author: By YOUNG, Jr., Judge.

text:
    DOUGLAS, In re.
    Juvenile Court, Huron County.
    No. 2987.
    Filed November 21, 1959.
    Miller, Miller & Miller, Norwalk, for Charles Ray Douglas.
    Clifford F. Brown, Norwalk, for Carol Douglas.
   OPINION

By YOUNG, Jr., Judge.

ALLEGED DEPENDENT AND NEGLECTED CHILDREN

This matter first came to the attention of this court late in January. 1959, when Carol Douglas, the mother of the children involved, came to the court and complained of her husband’s conduct toward her. At that time she and her husband had been residents of this County for only a very short time. She was advised that her domestic problems should be brought into the Common Pleas Court in the county she came from, and that she should seek the advice of an attorney.

Some time thereafter, Charles Ray Douglas, the father of the children, came to this court complaining that his wife would not obey him, but had taken employment contrary to his wishes, and was neglecting the children. He also was told that he should see his attorney about the problem.

These two preliminary matters do not appear in the records of this matter, as the record commences with the official proceedings on April 16. However, they are part of the unofficial or informal proceedings of this court in this matter, and as such will be judicially noted by the court.

At this point it should be noted that the Ohio statutes, §§2151.18 and 2151.35 R. C., recognize both formal (or official) and informal (or unofficial) proceedings in the juvenile court in cases involving children. While the statutes do not define the mechanism of informal procedure, over the more than fifty years that there have been juvenile court laws in this state a well-defined informal procedure has been developed. It is distinguished from the formal procedure by the fact that no written pleadings are filed and the case is not docketed or recorded, but memoranda are made and kept in the social files of the court, which under the provisions of §2151.14 R. C., are confidential. On page 4 of the recently published “Juvenile Court Statistics for 1958,” the difference between official and unofficial proceedings in the juvenile court is defined as follows:

“OFFICIAL CASE: An official case is one which comes to the attention of the court through the filing of a written complaint which is not withdrawn before action is taken by the court on such complaint.

“UNOFFICIAL CASE: An unofficial ease is one not included in the definition of an official case above.”

On page 6 of the same publication, Table B shows that in 1958 in all of the Juvenile Courts of Ohio there were 28,905 delinquency cases disposed of, 11,105 of which were official cases, and 17,800 were unofficial.

On the evening of April 15, 1959, the mother of the children called the police of Monroeville and complained that the father of the children had driven her out of her home and had taken the children, who were ill, and gone away with them. The police called and reported the complaint to the judge of this court. A juvenile probation officer, Mrs. Miller, accompanied by a police officer, was sent to locate the children and take them into custody. She found them at the home of the father’s parents, and took them to the Fisher-Titus Memorial Hospital, where they were examined by Dr. John Blackwood and admitted to the hospital. Mrs. Miller testified that she found the children ill and dirty, the younger one having a woman’s underslip on for a diaper. Dr. Blackwood testified that the children were very dirty, when he examined them, and both were suffering from an upper respiratory infection. He also found that the younger child was anemic, and the older had some iron deficiency, although the blood chemistry was within normal limits. He attributed the anemia to nutritional deficiency.

The following morning a formal complaint was filed in this court alleging that the children, Christine Jodione Douglas, age two years and Cynthia Rae Douglas, age one year, were dependent and neglected children, in that they lack proper care because of the faults or habits of their parents and their condition or environment is such as to warrant the state in the interest of said children in assuming their guardianship. An order was entered on the Journal of the Court reciting that it appearing that the children were in such condition that their welfare required that their custody be immediately assumed by the Court, it was ordered that citations be issued requiring the parents to appear personally before the Court on the 23rd day of April, 1959, at 10:00 a. m., and that it be endorsed upon the citations that the officer serving the same shall take the children into custody at once, and that the children be temporarily placed in the Fisher-Titus Hospital to be brought before the court at the time stated. Later in the day, the court was advised by Dr. Black-wood that the children were sufficiently recovered to be discharged from the hospital. Thereupon, another order was entered upon the journal of the Court placing the children temporarily in the custody of their mother, Carol Douglas, until the time of hearing. The citations were returned by the Sheriff on April 20, showing personal service on the mother, Carol Douglas, and residence service on the father, Charles Ray Douglas.

At the time set for hearing, both parents appeared, each represented by counsel. Hearings occupied parts of several days, spread over a period of six months. Specifically, hearings were had on April 23, April 24, May 11, September 25, and October 9, 1959.

During the pendency of the proceedings, a divorce action, which had been filed in the Court of Common Pleas by Carol Douglas on April 15th, was certified to the Juvenile Court on April 18th. Papers filed with the divorce petition indicated that Mrs. Douglas had filed an action for divorce in Crawford County on January 29th, but the action was later dismissed.

Some time after the hearing on May 11, the parties to the divorce action resumed their marital relationships. This reconciliation lasted about two or three weeks. On July 23, 1959, Charles Ray Douglas filed another action for divorce in the Court of Common Pleas. This was also, on October 8, 1959, certified to the Juvenile Court, and is presently pending therein.

A large number of witnesses testified in this case, and from the testimony a most unpleasant picture emerges. Mr. Douglas was born January 19, 1924. Mrs. Douglas was born March 1, 1940. They were married May 5, 1956. Christine, the older child was born January 30, 1957, and Cynthia was born March 13, 1958. Thus at the time of the marriage, Mrs. Douglas was sixteen years old, and her husband was thirty-two years old.

“Husband twice as old as wife, argues ill for married life,” W-. S. Gilbert.

The testimony shows that during the time he was courting the present Mrs. Douglas, Mr. Douglas, who had been previously married and divorced, was carrying on an adulterous relationship with his former wife. Some time after the marriage, when Mrs. Douglas asked him about this affair, Mr. Douglas said that he had spent a week with his former wife while her husband was on a fishing trip; that he had done this to prove to her husband that he could get her back if he wanted her.

Mr. Douglas became acquainted with Mrs. Douglas through one of her brothers whom he had impressed with his fancy automobile. Mrs. Douglas’s mother tried to discourage the courtship, but although she ordered Douglas to stay away, he refused to do so. Finally, he and Mrs. Douglas ran away to Indiana and stayed over night. He then asked the mother’s consent to marriage. Mr. Douglas’s mother also came and asked her not to prosecute him for running away with the girl, so she finally consented to the marriage, which took place in Indiana. It needs no citation of authority to show that Mr. Douglas could have been charged with and convicted of a violation of §2151.41 R. C., as a result of this conduct on his part, which clearly constituted acting in a way tending to cause the delinquency of the child, Carol Douglas. Her conduct, both before and after marriage, constituted delinquency. State v. Gans, 168 Oh St 175, at pages 179 to 183.

One witness testified that on one occasion after his marriage, Mr. Douglas had made advances to her.

Mrs. Douglas testified that for sometime prior to their divorce actions Mr. Douglas had been unemployed. He had lost his job because his wages had been garnisheed by the Federal Government as the result of some income tax difficulty. She stated that whenever they would quarrel, Mr. Douglas would take the children and run off with them; that he threatened her that -if she contested his divorce action, she would never get to see the children. On one occasion, he told her that he was anxious for the children to grow up, so he could tell them what a whore their mother was. There was other evidence of improper conduct on the part of Mr. Douglas.

As already pointed out, Mrs. Douglas was an undisciplined child who ran off with a man twice her age to force her parents consent to marriage.

Mrs. Douglas, according to testimony, has two brothers who have served time in the Mansfield Reformatory for such offenses as breaking and entering, statutory rape, and forgery. .One of them was returned to one Reformatory for parole violation because he operated Mr. Douglas’ car without permission.

During the pendency of this matter, after one quarrel with her husband, Mrs. Douglas ran off with a young man named Sammy Lemon, and spent one or two nights out at the Norwalk reservoir with him. There was also evidence of other improper conduct on her part.

It should be recalled that this court had the dubious privilege of seeing and hearing the witnesses who testified in this matter. Some of them are well, and unpleasantly, known to the court as the result of criminal charges against them. Without going any further into the details of the testimony, it is sufficient to say that this court must necessarily conclude that both Mr. and Mrs. Douglas have been guilty of serious marital misconduct; that Mr. Douglas is a conscienceless, selfish monster, whose main interest in the children is to use them as clubs to beat his wife into submission; that Mrs. Douglas is without either morals or good sense, and is also more concerned with gratifying her desires of the moment than the welfare of her children.

