author: By HURD, PJ.

text:
    STATE, ex rel. CLEVELAND TRUST COMPANY, Executor of the Estate of Julius E. Goodman, Deceased, Relator, v. PROBATE COURT OF CUYAHOGA COUNTY, OHIO et, Respondents. STATE, ex rel. JEWISH COMMUNITY FEDERATION OF CLEVELAND et, Relators, v. PROBATE COURT OF CUYAHOGA COUNTY et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 25090, 25091.
    Decided November 27, 1959.
    Jones, Day, Cockley & Reavis, Henry Kutash, Victor De Marco, Ellis H. McKay, of Counsel, for relators Cleveland Trust Co.
    Burke, Haber & Berdck, for relator, The Jewish Community Federation of Cleveland.

      Ulmer, Berne, Laronge, Glickman & Curtis, for relators, The Mt. Sinai Hospital of Cleveland and Western Reserve University.
    Weitz & Weitz, for relator, The Jewish Children’s Bureau of Cleveland, and for the Individual Relators.
    Richard L. Phillips, for relator, The Montefiore Home.
    A. H. Dudnik, Ellis V. Rippner, for applicant, Janet Altman Hecht.
   OPINION

By HURD, PJ.

These are original actions commenced in this court for writs of prohibition against The Honorable Walter T. Kinder, Presiding Judge, and The Honorable Frank J. Merrick, Associate Judge, of the Probate Court of this county, as parties respondent, seeking to have said judges desist and refrain from any further proceedings now pending in said court upon an application to vacate the probate of a will.

While we are not presently concerned with the merits, it may assist to an understanding of this opinion to set forth briefly that the relators. The Cleveland Trust Company, Executor of the Estate of Julius E. Goodman, Deceased, and The Jewish Community Federation of Cleveland, et al., in their respective petitions, which are in all essentials identical, allege in part that on August 21, 1958, Janet Altman Hecht, who claims to be the sole heir and next-of-kin of the said Julius E. Goodman, Deceased, and who is also a beneficiary under said will, by instrument in writing, filed in the Probate Court of this County, made a part of the records thereof and referred to in said order admitting the will to probate, waived notice of the presentation of said will and codicil to probate and consented to admission of the same to probate; that thereafter on January 14, 1959, said Janet Altman Hecht, not being content with the provisions of said will, filed her action in the Court of Common Pleas of Cuyahoga County, alleging that said documents admitted to probate by said court are not the last will and codicil of said Julius E. Goodman, deceased; that said will contest is now in the course of active litigation in the Court of Common Pleas; that on April 6, 1959, after the term at which said order of probate was made and more than six months after the will was admitted to probate, and while said will contest action was pending and unresolved in said Court of Common Pleas, said Janet Altman Hecht filed in said probate court an application entitled “Application to Vacate Probate of Will and Appointment of Executor,” setting forth her grounds for the request contained in said application; that none of the beneficiaries under said will and none of the parties to said will contest action other than relator, The Cleveland Trust Company as Executor, was made a party to said application to vacate, or was served with notice thereof; that she caused said application to be set for hearing before the respondent, The Honorable Frank J. Merrick, one of the Judges of said court, on April 20, 1959; that upon the filing of said application, said relator filed in said Probate Court its motion to dismiss said application, objecting to the jurisdiction of the said Probate Court to entertain said action to vacate probate for the reason that upon certification of the will and related papers to the Court of Common Pleas, pursuant to §2107.24 R. C., and until the return to the Probate Court of the certificate of the Court of Common Pleas as to the result of the will contest pending in said Common Pleas Court, the Probate Court is without jurisdiction to entertain an application to set aside the order of the probate; and, that any order the Probate Court would render attempting to set aside the probate of the will would be void. It is further alleged that said defendant, The Honorable Frank J. Merrick, Judge of said court, is acting in excess of his jurisdiction and in interference with the jurisdiction of said Common Pleas Court; and, that the Probate Court has neither statutory right nor inherent power to set aside an order of probate upon a motion or application filed after the expiration of the statutory period for contest and at a different term of court without notice to the beneficiaries under said will and any other persons interested therein, and such application is void and ineffectual to confer jurisdiction upon said court to vacate said probate.

Thereafter, upon an alternative writ of prohibition being allowed by this court, returnable on the 9th day of November, 1959, at 11:00 A. M., the said Janet Altman Hecht filed her applications to be made a party defendant respondent in these actions and for leave to move, plead or demur, with brief and affidavit annexed, the said probate judges having failed to file a return.

The sole question now before the court is whether in a prohibition proceeding any person other than the judge or tribunal against whom the writ is sought may be permitted to intervene and defend the proceedings as a party.

We think it unnecessary to emphasize that the writ of prohibition is an ancient common law writ of high prerogative issuing out of a court of superior jurisdiction and directed to an inferior tribunal, commanding it to cease from usurping jurisdiction with which it is not legally invested. Able counsel for the respective parties have filed briefs and after oral argument the issue is now presented to this court for determination.

It is claimed by the applicant, Janet Altman Hecht, that she has an interest in the controversy adverse to the relator by virtue of the fact that relator is opposing the motion now under consideration by the Probate Court and that said applicant, by virtue of her interest in the controversy adverse to relator, does not have to show that she is a necessary party. The applicant cites in support of her application to intervene, the cases of Gross v. Weiner, 23 O. C. C. N. S. 116; Goldhart v. Curry, 43 Abs 65, 62 N. E. 2d 101 (1945); Hudson v. Hoster, 37 Abs 198, 46 N. E. 2d 422 (1942); Barnes v. Christy, 102 Oh St 160, 131 N. E. 352 (1921); and Rosenberg v. Mehl, 37 Oh Ap 95, 174 N. E. 152 (1930).

We have examined the cases cited and find that none of these authorities involves proceedings in prohibition. Because of the nature of an action in prohibition, we deem it necessary to confine our examination to cases which are applicable to such proceedings.

In Ex Parte Indiana Transportation Company, Petitioner, 242 U. S. 281 (1916), 61 L. Ed. 301, 37 S. C. 126, a proceeding in prohibition, the District Judge, Kenesaw Mountain Landis, had been ruled to show cause why the execution of an order should not be restrained for want of jurisdiction. On the day on which the order was returnable, the respondent judge made no response. Instead, the co-libelants, some 270 in number, the persons who would be adversely affected by granting of the writ, asked that they be treated as defendants and be permitted to make response to the petition. The opinion was written by Mr. Chief Justice White by direction of the court. It was there held that the judge who made the order and agaginst whom the writ prayed for, if allowed, was to be directed, was “the essential party defendant,” and therefore intervention was denied, and since the respondent judge had made no return, the time for his return was extended. The court indicated that after the respondent judge responded, the co-libelants might be heard either by the respondent judge’s authority, or because of their interest in the result, or as friends of the court. It is implicit in the decision that the defendant judge is required to respond before the co-libelants could be heard to sustain the sufficiency of the return. Although that case related to a federal question in admiralty and a request for substitution, nevertheless the principle of law involved is substantially the same as is here presented.

In 42 American Jurisprudence, pages 175 and 176, citing Ex Parte Indiana Transportation Company, supra, the rule is stated:

“However, where a rule to show cause is directed to a judge, he is the essential party respondent and if he has made no response to the rule, interested parties are not entitled to be substituted as respondents.”

In State, ex rel. Greenwood v. Baals et al, 66 Oh Ap 255, 31 N. E. 2d 244, the relator sought a writ of prohibition to prevent a justice of the peace from proceeding in a certain forcible entry and detainer case. In addition to the justice, other parties were named as respondents. The court, at page 256, stated as follows:

“It may be said in passing that the respondents, other than the justice of the peace, are not proper parties to such action, and the writ would not obtain as to them in any event.”

Considering adjudications in other jurisdictions where the statutes relating to prohibition are substantially similar to ours, we find two Missouri cases: State, ex rel. Alisky, v. Bird, 63 S. W. 2d 817 (Mo. App. 1933), and State, ex rel. Kurn, v. Wright, 349 Mo. 1182, 164 S. W. 2d 300 (1942), in which intervention was not allowed.

In the case of State, ex rel. Phillips, v. Barton, 300 Mo. 76, 254 S. W. 85 (1923), a prohibition case in which a writ was sought against a Clerk of Court, the court announced that the writ of prohibition is to be directed to or against those clothed with the exercise of judicial powers and hence no others should be made respondents. In the Kurn case, the court held that even though the plaintiffs in the action might be interested in the result, nevertheless they are not parties and cannot properly be joined as such in the prohibition proceeding. In State, ex rel. Alisky v. Bird, the plaintiff, who was not a party although interested in the result, filed a separate answer. The respondent justice having filed a demurrer, the court held that since the plaintiff was neither a necessary or proper party, his answer was superfluous, the allegations immaterial, and no attention would be paid to them. To the same effect, see also Brouwer v. Superior Court, 130 Cal. App. 163, 19 Pac. 2d 834 (1933), and State, ex rel. Gallahue v. Superior Court, 232 Ind. 613, 115 N. E. 2d 449 (1953).

To illustrate practice and procedure in Ohio, we now turn to cases within the experience of our own court.

