author: By BADER, J.

text:
    STATE, ex WYNNE, v. URBAN et al.
    Common Pleas Court, Hamilton County.
    No. A-129765.
    Decided January 8, 1952.
    C. R. Beirne, Cincinnati, for relator.
    Henry M. Bruestle, City Solicitor, James W. Farrell, Jr., Asst. City Solicitor, Cincinnati, for respondents.
   OPINION

By BADER, J.

This case has been consolidated by proper entry with cases wherein Eugene A. Ritter and Robert Coleman are relators in cases numbered A-129764 and A-129763 of this Court respectively.

' The relators in this action are Lieutenants in the Cincinnati Fire Department and all have served in that capacity for more than one year but less than two years. ^

The respondents set October 29, 1951 as the date for a promotional examination for Fire Captains. This matter of promotional examination and eligibility therefor was approved and the announcement sheet was declared as a part of the minutes of the Civil Service Commission at its meeting on September 27, 1951.

The notice of the examination read in part as follows:

“Eligibility: All Fire Lieutenants who have been permanently appointed and employed as such for the two years prior to the date of this examination are eligible to compete. (No employe shall be deemed eligible for a promotional examination whose last service rating was lower than 75%, unless the average of his last two ratings was not lower than 75%. — Civ. Serv. Comm. Rule XI, Sect. 2)”

“Qualifications: Each applicant must have two years of experience as a Fire Lieutenant. He must be thoroughly familiar with fire fighting practices, equipment, apparatus, first aid, rules and regulations, and fire prevention methods. He must be a good supervisor of men. He must know the location of streets, buildings and fire alarm boxes.”

The relators tendered their respective applications to take the examination but were denied the right for the reason that they had not been employed as Lieutenants in the Cincinnati Fire Department for two years prior to October 29, 1951, the date set for the examination.

The relators bring this action requesting a writ of mandamus to compel the Civil Service Commission of the City of Cincinnati to accept the applications for the reasons that the rule is (1) unlawful and contrary to the Civil Service laws and the Constitution of the State of Ohio; (2) not authorized by law and is beyond the rule making power conferred on the Commission; (3) that the condition has not been uniformly enforced; and (4) that the rule is arbitrary and eonstitues a gross abuse of discretion.

Sec. 12283 GC defines “mandamus” and reads as follows: “Mandamus defined. Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

The question then is what action is enjoined in law on the Civil Service Commission which it has failed to perform.

Section 3 of Article V of the Charter of the City of Cincinnati reads as follows: “The council shall have no power to modify the provisions of the laws of the state of Ohio now or hereafter in effect relating to the civil service and civil service commissions. No fee or other assessment, however, shall be charged applicants for examinations for positions under the civil service.” (See Exhibit No. 2.)

The powers and duties of public officers are those which the statutes of the State expressly delegate to them and such powers as may be necessarily implied from those delegated.

Section 10 Article XV of the Constitution of the State of Ohio concerns appointments and promotions in the civil service of the State, and reads as follows: “Civil service. Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according .to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.”

After providing the authority for the creation of Municipal Civil Service Commission, §486-19 GC provides in part as follows: “Such municipal commission shall prescribe, amend and enforce rules not inconsistent with the provisions of this act for the classification of positions in the civil service of such city, city school district, and all the positions in the city health district; for examinations and registrations therefor; and for appointments, promotions, removals, transfers, layoffs, suspensions, reductions and reinstatements therein; and for standardizing positions and maintaining efficiency therein. Said municipal commission shall have and exercise all other powers and perform all other duties with respect to the civil service of such city, city school district and city health district, as herein prescribed and conferred upon the state civil service commission with respect to the civil service of the state; and all authority granted to the state commission with respect to the service under its jurisdiction shall, except , as otherwise provided in this act, be held to grant the same authority to the municipal commission with respect to the service under its jurisdiction.”

It necessarily follows that those sections of the General Code which govern the State Civil Service Commission govern the Municipal Civil Service Commission.

Sec. 486-7 GC sets forth, among the other powers and duties of the Civil Service Commission, which applies to all Civil Service Commissions whether they be State or Municipal, the following:

“Powers and duties. The commission shall,

“Rules and regulations. First: Prescribe, amend and enforce administrative rules for the purpose of carrying out and making effectual the provisions of this act.”

No other interpretation can be given to the above statute than that one which gives the City of Cincinnati Civil Service Commission the right to prescribe administrative rules for the purpose of carrying out and making effective the provision of the Civil Service Act of the State of Ohio.

In the ease of Green v. State Civil Service Commission, 90 Oh St page 252, 107 N. E. 531, the Court held: “2. The provisions of the civil service law (103 O. L., 698), authorizing the civil service commission to prescribe, amend, and enforce rules with reference to the civil 'service of the state and the several counties and cities, do not constitute a delegation of power to enact laws, * *

On page 256 of 90 Oh St., on page 532 of 107 N. E. the Court said: “In the nature of things there must be many things in which the wisdom of legislation must depend, which can only properly be determined in the course of the administration of the legislative will as expressed in law. The statute in question provides for appointments and promotions in the civil service according to merit and fitness. It also provides for competitive examinations of applicants and chat the commission may adopt rules to carry the provisions of the law into effect. There is in this no delegation of legislative power, but it is the imposition of an administrative duty in order to give practical effect to the enactment. The legislative power to prescribe this duty was exercised by the General Assembly itself in keeping with constitutional requirement.”

In accordance with 'this authority the Civil Service Commission of Cincinnati has established rules by which promotional examinations will be governed, which reads in part as follows: “Rule XI — Section 2. Promotional.Examinations: The term ‘Promotional Examination’ signifies a fitness test to determine the relative standing of applicants for positions in a specified class and open only to employes in the classified service who, at the time of the examination, are serving in other specified classes for such a period as may be prescribed by the Commission. A promotional examination may include employes in specified classes in all departments, or only in the department for which the eligible list is being established, as determined by the Commission.”

Sec. 486-10 GC provides in part that: “Examinations: percentage preference for veterans and nurses; credit for seniority; notice of time, place, and scope of examination. All applicants for positions and places in the classified service shall be subject to examination which shall be public, and open to all, within certain limitations to be determined by the commission, as to citizenship, residence, age, sex, experience, health, habit and moral character;”

This statute provides that the examination may be open to all within certain limitations to be determined by tne Commission as to, among other things, experience.

Sec. 486-15a GC provides in part as follows: “Promotions in positions above the-rank of patrolman or fireman; examination; certification and appointment. No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in positions above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. Promotion shall be by successive grades or ranks so far as practicable and no person in a police or fire department shall be promoted to a position in a higher grade or rank who has not served at least twelve months in the next lower grade or rank.”

The authority of municipal civil service to prescribe and enforce rules is authorized by statute. This power, however, is limited and it can only exercise that authority which.is specifically given to it or which may be implied from the authority.

One of the things to be determined by the commission is the experience of the applicant and that is among the limitations placed upon the right of one to take the examinations.

The laws of Ohio provide that “no person in a police or fire department shall be promoted to a position in a higher grade or rank who has not served at least twelve months in the next lower grade or rank.”

The Civil Service Commission has adopted a rule that those same members of the police department and fire department shall have served two years prior to the date of the announced examination.

Is the rule or action of the Civil Service Commission of the City of Cincinnati contrary to the civil Service laws of the State of Ohio?

Counsel for respondent relies on the case of Neil House Hotel Co. v. City of Columbus, 144 Oh St page 248, 58 N. E. 2d 665. In that case the municipal ordinance fixed the time of closing the sale and consumption of beer and intoxicating beverages at midnight while the regulation of the Board of Liquor Control adopted and promulgated under the authority of §6064-3 GC permitted the sale and consumption after midnight. The ordinance and rule were in conflict and inconsistent with each other and the Court held the rule of the Board of Liquor Control prevailed.

In the case at bar we do not have that question. The state law provides that there shall be no promotion to a higher rank or grade of any person in the police or fire department who has not served “at least twelve months.” The rule of the Civil Service Commission provides for a longer period than twelve months. How can it be said that the rule and the statute are incongruous?

The test of whether a rule is in conflict with the statute is whether or not the rule permits or allows that which the statute forbids or prohibits or the reverse. See Village of Struthers v. Sokol, 108 Oh St page 263, Syl. 2, 140 N. E. 519.

It has been through the long years of experience that the Civil Service Commission of Cincinnati has learned that those persons who have served at least two years are the best equipped and more experienced and better able to handle the duties of the next higher grade or rank and with that in mind has made it a rulé that promotions should be made from those persons who have served at least two years. The legislature could have only had in mind acquiring the best available men for the next higher rank or grade when it passed a law requiring “at least twelve months” in the lower grade or rank. It appears to the Court that the Civil Service Commission is only carrying out the intent of the lav/ when it puts into effect the two year requirement.

If the rule is a valid administrative rule and persons who have had less than two years in the lower rank or grade were permitted to take the examination and passed with a high grade, then the rule would mean nothing. After the examination has been taken and the qualifications ascertained, 'the applicant is entitled to be placed on the eligible list and he may not be deprived of. any rights he has through the failure of the Commission to place him on the eligible list. After the Commission has determined an applicant’s qualifications it cannot revise its determination and its powers are at an end as far as the qualifications of the applicant are concerned.

