author: By HURD, J:

text:
    TIPLING, Plaintiff-Appellee, v. RANDALL PARK HOLDING COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22297.
    Decided June 30, 1952.

      Kuth & Meyers, Cleveland, for plaintiff-appellee.
    Ray T. Miller, Cleveland, for defendant-appellant.
   OPINION

By HURD, J:

This case comes before this court at this time on a motion to dismiss the appeal, on the ground that there is no final order or order in a special proceeding from which an appeal can be taken.

The notice of appeal, so far as pertinent, reads:

“Defendant appellant * * * appeals on questions of law * * * from a judgment and decree of the common pleas court whereby said * * * court granted plaintiff appellee a restraining order enjoining defendant appellant from trespassing upon, using, occupying or otherwise molesting plaintiff appellee’s property.”

While the notice of appeal does not so state, the appeal is from an allowance of a restraining order issued pendente iite. Upon a liberal interpretation of the record, it may also be considered as an appeal from a later order overruling a motion to dissolve a temporary restraining order.

The action is predicated upon rights claimed under a long term lease of a parcel of land located near Randall Race Track. For a full understanding of the issues involved it is necessary to set forth the prayer of the petition which is as follows:

“Plaintiff prays that during the pendency of this action the defendants, and each of them, their agents, representatives and employees, be severally restrained from entering upon, using or occupying the land so devised to plaintiff by the lease indenture recorded in Volume 180, page 354 of the Lease Records of Cuyahoga County; that upon the failure or refusal of defendants to deliver to plaintiff a properly executed lease for premises as herein described, said restraining order be made permanent so long as the land adjacent to the demised premises is used for racing purposes; that defendants, according to their respective rights and interests in the land commonly known as Randall Race Track, be required to duly execute and deliver to plaintiff a properly executed lease of an acre of land similarly located, to the demised premises acceptable to plaintiff, all as in said lease provided, with a foundation and floor of the size, type and material as herein-before described, installed thereon, that upon the failure or refusal of said defendants to restore the foundation and floor upon the demised premises or deliver an executed lease to other property as aforesaid, the plaintiff be awarded such other and further relief, both legal and equitable, as the plaintiff may be entitled to and the court can give, with his costs.”

While there is a prayer in the alternative, the principal relief sought is that plaintiff’s rights ultimately be established upon final adjudication by making permanent the temporary order heretofore granted by the trial court.

In our opinion, the appeal from the temporary order should be dismissed on the authority of May Co. v. Bailey Co., 81 Oh St 471, and Jones v. Bank, 123 Oh St 642. The syllabus of May Co. v. Bailey Co. reads:

“An order of the court of common pleas granting á temporary injunction in a suit in which the ultimate relief sought is an injunction, is not either a judgment or a final order which may be reviewed by the circuit court on petition in error.”

Commenting upon an analogous situation, the court at page 473, states:

“There was no occasion for dividing up the case, leaving a part of it in the court of Common Pleas, while a part of it was taken to the circuit court. The questions involved in the allowance of the temporary injunction were not different from those which would be involved in a consideration of the final judgment, and the case should have been disposed of wholly in the court of common pleas, before a resort was had to the jurisdiction of the circuit court * * *.”

In the case of Jones v. Bank, supra, the law of the case as stated in the syllabus is:

“An order of the court of common pleas overruling a motion to vacate a temporary injunction in a suit in which the ultimate relief sought is an injunction, is neither a judgment nor a final order which may be reviewed by the Court of Appeals on a petition in error. (May Co. v. Bailey Co., 81 Oh St 471, 91 N. E. 183, approved and followed.)”

Appellants have cited and quoted in part from the cases of Hersch v. Home Savings & Loan Co. et al, 59 Oh Ap 145 (1938) and Black v. Polling (1943) 66 N. E. 2d, 781, and Wioland v. Mayflower Motors, 80 Oh Ap 310.

We have examined these authorities and find them inapplicable to the issues here presented. In the cases of Hersch v. Home Savings & Loan Co. and Wioland v. Mayflower Motors, the appeals were from orders granting motions to dissolve temporary restraining orders, just the reverse of the propositions here presented, and by clear implication an affirmance of the proposition that the overruling of a motion to dissolve a temporary order is not a final order where the principal and ultimate relief sought is a permanent injunction. The case of Black v. Polling was an action involving rights to proceeds from a life insurance policy growing out of a divorce suit, where the matter was submitted on a motion to vacate only. In any event, the reviewing court affirmed the judgment of the trial court in overruling the motion to dissolve the temporary order. However, there is little analogy factually to the instant case and it cannot be considered either as authoritative or persuasive in view of the holdings of the supreme court herein, in the cases hereinbefore cited.

In conclusion, it may be stated that the situation here presented as to law and fact is precisely the same as that presented in Jones v. Bank, supra, where at page 643 the court states:

“The Court of Appeals, on motion of the bank, dismissed the case for want of jurisdiction, holding that the action of the trial court in overruling the motion to dissolve the temporary injunction was an interlocutory order only, and in no sense such final order as might be reviewed in the Court of Appeals on error prior to the decision by the trial court of the case on its merits and thereupon the defendants prosecuted error to this court.
“There is but a single issue in the case, and that is whether the overruling of the motion to dissolve the injunction was an order with respect to which the defendants might rightfully prosecute error to the Court of Appeals.”

The Supreme Court, in affirming the judgment of the Court of Appeals in dismissing the petition in error, approved and followed May Co. v. Bailey Co. supra. These authorities must be followed by this court in considering the merits of the issues presented in the motion to dismiss. When this case is tried on the merits, the matters here complained of will be subject to review at the instance of any aggrieved party. In the meantime, no injustice is done and the rights of all parties are preserved by holding the matters in dispute in statu quo pendente lite.

For the reasons stated, the motion to dismiss the appeal is granted. Exceptions allowed. Order see journal.

SKEEL, PJ, THOMPSON, J, concur.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    THOMAS, Plaintiff-Appellant, v. MERCHANTS NATIONAL BANK, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2149.
    Decided January 16, 1952.

      Mason Douglass, Dayton, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Warren A. Ferguson, of Counsel, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

This is a law appeal from a judgment for the defendant entered upon a directed verdict of a jury at the conclusion of plaintiff’s case. Plaintiff’s action was for damages for personal injuries sustained when she fell on a floor of the place of business of the defendant bank.

The facts essential to an appreciation of the errors assigned are that plaintiff, a depositor of the defendant bank, entered the lobby of the banking offices on the morning of January 29,1950, for the purpose of making a deposit. The bank building on the south side of East Third Street, Dayton, Ohio, is entered by a vestibule to the lobby to the right and left of which were elevated areas. The left upper area, as you enter, was occupied by offices. The right upper area, about 12 feet long and 14 feet deep was reserved for the accommodation of patrons of the bank. A table was in the center of this area and a davenport at the south side thereof. Each elevated floor was reached by a step 5 inches high extending the full length of the front of the areas and along the lobby. There was a balustrade along the left upper level but none on the right. Simply stated, the upper waiting room to the right was reached by a step 5 inches high and 12 feet long along side the main aisle of the bank. The plaintiff had not been onto this elevated portion of the banking quarters before the day of her accident and had come there, sat down and prepared to make her deposit. She was in no hurry and waited for several minutes before stepping into the main aisle. She testifies that it was slushy out side but that the galoshes which she wore were dry; that the elevated area and the lobby immediately adjacent thereto were wet and slippery. The extent to which the moisture covered the floor does not appear. The surface of the elevated floor was of cork composition up to within 4 inches of the edge thereof adjacent to the lobby which edge was of marble as was the lobby floor. As plaintiff left the elevated area she slipped on the edge of its flooring at the step and onto the edge of the lobby floor, fell and was seriously injured. Plaintiff alleges that the defendant was negligent, proximately causing her injuries, in four particulars.

(1) In failing to maintain proper steps to afford safe descent from the upper level to the lower level.

(2) Failing to maintain a balustrade, or rail, separating the said two levels so that the bank customers would thereby be apprised of the exact division line between the said levels, and be thereby, assisted.

(3) Failing to establish any demarcation between the two levels, either by color distinctions, or by other distinctive characteristics.

(4) Negligently permitting particles of slush, consisting of melting snow, to be on said floor at said point, at said time, and by said neglect, make said area slippery for use, and that defendant knew that, due to the identical appearance in the texture of the two floor levels, and the lack of steps, and a rail at said floor levels, passage over the same was dangerous, particularly when said floor was wet, but, nevertheless, permitted the said conditions to obtain without warning to the plaintiff.

The answer of the defendant was after certain formal admissions a general denial of the averments of the petition with an averment that plaintiff’s injuries were caused by her own want of care. Plaintiff replied denying any negligence on her part.

At the conclusion of plaintiff’s case, defendant moved for a directed verdict which was sustained by the trial judge upon two propositions.

(1) That no .actionable negligence was established against the defendant and

(2) That if negligence could be found from the record, the plaintiff could not recover because she was contributorily negligent.

We have before us the opinion of Judge Cecil in granting the motion for a directed verdict and are in accord with his action and the reasons stated to support it. We rest our judgment in the main upon his opinion but the assignments of error require some specific consideration.

The argument of appellant is largely directed to the claim that the construction of the floor of the upper level and particularly the edge thereof in its relation to the floor of the lower level, created a dangerous condition when wet. The evidence discloses that the floor of the upper level was uniformly 5 inches higher than the lower level. There is some testimony that the upper level may not have been well lighted, but this was without probative effect as to a dangerous sitúation in view of the admission of the plaintiff that she knew of the step and the relative location of the levels. It is obvious that whatever hazard confronted the plaintiff was in the most favorable light to her, a combination of a wet surface and the type of floor surface. It is contended that the fact that the greater part of the surface of the upper level was of cork composition and the edge of marble made that surface more slippery when wet than if it all had been of cork.

