author: By DAVIES, J.:

text:
    SCHUCK, Extr., Plaintiff, v. SCHUCK et, Defendants.
    Probate Court, Hamilton County.
    No. 2096.
    Decided September 12, 1958.

      Carl S. Rankin, Cincinnati, for Estate of Arthur Schuck, deceased.
    R. T. Dickerson, Cincinnati, for Margaret Schuck and Dorothy Schuck Steinman.
   OPINION

By DAVIES, J.:

This matter came before the Court upon a petition to determine heirship filed by Erwin Schuck, executor of the estate of Arthur Schuck, deceased.

Arthur Schuck, a resident of Hamilton County, died on September 3, 1957. His will, after making two monetary bequests, provided as follows:

“Item 4. All the rest and residue of my estate, real, personal and mixed, wheresoever situated, which I may own or have the right to dispose of at the time of my death, I give, devise and bequeath to my sister-in-law, Bertha R. Schuck, widow of my deceased brother Frank Schuck, and my brother Erwin Schuck, both of Cincinnati, Ohio, same to be theirs share and share alike, absolutely and in fee simple.”

Arthur Schuek’s next of kin were two nieces, Margaret Schuck and Dorothy Schuck Steinman, children of his said brother, Frank Schuck, who died in January, 1952, a brother, Erwin Schuck, and a niece, Hilda Arnold, the child of testator’s sister, Flora, who predeceased him. His sister-in-law, the aforementioned Bertha R. Schuck, survived him by one day, having died on September 4, 1957.

Margaret Schuck and Dorothy Schuck Steinman claim that they are entitled to one-half of the residue of testator’s estate under the provisions of §2107.52 R. C., which became effective on October 1, 1953, and which provides as follows:

“When a devise of real or personal estate is made to a relative of a testator and such relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, such issue shall take the estate devised as the devisee would have done if he had survived the testator. If the testator devised a residuary estate or the entire estate after debts, other legacies and devises, general or specific, or an interest less than a fee or absolute ownership to such devisee and relatives of the testator and such devisee leaves no issue, the estate devised shall vest in such other devisees surviving the testator in such proportions as the testamentary share of each devisee in the devised property bears to the total of the shares of all of the surviving devisees, unless a different disposition is made or required by the will.”

Prior to October 1, 1953, the statute (then §10504-73 GC, and before that, §5971 R. S.), provided that when a devise of real or personal estate was made to a child or other relative of the testator, if such child or other relative was dead at the time the will was made, or died thereafter, leaving issue surviving the testator, in either case such issue would take the estate devised as the devisee would have done, if he had survived the testator. (Emphasis ours.)

Margaret Schuck and Dorothy Schuck Steinman’s claims depend upon the statutory meaning of the word “relative” found in the above statutes.

The Supreme Court of Ohio, in the case of Schaefer et al. v. Bernhardt et al., 76 Oh St 443, 81 N. E. 640, considered a case in which Catherine Schaefer died in June, 1902, leaving a will dated October 9, 1899, which left her whole estate to her husband, Ludwig Schaefer, who died in the year 1900,- leaving children by a former marriage. The decedent, Catherine, was survived by a brother, sister, and children of a predeceased brother as her sole surviving heirs at law. The husband’s children claimed that the devise did not lapse because of the provisions of §5971 R. S., which provided that “when a devise of real or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised in the same manner as the devisee would have done, if he had survived the testator.” The court held “the phrase ‘other relative’ should, in accordance with the maxim noscitur a sociis, be restricted to relationships of the character indicated by the associated word ‘child,’ and regarded as including those which are consanguineous, but excluding those which are affinitive merely,” and the court further held that “notwithstanding the statute, a devise of real estate by a wife to her husband will lapse if his death precedes hers, although he leaves issue of a former marriage surviving the testatrix.” (Emphasis ours.)

The children of the husband contended that the word “relative” in the statute included relations which were affinitive as well as those which were consanguineous. The court (p. 447) stated that lexicographical definitions could be found to support the view that the word “relative” meant blood relative, or could mean either relations by blood or affinity. The court, however, stated that “in the making of laws words which have an established legal meaning are used with reference to that meaning, and a resort to the decisions will do much to remove the doubt in which the subject in hand would be left by the wide diversity of the meaning of the word in popular use. An examination of the cases — shows that, the question not being affected by the context or by related provisions, the decisions have quite uniformly regarded the word in statutes of this character as applying only to those who are related by consanguinity to the testator.” The court (p. 448) did say that if the word “child” had been omitted from the statute, a stronger case against lapsing could have been urged with much greater force, but the court then concluded its opinion with the following statement: “This (§5971 R. S.), is not a remedial statute suggestive of aims for whose accomplishment the most comprehensive meanings of its terms should, if necessary, be adopted. It is a statute defining rights in property, and for that purpose introducing a rule which is in direct conflict with that which had previously applied to cases of like character. Its operation should, therefore, be no broader than is justified by the clearly expressed intention of the legislature. Another reason of weight favors the commonly accepted view of the subject. Throughout our statutes of descent and distribution obvious consideration is given to the law of nature by which our highest regard and chief concern are for those who are bound to us by the ties of blood. Devolution of title will be in accordance with that rule if the word ‘relative’ in this connection is taken in its legal sense, the subject of the devise passing as intestate property, there being no other disposition contingent upon the death of the devisee prior to that of the testator.”

Although the word “relatives” or “relations” has a common meaning which includes all persons who are in any way related by consanguinity, the general rule, followed in Ohio, is that, when used in a will, the words are presumed to have been used in their restricted sense, so as to mean relatives or relations who are heirs or next of kin of the testator, who would take his estate under the statutes of descent and distribution, in the absence of an apparent intent to the contrary. 41 O. Jur. 685, Section 568; 3 Page on Wills, 161, Section 1030.

Courts have uniformly held that, in statutes which provide that a devise made to a “child or other relative” of the testator, the phrase “child or other relative” means relation by blood, equivalent to kindred, and does not include relation by affinity. Thus, in the case of Cleaver v. Cleaver et al., 39 Wise. Rep. 96, it was held that the phrase “child or other relation” of a testator does not include his second wife, with the conclusion that a bequest made to her by his will lapses, although she left issue which survived him. See also: In re: Wright’s Estate, 268 Mich. 586, 256 N. W. 557; In re: Estate of Manloff Gregory, 345 Mo. 699, 136 S. W. (2d) 306; Woelk et al. v. Luckhardt, Adm. et al., 134 Neb. 55, 277 N. W. 836; Kohn, ex. et al. v. Kerr et al., 39 O. O. 381, 54 Abs 433; Kegler, Admx. v. Kempter et al., 74 Oh Ap 279; Esty, Adm. v. Clark et al., 101 Mass. 36; Stenneck, exr. v. Kolb et al., 91 N. J. Eq. 382, 111 Atl. 277.

The statutory phrase “child or other relation” includes only relations by blood, and not by affinity, and a bequest to a step-son, who predeceased the testatrix, lapsed. In re: Estate of Pfeulb, 48 Cal. 643; Kimball v. Story et al., 108 Mass. 382.