The question before this Court is not the qualifications of the relators. It may be that they are more efficient and experienced than others who have been in the service and the grade or rank for a much longer period of time and who will be entitled, under the Commission’s rule, to make application and take the examination for appointment of Captain of the Cincinnati Fire Department. The question is whether or not the Civil Service Commission of the City of Cincinnati has a right to require two years of experience rather than that the applicant have at least one year in the lower rank or grade as required by statute.

There is nothing in the law which will preclude the Civil, Service Commission from changing its rules from time to time if, in its discretion, it feels it is to the best interest of the City of Cincinnati provided there is not an abuse of discretion, or it is not unreasonable or arbitrary.

Based on the law referred to above and facts before it, the Court is of the opinion that the rule in question is administrative in nature and authorized by the law, and that it is not contrary to or in conflict with the Civil Service laws or the Constitution of the State of Ohio. Accordingly the writ of mandamus prayed for will be denied and the temporary restraining order heretofore made in this case will be dissolved.


source: Caselaw Access Project

author: By ROSS, J.:

license: Public Domain

text:
    STATE, ex rel. WYNNE et, Relators-Appellants, v. URBAN et, Respondents-Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 7564.
    Decided March 3, 1952.

      C. R. Beirne, Cincinnati, for relators-appellants.
    Henry M. Bruestle, James W. Farrell, Jr., Cincinnati, for respondents-appellees.
   OPINION

By ROSS, J.:

The Court of Common Pleas refused a writ of mandamus. This is an appeal upon questions of law from the judgment entered to such effect.

The purpose of the action was to compel the Civil Service Commission of the City of Cincinnati to permit certain Lieutenants in the Fire Department of such City, having less than two years service as such Lieutenants, to take an examination for the position of Captain in such Fire Department.

The respondent members of such Commission defend their position upon the ground that the Commission announced a rule applying to such special examination, requiring such prior service, and that it had authority in law to take such action.

This position is vigorously assailed by the relator, who asserts that although the Commission may have power to establish measures applicable to procedure in the taking of such examinations, it has no right to usurp the function of the General Assembly and enact legislation appropriate only to the power of that body, and in conflict with rules adopted by the legislature applicable to promotion of lieutenants in the fire departments of municipalities. The provision of §48S-15a GC, upon which appellant relies, is:—

“No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in positions above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. Promotion shall be by successive grades or ranks so far as practicable and no person in a police or fire department shall be promoted to a position in a higher grade or rank who has not served at least twelve months in the next lower grade or rank.”

The law governing the operation of both State and Municipal Civil Service Commissions is found in §486-1 et seq GC. An examination of these sections develops special legislation applicable to the promotion of persons employed in municipal police and fire departments. In §486-15 GC, it is provided:

“Vacancies in positions in the classified service shall be filled in so far as practicable by promotions. The commission shall provide in its rules for keeping a record of efficiency for each employe in the classified service, and for making promotions in the classified service on the basis of merit, to be ascertained as far as practicable by promotional examinations, by conduct and capacity in office, and by seniority in service; and shall provide that vacancies shall be filled by promotion in all cases where, in the judgment of the commission, it shall be for the best interest of the service so to fill such vacancies. All examinations for promotions shall be competitive. In promotional examinations efficiency and seniority in service shall form a part of the maximum mark attainable in such examination. In all cases where vacancies are to be filled by promotion, the commission shall certify to the appointing authority only the name of the person having the highest rating. The method of examination for promotions, the manner of giving notice thereof, and the rules governing the same shall be in general the same as those provided for original examinations, except as otherwise provided herein.”

In §486-10 GC, it is provided:

“All applicants for positions and places in the classified service shall be subject to examination which shall be public, and open to all, within certain limitations to be determined by the commission, as to citizenship, residence, age, sex, experience, health, habit and moral character; * * *”

It is apparent that the legislature considered some service in the lower grade necessary as a precedent requirement to promotion. It is to be noted, however, that such requirement is applicable to promotions and not permission ■ to take an examination. Has the legislature preempted the legislative area applicable to the matter here involved? No lieutenant could be promoted under the State law until one year service as such elapsed before promotion, but there is nothing in the state law forbidding an examination of such lieutenant at any time. On the other hand, it is obvious that under the municipal rule if a lieutenant can not take an examination until two years service has elapsed, he certainly cannot be promoted until after such two years service. ■ The Municipal rule goes much further than the state law, although it is stated that its application has been waived where the two years prior service lacks only a short time of completion. Still it is obvious that some injustice and even discrimination could occur in view of the fact that the lists of successful applicants having been made up some considerable periods elapse before other examinations may be held.

In §486-19 GC, it is provided:—

“* * * Said municipal commission shall have and exercise all other powers and perform all other duties with respect to the civil service of such city, city school district and city health district, as herein prescribed and conferred upon the state civil service commission with respect to the civil service of the state; and all authority granted to the state commission with respect to the service under its jurisdiction-shall, except as otherwise provided in this act, be held to grant the same authority to the municipal commission with respect to the service under its jurisdiction. * * *”

It seems obvious then that unless the provisions of §486-15a GC, are in conflict with the local rule of the Civil Service Commission of the City of Cincinnati, that such Commission had full power to establish the rule in question.

Great reliance is placed upon the case of Neil House Hotel Co. v. City of Columbus, 144 Oh St, 248. The effect of the rule laid down in that case is found in the statement of Zimmerman, Judge, at page 252 of the opinion: “From a perusal of the pertinent statutes and regulation No. '30, it is difficult to escape the conclusion that plaintiff, under state authorization, may lawfully sell beer and intoxicants to its customers after the hour of midnight and that a municipal ordinance fixing midnight as the time when the sale of such beverages must cease, is invalid. See Village of Struthers v. Sokol, 108 Oh St, 263, 140 N. E., 519. See, also, Noey v. City of Saginaw, 271 Mich., 595, 261 N. W., 88.

“When the statutes and a valid regulation of the Board of Liquor Control say that the sale of intoxicants may not be made after a designated hour, it is equivalent to saying that sales up to that time are lawful, and an ordinance which attempts to restrict sales beyond an earlier hour is in conflict therewith and must yield. Schneiderman, an Infant, v. Sesanstein, 121 Oh St, 80, 86, 167 N. E., 158, 160, 64 A. L. R., 981.

“In principle at least this case is controlled by the decision in City of Akron v. Scalera, 135 Oh St, 65, 19 N. E. (2d), 279, the implications of which are that if a municipal ordinance of the type here involved is in collision with a general law upon the same subject, the ordinance is ineffective.”

It must be admitted that upon a casual reading of this case and the provisions of §486-15a GC, that a seeming analogy exists, but upon close scrutiny a vital difference appears between the situation presented in the Neil House Hotel Co. v. Columbus ease and that now considered by this Court. If nothing else were present the use of the words used in §488-15a GC, “at least” would, in the opinion of the court, be sufficient to distinguish the two situations. In the rule considered in the Hotel case a specific time was fixed by which sales of beer and intoxicating liquors could not be sold, that is, after 2:30 A. M., and before 5:30 A. M. The Columbus ordinance sought to cut down the implied privilege of sale up to 2:30 A. M., and thus increase the period of non-sale.

In the situation here presented, the state merely requires at least one year (twelve months) service — and impliedly leaves open to either State or Municipal Commission to provide by rule for a longer period. Had the state regulation provided that “at least” a period of non-sale should exist between 2:30 and 5:30 A. M., it may be seriously doubted whether the pronouncement in the Hotel case would have been the same as under the facts therein stated.

Courts are always reluctant to pronounce a conflict in legislative action and will not do so unless clear evidence of conflict exists. 28 O. Jur., p. 442, Section 277, “Municipal Corporations.”

It must be concluded that the Civil Service Commission of the City of Cincinnati was completely within its jurisdiction in establishing the rule here in question, there being no conflict clearly apparent in its rule with State authority. Although it might be better to have a permanent rule applicable to examinations, the fact that the rule here considered is promulgated at the time of each examination does not seem of sufficient importance to warrant this Court in holding such rule invalid, especially as the record shows that in all respects the Commission has complied with the provisions of §486-9 GC, in which it is provided in part:

“* * * Due notice of the contents of such rules and of all changes therein shall be given to appointing officers affected thereby, and such rules shall also be printed for public distribution: provided, however, that until such rules are adopted and in force, the rules existing when this law takes effect shall continue in force.”