The use in a building of concrete, marble, tile, terazzo, or hardwood floors, even though slippery and smooth, does not of itself constitute negligence. 65 C. J. S. 588. Nor, does a step down or a step up in a public building in and of itself constitute negligence. 65 C. J. S. 585. The only effort made to establish that the type of construction of the upper level was dangerous was by the cross-examination of officers of the bank, Mr. Fox and Mr. Hammond, which we hereinafter discuss.

Assignment of error No. 1 with 16 subdivisions thereof is directed to the exclusion of evidence offered by the plaintiff. We are content to say, without comment, that no error was committed in the rulings which are questioned by assignment 1 (a), (b), (c), (d), (e), cross-examination of Mr. Fox, and (f), (g), cross-examination of Mr. Hammond.

We are of the opinion that the Court erred in refusing to permit answers to the questions set out in assignment of error No. 1 (h), (i), (j), (k), (m), (n), (o), (p).

Question No. 1 (h), (i), (j), sought to elicit from a witness for the plaintiff, Mrs. Conley, her observation prior to the date of plaintiff’s accident of the condition of the floor in the banking lobby when wet as to whether or not it was slippery and she would have testified that it was. This was an essential element of plaintiff’s case. The question in 1 (m) of the witness Hammond was whether or not the area of the floor was slippery when wet. This should have been admitted as should have (n) whether or not the marble flooring was more slippery when wet than was the cork and (o) and (p) whether there was a difference in the texture in the marble and the cork which was noticeable on walking. However, in our view of the whole case as made by the plaintiff and as would have been made, had this testimony been admitted, its denial was not prejudicial. The trial judge on the motion had to accept the proof from plaintiff herself that both upper and lower levels in the area where she fell were wet and slippery.

Assignment 2, “error in excluding evidence” as to the inherent danger in the construction and the changes effected therefrom, not as a matter of repair but because of the inherent and faulty nature and condition obtaining at the time of the accident. This assignment and No. 3 are directed to the refusal of the court to permit any testimony relating to changed conditions in the place where the accident occurred. It is urged by appellant that this testimony if not admissible on the issue of the negligence of the defendant in the construction of the floor was admissible to contradict the contention of the defendant that the condition was beyond remedy and to show that the defendant was in control and that it should have been admitted for these purposes and so limited. Had the trial judge relied upon the failure of the plaintiff to show that the defendant was in control of the place where the fall occurred or that the condition complained of by plaintiff was beyond remedy the refusal to admit the testimony might be prejudicial. He relied upon neither but rested upon the infirmity of the proof of plaintiff as to defendant’s negligence and the suggestion of her own contributory negligence

The weakness of the plaintiff’s case here is that she seeks to recover by reason of a fall which was caused by a condition of which she was cognizant, viz: a wet, slippery floor but there is no showing that the defendant knew of this condition. No witness other than the plaintiff testifies as to the wet and slippery condition of the floors on the day of the accident. There is no proof of any dangerous condition because of specifications of negligence 1, 2, or 3 and it is only in combination with number 4, the moisture on the floor, that any hazard attended the movement of plaintiff.

Much is said in appellant’s brief to the effect that evidence of prior accidents suffered by falls on the slippery marble floors of the bank should have been admitted for the purpose of proving notice to the bank of a dangerous condition but we find no proffer of any such testimony.

Although this case differs in its facts in some particulars from any reported cases from our Supreme Court in material essentials, it may be controlled by Kresge Co. v. Fader, 116 Oh St 718; Boles v. M. W and Company, 153 Oh St 381; and The J. C. Penny Co., Inc. v. Robison, 128 Oh St 626; Herbst v. Y. M. C. A., 57 Abs 87; and from this Court, Lyle, etc. v. Olentangy Corp., 80 Oh Ap 351, 47 Abs 359; Molnar v. Scott-Burr Stores Corp., 33 Abs 142.

There was no sufficient showing of faulty construction resulting in a dangerous situation independent of the slippery condition produced by moisture on the floor even though the testimony refused had been accepted. That the changed conditions make the banking lobby and upper floor safer was not probative of the issue as to the unsafe condition in any of the particulars pleaded.

For a case arising upon facts somewhat similar to those found here wherein it was held that the plaintiff was chargeable with contributory negligence as a matter of law, see Baston v. Western Union Telegraph Co., 75 Fed. Rep. (2d) 154.

We find no prejudicial error established in any of the particulars set forth in the assignments of error.

The judgment will be affirmed.

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


author: By HORNBECK, PJ.

text:
    MERCURIO et, Plaintiffs-Appellees, v. HUGHES & LOOKER et, Defendants-Appellants.
    Ohio Appeals, Second District, Fayette County.
    No. 267.
    Decided November 23, 1951.
    Wiles & Doucher, Columbus, for plaintiffs-appellees.
    Junk & Junk, Washington C. H. for defendants-appellants.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court in favor of plaintiffs against defendants upon a directed verdict against the defendants on their cross-petition at the conclusion of all of the testimony and upon a special verdict in behalf of the plaintiff upon issues joined upon the amended petition and answer.

The petition was for damages sustained by reason of a collision between a truck trailer of the plaintiff, Mercurio, and a motor vehicle of the defendants, on Route 3, in Fayette County. The Mercurio truck was moving in a northerly direction as was the defendants’ motor vehicle. The defendants had placed on their automobile a hammer mill, a mixer and a corn sheller. The defendants’ motor vehicle was moving in its right lane on Route 3 intending to turn into a private driveway on the left or west side of the road. As the driver of the defendants’ motor vehicle was making the turn, the Mercurio truck, which was attempting to pass on the left of the automobile, came into collision with it.

The negligence charged against the defendants was, turning their vehicle without first making sure that the change of direction could be made in safety; in failing to keep a proper lookout; in failing to give a signal before turning their motor vehicle from the path in which they were going, and in failing to yield the right of way. The defendants answered with a general denial and set up a cross-petition alleging that the collision was caused by the sole negligence of the driver of the Mercurio truck without any specific averment of negligence.

After the trial judge had directed a verdict against the defendants on their cross-petition, both Mercurio and defendants tendered special verdicts to be submitted to the jury. Three forms of verdict were submitted and the jury returned the verdict which had been proffered by plaintiffs.

The first error assigned is that the Court erred in directing a verdict against defendants on their cross-petition. Manifectly, the directed verdict was given upon the conclusion that, as a matter of law, the defendants were contributorily negligent in that there was negligence per se in the violation of §6307-38 GC in the failure of the driver of defendants’ motor vehicle to give a signal of his intention to turn left, in sufficient time to give ample warning to the driver of the Mercurio truck, and that such negligence was a proximate cause of the collision.

Upon the most favorable interpretation of the evidence in favor of defendants which was required on the motion for a directed verdict it develops that for some distance before making the turn to move into the private driveway, the defendants’ motor vehicle slowed down and the driver used his brake thereby causing a red flasher light to be displayed in the rear of the motor vehicle. This signal was not directional but merely the stop light which ordinarily appears on motor vehicles. It is conceded by the testimony of the driver of defendants’ motor vehicle and his partner who was riding with him that no arm signal was given of an intention to turn to the left.

Upon the evidence developed there was a violation of §6307-38 GC by the driver of defendants’ motor vehicle and such violation was negligence per se. Dayton v. Stiver, 34 Abs 258, approved and followed.

It is ably argued by counsel for appellants that there was presented a factual issue for the jury to determine whether or not under all the circumstances the stop light was a signal of intention to turn in conformity with the provisions of §6307-38 GC. We concede that the stop light was a signal but it did not comply with all of the requisites of the applicable section because it did not give any indication of an intention to turn to the left. The purpose of the statute is to require the driver who intends to make a turn to the right or left to give a signal which will indicate his intention to turn either right or left. Anything less will not be sufficient, (c) of the section treats of a situation wherein it would be appropriate to use the brake or stop signal, namely, upon a stop or sudden decrease in the speed of the vehicle.

But appellants urge that if it be conceded that the statute was violated there remained the question whether or not such negligence was a proximate cause of the collision which should have been submitted to the jury.

Since the announcement of the opinion of our Supreme Court in Glacso v. Mendelman, 143 Oh St 649, there arises the question whether upon any factual development proximate cause may be determined as a matter of law. Indeed, this case affords considerable support for the proposition that even though negligence clearly appears proximate cause should always be submitted to a jury for determination, although there has been at least one case since the cited case wherein the Supreme Court has held that proximate cause may be determined as a matter of law. However, conceding, but not deciding, that the question of proximate cause should have been submitted to the jury in the first instance the failure to do so could not have been prejudicial because the jury in its special verdict decided the question against the appellants. It may be assumed that the jury would not have held differently on the cross-petition that it did on the amended petition and answer thereto.

The second error assigned is that the special verdict returned by the jury did not include all the issues which the case presented and did not include a finding upon all facts essential to a proper judgment in the case. Citing Wills v. Anchor Cartage & Storage Co., 38 Oh Ap 358, 376; Dowd-Feder Co. v. Schreyer, 134 Oh St 514. It is contended particularly that the special verdict did not determine the question of the contributory negligence of the driver of the Mercurio truck in that it did not make any finding as to the speed of the truck. The defendants pleaded that the sole negligence of the Mercurio truck driver was responsible for the collision and their evidence tended to support their contention of speed by the Mercurio truck that was excessive.