A brother-in-law was held not to be a “relation” of the testatrix. Horton et al. v. Earle et al., 162 Mass. 448, 38 N. E. 1135. A sister-in-law is not a “child or other relative,” which phrase includes only relation by blood and not by marriage. Porterfield, Adm’r v. Porterfield et al., 4 O. N. P. (ns) 654; Mann et al. v. Hyde et al., 71 Mich. 278, 39 N. W. 78; Canfield et al. v. Canfield et al., 62 N. J. Eq. 598, 58 Atl. 471.

The phrase “child, grandchild, or other relative of the testator” does not inclule those connected with the testator by marriage only because it has long been settled that a bequest to one’s relations applies only to those who, by virtue of statutes of descent and distribution, take property as next of kin. Bramell et al. v. Adams et al., 146 Mo. 70, 47 S. W. 931; In re: Estate of Mary J. Knighten, 344 Mo. 246, 125 S. W. (2d), 863.

Courts outside of Ohio have considered the meaning of the lone phrase “relative” of the testator in statutes which prevent lapsing when a devise or bequest is made to a relative who predeceases a testator survived by issue who survive the testator.

A testatrix made a bequest to her husband, who predeceased her, leaving children by a previous marriage surviving her. The question arose as to whether or not this bequest lapsed under a statute which provided that “when a relative of the testator, having a devise of real or personal estate, dies before the testator, leaving lineal descendants, they take such estate as would have been taken by such deceased relative had he survived.” The court held that a devise by a wife to her husband lapses at his death during her lifetime. Keniston et al. v. Adams, 80 Me. 290, 14 A. 203. See also: Cowden v. Knight, 338 Mo. 584, 92 S. W. (2d) 610.

It was also held that a sister-in-law is not a “relative” under the Maine statute. In re: Elliott v. Fessenden et al., 83 Me. 197, 22 A. 115, 13 L. R. A. 37. It was likewise held that a wife is not a relative of her husband under the Maine statute. Farnsworth et al. v. Whitney et al., 102 Me. 296, 66 Atl. 831.

It is axiomatic that, in the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator. The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense. All the parts of the will must be construed together, a,nd effect, if possible, given to every word contained in it. Townsend’s Executors v. Townsend et al., 25 Oh St 477; Carter v. Reddish et al., 32 Oh St 1; Charch v. Charch, Exr., et al., 57 Oh St 561; Moon, Admr., et al. v. Stewart et al., 87 Oh St 349, 101 N. E. 344; Addams & Hosford Ohio Probate Practice & Procedure, Fourth Edition, p. 183, par. 4.

In the construction of statutes, the purpose in every instance is to ascertain and give effect to the legislative intent. Carter v. Youngstown, 146 Oh St 203, 32 O. O. 184, 65 N.E. (2d) 63. The primary purpose of the judiciary in the interpretation or construction of statutes is to give effect to the intention of the legislature, as gathered from the provisions enacted, by the application of well settled rules of interpretation. State, ex rel Shaker Heights Public Library v. Main, 83 Oh Ap 415, 38 O. O. 464, 80 N. E. (2d) 261. The court must look to the statute itself to determine legislative intent, and if such intent is clearly expressed therein, the statute may not be restricted, constricted, qualified, narrowed, enlarged, or abridged. Wachendorf v. Shaver, 149 Oh St 231, 36 O. O. 554, 78 N. E. (2d) 370.

When the One Hundredth General Assembly, 1953, enacted the Revised Code, which became effective on October 1, 1953, it specifically provided in §1.24 R. C., “that in enacting this act it is the intent of the General Assembly not to change the law as heretofore expressed by the section or sections of the General Code in effect on the date of enactment of this act. The provisions of the Revised Code relating to the corresponding section or sections of the General Code shall be construed as restatements of and substituted in a continuing way for applicable existing statutory provisions, and not as new enactments.”

Accordingly, the phrase “relative of a testator,” found in §2107.52 R. C., by legislative enactment (§1.24 R. C.), must be construed as a restatement “of and substituted in a continuing way for” the phrase “child or other relative of the testator,” found in §10504-73 GC, and previously in §5971 R. S.

The phrase “relative of a testator,” found in §2107.52 R. C., therefore, should be restricted to relationships which are consanguineous, and should exclude relationships which are affinitive merely, to a testator.

Sec. 2105.21 R. C., provides that “when there is no evidence of the order in which the death of two or more persons occurred, no one of such persons shall be presumed to have died first and the estate of each shall pass and descend as though he had survived the others. When the surviving spouse or other heir at law, legatee or devisee dies within thirty days after the death of the decedent, the estate of such first decedent shall pass and descend as though he had survived such surviving spouse, or other heir at law, legatee, or devisee.---This section shall not apply in the case of wills wherein provision has been made for distribution of property different from the provisions of this section.---”

Since Bertha R. Schuck died one day after the testator, his estate “shall pass and descend as though he had survived” her, unless provision was made in his will for a different distribution of the bequest made to her. Arthur Schuck made no “different provision” for the distribution of Bertha’s bequest and, hence, this bequest must pass and descend as though he had survived her. Weir v. Weir, 2 O. O. (2d) 245, 139 N. E. (2d) 361, 102 Oh Ap 231.

Since, by statute, the bequest to Bertha Schuck must “pass and descend” as though testator had survived her, we must examine the second sentence of §2107.52 R. C., which provides that “if the testator devised a residuary estate - - - to such devisee and relatives of the testator and such devisee leaves no issue, the estate devised shall vest in such other devisees surviving the testator in such proportions as the testamentary share of each devisee in the devised property bears to the total of the shares of all of the surviving devisees, unless a different disposition is made or required by the will.”

If this part of §2107.52 R. C., applies, Erwin Schuck is entitled to the entire residue of the testator’s estate. .

At common law, when a beneficiary in a will predeceased the testator, the bequest to such beneficiary lapsed and the property so bequeathed was distributed as if on intestacy. Underhill on the Law of Wills, 436, Sec. 324; In re: Buell’s Estate, 167 Oreg. 295, 117 Pac. (2d) 832.

Sec. 2107.52 R. C. (formerly §10504-73 GC), limits the application of the common law by preventing lapsing of bequests made to relatives who were dead at the time a will was made or die thereafter, leaving issue surviving the testator.

The provision against lapsing in the second sentence of §2107.52 R. C., when the testator devises a residuary estate to “such devisee and relatives of the testator” is limited to cases in which all of the residuary devisees are relatives of the testator. Heebsch, Exr. v. Lonsway et al., 81 Oh Ap 361.

Until June 18, 1952, we believe it was the law of Ohio, where a testator made disposition of his residuary estate to named persons, who were not all relatives, and one of such residuary beneficiaries predeceased the testator, that the share of such predeceased beneficiary lapsed and descended by operation of law to the next of kin of the testator. See Heebsch, Exr. v. Lonsway et al., supra.

On the last above-mentioned date, the Supreme Court, in the case of Commerce Natl. Bank of Toledo v. Browning et al., 158 Oh St 54, after carefully considering what disposition should be made of lapsed legacies in residuary clauses of wills, held as follows:

“Where a will contains general residuary provisions for disposition of any and all of the testator’s property not disposed of by other provisions of the will, if a bequest or devise of a part of the residue lapses or is otherwise ineffective, the part of the residue, except as provided by statute and in the absence of provisions of the will or surrounding circumstances justifying the conclusion that the testator expressed a different intention, will ordinarily pass under such residuary provisions of the will to any other parties entitled thereunder to portions of the residue, instead of passing as intestate property.”