In this state of facts, what is the law? Sec. 2151.03 R. C., in part defines a neglected child as follows:

“As used in §§2151.01 to 2151.54 inclusive, R. C., ‘neglected child’ includes any child:

“(B) Who lacks proper parental care because of the faults or habits of his parents, * * *;

“(C) Whose parents * * * neglects or refuses to provide him with * * * other care necessary for his health, morals, or well-being;

“(D) Who * * * associates with vagrant, vicious, criminal, notorious, or immoral persons; * *

Sec. 2151.04 R. C., in part defines a dependent child as follows:

“As used in §§2151.01 to 2151.54 inclusive, R. C., ‘dependent child’ includes any child:

“(C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming his guardianship.”

The record shows clearly that these children have been kicked back and forth between their parents like a football; that at the time the court intervened, the children were sick and dirty. Perhaps, as the parties tried to convince the court, this was a temporary condition that resulted from the father’s habit of climaxing his quarrels with their mother by snatching up the children and running off to his parents with them, but does that make it proper parental care? What sort of a future is ahead for them, with a father who is only waiting until they are old enough to understand so he can tell them evil things about their mother?

It is the opinion of this court that in the State of Ohio every child is entitled, as a minimum, to have two parents living together in reasonable harmony with the child and with each other. The tragic and ever-increasing procession in the juvenile court of children who lack this minimum is oppressive indeed. The record clearly shows that the children involved in this matter have not had proper, or really any, parental care since the first of this year, at least. It is clear also that such lack of proper parental care is entirely the result of the faults of the parents, which are many, and of the extremely bad habits of the parents.

It seems equally clear that parents to whom adultery is a normal course of life, who are selfish and childish far beyond any reasonable limits, and whose ideas of proper upbringing are to tell the children how vile each other has been, are neglecting or refusing to provide them with care necessary for their morals or well-being.

There can be no doubt whatsoever that the parents, and at least some of their friends and relations are vicious, criminal, or immoral persons, and these children, young as they are, already are in almost constant close association with these vicious, criminal and immoral persons.

This court therefore has no hesitancy in finding that upon the facts disclosed by the evidence in this case, the children, Christine and Cynthia Douglas, are neglected children under the Ohio statute.

The question of whether the children are also dependent children is somewhat more difficult to resolve. The only applicable portion of the statutes defining dependent child is paragraph C of §2151.04 R. C., set forth above. This portion of the statute has been in effect for many years, but the reported decisions are more concerned with narrow technical decisions of what dependency is not, than of what it is.

However, the Supreme Court, for over one hundred years, has been entirely clear and consistent in its expressions. For reasons best known to themselves, the Courts of Appeals, in considering problems arising under this statute, have rarely referred to the decisions of the Supreme Court, but have gone off on tangents of sentimental nonsense about the “sacred tie which exists between parents and children.” In re Konneker, 30 Oh Ap 502 at 510.

The Supreme Court, with a much better grasp both of the facts of life and the fundamental and ancient legal principles which underly the juvenile court law, has held:

“Neither of the parents has any rights that can be made to conflict with the welfare of the child.” Gieshwiler v. Dodez, 4 Oh St 615.

“While the legal rights of the parents are to be respected, the welfare of the minor is of paramount consideration.” Clark v. Bayer, 32 Oh St 299 at 305.

These cases are cited with approval by the Supreme Court as recently as 1954, in the case of In re Tilton, 161 Oh St 571 at 575. It would seem from these expressions that in determining whether the condition or environment of a child is such as to warrant the state, in the interests of the child, in assuming his guardianship, the primary consideration should be the welfare of the child.

It seems quite apparent that the welfare of the children here requires something better than that they be made the instruments of the childish, spiteful, and immoral purposes of their parents. The court has examined the reported decisions of the courts of this state for some further light on the matter. Unfortunately, precedents are illuminating only to the extent that their facts are similar to the facts of the ease at bar, and in this peculiarly human field, identical factual situations are almost as rare as identical fingerprints.

However, there are a few cases which seem to bear some resemblance in their facts to the present case. In the case of In re Decker, 28 N. P. (N. S.) 433, a decision by Judge Lamneck as the Juvenile Judge of Tuscarawas County, the Court finds the child of quarrelling and corrupt parents to be dependent. The Court of Appeals of this district, in the case of In re Antrim, 67 Oh Ap 117, upholds a decision finding the child of divorced parents dependent. The Juvenile Court of Cuyahoga County, in an elaborate opinion styled Zerlick, Neglected Children, In re, 74 Abs 525, under facts which resemble in many respects the facts of the present case, holds that the welfare of the child is the controlling consideration.

Under the evidence in the present case, and the authorities cited, the court concludes that the children, Christine and Cynthia Douglas, are dependent children.

Having found the children here involved both neglected and dependent, the final question that arises is what disposition should be made of them. Sec. 2151.35 R. C., provides in part as follows:

“* * * If the court finds that the child is * * * neglected or dependent, it may by order entered proceed as follows:

“(A) Place the child on probation, under supervision in its own home, in the custody of a relative, in an institution, or in a certified foster home, wherever situate, upon such terms as the court shall determine; * * *

“(B) Commit the child temporarily or permanently to the division of social administration of the department of public welfare, or to a county department of welfare which has assumed the administration of child welfare, county child welfare board, or certified organization, or to any institution, or to any agency in Ohio or in another state authorized and qualified to provide or secure the care, treatment, or placement required in the particular case; * *

In this county, the county department of welfare has assumed the administration of child welfare. It is the conclusion of this court that the welfare of these children requires that they be permanently committed to the Huron County Welfare Department. These children are of sufficiently tender years that if taken permanently and completely from the strife and immorality of their parents, they may lead happy and normal lives, and grow to responsible adulthood. This court cannot decide cases in a vacuum, and without reference to what experience with hundreds of cases of delinquent, neglected, and dependent children reveals. This court is now dealing with the fourth generation of some families whose cases are in its files and records. Truly, The Lord does “visit the sins of the fathers upon the children unto the third and fourth generation.” It is almost certain, it is unquestionably highly probable, that if these little children are left with their families, by the time they reach adolescence, the courts will have to deal with them as delinquents; as adults they will have no better habits or morals than their parents, creating problems for the divorce court and the criminal courts. There are only remote possibilities of their growing up to be decent and honorable adults in an atmosphere of hate, lust, spite, and wickedness. Courts must deal with probabilities, not possibilities, and this court will so act.

An order will be entered in accordance with this memorandum, committing the children permanently to the Huron County Welfare Department. Exceptions will be reserved to both parents, and a supersedeas bond fixed by the order.


source: Caselaw Access Project

author: By MITCHELL, J.

license: Public Domain

text:
    WILLIAMS, Plaintiff, v. JACKSON (City), Defendant.
    Common Pleas Court, Jackson County.
    No. 16158.
    Decided May 13, 1959.
   OPINION

By MITCHELL, J.

The plaintiff, Dwight Williams, has filed a petition in this Court alleging in substance that he is in retail business in the City of Jackson, Ohio, and that he sells beer, wine and other malt beverages, under and by authority of a permit from the State Liquor Department known as C-l and C-2 state permit.

Plaintiff further alleges that on or about January 12, 1959, the City of Jackson passed Ordinance No. 2-59, and which ordinance provides in part that it shall be unlawful to sell 3.2% beer in the City of Jackson between the hours of 2:30 A. M. and 12:00 midnight on any Sunday. The ordinance further provides that violation of the same constitutes a misdemeanor punishable by a fine. The plaintiff further alleges in his petition that the ordinance in question violates the Constitution of the State of Ohio, and is in conflict with several enumerated statutes and Regulation No. 49 of the State Liquor Board. The plaintiff prays that the City of Jackson be enjoined from enforcing said ordinance, and that the same be declared as null and void and unconstitutional.

To this pleading the defendant, the City of Jackson, filed an answer admitting the passage of the ordinance, admitting there was no provision for any return of the permit fee in the same, but denying that the ordinance in any way conflicts with the Ohio Constitution. The defendant further says in its answer that the City of Jackson, under the powers of self-government given to it by the Constitution of this State, may adopt and pass laws and regulations which are not in conflict with the general laws of Ohio.

To this pleading the plaintiff has demurred alleging that the answer of the defendant did not contain a defense to the petition. The question involved is entirely one of law and interpretation, and the parties have filed briefs in which all of the issues involved are discussed, and decision on the demurrer will be in effect dispositive of the case.

The broad issues for determination are:

1. What is the relation between the powers of the State and of a municipal corporation set forth in the Constitution, and as the same apply to the liquor laws of this State?

2. Is the ordinance of the City of Jackson in any way repugnant to the laws of this State, and therefore, void and of no effect?

The Constitution of Ohio in Article II, gives the State Legislature the legislative power of the State, subject to the provision in Article xvni, Section 3, Ohio Constitution, which in part states,

“Municipalities shall have the authority to exercise all of the powers of local self-government, and to adopt and force within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws.”