The special verdict returned by the jury found that at the time and place of the collision the Mercurio driver “made an audible signal of his intention to pass defendants’ motor vehicle” and “while it was passing the motor vehicle * * * the defendants turned to the left to go into a private drive or roadway without first having given appropriate signal of their intention to turn said motor vehicle; and collided with the motor vehicle of the plaintiff, John Mercurio.” “And we find that the foregoing acts and omissions of the defendants were the proximate cause of the damage to the plaintiffs.” The special verdict which was tendered by appellants made specific findings that the “driver of the Mercurio truck failed to give an audible signal of its intention to pass defendants’ vehicle and that the Mercurio vehicle was being operated at a rate of speed greater than was reasonable and proper, having due regard for the traffic conditions then existing on said highway,” and further found “that the foregoing acts and omissions of the plaintiff contributed directly to produce the proximate cause of the collision.” This special verdict was not returned by the jury.

In our opinion, the special verdict returned by the jury was sufficient to support the judgment entered thereon. It bears the construction that there was no contributory negligence on the part of the driver of the Mercurio truck which finding is corroborated by the failure of the jury to adopt the special verdict of the defendants.

The special verdict returned requires the conclusion that the defendants were negligent as a matter of law. The jury said that such negligence was the proximate cause of the collision. (Emphasis ours.) It was not incumbent upon the plaintiff to disprove contributory negligence. There is no suggestion in the testimony on behalf of Mercurio of contributory negligence. Thus, the burden at all times to estabfish contributory negligence of the Mercurio driver was upon the defendants. The second syllabus in Noseda v. Delmul, 123 Oh St 648, is applicable.

The third error assigned is that the Court in entering judgment on the special verdict did not pronounce the law upon the facts as therein determined.

The Court having taken the special verdict with its findings and having entered judgment thereon by such action found that in applying the law to the facts the judgment should be entered as was done.

We find no error assigned well made.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By THE COURT.

text:
    FIRST METHODIST EPISCOPAL CHURCH OF COLUMBUS, Plaintiff-Appellant, v. BEATTY AND OHIO-ILLINOIS DEVELOPMENT COMPANY, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4785.
    Decided February 16, 1953.
    Arthur Prendergast, Jr., Lucas & Lucas, Ralph W. Lucas, of Counsel, Columbus, for plaintiff-appellant.
    Dunbar & Dunbar, Frank C. Dunbar, Paul L. Selby, Jr., of Counsel, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a de novo appeal. The issue drawn involves title to a part of lot No. 2 of the George M. Parsons Subdivision in the City of Columbus, located on the south side of Bryden Road near 18th Street, with a frontage of 47% feet on Bryden. Road and a depth of 160 feet extending to the south to Bryden Alley. Lot 1 of said subdivision is to the west and adjacent to lot No. 2. We hereinafter refer to these lots as Nos. 1 and 2.

Plaintiff also owned lots Nos. 3 and 4 in the same subdivision, No. 3 to the east of No. 2, and No. 4 to the east of No. 3. All lots are of like dimensions. Before the making of the deed sought by the defendants to be reformed the plaintiff owned all of the foregoing lots. At that time the Church edifice of plaintiff was located on Lots 3 and 4. The parsonage to the Church, then occupied by its minister, was on lot No. 1, and all of this building except a porch thereon was upon lot No. 1. The porch on the east side and to the front of the parsonage extended over and upon lot No. 2 for a distance of 3.65 feet. This porch, more than 17 feet in length, 7 feet in width, about 5 feet high and of brick construction, rested upon a solid cement foundation.

On the rear of the lot and along the alley there was a brick garage. This building was known to stand upon parts of both lots 1 and 2.

After negotiations, which we hereinafter consider, the Church and the defendant company consummated an agreement wherein the defendant company was to purchase the parsonage and the lot on which it stood. Thereafter, in December, 1941, the Church made a deed to defendant company wherein formal description of lot No. 1 only was incorporated. At the time that this deed was made the trustees of the Church and the agent of the purchaser did not know that the porch extended over and onto any part of Lot No. 2. However, the location of the garage was known and defendant company was given the privilege to move that part of the garage which was not on its lot, to the land which it received by the deed from the Church. The garage has not been moved, and now, admittedly, is located partly on lot No. 2.

From the time that the deed was made and for a period of about seven years the defendants occupied the parsonage. At that time a survey was made of the lots and it developed that a part of the porch was located on lot No. 2. The Church then took steps to assert title to all of lot No. 2, placed timbers along the line to the rear of the porch, planted hedge up to the line of Lot 1 which the defendant, Beatty, removed and as a result of this developing situation the plaintiff instituted its action to quiet title to all of lot No. 2. The defendant answered by denying the material averments of the petition and by cross-petition sought to reform the deed so as to include four or five feet of lot No. 2, extending the full length of the lot from Bryden Road to Bryden Alley parallel to and four or five feet from the east line of lot No. 1. Plaintiff replied and when the cause came on for hearing, amended the prayer of its petition insofar as it required the removal of the porch from lot 2 conceding that defendant had an easement in lot 2 to the extent of the encroachment of the porch thereon.

The judgment in the Common Pleas Court was for the defendant Beatty; the deed was reformed so that the description of the land therein conveyed would include a strip off of lot No. 2 3.65 feet wide fronting on Bryden Road and along the eastern line of lot No. 1 to the south, 138.25 feet.

From this order this appeal on questions of law and fact is prosecuted.

Although preliminary oral negotiations were conducted by and on behalf of the parties and certain preliminary resolutions were offered and adopted by the Church authorizing the sale of the parsonage property, the first written communication leading up to the sale was a letter from the Development Company by Frank C. Dunbar, President, to the Board of Trustees of the Church, care of J. E. Bulen, a trustee, which described the property upon which an offer of purchase was made, in this language:

“This is to confirm our verbal offer made to Mr. English that Ohio-Illinois Development Company will purchase the Bryden Road parsonage property and pay therefor the sum of $6500.00 cash.”

The authorization to sell had been granted on motion in the minutes of October 3, 1941, to the effect that the “Board of Trustees proceed to sell the parsonage and the lot only upon which it stands and to offer it at a price of $7500.00.” Succeeding the letter with the offer of purchase the Board of Trustees met, of date October 25, 1941, passed a resolution accepting the offer of the defendant company and describing the property to be deeded as “the parsonage at 869 Bryden Road, this city, together with the one lot of land whereon said building stands, being lot No. 1,” etc., * * * “together with the right to remove the garage from the lot next east thereof to the lot so purchased, at a consideration price of $6500.00.”

It will be observed that this last resolution for the first time specifically describes lot No. 1 as being the one lot of land whereon the parsonage building stands. In the proposal to purchase, the property was mentioned as the “parsonage property.” The Board of Trustees by Mr. Bulen, of date October 27, 1941, wrote to the Development Company in the first paragraph of which it is said:

“I have your favor of the 23d containing your oiler to purchase the First Methodist parsonage at 869 Bryden Road * * *.” In the fifth paragraph, this language:
“It is also understood that we are selling the west lot only, on which the parsonage stands, with our Church retaining the one to the east.”

No mention was made of lot No. 1 as incorporated in the resolution of the Board of Trustees of October 25, 1941.

In reply to the letter of October 27, 1941, under date of October 30, 1941, this language is found:

“This will acknowledge receipt of your letter of the 27th concerning the purchase and sale of the parsonage property, 869 Bryden Road.
The terms stated are acceptable.”

In the minutes of the Board of Trustees of the Church of date November 7, 1941, the pertinent parts thereof read;

“The Board of Trustees reported an offer of $6500.00 cash net for the present parsonage at 869 Bryden Road, the sale to include only the lot occupied by the house, the entire vacant lot being retained by the Church.”

The resolutions, minutes and letters wherein it is stated that the property to be sold is “the lot only occupied by the parsonage or upon which it stands or only the lot occupied by the house, the entire vacant lot being retained by the Church” did not and could not describe the physical fact as to the location of the parsonage and could not be reconciled therewith. This but accentuates the common understanding that the parsonage was on lot 1 only. It does not specifically appear, but it is inferable, that the vacant lot or parcel of land between the Church and the parsonage was, in part, at least, used as parsonage property. If there had not been some definite statement and understanding that this vacant lot was not to be included in the deed, it might have been the subject thereafter of controversy. The physical condition of lots 1 and 2, as it was visible, would create the impression that the parsonage was on one lot and that the vacant lot was another. It is inconceivable that the Church, or the purchaser at the time of the consummation of their transaction had any thought that to conform to their agreement it would be necessary to remove any part of the porch to the parsonage. When, then, the Church used restrictive language expressly reserving the so-called vacant lot, together with language that could not apply to the facts, it seems clear that it must have had in mind when it spoke of the lot on which the parsonage stands or the west lot, the lot of land upon which the parsonage stood. No other meaning could conform to the physical facts because the parson'age did not stand on one lot alone but upon two lots. The parties accurately and correctly used certain terms defining a mutually known physical fact, viz., “the parsonage property and the parsonage and the * * * lot on which it stands.” The other terms were used inaccurately and incorrectly and referred to an unknown but assumed fact, viz., “one lot of land whereon said building stands” and “the west lot only on which the parsonage stands.” There are other indicia tending to support the claim of the defendants, such as the location of hedges and shrubs.

We are of the opinion that the defendant Beatty is entitled to a reformation of the deed to his predecessor in title so that it will include a part of lot 2. The extent to which the deed should be reformed presents another question.

Although the initial written proposal from defendant company to the Church defined the land to be bought, as “the Bryden Road Parsonage property” the answer by the Church Trustees to this proposal, in conformity to their resolution, limited the land to be sold to “the parsonage and the lot only upon which it stands.” When, then, the defendant company accepted this announced understanding of the Church by saying “The terms stated are acceptable,” it was put on notice of, and was bound to observe, the limitation. This limitation, in view of the common knowledge of the physical location of the porch and the fact that it stood upon both lots Nos. 1 and 2 could not restrict a transfer of title to that part of the lot No. 2 on which the porch actually stood, and to this extent only, may we find the mutual intention of the parties and support a reformation. Clear and convincing proof of an intention to deed more of lot 2 than the lot on which the porch stood does not appear, and that quantum of proof is required to support such a reformation of the deed.

