author: By SCHMIDT, J.

text:
    DEYE v. QUALITY ENGRAVING & ELECTROTYPE COMPANY et.
    Common Pleas Court, Hamilton County.
    No. A-99523.
    Decided July 20, 1950.
    John R. Gehrig, Cincinnati, for plaintiff.
    Ferd Bader, Jr., Cincinnati, for defendants.
   OPINION

By SCHMIDT, J.

This is an action for an accounting for royalties which the plaintiff claims are due him from the defendants under a contract.

The action is brought against The Quality Engraving and Electrotype Company, an Ohio corporation and Charles E. Deye and Marcella S. Deye individually and as partners doing business under the firm name of Quality Engraving and Electrotype Company.

The second amended petition alleges that on or about the 2nd day of September, 1943, the plaintiff entered into an agreement with the defendants, under which the defendants agreed to pay him reasonable compensation in consideration of his granting to them the full and exclusive right to á patent obtained by him covering a process of manufacturing composite metal molds for electrotyping. The patent was granted to the plaintiff on December 30,1947, and was formally assigned by the plaintiff to the defendant, The Quality Engraving and Electrotype Company. The invention relates to a method of assembling and uniting units of electrotype into single composite metal molds.

The. second amended petition further states that after September, 1943, at or about which time the defendants had agreed with the plaintiff to compensate him for the assignment of his invention to them, the plaintiff made repeated demands upon the defendants for the fixing of the terms of his compensation, which terms were left for further determination under the original agreement. The second amended petition further states that on or about June, 1944 the defendants agreed to pay the plaintiff a royalty of ten cents per unit of electrotype assembled and united into single composite metal molds under said method invented by him upon all said units manufactured and sold by the defendants, said royalties to be payable retroactively from January 1, 1944, and thereafter.

It is asserted that the defendants paid the plaintiff such royalties from January 1, 1944 to January 31, 1946, making remittance in periodic payments based upon the number of units manufactured and sold during preceding periods, and that such royalties paid amounted to the sum of $2,037.20.

It is then alleged that since January, 1946 the defendants have failed and refused to pay any further amounts as royalties to the plaintiff, or to.account to him for the number of units sold by them since January 31, 1946. It is claimed that the defendants have continued to manufacture and sell large quantities of said units after the aforesaid date, completely ignoring the plaintiff’s contractual rights to be paid compensation on such sales.

It is alleged that plaintiff is unable to state accurately the number of units manufactured and sold by the defendants since the records are in the defendants’ possession and plaintiff has not had adequate access to them.

The prayer of the second amended petition is that the defendants be required to make an accounting to the plaintiff of the units manufactured and sold by them since January 31, 1946, and that judgment be awarded to the plaintiff in such sum as the court may find to be due the plaintiff as royalties under the contract, with interest from the respective accounting dates.

Separate answers have been filed by the defendant, The Quality Engraving and Electrotype Company, and by Charles E. Deye and Marcella S. Deye,. partners.

In substance these answers admit the corporate existence of The Quality Engraving and Electrotype Company, admit that Charles E. Deye and Marcella S. Deye are partners doing business under the firm name of Quality Engraving and Electrotype Company, and admit that the patent referred to in plaintiff’s petition was issued and was assigned to the corporation.

The answer alleges that the defendant corporation is the sole and exclusive owner of the patent, free from any interest of the plaintiff whatever; that the invention covered by the patent was not the exclusive idea of the plaintiff but was planned, studied, designed, and completed at the workshop of the defendant by other employees and officers of the defendant company, and at the entire cost of the defendant company.

It is further alleged that the invention was planned and perfected while the plaintiff served as the superintendent of the defendant company, for which work he was paid, and that therefore plaintiff is estopped from claiming any royalties from the defendant.

It is denied that the defendants are indebted in any sum to the plaintiff, and the prayer is for the dismissal of the petition.

A motion was filed by the plaintiff for an order to inspect and take copies of the records and books of the defendants. The motion was opposed by the defendants. In January, 1948, Judge Morrow entered an order appointing a Master for the purpose of making a private examination of the sales journal, accounts receivable journal, and the ledger of the said corporation from January 1, 1944. A report was filed by the Master.

The plaintiff, Erwin G. Deye, is a brother of Charles E. JDeye, the defendant. The defendant, Charles E. Deye is, and has been for many years, the President of The Quality Engraving and Electrotype Company, a corporation. He is the general manager of the business and the dominating influence in its operations. Charles E. Deye is also a partner, 'together with his wife, and since 1946, his son, in the partnership operated under the name of Quality Engraving and Electrotype Compafiy. This partnership was created in 1928 and from then on carried on the manufacturing end of the business. The corporation performed the selling and administrative work of the business. The corporation and the partnership operate from the same offices, with the same staff, and under the same general management. All of the Capital Stock of the defendant corporation is owned by the defendant, Charles E. Deye, his wife, Marcella S. Deye, and his son, Walter C. Deye. The close inter-relation of the two separate organizations is admitted. The business of the defendants is the manufacture and sale of electrotypes.