In State ex rel. The National City Bank of Cleveland, Trustee, v. Court of Common Pleas of Cuyahoga County, 154 Oh St 74, 93 N. E. 2d 465 (Court of Appeals Report 56 Abs 531, 92 N. E. 2d 824), an original action in this court against the Common Pleas Judges of this county, no intervention was requested but the attorneys who would be adversely affected filed a motion for judgment on the pleadings in behalf of the respondent judges. The motion was denied and the writ allowed.

State, ex rel. Ellis, v. Hurd et al, Judges of this court, 164 Oh St 403, 132 N. E. 2d 100, an action in procedendo, which is also a high prerogative writ, was commenced against the respondent judges of this court. Counsel for the Turnpike Commission who were directly interested in the result filed a demurrer in our behalf and notified us later that they had done so, to which we had no objection. The demurrer was sustained. State, ex rel. Piletich v. Kovachy et al, Judges, 166 Oh St 298, 142 N. E. 2d 225, was a prohibition case against the Judges of this court. There was no intervention but counsel for the interested parties as a matter of course demurred to the petition, the demurrer was sustained, and the writ of prohibition was denied.

In State, ex rel. William L. Blake, v. Common Pleas Court of Cuyahoga County, 81 Abs 449, a hearing was had on an application for intervention by the Cleveland Savings Society. This court allowed intervention on an oral statement from the bench after argument. No briefs contra were filed, and the journal entry shows the following, in part:

“Counsel for the Court of Common Pleas and Daniel H. Wasserman, Defendants respondents, stated orally that they had no objections to such intervention.”

The journal entry submitted shows approval by attorneys for plaintiff-relator, attorneys for defendants-respondents, and attorneys for the Cleveland Savings Society, but the journal entry was not signed by the court. Thereafter, a demurrer having been filed, this court sustained the demurrer and the writ was denied. This case is no longer pending and to the extent that we allowed intervention, it is now disapproved.

The respondent judges are the only persons against whom a writ may operate. The intervention of other parties against whom no order whatsoever could be made, obviously could have no binding effect. Without attempting to suggest what the respondents should do in respect of the allegations of the petition, if the facts are not in dispute, the filing of a demurrer to the petition would present an issue of lav/. If the facts are in dispute, the respondent judges are the only persons who could properly move or answer. In such cases, respondent judges having no direct or personal interest whatever in the outcome of the cause could permit counsel for the interested parties to represent them in the proceedings before this court. In any event, we hold that in a prohibition proceeding only the tribunal and judges affected are the proper parties who have the right to move, plead or demur.

We conclude that the applicant requesting leave to intervene, although interested, is neither a necessary, essential or proper party to the determination of the causes now pending in this court.

For the reasons stated, therefore, the applications for leave to intervene of Janet Altman Hecht and to be made a party respondent and for leave to move, plead or demur, must be and are denied. However, the time for the return of the respondent judges is extended. See entry.

Exceptions allowed. Order see journal.

KOYACHY and SKEEL, JJ, concur.


source: Caselaw Access Project

author: By RENNER, J.:

license: Public Domain

text:
    INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) and its LOCAL 647 et, Plaintiffs, v. L. T. PATTERSON COMPANY, Defendant.
    Common Pleas Court, Hamilton County.
    No. A-142373.
    Decided May 29, 1956.
    Goodman & Goodman, for plaintiff.
    Long & Bloom, for defendant.
   OPINION

By RENNER, J.:

This action was instituted by the Internationa] Union, United Automobile, Aircraft, Agricultural Implement Workers of America (UAW-CIO) and its Local 647, and a number of individual members of the Union, who were employed by The L. T. Patterson Company, the defendant herein. The plaintiffs seek to recover vacation pay under a collective bargaining agreement entered into July 1, 1953, between the plaintiff Union, acting on their behalf, and the defendant corporation as their employer.

On November 3, 1955, plaintiffs filed a motion for a judgment in their favor on the pleadings and on the facts presented in an agreed statement of facts which was filed on October 27, 1955. When this motion came on for argument counsel for plaintiffs and defendant agreed not only to submit this motion for consideration by the court, but also to submit the case for final consideration on the pleadings and the stipulation of facts of October 27, 1955, with an additional stipulation which was subsequently filed on March 8, 1956,

The agreed statement of facts filed October 27, 1955, contained the following stipulations:

“1. The individual plaintiffs were members of the plaintiff, International Union, United Automobile, Aircraft, Agricultural Implement Workers of America (UAW-CIO) through its Local No. 647. The defendant was and is an Ohio Corporation and as such was engaged in the sales and service of Chrysler and Plymouth automobiles at 1010 Gilbert Avenue, Cincinnati, Ohio, at the times set forth herein.

“2. Attached hereto and marked ‘Exhibit No. 1’ is the written collective bargaining agreement between the plaintiff and the defendant, setting forth the entire agreement of the parties, dated July 1, 1953, and effective for the period of one year.

“3. Attached hereto and marked ‘Exhibit No. 2’ is a schedule, listing the employees, their date of hire, their date of termination of employment and their hourly rate of pay at said termination.

“4. The defendant ceased operation of its service and repair business on March 5, 1954, for the reason that the business was being operated at a loss; and ceased complete operation of sales of automobiles on May 25, 1954. Defendant did not act arbitrarily or in bad faith to defeat the plaintiffs’ rights.”,

and the agreed statement of facts filed March 8, 1956, provides as follows:

“1. That the Court of Common Pleas of Hamilton County, Ohio, has jurisdiction of the within cause.

“2. That the individual parties plaintiff may be joined as parties plaintiff herein.”

The pleadings in the case and these two stipulations constitute all of the evidence in the case. The pleadings and the agreed statements of fact leave but one issue remaining for determination by the court, viz., under the facts thus presented does the collective bargaining contract relied upon by the plaintiff, expressly or by implication, provide foy vacation pay which would entitle them tp recover such pay?

Four of the plaintiffs, Gus Grote, John Guthrie, James L. McCann and Raymond McAtee did not have six months of continuous employment to qualify for the minimum vacation pay provided in the table in Art. XIV, Sec. 1 of the agreement. Another plaintiff, Richard C. Juengling, quit his employment on or about April 1, 1954. These five plaintiffs are not entitled to vacation pay. All of the remaining plaintiffs had more than six months of continuous service prior to June 1, 1954, but none of them were employed on June 1st.

The defendant ceased operation of its service and repair business on March 5, 1954, because the business was being operated at a loss and it ceased all operation of its business on May 25, 1954.

It is conceded in the agreed statement of facts that the company did not act arbitrarily or in bad faith to defeat the plaintiffs’ rights when it closed its doors. The question of bad faith or fraud is therefore eliminated.

Counsel for plaintiffs and defendant .each have submitted briefs and supplemental briefs citing and reviewing many cases dealing with vacation pay in collective bargaining contracts. An examination of these cases cited by both parties shows the marked difference of opinion of some of the state and federal courts which have dealt with rights to vacation pay arising out of collective bargaining agreements.

Some of the cases cited by plaintiffs are of little or no assistance in the case here for decision before me. Without attempting to distinguish each of them I refer to those cases in which the contract under consideration contained express and specific provisions for vacation pay in the event of a discontinuance of the business; also to those in which relief was granted to employee because of fraud or bad faith on the part of the employer, which is not an issue in this case and also to at least one of the cases in which it appeared that the court resorted to expediency rather than law in reaching its decision.

In several of the remaining cases cited by counsel for plaintiffs the courts dealt with collective bargaining agreements which were silent as to vacation pay in the event the business was discontinued and which presented facts somewhat similar to those in the case at bar. In these cases the courts granted relief to the employees on the theory that vacation pay was, in effect, additional pay which an employer was obliged to pay, the same as he paid the regular hourly or weekly wage of the employee, but that the payment of it was postponed until the recognized vacation period.

It is upon these cases that plaintiffs’ counsel rely and base their conclusions which are set forth on page two of their memorandum of authorities:

“It is clear from a consideration of all the decisions that in all events the worker has earned his vacation pay.”

No Ohio cases are cited which support this theory advanced by plaintiffs and I have found none. The finality with which this statement speaks seems to remove all question of doubt as to its correctness, but I am unable to reconcile it with the law as expressed by the courts of Ohio. In cases involving the construction of contracts our courts have been consistently guided by a number of well recognized rules of construction. Some of these long established maxims and principles of law which are applicable to this case are succinctly stated in 9 O. Jur. pp. 397, 398 and 399, Sec. 173:

“Where the meaning of a contract is clear upon its face, there is said to be no need, nor right, of construction. It has been stated that ‘the first general maxim of interpretation is that it is not allowable to interpret what has no need of interpretation. When a writing is worded in clear and precise terms, when its meaning is evident and tends to no absurd conclusion, there can be no reason. for refusing to admit the meaning which it naturally presents.’ Similarly it has been said that there Is no question of interpretation of an oral contract. A court is not privileged to make contracts for others, nor in any wise to change the conditions on contracts lawfully made because of some personal notion of what in a particular case good morals and fair dealing may require. A party to a written contract is bound only by the words of the contract. There can be no intendment or implication inconsistent with the express terms of the written contract. A court may not read language or terms into a contract, nor can any be taken away by construction.”