The testimony in behalf of defendants of the viewing of the east line of the porch of the parsonage and the representations of the minister, as to the line, if made, could not bind the plaintiff because the minister is not shown, to have had authority to speak for the Trustees nor does it appear that these occurrences were brought to their attention.

The defendant, Beatty, is entitled to reformation of his deed from plaintiff, so that it will include that part of lot No. 2 on which the porch stands including the steps to the porch. The title of Beatty will be quieted to that part of lot No. 2 heretofore described. The title of plaintiff will be quieted to the remaining part of lot 2.

Judgment accordingly.

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


author: By SKEEL, PJ.

text:
    CLEVELAND (City), Plaintiff-Appellee, v. DUNCAN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22278.
    Decided November 13, 1951.
    Bernard J. Conway, Jos. Stearns, Asst. Directors of Law, Cleveland, for plaintiff-appellee.
    Jones, Day, Cockley & Reavis, Victor De Marco, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment entered by the Municipal Court of Cleveland, finding the defendant guilty of violating the provisions of Section 2425-2 of the Municipal Code of the City of Cleveland, as amended December 7, 1949. Said amended ordinance provides in part:

“Section 2: That the Municipal Code of Cleveland of 1924 be and the same is hereby supplemented by enacting new Sections 2425-2 and 2425-7, both inclusive, to read respectively as follows: Section 2425-2. Maximum Axle Load; Maximum Wheel Load; Weight of Vehicle and Load. No vehicle, trackless trolley, load, object, or structure, shall be operated or moved upon the improved public highways and streets, bridges or culverts within this state, having a maximum axle load greater than sixteen thousand pounds when such vehicle is equipped with solid rubber tires, or greater than nineteen thousand pounds, when such vehicle is equipped with pneumatic tires * * (Emphasis ours.)

A portion of the Ordinance, now known as Sec. 2425-2 (supra) before it was amended, provided:

“No vehicle, trackless trolley, load, object or structure shall be operated or moved upon the improved highways and streets, bridges or culverts within this city having a maximum axle load * * *.” (Emphasis ours.)

It will be noted that the portion of the amended ordinance as quoted above, if taken literally, provides for controlling the weight of vehicles using the roads, etc, “within this state.”

It is the claim of the defendant that the ordinance is unconstitutional, void, and of no legal effect, because of the attempt of the city council of the City of Cleveland to impose weight restrictions upon vehicles using the roads and highways not only within the limits of the City of Cleveland, but also upon all the roads and highways in the State of Ohio, outside the city limits.

An examination of §7248-1 GC, shows clearly that the city council, in amending the Municipal Code by adding Sec. 2425-2 dealing with the subject of weight limitations of vehicles using the highways of the city, was attempting to follow the state law dealing with like regulations throughout the state, and in so doing inadvertently copied the words “within the state” as found in §7248-1 GC, when it should have substituted in place of the words “within this state” the words “within the City of Cleveland.”

The inability, for want of legislative power, of the city council of the City of Cleveland to pass police regulations affecting territory outside the City limits, is so well known to every member of the city council that an ordinance which, by its provisions, attempts to do so, must be attributable to a clerical mistake. It is obvious from a reading of the ordinance in question, and considering the title, preamble, context and provisions thereof, that the city council of the City of Cleveland intended to legislate upon the subject of the weight of vehicles using the streets and highways within the limits of the City of Cleveland, and were not concerned with respect to highways outside the city limits.

Where an ordinance is enacted, as provided by law, by a city council, dealing with a subject coming within its jurisdiction, such ordinance is not invalid or unconstitutional insofar as it seeks to regulate conduct within the city limits, because its terms would seem to apply to territory outside as well as within the limits of such city. Of course, the provisions of the ordinance cannot be given extra-territorial effect, but one who violates its provisions within the city may be held amenable to its provisions. In the chapter dealing with the subject of Municipal Corporations, Vol. 37 American Jurisprudence, page 917, parag. 284, the rule is stated as follows: “Territorial Extent: Exercise outside Corporate Limits: In accordance with general principles as to the non-extraterritorial operation of municipal powers, the police power jurisdiction of municipal corporations, in the absence of express provisions of statute to the contrary, is limited by the territorial boundaries of the municipalities. A police ordinance consequently cannot prohibit the doing of an act outside such boundaries. It has been held, however, that an ordinance even though it is not limited by its terms to the territory of the municipality, is valid and enforceable within the territorial limits of such municipality.”

In the case of Wickens v. Dunn (1942), 71 Oh Ap 177, a similar question was considered. There, a Federal agency was misnamed in an ordinance. The syllabus provided:

“Where the title of an act of the legislature and in the context of the act, it is shown beyond doubt that the agreement referred to therein is one with the agency of the federal government engaged in the distribution of surplus commodities, including foods, and such agreement is described therein as one made with ‘Federal Surplus Commodities Corporation’ which was the name under which said agency once operated, whereas, in fact, the agency at the time of the legislation was operating under the name of the ‘Surplus Marketing Administration’, a court is authorized to regard such use of the wrong name as an error or mistake and to interpret the statute so as to carry out the clear purpose and manifest intent of the legislature, where not to do so would render said legislation meaningless and impossible of execution.”

We must conclude, therefore, that the defendant’s contentions are not well taken, and the judgment is affirmed. Exceptions. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By CROMER, J.

text:
    STATE, Plaintiff, v. PURK, Defendant.
    Municipal Court, Piqua.
    No. 6869.
    Decided October 3, 1952.
    Bernard S. Keyt, Director of Law, Piqua, for the State.
    James H. DeWeese, Pros. Atty., Piqua, for defendant.
   OPINION

By CROMER, J.

On September 20, 1952, being the above numbered case in this Court, an affidavit was filed by Louise Purk, former wife of the defendant, and mother of two legitimate children, namely: Thomas H. Purk, aged 8 and Eddie Purk, aged 15.

The affidavit states that one “Dwight Purk * * * being charged by law with the support of said minor children did willfully and purposely fail and neglect to provide sáid minor children with the proper and necessary food, shelter and clothing and medical care, contrary to the statute in such case made and provided.”

It will be noticed that no particular statute of the General Code of Ohio is mentioned and all persons interested in the case, including the Court, were in doubt as to which statute— namely, §12970 or §13008 GC — was the one under which the affidavit was drawn.

The defendant, to the knowledge of the Bailiff, both resided and worked in Shelby County, Ohio — a county adjoining the County of Miami on the north. The defendant was arrested upon a warrant sent to the Sheriff of Shelby County and the Sheriff turned over the custody of the prisoner to the Bailiff of this Court. The defendant was released upon a cash bond deposited with the Police Department of the City of Piqua, Ohio.

The case was set for hearing at 3:00 o’clock P. M. on Friday, September 26, 1952.

The defendant was present with his counsel. It was stipulated that the offense charged was drawn under §12970 GC, which hereafter shall be called the misdemeanor statute and was not drawn under §13008 GC, which hereafter shall be called the felony statute.

Evidence showed that the defendant and the complainant were divorced on or about July 19, 1952. The custody of children was awarded to the wife-complainant. The decree of divorce was granted by the Common Pleas Court of Miami County, Ohio. The defendant-husband was ordered to pay to his former wife through the Child Welfare the sum of $15.00 per week, beginning with July 19, 1952.

Further, the evidence shows that from July 19, 1952 to September 20, 1952 — a period of nine (9) weeks, the defendant paid the sum of Sixty-five ($65.00) Dollars instead of the amount assessed, namely, the sum of One Hundred and Thirty-five ($135.00) Dollars. Thus, the defendant was in arrears on the date of the filing of the affidavit, in the sum of Seventy ($70.00) Dollars. However, at the date of the trial, all or nearly all of this last named amount had been paid. It was agreed that the belated payment was not a defense but was a mitigating circumstance to be considered by the court.

The defendant did not testify in his own behalf. Only the complainant was called to the witness chair. After the direct examination was concluded, the attorney for the defendant asked questions concerning the defendant’s residence and place of employment during the nine weeks of his alleged nonsupport. These questions were objected to upon the ground of relevancy. The objections were sustained, as the Court indicated upon the authority of §13011 GC and a number of cases decided both before and after the passage of §12970 GC. We shall quote this in full later in this opinion. Exception was noted to the Court’s ruling upon the introduction of this evidence as to defendant’s residence. Thus, the question of jurisdiction is raised clearly.

The misdemeanor statute (§12970 GC) with its title is paraphrased as follows:

“Sec. 12970 GC. Torturing or neglecting children.
Whoever * * * being the parent * * * of a child under the age of sixteen years * * * wilfully, unlawfully or negligently fails to furnish it necessary and proper food, clothing or shelter, shall be fined not less than Ten Dollars nor more than Two Hundred Dollars or imprisoned not more than six months or both.”

The felony statute as amended in 121 Ohio Laws 557 (572) and effective January 1, 1946 is paraphrased to read as follows:

“Sec. 13008 GC. Neglect to provide for child or pregnant woman; penalty. Whoever, being the parent, or other person charged by law with the maintenance of a le*gitimate or illegitimate child under eighteen years of age * * * fails, neglects or refuses to provide such child * * * with the necessary or proper home, care, food and clothing, shall be imprisoned in a jail or workhouse at hard labor not less than six months nor more than one year, or in the penitentiary not less than one year nor more than three years.”

The amended section, when compared with the section which was amended, is not different materially. It is noticed that the age is changed from 16 to 18 years. The word “parent” displaces the words “father” and “mother” in the earlier section. There is added to the new section the clause covering “a physically or mentally handicapped child under twenty-one years of age.” The penalty is the same in both sections, the old and the new.

Offenses which may be punished by death or by imprisonment in the penitentiary, are felonies. Therefore, we conclude that §12970 GC is a misdemeanor statute and §13008 GC is a felony statute. See §12372 GC where felonies and misdemeanors are defined.