Applying the law (as established in Bank v. Browning), to the instant case, Erwin Schuck, as the sole remaining residuary beneficiary under Item 4 of the will of Arthur Schuck, deceased, is entitled to the distribution of said decedent’s entire residuary estate.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    COLUMBUS (City), Plaintiff-Appellee, v. WEBSTER, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5984.
    Decided December 9, 1958.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Columbus, for plaintiff-appellee.
    C. William Malone, Columbus, for defendant-appellant.
    (HORNBECK, J, of the Second District, sitting by designation in the. Tenth District.)
   OPINION

Per CURIAM.

This matter comes on for consideration in this court from a decision and judgment of the Court of Common Pleas of Franklin County, Ohio.

It would appear that the defendant was charged in Municipal Court with six separate violations of the parking ordinances of the city, that two of them were nolle prossed and a motion to dismiss sustained in case of a third one, leaving three affidavits upon which the defendant was subsequently found guilty. The several charges in Municipal Court were discussed together in subsequent proceedings and we shall do so in this case.

At the trial, testimony of police officers was presented to show that in the locations and .on the dates in question a vehicle was parked in violation of the ordinance. There was also testimony describing the car by make and year and by license plate with further testimony as to what appeared on the records of the Bureau of Motor Vehicles namely, that the car was registered in the name of the defendant in this case.

The testimony of the officers was, and it was stipulated, that the officers did not know who the driver of the car was in any of the alleged violations in question and it was further stipulated that the defendant was the owner of the motor vehicle in question.

On behalf of the prosecution, reliance was placed on a city ordinance specifying that in a case such as the present one the owner shall be prima facie liable for the violation. This ordinance known as Section 27.334 of the Columbus Municipal Code provides as follows:

“If any vehicle is found upon a street, highway, alley, park or other public grounds of the city in violation of any provision of this chapter, or any ordinance of this city, regulating the stopping or standing or parking of vehicles, and the identity of the .driver cannot be determined, the owner, or person in whose name such vehicle is registered shall be held prima facie responsible for such violation.”

Counsel for defendant attacked the prosecution evidence on the ground of insufficiency and the prosecution relied upon the presumption claimed to have been created by the ordinance just above quoted as supplying the missing element in this case. It was claimed that such ordinance created a rule of evidence curing any deficiency in the proof. The trial court found the defendant guilty and the case was appealed to the Common Pleas Court, where Reynolds, J., rendered a decision sustaining the conviction in the Municipal Court and upholding the validity of the ordinance. The two final paragraphs of the opinion by Judge Reynolds are as follows:

“The rule of evidence, making ownership a prima facie case in case of parking violations, is not only a reasonable but a necessary one to carry out the indispensable police regulations.
“The judgment of the Municipal Court is therefore affirmed and the appeal dismissed at appellant’s costs.”

One of the most recent authorities we have found dealing with the question here involved is 5A American Jurisprudence 1014, Automobiles and Highway Traffic, §1256, Parking Violations, providing as follows:

“Cases involving charges of parking violations present peculiar difficulties as to proof of the person who actually operated the car at the time the violation was committed, since it is impractical to provide sufficient police to wait at each improperly parked vehicle until the operator returns. Recognition of this difficulty has led to judicial approval of a rule established by legislative action that the owner of a car improperly parked may be regarded as at least prima facie responsible for the violation. Thus, in a number of jurisdictions, statutes or ordinances providing that the fact that an automobile was parked in violation of the statute or ordinance may be taken as prima facie evidence that the registered owner of the vehicle was responsible for the violation have been sustained as valid. The conclusion is that there is such a rational connection between the fact in evidence and the conclusion drawn that the presumption thus declared by the legislative body is proper. There is, however, a limitation upon the extent to which the legislature may act in this connection. An ordinance which provided that the registration plate displayed on the. motor vehicle found illegally parked should, standing alone and unexplained,' he deemed sufficient proof that the owner of the vehicle was responsible for the violation, but that if at any hearing or proceeding the owner should testify under oath that he was not so operating the vehicle and submit himself to an examination as to the person who at the time was operating the vehicle and reveal the identity of such person, if known to him, has been held invalid as compelling a person prosecuted to appear in court and be a witness.
“In a few cases it has been held that an inference of the owner’s guilt of a charge of a parking violation is justified even in the absence of a statute or ordinance so providing. Other authority, however, holds that in the absence of legislative action establishing such a rule, it is not proper for the court to establish a presumption of an owner’s guilt of a parking violation merely by proof of the fact that the car was illegally parked.”

It is noted that the author of the foregoing article makes reference repeatedly to an annotation in 49 American Law Reports 2d Series, p. 436. Early in the annotation the writer cites cases arising in eight states upholding the validity of statutes or ordinances such as the one here under consideration. These include California, Illinois, Kentucky, Massachusetts, Michigan, Missouri, North Carolina and Pennsylvania. The annotation at p. 456 reads in part as follows:

“Cases involving charges of parking violations present peculiar difficulties as to proof of the person who actually operated the car at the time the violation was committed, since it is clearly impractical to provide sufficient police to wait at each improperly parked vehicle until the operator returns. Recognition of this difficulty has led to judicial approval of a presumption or inference that the owner of a car improperly parked may be regarded as at least prima facie responsible for the violation.
“Statutes or ordinances in a number of jurisdictions have provided that a showing that an automobile was parked in violation of the statute might be taken as prima facie evidence that the registered owner of the vehicle was responsible for the violation. The courts have usually regarded such provisions as valid.”

It would appear from the foregoing that by the overwhelming weight of authority over the country, this ordinance must be sustained.

We had been referred to two earlier Ohio cases having to do with this problem. We note that in neither one was there an ordinance creating a prima facie case of responsibility upon proof of ownership but that otherwise they are much the same so far as the facts are concerned. Both arose upon appeals from convictions by the Municipal Court of Cincinnati.

In the case of McCarthy v. City of Cincinnati, 27 Ohio Nisi Prius Reports (N. S.) 362, the Hamilton County Common Pleas Court reversed the judgment of the Municipal Court of Cincinnati finding a defendant guilty of a parking violation. The trial court in absence of an ordinance making the owner of the parked car prima facie responsible upon proof of ownership, itself indulged in a presumption that the defendant was responsible for the illegal parking upon proof that the defendant was the owner of the car in question. From the report of a later Common Pleas Court case, which makes reference to the McCarthy case, supra, we learn that the McCarthy case, supra, was affirmed by the Court of Appeals of Hamilton County in an unreported opinion dated December 11, 1929. (See Burke v. Cincinnati, 27 Ohio Nisi Prius Reports (N. S.) 589 at page 591.)

The other Ohio decision which has been called to our attention is Burke v. Cincinnati, supra, which arrived at a contrary conclusion from that of the McCarthy case, supra. The trial court in the Burke case attempted to distinguish it upon the basis of a stipulation in the case in which the defendant admitted ownership of the motor vehicle in question.