The plaintiff, Erwin G. Deye, worked in his brother’s business for many years. He was employed by the corporation before the separation, of the business into two legal entities, which occurred in 1928. After 1928 he was employed by the partnership as the foreman of the shop and thereafter became the general superintendent of manufacturing. He had been receiving a salary of $12,000.00 a year for approximately eight years prior to his leaving the employ of the firm on February 7, 1946.

The testimony establishes that about 1937 the plaintiff conceived the idea of a new process in the manufacture of multiple metal molds in the electrotyping process. In general, the idea involved a method of assembling and aligning a number of molds in a frame from which a "single electrotype plate could be manufactured, thus simplifying and reducing the cost of printing by means of the composite electrotype plate.

It appears that there were a number of practical difficulties which had to be overcome in order to make this invention of practical value. The plaintiff claims that he spent many hours working on the invention and perfecting it. Some of this work was done in the plaintiff’s job and some of it was done on the plaintiff’s own time during evenings and weekends at the plaintiff’s home.

• There is substantial dispute in the testimony as to the exact extent of plaintiff’s work on the invention and also as to the contribution of other employees of the defendant and of the defendant Charles E. Deye himself in bringing the invention to the point of patentability and practical use.

Certain employees of the defendant testified that they had a great deal to do themselves in the development of the idea.

While plaintiff admits that he had some assistance from other employees of the defendant company on his work on the invention, which covered a number of years, he denies that this assistance was of major consequence in developing the device. The plaintiff’s testimony of his own efforts in developing the patent was corroborated by the witness Albert Schlattmer, who was the general manager of the Printing Machinery Company during the years 1937 to 1939. This company designed machinery and tools used in the printing industry. He testified as to many discussions with Erwin G. Deye with respect to the invention and particularly with respect to the perfection of certain clips which were necessary for the alignment of the molds in the form. He assisted Erwin G. Deye in perfecting the process and helped him to design certain parts of it, his company being paid for the work done by the defendant, The Quality Engraving and Electrotype Company.

It is the opinion of the court that the plaintiff has established by a preponderance of the evidence that his idea and his work were primarily responsible for the origination of the device and its development into a practical process. It is not disputed that much of the work which was done by the plaintiff was done in the defendant’s place of business and on the defendant’s time, nor is it disputed that all of the expense involved in the development, including the patent application expense, was borne by the corporate defendant.

The process which was covered by the invention was referred to as the “Step and Repeat” process. This designation or name apparently had been' used previously in the engraving, off-set printing and lithographing industries. However, although the process was similar to that used in these other industries, it had never been successfully applied to the electrotype industry, and the “Step and Repeat” phrase had never been applied to the manufacture of electrotypes prior to the invention of the plaintiff. In about 1938 the first order of electrotypes manufactured by the defendant partnership under the “Step and Repeat” method was sold to the United' States Printing Company and proved satisfactory. About that time the evidence establishes that the defendant, Charles E. Deye, told the plaintiff that the method appeared to have merit, and that he should go ahead and have it patented and. that the company would “take care of Erwin” if the method proved profitable. There was no written agreement at that time, which is understandable in view of the relationship between the parties and the closeness of their working associations.

A firm of patent attorneys was employed by the defendant and patent applications were prepared. The first one was filed July 15, 1939 in the name of Erwin G. Deye as inventor. At the time of the application and at the request of the defendant, Charles E. Deye, the plaintiff executed a formal assignment, prepared by the attorneys assigning to the corporate defendant all of his rights to the invention and to any patent which might be issued pursuant to his application. This original patent application was refused by the patent office. Thereupon in 1940, a new and revised patent application was prepared and filed and also another assignment was executed by the plaintiff. This application likewise was rejected by the patent office and on September 4, 1943 an amended application for patent was filed in the name of Erwin G. Deye and the patent on this application was granted by the United States Patent Office in the name of Erwin G. Deye as inventor on December 30, 1947, the patent being No. 2433653 under the title “Manufacture of Composite Metal Molds for Electrotyping.” At the time of filing the last amended application in 1943 upon which the patent was granted, the plaintiff, following the request of his brother, Charles E. Deye, made a general assignment of all his rights of his invention and under the patent pending to the corporate defendant.

During the period from 1939 to 1947, while the process was in the state of development and improvement, and while the proceedings were being taken which resulted ultimately in the issuance of the patent, the defendants were using the process under the “Step and Repeat” name in'their business. Numerous electrotypes were made and sold under the designation “Step and Repeat” method. Also the defendant corporation placed advertisements in trade magazines advertising the advantages of electrotype molds made under the new “Step and Repeat” method exclusively by The Quality Engraving and Electrotype Company, the advertisements announcing the fact that there was a patent pending on the new method.

Because of the advantages which the new method provided, the plates manufactured under the “Step and Repeat” method were sold by the defendant for a higher price, than those assembled under the old “patch” method.