Now, this section of the Constitution applies to all municipal corporations, whether or not they have adopted a local charter, and gives to the corporation all of the necessary local police power to govern themselves, providing that such local ordinances and regulations as may be passed from time to time are not in conflict with the general laws of this State. This principal was recognized in the early case of the Village of Struthers v. Sokal, 108 Oh St 263, and that case announced the test to be applied as .to whether or not one authority granted a permit or license to do an act which is forbidden or prohibited by the other. This test was approved and somewhat extended in the case of the City of Cleveland v. Betts, 168 Oh St 386, decided 12-31-58.

In the field of criminal law, the Cleveland v. Betts case indicates that the Supreme Court may consider the entire ordinance in determining whether or not there is a conflict with State law or laws on the subject. It is further obvious that in the field of criminal law, it is important to have one central legislative authority define the nature and extent of the crime. Otherwise, it would be possible to have as many different laws governing one offense as we have municipalities. Such a system would be intolerable.

So in the field of the manufacturer, licensing, taxing and sale of beer and intoxicating liquor, we can easily discern that the State has preempted the field. Whether it would be wiser to permit more local regulations on the subject than what now exist is strictly a matter for the jegislature, and not a matter of speculation for the Courts. Therefore, the Courts, and this Court in particular, and notwithstanding any private opinions the Court might hold, must recognize and follow the law as it exists with relation to the liquor act. See. 4301 et seq R. C.

Now in cases involving the control of traffic and sales of liquor and of beer, the Courts have held that municipalities may legislate in the field within the exercise of their police power, so long as the local legislature did not conflict with the general laws of this State. City of Akron v. Scalera, 135 Oh St 635, Neil House v. City of Columbus, 144 Oh St 248. In addition, in liquor cases the Liquor Board of Ohio has been granted by Statute the authority to pass regulations concerning the sale' and hours of selling beer and whiskey. These regulations by statutes have been given the force of law §4301.03 R. C. Therefore, to determine whether or not the ordinance is in conflict with the general laws, the Court must look not only to the statutes but to the regulations of the Liquor Board.

The plaintiff, apparently entirely relies upon the allegation that the ordinance of the City of Jackson is in conflict with Regulation No. 49 of the Liquor Board. He bases his position on the Doctrine of the Supreme Court as set forth in Neil House v. City of Columbus, 144 Oh St 248, 29 O. O. 403. Also, he cites the action of the Appellate Court of Paulding County in the case of Kaufman d. b. a. Blue Cafe v. Village of Paulding, decided 5-16-51, 49 O. O. 288. Plaintiff further cites the fact that approximately five years ago, this Court held on demurrer a similar ordinance of this City invalid. Plaintiff alleges further that Regulation No. 49 was in existence at that time as it exists today.

By contrast, the defendant is apparently relying first upon statements of Judge Zimmerman in the Neil House opinion as tending to limit that decision to its facts. The defendant maintains that former §6064-22 GC, and as it now exists in the similar words in §4301.22 it. C., prohibits the sale of intoxicating liquor and beer on Sunday, and therefore, the ordinance of the City of Jackson is only prohibitive of exactly the same thing. Secondly, the defendant maintains that the Sunday closing laws would also apply to the plaintiff, the analogy being that since under that statute the plaintiff could be compelled to close, then the ordinance of this City prohibiting the sale of 3.2% beer would merely be supplemental to that law.

There has been apparently no attempt by the City to close the defendant’s entire business under the Sunday closing statute §3773.24 R. C., and this Court is not called upon to decide the validity of that statute. This Court does not believe this statute to be applicable to this case, for the ordinance in question makes no effort or contains no provision authorizing.the complete closing of plaintiff’s business, but is directed specifically to the sale of 3.2% beer.

The Neil House case is the last Supreme Court decision on this subject brought to the Court’s attention, and is still the law of this State. It establishes the following propositions of law:

1. That the control and regulation of liquor traffic vests in the State.

2. That the municipalities may legislate in the field by virtue of Article XVIII, Section 3, Ohio Constitution, if such legislation does not conflict to general State laws on the subject.

3. That Regulation No. 30 “now 49” of the Liquor Department has the same effect as a statute.

4. That this regulation permitted the sale of beer and intoxicating liquor after midnight Saturday, and on Sunday except for the hours of 2:30 A. M. to 5:00 A. M., and therefore, any ordinance restricting the effect of the regulation conflicts with the general laws and is void.

The ordinance was announced as being void in the Neil House case.

The position of the defendant that the Neil House case should be restricted to its facts i. e., the hours between 12:00 A. M. and 2:30 A. M. Sunday is scarcely tenable. The particular hours involved have no special significance, and if Regulation No. 49 permits the sales, it does not matter whether the time involved is before 2:30 A. M. or after 5.00 A. M. If the City cannot restrict the sale before 2:30 A. M. because of the regulation, it is obvious they cannot restrict the sale after 5:00 A. M. for the same reason. The language of the Supreme Court on this point is significant:

“When the statutes and a valid regulation of the Board of Liquor Control said that a sale of intoxicants may not be made after a designated hour, it is equivalent of saying the same as that sales up to that time are lawful. ...”

The defendant still maintains that the Neil House case established the law as being that no beer or intoxicating liquor could be sold after 2:30 A. M. Sunday, and therefore, the ordinance of the City of Jackson merely prohibits what the statute prohibits. Defendant cites §6064-22 GC, now §4301.22 R. C. The following is the language of Judge Zimmerman which defendant claims establishes his position.

“It is stated in §6064-22 GC, that sales of beer and intoxicating liquor under all classes of permits may not be made after 2:30 A. M. on Sunday.”

First of all, an examination of §6064-22 GC, shows that it did not include the word “beer” in that section. That section of law reads as follows:

“No. 4. No sales of intoxicating liquor shall be made after 2:30 A. M. on Sunday or on any Election Day between the hours of 6:00 A. M. and 7:30 P. M.”

“Nothing in this section shall prevent a municipal corporation or village from adopting an early closing hour for the sale of intoxicating liquor on Sunday, or to provide that no intoxicating liquor may be sold on Sunday.” Since this statute specifically does not mention beer, it should not be so interpreted as to include the word beer, because the liquor act expressly differentiates between beer and intoxicating liquor. Sec. 6064-1 GC. The words of Judge Zimmerman were not an interpretation of §6064-22 GC. At that point in his opinion, he was merely reciting the laws and regulations that control the hours for selling and consuming beer and intoxicating liquor, in the permit classes in question in that case. His statement was not included in the syllabus of that case, and in the opinion of this Court was not intended as establishing part of the law of the Neil House case.

The case of Kaufman d. b. a. Blue Cafe v. Village of Paulding apparently is directly in point on its facts with the instant case. In that case the village passed an ordinance prohibiting the sale of intoxicating liquor and beer on Sunday. The Court of Appeals in that case reviewed the existing case law and the Neil House case, and decided that while a city or village could pass an ordinance forbidding the sale of intoxicating liquor on Sunday under the authority of §4301.22 R. C., it could not, by virtue of Regulation No. 49, prohibit the sale of beer on Sunday. While the defendant urges that this Court is not bound by a Court of Appeals’ decision in a certain County in a different district, this Court nevertheless feels that any decision of a superior Court, especially when the law of this case includes a Supreme Court case, that such decision is entitled to respect and consideration, especially when there is no conflict of authority to the contrary.

Lastly, this Court would like to point out that in 1954 a similar ordinance of this City was held to be unconstitutional. That case, which involved the same parties as the instant case, was apparently decided upon the same series of eases referred to in this case. While another Judge heard that case and this Court is not necessarily bound by its previous decisions, I believe that issues that have once been resolved should not be lightly overturned, unless upon some strong legal basis.

In this ease the plaintiff has not cited a single case to indicate that the law now on this subject matter is any different than it was in 3954. The case of Wishing Well, Inc. v. City of Akron, 66 Abs 406, does not involve liquor or beer, but the issue in that case was whether Bingo or Keno was to be considered a lottery within the meaning of the statute. That Court did not discuss the Neil House case, but the Wishing Well case merely said that these ordinances were not in conflict with the State Statute: therefore, there is no need to attempt the difficult task of connecting the facts of that case to the facts of this case by. analogy, when there is established case law on the precise issue before this Court.

This Court is inclined to agree with the defendant’s contention that the doctrine of the Neil House case should not be extended on the principle of conflict of municipal ordinance with State Statutes. In several cases, as in the case of State, ex rel. Wynne, v. Urban, 49 O. O. 108, the Courts have agreed with the principle of the Neil House, case, but differentiated their case upon the facts. However, the case before this Court is not a Civil Service case, and is not a gambling case, but is, a liquor case, the same situation as was in the Neil House case and in the Village of Paulding case. Counsel has failed to indicate in this case in what manner this case could be differentiated upon its facts.