And, also in the same volume at pp. 400 and 401, Sec. 174:

“The courts nevertheless are justly prudent and careful in inferring covenants or promises, lest they make the contract speak where it was intended to be silent or make it speak contrary to what, as may be gathered from all the terms and the tenor of the contract, was the intention of the parties. It has been said that ‘presumptions must not be indulged tó defeat the manifest intention of the parties to the contract. The purpose is to promote such intention where the language of the parties is not clear.’ While much regard will be given to the clear intention of the parties, yet where the contract is entirely silent as to a particular matter, the court will exercise great caution not to include in the contract by construction something which was intended to be excluded. Where a written contract is silent in regard to a matter of much importance to both parties it is not likely to be presumed that it was intended to imply an agreement upon that point. The implication should clearly appear from the whole instrument. In accordance with the maxim, ‘expressio unius est exclusio alterius,’ there can be no unplied promise in a contract in relation to any matter that is specifically covered by the written terms of the contract itself. The enumeration of certain things in a contract excludes other things of like character. * * *”

In Ullman v. May, 147 Oh St 468 (decided February 28, 1947), the Supreme Court again reaffirmed its beleif in the soundness of these principles of law.

“Syl. 1. Where a written agreement is plain and unambiguous it does not become ambiguous by reason of the fact that in its operation it will work a hardship on one of the parties thereto and corresponding advantage to the other. (Ohio Crane Co. v. Hicks, 110 Oh St 168, approved and followed.)

“Syl. 2. Courts do not relieve a party competent to contract from an improvident agreement in the absence of fraud or bad faith.”

And I find no earlier or later expressions of the Court to indicate that these sound guides should be abandoned. Until these rules of construction are abandoned by the Supreme Court of Ohio, and that court adopts the theory of law advanced by counsel for plaintiffs which is based upon a few isolated cases, there can be no right of recovery in cases of the kind such as the one presented here.

Let me assume, however, that the meaning of the contract in this case is not clear and that it needs to be interpreted. The field of inquiry as to its meaning, because of the stipulations is limited to the contract itself. I cannot look to facts leading up to or surrounding the execution of the agreement. There are, however, several revealing clauses and provisions in the agreement which express the intention of the contracting parties. The first is contained in Article VII and is part of paragraph 2 of Step 4:

“The arbitrator shall not have the power to add to or subtract from or modify any of the terms of this agreement supplement hereto, * *

This is not intended as a limitation that should apply only to an arbitrator. It is an expression of intention that the contract is complete in itself and must be so recognized and respected by all. Section 1 of Article XIV also evidences the intention of the parties. It reads as follows:

“Employees (including employees laid off but still carried as employees), who prior to June first of the current year have had the length of continuous employment specified in the table below shall be entitled to the corresponding vacation at their basic rate of pay:

“Six months to one year_______________________________25 hours

“One year or more___________________________________50 hours

“Three years or over________________________________100 hours.”

There can be no question that before a person is entitled to vacation pay he must have had the length of continuous employment specified in the table.

Plaintiffs argue that having met that requirement the person was not required to be in the employment of the defendant company on June 1st of the current year and defendant contends that he was required to be employed by the company on June 1st to be entitled to vacation or vacation pay.

“Employees” according to the generally accepted meaning and as defined in the dictionaries are those who are in the employment of another. When the employment ceases they are referred to as “former” or “ex-employees.”

That the parties construed the meaning of the word “employees” in the generally accepted and limited sense is illustrated by the words in parenthesis immediately following the word “employees.” Those words enlarge the meaning to include a class of persons who, in the generally accepted sense, were no longer employees. Having made provision for those laid off the contract suggests that the provision for vacation pay, if business ceased, was considered and rejected; or that it was overlooked completely or that it was intended to have been included but, by inadvertence, it was omitted from the contract. If the absence of such a provision is attributed to either of the first two reasons the plaintiffs are not entitled to recover; if it is the latter the remedy is reformation and not construction and plaintiff can not recover in this action.

This, therefore, brings me to the same conclusion previously expressed.

Please present an entry finding for the defendant and against the plaintiffs and rendering judgment for the defendant.


author: By KINDER, J.

text:
    CENTRAL NATIONAL BANK OF CLEVELAND, Exr., Plaintiff, v. COTTIER et, Defendants.
    Probate Court, Cuyahoga County.
    No. 498794.
    Decided March 1, 1958.
    L. C. Wykoff, Arter, Hadden, Wykoff & Van Duzer, Cleveland, for the Trustee.
    Wm. M. Byrnes, Wm. A. Kane, Cleveland, for Catholic Charities Corporation of Cleveland.
    Edwin D. Williams, Cleveland, for The Cleveland Protestant Orphan Asylum.
    Robert Merkle, Cleveland, for defendants, Noreen S. Cottier and Henry Cottier, a. k. a. Harry Cottier.
   OPINION

By KINDER, J.

This is an action by the executor under the will of Eleanor Gregory, deceased, seeking a declaratory judgment as to the interpretation and effect to be given to certain bequests contained in testatrix’s will.

Under Item III there was a bequest to Noreen Cottier of “twenty (20) shares of my common stock of The Youngstown Sheet and Tube Company.” Likewise, a bequest was made to Harry Cottier of “twenty (20) shares of my common stock of The Youngstown Sheet & Tube Company.” Another beqüest was to William Schaumann of “twenty-five (25) shares of my common stock of The Sherwin-Williams Company.” Further, there was a bequest of “five (5) shares of my capital stock of The Union Trust Company” to Harry Cottier.

Testatrix’s will was executed on February 8, 1927. On the 14th day of September, 1927, testatrix executed a codicil and likewise a second codicil on November 7, 1930. In each codicil testatrix ratified and confirmed the provisions of her will. Decedent became mentally incompetent in July, 1935, and died on February 14, 1954.

In September of 1929, testatrix received a 20% stock dividend on her Youngstown Sheet and Tube Company stock and in September of 1950, she was in receipt of a further stock dividend of 100%, so that each such twenty shares bequeathed to Noreen Cottier and Harry Cottier, respectively, had thereby become forty-eight shares at the time of her death. At the time of the execution of the will, testatrix held additional stock in The Youngstown Sheet and Tube Company.

In 1947 she received a stock dividend of 200% on her SherwinWilliams stock, with the result that twenty-five shares became seventy-five shares which she held at the time of her decease. Again however, at the time the will was executed, she was the owner of shares of The Sherwin-Williams Company, other than the twenty-five shares bequeathed to William Schaumann.

At the time of the execution of the will, testatrix owned ten shares of The Union Trust Company stock, five shares of which were bequeathed to Harry Cottier. In 1928 her ten shares became forty shares due to a reduction in the par value thereof. In 1932 the testatrix purchased thirty additional shares so that her total holdings of this stock amounted to seventy shares. As to this stock, testatrix paid in 1934 an assessment by the Superintendent of Banks at the rate of $25.00 a share. This represented her stockholders liability as an owner of such stock. As a result, of having paid such assessment she received three and one-half shares of stock in The Union Bank of Commerce and prior to her death became and was at the time of her death the owner of seventy shares of stock in The Union Bank of Commerce, a new corporate entity distinct from that of The Union Trust Company.

As to The Youngstown Sheet and Tube Company stock and the stock of The Sherwin-Williams Company, the question is whether the respective legatees thereof are to be limited to the number of shares bequeathed to each of them, or are entitled in addition to the stock acquired by testatrix in such companies by way of stock dividends declared on such stock.

As to The Union Trust Company stock, the question is whether Harry Cottier is entitled to shares of The Union Bank of Commerce stock as a result of her bequest to him of five shares of the common stock of The Union Trust Company.

Under the authorities cited in the elaborate briefs filed by the parties the controlling factor is the matter of the intent of the testatrix as such intent is to be found from the will itself and such other facts and circumstances as are relevant and material to this question.

The rule has been thus stated:

“The intention of a testator must be ascertained from the language used in the will, as applied to the subject-matter and read in the light of surrounding circumstances at the time of the execution thereof, and not with reference to the circumstances at the time of the death of the testator, except in so far as the latter are connected with the former.” 41 O. Jur., Section 468; see also Page on Wills, 938.

From an examination of the authorities the prevailing rule seems to be that in case of bequests of corporate stock, stock dividends thereon received after the execution of the will, do not go to the legatee in the absence of an indication in the will itself or other relevant circumstances that it was the intention of the testatrix that such stock dividends follow the bequest. 172 A. L. R. 365. Further, under the authorities it seems quite clear that each case must stand on the particular instrument involved and the attendant relevant facts. It seems to the Court, therefore, that resort must be had to the language and phraseology of this will and the two codicils. Neither of the codicils contain any provisions of relevance, nor reference to these stock holdings or the bequests under consideration. The 20% stock dividend on The Youngstown Sheet and Tube Company stock antedated the codicil of September 14, 1927. The other slock dividends in question were declared and the acquisition of The Union Bank of Commerce stock took place subsequent to the second codicil dated November 30, 1930.

This will is unusual in the meticulous detail of its provisions and thus considered in the opinion of the Court not only fails to disclose an intent that the stock dividends declared on The Youngstown Sheet and Tube Company and The Sherwin-Williams stock should go to the respective legatee, but on the contrary the character of the will and its phraseology repels such intent.