It appears that both the misdemeanor and felony statutes (§12970 and §13008 GC as amended) appear in Chapter 11: “Offenses Against Minors.”

Sec. 13009 GC, relating to the abandonment of a child or pregnant woman, was amended at the same time, and effective at the same date as §13008 GC. Secs. 13008-1 and 13010 GC were not amended at that time.

Sec. 13008-1 GC stated under what circumstances “inability to provide” is a defense. Sec. 13009 GC as amended (121 Ohio Laws 557 T5721) relates the leaving of a child, with “intent tc abandon” it. Sec. 13010 GC, which was not amended, provides that a convicted person “under either of the next two preceding sections” may give bond to insure the child having a proper home and care. This is an error, no doubt, because only one of “the next two preceding sections” charges an offense. Sec. 13008-1 GC declares what constitutes a defense.

It appears that §13008 and §13009 GC were both amended in 121 Ohio Laws and both became effective on January 1, 1946.

We quote in full §13011 GC which is the authority relied upon by the court in his ruling upon the evidence. We believed at that time that the section is only a codification of prior decisions of the Supreme Court on the question of venue. The statute, §13011 GC, reads as follows:

“Sec. 13011 GC. Where Offense in Preceding Sections committed. Any offense under the next three preceding sections shall be held to have been committed in any county in which such child * * * may be at the time such complaint is made.”

The next three preceding sections obviously refer to §§13008, 13009 and 13010 GC and do not include §13008-1 GC.

• The question is whether or not a defendant residing in Shelby County, Ohio, during the entire period covered by the complaint, is liable criminally under the misdemeanor statute (§12970 GC) when the children reside with their mother in Miami County, Ohio.

It is conceded that this court, under the same circumstances, were the complaint filed under the felony statute (§13008 GC), would have the right to conduct a preliminary examination and bind over the defendant to the Grand Jury. In other words, while §13011 GC applies to an offense under the felony statute, does it also apply to the misdemeanor statute? Do the general venue statutes place the venue in Miami or Shelby County?

THE OHIO CASES

Having laid the statutory background of so-called nonsupport actions, we now shall take up a number of Ohio cases in the inverse order of their rendition.

1. The first case we shall notice briefly is In Re, Cooper, 134 Oh St 40, 11 O. O. 416, 15 N. E. (2d) 1093 (6/8/1938). This is an action in habeas corpus filed in the Court of Appeals of Hamilton County. The petitioner sought release from his conviction under §12970 GC in the Municipal Court of Cincinnati. It was the claim of the petitioner that §12970 GC was repealed by certain sections of the new Juvenile Court Code, which were inconsistent, as he claimed, with §12970 GC. The Court of Appeals found that the misdemeanor section was not repealed and this holding was affirmed by the Supreme Court by unanimous decision.

In Re Cooper, supra, is important for its historical aspect of the statutes concerned. We quote the following:

“An examination of the history of §12970 GC reveals the fact that when it was originally enacted in 1884 as Section 6984a, Revised Statutes, its primary purpose was punishment of anyone who tortured or tormented an adult as well as a child or who failed to provide for children or others. In the codification of 1910, Sections 6984a, R. S. was apparently separated into two sections of the General Code, the first being §12428 GC providing penalties for any one who tortures or torments another or deprives such a person of necessary food, clothing or shelter, while §12970 GC provides penalties for similar offenses against minors. In the original section 6984a, R. S., we find the following, ‘having the ability or means to support such child or children,’ which language we do not find in §12970 GC.”

We interpolate at this point to say that,' although §12970 GC has read the same for almost fifty years, the last quoted language, once removed from the misdemeanor statute has never been returned to this particular statute, but very similar language, constituting a defense to the felony statute, appears in §13008-1 GC (110 Ohio haws 7 [8]).

Continuing, In Re Cooper, supra, Judge Myers discusses other “offenses against minors.” After referring to §1639-46 GC of Juvenile Code — which section was claimed to have repealed §12970 GC by reason of its inconsistency, the court declares that “other situations may explain the reason for the various sections.” The court said: “Another section, §13008 GC, approaches the problem of failure to provide from still a different angle and there too the penalty is the same as in §13009 GC.” The last mentioned section is the abandonment statute as we know it now.

We conclude, therefore, that the felony statute does not by implication repeal the misdemeanor statute.

2. Next, we shall notice the case of Norman v. The State of Ohio, 109 Oh St 213. This case also is valuable for its discussion of the various statutes which may throw some light upon the present problem. This case is a prosecution under the felony statute and was decided on January 15, 1924. The opinion is written by Judge Day and is concurred in by all members of the court. There were two cases. An order was made in the first case and this order was complied with for about two years. Defendant re-married and removed to West Virginia where he filed a petition for divorce from the child’s mother. Defendant-father asked custody of the child in his West Virginia action in which the mother entered her appearance. Defendant-father filed pleas in abatement and in bar in Gallia County. They were denied him. In error proceedings to the Supreme Court, he alleged as his sixth ground the following:

“(6) That Norman was a resident of West Virginia during the entire time laid in the indictment and was not subject to jurisdiction of the Common Pleas Court of Gallia County.”

The Court relies upon and follows the case of Seaman v. State, 106 Oh St 177, 184, 140 N. E. 108, 110, which case we shall notice next.

The court in the Norman case said: “The purpose of the statute (§13008 GC) and the section in pari materia, is well stated in languages of Clark, J: in the Seaman case.”

Judge Day in the Norman case declares that R. S. 3140-2 passed in 1890 (87 Ohio Laws 216) was the ancestor of §13008 GC. The original Revised Statute was entitled “To prevent abandonment and pauperism.” In 1908 (99 Ohio Laws 228), the above title was changed to read as follows: “An act to compel parents to maintain their children.” We noticed heretofore that the ancestor of the misdemeanor statute was divided by the codifiers into two separate sections. Likewise, the felony statute “was carried into the codification as §13008 to §13021 GC, inclusive.”

In the Norman case, the indictment charged neglect of the child but the verdict found the defendanty guilty of abandonment. We quote from the opinion at page 222:

“We are of opinion that §13008 GC charges a form of abandoning the duty that a parent owes to his child, and that the verdict returned in this case was responsive to the issues submitted by the trial judge.” (Emphasis by Judge Day.)

It appears that the offense, if any, was committed in Gallia County, a year prior to the effective date of §13008 GC.

In short, the father-defendant was found guilty in Gallia County, Ohio, under the felony statute, although he was during the entire time, residing in West Virginia.

3. The leading case on the instant problem comes from Montgomery County and is the case of Seaman v. The State of Ohio, 106 Oh St 177, 140 N. E. 108 (12/19/1922).

The Seaman case also arose under §13008 GC, the felony statute. In this case under and by virtue of §13010 GC, the defendant entered into a bond. In addition he complies with a prior order of a court. (We presume it was an order made by the Common Pleas Court, although there was a hearing in bastardy before a Justice of the Peace), by tendering to the Clerk of the Court — and by keeping his tender good — the “accumulated arrearage,” from the date of the child’s birth to the date of the order. Notwithstanding, the giving of the bond and the tender aforesaid, the court nevertheless sentences the defendant to the penitentiary.

At the time of the indictment, the bastardy proceeding was still pending before the Justice. Seaman, by plea in abatement and demurrer, contended that the Common Pleas Court was without jurisdiction so long as the bastardy case was still pending before the Justice of the Peace.

Upon the authority of State v. Veres, 75 Oh St 138 (1906), the defendant’s contentions were denied.

At this point we shall quote the syllabus of the Veres case, because this case also arose under §3140-2 GC, the remote ancestor of §13008 GC:

“The pendency of a bastardy proceeding instituted against the father of an illegitimate child, is neither a bar to, nor ground for the abatement of a criminal prosecution subsequently commenced against him by the state under Section 3140-2 Revised Statutes.”

The Seaman case also declares that “it is necessary to examine and consider the legislative history thereof.”

At the risk of repeating what has been said already, we quote:

“The first enactment was the Act of April 16, 1890 (87 Ohio Laws 216), thereafter designated as Section 3140-2, R. S. Its title was “To prevent abandonment and pauperism.”
“Thereafter on April 6,1900 (94 Ohio Laws 105), the legislature amended Section 3140-2, R. S., and by such amendment included within the law liabilities penalties and conditions not thereinbefore provided for. The title was “To amend Section 3140-2 of the R. S. of Ohio.”
“On April 28, 1908 (99 Ohio Laws, 230) the legislature repealed the original act of April 16, 1890 and the amendatory act of April 6, 1900, and passed the act which preceded §13008 GC. The act of April 28, 1908, was entitled “To compel parents to maintain their children.”

“This last amendment was thereafter again designated Section 3140-2 R. S., and subsequently, under the codification of February 14, 1910, with slight changes in text in nowise varying the intent and effect of the enactment, it became §13008 to §13021 GC.”

The court followed the rule of statutory construction already declared in three prior Ohio cases, and came to the following conclusion:

“The construction of §13008 GC, involves, therefore, a consideration and analysis of the accompanying and supplementary sections of the code, to-wit, all those appearing under the sub-head “Maintenance of Minors, etc. §13008 to §13021 GC.”

The court said at page 184 of the Seaman case:

“The intent of this legislation was to compel persons charged by law with the support of designated dependants to meet the full measure of their obligation to such dependants and society. * * * it was the purpose to relieve society of the burden that properly belonged to one charged by law with its obligation.”

The last paragraph is quoted in full in the Norman case at page 219 of the opinion of that case.

In the Seaman case, Judge Clark refers to several statutes appearing in the designated sub-head, indicating that all the statutes in said sub-head, including §13011 GC — the venue statute — were all to be construed together, and without any reference to the misdemeanor statute, §12970 GC.