The article cited by the defendant in 9 O. L. J. 47 through 51 with reference to conflict by implication has many meritorious observations therein, but whether rightly or wrongly, the principle therein is not law, and the fact of the matter is that the Supreme Court has accepted in some degree the principle of conflict by implication.

Be that as it may, the Court feels that for the reasons given above, and despite whatever opinion the Court might hold as to the moral issue of selling beer on Sunday, the Court believes the laws and regulations of the Liquor Department to allow sales of beer after 5:00 A. M. on Sunday, and therefore, Ordinance No. 2-59 of the City of Jackson is plainly in conflict therewith, and is declared null and void. The demurrer of the plaintiff to the answer of the defendant is hereby sustained. The Court would like to point out that the community of Jackson has several lawful methods at their disposal to cope with Sunday sales of 3.2% beer, if that be the community’s desires.


author: By SAUL S. DANACEAU, J.

text:
    CHESTER, Plaintiff -Appellant, v. BOARD OF REVIEW OF THE BUREAU OF UNEMPLOYMENT COMPENSATION, LEEWALL SPORTSWEAR CO., Defendants-Appellees.
    Common Pleas Court, Cuyahoga County.
    No. 726363.
    Decided December 1, 1959.
    Nathan M. Botwin, Cleveland, for plaintiff-appellant.
    Mark McElroy, Atty. Geni., Frank A. Szymanski, Asst. Atty. Geni., Cleveland, for Board of Review, Bureau of Unemployment Compensation.
   OPINION

By SAUL S. DANACEAU, J.

This is an appeal by Mary P. Chester from a decision by the Board of Review of the Bureau of Unemployment Compensation rendered on the 24th day of June, 1959, denying unemployment compensation to appellant.

The record discloses that the claimant was employed by The Leewall Sportswear Company for approximately three years and that she was discharged on August 22, 1958, as a result of garnishment of her wages.

Upon application for unemployment benefits, the Administrator on October 10, 1958, held that the discharge was not for just cause in connection with her work and allowed her claim. On October 29, 1958, the Administrator upon reconsideration disallowed her claim. Claimant appealed and the Referee on December 1, 1958, after hearing rendered his decision wherein the discharge was found to be without just cause in connection with her work and her claim for unemployment benefits was allowed. The Board of Review allowed an appeal and on a review of the record without further hearing and with one member dissenting reversed the decision of the Referee and disallowed her claim for unemployment benefits. Claimant appealed and a hearing was held by a referee for and on behalf of the Board of Review on April 24, 1959. The Board of Review, one member dissenting, rendered its decision on June 24, 1959, denying unemployment compensation.

In its findings the board set forth two garnishments arising from the same case in the Municipal Court of Cleveland, the first on May 31, 1958, and the second on August 15, 1958. Evidence that was not refuted was presented to the board at the rehearing held on April 24, 1959, that the said garnishments arose out of a cognovite note judgment taken by Central Discount Corp., apparently an innocent holder, that the note was procured through fraud by one Frank Palmerio who discounted the note with Central Discount Corp., that Palmerio was charged with such offense and pleaded guilty, that claimant informed her employer of the facts pertaining thereto, that while employed by this company for approximately three years there were no other garnishments, that the employer had not complained to or warned the claimant, and that the employer had no definite policy in respect to garnishments. It should be noted that while there is a reference to other garnishments in a prior decision of the Board of Review under date of March 5, 1959, the testimony upon rehearing that there were no garnishments other than the two above described is not refuted.

The board held that the illegality of the note upon which the judgment was based and garnishments issued was beside the point and immaterial and likewise held that the absence of company policy setting up rules relating to garnishments was immaterial. The board relied on prior board rulings “that a discharge for garnishments is a discharge for just cause in connection with work.”

Secs. 4141.29 (C) (1) and 4141.30 (E) R. C., provide:

“(C) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the Administrator finds that such individual:

“(1) Quit his work without just cause, or has been discharged for just cause in connection with his work, * * *”

“Sec. 4141.30 (E) R. C. If an individual became unemployed under circumstances described in division (C) (1) * * * of §4141.29 R. C., then any wages paid to such individual during his base period by the employer from whom such individual became unemployed under circumstances described therein shall be excluded from the computation in determining total benefits payable in division (D) of this section, and no benefits shall thereafter be paid based upon such wages; * * *”

The statute requires that the discharge be for (1) just cause, (2) in connection with his (her) work.

Whether a garnishment is just cause for discharge in connection with his or her work must necessarily depend on the facts and circumstances presented in evidence in a given case.

In Chalker v. First Federal Savings and Loan Association et al, 71 Abs 87; 126 N. E. 2d, 475, the court in reversing a decision of the Board of Review denying unemployment benefits to a charwoman whose wages had been garnisheed said:

“Certainly, if one of the executives or tellers in the Building and Loan was persistently having their wages garnisheed that could easily be interpreted as a hazard in the Institution where one handles money daily. It would be fairly interpreted that such a teller who was subject to garnishments could be discharged within the meaning of the statute not only as a just cause but in connection with his work.”

“But the Court is of the opinion that the discharge in this case could not be interpreted as a discharge for just cause ‘in connection with her work.’ Although the employer may make such rules as he sees fit, it does not follow by reason of such selective processes upon the part of the employer that an employe should be deprived of the benefits of unemployment compensation where the discharge is one that is not in connection with her work.”

The Court concluded:

“* * * that the discharge was not in connection with her employment, and does not deprive her of the benefits of the unemployment compensation, because a garnishment of the wages of a charwoman under the circumstances of this case is not such a discharge for just cause in connection with the work as to deprive her of the benefits of this Act.” Garnishments may under certain facts and circumstances justify both discharge and a disallowance of unemployment benefits. Where unsuitability to perform the work assigned, frequent and persistent garnishments, disregard of clearly defined rules and warnings, or substantial expense to the employer are shown and an undue hazard to the employer is evident, the discharge and denial of benefits should be sustained.

The claimant was the victim of a fraud and so informed her employer. The facts pertaining to the fraud so reported were also presented to the Board of Review. The board considered such facts immaterial and relied upon its previous ruling that a garnishment in and of itself without any regard to explanatory facts justified both discharge and denial of unemployment benefits. No person should be penalized by false accusation or by an invalid or wrongful attachment of wages.

In the case before, this Court there is no deliberate violation of the employer’s rule, no willful disregard of the employer’s interest, and no suggestion of unsuitability for the work performed. Under the facts and circumstances of this case, the claimant should have been allowed her unemployment benefits.

The decision of the Board of Review of the Bureau of Unemployment Compensation is unlawful, unreasonable and against the manifest weight of the evidence and is hereby reversed.


author: By ZIEGEL, J.

text:
    GARDNER, Estate of, In re.
    Probate Court, Preble County.
    No. 19551.
    Decided October 19, 1959.

      Stewart, Cromer & Faber, Dayton, for exceptors.
    Ruey Hodapp, Jr., Dayton, for executor.
   OPINION

By ZIEGEL, J.

This case pends upon exceptions filed to the inventory and appraisement of the estate of Charles W. Gardner, deceased. The exceptor is the decedent’s daughter. She contends that a note inventoried and appraised at $2,900.00 as an asset of decedent’s estate in fact belongs to her and was thus erroneously listed.

It appears that early in January, 1958, exceptor and her husband were about to close a deal for the purchase of a home in Franklin, Ohio. Decedent prevailed upon them instead to purchase a home near where he resided in Preble County, Ohio. It was verbally agreed between these parties that the decedent would loan exceptor and her husband the sum of $3,500.00 upon a note secured by a mortgage: that these makers of the note would repay it at the rate of $50.00 per month, and that said note would not draw any interest; that upon decedent’s death, if he should happen to die before the note was completely paid out, there would be no balance due. Thereupon an appointment was made with decedent’s lawyer to formalize these arrangements. On January 20, 1958, pursuant to the appointment made these persons came to the law office of Ruey Hodapp, Sr. Mr. Hodapp, Sr., was not present, but his son, Ruey Hodapp, Jr., then a law clerk about to take the bar examinations, took the information necessary to' prepare the appropriate papers. At the same time exceptor’s husband paid for the legal services to be performed and received a receipt containing the following remark: “For preparing contract of sale & deed. . . .” Two days later these persons again went to the Hodapp Law Office and the note and mortgage in question were executed and delivered. Again Mr. Hodapp, Sr., was not present, his son supervising the proceedings. At this time the son, Mr. Hodapp, Jr., advised decedent, his daughter and her husband that his father believed that in order properly to handle this matter, decedent should make a will.