Item III of the will, Paragraph K, is as follows:

“My Executor shall have absolute and final discretion in interpreting and defining all terms used in this ITEM II * * *. It is also my intent, except in the case of the cash bequests, that if before my death, I shall in any manner dispose of any or all of the shares of stock or other property mentioned in this Item, so that at the time of my death I shall not own all of the above named property specifically bequeathed, then the bequests directly affected shall to that extent be void, and if there shall remain in my estate some but not enough of the property to meet certain of the above bequests, then such remainder so available shall be divided by my Executor as nearly as he may be able to do so among the legatees directly affected in proportion to the original distributions of the particular kind of property provided for in this Item, and to the extent of any deficiency in such bequests the bequests shall be void, it being my intent that all of the bequests in this Item shall be limited to the specifically described property, if any, which shall be a part of my estate at the time of my death.”

Again, in Item VI, appears the following:

“It is my desire, however, that the specific bequests made in this Will shall be disturbed as little as possible and it is my desire to avoid as far as possible the necessity for the sale of any portion of my estate to meet the payment of charges or claims against it, or to provide for any cash bequest above cited.”

It is to be noted that the will (Item V) contains a residuary clause providing for the creation of a trust as to such residual estate for the benefit of certain designated orphanages. It remains to be remarked that the bequests made to the various individuals of The Youngstown Sheet and Tube Company stock and The Sherwin-Williams Company stock did not constitute all of such stocks held by the testatrix.

These facts, plus the general character and tenor of the will itself and its two codicils, preclude, in the opinion of the Court, any intent by the testatrix that the stock dividends declared are to go to these legatees. On the contrary it is the Court’s opinion that such stock dividends become part of the residuary estate. A decision in the case of Clegg v. Lippold, 123 N. E. 2d, 549, is urged as being contrary to the conclusion hereinabove reached. It seems to the Court that such case is distinguishable in that it involved, among other things, a corporate reorganization providing for a stock split-up. Furthermore; to the extent that the conclusion of Judge Love as evidenced by his elaborate and learned opinion is to be considered as determining a stock dividend as such shall follow the bequest of a definite number of shares, this Court regards such decision as contrary to the majority rule. The opinion of Judge Love recognizes that intent of the testator as determined from the particular will, is controlling. In re Brann, 219 N. Y. 263; 114 N. E. 404; McGregory v. Gaskill, 296 S. W. 833; Hicks v. Kerr, 132 Md. 693; 104 Atlantic, 426, and Clegg v. Lippold are to the effect that in each case the ascertained intention of the testatrix is determinative.

It is suggested that defendants, Noreen Cottier and Harry Cottier, are first cousins of testatrix and are, therefore, entitled to a construction of the will favorable to their claim — Davis v. Davis, Exr., 62 Oh St 411— put this rule even if here applicable, cannot supply an intent which the Court finds here non-existent. At all events there is to be balanced against such considerations testatrix’s expressed interest in two orphanages which are the beneficiaries of the trust created out of her residual estate. The residuary clause (Item V) is for the benefit of the Cleveland Protestant Orphan Home and the St. Joseph Orphan Home. Testatrix’s language in this Item expresses the desire to furnish “pleasures to the children of these homes, such as books, games, * * * which are not usually available * * *.” She adds: “I have always had a liberal sympathy for children who are deprived of the care of parents and this thought is my inspiration in making this bequest.”

Coming now to The Union Trust Company stock, it seems to the Court that whatever procedure was adopted by means of which the testatrix acquired her shares in The Union Bank of Commerce stock, there was an ademption so far as The Union Trust Company stock was concerned — this for the reason of the fact that she paid a double liability assessment on such stock. It would be as though testatrix had disposed of her Union Trust Company stock, although it cost her money to do so, and with such rights as she did receive in the transaction, acquired stock in a new and distinct corporate entity. The facts fail to disclose any continuity by reorganization or otherwise of the corporate existence of The Union Trust Company.

The rule with respect to ademption is as follows:

“Where the subject of a specific bequest has been extinguished in the lifetime of a testator, such bequest is adeemed, and the designated beneficiary thereof is wholly deprived of it or any property in lieu of it in absence of a contrary intention in the will.” Bool, Exr. v. Bool, 165 Oh St 262.

An order may be drawn in accordance with the foregoing, with appropriate exceptions.


author: By J. J. P. CORRIGAN, J.

text:
    KLUCAR et, Appellants, v. HULL et, Appellees.
    Common Pleas Court, Cuyahoga County.
    No. 716667.
    Decided October 30, 1959.
    Charles J. Donohue, Patrick J. Toomey, Cleveland, for appellants.
    George E. Fedor, Director of Law, Lakewood, John J. Kane, Jr., Ass’t Police Prosecutor, Cleveland, for appellees.
   OPINION

By J. J. P. CORRIGAN, J.

This case comes before the Court on a motion to dismiss the appeal. The appeal was filed in this court by two police officers of the City of Lakewood for the purpose of setting aside the ruling of the Lakewood Civil Service Commission which upheld their suspension by the Chief of Police, said suspension having been previously sustained by the Mayor.

It is the contention of the appellees that there can be no appeal to this court from a decision of the Civil Service Commission. They found their argument on the provisions embodied in Article VI Section 7 of the Charter of the City of Lakewood. This section of the charter provides for an appeal of suspension to the Commission and states that “. . . its judgment in the matter shall be final.” Sec. 143.27 R. C., provides for an appeal to the Court of Common Pleas from decisions of a municipal Civil Service Commission as follows:

“. . . In the case of the suspension, demotion or removal of a chief of police or a chief of the fire department or any member of the police or fire department of a city an appeal on questions of law and fact may be had from the decision of the municipal civil service commission to the court of common pleas of the county in which such city is situated . . .”

Thus, the Charter provision and the general law of Ohio are in conflict. The appellees contend that the charter’s provision prevails and the appellants argue that the general law of the state is controlling. The appellees place great reliance on the case of State, ex rel. Canada v. Phillips, 168 Oh St 191 (1958). The Canada case, supra, held that the charter provisions of the City of Columbus prevailed over the general laws of the state where the question involved was the procedure for appointment to fill a police vacancy. The decision was based upon the supremacy given to local governments under the “Home Rule” provisions of the Ohio Constitution, Sections 3 and 7, Article XVIII. The Canada case, supra, must be considered a “landmark” decision in the “Home Rule” conflict since it discusses practically every case previously decided by the court; overruling some cases and distinguishing others, One of the cases distinguished in the Canada case, supra was In re Fortune, 138 Oh St 385 (1941). In re Fortune, supra, is specifically in point with the case at bar. The question presented was whether there was an appeal to the court from a ruling of the civil service commission. The statute provided for an appeal and the charter of the City of Cleveland Heights made the finding of the commission final. The Supreme Court held that the general law of Ohio prevailed notwithstanding the “Home Rule” provisions of the Ohio Constitution.

In commenting on the Fortune Case, supra, Judge Taffc, who authored the majority opinion in the Canada Case, supra, said at page 201:

“. . . As to In re Fortune, supra (138 Oh St 385), the precise question there decided is not before us for consideration in the instant case, and we express no opinion with respect to that question except to state that some of the reasons advanced for the decision are obviously inconsistent with the pronouncements of law and decisions in the cases which we are following in the instant case . . . .”

Paragraph 8 of the syllabus of the Canada Case, supra, distinguished In re Fortune, supra.

There is a basic distinguishing factual factor which sets apart In re Fortune, supra, and the case at bar from the Canada Case, supra. The statute involved in the case at bar is one establishing the jurisdiction of a court of this state. It is elementary that only the state legislature can limit or provide for the jurisdiction of a court of this state. Section 4, Article IV, Ohio Constitution. The state legislature has done so in §143.27 R. C.

The charter provision of the City of Lakewood can not alter or limit the jurisdiction provided for in §143.27 R. C. Thus the general law of the state must prevail. In the Canada Case, supra, the statute involved was concerned with the procedure in promoting officers in the Police Department, a matter of strict local concern. There was no question involving the general jurisdiction of a court.

For the foregoing reasons we are constrained to distinguish the Canada Case, supra, and follow In re Fortune, supra. The motion to dismiss the appeal is overruled.


author: By RUZZO, J.

text:
    SHIRA, Will, In re.
    Probate Court, Marion County.
    No. 23105.
    Decided November 6, 1959.
   OPINION

By RUZZO, J.

Donald D. Shira died testate on December 30, 1942. His surviving spouse died intestate February 20, 1959. At the time of his death, Donald D. Shira was the owner of a policy of life insurance, the proceeds from which were to be paid to his wife in monthly installments during her lifetime, and at her death the balance was to be paid to his, the said Donald D. Shira’s executor, administrator or assigns.

Upon the death of the relict spouse, the commuted value of the policy on the life of Donald D. Shira, in the amount of $2,202.62, was paid to the administrator de bonis non with the will annexed of the estate of said Donald D. Shira. The personal representative must, of course, make payment of the proceeds of insurance in accordance with the terms of the will of Donald D. Shira, and has, therefore, filed a petition to construe the will of said decedent.