The judgment of the Court of Common Pleas of Hamilton County, Ohio, is affirmed.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur in syllabus, opinion & judgment.


text:
    NAU GRAIN COMPANY OF LIPPINCOTT, INC., Plaintiff-Appellee, v. BRITTON, Defendant-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 128.
    Decided March 21, 1952.
    Houston, Houston & Holding, Russell B. Holding, of Counsel, Urbana, for plaintiff-appellee.
    Donald M. Gibbs, Urbana, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court in favor of the plaintiff rendered upon the verdict of a jury. The error assigned is that the judgment is not sustained by sufficient evidence and is contrary to law. The appellant concedes that there was a conflict in the evidence, but urges that the testimony of one of the plaintiff’s witnesses, Mildred McLaughlin, corroborates his evidence and that when the judgment is plainly inconsistent with facts conclusively established by the evidence of the prevailing party, the judgment should be reversed as being unsupported or against the weight of the evidence. We are in accord with the appellant as to the legal principle involved, but cannot agree that the evidence established by the plaintiff-appellee is plainly inconsistent with the judgment. Our examination of the testimony of this witness reveals that it is

subject to two interpretations, one supporting the appellant and the other, the appellee. It is the function of the jury to interpret the evidence and give it the weight to which it is entitled under proper instructions from the court. All of this appears to have been properly done.

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

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


text:
    BOZEMAN, Plaintiff-Appellant, v. FITZMAURICE et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21874.
    Decided June 13, 1951.
    Davis, Davis & Handelman, Cleveland, for plaintiff-appellant.
    Warren M. Briggs, for defendant-appellees.

      (PHILLIPS, PJ, GRIFFITH, J, of the 7th District, METCALF, J, of the 4th District, sitting by designation.)
   OPINION

By THE COURT:

This is an action sounding in contract. The contract was entered into on December 1, 1936, between Local 707, United Electrical Radio and Machine Workers of America (hereinafter referred’to as Local 707 U. E.) and International Union of Electrical Radio and Machine Workers of America C. I. O. (hereinafter referred to as U. E.). The Local is a voluntary unincorporated group of employees of the General Electric plants in Cleveland. The U.’E. is an International voluntary unincorporated labor organization having as its members various locals throughout the country with headquarters in New York City. The C. I. O. is the Congress of Industrial Organization, a federation of essential autonomous unions. Local 707 received and accepted a charter from U. E., on December 1, 1936. The charter provides:

“It is hereby agreed in the acceptance of this charter that the aforesaid Union shall conform to the constitution, rules and regulations of the U. E.”

The U. E. Constitution provides:

“Any disbandment, dissolution, secession or disaffiliation of any Local shall be invalid and null and void, if seven or more members indicate their desire to retain the local charter.” “The affiliated local Unions shall adopt their own constitution and by-laws provided that these do not conflict with the constitution and by-laws of U. E.”

When this charter was accepted by the Local, a contractual obligation was created whereby the Local was governed and controlled by (a) its own constitution, (b) the charter it has received from U. E„ (c) the constitution of U. E„ and (d) the by-laws, rules and regulations of each. These instruments constituted the contract between Local 707 and U. E.

At the time Local 707 accepted this charter, U. E. was an affiliate of C. I. O. and the C. I. O. is specifically named in the Local’s constitution. This relationship continued for over twelve years during which time the Local’s membership increased tremendously. It accumulated assets in excess of $24,000.00 and it and U. E. advertised U. E.’s affiliation with C. I. O. and used the power of C. I. O. to gain contractual rights and benefits from industry for its members.

On October 30, 1949, a regularly called membership meeting of Local 707 was held at East Junior High School. Having received a telegram from Julius Enspak, general secretary and treasurer of U. E. urging financial assistance for steel workers and mine workers on strike then, the Local voted a donation of $500.00 from the Local’s funds. On Nov. 2, 1949, for reasons relating to its conduct U. E. was expelled from C. I. O. On Nov. 3, 1949 a special executive board meeting of Local 707 was held, and defendant Fitzmaurice made the following motion:

“In view of the action of the C. I. O. in expelling the IT. E. from the Congress of Industrial Organization, the executive officers of Local 707 have removed the local funds from the bank. The funds are now in safekeeping. This action has been takeh in the best interests of the members of Local 707.”

The minutes of this meeting disclose “after heated and lengthy discussion, the motion carried by roll call 15 to 13.” The evidence discloses that the officers of Local 707 forwarded some $24,000.00 of funds from the Local’s treasury at or about this time or, at most, within a few days thereafter. On Nov. 27, 1949, a regularly called meeting of the entire membership of Local 707 was held and the minutes of that meeting disclosed that the members (1) ratified and confirmed the actions of the officers with respect to the Union’s funds; (2) disaffiliated from U. E.; (3) affiliated with I. U. E. At and before the' time of the opening of this meeting the funds in question belonged to the Local. The officers some three or four weeks before had given these funds to the steel workers on strike. The local at this meeting approved and confirmed this action on the part of its officers and such approval is clearly binding on the Local. The Local owned these assets and could dispose of them as it saw fit. This is not a case of diversion of the funds of the Local.

At this meeting on November 27, the majority of the members affiliated with I. U. E., a C. I. O. affiliate, and this group is known as Local 707, I. U. E., C. I. O. The minority members retain their membership in Local 707 U. E. and are operating and functioning as such under the December 1, 1936 charter-.

Why did not the members of Local 707 on November 27 have a right to dispose of all of their own assets? The Local is an autonomous group. Its existence, its revenues and its functions are not derived from or dependent upon the parent body. The Local could still function without any relationship with U. E. In fact U. E. depends upon the per capita tax of the Local’s members for its financial existence. The Local is a separate association which owes' its creation and continued existence to the will of its members. This Local had exclusive control over its funds. It had no right to divorce itself from U. E. with whom it was bound by contract, except for a good and valid reason. The Local says it has two good reasons why the contract should not be enforced; (1) the affiliation of the U. E. with the C. I, O. is an implied condition in the contract between U. E. and Local 707 and the U. E.’s disaffiliation from the C. I. O. puts an end to this contract and excuses Local 707 from further performance; (2) to enforce the contract would be contrary to public policy.

Exhibits of letter-heads, membership applications, contracts, badges, withdrawal cards, authorizations to deduct membership fees, reports, membership books, the sign on the local’s office window, coupled with the testimony of Loretta Toner, David J. Fitzmaurice, Herman Fierce and James Sayers, and further reinforced by the constitutional provision of Local 707, Article II which refers to C. I. O. three distinct times, serve as an adequate basis for holding that there was an implied contract by U. E. to remain affiliated with C. I. O.; that the affiliation of U. E. with C. I. O. was a decisive factor in the desire of the local’s membership to affiliate with U. E.; that the desire of a large majority of the members of Local 707 for affiliation with C. I. O. was frustrated by U. E’s expulsion from C. I. O.; that C. I. O. was a major inducement to employees in joining Local 707 and on account of this affiliation the local’s membership increased enormously until it reached a membership of approximately 3000 in 1949 and that continued affiliation of U. E. and C. I. O. was a material implied condition of the contract. We believe that reasonable minds could c.ome to no other conclusion.

The importance of this affiliation is further borne out by the fact that during the years 1936 to 1949, U. E. was the bargaining agent, of all twenty-three units of the Genéral Electric Company, but since it was expelled from C. I. O. it now bargains as the functioning agent for only five unions while the eighteen other bargaining unions are represented by I. U. E. This, in and of itself, is strong evidence of the importance of the C. I. O. affiliation in the minds of the members of the local. After this implied condition in the contract was destroyed the contract was broken and this put an end to the contract so far as the local’s obligations are concerned. This excuses the Local from further obligations, and performance. The obligation is not stronger or more enduring than the foundation upon which it rests. Local 707 after expulsion of U. E. had a right to disaffiliate from U. E. and the Local may retain its assets and take them with it to a new affiliation.

In the instant case, the Local disaffiliated with U. E. and then affiliated with I. U. E„ both of which acts it clearly had a right to do. The vote at the meeting of the Local’s members on November 27, unmistakably establishes this fact.

The fact that more than seven members voted against disaffiliation does by such act retain the charter for that minority, but does not bind the Local against disaffiliation nor a new affiliation. Local 707 had a right to emancipate itself from U. E. when U. E. was no longer affiliated with C. I. O. U..E. was expelled from C. I. O. because of'its malevolent acts of communism. This is not a case where members of a labor organization seceded from its Union. The entire Local acted and as a Local disaffiliated from U. E. Members of Local 707 were not members of U. E. They remained members of the Local. The property of the Local did not become the property of U. E. The Local’s only obligation to U. E. is the payment of a per capita tax assessed against and paid by the Local and not by its members.

At the C. I. O. Convention in Cleveland on Nov. 2, 1949, serious charges of subversive activities were made by C. I. O. against U. E„ and to this date, so far as this record is concerned, the U. E. has failed to purge itself of these charges. It has done nothing to regain its place in the C. I. O. or to convince the C. I. O. or the American public that the charges levelled at it by C. I. O. on the floor of the Convention have no foundation in fact and are therefore baseless. True, the U. E. adopted a resolution in September, 1949:—

“again raiding and dictatorship in the C. I. O.” but this in no wise answered the grave charges under which it now labors.

In conclusion, we find that this suit arises in a contract setting. The contract is between Local 707 and U. E.: that the continued affiliation of U. E. with C. I. O. was an essential provision of the contract and that on the termination of the affiliation, the vital object of the contract is frustrated and the contract fails, and that Local 707 is released from all obligations thereunder; that the transfer of the funds was transacted in a lawful manner, free from fraud and in no wise constituted a diversion of the local’s assets and that Local 707 I. U. E. is the lawful owner of whatever assets Local 707 had at the time of the dissaffiliation from U. E.