The Seaman case, although informative, is not too helpful, because the offense arose under the felony statute and the offense, if any, was committed in the county where the defendant resided. We repeat that the instant case arose pnder the misdemeanor statute and the defendant resided in an adjoining county other than that of his children.

4. We shall approach next the case of State v. Sanner, 81 Oh St 303, 90 N. E. 707 (1/18/1910). We quote in full the syllabus:

“(1) As to some crimes the physical presence of the accused, at the place where the crime is committed, is not essential to his guilt.”
“(2) A parent may be guilty of the crime of failing to provide for his minor children, defined by the acct entitled an act to compel parents to maintain their children, passed April 28, 1908 (99 Ohio Laws 228), although he is a resident of another state during the time laid in the indictment, and the venue of the crime is in the county where the child is when the complaint is made.”

With reference to paragraph (1) of the above syllabus we quote from the opinion as follows:

“That as to some crimes the physical presence of the accused, at the place where the crime is committed, is not essential to his guilt is well settled. Burton v. United States, 202 A. S. 344-387; Norris v. State, 25 Oh St, 217; Lindsey v. State, 38 Oh St, 507 and 12 Cyc. 237.”

The Lindsey case, supra, related to the uttering and publishing in this state (Ohio) with intent to defraud, by means of an innocent agent here, although the defendant was never in Ohio. The defendant was found guilty.

The Norris case, supra, is one wherein goods were obtained by false pretense, Syllabus (3) reads as follows:

“3. Where A (Norris) by false pretense contained in a letter sent by mail, procures the owner of goods to deliver them to a designated common carrier in one county (Summit), consigned to the writer in another county (Clark), the offense of obtaining goods by false pretense is complete in the former county (Summit), and the offense must be prosecuted therein.” The defendant was indicted in Clark County but the offense was committed in Summit County. The reasoning is that the goods were delivered to defendant’s agent in Akron. Delivery to defendant’s agent was delivery to defendant himself. Hence, the crime was committed in Summit County and not in Clark County.

Both of the above last cited cases are agency cases which ought to distinguish them from the instant case.

Where non-support of defendant’s child results in hunger, nakedness or homelessness, we feel somehow that the hunger, nakedness and homelessness occurs, if at all, where the destitute child happens to be at that particular moment. Certainly, this is the theory upon which §13011 GC was enacted. If jurisdiction in the instant case cannot be sustained on this theory, it cannot be maintained at all, we believe.

What we “most desire” at this point, is “more light” and we seek illumination in the case of Burns v. Tarbox, 76 Oh St 520, 81 N. E. 761 (6/25/1907).

5. The facts in the Burns case, supra, are quite similar to the instant case. It charged an offense under Section 6984a R. S., which is now §12428 GC. This section charges a misdemeanor. The present section is paraphrased to read as follows:

“Sec. 12428 GC. Torturing or unlawfully punishing another. Whoever * * * wilfully and negligently deprives him (another) of necessary food, clothing or shelter, shall be fined * * *.”

The penalty may not be imprisonment in the penitentiary. Hence, it is a misdemeanor.

The facts in the Burns case are as follows: Carrie O. Burns filed an affidavit with the Mayor of Zenia, Greene County, Ohio under Section 6984 R. S., now §12428 GC, charging her former husband with wilfully and negligently failing to furnish necessary and proper food, clothing for their minor children under 16 years. The failure to provide covered approximately the first one-half of 1906. The affidavit and the warrant were both sufficient. The Sheriff of Greene County was issued the warrant and took Burns into his custody in Hamilton County, Ohio. The defendant sued out habeas corpus against Tarbox, the Sheriff, in Hamilton County. Burns offered evidence “to prove that he had not been in Xenia or Greene County for many years preceding his arrest, and that he was a resident of Cincinnati, Hamilton County, for many years, and that at no time during the period laid in the affidavit was he in Xenia or Greene County or a resident thereof.”

The court dismissed the petition in habeas corpus and refused to consider the evidence as the same was not competent. The prisoner was remanded to the Sheriff of Greene County.

Continuing:

“Held: The evidence offered was not competent to work the discharge of B on habeas corpus, the same being competent and appropriate as a part of his defenses to the charge before said Mayor.”

Surely, the above holding is obiter dictum. The court only had before it, the action in habeas corpus which it dismissed. Why should the court decide, in advance, a case which was to be held later in Greene County? The court in its obiter follows, State v. Dangler, 74 Oh St 49, 77 N. E. 271 which intimates that the Burns case should have been brought in Hamilton County.

At the bottom of page 523 and at the top of the page 524 of the Opinion, we find the following statement:

“* * * that at that time (first half of 1906) and now George W. Burns was and is the owner of a house and lot on College Hill in Hamilton County; that immediately upon the entering of said decree Carrie O. Burns broke into said house and has been living there ever since with all of said children, including the two under sixteen years * *

This language places both the father and his children in Hamilton County. Why, we ask, was an affidavit filed in Greene County? Even the obiter does not answer our present inquiry.

6. Since counsel has referred to the next case, State v. Dangler, 74 Oh St 49, 77 N. E. 271, we shall notice it briefly. It is the basis of the obiter in the Burns case just cited.

Facts: “The defendant * * * Dangler, a resident of Fulton County, Ohio was, under Section 7017-3 R. S. indicted by a grand jury of Lucas County, Ohio, for the non-support of his mother, Margaret Dangler, who was a resident of Lucas County.”

It was held that Lucas County did not have jurisdiction. The criminal action should have been brought in Fulton County, the place of the defendant’s residence.

Former Section 7017-3 R. S. is now §12429 GC, and entitled Abandonment of destitute,- infirm or aged parent. It is a misdemeanor. This section has been amended several times. The last clause now reads:

“Such neglect, non-support or abandonment shall be deemed to have been committed either in the county in which such person so neglected his or her parents (resides) or in the county in which such parent may be at the time of such neglect, non-support or abandonment.”

The above amending clause was enacted after the decision in the Dangler case and for the purpose, no doubt, to by-pass that decision.

Without comment, we shall cite but three more cases, namely, State v. Peters, 67 Oh St 494 (1903), Moore v. State, 18 C. C. (n. s.) 482 (1910) and Noonan v. State, 16 C. C. (n. s.) 243.

The general Venue statutes, §13426-1 to §13426-12 GC do not give us a satisfactory answer to our problem.

After an extended research, we conclude that §13011 GC, does not place the venue of the offense, under the misdemeanor statute, in Miami County. We believe that §13011 GC does not apply to §12970 GC, under which the defendant was charged. Therefore, the case is dismissed and the defendant is discharged. We feel that to apply §13011 GC, the venue statute, to §12970 GC, would be judicial legislation.

The statutes covering non-support are in hopeless confusion. When the Domestic Code was enacted recently, there should have been added a chapter covering non-support, because a study reveals only a mess that defies all explanation. The job is for the General Assembly, not for the courts.

In the future no affidavit will be accepted in this court for filing that does not state under what statute it is drawn. When the defendant resides outside of Miami County and the child unsupported resides in Miami County, the affidavit must be drawn under the felony statute.

30 O. Jur., Parent and Child, at page 613 speaks of the care to be exercised by prosecuting officers and adds that “this degree of care has not always been exercised much to the consternation of the judges.” Amen.


author: By HARE, J.

text:
    GARABRANDT, Plaintiff, v. GARABRANDT, Defendant.
    Common Pleas Court, Tuscarawas County.
    No. 29859.
    Decided May 29, 1953.

      A. Limbach, New Philadelphia, for complainants, John Jerome and Neva Jerome.
    Danny D. Johnson, New Philadelphia, for plaintiff-father.
   OPINION

By HARE, J.

This case came before this Court upon a complaint filed by John and Neva Jerome, husband and wife, against Elmer D. Garabrandt, father of the minor child, Sharon Jean, aged six years, in the interest of said child. This complaint sets forth certain reasons why the custody of said child should not be taken from said complainants by the father; further, urging the Court to curtail the influence of Sally Hootman Garabrandt, the second wife of Elmer D. Garabrandt, over said child, and for the Court to investigate and reconsider the award of custody of the child and to punish the father for fraud upon the Court in changing its custody without the consent of the Court.

The attorney, A. Limbach, representing said complainants, acts as their attorney and self-styled amicus curiae of the Court.

To this complaint, Danny D. Johnson, as attorney for the plaintiff, Elmer D. Garabrandt, filed a motion to strike said complaint from the files, but later withdrew it. However, he then filed a demurrer to this complaint. The Court did not during said hearing nor now, deem it necessary to pass upon the demurrer.

The Court permitted the complainants to proceed and introduce evidence over the objection of Elmer D. Garabrandt, and no cross-examination was had of witnesses of the complainants. The said Elmer D. Garabrandt firmly stood upon the demurrer throughout the hearing.

(Findings of Fact)

The record discloses that the father of Sharon Jean, aged six years at the time of this hearing:

1. Has been for a number of years and is now a steady worker with good employment and possessed with more than ample means to support and educate his daughter. He offered the Jeromes money for support of his daughter and the Jeromes refused it.

2. That the father is in no sense a depraved person or one addicted to the excessive use of intoxicants or the user of habit forming drugs, or is a gambler or possessed of vicious habits which would affect the proper parental care of said child. In fact the record is entirely silent as to such matters.

3. This child never has been and is not now a dependent child under the juvenile law.

4. There are no facts or circumstances adduced by the evidence to show that the father is unfit and unsuitable or that his home is such to adversely affect his parental and paramount right to retain the custody of his child, which he took last April from the complainants where he had placed said child on or about July, 1950. In fact the child was taken from the Lacey home, the parents Of Mrs. Jerome.

5. The only evidence of record of unfitness is against Elizabeth Garabrandt, the mother of this child; first wife of the child’s father from whom the father secured a divorce upon December 12, 1950, upon the ground of adultery and who has not been near the child to show it any affection for a number of years, and whose residence is now and ever since said divorce has been unknown.