The pertinent portions of the testator’s will read as follows:

“Item Three: I hereby give and bequeathe to my wife, Bertha Breen-Shira, if she survive me, all of my property, real, personal and mixed, including my household goods, office equipment and instruments, all ready cash, on hand or on deposit in any bank, which shall immediately be turned over to her, and with which she shall have absolutely to do with as she so desires, all book accounts, notes, mortgages, stocks and bonds of which I shall be in possession of or be entitled to at the time of my death, automobile or automobiles, radios, etc.

“Item Four: Upon the death of my wife, if she should survive me, the residue of my estate, real, personal and mixed, shall be converted into cash and the cash disposed of as follows:

“To Bernice McGuire, Centerburg, Ohio, if she be living, the sum of $5,000, and the balance to Mrs. Kathryn Kilbury, Edgewood, Pa. . .”

Bernice McGuire Zech survived the relict spouse and now claims the fund in the hands of the administrator d. b. n. c. t. a., such fund being the only asset of the testator’s estate not consumed by the relict spouse during her lifetime. The administrator of the estate of the relict spouse contends that the fund in question passed to her under the terms of Item three of her husband’s will; that Item four is void and of no effect.

It is well settled that a gift in general terms with power to sell or consume, and a gift over on the death of the devisee, of the property which is not disposed of, passes a life estate, with power to sell or consume, and not a fee simple. The gift over is valid. Baxter v. Bowyer, 19 Oh St 490; MinYoung v. MinYoung, 47 Oh St 501; Johnson v. Johnson, 51 Oh St 446; Enyart v. Keefer, 52 Oh St 631; Greene v. Greene, 57 Oh St 628; Campbell v. Greenawalt, 67 Oh St 520; Robbins v. Smith, 72 Oh St 1, 17; Fetter v. Rettig, 98 Oh St 428,

The Baxter case, supra, gave the testator’s wife “* * * unlimited power in the possession of all property, * * *; to sell, at public or private sale, on such terms as she may think best, or use in any manner she may deem proper, any or all of the property, * *

The MinYoung case, supra: “I devise and bequeath to my wife * * *, all of my remaining property of whatever kind real and personal, to be held and used by her as follows, to-wit: she shall use for her own comfort and convenience, all that in her judgment is necessary. Out of said property she shall also support, educate and maintain our son * * * until he arrives at the age of twenty-one years; all this on condition that said Delia shall remain my widow. * * *”

The Johnson case, supra, is generally regarded as the leading Ohio case on this particular subject. The will provided: “I give and devise unto my beloved wife, * * * and her assigns, all of the remainder of my property, both real and personal, however the same may be known, * * * with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper.”

The Enyart, Greene and Campbell cases, supra, were affirmed without opinion on the authority of the Johnson case.

In the Robbins case, supra, the will provided that two-thirds of the testator’s estate “* * * shall be equally apportioned amongst my children, but shall not be turned over to them, but shall be safely invested for their behoof; and the annual income arising to each child shall be subject to her control, whether married or unmarried, and in no instance shall the husband of any such child have any power or control over * * * such share; nevertheless, each of my children shall have full power and authority to will and devise her portion of said inheritance in such manner as she shall see fit * *

The Fetter will, supra, devised to the wife all of the testator’s property and stated, “I do further devise to my said wife, in case she may desire so to do. the power to sell any of my real estate * * * in fee simple to the purchaser or purchasers thereof * *

It is important to note that each of these cases imports only prima facie an absolute estate. In interpreting these cases our courts have held that the power to sell or consume detracts from the fee simple estate. That had the testator intended an absolute estate, the additional grant of such powers would be redundant and unnecessary, since the fee is the whole estate.

A thorough analysis of the leading cases pertinent to this subject will be found in Krumm, Exr., v. Cunco, 71 Oh Ap 521, wherein the court considered the diametrically opposed principles, namely (1) that a fee once given, cannot be cut down by a subsequent clause in the will; and <2) if the language is such as to clearly indicate an intention to grant a life estate only to the first taker with a remainder over, courts will construe the will as a whole and give effect to the intention expressed in the will. The court classified and distinguished the various wills of this character as follows:

1. Where there is a devise to A in terms for life, but with absolute power of disposal and followed by a devise to B, A’s estate is not enlarged to a fee.

'2. Where there is a devise to A generally, with absolute power of disposal, followed by a devise of the entire estate to B, A takes a life estate and the gift over is good.

3. Where there is a devise to A generally, but with qualified power of disposal and with a devise to B of what shall remain undisposed of at A’s death, A takes a life estate and the remainder over is good.

4. Where there is a devise to A generally, with no power of disposal expressed or with an absolute power but followed by a devise to B of what shall remain undisposed of at A’s death, A takes a fee simple and the attempted limitation over is impossible and void.

Under the fourth class, the courts have held that the testator surrendered full dominion and control of his estate to the first taker, and that the limitation over was not of the remainder of the estate, but such part of the estate as the first devisee or legatee chose to leave. It is said that in such cases the testator is, in effect, attempting to make a will for the first devisee, to take effect in case the first devisee fails to make one for himself, or otherwise dispose of the property. This the testator cannot do.

“Where a fee is clearly given, a limitation over of the remainder is void as inconsistent with the fee granted, whether the gift over is expressed to be of what remains, or may be left, or the residue, or is on death of the first taker without having disposed of the property.” Krumm v. Cunco, supra, at p. 529, citing Volume 40 of Cyc, under the subject of “Wills,” 1585.

Items 3 and 4 of the will here under consideration fall within the fourth category above set forth. There is a gift of all the testator’s property in general terms, with no power of disposal expressed, but with the absolute power “* * * to do with as she so desires * *

Thereafter, the testator attempted to control and dispose of any assets remaining in his wife’s hands at her death. There is no doubt as to the testator’s intention in this case, but the well-established rule that intention should always govern is qualified by the condition that intention will govern unless the will conflicts with some provision of law. 41 O. Jur., Sec. 467, p. 592; Page on Wills, Vol. 2, 918, at page 808. When a will has two possible interpretations, that which complies with the law will be preferred to that which violates the law. Ibid, Sec. 925, page 843. In case of a conflict between the testator’s intention and the settled rules of law, the latter must prevail. Thompson on Wills, Sec. 214, at page 275. “If the testator attempts to effect that which the law forbids, his will must yield to the rules of law, as, for example, where he attempts to * * * break down or violate the fixed principles of property.” 41 O. Jur. Sec., 467, at p. 595.

Item four of the will here under consideration does conflict with well-established rules of law. A fee, once given, cannot be cut down, by other provisions of the will. A remainder cannot be engrafted upon a

fee. Page on Wills, Vol. 3, Sec. 1113, p. 357 and Sec. 1123, p. 385. “A fee simple estate granted in plain and unequivocal language in one clause of a will cannot be lessened or cut down by a subsequent clause unless the language therein is as clear, plain and unequivocal as that in the first grant.” 41 O. Jur., Sec. 624, at p. 738; Collins v. Collins, 40 Oh St 353; Stark v. McErven, 15 Oh Ap 188; Gill v. Leach, 81 Oh Ap 480, 37 O. O. 311; Borgmann v. Borgmann, 16 Oh Ap 292; Baker v. Alexander, 24 Oh Ap 177; Fetterman v. Bingham, 115 Oh St 35; Clark v. Clark, 13 Oh Ap 164; Watkins v. Price, 16 Oh Ap 271; Powell v. Layton, 79 Oh Ap 279; 20 O. Jur. 2nd, Sec. 18, p. 246.

In Anderson v. Cary, 36 Oh St 506, the court at page 517 states the principle in clear and simple terms: “The owner of property cannot transfer it absolutely to another, and at the same time keep it himself.” The same principle was enunciated in Zachman v. Dick, 1 Oh Ap 36, wherein the court said, “Where an estate is conveyed by one part of a will, it cannot be cut down by raising a mist or a doubt from another part.”

In Hull v. Chisholm, 7 Oh Ap 346, the testatrix devised and bequeathed her property to Alice V. Hutchinson “* * * to her and her heirs and assigns forever, * * *.” A subsequent clause provided that in the event of the death of the devisee without issue, any property remaining of that “* * * willed to her in the 2nd item of this will shall be equally divided between my nephews * * The court, relying on Widow’s Home v. Lipphardt, 70 Oh St 261, held that where by the terms of a will a fee is clearly given, a limitation over of the remainder is void as inconsistent with the fee granted. The Hull and Lipphardt cases may be distinguishable from the case at bar in that they involved the validity of conveyances made by the devisees during lifetime, but the basic principle involved is analogous to the present case, and these two cases have been cited repeatedly by our courts when holding that an attempt to create a remainder is repugnant to the grant of a fee. See Persinger v. Britton, 10 Oh Ap 164; Heath v. Borst, 13 Oh Ap 115; Powell v. Layton, 79 Oh Ap 279 ; 35 O. O. 44; Gill v. Leach, supra.

In the Heath case, supra, the court at page 120 quotes at some length from Snodgrass v. Brandenburg, 164 Ind. 59 at p. 69:

“If, upon an examination of a will, a Court concludes that it was the purpose of the testator to make a grant, and that he attempted by subsequent language, to create a legal estate in derogation of the grant, that is the end of the discussion, for a testator must effectuate his intent within the rules of law. The rule that we have invoked does not apply to such cases; it is one of construction, and is wholly inconsistent with the proposition that the court will explore the four corners of the instrument to bring out its meaning; but, if it is found that one clause, standing alone, clearly evinces a purpose to create a certain interest, and the subsequent language merely operates to create a doubt about the testator’s intent in that particular, the latter words will be disregarded.”