While we are constrained to affirm the judgment of the court below in this case we feel that our holdings should be limited strictly to the facts and questions before us. We further have the feeling that the question arising in the McCarthy case, supra, where the court indulged in a presumption of responsibility and the instant case, where the municipal ordinance established such presumption, both cases involving convictions for violating a parking ordinance and both involving the question of the sufficiency of the evidence, that the judgment upon which we have agreed is in conflict with the judgment upon the same question by the Court of Appeals of Hamilton County in the McCarthy case, supra. We therefore consider the case now before us as a proper case to certify to the Supreme Court of Ohio and upon the request of counsel, if counsel desires, we will transmit the record to the Supreme Court for review and final determination.

For the reasons above set forth we are of the opinion that the ruling of the court below, in light of the overwhelming weight of authority in this country, was correct and that the judgment of such court must be affirmed at the costs of the appellant.

PETREE, PJ, BRYANT and HORNBECK, JJ, concur.


author: By THE COURT: '

text:
    OHIO EDISON COMPANY, Plaintiff-Appellee, v. GANTZ et, Defendants-Appellants.
    Ohio Appeals, Second District, Clark County.
    No. 554.
    Decided August 6, 1958.
    Durfey, Martin, Browne & Hull, Springfield, for plaintiff-appellee.
    George B. Raup, Cole & Cole, Springfield, for defendants-appellants.
   OPINION

By THE COURT: '

Submitted on motion of appellants for rehearing of our denial of their motion for stay of execution.

The rationale of the motion is that there is no obligation on appellee to immediately construct its line across the property of appellants, and therefore, we should exercise our discretion to grant the stay of execution.

We have examined the briefs of the parties and note that counsel are agreeable to another oral presentation of the motion for a stay of execution of judgment. We believe that we fully appreciate the respective contentions and are of opinion that oral presentation will not be helpful to use in deciding the application for rehearing.

Decided October 22, 1958.

In view of the statute, §2709.28 E. C., specific legislation, applying only to appropriation proceedings, we are in doubt if we have the right to stay execution of the order to which the appeal is noted.

If it be conceded that we have such right, we are not satisfied, if appellee should proceed with the installation of its line, that appellants, if eventually they sustain their contentions on the appeal, may not be reimbursed for damages sustained in an amount which will enable them to restore their real property in substantially the same condition as before the appeal.

Under all the facts appearing, we do not find sufficient reason to sustain the application for rehearing. It will be overruled.

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

OHIO EDISON COMPANY, Plaintiff-Appellee, v. GANTZ et, Defendants-Appellants.

No. 555.

OPINION

By THE COURT.

This is an appeal on questions of law from a judgment rendered in favor of the plaintiff-appellee by the Common Pleas Court of Clark County.

This is an appropriation action in which the plaintiff, The Ohio Edison Company, seeks to appropriate an easement 50 feet in width across the land of defendants-appellants for the purpose of constructing an electric transmission line.

The defendants frankly state that they are not interested in the amount of damages awarded for the easement but desire to prevent the plaintiff from appropriating the easement. Consequently, no question is raised relating to the jury trial. The assignments of error relate solely to the preliminary hearing and the finding of the court that a necessity for the appropriation exists.

Appellants assign as error: (1) Failing to dismiss the action on the ground that the Springfield Conservancy District was not made a party defendant; (2) failing to dismiss the action on the ground that plaintiff failed to establish that it was unable to agree with the owners as to compensation to be paid for the easement; (3) that plaintiff failed to establish the necessity for the appropriation; (4) that the record discloses that the appropriation sought is excessive; (5) overruling a motion to vacate trial assignment of this cause, pending the first appeal to this Court; (6) and overruling a motion for new trial. We consider the errors assigned in numerical order.

1. Sec. 2709.06 R. C., provides that the petition in an appropriation proceeding shall contain “The names of all persons having or claiming an interest, legal or equitable, in the property, * * The former engineer of the Springfield Conservancy District testified that it neither had nor claimed an interest in said property. This issue was properly resolved in favor of the plaintiff.

2. There is sufficient evidence from which the court could conclude that the parties were unable to agree as to the amount of compensation to be paid. Moreover, the defendants have,' from the very beginning, opposed the appropriation. We fail to see how the parties could have agreed on the compensation in light of the attitude of the defendants. The law does not require the doing of a vain thing.

3. The “necessity” which plaintiff was required to prove is a “reasonable necessity” rather than an “absolute necessity.” Giesy v. Cincinnati, Wilmington & Zanesville, R. R. Co., 4 Oh St 308, 327; Vol. 19, O. Jur. 2d, Sec. 213, page 636 (cases cited); Jahr, Law of Eminent Domain, Section 31, page 50.

Where two routes are possible, it is discretionary with the appropriating agency to select the route it will follow. Cleveland and P. R. Co., v. East Liverpool, 51 Bull., 599; Cotabish v. Cleveland Electric Illuminating Co., 28 Oh Ap 198, 162 N. E., 457. The defendants contend that a longer and more expensive route for the transmission line is feasible. In Jahr, Law of Eminent Domain, at page 51, the text is as follows:

“The landowner’s objection that some other site would serve just as well is not sustained by the courts for the reason that every other property owner could make the same objection, and if such objection had merit, then the project could never be built and the effect of the statute would become nugatory.”

In Vol. 18, Am. Jur., Sec. 108, page 735, is found this statement:

“A broad discretion is necessarily vested in those to whom the power of eminent domain is delegated, in determining what property is necessary for the public purpose, with respect to the particular route, line, or location of the proposed work or improvement; and the general rule is that the courts will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion. The landowner may not object merely because some other location might have been made or some other property obtained which would have been suitable for the purpose.”

Shepard Paint Co. v. Board of Trustees of the Franklin County Veterans’ Memorial, 88 Oh Ap 319 (Second District Court of Appeals), 100 N. E. (2d), 248 (appeal dismissed by the Supreme Court, 153 Oh St 591, 92 N. E. [2d], 814). The fourth paragraph of the syllabus is as follows:

“The necessity for and extent of property to be taken by eminent domain are questions for legislative determination, and, in the absence of fraud, bad faith or abuse of discretion, such determination will not be disturbed by the courts.”

In Scott v. Fayette County Agricultural Society, 72 Abs 564, 136 N. E. (2d), 85, the Second District Court of Appeals approved and followed the rule stated in the Giesy and Shepard cases, supra.

In the instant case there is no evidence of fraud, bad faith or a gross abuse of discretion in the plaintiff’s choice of a route. There i§ ample evidence supporting the finding of necessity.

4. The evidence does not sufficiently support the defendants’ contentions that the easement was wider than necessary, and therefore excessive. The easement appropriated was 50 feet wide, which, as shown by the evidence, was the minimum width for an easement of this character.

5. The defendants’ contention that the trial court erred in overruling the motion to vacate the trial assignment is without merit. An appeal was taken from the order of the court respecting the matters presented on the preliminary hearing. While the appeal was pending in this Court, the matter was set for trial before a jury for the purpose of awarding damages. No supersedeas bond was given, and, consequently, the appeal did not operate to stay proceedings in the trial court. Moreover, the appeal was dismissed by this Court as being premature.

6. The defendants contend that the court should have sustained their motion for a new trial because of the claimed errors heretofore discussed. The court having resolved all of these matters in favor of the plaintiff, the motion for new trial was properly overruled.