6. There is some evidence ’against Sally Hootman Garabrandt, present wife of Elmer D. Garabrandt whom he married upon May 3rd, 1952, it being her first marriage, said evidence being to the effect that when she was a child she was pronounced by the Juvenile Court a delinquent child. However, there is no evidence of record in this case since her said marriage or since said pronouncement of the Juvenile Court brought to the attention of this Court which affects her moral standing or reputation, so as to render her morally unfit to be in the same home as this child of which the father has present custody.

7. The moral fitness and the question of suitableness of the home of the complainants is not in issue, as it is conceded they are fine people and have a good home and have exerted a fine influence over said child.

(Law)

The issue in this case goes solely to the general fitness of the father and his home to retain the custody of his child, awarded him on December 12, 1950, in the divorce proceedings.

The issue is not whether the Jeromes, who never adopted this child and who are not related to it, can give it a better home and can rear said child in more wealthy surroundings. If such were the case, many parents would not be secure in the custody and possession of their own children.

This is a most heart-rending decision to make, but the legislature enacts the law and the Court is to construe and interpret the law as to its meaning when applied to the evidence. The law, when applied to a particular case often seems to work a hardship and a Court often wishes the law were otherwise. The Court cannot rewrite the law when there exists plain statutory law applicable to the case.

There are a few citations of decisions by the Courts in which the Ohio Statute §8005-4 GC, analogous to the former §8033 GC, applicable to this instant case has been construed, and to which attention is now directed.

(Citations of Law)

The case of Schwalenberg, Appellee, v. Schwalenberg, Appellant, 65 Oh Ap p. 217 (1940), holds that “the burden of proof is upon the one (parent) seeking modification of a decree awarding custody of a child at the child’s election (to the other parent) to show depravity, habitual drunkenness or incapacity of such (other) parent.” (Citing Slates v. Slates, 15 Abs, page 572.)

Schultz v. Schultz, 18 O. C. C. (N. S.) 402, 33 O. C. D. 120, citing §8033 GC, entitled, Court to determine custody of child: “Other things being equal, the custody of a little girl of tender years should be awarded to her mother, but where the mother shows little affection for the child she will be given to the father.”

In the matter of Robert Lutkehaus (Hamilton Co., Ohio) 22 Ohio N. P. (N. S.) page 120 (decided July 22, 1919): “The welfare of the child is not the sole determining factor where the right of its father to its custody has been challenged; and in the absence of a showing of unfitness of the father or of inability on his part to provide a suitable home for the child, he will be awarded its custody over the claims of the maternal grandmother, with whom it has been living for some time and whose affection for and ability to give the child a good home are not questioned.”

Luebkeman v. Luebkeman, 75 Oh Ap 566 (decided Feb. 1st, 1945 — Montgomery County, Ohio): “A court of competent jurisdiction may not award the custody of children to any other person than their parents unless a finding is made of the unfitness of the parents to have their children’s care, custody and control as provided by §8033 GC.”

Ludy v. Ludy, 84 Oh Ap 195 (decided October 6, 1948— Franklin County, Ohio): “Syl. 3 — Under the provisions of §8033 GC where the record fails to show certification to the Juvenile Court as provided by law, the Common Pleas Court retains continuing jurisdiction over the custody of such child.

“Syl. 5 — Under the provisions of §8033 GC, as amended, effective Jan. 1st, 1946, there is no express provision giving the court authority to grant the care, custody and control to some person other than the parent of the child.
“Syl. 6 — Under general law the Court has no authority to give custody of a child to a third person unless and until it makes a finding that the parents of the child are unsuitable.
“Syl. 7 — The welfare of the child is considered when the question of custody of such child arises between the parents who stand on an equality, or when the parents are found to be unfit and the court is required to grant custody to a third person.”

Sec. 8005-4 GC Custody effective 8/28/51 analogous to former §8033 GC; part applicable here:

“If the Court finds, with respect to any child under eighteen years of age, that neither parent is a suitable person to have custody it may commit the child to a relative of the child or certify a copy of its findings, together with so much of the record and such further information, in narrative form or otherwise, as it deems necessary or as the Juvenile Court may request, to the Juvenile Court further proceedings, and thereupon the Juvenile Court shall have exclusive jurisdiction. This section shall apply to pending actions.”

Comment under this section: “This section is substantially the same as the former §8033 GC, except that it now permits the court to commit the child to a relative of the child in the event neither parent is a suitable person to have custody.”

(Conclusion)

The Court has reached the conclusion in its findings of fact and the law, that the father, Elmer D. Garabrandt, retains the custody and possession of his child as against the non-relative complainants, until further order of this Court, and this Court continues to retain jurisdiction herein.


text:
    BLACKFORD, Plaintiff-Appellee, v. FOLKERTH, Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 165.
    Decided March 12, 1952.
    Blake & Lewis, Carroll V. Lewis, of counsel, Sidney, for plaintiff-appellee.
    Cummins & Boller, Sidney, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Shelby County.

Plaintiff sued to recover money deposited by him with the defendant on the purchase of a new Studebaker automobile which was to be delivered within two weeks, but which the defendant failed to deliver. The defendant in his amended answer alleged that pending the delivery of the Studebaker automobile, in pursuance to an agreement between the parties, the defendant loaned to the plaintiff for his use a 1941 Ford automobile. Defendant further alleged: “That while the plaintiff was keeping and using said Ford automobile lent him by the defendant, the plaintiff, without the knowledge or consent of the defendant, lent said Ford automobile, the property of the defendant, to the minor son of the plaintiff, and that said minor son had a collision with a iarge truck, completely wrecking the Ford automobile.” Defendant further alleged that the plaintiff upon request of defendant refused to reimburse the defendant for the loss of the Ford, and thereupon the defendant cancelled the contract to deliver the Studebaker, and the defendant set off the value of the Ford against the amount deposited for the purchase of the Studebaker and returned the balance of $21.61 by check to the plaintiff. The plaintiff replied admitting the essential facts relative to the transaction, but denied that the Ford was loaned by the plaintiff to his son without the knowledge or consent of the defendant.

Under the pleadings the sole controverted issue was whether plaintiff permitted his son to use the Ford automobile without the knowledge or consent of the defendant. The evidence presented was on this issue.

In law the transaction constituted a bailment. The terms of the contract of bailment may be expressed or implied. There was a conflict in the evidence as to the terms of the bailment. There was evidence presented from which the jury could reasonably infer that the use of the Ford by members of plaintiff’s family was with the knowledge and consent of the defendant. Obviously, the jury came to this conclusion and returned a verdict for the plaintiff for the amount of the money deposited without making deduction for the value of the Ford.

The pleadings, and likewise the evidence, presented the narrow issue as to whether the Ford was used by plaintiff’s son with the knowledge and consent of the defendant. If the bailment did not permit such use, then the plaintiff was guilty of conversion in allowing his son to use the Ford, and the plaintiff’s liability for loss would be certain. This would be true regardless of the degree of care required to be exercised by the plaintiff as bailee or the degree of care exercised by the son at the time the Ford was wrecked. If the terms of the bailment permitted the use of the Ford by the plaintiff’s son, the defendant must seek redress against the son. The plaintiff would not be chargeable with the negligence of the son, if any. The evidence is undisputed that the Ford was wrecked by plaintiff’s son while driving on a mission of his own.

In our opinion the court properly charged the jury, and did not commit prejudicial error in refusing special instructions requested by defendant, or in refusing to direct a verdict for defendant, or in overruling defendant’s motion for new trial.

Finding no error in the record prejudicial to the rights of the defendant, the judgment is affirmed.

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


author: By BELL, J.

text:
    MASSA v. CINCINNATI (City) et.
    Common Pleas Court, Hamilton County.
    No. 134831.
    Decided February 20, 1953.

      William Jerome Kuertz, Cincinnati, for plaintiff.
    Henry M. Bruestle, City Sol., James W. Farrell, Jr., Asst. City Sol., Edward F. Alexander, Sp. Counsel, Cincinnati, for defendants.
   OPINION

By BELL, J.

In the interest of brevity the plaintiff will be designated the taxpayer; the defendant the City of Cincinnati the city; defendant Wilbur R. Kellogg the Manager, and defendant R. G. Sarvis the Director.

At the outset it should be stated that the pleadings contain numerous allegations as to relative costs of doing the work by contract or by force account. The question here presented is one of power, and not one of cost. If the defendant city has the power to proceed as proposed, then the court cannot be interested in any question of cost. Where a municipality has the power to proceed in more than one way, the city officials have discretion to determine in what way the municipality will proceed, and a court is not invested with authority to interfere with that discretion in the absence of fraud, bad faith, or a gross abuse of discretion. No such claim is advanced in the instant case — -hence the court did not permit evidence upon the subject of whether one method would be more or less costly than the other method.

The legal questions for determination may be stated thus:

(1) Does the method of procedure adopted and followed for many years by the city in repairing and resurfacing public streets violate any provision of the Constitution, or of any controlling provision of the statute law of Ohio?

(2) Does the decision in the case of Sanzere v. City of Cincinnati, 157 Oh St 515, 106 N. E. 2d 286, 287, make necessary the application of the doctrine of res judicata to the issue presented in the instant case?

These questions will be disposed of in their inverse order. If the doctrine of res judicata applies, that makes an end of plaintiff’s case.

A definition of the rule (res judicata) may be stated thus: The judgment of a court of competent jurisdiction directly upon a point, as a plea in bar or as evidence, is conclusive between the same parties or their privies on the same matter, directly in question in another court; but neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of any matter incidentally cognizable, nor any matter to be inferred by argument from the judgment. The doctrine inheres as an obvious rule of expediency, public policy and natural justice to prevent a multiplicity of actions.