When it appeared that the “Step and Repeat” method had met with trade acceptance, the defendant corporation used the “Step and Repeat” label in connection with the sale to its customers of other electrotypes which were not in fact made under the new process, but which were assembled under the previous method which was known as the “patch” method. The defendant’s practice was to charge its customers higher prices for its plates billed as “Step and Repeat” process plates even when the patented method was not in fact used.

The evidence shows that from 1939, or at least 1940 on, the plaintiff was continuously pressing his brother for a definite understanding or specific agreement for compensation in respect of the invention which he had developed, pursuant to the general understanding which the brothers had had that if the invention proved of value Erwin G. Deye would be taken care of. Various suggestions were made by Erwin, such as stock in the corporation, payment by the corporation of the premiums of insurance on his life, and other considerations. However, none of these were acceptable. Charles E. Deye became somewhat irritated with his brother on the ground that he was always complaining and attempting to get more money. However, Charles E. Deye did attempt to solve the difficulty and to satisfy his brother’s demands on various occasions. Thus, in 1941 the brothers went to the attorney for the company where the situation was explained and the attorney prepared a written agreement concerning additional compensation. This was refused by Erwin G. Deye. Later Charles E. Dye offered to pay $2400.00 a year to apply to premiums on insurance to be purchased by Erwin G. Deye on his life and to be payable to his wife, but this suggestion never was carried out.

Finally, in May or June of 1944 an oral agreement was entered into between Charles E. Deye and Erwin G. Deye under the terms of which the corporation agreed to pay Erwin G. Deye ten cents per unit on all electrotype units sold under the “Step and Repeat” designation by the company, and in addition thereto, seven per cent commission on all sales made by Erwin G. Deye.

The defendant, Charles E. Deye, at first disputed that there was any agreement made in 1944, his claim being that he had a talk with his brother relating to the understanding in the subsequent year 1945. However, from records in the case and also from the previous testimony of Charles E. Deye at the preliminary hearings in this case, it appears to the court that the defendant, Charles E. Deye, was in error and that the discussion actually occurred sometime shortly prior to July, 1944.

Records of the defendant company introduced in the case prove that actual payments commenced in July, 1944 and that these payments were made retroactively 'from January 1, 1944.

It should be mentioned at this point that the plaintiff makes no claim in this action for any further commission on sales, his claim being limited to royalties on “Step and Repeat” electrotype plates on the basis of ten cents per unit. The only importance, therefore, of the commissions that were paid to the plaintiff at the rate of seven per cent on sales, is in .connection with the establishment of the fact that some agreement was made with the plaintiff in June, 1944 since the commission payments, as well as the per unit payments commenced in July, 1944 and continued until February, 1946.

The checks which were delivered to the plaintiff from July, 1944 through and including February, 1946 were attached to vouchers which designated the payments as “Royalty on Step and Repeat” or “Royalty on S. and R.” It also appears in the evidence that the ten cent unit payments were originally entered on the ledger of the company under the designation “Step and Repeat Royalties.”' However, some time later, probably after the dispute arose between the brothers, the original ledger page showing the payment's as “Royalties” , were destroyed by Joseph A. Deye, another brother of the defendant, Charles E. Deye, who was the bookkeeper of the company. For the destroyed ledger page, another rewritten pao,e was substituted under which payments were designated as “Step and Repeat Allowances.” In passing, it is significant to note that the Master appointed by the court to examine defendants’ books was not informed of the destruction of . the original ledger sheet and its replacement. He was permitted to assume that the ledger sheet examined.by him was th^ record of original entry.

Similarly, the cash journal of the partnership shows monthly entries commencing with April 11, 1945, of payments made to Erwin G. Deye on the basis of ten cents per unit on all sales of electrotype sold as “Step and Repeat.” The journal introduced in evidence shows these payments designated as “Allowances for Step and Repeat.” However, under cross-examination,' Joseph A. Deye admitted that he had originally recorded these payments on the cash journal as “royalties," and after making numerous entries of this character, erased the word “royalties” and substituted the word “allowances.” The books clearly show these erasures and it appears to be the fact that the erasures were made after February 7, 1946, that is to say, after Erwin G. Deye left the .employ of the defendants, because the entry for the month of .January, 1946 shows a similar erasure to that which occurs in the preceding months.

The voucher register of the partnership also indicates similar erasures and substitutions of the word “allowances” for “royalties” in the entries recording the payments to the plaintiff.

Joseph A. Deye admitted that he had made the erasures and the substitutions in these books. His explanation was that he had erroneously described the payments as “royalties” in the original recording of these items and that he made the changes in the books in order to conform the records to the facts. He denied that his action in this respect was directed by his brother, Charles E. Deye.

