing certain obscene, lewd and lascivious writings, prints, pictures, photographs, drawings, and articles. He is now before the court by way of a demurrer to said indictments.

The demurrer raises the constitutionality of the statutes under which .he was indicted, generally on the following grounds, equal protection, due process, the right of free speech and press, the inviolability of private property and the right to possess private property under both our state and federal constitutions. The question before this court, therefore, is in view of the provisions of the constitutions which he cites, has he been properly indicted? The Court has examined all of the 'raestions raised by the defendant and for the reasons set out below finds that he has.

The principal Ohio statutes here involved are §§2905.34, 2905.35, 2905.-37 and 3767.01 R. C. Sec. 2905.34 defines the crime and states the penalty; Sec. 2905.35 R. C., permits destruction of the property after conviction; §2905.37 R. C., exempts certain publications for various reasons; and §3767.01 R. C., so far as it relates to the questions raised in this case, says that “* * * §§2905.34 and 2905.35 R. C., shall not affect * * * any newspaper, magazine or other publication entered as second class matter by the Post Office Department.”

The defendant contends that §2905.37 R. C., exempts druggists in such a way that a druggist would be permitted to sell a publication which a book seller is not even permitted to possess.

This Court feels that admittedly obscene literature is in many respects similar to narcotics, and for the purpose of the demurrer herein the thirty-one publications set out in the indictment admittedly contain certain obscene material. In Roth v. U. S., 354 U. S. 476, 77 S. C. 1304, 1 L. Ed. 2nd 1498, the Supreme Court held that there was no need to prove that obscene material perceptibly created a clear and present danger of antisocial conduct or that it would induce its recipients to such conduct, but that when material is obscene it appeals to the prurient interest. Thus as a narcotic physically poisons the mind and body and is injurious to both moral qualities and physical structures, State v. Martin, 193 L. A. 1036, 192 S. 694, so, too, does admittedly obscene material' mentally poison the mind causing, “itching, morbid, lascivious longings of desire, curiosity or propensity for the lewd,” Webster’s New International Dictionary, 2nd Edition.

“The cry against the circulation of obscenity raised by the law abiding community is a legitimate one; and one with which Congress, the state legislatures, and the courts have been seriously concerned.” See U. S. v. Thiry-one Photographs etc., 156 F. Supp. 350.

The Court holds that the classification of druggists in the exception found in §2905.37 R. C., is reasonable as it limits the druggist to the regular course of his business as a druggist and supplier of medical supplies and does not grant to him any special privilege as the seller of periodicals to sell to the public obscene material, see Pulley v. State, 217 S. W. 2nd, 855.

The claim that possession in and of itself can not be wrong is overcome for the same reasons as have been applied above. Society has a right and the necessity of protecting itself from the prurient interests of any individual aroused by obscene literature. Under federal law mere possession can not of itself be made a crime, Pierreeno v. U. S. 271 F. 912, but under state law this is not true, Peachie v. State, 100 A. 2nd 1, and mere possession may be sufficient, State v. Martin, supra, also see People v. Gory, 170 P. 2nd, 433, at page 435, where even knowledge was held unnecessary. Here the indictment states that the defendant knowingly and unlawfully had possession, thus the state must prove knowledge. Sec. 2905.34 R. C„ does not aver possession under all circumstances but only when such articles or publications are unlawfully and knowingly possessed or exhibited and these two questions must also be determined, see U. S. v Nicholas, 97 F. 2nd, 510, where the same questions were raised as to mailing obscene literature. The danger to the community as a whole is just as great whether the possessor holds the obscene literature solely for his own purposes as it is when he exhibits or jt to others.

The statutes are clear and definite as to what the crime is, and lay down a definite standard of criminal liability, U. S. v. Rebhuhn, 109 F. 2nd 512.

The other exceptions as to the exemptions granted in §2905.37 R. C., are likewise held to be invalid, see U. S. v. Thirty-One Photographs, etc., supra.

The entry of a newspaper or periodical publication as second class matter with the Post Office does not give the federal government the right to censor, Esquire, Inc. v. Walker, 151 F. 2nd, 49. That which is obscene is non mailable under any category, Title 18, No. 1461 U. S. Code, U. S. v. Harris, 122 F. 551, U. S. v. Gaylord, 50 F. 410. The U. S. Code at Title 39 Nos. 224 to 235 sets out the manner in which certain newspapers and other periodical publications become second class mail and for a state to interfere with these publications while they are under the exclusive jurisdiction of the federal government would be unthinkable. This Court, therefore, construes the language as found in §3767.01 R. C., set out above, not to be an exception, but rather a means of preserving the validity of the obscenity statutes so that it can not be claimed that the Ohio Legislature was attempting to regulate that which it could not constitutionally regulate.