Thereafter, on March 27, 1958, decedent actually did make a will, which will, however, contains no reference to the conversation previously had between decedent and exceptor. In the meantime exceptor and her husband regularly made payments to decedent of $50.00 per month in accordance with the tenor of the note, so that at decedent’s death the original amount of the note had been reduced to $2,900.00. Exceptor was not aware until after decedent’s death that their verbal arrangements had never been formalized. '

At decedent’s death, the note and mortgage were in the possession of his lawyer. Upon the face of the note executed by exceptor and her husband on January 22, 1959, were these words: “Delivered to me in escrow to deliver to W. R. Pelfrey upon order of C. W. R. Sr. or death— No money due after death of C. W. G. Sr. — R. F. H. Sr.” Mr. Hodapp, Jr., testified that the foregoing was in the handwriting of his father. Mr. Hodapp, Jr., testified fully as to all of the above recounted matters, but Mr. Hodapp, Sr., was not called as a witness. There was no testimony as to when this notation was written on the face of the note in question, or what were the surrounding circumstances.

See. 2115.02 it. C., requires every fiduciary of a decedent’s estate to “make and return on oath into court a true inventory of. . . . the chattels, moneys, rights, and credits of the decedent. . . .” “Of the decedent” means belonging to the decedent at the instant of his death. Thus, in order to sustain the exceptions herein, the Court must find ultimately that decedent did not have any title to, or property right in, the note in question at the time of his death.

Counsel for the exceptor, although not assisting the Court with any citations or memorandum, at the hearing verbally argued (1) that because of the inducements decedent used to get exceptor and her husband to purchase a home near where he resided, his executor should now be “estopped” from denying exceptor’s title to the note in question; or (2) that the arrangements between decedent and his attorney, as evidenced by the notation on the note, should be considered in the nature of an “escrow” maturing upon decedent’s death for the benefit of exceptor.

The use of any theory of estoppel as it applies to the facts of this case may be dismissed summarily. As between decedent and the ex-ceptor, while there were a number of conversations regarding the ex-ceptor moving into decedent’s neighborhood, insofar as the forgiving of any balance on the note in question at decedent’s death was concerned, the final agreement between these parties was that decedent would make a will. At least, upon being so advised that that was the way to accomplish their agreed ends, exceptor and her husband acquiesced by their future conduct in the arrangement. Decedent may have breached a contract to make a will but this Court need not decide that question here. If it was agreed that exceptor would receive any balance due on this note at decedent’s death by will, the note would nevertheless be an asset in the hands of decedent’s executor until distributed, and would obviously have to be inventoried. Some estoppel principle might be involved in an action for breach of the contract to make a will; but, as indicated, that is outside the scope of inquiry of this Court.

Apparently decedent, in the interim between January 22, 1958, and March 27, 1958, decided not to accomplish the verbal agreement between himself and his daughter by making a will, but rather elected to set up what is designated on the face of the note in question as an “escrow,” whereby he left the note with his lawyer with instructions to deliver the samé to “W. R. Pelfrey,” who is exceptor’s husband, “upon order of C. W. R. Sr. or death — no money due after death of C. W. G. Sr.” “C. W. R.,” the Court concludes, represents a scrivener’s error, and really should have been “C. W. G.” standing for Charles W. Gardner, the decedent.

The word “escrow,” this Court believes, is misused, and has no applicability. By definition, an escrow refers to the delivery of an instrument to a third person to await the payment of money or the performance of some other condition, which is certain to happen, and which is a condition precedent to the- delivery of the instrument to the ultimate grantee or vendee. Where it is merely to await the lapse of time, or the happening of some contingency, and not the performance of any condition, there is no escrow, but the grantee’s or vendee’s property presently, with enjoyment thereof postponed. See 29 O. Jur. (2d), 207.

Regardless of the legal inaccuracy in the phraseology that may have been employed, the fact remains that decedent did leave the note and mortgage with his lawyer with some kind of instructions as to what to do with it, either upon order of the decedent or upon his death. The question the Court must here decide is the legal effect of what he did do insofar as exceptor is concerned.

Two avenues of approach present themselves. Did decedent set up some sort of inter vivos trust, with himself as the settlor, his lawyer as the trustee, and the exceptor and her husband as the cestuis que trust? Or was this an attempt to make a gift to the exceptor and her husband through the medium of a third person, with the donee’s enjoyment of the gift being postponed until his death or order? The destination reached may be quite different depending upon which avenue is used. The degree of control that a settlor may maintain over the corpus of an intervivos trust exceeds greatly that degree of control which a donor may maintain over the res of an inter vivos gift. For example, under §1335.01 R. C., with certain exceptions unnecessary to mention here, revocable trusts are sustained in Ohio. Union Trust Co. v. Hawkins, 121 Oh St 159, 167 N. E. 389; Cleveland Trust Co. v. White, 134 Oh St 1, 11 O. O. 377, 15 N. E. (2d) 627: Bolles v. Toledo Trust Co., 144 Oh St 195, 29 O. O. 376, 58 N. E. (2d) 381; and a number of other cases. Thus, in a trust situation, generally speaking, the maintenance of dominion over the trust corpus by the settlor, even to the extent of being able to destroy the trust, unless the power to revoke is exercised during the settlor’s life, does not affect the validity of such a trust upon his death. On the other hand, in order to make a completed gift the donor of the gift must relinquish all dominion over the property intended to be given. 26 O. Jur. (2d) 154, par. 13; and 162, par. 18; and numberous cases cited thereunder.

From the meager evidence before the Court as to what the arrangements were between decedent and his lawyer as to the note and mortgage which decedent did leave with his lawyer, this Court is unable to find that any trust as such existed. Legal title to the res of a trust is always in the trustee. 40 O. Jur, 112. Nothing in the instant case shows that decedent’s lawyer had any title whatsoever in the note and mortgage in question. The note was not indorsed; the mortgage was not assigned. If the exceptor and her husband had failed to make payments in accordance with the tenor of the note during decedent’s lifetime so that an action on the note or in foreclosure would have been necessary, nothing in the testimony or in the exhibits would have given decedent’s lawyer the right to bring such an action in his own name. If it were decedent’s intention to set up a true trust, legal title to the note and mortgage would have been in the lawyer, and he would have been empowered to proceed without reference to decedent. Such was not the case here.

The Court must conclude, therefore, that decedent was attempting to make a gift of the note and mortgage to the exceptor and her husband by leaving them with his lawyer with instructions to deliver them to the exceptor and her husband upon his order or death. Delivery of a gift may be made to a third person for the donee’s use. 26 O. Jur. (2d) 164, par. 20. “A completed gift is created where evidence in a particular case shows delivery of property by the donor to a third person for the benefit of the donee, under circumstances manifesting an intention to vest immediate title in the donee and relinquishment of all dominion and control over the property; and the third person is thereby constituted a trustee for the donee.” “The validity of such gift is not affected by the fact that the donee’s enjoyment of the property is postponed until the donor’s death.” Streeper, Admr. v. Myers, 132 Oh St 322, 8 O. O. 78, 7 N. E. (2d) 554. Acceptance by the donee of such a gift will be presumed if beneficial to him.

The Streeper case, supra,, uses the word “trustee” in defining the relationship that exists in such case between the third person who holds physical possession of the property of the gift and the donee. Strictly speaking, if the historic definition of a trustee as one who holds legal title for the benefit of another is adhered to, this is inaccurate. Certainly it is inconsistent with the above quoted statement about vesting “immediate title in the donee. . . .” What the Supreme Court is saying is that a relationship of trust is thereby established between the third person and the donee, whatever name might be given to this third person.

Quoting with approval from an Iowa case, Jones v. Nicholes, 151 Iowa, 362, 130 N. W., 125, the Supreme Court in the Streeper Case does point out that “The test seems to be whether any interest in the property itself has been retained, as distinguished from the mere use or enjoyment.” This is the question this Court must answer in the instant case.

In the Streeper Case, supra, the decedent indorsed six building and loan certificates which he owned each to a different person and left them with an officer of the company to deliver to the persons designated if anything happened to him. He reserved the right to receive the interest on tírese .certificates as long as he lived. Held: “Where there has been a completed gift of property, the reservation by the donor to himself of the earning thereof will not invalidate the gift.” It is pointed out that here all the decedent received was the interest or earnings from his gift. The principal of the gift actually, and by his expressed intention when he made the gift, remained intact.

The case of In re Fetzer, 31 Abs 203, 17 O. O. 4, 34 N. E. (2d), 306, affirmed without opinion by the Supreme Court, 136 Oh St 426, 17 O. O. 17, with one material exception, is quite similar to the case at bar. The action there was also on exceptions to the inventory, however being brought by the legatee. In that case decedent’s son and daughter-in-law had made a note to him for $8,000.00. Later, decedent gave this note to his lawyer with written instructions to hand the same over to his son in the event of his death, which was done. The record there disclosed that during a period of twenty seven months which the lawyer held this note the decedent paid no more attention to it and that nothing was paid on it.