It is a matter of grave doubt whether the doctrine has any application to a class suit, but a determination of that question is unnecessary here. Assuming, without deciding, that the doctrine may be applied to a class suit, the court will examine the issues in the Sanzere case and the issues in the instant case, and determine whether the point decided in the Sanzere case is in anywise involved here.

In the Sanzere case the only question raised or decided was stated thus:

“Is the last sentence of §4678-2 GC, which reads, ‘This act shall not apply to any city or village having a charter form of government,’ unconstitutional because it does not comply with Section 26, Article II of the Constitution reading ‘All laws, of a general nature, shall have a uniform operation throughout the state * * *’?”

The statutes there in question, §§4678-1 and 4678-2 GC, as enacted by the General Assembly, by their terms had no application to any charter municipality, but it was contended that the last sentence of the §4678-2 GC, was unconstitutional as being repugnant to Section 26, Article II of the Ohio Constitution. While it is true that those sections had to do with street improvements in other than charter municipalities, it is obvious that the judgment which held that the sections were constitutional and had no application to a charter municipality is not the same issue as here presented. The city’s second defense therefore cannot prevail.

The second question for consideration is, “Does the method of procedure adopted and followed for many years by the city in repairing and resurfacing public streets violate any provision of the Constitution, or any controlling provision of the statute law of Ohio?”

Prior to 1912 municipal corporations in this state derived their powers from the General Assembly, and had only such powers as were thus granted. In 1912 the people of Ohio made a new and different distribution of power. Since that time municipalities derive their powers from the Constitution and not from the General Assembly.

Article XVIII.

“Section 3. (Powers) Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with genera) laws.” (Emphasis added.)
“Section 7. (Home rule) Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.”

Section 3 of Article XVIII has been before the Supreme Court in many cases. Some of those cases involved the question of whether certain matters were of purely local concern, or whether they were matters of state-wide concern. See State ex rel. Ramey v. Davis, 119 Oh St 596, 165 N. E. 298; State ex rel. Mowrer v. Underwood, 137 Oh St 1, 27 N. E. 2d 773; State ex rel. Strain v. Houston, 138 Oh St 203, 34 N. E. 2d 219; City of Cincinnati v. Gamble, 138 Oh St 220, 34 N. E. 2d 226; State ex rel Arey v. Sherrill, 142 Oh St 574, 53 N. E. 2d 501; City of Akron v. Zeisloft, 22 Ohio N. P., N. S., 533.

Those cases, and others which might be cited, are authority for the proposition that if the matter under consideration is of state-wide concern, then the enactments of the General Assembly control and any action of the municipal council inconsistent therewith must yield. On the other hand, if the matter under consideration is one of purely local concern, then the acts of the municipal council control and any enactment of the General Assembly inconsistent with the acts of the municipal council must yield.

Is the repair or resurfacing of streets within a municipality a matter of state-wide concern, or is it a matter of purely local concern?

In the case of Village of Perrysburg v. Ridgway, 108 Oh St 245, 140 N. E. 595, the Supreme Court squarely decided that matters with regard to streets were of purely local concern. Paragraph 2 of the syllabus in that case reads as follows:

“2. The power to establish, open, improve, maintain, and repair public streets within the municipality, and fully control the use of them, is included within the term ‘powers of local self-government,’ ”

That paragraph of the syllabus has never been disapproved or overruled by the Supreme Court.

The Perrysburg case would be decisive of the present controversy except for the fact that by the provisions of Article II, Section 1 of the City Charter, §§4328, 4329 and 4331 GC here in question have the force and effect of ordinances of the city.

Article II, Section 1 of the Charter of the City of Cincinnati reads as follows:

“Article II. Legislative Power.
“Section 1. All legislative powers of the city shall be vested, subject to the terms of this charter and of the constitution of the state of Ohio, in the council. The laws of the state of Ohio not inconsistent with this charter, except those declared inoperative by ordinance of the council, shall have the force and effect of ordinances of the city of Cincinnati; but in the event of conflict between any such law and any municipal ordinance or resolution the provisions of the ordinance or resolution shall prevail and control.”

This record fails to disclose that council has by ordinance declared any provision of the statute law here in question to be inoperative.

The resolution of council marked by the parties as Exhibit 1, attached to the Agreed Statement of Facts (Ex. 1) is not set forth with sufficient clarity to determine whether the provisions of such resolution are inconsistent with the statutory-provisions, thus bringing into consideration the following language found in Article II, Section 1 of the charter:

“* * * but in the event of a conflict between any such law and any municipal ordinance or resolution the provisions of the ordinance or resolution shall prevail and control.” (Emphasis added.)

That being the state of the record, consideration will be given to determine whether any provision of §§4328, 4329 or 4331 GC has been violated.

It is also contended by plaintiff that the method adopted violates Article XVIII, Section 13 of the Constitution which reads as follows:

“Section 13. (Taxation, debts, reports and accounts.) Laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes, and may require reports from municipalities as to their financial condition and transactions, in such form as may be provided by law, and may provide for the examination of the vouchers, books and accounts of all municipal authorities, or of public undertakings conducted by such authorities.”

This section of the Constitution has been construed by the Supreme Court in State ex rel. City of Toledo v. Weiler, 101 Oh St 123, 128 N. E. 88. It was there held:

“Section 3. Each municipality assumes responsibility consonant with the authority conferred, and is not only permitted, but required, to determine for itself the portion of its taxing and debt incurring power which shall be used for any authorized municipal purpose, within such constitutional and legislative limitation.”

Judge Matthias, writing for the Court, 101 Oh St at page 130, 128 N. E. at page 90, said:

“It (the General Assembly) may limit the levies of taxes and the extent of bonded indebtedness for local purposes, but it may not, either by action or inaction, preclude the exercise of power expressly conferred by the Constitution, or deny the use of its revenues from taxation or its general credit for any purpose * * * within the powers of local self-government thereby conferred. It was not contemplated that any grant of power by the legislature was essential, nor that it should be permitted to deny or limit the purpose, but only prescribe the limitation of taxation and bonded indebtedness for all local purposes.”

That decision makes it abundantly clear that Section 13 of Article XVIII of the Constitution has not been violated.

Plaintiff further contends that the method in use is illegal for the reason that two of the streets which the city proposes to resurface are state highways, and that the city, under the proposed method, cannot be granted state aid. Application for, or failure to apply for state aid in the improvement of a state highway within municipal limits is a matter confided to the municipal authorities, and in the absence of fraud or bad faith, is not a justiciable question.

The city contends that §§3629 and 3714 GC, grant the power to proceed in the manner adopted. Sec. 3629 GC, grants power to municipalities to improve and keep in repair streets within the municipality. Sec. 3714 GC, makes it the duty of each municipality to keep its streets open, in repair and free from nuisance. Both these sections are silent as to the method of performance; hence, neither section is helpful in the solution of the present controversy.

Having concluded that the repair and resurfacing of streets is a matter of purely local concern; that each municipality has the power under Article XVIII of the Constitution to proceed in any manner adopted by the municipal authorities, and having further concluded that by virtue of Article II, Section 1 of the Charter adopted by the city §§4328, 4329 and 4331 GC have, in the instant case, the force and effect of ordinances of said city; and having further concluded that Section 13 of Article XVIII of the Constitution has not been violated, comes now the final and determinative question in this case: Has the city by its method of resurfacing violated the provisions of §§4328, 4329 and 4331 GC?

Sec. 4328 GC reads as follows:

“Contracts made by director of public service; competitive bidding.
“The director of public service may make any contract or purchase supplies or material or provide labor for any work under the supervision of that department not involving more than one thousand dollars. When an expenditure within the department, other than the compensation of persons employed therein, exceeds one thosuand dollars, such expenditure shall first be authorized and directed by ordinance of council. When so authorized and directed, the director of public service shall make a written contract with the lowest and best bidder after advertisement for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the city.”

This section has been upon the statute books for many years. Its purpose is to prevent fraud or collusion and to ensure that the municipality will receive full value in return for any expenditure of money in excess of one thousand dollars.

The first sentence of the section grants authority to the director to perform four separate and distinct acts: (1) to make any contract in connection with his department; (2) to purchase supplies: (3) to purchase materials; and (4) to provide labor for any work. Those things he may do without any action of counsel provided that the amount involved does not exceed one thousand dollars.

The next and last sentence provides the procedure when the expenditure exceeds one thousand dollars. In that sentence it is specifically provided:

“When an expenditure within the department, other than the compensation of persons employed therein, exceeds one thousand dollars, such expenditure shall first be authorized and directed by ordinance of council. * * *”

In the instant case the expenditure was authorized by council and the materials necessary to be used were purchased after advertisement and receipt of competitive bids. The materials were and are being applied by persons employed within the department.

The court fails to find in that section any prohibition against the municipality performing any municipal function by its own employees. In fact, the section clearly recognizes the right of the municipality to perform work 'and labor for any municipal operation by regular municipal employees when it provides: “other than the compensation of persons employed therein.”

It is agreed that the work on the streets is being performed by regular employees of the city (paragraph 2, item (2), Agreed Statement of Facts).

Sec. 4329 GC provides for the proceedings on opening bids, and §4331 GC provides the procedure where there are alterations or modifications of a contract.

None of the sections here in question, either by express language or by clear implication, prohibits any municipality from performing the work and labor involved in any municipal function. Attention could be called to many municipal functions wherein the cost of the equipment or materials .used therein exceeds one thousand dollars, and the equipment is used or the materials applied by regular employees of the city (operation of the police and fire departments, collection and disposal of garbage, operation of a workhouse, a city hospital, etc.).

In the view of the court no provision of the Constitution nor of the statutes relied upon by the plaintiff has been violated in the method of procedure adopted and in use by the city.

It follows that the plaintiff is not entitled to the relief prayed for, and that the petition should be dismissed.