Since 1909 the constitutional guarantees of freedom of speech, religion, and press have been held to have no relation to any obscene, lewd or lascivious paper or writing, Knowles v. U S., 170 F. 409. In the years following many federal and state courts have passed on this question, and have come to the same conclusion, State v. Becker, 272 S. W. 2nd, 283. This question is no longer debatable in the light of Roth v. U. S. supra, see pages 484 and 485.

The remaining question before the court is whether in the light of the test first evolved by Judge Woolsey in the case of U. S. v. One Book Called “Ulysses,” 5 F. Supp. 182, and finally refined and adopted by the Supreme Court in Roth v. U. S., supra, are possible of adaption to this case since the indictment says, “said magazines containing certain obscene, lewd, and lascivious writings, prints, pictures, photographs, drawings, articles” (Emphasis added), and the test as finally evolved for judging obscenity adequate to withstand the charge of constitutional infirmity is “* * * whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest” (Emphasis added) Roth v. U. S. supra.

What then is meant by “taken as a whole” and can our statutes and this indictment withstand the charge of constitutional infirmity?

When Judge Woolsey first examined this problem, he was looking at a work of some merit. In his opinion he states that “Ulysses” was a long and often confusing book. Nowhere in the book did the judge detect a leer of the sensualist. The judge found that Joyce was attempting to develop a particular technique and that he followed this technique throughout the entire book. Although he found some dirty words, he found nothing that he considered to be “dirt for dirt’s sake” and “each word of the book contributes like a bit of a mosaic to the detail of the picture which Joyce is seeking to construct for his readers.”

As Judge Hand reviewed the case of U. S. v. One Book Entitled “Ulysses,” 72 F. 2nd, 705, he approved of the test and found that the book taken as a whole, “did not tend to excite sexual impulses or lustful thoughts but that its net effect was only that of some tragic and very powerful commentary on the inner lives of men and women.” Thus arose the test that the court should examine the effect of the book as a whole and not merely some passages which could be called obscene.

It was not long before the arguments used to defend “Ulysses” were used to defend other books and in the case of U. S. v. Two Obscene Books, 99 F. Supp. 760, it did not take Judge Goodman very long to determine that the use of confession and avoidance was not proper and that when there were long, filthy descriptions of sexual experiences, practices, and organs, then clearly the book is obscene and any argument that the book as a whole is a literary mosaic is mere sophistry.

It, therefore, became apparent to the courts that neither the number of obscene or objectionable passages nor the portion they bear to the book as a whole were controlling in determining whether the book was obscene and although the test as to a determination of the whole was upheld, the court also looks to the dominant purpose of the publisher in distributing the book, Besig v. U. S., 208 F. 2nd, 142.

What the dominant purpose of a publication is and who is to decide what the dominant purpose is has never really been decided, Esquire, Inc. v. Walker, supra, but it must be realized that most of the cases before our federal courts have involved either books which were written as a whole or magazines which had one thing as their theme, U. S. v. 4200 Copies International Journal, 134 F. Sup. 490.

Thus we find that the magazines whose general theme is to stress a stag party type of treatment or smoking room type of humor have never been tested by the federal courts as to whether or not they are obscene when they embellish their content with an obscene article and/or an obscene picture as an appeal to the prurient interest without changing the dominant purpose or theme of the magazine in its entirety. To permit magazines to print obscenity under the guise of mere vulgarity would be an abuse of the tests first evolved by Judge Woolsey.

This court concurs with Judge Bettman when in Cincinnati v. Walton, 76 Abs 162, at page 169, he said,

“What I have loosely grouped together as ‘mens magazines’ are more difficult to classify in terms of what the intent of the authors or publishers may be. Being magazines designed to amuse or delight the reader without educational intent, the line between obscenity and permissible gaiety or pleasure is rather fine.