In State, ex rel. Shaffer, Exrx., v. Kuthy, 47 Abs 14, 71 N. E. (2d) 133, affirmed by the Supreme Court without opinion, 145 Oh St 516, 31 O. O. 176, the decedent made a gift of certain stock certificates. During his life he continued to vote the stock and to collect the dividends paid thereon. The Court held that under these facts he had relinquished all dominion and control over the stock and that there was a completed gift. See also Bennett v. Donley, 32 O. O. 179.

In all of the cases referred to above in which a completed gift was held to have been made even though the donor may have reserved certain rights and privileges to himself over the subject matter of the gift during his lifetime, it is noted that some definite, assured part of the subject matter of the gift remained intact for the ultimate enjoyment of the donee. Thus, these various courts have held that under the circumstances delineated there was a relinquishment of all dominion and control and thus a completed gift. In the case at bar, however, that is not the case. Here, although decedent left a note and mortgage with his lawyer for delivery upon his order or death to the exceptor and her husband. he did reserve to himself the right to receive not just income, for in this case there was no income, the note providing that it should carry no interest, but the right to receive and put to his own use the principal of the note at the rate of $50.00 per month. Assuming that he completed these arrangements on the day he made his will, which was March 27, 1958, between that date and the date of his death, the amount or value of his “gift” was reduced by $500.00, being the amount of the payments made to him on the principal of the note by exceptor and her husband. Each month the “gift” was reduced by $50.00. Had decedent lived long enough he would have given nothing. Under these facts, this Court holds that the decedent did not part with all dominion and control over the note and mortgage in question and thus there was no gift.

It might be argued that since by its very nature a gift is noncontractual there being no consideration moving from the donee to the donor, and since in the instant case there is a possibility of consideration in the fact that as a result of decedent’s inducements exceptor and her husband changed their position, the gift concept of the foregoing transaction is erroneous. While there were a number of conversations between the decedent and exceptor and their lawyer as to the mechanics of accomplishing the forgiving of any balance due on the note at decedent’s death, it was finally agreed that decedent should make a will to that effect. The consideration present, if any, would apply only to the contract to make a will, and to no other transaction.

The Court finds, therefore, that title to the note and mortgage in question at the time of decedent’s death was in the decedent, and that such note and mortgage were properly inventoried and appraised as an asset of decedent’s estate. The exceptions to such inventory and appraisement will be overruled. Counsel for the executor will prepare an appropriate entry, not only overruling said exceptions, but also otherwise approving the inventory and appraisement.


author: By GESSAMAN, J.

text:
    SALVATORE, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Common Pleas Court, Franklin County.
    No. 190283.
    Decided February 17, 1955.
    Irving M. Gertner, for appellant.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., for appellees.
   OPINION

By GESSAMAN, J.

The appellant appeals from an order of the Board of Liquor Control suspending his permit for a period of fifteen days. The charge was that on Sunday, March 14, 1954, at about 11:55 o’clock A. M. the appellant and/or his agent or employee did sell in and upon the permit premises intoxicating liquor, to-wit: wine and malt beverages in excess of 3.2% alcohol by weight.

Charles Hopkins, an investigator of the Department of Liquor Control, testified that on the day in question he visited the premises of the appellant along with Reuben Harper, another investigator of the department; that Investigator Harper went into the premises, stayed there about 20 minutes and came out; that thereupon he, Mr. Hopkins, went into the premises, asked for a pint of wine but was refused. Thereupon he purchased a bottle of Coca Cola and while he was drinking it a man by the name of James Riley came in. Riley talked to the appellant but the appellant nodded towards Mr. Hopkins and nothing further was done. Mr. Hopkins shortly left the premises and went down the street and around the building. Mr. Harper testified that he had gone into the appellant’s place of business first, stayed there for about 20 minutes, went out and joined Mr. Hopkins, at which time they moved their automobile. After moving it, Mr. Hopkins went into the premises. Mr. Harper testified that he saw James Riley across the street from the appellant’s place when he and another man were apparently counting their money. He saw Mr. Riley go into the place of business. After Inspector Hopkins came out of the appellant’s place of business, Mr. Riley came out and looked up and down the street to see if Mr. Hopkins was in sight. Mr. Riley went back into the premises and in a few minutes came out carrying a brown sack. Mr. Harper immediately accosted Mr. Riley, took the sack from him, examined the contents, marked Department’s Exhibit A, and discovered that it was a bottle of muscatel wine. On cross examination the appellant admitted that he had that type of wine for sale in his place of business on the day in question. He denied that he made the sale to Mr. Riley.

It is true that neither of the officers saw Mr. Riley purchase the wine and, of course, it follows that they did not see the appellant sell the wine. The evidence of sale, therefore, is purely circumstantial. The very strong circumstances are, however, that Mr. Riley had nothing in his hands when he went into the appellant’s place of business, that he engaged the appellant in conversation at which time the appellant nodded towards the investigator; that later on Mr. Riley came out of the place of business to look around, went back into the place of business, and came out with a bottle of wine in a brown sack. Where else could he have purchased it if he did not purchase it in the appellant’s place of business? He had been no place else in the short amount of time involved.

Counsel for the appellant urges that it was improper for the investigators to testify as to what Mr. Riley told them as to where he purchased the wine. The record does not disclose any objection to the testimony in question. However, as we have pointed out, it is the feeling of the Court that the circumstantial evidence in this case is strong enough to sustain the order of the Board without considering the testimony of the investigators as to what Mr. Riley told them.

Prom a considered examination of the record in this case, it is the opinion of the Court that the order of the Board is supported by reliable, probative and substantial evidence, and is in accordance with law. (Sec. 119.12 R. C.) The order of the Board is therefore affirmed.


author: By SKEEL, J.

text:
    JANOVIAK et, Plaintiffs-Appellants, v. CREGAN et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24864.
    Decided November 27, 1959.
    A. A. Perelman, Thomas McGarry, for plaintiffs-appellants.
    Ford, Clarke, Howland & Wegman, for defendants-appellees.
   OPINION

By SKEEL, J.

This appeal comes to this court on questions of law from a decree for the defendants entered after trial on the merits by the Court of Common Pleas of Cuyahoga County. The action is one wherein the plaintiffs seek to restrain the Village of Bratenahl, its Chief of Police, and Mayor from restricting the use of that part of the Lakeland Freeway which passes along the southern border of the Village to passenger automobiles.

The plaintiffs’ amended petition alleges that they are a partnership engaged in the business of furnishing automatic machine tool services to industry. That they service industrial establishments engaged in defense work for the Government of the United States and also those dealing in products to be shipped in interstate commerce and that in servicing such customers, they use a 1948 one-half ton panel body truck.

It is alleged that the defendant, William D. Cregan, is the Chief of Police of the Village and that the defendant, William Klein, is its Mayor. It is alleged that there is an east and west thoroughfare running through the Village described as the Lakeland Freeway (a limited access highway) which runs along its southerly border for about three miles except for the most easterly one eighth of a mile which turns a bit to the north and meets Lake Shore Boulevard where the easterly border of the Village adjoins the City of Cleveland. The petition alleges that the freeway is a six lane concrete highway with a dividing strip between the east and west bound lanes, said grass strip being about thirty feet wide and that the New York Central Railroad’s main tracks run along the southerly border and adjacent to the freeway until the freeway turns toward Lake Shore Boulevard some distance past Eddy Road, and to the immediate south of such railroad right-of-way are many industrial plants.

It is alleged that on October 1, 1958, the plaintiff, James P. Janoviak, while in pursuance of his business (making deliveries with the partnership’s one-half ton panel truck), was arrested at 11:45 A. M. for driving a truck on the freeway in violation of an ordinance of the Village of Bratenahl. The ordinance is then set out in the amended petition which was filed December 13, 1958, and by amendment upon oral motion, an amended Ordinance (No. 1483) passed December 17, 1958, was substituted for the one pleaded which provides, in part, as follows:

“SECTION 1. That Section 26 of Ordinance No. 805, passed on the 10th day of October, 1938, as amended, shall be and hereby is further amended to read as follows:

“When signs are erected giving notice thereof, those parts of Lake Shore Boulevard and of the Lakeland Freeway which are within The Village of Bratenahl shall be and hereby are designated as restricted traffic thoroughfares and the operation thereon of any tractor, or truck or trailer or other vehicle designed or used to carry property, or for building or construction work, excepting vehicles of The Village of Bratenahl, The City of Cleveland, The County of Cuyahoga and the State of Ohio, or any department thereof, while performing work or going to or from the performance of work on such streets, and excepting vehicles doing work or receiving goods or making deliveries in the Village of Bratenahl in Bona Fide transactions, which vehicles shall enter and leave such restricted thoroughfares by the shortest route, shall be and hereby is forbidden.”