Finding the contract unenforcable as against the defendants, it is unnecessary to pass upon the contention that to enforce the contract would be contrary to public policy. The issues in this case have been disposed of on the basis of contract. However, the courts may not shut their eyes nor close their ears to matters that are of general public knowledge. They may take judicial notice of such established facts. The Communist Party is not a legitimate political party. It is now made up of those who are engaged in subversive conduct and are striving for the overthrow of this government by force and violence. The courts may not confiscate assets or property of the communists under our present law. They do now enjoy the protection of property rights in Ohio, no matter how inimical their presence in our midst is to our •government and to our public welfare.

Judgment for defendants appellees. Exc. Order see journal.

PHILLIPS, J, GRIFFITH, J, METCALF, J, concur.


author: Per CURIAM.

text:
    BURNETT et, Plaintiffs-Appellants, v. KIDSTON et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3431.
    Decided May 3, 1951.

      Wm. B. Spagnola, James E. Mitchell, Youngstown, for plaintiffs-appellants.
    W. P. Barnum, William A. Ambrose,’ Pros. Atty., Youngstown, for defendants-appellees.
    (Hon. JOY SETH HURD of the Eighth District, sitting by assignment in the Seventh District.)
   OPINION

Per CURIAM.

In this opinion the plaintiffs will be called plaintiffs: the Mahoning Valley Sanitary District will be called the District, and its directors defendant directors. Defendant Rayburn is Auditor of Mahoning County, and will be called auditor.

Plaintiffs appealed to this court on questions of law and fact from a judgment of the court of common pleas entered upon a finding of a judge thereof in plaintiffs’ action filed in that court on July 7, 1950, to declare unlawful and enjoin the certification and collection of a special assessment levied for the year 1950 by defendant directors for the benefit of the district upon the City of Youngstown, a municipal corporation, and all real property situated therein.

Plaintiffs are owners of real property situated within the corporate limits of the City of Youngstown and payers of tax thereon.

Defendant directors are directors of the district, a political subdivision of the state of Ohio organized in 1928 and existing under the provisions of' §6602-34 to §6602-106 inclusive, GC, to supply water for domestic, municipal and public use within the municipal corporations of Niles, Trumbull County, and Youngstown, Mahoning County, which cities comprise such district.

The construction cost of the district, which is situated in Mahoning and Trumbull Counties, was financed by the sale of serial bonds maturing over a period of years, the last of which will mature in 1954. Principal and interest payments on such bonds are paid from the proceeds of annual tax levies made since 1928 upon real property situated in the cities of Youngstown and Niles in the respective proportions of 90.55% and 9.45%, the proceeds of which are remitted to the district periodically by defendant auditor and the auditor of Trumbull County.

In accordance with the provisions of §6662-78 GC, the directors fix the annual levies at 10% in excess of the amount needed for redemption of and payment of interest due on such bonds.

On May 18, 1950, the directors initiated proceedings to levy $524,729.72 upon owners of real property situated in Youngstown to pay bond retirement and interest thereon for the year 1951.

Defendant directors’ annual report to the court of jurisdiction revealed an unexpended cash balance in the district’s bond retirement and interest fund of $1,753,643.23, which resulted from the 10% levies to which reference is made above, and which is in excess of the amount required to pay maturing bonds and interest due thereon in full.

Plaintiffs contend that upon the facts stated defendant directors are without authority to levy the sum of $524,729.72, or to use the sum of $1,753,643.23 for any purpose other than retirement of bonds and payment of interest due thereon; that to use it for any other purpose would be unconstitutional and would violate Article 12, Section 2 of the Constitution, and the statutes governing such district, and never having used such fund for the stated purpose they cannot use it for that or any purpose other than retirement of such bonds and interest due thereon.

Previous to this litigation the directors by resolution determined to permit such 10% fund to accumulate until sufficient to retire such outstanding bonds and interest charges thereon.

Defendants contend inter alia that the sum of $1,753,643.23 was accumulated and ear-marked for the purpose of making district improvements and construction of new facilities as set forth in a contingent court approved amendment to the district’s official plan as to the need and benefit thereof, which has not yet been determined; that the levy made for the year 1951 will be required to meet bond retirement and pay interest thereon during that year; that such levies will be necessary in the years to come for the reason that in the future defendant directors intend to earmark such excess fund accumulated then to enlarge the district.

Further defendants contend that such excess fund is a surplus fund and base their rights to pursue such policy upon the following provision of §6602-89 GC, “for retiring bonds, reducing the rate of assessment or for accomplishing any other legitimate objects of the district”; that such fund becomes an excess fund by reason of the fact that it was an accumulation in excess of the amount needed to retire the bonds and pay interest thereon as they become due.

Further defendants contend that “the legal question involved is an interpretation of sub-section 89 (6602),” which reads as follows:—

“Any surplus funds in the treasury of the district may be used for retiring bonds, reducing the rate of assessment or for accomplishing any other of the legitimate objects of the district.” (Emphasis ours.)

Defendant argues that it “is evident that the Sanitary District Act contemplates a surplus over and above what is needed to pay for the bonds.”

The evidence discloses that the cost of execution of the adopted amendment to the official plan of the district for an auxiliary supply of water from Berlin Reservoir and deferred construction would largely exceed the present amount in the 10% fund, and that which will accumulate in the future in such fund; that appropriations have been filed for replacement, improvement, repairs and construction in the Meander Creek plant, and it is around such that the litigation between the parties revolve. The balance of construction for the Meander Creek plant is catalogued as deferred construction,' and is a second stage not contemplated now.

The evidence further discloses that the directors propose to pay presently needed construction costs from the district’s bond retirement and interest fund, to which reference has been made, in installments commencing September 1951 and during the succeeding three or four years.

Sec. 6602-78 GC, provides:—

“* * ~ the board of directors shall pass and spread upon their records a bonding resolution in which shall be stated the amount of the assessment, and the amount thereof paid as aforesaid, and thereupon the board shall in the same resolution apportion the uncollected assessment into installments or levies, provide for the collection of interest upon the unpaid installments, and they may order the issuance of bonds (in an amount not exceeding ninety per cent of the levy) in anticipation of the collection of said installments. The residue of the tax so levied (not less than ten per cent) shall constitute a contingent account to protect the bonds from casual default, and any part thereof in excess of ten percent of the next installment of maturing bond principal, together with the next two installments of semi-annual interest, if not needed for this purpose, may be transferred from time to time to the maintenance fund of the district.”

There has never been a default in the collection of such levies.

Sec. 6602-82 GC provides in part:—

“The board of directors shall each year thereafter determine, order and levy the part of the total assessments levied under this act, which shall become due and be collected during each year at the same time that state and county taxes are due and collected, * * *. In the event of any failure or neglect of the board of directors of the district to determine and order an annual levy for the purpose of paying the interest and principal of any bonds pursuant to this act, it shall be the duty of the auditor of the county in which the lands subject to such assessments are situated, to make and complete a levy of the taxes or special assessments necessary for the said purpose against the lands in the said district, * * *.”

These sections of the General Code indicate the mandatory duty imposed upon defendants directors or auditors to determine the amount of and make such levy, the performance of which this court cannot enjoin.

In deciding the equities of the case we are mindful of the claim that it would be inequitable to levy an addtional tax for the payment of the outstanding bonds when there is sufficient money in the surplus fund to retiré such bonds and pay the interest due thereon in full. However equity must follow the law.

The sections of the General Code providing for establishing of sanitary districts and governing the issuance of bonds for the purpose indicated and the manner of levying taxes for the payment thereof are definite.

The General Code specifically authorizes the application of the fund arising from the excess levy of 10% to be transferred from time to time to the maintenance fund of the district to be used for “any other of the legitimate objects of the district.” Therefore it is apparent that the remedy of the plaintiffs lies with the legislature; and the acts referred to being constitutional it is the duty of this court to follow such legislative enactments as they exist now.

Obviously the decree of this court is for the defendants.

An entry drawn in accordance with the decree of this court and this opinion may be presented for approval.

NICHOLS, PHILLIPS and HURD, JJ, concur.


author: By BAUMANN, J.

text:
    NEUWEILER et, Plaintiffs, v. KAUER, Director of Highways, Defendant.
    Common Pleas Court, Sandusky County.
    No. 27336.
    Decided November 17, 1951.

      Culbert, Hyzer, Culbert, Fremont, for plaintiffs.
    C. William O’Neill, Atty. Geni., Columbus, for defendants.
   OPINION

By BAUMANN, J.

The Director of Highways intends to designate as a limited access thoroughfare, several miles of State Route 20 between Fremont and Clyde. The plaintiffs, as affected property owners, seek to enjoin the contemplated action. The facts have been stipulated, leaving to the court for decision, the constitutionality and practical application of this portion of the highway act.

Sec. 1178-21 GC is in question. It provides as follows:

“Sec. 1178-21 GC. ‘Limited access highways’ and ‘freeways’ may be established, constructed, vacated, etc.; service highways; definitions.