We find no assignment of error supported by the record or prejudicial to the rights of the defendants.

We find reasonable ground for the appeal.

Judgment affirmed.

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


author: By BRYANT, J.

text:
    STATE, ex rel. H. K. PORTER COMPANY, Relator, v. KLAPP et, Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5926.
    Decided October 28, 1958.

      Vorys, Sater, Seymour & Pease, James E. Seymour, of Counsel, for relator.
    William Saxbe, Atty. Geni., John R. Barrett, Brown W. Pettit, Asst. Attys. Geni., Columbus, for respondents.
   OPINION

By BRYANT, J.

This is an action in mandamus brought originally in this court. Relator is the H. K. Porter Company, a corporation organized under the laws of the State of Delaware, and authorized to do business in Ohio. Three of the respondents, Ralph Klapp, Maynard Dickerson and Michael Pavick, are members of the Industrial Commission of Ohio, and the fourth is James L. Young, Administrator of the Bureau of Workmen’s Compensation.

The questions now before the court arise under a general and special demurrer to the petition.

The petition alleges the corporate capacity of relator herein called “Porter,” the official capacity of the three members of the Industrial Commission, herein called “Commission,” and the official status of James L. Young, herein called “Administrator.”

The petition alleges that said Commission pursuant to §4121.131 R. C., is required to fix the rates of premiums paid by employers, determine their contributions, adopt rules, regulations and systems of rating, rate revision and merit rating of employers amenable to Chapter 4123 R. C., dealing with workmen’s compensation.

Porter says that prior to July 31, 1957 it was engaged in the wholesale distribution and warehousing of rubber products in Cincinnati, herein called “Cincinnati Operation,” with an annual payroll of $50,000. Porter further says that prior to said date, the Cleveland Hardware and Forging Company, an Ohio corporation, herein called “Cleveland Company,” operated a factory for the manufacture of hardware goods in Cleveland, herein called “Cleveland Operation,” with an annual payroll of $2,000,000.

On the said date it is alleged that the Cleveland Company sold and transferred to Porter the entire manufacturing business constituting the Cleveland operation and that since that time Porter has continued the operation thereof without change in personnel, facilities or location.

The petition makes reference to the provisions of §§4123.34 (C) and 4123.31 R. C., which have to do with rating systems for merit or individual rating. It is the claim of Porter that under said sections said commission is required to adopt a system for merit rating or individual rating of employers amenable under the act which will equitably rate the several risks, based in part upon individual accident experience, will encourage and stimulate accident prevention and will conserve the basic principles of workmen’s compensation insurance.

Porter alleges that prior to July 31, 1957 the Cleveland operation was carried on the records of the said commission as risk No. 1305 and that prior to said date the Cincinnati operation was carried on the records of the said commission as risk No. 161,569.

Porter alleges that the commission has adopted rules and regulations by which the several classes and types of employers and occupations are classified into groups and upon the basis of accident losses resulting from claims sustained by all members of a particular group average or basic rates are established and promulgated. Porter further alleges that under the rules and regulations of said commission employers with five years experience may obtain a reduction in the rate of premium paid in the future, if during the five year period, the total of their losses is below the average or expected losses for employers in the same classification. The petition states further in some detail the steps by which employers entitled thereto obtain the so-called merit ratings.

Porter alleges that during the five years prior to July 1, 1957 as a result of its Cincinnati operation, accident and occupational disease losses for said five years totalled $85 while expected or average losses of like employers for said five years for pay rolls of like size as that of Porter was $1,294. Porter alleges this established a ratio of 6.8% between the actual and expected losses of the Cincinnati operation and that the small amount of accident and occupational disease claims except for the small size of the Cincinnati operation, would have entitled it to a merit credit of 93%, but due solely to the small size of the Cincinnati operation this credit was reduced to 3%.

Porter alleges that the Cleveland Company during the five year period prior to July 31, 1957 in connection with the Cleveland operation sustained losses due to accident and occupational disease totalling $42,387 and that for said period the expected or average losses of like employers of comparable size totalled $83,962. Porter alleges that this favorable loss experience compared with expected losses was at the rate of 49.9% and that under the merit rating system adopted by the commission, the Cleveland operation was entitled to a merit credit rating of 45%.

Porter alleges that as a part- of the sale of the hardware manufacturing business of the Cleveland Company to Porter the former agreed to transfer to Porter its workmen’s compensation account together with its merit rating accident cost experience. Porter alleges the two corporations joined in an application of said commission for such a transfer and that Porter stated that it would conduct the Cleveland operation in the same maner as conducted by the Cleveland Company without change in management, personnel, methods or processes, building plant, equipment production or business. Porter says the said application to transfer was approved by said commission and that the commission ordered the merger effective July 31, 1957 of said risk No. 1305 and risk No. 161,569 and that said commission directed that the workmen’s compensation insurance coverage for the combined operation be continued under risk No. 161,569 in the name of Porter.

Porter says respondents have refused, in establishing the rate for the combined operation, to allow any credit for the 46% credit developed by the hardware manufacturing business and have allowed only 3% credit for the 93% favorable experience for the rubber products business and have established a premium for the year July l, 1957 at the rate of $1.37 per one hundred dollars of pay roll, which is the basic rate with a merit credit rating of 3%.

Porter says that respondents, using the new higher premium rate demanded $10,692.43, with respect to the hardware manufacturing business pay roll for the period from July 1, 1957 to December 31, 1957 and threatened to cancel relator’s insurance coverage unless this amount was paid under which threat relator paid said amount under protest.

Porter says if the 46% merit rating credit to which the Cleveland operation allegedly was entitled had been applied to the hardware manufacturing business premium' it would have produced a premium rate of 76c per one hundred dollars of pay roll and the premium for the period from July 1, 1957 to December 31, 1957 would have been $5,931.58.

Porter complains not only of this alleged overcharge of $4,760.85 but further states that unless otherwise ordered by this court, it will be required to pay premiums for the next four and one-half years at the basic rate without any reduction based on accident and occupational disease experience.

Porter says that the annual premium for the Cleveland operation will amount to approximately $22,000 a year, whereas according to Porter’s figures the premium should total approximately $12,000 a year.

The result complained of arises, it is alleged, by virtue of Rule n of the General Rating Rules adopted by the Bureau of Workmen’s Compensation and the Industrial Commission of Ohio effective July 1, 1957. The said Rule II is set forth in the petition of relator as follows:

“The basic or manual rate is hereby defined as the rate printed in the Manual Table of basic premium rates and is expressed as the unit of premium per $100 of payroll for accident and disease coverage.
“Where one legal entity immediately and wholly succeeds another in the operation of a business, and the succeeding operator is without coverage, and the operations succeeded to constitute all of the operations of the succeeding entity, he or it may be given the predecessor’s merit rating experience, provided the former and succeeding entity mutually agree to a transfer of the former operator’s insurance, rate and premium obligation, if any. Otherwise the succeeding operator shall apply for new coverage.
“When a succeeding operator has coverage and at the time of the transfer is being merit rated thereon, such experience rating alone shall be applicable to such operator except when the transfer involves a merger or consolidation of a parent company and one or more wholly owned subsidiary companies. In such case, and under such circumstances, the experience of all consolidated companies shall be combined for merit rating purposes.
“When an employer fails to qualify for experience rating as provided in Rule III, he shall be rated at the basic rate.”