“The prosecution has contended in its brief that the generally accepted requirement that in judging obscenity a book must be viewed as a whole, does not apply to magazines where stories and pictures are not related to one another. In this the court generally concurs. The “as a whole” test was built up by the courts to escape from the absurd result that was produced when one took, out of contexts, isolated passages from a sincere book. But where the parts are not specifically related —where, as here, you have a succession of pictures and stories, each conveying an individual message — each can be judged individually. The entire magazine should be examined to cast light on the publisher’s intent but an individual picture or story in a magazine not related to the whole can be tested by the principles hereinbefore set out, and can be found obscene.”

In adopting the language just set out above, this court is not ignoring nor is it disinclined to reject the arguments set out in State v. Lerner, 51 Abs 321. The court feels the opinions are generally compatible. The Court must, in the light of the Roth case reject any idea of applying the “any obscenity” test, but in so doing it need not find the indictment herein improper. The indictment states that certain magazines contained certain obscene material and then sets out the list of some thirty-one publications. What the dominant purpose of these magazines is, is not for this court to decide at this time. This court at a later date with or without the assistance of a jury must decide by the application of the tests set out above whether or not the magazines are obscene.

In holding as it has, the Court is in agreement with Judge Struble in the case of State v. Lerner, supra, and finds that the main part of §2905.34 R. C., and the amendment thereto are severable. The main part of the statute says:

“No person shall knowingly sell, lend, give away, exhibit, or offer to sell, lend, give away, or exhibit, or publish or offer to publish or have in his possession or under his control an obscene, lewd, or lascivious book, magazine, pamphlet, paper, writing, advertisement, circular, print, picture, photograph, motion picture film, * * *” the amendment continues:

“or book, pamphlet, paper, magazine, not wholly obscene but containing lewd or lascivious articles, advertisements, photographs, or drawings, representation, figure, image, cast, instrument, or article of an indecent or immoral nature, * * *”

In severing the amendment the Court does not invalidate the main portion of the statute. The obscene literature provision with the amendment may not seem to be impartial in its operation, but the amendment is responsible for any existing defect. Standing alone the main part of the statute is impartial in its operation and this inhibition includes all forms of literature. Magazines are, therefore, included in the first portion of the statute and the court need not attempt to follow the “not wholly obscene” test as set out in the second portion.

As to magazines, the Court finds that “taken as a whole” must be construed as it was in the case of Cincinnati v. Walton, supra, and that our Ohio statutes, and this indictment withstand the charge of constitutional infirmity. The demurrer, therefore, is overruled.


author: By McClelland, J.

text:
    GINDER and SMITH, Co-Executors, Plaintiffs, v. GINDER et, Defendants.
    Probate Court, Franklin County.
    No. 155674.
    Decided December 28, 1954.
    Forrest R. Detrick, Frank A. Koenig, for executors.
    Kennedy & Kennedy, for Union Cemetery Association.
    Guy G. Cline, Circleville, for Floyd Woolevcr.
    McClelland & DeVennish, for Violet Roush and Edwin Roush.
   OPINION

By McClelland, J.

DECISION ON APPLICATION FOR DECLARATORY JUDGMENT

This matter comes before this court on an application filed by Bernice Ginder and Irvin G. Smith, co-executors of the Last Will and Testament of Floyd E. Ginder, deceased, against Bernice Ginder, et al.

Upon examination of the file, the court finds that all of the parties are before the court, either by summons or by entry of appearance. The only defendant who has filed an answer herein is Union Cemetery Association. The plaintiffs ask the court’s declaration as to certain matters set forth in the application.

We must now look to the contents of the will. By item second, the testator asks that his remains be interred in Forest Rose Cemetery at Lancaster, Ohio, and also directs that his executors shall buy and have erected a suitable monument upon his grave.

By item third of the will, he directs that the sum of $300.00 be paid to the Trustees of the above named cemetery, to be held in trust and the income to be used to keep up his lot.

By item fourth of the will, he bequeaths the sum of $500.00 to the Trustees of Darbyville Methodist Church, the same to be held in trust and the income to be used in providing Christmas cheer and gifts for the children of the community. He further provides that if the church should be disbanded, then the same shall be given to White Cross Hospital as a memorial to himself and his wife.

By item fifth of the will, he gives to the Trustees of the Lancaster Hospital the sum of $1000.00 in memory of the Ginder family.

By item sixth of the will, he devises to three different persons the old family homestead in Lancaster, Ohio.

Item seventh of the will consists of the following language:

“I give, devise and bequeath to my wife, Bernice Ginder absolutely all of the remainder- of the personal property of which I may die seized and a life estate in all of the remainder of the real estate of which I may die seized.”