“Sec. 1178-21 GC. The director of highways shall be authorized to lay out, establish, acquire, open, construct, improve, maintain, regulate, vacate or abandon ‘limited access highways’ or ‘freeways’ within this state in the manner or manners in which said director may now. or hereafter lay out, establish, acquire, open, construct, improve, maintain, regulate, vacate or abandon highways within the state. The director also shall have any and all other additional authority and power relative to such ‘limited access highways’ or ‘freeways’ as he now or hereafter may possess relative to highways including the authority and power to acquire by gift, purchase, condemnation or otherwise land required for right-of-way. Where an existing highway in whole or part has been designated as, or included within, a ‘limited access highway’ or ‘freeway’ existing easements of access may be extinguished by purchase, gift, agreement or by condemnation.

“As an adjunct of any ‘limited access highway’ or ‘free-way’ the director is authorized to lay out and construct highways and drives, to be designated as service highways, to provide access from areas adjacent' to a limited access highway or freeway. A ‘limited access highway’ or ‘freeway’ is a highway especially designed for through traffic and over which abutting property owners have no easement or right of access by reason of the fact that their property abuts upon such highway, and access to which may be allowed only at highway intersections designated by the director.

“Limitations imposed by law on the mileage of state highways shall not apply to highways established under the provisions of this section.”

Plaintiffs raise two constitutional questions: First, that the act is an unjust delegation of the power of the legislature, and second, that it is not uniform in its application. We discuss them in order.

The general rule for testing whether •or not a statute delegates legislative power is well stated in the citation in plaintiff’s brief from 11 American Jurisprudence at page 924.

“One of the most important tests as to whether particular laws amount to an invalid delegation of legislative power is found in the completeness of the statute as is appears when it leaves the hands of the législature. The generally recognized principle is that a law must be so complete in all its terms and provisions when it leaves the legislative branch of the government that nothing is left to the judgment of the electors or other appointees or delegation of the legislature. The rights, duties, privileges, or obligations granted or imposed, must be definitely fixed or determined or. the rules by which they are to be fixed and determined must be clearly and definitely established, when the act is passed by the legislature and approved by the Governor. The law must be perfect, final and decisive in all of its parts, and the discretion which is given must relate only to execution. One court has laid down the rule that in considering whether a section of a statute is complete or incomplete, the test is whether the provision is sufficiently definite and certain to enable one- reading it to know his rights and obligations thereunder.”

The Ohio landmark is the oft cited quotation from the opinion of one of its most outstanding jurists, Judge Ranney, in 1852 in the case of Rd. Co. v. Commissioners, 1 Oh St at pp. 88-89. In discussing the delegation of legislative discretion, he said:

“The true distinction is, therefore, between the delegation of power to make the law, which necessarily involve a discretion as to what it should be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first can not be done; to the latter no valid objection can be made.”

The legislature has set up a department of public highways. The department is authorized to do many things including construction, repair, location, change, abandonment of public roads and bridges, cooperative action with other agencies, traffic control, research, etc. It is not seriously advocated that the legislature is required to provide all of the details of highway administration.

It is claimed that the statute must be specific in stating some standard for the guidance of the director, and that it fails to do this. We must not lose sight of the fact that the establishment of a limited. access highway is not an isolated legislative authorization. It is a part of the 1945 highway recodification act, and by fundamental rules of -statutory construction must be considered as such a part and not as the whole. Its terms directly refer to the rest of the act. We quote, bold type for emphasis:

“The director also shall have any and all other additional power and authority relative to such limited access highways as he now or hereafter may possess relative to highways.

Thus the director’s authority and obligation as to this type oí road is exactly the same as his authority with reference to bridges, culverts and other roads. It follows that if this section is unconstitutional the entire state highway system is being maintained without legal right. Obviously that is not true.

Section- 37 requires the Director to make a preliminary finding that his action “is necessary for the public convenience and welfare” before he can proceed to condemn private property. Section 21 contains the word ‘required.’ We believe and hold true there is sufficient in the statute to provide a standard of guidance. But if there were not, the instant project, contemplated for the protection of -the public safety and general welfare, comes within the purview of the rule laid down by the Supreme Court of Ohio in Matz v. Cartage Co., 132 Oh St 272.

“7.-As a general rule a law which confers discretion on an executive officer or board without establishing any standards for guidance is a delegation of legislative power and unconstitutional; but when the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without such restrictions and limitations.”

The contention that the statute does not have uniform operation throughout the state is unfounded. There is no part of the state in which it is not effective. Undoubtedly it does not affect all persons in the same manner nor to the same extent. Neither does the statute defining and punishing murder. But both are effective throughout the state, and neither contravenes Article II, Section 26 of the Constitution.

Plaintiffs complain further that the improvement proposed is not being made in compliance with the law because access is being permitted at points other than highway intersections. The language of the statute is:

“Access * * * may be allowed only at highway intersections designated by the director.”

It is noteworthy that the legislature used the permissive ‘may,’ rather than the mandatory ‘shall.’ By so doing, the legislature delegated to the sound discretion of the director the extent to which access should be limited. The statute does not direct but rather ‘authorizes’ the director to establish parallel service roads.

The owners of property abutting Route 20 in this section, now have unlimited rights of access to the highway for the purpose of traveling thereon. This right of access is private property. The Director may take as much or as little of it as he finds necessary for the public convenience and welfare. This finding necessitates the consideration of many factors. Engineering problems present themselves. The financial outlay is important, and must be balanced against the anticipated benefits. The finding of the director must be specific and definite. If he arbitrarily abuses the discretion confided by the legislature, recourse may be had to the courts. If his discretion is not abused, he is required to compensate fully and adequately for the property taken and for any damage resulting to property not taken. The amount of that compensation is fixed by the parties affected, or by a local jury as the property owner may see fit.

The petition is dismissed. An entry shall be submitted.


author: By HORNBECK, J.

text:
    BRIDGEWATER, Plaintiff-Appellant, v. BOYLES et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2046.
    Decided April 19, 1951.
    Irvin C. Delscamp, Dayton, for plaintiff-appellant.
    Philip H. Worman, Dayton, for defendant-appellee, Francis M. Boyles.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from an order of the trial court granting a motion of defendant for a new trial on the ground that the verdict of the jury “was excessive and was not supported by the evidence under the Court’s charge narrowing and defining the issues of causation and damage.”

Three errors are assigned, all of which may be encompassed in the proposition that the court erred in sustaining the motion for a new trial on the ground assigned, that the verdict was excessive and to so hold was prejudicial to the " plaintiff-appellant. To reverse the order of the trial judge, we must find an abuse of discretion in the granting of the motion. Hoffman et al. v. Knollman, et al., 135 Oh St 170; Webster v. Pullman Co., 51 Oh Ap 131.

The action was instituted by the husband of Maple Bridge-water for damages claimed to have been sustained by him by the negligence of the defendant, a dentist, “in permitting three roots of three teeth in the upper right jaw of his said wife to remain there without extraction after he had broken off said teeth formerly attached to said roots during said extraction, and by reason thereof, the body of his said wife became infected.”

The evidence developed that the defendant had been employed by the plaintiff to extract twenty teeth from the upper and lower jaws of his wife. Following this extraction, the wife suffered much pain, had the attention of a physician, who called on her sixty-one times, became unconscious, suffered convulsions, the lining of the brain was involved, she was confined to her home by her illness more than a year, was required to undergo further dental extractions and operations, one of which necessitated hospitalization. As a result of the illness the husband was compelled to employ a nurse for his wife and to make numerous expenditures which were set forth and aggregated the sum of $450.80. The prayer of the petition was for $3,050.80. There were no allegations of loss of consortium of the wife except for those services included in the itemized expenses set out.

The trial judge in his general charge instructed the jury that it should not award as damages a surgeon’s bill of $70.00 for removing a root under the malor bone of the right cheek of plaintiff’s wife, nor any expenses that could be attributed to the after effects of this operation.

As we interpret the charge of the court in the light of the averments of the amended petition, the jury could properly return a verdict only for the expenses specifically set up in the petition less those which the court instructed the jury to disregard. This being true, manifestly the verdict was in excess of any sum which could properly have been awarded by the charge of the court.

Appellant cites a number of cases wherein verdicts have been supported for greater sums than the verdict in the instant case for damages suffered by the husbands by reason of personal injuries to their wives. Hewitt v. Atlantic St. Ry. Co., 132 Atl. 500, verdict for $2000. This verdict included not only loss of services, but loss of society of the wife. Taylor v. Metropolitan St. Ry. Co., 183 S. W. 1133, verdict $3,000. Edder v. Public Service Ry. Co., 135 Atl. 93, verdict $2,000. Both cases permitted damages to be assessed for permanent injuries. Teithel et al., v. Prank, 135 Atl. 81, verdict $1,900, included damages to husband for loss of consortium and for future expenses. Van De Vere v. Kansas City, 196 S. W. 785, verdict $1,200. The facts in this case bearing upon the measure of damages are too meager to make it of any value.