Applied to the facts as they exist in this case it would appear that the merit rate of relator for its Cincinnati operation “alone shall be applicable to such operator.” Relator does not complain that he is treated differently from others or that the rule is wrongly construed but urges that it is invalid and illegal. He further says that it fails to safeguard the workmen’s compensation fund, is unjust, fails to encourage accident prevention and that its adoption was an abuse of discretion. The prayer of the petition is as follows:

“WHEREFORE, relator prays that this court issue a writ of mandamus to Respondents ordering Respondents to fix the premium rate of relator’s Risk No. 161569 on hardware manufacturing business for the year July 1, 1957 to July 1, 1958 at 76c per $100 of pay-roll and to refund to relator the sum of $4,760.85 covering excessive payments required by Respondents for the period July 1, 1957 to December 31, 1957 and to use the combined accident and occupational disease experience of Risk No. 1305 and Risk No. 161569 in fixing the premium rates for all periods after July 1, 1958 during which the accident and occupational disease experience prior to July 1, 1957 are used.”

As previously stated this is an action in mandamus filed originally in this court and the ground of the special demurrer is that this court lacks original jurisdiction of the subject of the action. The jurisdiction of this court to maintain original proceedings in mandamus arises not by virtue of statute but is conferred directly by the Ohio Constitution, Article IY, Section 6, which so far as here applicable provides as follows:

“The courts of appeal shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition, and procedendo * *

In the brief in support of the special demurrer it would appear that respondents believe the relief sought is essentially injunctive in character and hence because this court does not have original jurisdiction in equitable proceedings or proceedings having for their main purpose an injunction, that the' court lacks original jurisdiction in this case.

Respondents also urge at page six of their brief that “relator has an adequate remedy by way of injunctive relief in equity.” Relator in opposing this argument calls attention to §4123.21 R. C., which provides in part as follows:

“No injunction shall issue suspending or restraining any order, classification, or rate adopted by the industrial commission, * *

We agree in part with the contention of relator that within the express terms set forth in §4123.21, supra, R. C., no injunction may be issued and hence to that extent an equitable proceeding will not lie. In our opinion the petition is drawn as an action in mandamus and this court has clear authority to entertain and decide proper original actions in mandamus.

In our opinion the special demurrer is not well taken and must be overruled.

That leaves the question whether the petition states facts which constitute a cause of action. It appears to be well settled that where the action to be directed or controlled is within the discretion of such official, mandamus cannot be used to control such discretion. Mandamus, of course, may be used to require the exercise of discretion but it is not claimed here that the commission has failed to act. In 25 O. Jur. 1003, Mandamus, Section 28, it is said:

“It is well settled that the lawful discretion vested in an individual, officer, or corporation cannot be destroyed, controlled, or limited by the writ of mandamus. * * *.”

In 34 American Jurisprudence 856, Mandamus, Section 68, it is said:

“While, in matters involving official discretion, mandamus may be resorted to for the purpose of compelling the exercise thereof, the use of the writ will not ordinarily be extended beyond that, so as to interfere with the manner in which the discretion shall be exercised or to influence or coerce a particular determination. As generally stated, writs of mandamus will not issue to control the exercise of official discretion or judgment or to alter or review action taken in the proper exercise of such discretion or judgment, for the writ cannot be used as a writ of error or other mode of direct review.”

We have examined a number of the statutory provisions having, to do with workmen’s compensation fund classifications, premium merit rating and related topics and we conclude that many matters and the selection of various methods have been left to the sound discretion and good judgment of the commission. In the matter of fixing and maintaining premium rates there are a number, of relevant sections, one being §4123.34 R. C., in which the General Assembly expressly recognizes that the commission may exercise discretion. The first sentence of §4123.34 supra, R. C., is as follows:

“The industrial commission, in the exercise of the powers and discretion conferred upon it in §§4123.29 and 4123.31 R. C., shall fix and maintain, for each class of occupation, or industry, the lowest possible rates of premium consistent with the maintenance of a solvent state insurance fund and the creation and maintenance of a reasonable surplus, after the payment of legitimate claims for injury and death that it may authorize to be paid from the state insurance fund for the benefit of injured and the dependents of killed employees.” (Emphasis added.)

In §4123.29 R. C., reference is made to “the opinion” of said commission, the second sentence thereof reading as follows:

“Where the payroll cannot be obtained or, in the opinion of the commission, is not an adequate measure for determining the premium to be paid for the degree of hazard, the commission may determine the rates of premium upon such other basis, * * (Emphasis added.)

Again in determining the form of rating system to be used, the commission is expressly authorized to use its judgment in fixing and determining the merit rating system to be used under §4123.31 R. C., providing in part as follows:

“The commission may apply that form of rating system, which, in its judgment, is best calculated to merit rate or individually rate the risk most equitably, predicated upon the basis of its individual occupational disease experience after January 1, 1942, and encourage and stimulate the prevention of occupational diseases.” (Emphasis added.)

It may well be that the merit rating system favored by relator has much to recommend it. There is a substantial difference between a rate of 76c per one hundred dollars and $1.37 per one hundred dollars. The amounts involved are quite substantial and understandable and the subject of concern to relator.

The trouble is that relator is asking this court either to adopt a new Rule II, or to amend the one already in force. This, of course, is not the function of mandamus and this court has no power to make such an order.

The General Assembly has expressly given to said commission the right to exercise its good judgment or sound discretion in drafting its rules and said commission has exercised that discretion. It is claimed that its action in this case amounts to an abuse of discretion but with that we cannot agree.

In our judgment, therefore, the second ground of the demurrer is well taken, the petition seeks to control the exercise of discretion lawfully vested in the commission and for that reason said general demurrer must be sustained.

PETREE, PJ, MILLER, J, concur.


text:
    JEFFREY MANUFACTURING COMPANY, Appellant, v. BOWERS, Tax Commissioner, Appellee.
    The Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 33978.
    Decided August 26, 1957.
    David Young, Columbus, for appellant.
    William Saxbe, Atty. Geni., by Chester H. Hummell, Asst. Atty. Geni., for appellee.
   OPINION

Appellant appeals from a sales tax assessment order made by the tax commissioner on a single item of equipment purchased and claimed to be used by it directly in the manufacture of its product. The order bears date of March 13, 1957. The amount thereof is $129.00 with a penalty of $19.35 contingent upon date of payment.

The cause now comes on for further and final consideration upon the notice of appeal, the commissioner’s final order and transcript, the record of a hearing had before this board on July 8, 1957, and briefs of counsel.