It appears to the court, however, that the combination of circumstances indicates that the probable motive in making these erasures and the change in the designation of' the payments from “royalties” to “allowances” was to delete from the books such entries as might corroborate the plaintiff’s claim to royalty payments. Whether Charles E. Deye directed these changes is immaterial, since Joseph A. Deye’s.acts had equal effect to bind the corporation, but it is more than likely that in view of Charles E. Deye’s complete domination of the business and of his brother, he was not unaware of these changes.

It is also significant that Joseph A. Deye, who prepared Erwin G. Deye’s income tax returns and declarations of estimated income, listed these payments on Erwin G. Deye’s individual tax return, which he prepared in the early part of 1946, as “royalty” payments.

Charles E. Deye denied that he had ever made an agreement with Erwin G. Deye providing for royalty payments on the “Step and Repeat” patent. His version of the facts was that Erwin G. Deye was constantly pressing him for increased compensation unrelated to the patent assignment; that the wage stabilization law which was in effect during the war years prevented the company or the partnership from increasing Erwin G. Deye’s salary; and that in order to appease his brother he decided to give him an increase in compensation and to avoid the penalties of the law in so doing, by falsely designating these payments as commissions on sales and royalties under the “Step and Repeat” patent.

In other words, Charles E. Deye attempts to contradict the evidence indicating the existence of a contract by asserting that the payments to his brother were not in fact royalties, as they were designated, but were voluntary increases in compensation and were falsely reported as royalties to circumvent the law which prohibited such increases. He admits violation of the Wage Stabilization Law and the income tax law to explain away the book entries which support the plaintiff’s claim. Such an admission must be critically examined.

In the light of all the facts, the defendant’s “explanation” is unconvincing. The court concludes that the evidence establishes that the plaintiff did enter into an express oral agreement with the defendants. This agreement, in substance, provided that in consideration of the plaintiff’s assignment of his invention patent rights to the defendant corporation he would be paid a royalty of ten cents a unit on all units of electrotype billed and sold by the defendant corporation as “Step and Repeat” units. This agreement provided that the measure of compensation to be paid to the plaintiff was to be based upon all units sold under the “Step and Repeat” designation, whether or not these units were manufactured under the patented process. This is the fair interpretation of the evidence based upon the oral testimony, as well as the significant admissions contained in the defendants’ own records..

The terms of this agreement represented the final culmination of the arrangements pursuant to the original understanding between the brother that Erwin G. Deye would be compensated, in a manner to be determined in the future, if his invention proved profitable to the business.

' In addition to denying the existence of the alleged agreement, the defendants claim that they have no obligation to the plaintiff because, under the circumstances of the case, they acquired a “shop right” in the plaintiff’s invention under established principles of law. A “shop right” is a right which, under certain circumstances, the law recognizes in an employer to practice and use, without compensation, an invention developed by an employee. It is, in .effect, a nonexclusive license to use, manufacture and sell the invention without financial obligation to the inventor. A “shop right” arises where an employee, even though not hired by his employer for the particular work of inventing, conceives and perfects an invention during his hours of employment and working with his employer’s materials and appliances and .at his employer’s expense.

Under such circumstances the law considers, on the basis of enuitable principles, that since the servant has used his master’s time, service and materials to attain the concrete result embodied in his invention, the employer is in equity entitled to use that which is the fruit of his own property and to do so without further financial obligation to the inventor. These principles are well established by a long line of decisions, examples of which are: United States v. Dubilier Condenser Corp., 289 U. S. 178, 77 L. Ed. 1114; McClurg v. Kingsland, 42 U. S. 202, 11 L. Ed., 102; Solomons v. United States, 137 U. S. 342, 34 L. Ed., 667; Gill v. United States, 160 U. S. 426, 40 L. Ed. 480; Pressed Steel Car Co. v. Hansen, 137 F., 403.

The subject has recently been reviewed by our own Supreme Court in The Gemco Engineering & Manufacturing Co., Inc. v. Henderson, 151 Oh St, 95, 38 O. O. 556 (March 2, 1949).

It is clear, however, that as stated in The Gemco case, supra:

“An employee not under contract with his employer to invent, may protect himself against the establishment or accrual of a shop right in his employer in any invention or device perfected by such employee on his own time and at his own expense though during the period of his employment, by words, acts or conduct which clearly negate the establishment or accrual of such shop right.” •

While, in the syllabus of The Gemco case above quoted', words are used which Indicate the right of an employee to1 prevent the creation of a “shop right” to an invention created' on the employee’s own time and at his expense by agreement or conduct inconsistent with a “shop right,” this .syllabus must be read in the light of the facts of that case. It is. not only with regard to inventions which are perfected by an employee on his own time and at his own expense that a shop right may be defeated, but it is likewise true that if the employer and the employee by contract or by other clear cut expression of intention enter into arrangements whereby the employer agrees to compensate the employee for any invention which he may develop, either working on his own time or on the employer’s time, then such agreement is effective and determines the relationship of the parties with regard to the invention. In other words, parties may contract as they wish and it is entirely within the rights of an employer to contract away a “shop right” which would arise under equitable principles if no agreement were made. An express agreement supercedes an implied right which would come into existence if the parties remained silent. Brown v. L. V. Marks & Sons Co., 64 P. Supp. 352; Oliver v. Autographic Register Co., 177 A. 680 (N. J.).