Another recent Indiana case, Gamster v. Massey, 158 N. E. 2nd 808, Adv. Sh. July 1, 1959, is also in point. The testators provided that their personal property should go to the “survivor absolutely,” and upon death of the survivor, distribution was to be made to their four children. The court held the widow took a fee and the attempted gift over was void as being wholly inconsistent with the absolute grant. .

In Collins v. Collins, supra, at p. 364, the rule is stated as follows:

“As held in the case of Thornhill et al. v. Hull, 2 Clark & Finn., 22, ‘It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate cannot be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therein, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate.’ ”

Applying these principles to the case at bar, Item four is void by reason of the violation of the plain rule of law that a remainder may not be engrafted upon an absolute estate in fee simple. All of the testator’s property passed to his wife in fee simple by reason of the provisions of Item 3. The fund in question will, therefore, pass to the administrator of the estate of the relict spouse, Bertha Breen-Shira, for distribution according to law. An entry may be drawn accordingly by counsel for said administrator.


author: MR. JUSTICE WHITTAKER

text:
    ALLIED STORES OF OHIO, INC., Appellant, v. BOWERS, Tax Commr.
    U. S. Supreme Court.
    Decided February 24, 1959.

      Carlton S. Dargusch, Sr., Columbus, for appellant.
    William Saxbe, John M. Tobin, Columbus, for appellee. ,
   OPINION

MR. JUSTICE WHITTAKER

delivered the opinion of the Court.

The principal question presented is whether an Ohio Statute that exempts from ad valorem taxation “merchandise or agricultural products belonging to a nonresident * * * if held in a storage warehouse for storage only” denies to appellant, a resident of the State, the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution.

The facts are stipulated. So far as pertinent, they are that appellant, Allied Stores of Ohio, Inc., an Ohio corporation, owns and operates a department store in each of four Ohio cities. It also maintains in each of those cities a private warehouse where it stores stocks of merchandise of the kinds sold in its stores. As needed, merchandise is transferred from the warehouse to the store, and when merchandise is sold by sample in the store — usually a heavy or bulky article — it is delivered from the warehouse directly to the consumer.

Title 57, Page’s Ohio Rev. Code Ann. 1953, §5709.01 R. C., provides, inter alia, that “All personal property located and used in business in this state [shall be] subject to taxation, regardless of the residence of the owners thereof. * * *” (Emphasis added.) During the tax year involved another Ohio statute, Title 57, Page’s Ohio Rev. Code Ann. 1953, §5701.08(A) R. C., provided, in pertinent part, that:

“As used in Title LVII of the Revised Code:

“(A) Personal property is ‘used’ within the meaning of ‘used in business’ * * * when stored or kept on hand as material, parts, products, or merchandise; but merchandise or agricultural products belonging to a nonresident of this state is not used in business in this state if held in a storage warehouse for storage only. * * *” (We have added the emphasis, and, as was done by the Supreme Court of Ohio, we will refer to the emphasized portion as the “proviso.”)

Acting under those statutes, appellee, as Tax Commissioner of Ohio, proposed the assessment of an ad valorem tax against appellant based on the average value of the merchandise that it had stored in its four Ohio warehouses during the tax year ending January 31, 1954. Appellant petitioned the Board of Tax Appeals of Ohio for a redetermination, contending that the property stored in its four warehouses in the tax year involved was “merchandise * * * held in a storage warehouse for storage only,” within the meaning of §5701.03 (A) K. C., and that because the section exempted nonresidents, but taxed residents, on stocks of merchandise so held, it denied to appellant, a resident of Ohio, the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution. The Board of Tax Appeals upheld the tax, and so did the Court of Appeals of Cuyahoga County. On appeal, the Supreme Court of Ohio held that appellant lacked standing to raise the constitutional question presented and affirmed the judgment. 166 Oh St 116, 1 O. O. (2d), 342, 140 N. E. (2d), 411. The case comes here on Allied’s appeal.

The first and preliminary question thus is whether the Supreme Court of Ohio correctly held that appellant lacked standing to prosecute the constitutional question sought to be presented. It is settled that “[wlhether a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law, and, where a case coming from a state court presents that question, this court must determine for itself the sufficiency of the allegations displaying the right or defense, and is not concluded by the view taken of them by the state court.” First National Bank of Guthrie Center v. Anderson, 269 U. S. 341, 346, 46 S. Ct. 135, 137, 70 L. Ed. 295; Staub v. City of Baxley, 355 U. S. 313, 318, 78 S. Ct. 277, 280.

In reaching its conclusion, the Ohio court said [166 Oh St 116, O. O. (2d), 342, 140 N. E. (2d), 413] “In our opinion, it is not necessary to consider the constitutional question raised by the taxpayer in the instant case because, if its contention with regard to that question is sound, it necessarily leads to the conclusion that the entire proviso in subdivision (A) of §5701.08 St. C., which read, ‘but merchandise or agricultural products belonging to a nonresident of this state is not used in business in this state if held in a storage warehouse for storage only,’ was void and should be stricken. That being so, it is apparent that any of taxpayer’s ‘merchandise * * 4 held in a storage warehouse for storage only’ would be taxable because described by the preceding words remaining in the statute and reading, ‘stored * * * as * * 4 merchandise.’ ” But the court did not hold that the proviso was invalid, nor did it strike it from the statute. Instead, it held that the proviso expressed the valid legislative purpose to exempt the merchandise and argricultural products of nonresidents when held in a storage warehouse for storage only and that the court was powerless to strike it. In this, the court was following its prior decisions on the question. General Cigar Co. v. Peck, 1953, 159 Oh St 152, 50 O. O. 120, 111 N. E. (2d), 265, and B. F. Goodrich Co. v. Peck, 1954, 161 Oh St 202, 53 O. O. 91, 118 N. E. (2d), 525, had so held. In the latter case the court had answered a contention that the proviso was invalid for undue preference of nonresidents by saying “such an argument should be addressed to the General Assembly and not to this court.” 161 Oh St 210, 53 O. O. 95, 118 N. E. (2d), 530. Those interpretations, for present purposes, became a part of the proviso. Wheeling Steel Corp. v. Glander, 337 U. S. 562, 566, 69 S. Ct. 1291, 1293, 93 L. Ed. 1544. The proviso is the basis of appellant’s claim of denial of the equal protection of the laws. With the proviso thus validly remaining in the statute it is quite immaterial that appellant’s claim necessarily would fall if it were out. It follows that appellant does have standing to prosecute its constitutional claim.

This brings us to the merits. Does the proviso exempting “merchandise or agricultural products belonging to a nonresident of the state, the equal protection of for storage only” deny to appellant, a resident of the state, the equal protection of the laws within the meaning of the Fourteenth Amendment? The applicable principles have been often stated and are entirely familiar. The states have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the states have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. Of course, the states, in the exercise of their taxing power, are subject to the requirements of the equal protection clause of the Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The state may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value. Bell’s Gap R. Co. v. Commonwealth of Pennsylvania, 134 U. S. 232, 237, 10 S. Ct. 533, 535, 33 L. Ed. 892; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 293, 18 S. Ct. 594, 598, 42 L. Ed. 1037; Southwestern Oil Co. v. State of Texas 217 U. S. 114, 121, 30 S. Ct. 496, 498, 54 L. Ed. 688; Brown-Forman Co. v. Commonwealth of Kentucky, 217 U. S. 563, 573, 30 S. Ct. 578, 580, 54 L. Ed. 883; Sunday Lake Iron Co. v. Township of Wakefield, 247 U. S. 350, 353, 38 S. Ct. 495, 62 L. Ed. 1154; Heisler v. Thomas Colliery Co., 260 U. S. 245, 255, 43 S. Ct. 83, 84, 67 L. Ed. 237; Oliver Iron Mining Co. v. Lord, 262 U. S. 172, 179, 43 S. Ct. 526, 529, 67 L. Ed. 929; Stebbins v Riley, 268 U. S. 137, 142, 45 S. Ct. 424, 426, 69 L. Ed. 884; Ohio Oil Co. v. Conway, 281 U. S. 146, 159, 50 S. Ct. 310, 313, 74 L. Ed. 775; State Board of Tax Com’rs of Indiana v. Jackson, 283 U. S. 527, 537, 51 S. Ct. 540, 543, 75 L. Ed. 1248. “To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to assure.” Ohio Oil Co. v. Conway, supra, 281 U. S. at page 159, 50 S. Ct. at page 314.