Item eighth of the will consists of the following language:

“Subject to the life estate of my wife, I give, devise and bequeath the property known as 27 and 29 Midland Ave., Columbus, Ohio, to Violet Roush for and during her natural life and then to the heirs of her body. Should she have no such heirs then the same shall revert to my heirs.”

Item ninth of the will reads as follows:

“Subject to the life estate of my wife I give, devise and bequeath the five (5) family apartment in Lancaster, Ohio, and purchased from my father’s estate, to Irvin G. Smith, Nada Smith Kerr and Mary Jane Kegley, share and share alike.”

Item tenth of the will reads as follows:

“Subject to the life estate of my wife, I give, devise and bequeath all of the property in Fairfield County, Ohio, which I purchased from my father’s estate, to Irvin Smith, Nada Smith Kerr and Mary Jane Kegley, share and share alike.”

Item eleventh of the will consists of the following language:

“All of the remainder and residue of the real estate of which I may die seized, and in which my wife, Bernice Ginder, shall have a life estate, is hereby divided into four (4) shares, which I give, devise and bequeath as follows: One share to Violet Roush and Edwin Roush; one share to William Carpenter, Jack Carpenter and Edwin Roush; one share to Harold Farmer, Sr., and Floyd Woolever, if they are still tenants on my farm; and one share to Irvin Smith, Nada Smith Kerr and Mary Jane Kegley.”

We will not take up the questions propounded by the application in the order in which they are propounded, but in discussing this will we will discuss the matters in what we consider a logical order.

We first refer to the sixth item of the will, in which the property at 185 East Sixth Avenue, Lancaster, Ohio, is given to the three persons named therein absolutely and in fee simple. In item seventh he gives his wife, Bernice Ginder, a life estate in all of the remainder of the real estate of which he may die seized. It is to be noted in the subsequent items by which certain real estate is specifically devised, he specifically reserves a life estate in those devises. He did not use such language in the devise contained in the sixth item and it is our opinion when he used the word “remainder” in item seventh, he used that in the sense as if he had used the term “residue” rather than “remainder.” If he used the term “remainder” in a technical sense, he should have given a life estate in all of the property and then a life estate in the “remainder,” which, of course, creates an incongruous situation. It is therefore our holding that the devise created by item sixth is not subject to the life estate of his wife, but that all of the real estate devised by the testator, other than that which is disposed of in item sixth, is subject to the life estate of his wife, Bernice Ginder.

The next question which we will consider is whether the federal estate tax, the amount of which will be determined by virtue of the federal estate tax law, shall be paid out of the general estate before distribution, or whether it shall be paid out of the general estate before distribution, or whether it shall be charged against the devisees and legatees and not against such portion as may pass to the surviving spouse. When this application was filed on July 8, 1954, it raised a serious question but that question has now been answered by the decision of the Supreme Court of Ohio, in the case of Campbell v. Lloyd, reported in 182 Oh St 203, and which appears in the November 22, 1954, number of the Ohio Bar, the syllabus of which case reads as follows:

“Where a widow elects under §10504-55 GC, to take under the statute of descent and distribution and the applicable portions of that statute (§10503-4 GO), provide that ‘personal property shall be distributed’ and ‘real estate or inheritance shall descend and pass in parcenary' in part to the surviving spouse, the amount of the federal estate tax on the decedent’s estate should be deducted therefrom before computing the widow’s share thereof. (Secs. 10503-4, 10504-55, 10504-77, 10509-121, 10509-181, 10509-182 and 10510-2 GC, and Section 812 (e), Title 26, U. S. Code, construed and applied. The syllabus in Tax Commission, ex rel. Price, Atty. Genl., v. Lamprecht, Admr., 107 Oh St 535, approved and followed. Paragraphs two, three and four of the syllabus and the decision in Miller et al., Exrs., v. Hammond, 156 Oh St 475, overruled. McDougall, Admr., v. Central National Bank of Cleveland, Trustee, 157 Oh St 45, distinguished.)”

It is to be noted in that syllabus that the decision of the Supreme Court in the case of Tax Commission, ex rel. Price, Atty. Geni., v. Lamprecht, Admr., is approval and followed, and that part of the decision in the case of Miller v. Hammond, reported in 156 Oh St 475, is overruled. Therefore, whether the surviving spouse takes under the will or under the statute of descent and distribution, the federal estate tax is considered a debt against the entire estate and shall be deducted before a distribution.