Furthermore, it -is clear that a “shop right” is merely' a non-exclusive right to use as distinguished from an exclusive, absolute right in the patent or invention. The law inclines strongly to the rule that an invention shall be the property of the inventor and that nothing short of a clear and specific agreement to that effect will vest the property or title to the invention in the employer.

As is very aptly stated in U. S. Colloid Mill Corp. v. Myers, 6 Fed. Supp. 283 (1934 D. C.):

“There is some popular notion that so far as concerns inventions, employees sell their brains to employers, but that is not the law. On the contrary the Supreme Court has thoroughly established that, while certain shop rights in inventions made by an employee while engaged in the work of his employment may accrue to the employer, no title thereto passes unless there be a plain or ambiguous contract by the employee to turn it over to his employer. Only by such a contract can title to the employee’s invention be attained.”

See also United. States v. Dubilier Condenser Corp., 289 U. S. 178; Dinwidde v. St. Louis and O’F. Coal Co., 64 Fed. (2d) 303; Mosby Co. v. Jones, 303 Ill. App. 234, 24 N. E. (2d) 873; Howard v. Howe, 61 Fed. (2d) 577; Restatement of the Law of Agency, Sec. 397; Hapgood v. Hewitt, 119 U. S. 226.

Applying these legal principles to the facts in this case, we conclude that the defendants did not acquire a “shop right” in the invention patented by the plaintiff for two reasons:

First, the evidence indicates that the parties contracted with respect to the situation which would exist if the plaintiff’s patent proved profitable in the business, that is to say, they expressly contracted that the plaintiff was to receive a royalty for the assignment to them of his exclusive patent rights.

Second, we are dealing here not with a “shop right” as such, but with the express assignment of a patent. That is to say, the defendants consider themselves to be and are in fact, the exclusive owners of the patent involved by virtue of the voluntary assignment of all patent rights made to the defendant corporation by the plaintiff. In other words, the defendant corporation has acquired the exclusive and absolute right to the use of this, invention by grant from the plaintiff, which is much more than the law would entitle it to if it were asserting merely a “shop right.” Since the comprehensive rights granted to the defendant by virtue of the absolute assignment could arise only by assignment and not by implication of law under the “shop right” doctrine, the real question before us is not whether a “shop right” exists, but rather whether the assignment was gratuitous or based upon consideration. This question, as we have stated, requires, under,the evidence, the answer that the assignment was not gratuitous, but was given in exchange for a promise to pay royalties.

The agreement made between the parties was silent as to the time or term during which these agreed payments were to be made to the plaintiff. However, the law seems clear that in an agreement involving the assignment or license of a patent, when the agreement does not contain express limitations as to its duration, it continues during the life of the patent. Motor Car Co. v. Packard Co., 124 Oh St, 363.

It does not clearly appear whether the payments to be made plaintiff were the obligation of the defendant corporation or the defendant partnership. The patent was assigned to the corporation, but plaintiff was employed by the partnership, and royalty payments from 1944 to 1946 were charged to the partnership. But this does not seem of importance in view of the fact that, while technically separated, the corporate and partnership business are closely combined. While the partnership technically employed plaintiff, the corporation, through sales of the units, received the benefit of his invention. Under these circumstances, both defendants may be held.

There is only one other matter to be considered. The plaintiff, at the trial of the case, did not produce evidence showing the number of units which had been sold by the defendant corporation under the “Step and Repeat” designation for the period involved in this action. Such evidence obviously requires an examination of the defendants’ records and billings during the years involved. By stipulation during the trial, the parties agreed to permit the defendants’ accountants to make such examination and to report their findings to the court. By subsequent stipulation the parties agreed to postpone the work and expense of this accounting procedure until the court decided the' merits of the case.

In view of this decision now announced, the court directs the parties to proceed with the accounting determination as to the number of units sold by the defendant corporation under the “Step and Repeat” designation since January 31, 1946 to the date of the filing of the second amended petition, May 25, 1950, or to determine the number of units by agreement between them, if that is possible.

Upon the determination of such facts and the report thereof to the court, judgment may be entered by the plaintiff in accordance with this opinion and on the basis of ten cents a unit of electrotype sold by defendant corporation under the “Step and Repeat” designation during the period above set forth.


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    KIPP, Plaintiff-Appellant, v. KIPP, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21970.
    Decided December 4, 1950.
    Theodore E. Schwartz, for plaintiff-appellant.
    Malcolm Y. Yost, Cleveland, .for defendant-appellee.
    (GUERNSEY, PJ, and MIDDLETON, J, of the Third District, PHILLIPS, J, of the Seventh District, sitting by designation in the Eighth District.!
   OPINION

Per CURIAM:

Under the decisions of the Courts of Ohio, the rights of the parties to a joint and survivorship deposit account are. based wholly upon contract and no terms or conditions not expressed in the contract are implied or recognized.