“SECTION 2. Any person who violates the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined for a first offense not to exceed $50.00 and the cost of prosecution, and for a second or subsequent offense not to exceed $100.00 and the cost of prosecution.”

It is further alleged that the Village Ordinance prohibiting all truck traffic on that part of the Lakeland Freeway situated in the Village is “null and void, arbitrary, discriminatory, and capricious, because it violates the commerce, due process, and equal protection clause of the Constitution of the United States, and Section 2, Article I, Ohio Constitution. The plaintiffs allege that the law enforcing officers of the Village threaten to make further arrests of the plaintiffs and those driving trucks on the freeway in Bratenahl and pray for a permanent injunction prohibiting the defendants from interfering with the plaintiffs in the operation of their truck on the freeway in said Village.

The defendants, by joint answer to the plaintiffs amended petition, admit that Bratenahl is a Village; that defendant, Klein, is the duly elected Mayor of such Village, and that defendant, Cregan, is the duly appointed and acting Chief of the Police Department. The location of the Village and the freeway, as described, is admitted, as well as the amended ordinance (1483) as pleaded by agreement. It is then alleged that said ordinance “is necessary to prevent traffic congestion and that it bears a direct relationship to the public safety and welfare.”

The evidence, in addition to the Admissions, establishes that Bratenahl is a compact community situated on Lake Erie and bounded on its east, west and south boundaries by the City of Cleveland. It is about four or five miles east of the Center of Cleveland. It is about three miles . long and comprises within its limits about one and one-half square miles of land devoted exclusively to residence purposes. Lake Shore Boulevard is an east and west street running the entire length of and beyond the Village to the east, and is the first street south of the Lake. It is somewhat crooked and marked off for three lanes of traffic. The west entrance to Lake Shore Boulevard is reached through the roadways of Gordon Park north of the freeway in Cleveland and at its eastern extremity, it runs directly into and continues on as Lake Shore Boulevard in Cleveland. At this point and to the east, it is a six lane highway, each lane being about ten feet in width. The freeway joins Lake Shore Boulevard a short distance west of the Cleveland border. The Village maintains a traffic light at the point where the freeway meets Lake Shore Boulevard. The first street east, which is near the boundary line of the Village, within the City of Cleveland, is East 140th Street. This street dead ends at the Boulevard, the intersection being controlled by a traffic light. The freeway is a limited access highway providing six lanes of traffic, three for eastbound traffic and three for westbound traffic, each lane being about twelve feet in width. The east and west lanes are divided by a thirty foot grass strip. The Lakeland Freeway is a continuation of the Memorial Shoreway in Cleveland which, except for the new Inner Belt Intersection where six traffic lanes are provided, is a limited access highway, providing eight traffic lanes, and as in Bratenahl, the state speed law provides a prima facie lawful rate of speed of fifty miles per hour. There is no restriction of truck traffic, except as to weight on Memorial Shorew.ay from West 49th Street east to the city limits at the west boundary line of Bratenahl and also on Lake Shore Boulevard east from Bratenahl to the city limits of Cleveland at East 185th Street.

The evidence also shows that there is now under construction (as was originally contemplated) an extension of the freeway to East 185th Street at the east border of Cleveland so that when the extension is finished, through traffic will be able to move east and west on the freeway without going into or coming from Lake Shore Boulevard just west of East 140th Street. The Mayor testified on this point that when such extension is finished, no problem of traffic congestion will then exist in the Village because of the freeway ending as it now does at Lake Shore Boulevard. The Mayor testified that the extension was a state project to which the Village had given its consent and that construction is now in progress.

The Village, located as it is between the New York Central Railroad tracks (and now the freeway) and Lake Erie, has only three avenues of ingress and egress, one from Lake Shore Boulevard on the east, one from Gordon Park reaching the west end of Lake Shore Boulevard in the Village, and one by the use of Eddy Road, a north and south thoroughfare which intersects Lake Shore Boulevard in about the center of the Village and (by a bridge) passes over the freeway, Eddy Road beginning at the Lake, proceeds completely across the Village going south to St. Clair Avenue in Cleveland and beyond, with ramps running to the east and west from the Eddy Road overhead bridge on both sides of the freeway, which in effect creates a cloverleaf.

The evidence is uncontradicted that the purpose of the ordinance, in eliminating all truck traffic from Lake Shore Boulevard and the freeway in Bratenahl, was to relieve congestion. Historically, the first ordinance dealing with the subject was passed in 1938 (long before the freeway was constructed) primarily to keep truck traffic from Lake Shore Boulevard which was then the only east and west street through the Village. The amendment of 1948 included the freeway but excluded from its operation vehicles of Bratenahl, Cleveland, and those of the state and county. This ordinance became effective at about the time the freeway was opened by the county. The amendment, effective Dec. 17, 1958, excluded all through truck traffic.

The testimony of the Chief of Police was to the effect that the only way to distinguish a truck from a passenger automobile is by the license plates, that if a station wagon displaying truck plates were used on either the freeway or Lake Shore Boulevard, without having business to transact in the Village, the driver would be subject to arrest. He said this would also be true where a passenger automobile had attached thereto and was pulling a trailer upon which was loaded a small boat.

The evidence is also without contradiction that the only traffic congestion on the freeway and Lake Shore Boulevard is as to eastbound traffic between the hours of 4:30 and 6:00 P. M. at the easterly end of the freeway where it meets Lake Shore Boulevard.

Pakult, a councilman of the City of Cleveland, testified as follows on this point:

“Well, I am familiar with the traffic generally in there. It is part of my job to understand traffic and problems that generate to the community and I am aware of the fact, through complaints that I have received about the volume of traffic, the fact that traffic backs up beyond Eddy Road, which is about two miles away from East 140th Street and that is, of course, the basis where the extension of the Lakeland Freeway, which is now under construction, which is going to be under construction shortly.

“Q. Then, as I understand your testimony, the traffic congestion on Lakeland Freeway would be more severe than it would be on St. Clair?

“A. During the rush hour it would be.

“Q. Traveling from an easterly direction to a westerly direction using the northbound lanes heading toward the center of Cleveland, what is the condition of traffic there?

“A. Well, that is not usually — it’s not as bad as it is the other way.

“Q. Now. what is the condition of the traffic during the earlier parts of the dav, let’s say at 9 o’clock in the morning?

“A. There is no particular problem.

“Q. And at 12 o’clock there is no particular problem and at 3 o’clock?

“A. No.

“Q. And it’s about 4:30 or 5, isn’t it. that traffic congests at the eastern end for those heading in an easterly direction, is that not a fact?

“A. That’s correct.

“Q. Now. then, from the point of the signals and at the exit of the Village of Bratenahl. can you compare the degree of congestion between Lake Shore Boulevard?

“A. I would say the congestion on the Freeway, from personal observation. as 1 say. the traffic backs up during the rush hours from Eddv. Road and beyond Eddy Road during inclement weather and it hacks un almost to East Boulevard. You can geft) at a certain sneed up to that noint. When you go there you crawl, so that the effectiveness of the Freeway — it loses its effectiveness after it proceeds to East Boulevard.

“Now, I am talking about merely the rush hour. During the other parts of the day, of course, there is no particular problem.”

The testimony of the Chief of Police and the Mayor corroborates in every detail the fact that the only traffic congestion on the Freeway is as to eastbound traffic at the easterly end where the Freeway meets Lake Shore Boulevard in the village during the evening rush hours from about 4:30 or 5:00 o’clock P. M. until 6:00 or‘6:15 P. M.. and that there is no congestion of the westbound traffic lanes either there or at any other place or at any time. Just east of East 140th Street is a sign directing all through trucks going west to turn left (at East 140th Street). This direction sign, which is there without legislative authority, induces trucks to turn left across the eastbound lanes at all times including the hours when traffic congestion is experienced, adding to the confusion, although the route ahead, over the freeway, is not congested and would be available to truck traffic except for the restrictions of the Bratenahl ordinance. It should be noted that in requiring westbound trucks to turn left and go over East 140th Street, probably to St. Clair Avenue, thence to East 72nd Street, which is the first place at which westbound trucks can re-enter Memorial Shoreway, that such route is entirely within the city of Cleveland. In making this detour, heavy city traffic is encountered on the streets through which such detouring traffic must pass, such streets running through residential, retail, commercial and industrial districts. The distance to be traveled is farther by several miles than would be the much shorter and safer route over Lakeland Freeway herein described as a non-access highway built for the purpose of relieving city streets of through traffic.

In addition to requiring westbound trucks to cut across the congested eastbound traffic lanes at East 140th Street throughout the day, including the rush hour period, thus delaying eastbound traffic, there is also a traffic light maintained by Bratenahl at the end of the Freeway, which, if not properly timed and limited, increases the delay through the intersection because of its close proximity to the necessary light at East 140th Street.