The next question is to what property we shall look for money with which to pay the debts of the estate. We have a most unusual will in the fact that we have two residuary clauses; one residuary clause disposes of all the remainder of the personal property, and another residuary clause disposes of all the real estate not specifically devised and by which the widow is given a life estate in all the property not specifically devised and the remainder to four other persons in equal shares. Are the co-executors required to exhaust the personal property in the residue of the estate, or is the personal property and the real estate to share in proportion to the amounts which each bear to the total amount of the residuary estate? We have made an exhaustive research in answer to this question. In case there are specific devises and specific bequests and no residuary estate, courts of equity have equitably assessed a certain portion of the debts against personalty and a certain portion against realty. The statutes of Ohio are entirely silent as to the property which must be first exhausted in the payment of debts. One of the statutes provides that when the executor or administrator ascertains that the personal property is insufficient to pay the debts, then he shall proceed to sell the real estate. There is a strong implication in this case that the personal property shall first be exhausted before going to the real estate. Courts of Ohio have held that personal property shall first be exhausted and the practice has been so universal in Ohio that it is now considered to be the law that personal property, especially in intestate estates, shall first be exhausted before going to the real estate.

At Section 197, under title Executors and Administrators, appearing in Vol. 21 of American Jurisprudence, we find the following language:

“At common law the real estate of a decedent vests immediately in his heirs and is not assets in the hands of the executor or administrator for the payment of debts, unless there is a will expressly charging it for that purpose, although in equity, in some instances, it is liable to be subjected to the payment of debts. In many jurisdictions, however, statutes expressly make the realty belonging to the estate of a decedent assets for the payment of debts and expenses of administration and authorize an administrator, after he has exhausted the personal estate, to apply to the court and obtain leave to sell so much of the real estate of which the intestate died seized as will be sufficient to discharge the residue of the debts.”

The foregoing seems to be a clear statement of the law of Ohio. Referring to the Overturf case, appearing in 29 Oh St 230, we.find the Supreme Court has made a similar announcement and which decision has been followed consistently in subsequent reports.

At section 391, under title Executors and Administrators, appearing in 21 American Jurisprudence, page 604, we find the following language:

“It is well settled that the personal property of a decedent is primarily liable for his debts. The realty of a decedent is liable for his debts only after exhaustion of the personalty for the purpose, even though the debts are secured by deed of trust or mortgage on the realty.”

As heretofore stated, there are two residuary clauses in this will, one giving all the remainder of the personal property to the surviving spouse and another residuary clause giving her a life estate in the residue of the real estate, and the remainder to four different persons in equal shares.

At page 681, Volume 42 of A. L. R., we find the following language: “In some cases, instead of the usual residuary clause, the testator has disposed of the residue in such a manner as to indicate an intention on his part to keep the realty and personalty separate, and to dispose of them as two funds, rather than to mingle them into a common mass from which debts and legacies should be paid. The question is always one of intention, to be determined from the particular provisions of the will, and no general rule can be laid down.”

In reading the citations hereunder, we find that it was the intention of the Court to ascertain the wishes or desires of the testator, and when the will was silent on that question, the general rule was applied. We have heretofore stated the general rule applying in Ohio and we are unable to find any language in the will which would indicate that the testator wished his executors to deviate from the general rule in Ohio.

While the Court was considering the foregoing application, Violet Roush and Edwin Roush, on December 22, 1954, filed an answer and cross petition, in which three questions are asked, and the court will now attempt to answer them in the order stated in the cross petition.

Question 1. What items of this will, if any, make provision for either specific legacies or devises as opposed to legacies and devises of a general nature? This question has been answered by the foregoing decision.

Question 2. In the event that the surviving widow of the decedent should elect to take against the will and under the statute of descent and distribution, what rights of exoneration arise in favor of the specific legatees or devisees, and if rights of exoneration are thereby created, what is the measure or amount of same? And if such rights of exoneration are created, to what funds or property comprised in the estate do they attach? In answer to this question the court has made an examination of a number of authorities, one of which is Pomeroys Equity Jurisprudence, and in Vol. 2 thereof, Section 517, at page 462, we find the following language:

“If the person on whom the duty of electing rests elects to take in conformity with the will or other instrument of donation, he thereby relinquishes his own property, and must release or convey it to the donee upon whom the instrument had assumed to confer it. If he elects against the will or other instrument of donation, he thereby retains his own property, and must compensate the disappointed donee out of the estate given to himself by the donor. A court of equity will then sequester the benefits intended for the electing benficiary, in order to secure compensation to those persons whom his election disappoints. This rule is applied in many of the American cases cited below to elections made by widows in favor of their dower and against the testamentary provisions, whereby the interests of other devisees were disturbed. Such disappointed devisees are held entitled to compensation out of the benefits intended to be conferred by the will on the widow, but which she had rejected.”