Common Law Estates in. Entirety are not recognized or given effect by the Courts of Ohio and the rules applicable to joint and survivorship deposit accounts in jurisdictions where such estates are required has no application to such accounts under the laws of Ohio. Exc. O. S. J.


author: By THE COURT.

text:
    ROBINSON, Plaintiff-Appellant, v. PARKER, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4359.
    Decided March 30, 1950.
    Walter R. Hill, Columbus, for plaintiff-appellant.
    Frank C. Shearer, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a motion submitted by the defendant-appellee seeking an order dismissing the appeal for the reason that the question involved has now become moot.-

The record discloses that the action was one in forcible entry and detention; that judgment was rendered for the defendant-appellee and from this judgment the plaintiff prosecutes this appeal. In support of the motion the appellee tenders a photostatic copy of a receipt for $35.00 given for use and occupation of the premises involved herein, covering the period from February 19, 1950, to March 19, 1950. This was not in payment of rent, it must be noted, but for use and occupation of the premises and accruing after the judgment. The appellant is contending that the payment of this $35.00 constitutes a renewal of the contract of tenancy and therefore the question presented has become moot. This Court decided in the case of Musselman v. McCormick, 42 Abs 536, that such a payment does not constitute a defense to a forcible entry and detainer action. We will adhere to our former ruling on this proposition. The question has therefore not become moot and the motion will be overruled, and the appellant’s motion to strike will likewise be overruled.

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

APPEAL IN ACTION FOR FORCIBLE ENTRY AND DETAINER

No. 4359.

Decided January 30, 1951.

OPINION

By WISEMAN, J.

This is a law appeal from the Municipal Court of Columbus in an action for forcible entry and detainer in which the Court rendered judgment for defendant.

It is conceded that the premises in question are under the control of the Area Rent Director. The plaintiff applied for and was issued a Certificate of Eviction on June 2, 1949, effective immediately, for the purpose of remodeling under the provisions of §825.6 (c) (3) GC. On June 14, 1949, the plaintiff served the defendant with a notice to leave the premises on or before June 18, 1949. The action was instituted July 5, 1949.

At the trial the plaintiff introduced into evidence the notice to leave the premises and the plaintiff testified that the defendant was served personally with the notice. The plaintiff also introduced into evidence the Certificate of Eviction issued by the Area Rent Director. An employee of the Columbus Office of Housing Expediter testified that the Certificate of Eviction had been issued. Plaintiff having rested his case a discussion took place between counsel and the Court relative to the proof required to sustain the plaintiff’s cause of action. The Court sustained defendant’s motion to dismiss.

Several errors are assigned, the principal one being that the judgment is contrary to law. The two principal questions presented are:

(1) Must the notice to leave the premises specifically set forth the grounds upon which the landlord relies to evict the tenant and which Were the basis for issuing the Certificate of Eviction? And

(2) Must the landlord offer proof in support of the grounds upon which such Certificate of Eviction was issued?

This Court in Jackson v. Richards, 47 Abs 631, 70 N. E. (2d) 692, answered both of these questions in the negative. Later this Court in Hile v. Besecker, 82 Oh Ap 301, 308, 50 Abs 239, 79 N. E. (2d) 582, answered the second question in the negative. Defendant-appellee contends that since these opinions have been announced §825.6 (b) GC has been amended effective April 1, 1949, and that therefore these cases cannot be. considered as precedents. Sec. 825.6 (b) GC in part provides:

“(b) Notice required. (1) No tenant shall be removed or evicted from housing accommodations by court process or otherwise and no action or proceeding shall be commenced for such purpose upon any of the grounds permitted in paragraph (a) of this section unless and until the landlord shall have given written notice to the Area Rent Office and to the tenant as provided in this paragraph (b) (1).

Every such notice to a tenant to vacate or surrender possession of housing accommodations shall state the ground under this section upon which the landlord relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the, tenant is required to surrender possession. Where the ground for removal or eviction of a tenant is nonpayment of rent such notice shall include a statement of the rent due and the rental period or periods for which such rent is due. A written copy of every notice required by this paragraph (b) and (1) shall be filed with the-Area Rent Office within 24 hours after such notice is given to the tenant.” (Emphasis ours.)

In our opinion this section applies where the landlord seeks to evict a tenant on one of the grounds set out in §825.6 (a) GC and has no application to a case where the landlord seeks to evict a tenant on one of the grounds mentioned in §825.6 (c) GC, where the landlord has been issued a Certificate of Eviction. In the instant case the plaintiff seeks to evict the tenant under §825.6 (c) (3) GC on the ground that the premises are to be remodeled. In such case the notice to leave the premises need not set out the ground for eviction; neither is the landlord required to offer proof in support of the ground upon which the Certificate of Eviction is issued. We reaffirm our ruling in Jackson v. Richards and Hile v. Besecker. See also an unreported case of Doney v. Harrison, Court of Appeals, Franklin Co, case No. 4378, decided March 9, 1950.