The assessee company at Columbus, Ohio, among other things, manufactures sand handling equipment for use in foundries. Its function is to pick up molding sand from hoppers, mix it and transport it eventually into hoppers for use in the making of molds. It then reclaims the sand after use and the cycle is repeated. This equipment is made and sold in units. These units are bulkly and of heavy construction. When set up and in use they operate as a single unit. It is practically impossible to set up these units in the appellant’s plant and then move them to the customer’s plant due to their size and weight. When sold to a foundry consumer the contract of sale specifies that they, Jeffreys, are to set the units up in the purchaser’s plant ready for and capable of immediate operation. All that the consumer does in the process of installation is put in the foundations with anchor bolts for the respective units. As units are manufactured they are loaded uncrated into gondola railroad cars and transported to the foundry. Appellant consigns the goods to itself at purchaser’s plant. Along with unit shipments go sub-assemblies, miscellaneous steel, bolts and nuts, sprockets, shafts, pullies, chain guards, pillow blocks, bearings, chain and various other like items necessary to assemble and join the units into a complete operating unit. Some of these small items are put in containers for ease of handling and to prevent loss. The joinder is made by bolts and nuts and welding. The equipment is unloaded at destination in the consumer’s yard.

From this point on appellant found it necessary to have some sort of heavy duty power equipment for loading these units upon wagons to convey them to their places of installation and then to unload them and place them in proper position and hold them so while joinder of the units is made. This necessity caused the purchase of the assessed implement, a Daybrook Wayside Loader, which is a hydraulic jack with a 32-foot boom, capable of lifting 4,000 pounds. It is mounted on a 2-ton Buick truck which is driven from Columbus to the place of installation. Since its purchase it has been so operated on four installation jobs-. It performs no other plant function. Appellant, speaking in its brief of the use to which the loader hoist is put, says that “the appellant’s activity is limited to the assembly of the parts and components making up equipment ordered by the customer.”

The question comes: Is all that is done in the customer’s plant simply an assembly job of completely manufactured products, or is it the final step in the manufacturing process of the equipment sold? Although the amount of the assessment is relatively small, the principle involved is of considerable moment to those engaged in the sale and installation of like heavy and cumbersome articles such as large printing presses, stamping outfits, cold storage units and like equipment, which can hardly be fully assembled and thereafter transported, and is only operable when set up as a complete unit.

From the facts shown it appears that the assessed hydraulic jack has two functions — transportation and the placing and holding of units in position until they can be bolted or welded together. Our attention is first drawn to what is said in Tri-State Asphalt Corp. v. Glander, 152 Oh St 497, 41 O. O. 40.

“The distinction which this court has logically drawn in reference to transportation instrumentalities is that if such instrumentalities are used solely to transport materials to the point of processing, or to transport them from the place of processing after that has been fully completed, they are not used directly in the production of the processed property, whereas if such instrumentalities are used solely to transport partially processed materials to another location where the processing is continued or completed by the same processor, they are used directly in the production of the processed property.”

In the Tri-State case, supra, at page 503, the court makes this comment concerning France Co. v. Evatt, 143 Oh St 455, 28 O. O. 381.

“It is true that the property the sales of which were found excepted from taxation in the France case were instrumentalities of transportation which, after stone had been quarried, removed the screened stone to the yards of the processor, but the majority opinion was to the effect that after the transportation of the screened stone something further had to be done to it before it was fully processed for sale. In other words, the material partially processed was transported to another location where further processing was required, and, as a result, the instrumentality of transportation was used directly in the production of tangible personal property for sale by processing.”

Although the court deals with processing in both of these cases, we think that what is said and held therein is equally applicable where manufacturing is involved. It will be noted that in both of these cases an interval occurs between the principal processing and completion of the act of processing, by the same processor, at a different location. The board considers that the element of time and distance between the two points, the appellant’s factory and the consumer’s foundry, is of little or no moment in the present instance. To make its equipment operable it was necessary that Jeffreys do certain work within the consumer’s plant. It must join its units together by bolting or welding them in position as a single operating implement before it or they were capable of performing the function for which they were created. To accomplish that end it transported the assessed hoist to the installation site. It also took some of its skilled factory workers to that site. It hired such local labor to assist its employees as the law of the consumer’s domicile required. It paid all such costs of labor and material necessary in installation. This was the only way, economically and feasibly possible, for it to complete its contract of sale. It is in effect as if the consumer had said to appellant, “You may use our foundry space as if it were a part of your own factory in which to complete your product sold to us.”

It is the judgment of the board of tax appeals that the assessed implement is both directly and primarily used by appellant in its manufacturing process, and is, therefore, not subject to and is exempt from sales taxation. The assessment order made and complained of must be, and is hereby reversed.


author: By ALEXANDER, J.

text:
    STATE, Plaintiff v. CRARY, Defendant.
    Common Pleas Court, Lucas County.
    No. 53269.
    Decided January 6, 1959.
    Anthony G. Pizza, for state.
    Roi Becker, for defendant.
   OPINION

By ALEXANDER, J.

The affidavit charges that defendant, a drug store proprietor, in violation of §2151.41 R. C., “unlawfully acted in a way tending to cause the delinquency” of a 14-year-old boy by selling him a magazine containing “obscene, lewd and lascivious pictures” and “stories of immoral deeds and lust.”

The defendant entered a plea of not guilty. Upon the trial the evidence was undisputed that defendant did sell the boy one magazine named in the affidavit. It would appear at first blush that defendant’s fate hangs on the nature of the pictures and reading matter therein.

In our opinion, very few people, old or young, upon examining the exhibit would find the reading matter worse than crude, tiresome, and in spots vulgar. No bad words appear. One highly improbable story could be suggestive to some; but nothing happens and it is innocent as a lamb compared to some of our modern best-sellers and many of our classics.

The pictures, in our opinion, are in exceedingly bad taste. They mostly depict females “as nude as the law allows.” The poses are frequently awkward or grotesque. There is no complete nudity; all strategic points are covered or hidden. Except for some pathologically tumescent bosoms, the nudity on view in the pictures is no more revolting, pleasing, disgusting, alluring, depraving, delighting, demoralizing, or what you wish, than the nudity on view in the flesh on our respectable stages, or at our beaches and swimming pools; or displayed by advertisers in various media, or flaunted on the pages of highly respected national magazines.

The prosecuting attorney in his brief for the state reminds us that §2905.34 R. C., makes it a crime to possess or sell matter that is “obscene, lewd, lascivious,” etc. Most cities have ordinances of similar tenor. Violations of these laws are normally prosecuted in municipal, police or magistrates’ courts. We find no Ohio case where a juvenile court has been called upon to apply such a law.

But in any court it is hard to know what is or is not obscene, etc. Clergy, censors, courts, legislators, publishers, producers, readers, viewers, all are apt to hold different views or the same views in differing degrees.

Rev. Harold C. Gardiner, S. J., in his new book: “Catholic Viewpoint on Censorship” realizes that nudity may not be obscene in itself. He would define obscenity as “the intrinsic tendency or bent of the work to arouse sexual passion, or, to put it more concretely, the motions of the genital apparatus which are preparatory to the complete act of sexual union.”