This principle has been followed by the Supreme Court of Ohio in the case of Jennings v. Jennings, reported in 21 Oh St 56, the third syllabus of which reads as follows:

“Where, in such case, the widow elects to be endowed of the lands of her husband, the devisees who are prejudiced by such election, are equitably entitled to compensation out of the rejected provision made for her in the will.”

The Supreme Court of Ohio has also followed the same principle in the case of Dunlap v. McCloud et al, reported in 84 Oh St 272, the third syllabus of which reads as follows:

“While in such case the devisees who are prejudiced by the widow’s election to be endowed of the lands of her husband, are equitably entitled to compensation out of the rejected provisions made for her in the will, yet where the rejected provisions do not fully compensate, the resulting uncompensated loss should fall upon the residuary estate in preference to the specific devises, unless a contrary intention appears from the will.”

A much later case by the Supreme Court of Ohio supporting the same proposition is the case of Kenyon College v. The Cleveland Trust Co. et al., reported in 130 Oh St 107, to which reference is hereby made.

The remaining portions of the second question this court feels are moot unless and until the surviving spouse makes her election as to whether she will or will not take under the will of her deceased husband. We therefore defer any further decision on that matter until her election is made.

The third question reads as follows: In the event the surviving spouse elects to take against the will and under the statute of descent and distribution, is there an acceleration of the remainder interests which appear by the will to be dependent entirely upon the life tenancy of the said widow? The general rule applying to acceleration of remainders is that a remainder is accelerated by the failure or extinction of the life estate unless there is something in the will to indicate otherwise. This will indicates that it was the intention of the testator to provide his wife an income for life. There is no indication of any other purpose on the part of the testator in creating the life estate and remainders as he did. Therefore, when the widow renounces her life estate, the remainders are accelerated. That is the case in the will now under consideration.

An order may be drawn in harmony with the foregoing findings.


author: Per CURIAM.

text:
    DAVIS, Appellant, v. KLAIBER, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12532.
    Decided February 17, 1956.
    Gerald P. Openlander, Richard B. Swartzbaugh, Toledo, on brief, for appellant.
    Wayne E. Stichter, John R. Eastman of Eastman, Stichter & Smith, Toledo, on brief, for appellee.
    Before SIMONS, Chief Judge, and McALLISTER and MILLER, Circuit Judges.
   OPINION

Per CURIAM.

The appellant filed this action in the Court of Common Pleas, Lucas County, Ohio, seeking damages of the appellee in the amount of $125,000.00 by reason of injuries suffered by her in an automobile accident which occurred while she was riding as a passenger and guest in a Cadillac automobile, owned and being operated at the time by the appellee. Following removal to the U. S. District Court, and the filing of an answer the case was tried to a jury. At the close of appellant’s case the court sustained appellee’s motion for a directed verdict and entered judgment in his favor, from which this appeal was taken.

The case involves the application of the so-called “Guest Statute” in effect in Ohio. Sec. 6308-6 GC, §4515.02 R. C. It provides: “The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.” The complaint alleged that while the appellant was riding as a passenger and guest in the automobile being operated by the appellee on a public highway “said automobile left said highway at a point where said highway makes a 45 degree left turn and collided with a utility pole as a result of the wilful and wanton misconduct of defendant * * *,” causing the injuries thereafter set out and complained of. The appellee’s answer denied that he was guilty of any wilful or wanton misconduct.