Judgment reversed and cause remanded for further proceedings according to law.

MILLER, PJ, and HORNBECK, J, concur.


text:
    STATE ex DOOLEY, Plaintiff-Appellee, v. GATTERDAM, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4471.
    Decided September 7, 1950.
    Cowan & Adams, Columbus, for plaintiff-appellee.
    Peter Albietz, John M. Scott, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a motion seeking an order affirming the judgment for the reason that no bill of exceptions has been filed in the trial court or this court within the time required by §11564 GC and Rule VII of this Court.

The record discloses that on June 19, 1950, the law and fact appeal was dismissed but the case was retained for determination on questions of law. The time for the filing of the bill of exceptions is provided for by Supplement to Rule VII of this Court and §11564 GC which provides that the time for the settlement of a bill of exceptions shall not exceed 30 days. The Court may decrease the filing time, but cannot increase it beyond the statutory period. Compliance with the Code requirements as to time for filing is mandatory. Tee-garden v. Teegarden, 80 Oh Ap 78, 79; Bussard v. Kennedy, 83 Oh Ap 381.

An examination of the assignment of errors and brief discloses that a bill of exceptions is necessary to exemplify the errors complained of.

The motion to affirm will be sustained.'

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


text:
    BATTELLE MEMORIAL INSTITUTE, Application of, In re.
    Board of Tax Appeals.
    No. 19496.
    Decided May 24, 1951.
    Eagleson, Laylin & Laird, Columbus, for applicant.
    Hon. C. William O’Neill, Atty.' Geni., Robert E. Leach, Asst. Atty. Geni., Columbus, for John W. Peck, Tax Commissioner of Ohio.
   ENTRY

.This cause and matter came on to be considered by the Board of Tax Appeals upon the above styled application filed herein under date of February 13, 1951. Said application seeks from this Board an order declaring that intangibles owned by applicant are exempt from taxation under the provisions of §5328-la GC.

Upon consideration thereof, the Board of Tax Appeals is now of the opinion that §5328-la GC does not confer upon the Board of Tax Appeals any original jurisdiction to exempt intangibles from taxation.

Under date of April 23,1948, the Board of Tax Appeals caused to be entered upon its journal an entry in the case of In re Application of Cleveland Memorial Medical Foundation (reported in 38 O. O. at page 255) wherein a majority of the Board as then constituted, found that said Board did have original jurisdiction to exempt intangibles from taxation under the provisions of §5628-la GC. This journal entry had the effect of discarding a former entry of this Board on the same question — In re Judson Palmer Home (Case No. 11472 — journalized August 19, 1946), wherein the Board said:

“The first question presented to the board of tax appeals on this application is as to the authority of the board to make an order consenting to the exemption of the above described property from taxation under the provisions of §5328-la GC, or under the provisions of any other sections of the General Code of this state. Although the board of tax appeals, in proper cases, may make orders exempting property from taxation under either §5570-1 GC, or under §5616 GC, the provisions of the last named section relating, among other things, to complaints filed with the board of tax appeals from decisions or orders of the county auditor refusing to place property on the tax exempt list of the county, has no application to cases involving tangible or intangible personal property — and this for the reasons set out in the decision of the board of tax appeals in the case of Zindorf v. Otterbein Press, 18 O. O. 65. We must look, therefore, to the provisions of §5570-1 GC, (read in connection with the provisions of §1464-1 GC), as the sole authority of the board of tax appeals with respect to the exemption from taxation of property of the kind here in question. Sec. 1464-1 GC provides, among other things, that the board of tax appeals shall ‘exercise the authority provided by law relative to consenting to the exempting of property from taxation, and revising the list of exempted property in any county.’ Looking to the provisions of §5570-1 GC, which section was enacted in its present form by an amendment of the section, effective under date of August 21, 1941, it is noted that it is thereby made the duty of the county auditor ‘to make a list of all the property, both real and personal, in his county, and including moneys, credits and investments in bonds, stocks, or otherwise, which is exempted under §§3410-6, 4759 (4834-16), 5349, 5350, 5351, 5352, 5353, 5353-1, 5356, 5357, 5359, 5361, 5362, 5363, 7915-1, 10033, 10101, 10105 and 10192 GC.’ This section further provides that ‘no additions shall be made to such exempt lists nor additional items of property exempted under any of the sections enumerated herein without the consent of the board of tax appeals, but when any personal property or endowment fund of an institution has once been held by the board of tax appeals to be properly exempt from taxation, it shall not be necessary to obtain the board’s consent to the exemption of additional property or investments of the same kind belonging to the same institution.’’ From the provision of this section that no additions shall be made to such exempt lists, nor additional items of property exempted ‘under any of the sections enumerated herein without the consent of the board of tax appeals,’ the authority of the board of tax appeals to consent to the exemption from taxation of property under one or more of the sections of the General Code therein enumerated, is clearly implied.