But there is a point beyond which the state cannot go without violating the equal protection clause. The state must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule often has been stated to be that the classification “must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.” F. S. Royster Guano Co. v. Commonwealth of Virginia, 253 U. S. 412, 415, 40 S. Ct. 560, 561, 64 L. Ed. 989; Louisville Gas & Electric Co. v. Coleman, 277 U. S. 32, 37, 48 S. Ct. 423, 425, 72 L. Ed. 770: Air-Way Electric Appliance Corp. v. Day, 266 U. S. 71, 85, 45 S. Ct. 12, 15, 69 L. Ed. 169; Schlesinger v. State of Wisconsin, 270 U. S. 230, 240, 46 S. Ct. 260, 261, 70 L. Ed. 557; Ohio Oil Co. v. Conway, 281 U. S. 146, 160, 50 S. Ct. 310, 314, 74 L. Ed. 775. “If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law.” Brown-Forman Co. v. Commonwealth of Kentucky, 217 U. S. 563, 573, 30 S. Ct. 578, 580, 54 L. Ed. 883. State Board of Tax Com’rs of Indiana v. Jackson, 283 U. S. 527, 537, 51 S. Ct. 540, 543, 75 L. Ed. 1248. That a statute may discriminate in favor of a certain class does not render it arbitrary if the discrimination is founded upon a reasonable distinction, or difference in state policy. American Sugar Refining Co. v. State of Louisiana, 179 U. S. 89, 21 S. Ct. 43, 45 L. Ed. 102; Stebbins v. Riley, 268 U. S. 137, 142, 45 S. Ct 424, 426, 69 L Ed. 884.

Coming directly to the concrete problem now before us, it has repeatedly been held and appears to be entirely settled that a statute which encourages the location within the state of needed and useful industries by exempting them, though not also others, from its taxes is not arbitrary and does not violate the equal protection clause of the Fourteenth Amendment. Bell’s Gap R. Co. v. Commonwealth of Pennsylvania, supra, 134 U. S. at page 237, 10 S. Ct. at page 535; Ohio Oil Co. v. Conway, supra, 281 U. S. at page 159, 50 S. Ct. at page 313; Williams v. Mayor and City Council of Baltimore, 289 U. S. 36, 53 S. Ct. 431, 77 L. Ed. 1015; Colgate v. Harvey, 296 U. S. 404, 439, 56 S. Ct. 252, 263, 80 L. Ed. 299 (dissenting opinion). Similarly, it has long been settled that a classification, though discriminatory, is not arbitrary nor violative of the equal protection clause of the Fourteenth Amendment if any state of facts reasonably can be conceived that would sustain it. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed. 369; Quong Wing v. Kirkendall, 223 U. S. 59, 32 S. Ct. 192, 56 L. Ed. 350; Rast v. Van Deman & Lewis Co., 240 U. S. 342, 357, 38 S. Ct. 370, 374, 60 L. Ed. 679; State Board of Tax Com’rs of Indiana v. Jackson, supra, 283 U. S. at page 537, 51 S. Ct. at page 543.

In the light of the law thus well settled, how stands appellant’s case? We cannot assume that state legislative enactments were adopted arbitrarily or without good reason to further some legitimate policy of the state. What were the special reasons, motives or policies of the Ohio Legislature for adopting the questioned proviso we do not know with certainty, nor is it important that we should, Southwestern Oil Co. v. State of Texas, 217 U. S. 114, 126, 30 S. Ct. 496, 500, 54 L. Ed. 688, for a state legislature need not explicitly declare its purpose. But it is obvious that it may reasonably have been the purpose and policy of the State Legislature, in adopting the proviso, to encourage the construction or leasing and operation of warehouses in Ohio by nonresidents with the attendant benefits to the State’s economy, or to stimulate the market for merchandise and agricultural products produced in Ohio by enabling nonresidents to purchase and hold them in the state for storage only, free from taxes, in anticipation of future needs. Other similar purposes reasonably may be conceived. Therefore, we cannot say that the discrimination of the proviso which exempted only the “merchandise or agricultural products belonging to a nonresident * * * if held in a storage warehouse for storage only” was not founded upon a reasonable distinction, or difference in state policy, or that no state of facts reasonably can be conceived to sustain it. For those reasons, it cannot be said, in the light of the settled law as shown by the cases cited, that the questioned proviso was invidious or palpably arbitrary and denied appellant the equal protection of the laws within the meaning of the Fourteenth Amendment.

Appellant heavily relies on Wheeling Steel Corp. v. Glander, 337 U. S. 562, 69 S. Ct. 1291, 93 L. Ed. 1544. We think that case is not apposite. There Ohio statutes exempted from taxation certain accounts receivable owned by residents of the state but taxed those owned by nonresidents. The statutes, on their face admittedly discriminatory against nonresidents, themselves declared their purpose. That purpose was to proffer to other states a scheme of “reciprocity” for taxing accounts receivable. Ohio argued that the reciprocal character of its statutes eliminated the discriminatory effects against nonresidents, but this court held that it did not. Having themselves specifically declared their purpose, the Ohio statutes left no room to conceive of any other purpose for their existence. And the declared purpose having been found arbitrarily discriminatory against nonresidents, the court could hardly escape the conclusion that “the inequality [was] not because of the slightest difference in Ohio’s relation to the decisive transaction, but solely because of the different residence of the owner.” 337 U. S. at page 572, 69 S. Ct. at page 1297. As we have shown that is not the situation here. Here the discrimination against residents is not invidious nor palpably arbitrary because, as shown, it rests not upon the “different residence of the owner,” but upon a state of facts that reasonably can be conceived to constitute a distinction, or difference in state policy, which the state is not prohibited from separately classifying for purposes of taxation by the equal protection clause of the Fourteenth Amendment.

Affirmed.

JUSTICE STEWART took no part in the consideration or decision of this case.

JUSTICE BRENNAN, with whom JUSTICE HARLAN joins, concurring.

We hold today that Ohio’s ad valorem tax law does not violate the equal protection clause in subjecting the property of Ohio corporations to a tax not applied to identical property of non-Ohio corporations. Yet in Wheeling Steel Corp. v. Glander, 337 U. S. 562, 69 S. Ct. 1291, 93 L. Ed. 1544 the court struck down, as violating the equal protection clause, another provision of Ohio, ad valorem tax law which subjected the property of non-Ohio corporations to a tax not applied to identical property of Ohio corporations

The question presented in the two cases, if stated generally, and as 1 shall show, somewhat superficially, is: Measured by the demands of the equal protection clause, is a state constitutionally permitted separately to classify domestic and foreign corporations for the purposes of payment of or exemption from an ad valorem tax? In both cases the distinction complained of as denying equal protection of the laws is that the incidence of the tax in fact turns on “the different residence of the owner.” With due respect to my brethren’s view, I think that if this were all that the matter was, Wheeling and this case would be indistinguishable. Therefore, while I agree with my brethren that the classification is valid in this case, I cannot reach that conclusion without developing the ground on which Wheeling is distinguishable.

Why is the “different residence of the owner” a constitutionally valid basis for Ohio’s freeing the property of the foreign corporation from the tax in this case and an invalid basis for its freeing the property of the domestic corporation from the tax involved in the Wheeling case?

I think that the answer lies in remembering that our Constitution is an instrument of federalism. The Constitution furnishes the structure for the operation of the States with respect to the National Government and with respect to each other. The maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this court examines state action. Because there are 49 States and much of the nation’s commercial activity is carried on by enterprises having contacts with more states than one, a common and continuing problem of constitutional interpretation has been that of adjusting the demands of individual states to regulate and tax these enterprises in light of the multistate nature of our federation. While the most ready examples of the court’s function in this field are furnished by the innumerable cases in which the court has examined state taxation and regulation under the commerce and due process clauses, still the equal protection clause, among its other roles, operates to maintain this principle of federalism.

Viewing the equal protection clause as an instrument of federalism, the distinction between Wheeling and this case seems to me to be apparent. My brethren’s opinion today demonstrates that in dealing with as practical and complex a matter as taxation, the utmost latitude, under the equal protection clause, must be afforded a state in defining categories of classification. But in the case of an ad valorem property tax, Wheeling teaches that a distinction which burdens the property of nonresidents but not like property of residents is outside the constitutional pale. But this is not because no rational ground can be conceived for a classification which discriminates against nonresidents solely because they are nonresidents: could not such a ground be found in the state’s benign and beneficient desire to favor its own residents, to increase their prosperity at the expense of outlanders, to protect them from, and give them an advantage over, “foreign” competition? These bases of legislative distinction are adopted' in the national policies of too many countries, including from time to time our own, to say that, absolutely considered, they are arbitrary or irrational. The proper analysis, it seems to me, is that Wheeling applied the equal protection clause to give effect to its role to protect our federalism by denying Ohio the power constitutionally to discriminate in favor of its own residents against the residents of other state members of our federation. On the other hand, in the present case, Ohio’s classification based on residence operates against Ohio residents and clearly presents no state action disruptive of the federal pattern. There is, therefore, no reason to judge the state action mechanically by the same principles as state efforts to favor residents. As my brethren’s opinion makes clear, a rational basis can be found for this exercise by Ohio of the latitude permitted it to define classifications under the equal protection clause. One could, in fact, be found in the concept that it is proper that those who are bound to a state by the tie of residence and accordingly the more permanently receive its benefits are proper persons to bear the primary share of its costs. Accordingly, in this context, it is proper to say that any relief forthcoming must be obtained from the State Legislature.

      . The unemphasized portion of the statute was enacted in 1931, 114 Ohio Laws, pp. 714, 716. The emphasized clause was added by the Ohio Legislature at its next session in 1933, 115 Ohio Laws, pp. 548, 553. In September 1955, the section was amended by deleting the emphasized clause and inserting the following: “and merchandise or argicultural products shipped from outside of this state and held in this state in a warehouse or a place of storage for storage only and for shipment outside of this state are not used in business in this state.” 126 Ohio Laws, p. 78.