For a discussion of the law as to the right of a husband to recover damages for loss of consortium of his wife by reason of personal injuries suffered by her, see 20 O. Jur. 559; Annotation to Golden v. Greene Paper Co. (R. I.) 21 A. L. R. 1517, and 133 A. L. R. 1156.

It is urged by appellee that the trial judge exceeded his authority in entering nunc pro tunc the order sustaining the motion for new trial. This question is not properly raised because no appeal or cross appeal was instituted by the appellee.

It is noted by the record that counsel for plaintiff excepted to the failure of the court to charge the jury more at length in the loss by the husband of the consortium of his wife as an element of' his damage.

Without respect to the extent of the right of a husband to recover for loss of consortium of his wife, it is certain that the plaintiff pleaded as damages only expenses incurred and was therefore not entitled to have the jury assess any other damages. It is apparent that the jury allowed more than the damages pleaded, namely expenses incurred by the plaintiff. It is likewise apparent that the jury accepted the testimony of the plaintiff and his witnesses as to the extent of his damages, although it may not have included in its verdict the surgeon’s and hospital bills. Upon this testimony, we are of opinion that the expense incurred by plaintiff by reason of the surgeon’s and hospital bills should have been included in the damages which the jury could properly have assessed.

From a close reading of Dr. Cope’s testimony, in conjunction with the other evidence, it is convincing that the removal of the third root by Dr. Bevis was necessitated because it had been left in the upper jaw of Mrs. Bridgewater when the defendant extracted her teeth. The theory that at the time of the extractions by the defendant there may have been a loose root in the upper jaw of Mrs. Bridgewater and that the instrumentation incident to the extraction caused the eventual disturbance for which Dr. Bevis operated is pronounced possible but not probable by Dr. Cope. Dr. Cope affords the only expert testimony on the subject, and from it the conclusion must be drawn that the operation to remove the third root and the illness caused by its presence in the jaw of Mrs. Bridgewater were the proximate results of the failure of the defendant to remove it when the other teeth were drawn. It is inconceivable that the jury, in view of the verdict which it returned, would have failed to find with the plaintiff had it been permitted on the issue which we have just discussed.

Seventeen years have elapsed since the petition in this case was filed, more than 13 years since the verdict, and 12% years since the sustaining of the motion for new trial. Manifestly the litigation should be terminated if it can be done under the law.

It is our conclusion that although the sustaining of the motion for a new trial was proper, it should, have been qualified by permitting the plaintiff to enter a remittitur.

If the plaintiff, within ten days of the filing of this decision with, the Clerk of this Court, elects to enter a remittitur of all of the verdict over and above the sum of $450.80, the judgment will be reversed and judgment entered for the plaintiff on the verdict in said sum and costs. The items of expense pleaded which we find to be proven in whole or in part are: Medical expense, $212.50; dental bill, $8.00; surgeon’s bill, $70.00; hospital bill, including nurses, $23.30; nurses at home, $17.00; domestic help in the home, $65.00; ice for packing head and face, $15.00; help for washing and ironing, $40.00; total, $450.80.

If the plaintiff does not elect to enter a remittitur, the judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


text:
    BOARD OF EDUCATION OF INDIAN HILL EXEMPTED VILLAGE SCHOOL DISTRICT, Appellee, v. BOARD OF EDUCATION OF HAMILTON COUNTY et al., Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7560.
    Decided April 28, 1952.

      Robert L. Black, Jr., Cincinnati, for appellee.
    George Metzger, James E. Kimpel, Cincinnati, for Board of Education of Hamilton County.
    Frank E. Ferris, II, Cincinnati, for Board of Education of Sycamore Local School District.
   OPINION

By THE COURT:

An examination of the pleadings and evidence causes this Court to conclude that the same decree entered in the Common Pleas Court should be entered in this Court as its decree in this appeal upon questions of law and fact from the decree of such trial court.

After reading the opinion of the trial court, it is also the -conclusion of this Court that should an opinion be written in this cause, such opinion would constitute largely a mere iteration of the reasoning of the trial court and the conclusions reached by such trial court, stated in the opinion of Weber, J.

It may also be added that although the provisions of §4830-7 GC, may be considered as containing mandatory requirements as a precedent to actual consummation of a change of status from a local to an exempted school district (which, however, we do not decide) the evidence in this case is such that this Court would unhesitatingly not only require the Superintendent of Public Instruction to act upon the validity of the district census, but would, in proper proceedings, require such action to be an approval of the census.

The Chancellor' when he has before him all necessary interested parties, and full jurisdiction over the subject-matter of the suit, will not permit mere subterfuge to thwart the manifest demands of equity and justice.

We also take notice of defendant’s contention that the population requirements for an exempted village school district were not met, in that at the time the exemption proceedings were initiated it had not been established legally that Indian Hill Village had a population of 2000 or more. They rely strongly upon the opinion of the Attorney General No. 2310, delivered in 1930, and found in Vol. 2, p. 1428 of the Opinions of Attorney General of that year. It is true that the Attorney General’s opinion was that the certificate of a local assistant supervisor of census did not constitute the “last census” or evidence of the “last census” as that phrase was used in §4688 GC, and that a census “in so far as it may show population of municipalities in Ohio is not effectual for that purpose until a proclamation is issued by the Secretary of State. It should be noted in connection with that opinion that it does not appear what the actual population of the Village was. Nor does it appear that the official announcement of the census had been made at the time the Attorney General rendered his opinion and, therefore, no question of relation back was presented.

It should also be noted that the Attorney General was considering which of two censuses should control. In the case at bar there is only one census. The 1950 census is the last census applicable or there is no census, as Indian Hill was not in existence when any other census was taken. Under such circumstances, how can it be said to come within the spirit of a law to which compliance would be impossible?

We are also of the opinion that the reasoning in State, ex rel., Mack v. Guckenberger, 139 Oh St, 273, subsequently decided, and the Attorney General’s Opinion (No. 2611) of 1950, page 808, lead to a different conclusion.

It is true’ that by §3498 GC, municipalities are classified as villages or cities, dependent upon population, as determined by the Federal census effective 30 days after the proclamation thereof by the Secretary of State. This test, however, is limited to a determination of the form of municipal government. There is no statute fixing that test for all purposes.

In the Mack v. Guckenberger case and the opinion of the Attorney General of 1950, effect was given to the census before it was officially announced. No proclamation of the Secretary of State had been issued at the time the demand for increased compensation was made and allowed.

The opinion of the Attorney General of 1950 deals with the specific question of whether the census became operative in the fixing of compensation of common pleas judges. The second paragraph of the syllabus of that opinion is:

“Computation and payment of the salary of a judge of the Court of Common Pleas may be made based on the 1950 census from and after April 1st, 1950, before any official report is made by the Secretary of State.”

In the case at bar the record shows that the population of Indian Hill Village was more than 2000 according to the 1950 federal census, and that it had been so officially declared before the commencement of this action, whereas, the Attorney General’s opinion of 1950 was predicated upon the fact that only preliminary figures of the census had been released.

A decree may be presented in conformity to this opinion.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur.


author: By McClelland, pj.

text:
    PRYOR, Guardianship, In re.
    Probate Court, Franklin County.
    No. 146494.
    Decided June 3, 1952.

      John A. Brink, Cincinnati, for Veterans Administration.
    J. C. Erwin, Columbus, for Guardian.
   OPINION

By McClelland, pj.

This matter comes before the Court on an application filed on April 16, 1952, by the terms of which Ruth L. Popovich, the guardian of the person and estate of Ralph Pryor, asks for authority to pay $1000.00 in payment of a bill of $2093.55 for the support of said Ralph Pryor in The Columbus State Hospital. The guardian further represents that the claim was presented to Mary B. Pryor, Administratrix of the estate of William B. Pryor, deceased, the father of the ward, on October 22, 1951. The claim was presented to the Administratrix on the theory that the father of the ward was liable for his support in The Columbus State Hospital. At the hearing of this matter it was disclosed that just recently the sum of $1064.00 was forwarded to the guardian by the Veterans Administration, which money has been placed by the guardian in a checking account. The guardian was appointed on January 17, 1952, and it therefore appears that the claim for support of this ward accrued prior to the appointment of the guardian. It is the contention of the Veterans Administration that this money in its present form is exempt from the claim for the support of the ward prior to the appointment of a guardian. The Veterans Administration relies upon the wording of Section 454a, Chapter 10, Title 38, United States Code, which is a part of the World War Veterans’ Relief Act, which section is in part as follows:

“Payments of benefits due or to become due shall not be assignable, and such payments made to, or on account of, a beneficiary under any of the laws relating to veterans shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. Such provisions shall not attach to claims of the United States arising under such laws nor shall the exemption herein contained as to taxation extend to any property purchased in part or wholly out of such payments.” (Here follows other provisions not pertinent to the issue.)

The last decision construing this statute by the Supreme Court of the United States is that of Carrier v. Bryant, reported in United States Supreme Court Report, Vol. 306, page 545, the syllabus of which is as follows:

“Negotiable notes and United States bonds purchased, and held as investments, for an incompetent World War veteran by his guardian out of ‘payments of benefits’ made to him by the United States under laws relating to such veterans, held not exempt under Section 3 of the Act of August 12, 1935 from execution upon a judgment against the incompetent.”