The appellant testified about the facts pertaining to the accident as follows: The appellee, whom the appellant had met and with whom she had had dinner about a year previously, had invited her to have dinner with him and was driving from the Press Club in down-town Toledo to an inn in Maumee, Ohio, on the outskirts of Toledo, for that purpose. The appellee was driving 50-55 miles per hour in a southerly direction on U. S. Route 2, where the maximum legal speed was 40 miles per hour; she was sitting on the front seat beside the driver; as the car approached a 45 degree left turn in the highway the appellee without warning took his right hand off the steering wheel, put it up in front of her face, knocking her hat back on her head as he did so, placed his arm around her shoulder, and attempted to kiss her. She was only able to exclaim, “Jack, watch what you’re doing” when the accident happened, rendering her unconscious. There was evidence that a flashing signal was in operation at the turn, but the car went off the road and crashed into a telephone pole, approximately 18 inches thick, breaking it into three pieces, and stopped straddling the stump of the pole. On cross-examination the appellant testified that the relationship between them had been pleasant, and that prior to the incident complained of she had no occasion to complain about appellee’s conduct or his driving.

In sustainting the motion for a directed verdict the District Judge gave a comprehensive oral opinion in which he reviewed the Ohio cases construing and applying the “Guest Statute” and defining wilful and wanton misconduct. Particular consideration was given to Universal Concrete Pipe Co. v. Bassett, 130 Oh St 567 , 5 O. O. 214, 200 N. E. 843, 119 A. L. R. 646: Jenkins v. Sharp, 140 Oh St 80, 23 O. O. 295, 42 N. E. (2d), 755; Tighe v. Diamond, 149 Oh St 520, 37 O. O. 243, 80 N. E. (2d), 122; Helleren v. Dixon, 152 Oh St 40, 39 O. O. 368, 86 N. E. (2d), 777; and Birmelin v. Gist, 162 Oh St 98, 54 O. O. 32, 120 N. E. (2d), 711. Under the Ohio law as construed by those opinions he ruled as a matter of law on the uncontradicted facts that the conduct of the appellee was not wilful or wanton as required by the statute and did not constitute a cause of action in favor of the appellant.

We concur in the reasoning of the District Judge and in the conclusion reached by him.

The judgment is affirmed.


author: By SATER, J.

text:
    KREBS, Plaintiff, v. VIGOR et, Defendants.
    Common Pleas Court, Franklin County.
    No. 201266.
    Decided May 5, 1958.
    Lane, Huggard & Alton, for plaintiff.
    Samuel Devine, Pros. Atty., for defendants.
   OPINION

By SATER, J.

This motion for a temporary restraining order was submitted on the pleadings and oral testimony of four witnesses: the plaintiff and his son, the administrative head of the defendant Board of Education, and the Franklin County Drainage Supervisor.

In 1915 there was duly constructed in Pleasant Township a drainage ditch commencing on the land of Emma Rouff and meandering east and north across, inter alia, plaintiff’s land until it finally empties into Hellbranch Run; the assessments for its construction had long ago been paid. Thus it is not only an “old ditch” (Taylor, etc. v. Crawford, 72 Oh St 560, 563); it is also one available for use by all affected property owners along its course. The upper reaches of this ditch are 12 inches in diameter, the lower reaches 30 inches.

Though plaintiff testified that the ditch was too small even when originally constructed, various small lateral ditches, some on plaintiff’s own land, have over the years been constructed to empty into it. Indeed, for several years one 10 inch and one 12 inch ditch have extended from the property of the Southwestern Local Board of Education, which adjoins the Emma Ruoff property on the west, to the ditch in Question. Recently this Board, whose members are parties defendants here, purchased this last mentioned property and are proceeding to erect a public school building thereon. Construction plans call for waste water drainage into the main ditch in question or the alternative of surface drainage along the lines of nature on the path of least resistance which is likely the route of the same main ditch. The Board has consulted with Emma Ruoff and the County Drainage Engineer, before commencing construction. No party has ever consulted, in order to bring the matter to issue, with the County Commissioners. Asking for both permanent and temporary injunctive relief against the Board’s new lateral connection, plaintiff complains of flooding of his land after hard rains and of accompanying “blow-outs” of drain tile on his land. His reliance on §8131.12 R. C., is not presently in point though it might eventually be quite helpful to all parties concerned.

It may be that when this case is finally heard and determined with regard to permanent relief, a good cause of action may be made. This, we need not here determine. In applying for immediate temporary relief which could well hamstring, if not completely halt construction of the new school building indefinitely, the burden is unusually on plaintiff to “make a case that will recommend itself to the conscience of the court.” Commissioners v. Krauss, 53 Oh St 628, 633-634. This burden has not been presently met.

The motion for a temporary restraining order is denied. An appropriate entry may be drawn.