The Supreme Court of the United States in its latest bout with the problem was unable to reach complete agreement: Roth v. U. S., 354 U. S. 476 (1957). In the majority opinion by Mr. Justice Brennan we read (p. 487): “Obscene ' material is material which deals with sex in a manner appealing to prurient interest.” A footnote explains: “I. e., material having a tendency to excite lustful thoughts.” Chief Justice Warren concurred but wrote his own opinion. There were three dissents. Mr. Justice Harlan, in his dissenting opinion (p. 499) quoted from tenative draft No. 6 of the Model Penal Code prepared by the American Law Institute: “A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest. . . .” He then quotes from the comment of the ALI scholars:

“We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehavior, raises the most acute constitutional as well as practical difficulties. We likewise reject the common definition of obscene as that which ‘tends to corrupt or debase.’ If this means anything different from tendency to arouse lustful thought and desire, it suggests that change of character or actual misbehavior follows from contact with obscenity. Evidence of such consequences is lacking. . . .”
“All the attempted definitions thus far advanced (even the 156 page essay by Blackstone)” says James M. Smith in the DAILY HERALD of Brown University (Mar. 13, 1958,) “have suffered from the more or less fatal defect of being more obscure than the term itself (is ‘lurid,’ ‘lascivious,’ ‘indecent,’ or even ‘prurient’ clearer than ‘obscene’?).”

When so very many wiser heads than ours after so very many years find themselves in honest disagreement as to what constitutes obscenity, we hardly feel called upon to attempt a home-made definition of our own, nor yet to choose among the many variations available to us.

If the exhibit in the present case could be submitted to a jury it is likely some members might say the pictures were obscene or prurient or something; others might find just the opposite. If we had to decide this issue we would be unable to find beyond a reasonable doubt that the pictures fall within the purview of our state law against obscenity, or are such as it is intended to proscribe.

But we don’t believe we have to decide this issue. As stated above this defendant is charged not with “contributing to delinquency,” nor with “selling obscene material” but with “acting in a way tending to cause the delinquency” of a certain boy.

The classic example of a contributor to delinquency is, of course, Fagin. Yet he could not be said to have contributed to the delinquency of Oliver Twist (whom he taught to steal) unless and until Oliver stole something. But all the time he was teaching Oliver no one could deny he .was acting in a way tending to cause Oliver’s delinquency.

On the other hand, could any one contend that a parent acted in a way tending to cause his adolescent child’s delinquency by taking him to a Broadway “musical” or by leaving a copy of a leading national magazine where the child could turn the pages and see some nude pictures?

In 1939 a learned lawyer-penologist at a meeting of the American Prison Association commented (not for publication): “Under that statute you could convict a drunk for staggering out of a saloon so that a passing child could see his condition and go imitate him.” This attempted reductio ab afesurdum overlooks two facts: such a reaction is an extremely remote possibility and far from a reasonable certainty; moreover, it is just as possible that the child would be so frightened by the spectacle that he would resolve never to take a drink.

When the phrase “acting in a way tending to cause delinquency” was interpolated in the existing statute governing contributing to delinquency in 1913, 103 Session Laws 873, it was intended as a preventive measure. It would lock the barn before the horse was stolen. It would put Fagin out of business even if his pupils hadn’t stolen a thing. It aimed to forestall delinquency before it occurred. \

The difference was recognized between something which had already caused a child to commit an overt delinquent act, and an act or course of action calculated to cause a child to commit a delinquent act in the future. The former was a fait accompli; the child had committed the offense and if it was possible to trace its causation wholly or partially back to specific conduct on the part of an adult, the adult was to be punished therefor.

Apparently the trouble with the law was that the horse had to be stolen before the barn could be locked. The law must be broadened to help forestall juvenile delinquency. But as a preventive measure no legislator could conceivably be expected to anticipate all the acts that could reasonably be expected to cause the delinquency of any given juvenile. More than likely that is the reason the legislature adopted the simple, non-technical language “acting in a way tending to cause.”

Ever since the enactment of this clause the juvenile court judges of Ohio have realized the tremendous responsibility imposed upon them by the very breadth of this language. Consequently in all the 45 years since its enactment we do not find one reported case in which a juvenile court judge has been accused of misapplying the law in discharge of the frightening duty to determine under the facts before him exactly what does “tend to cause delinquency” in the particular boy before him.

This language is not as precise as some might desire. Still, it seems to have been found precise enough. It is no more unprecise than the common concept of negligence. At any rate the law has proven workable and practicable, and nobody to date has offered a superior substitute to accomplish its laudable aim. To quote again from the opinion in the Roth case, supra (p. 491):

“. . . This Court, however, has consistently held that lack of precision is not itself offensive to the requirement of due process. ‘. . . (T)he Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . .’ United States v. Petrillo, 332 U. S. 1, 7-8.......That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . . (Citing cases.)

The U. S. Supreme Court has considered and rejected the application of the Holmesian test of “clear and present danger” in respect of the effect of questioned material in determining whether such material is obscene. Yet that test seems hardly more rigid or difficult to apply than the self-imposed judicial restraint of Ohio’s juvenile courts in determining what constitutes “acting in a way.”

Apparently the judges have not forgotten that they are dealing with a criminal statute and that it must be strictly construed. No defendant may be deprived of life, liberty or property for doing something which might just possibly sometime, somewhere lead to some child’s becoming delinquent. Possibility must give way to comparative if not absolute certainty. The delinquency which the law is trying to prevent must be fairly imminent, a reasonably certain result of the act complained of, reasonably sure to befall a certain child in a reasonable time. That seems to be the way the courts have been applying this statute. Apparently they have held that a single act or even a course of action which is merely likely or apt or liable to lead to a given child’s overt act of delinquency is too remote a causative factor to warrant depriving a citizen of his liberty. Unless the causal connection be clear and a delinquent act be reasonably sure to follow, the judges refuse to be convinced beyond a reasonable doubt that the act complained of “tends to cause” the delinquency of the child.

Since the present prosecution is solely for “acting in a way tending to cause,” there is, of course, no evidence that the boy has committed any- delinquent act; nor even that his thoughts have been affected or that he has indulged in any sexual fantasy as a result of looking at the nude pictures. Sven if the latter were the case, that would not constitute legal delinquency, nor would it be evidence of imminent delinquency, To constitute delinquency there must be more than lustful thoughts or sexual fantasies or prurience; there must be overt delinquent behavior.

In the spring of 1958 the Psychology Department of Brown University made a study of the possible influence of salacious material on behavior. In their report (BROWN DAILY HERALD, May 13, 1958) they point out that (p. 8):

“. . . there is some evidence that delinquent behavior is actually lessened by ‘bad’ reading, etc. The general idea is that unacceptable impulses which can gain expression through our fantasy activities will not need to be expressed in unacceptable actions. Among those who have expressed such a view in the case of adults is Dr. Benjamin Karpman who has concluded that ‘contrary to popular misconception, people who read salacious literature are less likely to become sexual offenders than those who do not, for the reason that such reading often neutralizes what aberrant sexual interests they may have.’ ”

The report concludes:

“In summary, then, as psychologists, we assert that there is no reliable evidence that reading or other fantasy activities lead to anti-social behavior. There is evidence that such reading or fantasy activity is not an important contributor to delinquent behavior.”

This coincides pretty well with the conclusions of the legal scholars of the American Law Institute quoted above.

(For a recent discussion of U. S. Supreme Court cases on “obscenity,” which incidentally point up similarities and differences between laws proscribing “obscenity” and the “tending to cause delinquency” statute, see The “Comstock Load” — Obscenity and the Law, by Prof. Henry H. Foster, University of Pittsburgh Law School, in The Journal of Criminal Law, Criminology and Police Science, Vol. 48, No. 3, October, 1957.)

In view of the premises, we find the defendant not guilty of acting in a way tending to cause the delinquency of the boy named. Defendant discharged; bond released.