In considering the use of the detour caused by the village ordinance for trucks going east from East 72nd Street to East 140th Street and Lake Shore Boulevard over East 72nd Street, St. Clair Avenue and East 140th Street, and the same detour for like reasons for westbound trucks beginning at East 140th Street, the traffic engineer of the city of Cleveland said:

“A. St. Clair Avenue is an urban type street, which has, for a great portion of its length, heavy commercial strip development. It is very spotty with retail and semi-retail, commercial development. It is a street which acts somewhat as a distributor in north-south streets in that it, perhaps, has an unusual number of turning movements as against a street which carries more through traffic, and it has an unusual percentage of trucking against passenger vehicles as compared to other arteries similar, such as Detroit, Lorain, Carnegie.

“Q. Now, Mr. Kelly, based on your experience as an experienced traffic engineer, do you have an opinion as to which particular highway would be better suited for the people, commercial establishments of all the people of Northern Ohio as between the old — the Bratenahl Freeway and that part of St. Clair that runs parallel with it until it reaches 140th Street?

ti* # $

“A. Yes, I have an opinion.

“A. Would you—

MR. WEGMAN: Objection.

“Q. Would you give your opinion?

“A. My opinion is that this is a quicker and safer route on the Freeway than over St. Clair as far as the driver or vehicle operator is concerned, and from the standpoint of residences, residential people in the neighborhood, it is less objectionable on the Freeway because there are no direct abutting property owners who object to any high volume of any vehicles as well as commercial vehicles. It is my opinion this would be a preferred route because it is considerably quicker and safer.”

The same witness, as a recognized and highly competent traffic engineer, in considering the reasonableness of the ordinance in question, testified as follows:

“Q. Would you have an opinion as to whether or not such a restriction would be reasonable?

“A. That question is so broad — I don’t have an opinion. Reasonable covers a lot of ground.

“Q. In other words, you don’t have an opinion on that matter, is that true?

“A. On whether the truck restriction on that section is reasonable?

“A. Yes.

“Well, as a traffic expert, in my own definition of reasonableness, I think it is unreasonable, but again I can’t speak accurately because this is so broad. In my background of working in other cities, the word reasonable, I have to judge as against what council do, what people want in an area of democratic political environment, so from a purely traffic standpoint, traffic engineer, it would be unreasonable.

“Q. Do you take into consideration the fact that the Lakeland Freeway at the present time empties into — comes to an end at the easterly edge of the Village of Bratenahl and enters into a city street, have you taken that into consideration?

“A. Yes.”

There is considerable evidence in the record concerning the fact that Cleveland requires westbound trucks to leave Memorial Shoreway at West 49th Street. This fact is presented in attempting to show that if it is reasonable for the City of Cleveland to eliminate trucks from the Shoreway west of West 49th Street, the same consideration must be given to the right of Bratenahl to restrict truck traffic from Lakeland Freeway running within its borders. The circumstances have no similarity whatsoever. The Shoreway west of West 49th Street goes through Edgewater Park which, in part, consists of extensive playgrounds and farther to the west, Clifton Boulevard, Lake Avenue and Edgewater Drive, which streets, with a few minor exceptions, serve exclusively a residential neighborhood continuing as such to their westerly termini in Lakewood. The Lakeland Freeway on the other hand, is a limited access highway which, to the common knowledge of all, was built to take care of all through traffic, thus promoting traffic safety, taking such traffic from ordinary streets in the city. A route manager of a baking company, having twenty-two retail bakery routes in northeast Cleveland and suburbs, testified as to the loss suffered by their route drivers because of the truck restrictions in Bratenahl. These route drivers could each save thirty six minutes a day by using the freeway (which, is the shortest and safest route to their several destinations). They all would use the freeway at a time (going out in the morning and returning in the afternoon or evening) when there is no congestion, such use being denied them only because of the truck restriction of the Bratenahl ordinance.

The Chief of Police expressed some concern as to the extent to which further congestion would limit the use of emergency vehicles in the Village. The freeway has been open for ten years. It is claimed that even without trucks, eastbound traffic backs up at the evening rush hour sometimes as far back as Eddy Road or East 105th Street and from the fact that the ordinance was passed when the freeway opened in 1948, congestion must have been experienced from the beginning of its use. Yet, in these ten years, the Chief of Police does not mention a single instance when an emergency vehicle was unable to meet an emergency call. The Village has no fire department so that Cleveland equipment is relied on. Since there is no congestion at any time as to westbound traffic coming into Bratenahl from the east on Lake Shore Boulevard, no possible congestion coming into Bratenahl from Gordon Park from the west and since no congestion has been suggested on the Eddy Road overpass, it is clear that fire equipment or any other emergency equipment coming into Bratenahl could not meet with anything more than normal traffic.

Memorial Shoreway and the Lakeland Freeway are a part of State Route No. 2. Its development and use as an important state route must, as far as possible, in the interests of safety, be free from unreasonable and unnecessary interference in expediting its use for all through traffic either intrastate or interstate. Such consideration for the public good is of primary importance. Therefore, the question here presented is whether or not the admitted congested conditions confined to eastbound traffic for not to exceed one and one-half hours at the evening rush hour period justifies closing a limited access highway to all truck traffic without exception at all times of the day and night. It should be noted, in considering this question, that the citizens of Bratenahl are not very much involved. It is the through traffic going beyond East 140th Street that is inconvenienced by the congested conditions of the freeway for about one hour and a half during the evening rush hour which is now to be only a temporary condition.

It is not to be denied that the right to use the streets for business purposes is a privilege which may be reasonably regulated and not a right which can be demanded in all events. In McQuillin on Municipal Corporations, 3rd Edition, Vol. 7, page 657, para. 24,618, it is said:

“The regulation of motor vehicles in their use of streets is an important function of modern municipal government, and is valid when it is reasonable, non discriminatory, and authorized by, and not in conflict with, State Law.”

In the case of Froelich v. Cleveland, 99 Oh St 376, 124 N. E. 212, the Supreme Court had for consideration the question of the reasonableness of an ordinance of the City of Cleveland dealing with the limitation of the weight of motor vehicles below that provided by state law. In upholding the ordinance and setting forth the rules to be used in determining to what extent the police power may be used to impose limitations on the use of the public streets by motor vehicles, the court said:

“3. The state and municipalities may make all reasonable, necessary and appropriate provisions to promote the health, morals, peace and welfare of the community. But neither the state nor a municipality may make any regulations which are unreasonable. The means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation.”

This case was cited by the Supreme Court in holding that an ordinance of the City of Reading (Hamilton County) was unreasonable. In the case of Richter Concrete Corp. v. Reading, 166 Oh St 279, 142 N. E. 2d 525, it is said:

“Where an ordinance prohibits the operation of trucks over a certain weight on all the streets of a municipality, excepting the only state highway therein, and further excepting operations for loading or unloading at a residence, place of business or industry in the municipality or traveling to or from a residence, place of business or industry where such trucks are registered or hired, such ordinance is discriminatory against non-residents of such municipality, is an unreasonable classification, is violative of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and Section 2, Article I. Ohi« Constitution, and is invalid.”

(The Court of Appeals opinion, which was affirmed in the Richter Concrete Corp. Case, just cited, will be found in 103 Oh Ap 67, 136 N. E. 2d 422.) See also Teegarden v. Foley, 168 Oh St 449, 143 N. E. 2d 824.

The rule as thus stated points the way to the conclusion to h*> reached from the undisputed facts in this case. The question is whether an ordinance barring all truck traffic of every character and description and at all times of the day and night from a state route limited access highway based on the ground that during an hour and one-half, or at the most, something short of two hours, eastbound traffic is subject to considerable congestion, is a reasonable exercise of legislative power, whether, in fact, such rule is an unreasonable interference with private rights beyond the necessities of the situations. The undisputed facts, coming for the most part from the defendants and their witness, point to but one answer and that is that the ordinance must fall as an unreasonable interference with constitutional rights in going far beyond the necessities of the situation.

To exclude all trucks (including station wagons with truck plates, when the use of the same vehicle with passenger plates, would not make its driver subject to arrest) from a limited access highway twenty-four hours a day, when the reason for their exclusion is congestion on the eastbound lanes in the late afternoon for a period of time not to exceed two hours, although westbound trucks would proceed on the freeway without contributing to the cause of the congestion, and to shift such truck traffic from such limited access highway onto busy city streets outside the authority of the village council, creating added hazards for pedestrians and drivers of motor vehicles alike, is unreasonable and requires the conclusion that the prayer of the plaintiffs’ petition should have been granted by the trial' court.

Inasmuch as no question of fact requiring such conclusion is in dispute, the judgment of the trial court is reversed and the cause remanded to the trial court with directions to enter a decree for the plaintiffs as prayed for.

Exceptions noted.

HURD, PJ, KOVACHY, J, concur.