      . The Ohio taxing date is January 1, Title 57, Page’s Ohio Rev. Code Ann. 1953, §5711.03. Why the assessment involved was for the year ended January 31, instead of January 1, 1954, is not explained in the record or the briefs. A merchant’s personal property is valued for tax purposes “by taking the amount in value on hand, as nearly as possible, in each month of the preceding year in which he has been engaged in business, adding together such amounts, and dividing the aggregate amount by the number of months that he has been in business during such year.” Title 57, Page’s Ohio Rev. Code Ann. 1953, §5711.15.

      . The Supreme Court of Ohio has held that a foreign corporation, although authorized to do and doing a local business in Ohio, is a nonresident within the meaning of the proviso here in question. B. F. GOODRICH CO. v. PECK, 161 Ohio St. 202, 204, 53 O. O. 91, 92, 118 N. E. (2d), 525.

      . The stated purpose was to proffer to other states a right to tax accounts receivable owned by residents of Ohio that derived from sales of Ohio goods negotiated and consummated in such other States in exchange for a claimed Ohio right to tax the accounts receivable owned by residents of other states that derived from sales of their goods negotiated and consummated in Ohio. “The effect,” this court said, “[was] that intangibles of nonresident owners [were] assigned a situs within the taxing reach of Ohio while those of its residents [were] assigned a situs without. [Thus], [t]he exempted intangibles of residents [were] offered up to the taxing power of other states which may embrace this doctrine of a tax situs separate from residence, [but] no other state [ever] sought to take advantage of the ‘reciprocity’ proffer.” WHEELING STEEL CORP. v. GLANDER, SUPRA, 337 U. S. at pages 573-574, 69 S. Ct. at page 1297.

      . To the same effect as the WHEELING CASE are SOUTHERN R. CO. v. GREENE, 216 U. S. 400, 30 S. Ct. 287, 54 L. Ed. 536, and HANOVER FIRE INS. CO. v. HARDING, 272 U. S. 494, 47 S. Ct. 179, 71 L. Ed. 372.

      . The court distinguished ad valorem property taxes, levied on a foreign corporation permitted to do a local business, from an original entry privilege tax on a foreign corporation. 337 U. S. at pages 571-572, 69 S. Ct. at page 1296. “A corporation which is allowed to come into a state and there carry on its business may claim, as an individual may claim, the protection of the Fourteenth Amendment against a subsequent application to it of state law.” CONNECTICUT GENERAL LIFE INS. CO. v. JOHNSON, 303 U. S. 77, 79-80, 58 S. Ct. 436, 437-438, 82 L. Ed. 673.

      . The statute in Wheeling “discriminated” against nonresidents in the same way that the present statute “discriminates” against residents. What my brethren describe as the forbidden purpose of the distinction in Wheeling seems to me clearly to be only a rejected argument made by the state to show that there was no discrimination in fact. 337 U. S. at pages 572-574, 60 S. Ct. at pages 1296-1297. I see no indication in Wheeling that the court’s condemnation of the tax was based solely on its rejection of the “reciprocity” argument.


author: Per CURIAM.

text:
    OHIO, ex rel. KLAPP, PROSECUTING ATTORNEY, v. DAYTON POWER & LIGHT CO. et al.
    ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTPI CIRCUIT.
    No. 851.
    Decided June 1, 1959.
    Robert Houston French, Haveth E. Mau and R. K. Wilson, for petitioner.
    Julian de Bruyn Kops, for respondents.
   OPINION

Per CURIAM.

The petition for writ of certiorari is granted. The judgment of the United States Court of Appeals for the Sixth Circuit is reversed. Straw-bridge v. Curtiss, 3 Cranch 267; Removal Cases, 100 U. S. 457; Indianapolis v. Chase National Bank, 314 U. S. 63.

For opinions in U. S. District Court and U. S. Circuit Court of Appeals, see 82 Abs 152 and 82 Abs 158.


author: By COLLIER, J.:

text:
    NYE et, Plaintiff-Appellants, v. SCHULER, Defendant-Appellee.
    Ohio Appeals, Fourth District, Ross County.
    No. 464.
    Decided December 29, 1959.

      James M. Drennen, Waverly, William E. Knepper, Columbus, David Phillips, Chillicothe, for plaintiff-appellants.
    Tom Reed, Waverly, for defendant-appellee.
   OPINION

By COLLIER, J.:

The first question requiring the attention of the court is the appellee’s motion to strike the bill of exceptions from the files because the same was not filed in conformity with the law or the rules of this -court. As shown by the transcript of docket and journal entries, the entry overruling the motion for a new trial was filed October 1, 1958. On October 3, 1958, the notice of appeal was filed. On November 10, 1958, the bill of exceptions was delivered to the Clerk of Courts. The Clerk failed to transmit the bill of exceptions to the trial court for allowance as prescribed by statute. As shown by journal entry of this court, dated May 5, 1959, it was ordered that the appellee’s motion to dismiss the appeal be overruled and the Clerk was ordered to transmit the bill of exceptions to the trial court for allowance. The Clerk complied with this order and on May 22, 1959, the bill of exceptions was allowed by the trial court and filed in this court.

The proceedings to perfect an appeal are statutory. The provisions of §2321.05 R. C., with reference to the time of filing a bill of exceptions are mandatory; but the provisions of the following sections defining the duties of the Clerk and the trial judge with respect to a bill of exceptions are directory. Pace v. Volk, 85 Oh St 413, 98 N. E. 111; Tibbals v. Brandon, 66 Abs 34. It is admitted in the instant case that the bill of exceptions was filed with the Clerk within the time specified by the Statute. The subsequent actions of the Clerk and the trial judge, as pronounced in Pace v. Volk, supra, were in a ministerial capacity and their failure to perform their statutory duty regarding the bill of exceptions did not render it ineffective. The motion to strike the bill of exceptions from the files is overruled.

This is an appeal on questions of law from a judgment rendered in the Common Pleas Court of Ross County on a verdict of the jury in favor of the defendant. The parties will be referred to herein as the plaintiffs and defendant in the same position as in the Common Pleas Court. The plaintiffs, in their petition, were seeking to recover damages from defendant resulting from defendant’s failure to pay to the plaintiffs the rents specified in a lease of certain property known as the BEACPICOMBER, located at Lake White, Pike County, Ohio. Defendant’s answer consisted of four defenses. Defendant also filed a cross-petition which was withdrawn at the close of all the evidence. The case was submitted to the jury on the one issue presented by the third defense of defendant’s answer, as to whether or not the defendant was justified in vacating the property and discontinuing the payment of rent for the reason that the plaintiffs had failed to install a heater in the premises on or before September 1,1955, as provided in the lease, thereby rendering the building untenable.

The assignments of error raise the questions of the sufficiency of the evidence to sustain the verdict and whether the trial court erred in its general charge to the jury.

The lease was executed May 19, 1955, for a term of two years at a rental of $2,400.00 per year. On October 15, 1955, defendant gave notice to the plaintiffs he was 'vacating the premises. The evidence adduced by the defendant is to the effect that, because of lack of a heater in the building in the month of September, there was a decline of business; that defendant attempted to contact the plaintiffs on several occasions to have a heater installed and that plaintiffs failed to perform this condition of the lease, making it necessary for defendant to vacate the premise. Plaintiffs attempted to show that they were ready and willing to install a heater, that the weather during that season at Lake White did not require heating facilities, and that defendant was merely using this covenant of the lease as an improper excuse to avoid his obligations under the contract of lease.

We have carefully examined the entire record, but we do not con- . sider it necessary to give a detailed statement of all the evidence. Suffice it to say that the evidence is conflicting. As we view the record, a rather weak defense was established for the defendant, but we cannot say, as a matter of law, there were no issuable facts to be determined by the jury.

It is a general rule that where a verdict is based upon conflicting inferences, reasonably deducible from the evidence, a reviewing court cannot set aside such a verdict. It is only when the record clearly shows a serious mistake or misapprehension so violent as to shock the senses that a judgment will be reversed as being against the manifest weight of the evidence. The assignments of error relating to the sufficiency of the evidence are overruled.

The defendant bases his right to vacate the premises on the theory of a constructive eviction; that he was forced to vacate the premises because the plaintiffs did not install a heater. The trial court, in its general charge, defined a constructive eviction as follows:

“A constructive eviction is such a failure or interference on the part of the landlord with the intended enjoyment of the leased premises as to be of a substantial nature and so injurious to the tenant as to deprive him of the beneficial enjoyment of the leased premises.”

This language was followed by the Court properly defining the burden of proof of such defense.

Plaintiffs claim the court should have given further instructions as to what constitutes a constructive eviction. Of course, an examination of the many text books and reported cases on this subject will disclose more elaborate definitions of the term, but, in our opinion, the definition given by the court is proper, clear and consise, and, in the absence of a request for a more complete definition, the one given is amply sufficient. No request was made for further instructions, although counsel was given the opportunity to do so.

We find no error prejudicial to the rights of the plaintiffs, and therefore, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

GILLEN, PJ, RADCLIFF, J, concur.