At page 547 of the above Report we find the following language:

“The first sentence grants exemption from taxation, claims of creditors, attachment, levy or seizure under any legal process whatever. • The things exempted are ‘payments of benefits’ due or to become due either before or after receipt by the beneficiary.

“Investments purchased with money received -in settlement of benefits are not such payments due or to become due. Accordingly, giving the words employed their ordinary meaning, the notes and bonds in question are not exempted by the first sentence in Section 3. It left them., like other property, subject to taxation, claims of creditors, and legal process.

“The second sentence in the section clearly recognizes the distinction between benefit payments and property purchased with money therefrom. It declares the exemption provisions in the first sentence shall not attach to claims of the United States; also that exemption from taxation shall not extend to property purchased out of benefit payments. Nothing is said concerning claims of creditors. Nevertheless, petitioners seem to maintain, immunity from these must be inferred. But a mere declaration that investments always subject to taxation shall not enjoy exemption therefrom affords no basis for holding them free from claims of creditors. Although the first sentence extended no immunity to investments, apparently out of abundant caution, the second declared them subject to taxation.”

We also find a' construction of this statute by the Supreme Court of Ohio in the case of Bowen, Gdn. v. Amend, reported in 141 Oh St at page 602, the second syllabus of which - is as follows:

“Under Title 38, Chapter 10, Section 454a, U. S. Code, a part of the World War Veterans’ Relief Act, benefits in the form of a pension and war risk insurance paid to a veteran or to his guardian by the federal government and deposited in- a checking account in a bank, are exempt from the claim of creditors. But such benefits, when placed in a savings account at interest or converted into real estate, lose their exempt status and become investments amenable to creditors’ demands.”

At page 608 of this Report, Judge Zimmerman uses the following language:

“An ‘investment’ as that word is commonly used and understood is the placing of capital or laying out of money in a way intended to secure income or profit from its employment. And under §10506-41 GC, the deposit of funds by a fiduciary in a savings account in a national bank located in the state of Ohio or a state bank located in and organized under the laws of the state of Ohio is classed as an investment.”

In the instant case this money recently received from the Veterans Administration is now in the form of a checking account in the name of the guardian. Technically it is still money and is not an investment.

This Court is advised by counsel for the guardian that the guardian has been intending to invest this money as soon as -it could be ascertained whether or not it might be used to settle the claim of the State of Ohio for the maintenance of the ward prior to the appointment of a guardian. The guardian could, if she so desired, immediately make an application to invest this money, procure an order to do so, and then invest it and thereby render it subject to the payment of creditors. By doing so, it would lose its character as money and take on the character of an investment.

In this case it is the opinion of the Court that it may invoke one of the cardinal principles of equity, and that is, the Court should consider that done which was intended to be done or which should have been done. The Court therefore, under the circumstances and considering the intention and the legal obligation of the guardian to invest these funds, may consider them as already invested and therefore apply the law as applying to investments.

It is therefore our opinion that the guardian should be, and is hereby, authorized to use $1000.00 of the funds now in her hands to settle the claim of the State of Ohio for the maintenance of her ward prior to the appointment of the guardian.

As we have hereinbefore stated, the Department of Public Welfare of the State of Ohio, through its Department of Support, has presented a claim to the Administratrix of the estate of the deceased father. It is our opinion that the estate of the ward is primarily responsible for the ward’s support and that the father is only secondarily liable. As far as the State of Ohio is concerned it may look to it, but as between the ward and the parents of the ward, the ward’s estate is primarily liable for his support.

An order may be drawn accordingly.


author: By PHILLIPS, J.

text:
    MILLER, Plaintiff-Appellant, v. JACKSON, Defendant-Appellee.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 699.
    Decided December 8, 1951.

      Harry Brokaw, East Liverpool, for plaintiff-appellant.
    Brookes, Lynch & McDonald, East Liverpool, for defendantappellee.
   OPINION

By PHILLIPS, J.

Plaintiff appealed to this court on questions of law from a judgment of the court of common pleas entered upon a special jury verdict returned for defendant in plaintiff’s action against him to recover damages for personal injuries.

The evidence discloses that during daylight, about 4:30 or 5:00 o’clock, on the afternoon of December 31, 1949, plaintiff, aged sixty-nine years, was crossing from the easterly to the westerly side of Eighth Street (Ohio State Route 7), an improved, duly dedicated, public highway of the city of East Liverpool and State of Ohio, approximately where Division Street leads off therefrom to the north, when she was struck by an automobile operated by defendant in an easterly direction thereon at a speed estimated by various witnesses between fifteen and twenty-five miles per hour.

Plaintiff testified that before attempting to cross Eighth Street, where the evidence discloses, and the jury found, she had án unobstructed view to the west of 555.7 feet to a traffic light, she looked in both directions thereon, and that there was no traffic approaching from either direction; that at that time her bodily movements were normal and unrestricted; and that as she started across Eighth Street she was hurrying.

Defendant testified that as he travelled the 555.7 feet distance from the westerly traffic light, where he had stopped, to. the point where plaintiff was struck, where there was a traffic light not in operation, he was following another automobile; that that automobile veered right toward the south curb and stopped, as if to park; that as he drove around it he observed plaintiff immediately in front of the stopped automobile, and rushing directly into the path of travel of his automobile; that he “pulled” his automobile to the left, or north, side of Eighth Street to. avoid striking plaintiff, but as west bound traffic was approaching he was forced to operate his automobile to the right, or south, side of Eighth Street, and at that moment plaintiff ran into the side of his automobile, slightly indenting the rear of the right front fender.

Plaintiff contends that the trial judge erroneously charged on plaintiff’s contributory negligence, since contributory negligense was not raised by the pleadings nor shown by plaintiff’s evidence.

Apparently plaintiff’s contention on this question is, as counsel for defendant states by brief:' “In other words, plaintiff urges that if she can so control her evidence that no evidence of negligence on her part be permitted to there appear, then the rules of the game forbid the jury to consider the defendant’s evidence of plaintiff’s negligence, no matter how devastating such evidence may be.” Defendant contends “plaintiff’s evidence certainly did raise a presumption of her negligence.”

Defendant’s contention is supported by the case of Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Oh St 493 at 502, where it is said:—

“When he says he did look, and the conditions established the fact that any one who' looked would have seen, then, if he says he did not see, his own evidence establishes the fact that he did not look, though he may think he did.”

Further the supreme court has held:—

“* * * the burden of proof rests upon the plaintiff; and if upon the entire case the plaintiff’s proof upon the issue of defendant’s negligence is fully balanced or left in equipoise obviously a preponderance cannot exist.” Bradley v. The Cleveland Ry. Co., 112 Oh St 35 at 40.

Clearly “if contributory negligence is not made an issue by the pleadings, but is developed by the evidence, it becomes the duty of the court to charge the jury in respect to that issue.” Bradley v. Cleveland Ry. Co., 112 Oh St 35 at 39.

In our opinion plaintiff’s evidence was such as to warrant' the trial judge charging on the issue of contributory negligence.

Next plaintiff contends that the trial judge erred to her prejudice by not charging on the issue of defendant’s assured clear distance ahead as he approached the place where plaintiff was struck.

In the case of Smiley v. Arrow Spring Bed Co., 138 Oh St 81, the controlling case on the question of assured clear distance ahead, the supreme court said that the general statute is not applicable if defendant’s “assured clear distance ahead is suddenly cut down or lessened, without his fault, by the entrance within such clear distance ahead and into his path or line of travel of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.”

In the more recent case of Erdman v. Mestrovich, 155 Oh St 85, the supreme court said:—

“Where a pedestrian crossing a street intersection enters the path or lane of travel of a motor vehicle approaching the intersection at a right angle to the path of the pedestrian tand the pedestrian by his act enters suddenly the vehicle operator’s assured clear distance ahead, at a point less distant than the forward limit thereof, and is struck by the vehicle, a charge to the jury in a personal injury action by the pedestrian against the operator predicated on a violation of the assured-clear-distance-ahead rule should not be given, unless there is evidence tending to show that the pedestrian came into the operator’s assured clear distance ahead at a point sufficiently distant ahead of the motor vehicle as to have permitted the operator, in the exercise of ordinary care, to have stopped his motor vehicle before striking the pedestrian.”

In our opinion the evidencé in the case we review justified the trial judge refusing to charge the jury on the issue of defendant’s assured clear distance ahead.

In response to defendant’s request for a special verdict the trial judge, erroneously plaintiff claims, submitted a list of fifty-three questions prepared by him, constituting a special verdict, to the jury as part of his charge, which will be disposed of hereafter herein, among which was question number 24, affirmatively answered by the jury, inquiring as to whether defendant was not crossing Eighth Street on a marked crosswalk.

“ ‘Crosswalk.’ (a) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs, or in the absence of curbs from the edges of the traversable roadway.” Secs. 6307-2 GC.

As to whether and how plaintiff crossed Eighth Street, on direct examination, plaintiff said she crossed it from “that telephone pole there, I stopped right there, and that is where I started across to go straight across to this hill. * * * I was going from this pole to that like I was going from this pole here to that pole there.” On cross-examination she testified that she started across Eighth Street “on the upper side” (westerly) of the pole.

There is no evidence of a marked, nor defined, cross-walk where plaintiff was struck. The evidence is such that the jury well could have found, without returning a verdict against the manifest weight of the evidence, that the pole to which plaintiff refers in her testimony was not within the extension of the theoretical crosswalk with westerly property line of Division Street. There is no evidence that at any time in her journey from the easterly side of Eighth Street to the place thereon where she was struck that plaintiff was within such theoretical crosswalk.

The verdict of the jury on this issue of the case we review was not against the manifest weight of the evidence.

In the interest of accuracy we quote from the brief of plaintiff’s counsel his contention with reference to the submission, by the trial judge, to. the jury of “a list of-fifty-three questions covering almost every phase of both law and fact,” prepared by the trial judge, to which plaintiff’s counsel objected “mainly because they were a mixture of law and fact and because we (the) court made the questions themselves a part of his charge. As we understand it, a special verdict is founded on questions or issues of fact only. The object of a special verdict is to separate law and fact. The one for the jury, the other for the court. Here the questions of law and fact were thoroughly mixed.” (sic).

The office of a special verdict is to find sufficient ultimate facts to enable the court, unaided by the evidence, to apply the appropriate law thereto and render judgment.

“If as a matter of fact the special verdict states essential facts apart from the conclusions of law, upon which a judgment may be founded” a special verdict “which contains some conclusions of law is” not “thereby invalidated.” Noseda v. Delmul, 123 Oh St 647 at 651.

“The jury are the exclusive judges of the facts, but they should be required to return as their conclusions from the evidence the ultimate facts in the case and not a recital of the evidence. However, the inclusion of evidence supporting facts found in a special verdict will not render it defective if ultimate facts are found which warrant a judgment. Nor are conclusions of law proper in a special verdict, and they must be disregarded just as are evidentiary matters. They do not destroy the effect of ultimate facts found, and if those are sufficient to sustain a judgment the special verdict should stand.” Dowd-Feder Co. v. Schreyer, 124 Oh St 504 at 515.

The jury answered affirmatively question 16, “Was the defendant driving his automobile with that degree of care which a person of ordinary prudence would have exercised under the same or similar circumstances?” Obviously the jury did not answer question 17 “If your answer to the last question was no, then state in what manner the defendant failed to use ordinary care.”

Defendant contends “these two questions, and the response of the jury to them, were dispositive of the case.”

“The burden of proof was upon the plaintiff here to establish the material allegations of the petition.” Noseda v. Delmul, 123 Oh St 647 at 653.

The jury found that plaintiff had not sustained her burden, and with that finding we can not interfere.

We concur in defendant’s contention that the jury’s answers to question 16 disposed of plaintiff’s cause of action, and were it not for the fact that a statutory duty is imposed upon this court we would not have disposed of plaintiff’s assigned grounds of error as we have done.

In our opinion, the charge of the trial judge reveals no superfluous instructions to the jury. However, if it did it was plaintiff’s duty to identify any such superfluous instruction and to show she was prejudiced thereby, which she has failed to do.

The judgment of the court of common pleas must be and hereby is affirmed.

NICHOLS, PJ, GRIFFITH, J. concur.


author: By THOMAS, J.

text:
    GILES, Plaintiff, v. MEYERS, d. b. a. MEYERS’ SERVICE STATION, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 698494.
    Decided June 4, 1952.

      Claude J. Parker, Cleveland, for plaintiff.
    B. Anne Meyer, Otto F. Steele, Cleveland, for defendant.
   OPINION

By THOMAS, J.

This is an action in which plaintiff sues to recover the value of suitcases and contents claimed to have been stolen from the floor of the back seat of plaintiff’s locked car while it was parked in defendant’s parking lot.

The defendant operates a large, open, unfenced parking lot at East Ninth Street and Lakeside Avenue in Cleveland, Ohio, within easy walking distance of the Municipal Stadium.

On Sunday, July 3, 1949, the plaintiff drove his car into the parking lot. As plaintiff entered he paid a 35-cent parking fee and was given a numbered parking ticket. The nature or contents of the parking ticket is not further described in the evidence.

After driving in, the plaintiff says that he was directed by a parking attendant to drive to the easterly portion of the lot, where he personally parked his car, locked it and took the keys with him.

Defendant’s custom with all cars is to direct incoming cars in order, to a particular location, and direct drivers to lock their cars and retain the keys.

There is no evidence that either the plaintiff or any other driver was ever required by the defendant to surrender his parking ticket before driving out of the lot.

The plaintiff and his son parked their car in defendant’s parking lot while they witnessesd a double-header baseball game at the stadium.

It is evident that the lot is one of those extensively used by patrons of The Municipal Stadium. An unestimated number of other cars were also parked in the lot at the same time.

Defendant claims no knowledge of the contents of plaintiff’s automobile, and plaintiff did not notify the attendant that suit cases were in the automobile. Plaintiff says that the suitcases were on the floor in the rear of the car.

Upon returning from The Municipal Stadium at about 6:45 P. M., the plaintiff discovered that the right front vent glass had been broken and the suitcases and their contents were stolen.' One attendant was on duty at the time the loss was discovered.

Essential to a decision is a determination of the legal relationship existing between the plaintiff and the defendant.

“Whether the relationship between a driver who offers and a parking lot operator who accepts a motor vehicle for the purpose of parking, is that of bailor and bailee or of lessor and lessee, depends upon whether the parking lot operator assumes control over and custody of such vehicle, or simply grants permission to park the vehicle at a designated place upon the parking lot.” Agricultural Ins. Co. v. Constantine, 144 Oh St 275.

There are certain clear cut ways in which a driver may surrender custody' of his car to the operator of a parking lot. Custody of the car shifts from car driver to lot operator, (1), if the driver turns the car over to the attendant upon entering the lot and leaves the keys in the car; (2), if once having received an identification ticket upon entering the lot the driver can only remove his car from the lot by relinquishing the ticket; and (3), if the parking lot expressly agrees to safely keep the car.

In each of these three situations a contract of bailment occurs, which contract requires redelivery of the automobile in unharmed condition. A failure to so redeliver constitutes a prima facie breach of the contract.

But where as in the present case the driver parks his -own car, locks it, and takes the keys with him, these acts do not manifest nor do they constitute a transfer of custody of the car from the driver to the parking lot operator.

Even under such circumstances had drivers in defendant’s lot been compelled to give up their parking tickets in exchange for their cars, such requirement would evidence sufficient assumption of control over the parked cars to make the defendant a bailee of the parked cars.

However, a preponderance of the evidence in this case does not justify a finding that the plaintiff could only have removed his car by giving up his parking ticket. On the contrary the inference preponderates that each driver was free to leave the lot without first securing prior consent from the parking lot operator. In fact, it seems safe to say that after a ball game the patrons arriving at this lot at about the same time expect to be able to depart without having to get individual permission from the parking lot attendant. When a swarm of tired ball fans descend on a parking lot after a double-header, they want the freedom of immediate departure, not single file, one at a time, clearance to go.

It follows that if a driver has the right to freely leave the lot without surrendering his ticket, and if he has previously locked his car and taken the keys with him while he is away from the lot, he has not bailed his car but has only obtained a license to park for a fixed fee.

This case therefore falls into that category of cases collected under Section Ha. in the annotation in 131 A. L. R. at 1176 and referred to in 24 Am. Jur. Section 29, in which a license or lease rather than a bailment has been held to exist between the driver of the car and the parking lot operator.

It follows that if the plaintiff’s car was not bailed to the defendant then, in the absence of an express contract of bailment relating to the suitcases, the suitcases carried in plaintiff’s car likewise were not bailed.

It is admitted that the plaintiff gave no express notice to the parking lot attendant concerning the presence of the suitcases in the car. It is claimed, however, that by their location on the rear floor notice of their presence must be inferred or implied.

To prove a bailment a contract must be shown, either express or implied.

It is true that where a car is bailed, the bailment contract can be construed to include by implication the obligation to safely keep any appurtenances, equipment, or tools which are ordinarily a part of said motor vehicle, even though the articles may be concealed from view. Barnette v. Casey, 124 W. Va. 143, 19 S. E. 2nd, 621. But such a principle cannot be extended to include those articles of personal property, such as suitcases, which are extraneous to the usual appurtenances, equipment, or tools of an automobile.

With reference to such extraneous articles of personal property, an express contract of bailment must be proved. Express notice of the articles may be inferred if the articles inside the car are in plain view. Mee v. Sley System Garages, Inc. 124 Pa. Super 230, 188 Atl. 626, but not otherwise Lucas et al. v. Auto City Parking Co. Inc. 62 A. 2d 557.

Nor does the evidence demonstrate any negligent conduct on the part of the defendant, or his employees, which directly and proximately caused the loss suffered by the plaintiff.

No bailment having been established with reference to either the car or the suitcases, and no negligence having been proved against the defendant, judgment will be entered for the defendant. Defendant may prepare an appropriate entry.