Sec. 5353 GC is one of the sections of the General Code referred to in §5570-1 GC; and clearly the board of tax appeals would have jurisdiction and authority to consent to the exemption from taxation of property in cases coming within the purview of this section of the General Code. Prior to its recent amendment §5353 GC provided, among other things, that ‘property belonging to institutions used exclusively for charitable purposes, shall be exempt from taxation.’ In the' case of Wehrle Foundation v. Evatt, Tax Commissioner, 141 Oh St 467, the Supreme Court of this State held that the term ‘property’ as used in this section covered tangible and intangible personal property as well as real property; and that in proper cases the board of tax appeals had authority to exempt from taxation both real and personal property. In this case the Court further held as follows:

‘The word “institütions” as used in §5353 GC, is descriptio personae and describes the owners or holders whose property may be exempted provided such property is used exclusively for charitable purposes.
‘While Section 2 of Article XII of the Constitution authorizes the General Assembly to exempt institutions used exclusively for charitable purposes, such provision is not self-executing. The extent to which the General Assembly has acted under such authorization is to exempt' property belonging to an institution provided such property is used exclusively for charitable purposes.
‘Property held by a nonprofit corporation for the purpose of ultimate distribution to such selected organizations as are operated for religious, charitable, scientific, literary or educational purpose's, or for the prevention of cruelty to children or animals, is not exempt from taxation under §5353 GC. Such property so held is not being used exclusively for charitable purposes, the test being the present use of the property.’

The property involved in the Wehrle case consisted of a small amount of cash in the bank and certain securities of a large amount and value and referred to as investments— intangible property. And specifically, the decision of the Court in this case was that before property of this kind would be entitled to exemption from taxation such property was required to be used exclusively for charitable purposes; and that it was not sufficient to show that the income from such investments was used for this purpose. Sec. 5353 GC, above referred to, was later amended by an act, effective under date of September 27, 1945. As amended this section reads ‘Real and tangible personal property belonging to institutions used exclusively for charitable purposes, shall be exempt from taxation.’ By this amendment investments and other forms of intangible property have been eliminated from the purview of the section; and neither the board of tax appeals nor any court of competent jurisdiction, for that matter, would have any authority to exempt from taxation the intangible property of The Judsón Palmer Home involved in this case — so far as the present provisions of §5353 GC, are concerned. At the same time the legislature amended the provisions of §5353 GC, in the respect above noted, it enacted §5328-la GC, as a supplement to the provisions of §5328-1 GC. Sec. 5328-1 GC, is the declaratory statute with respect to the taxation of intangible property, and provides ‘all moneys, credits, investments, deposits, and other intangible property of persons residing in this state shall be subject to taxation, excepting as provided in this section or as otherwise provided or exempted in this title.’ Sec. 5328-1 GC, above referred to, reads as follows:

‘Moneys, credits, investments, deposits and other intangible property belonging, either legally or beneficially, to corporations, trusts, associations, funds, foundations or community chests, organized and operated exclusively for religious, charitable, scientific, literary, health, hospital, educational, or public purposes, exclusively for the prevention of cruelty to children or animals, or exclusively for contributing financial support to' any such purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation* shall not be subject to taxation.’

, Sec. 5328-la GC, above quoted, is, in a sense, an exemption statute in that intangible property within the purview of the provisions of the section, is excepted from liability for taxation otherwise imposed by the more general provisions of §5328-1 GC. However, §5328-la GC is not, eo nomine, a tax exemption statute; and more to the point, perhaps, this section is not one of the sections of the General Code enumerated in §5570-1 GC, which fixes the authority of the board of tax appeals with respect to the exemption of property from taxation. In the case of Steward v. Evatt, Tax Commissioner, 143 Oh St 547, the Supreme Court held:

“The Board of Tax Appeals is a creature of statute and is limited to the powers with which it is thereby invested.’

It follows, therefore, that since intangible property of the kind involved in this case has been eliminated from the provisions of §5353 GC, and §5570-1 GC, has not been amended so as to include §5328-la GC,.as one of the sections under which the board of tax appeals may consent to the exemption from taxation of the kind of property therein described, the board of tax appeals has no jurisdiction or authority to grant the exemption requested in this case.

The fact that the legislature in and by the Act of June 27, 1945 — effective September 27, 1945 — , amended 5353 GC, so as to eliminate from its provisions intangible personal property of the kind described in this application, and by the same Act included such property in the provisions of §5328-la GC as a supplement to §5328-1 GC, relating generally to the taxation of intangible personal property, in itself supports the view that it was and is the legislative intent that the question as to whether intangible property of this kind is so owned, held and used as to be nontaxable under the provisions of §5328-la GC, is a question to be determined in the first instance by the tax commissioner in the assessment of the intangible and personal property of the taxpayer for the tax year in question, rather than by the board of tax appeals. The final order made by the tax commissioner in the determination of this question could, of course, be appealed to the board of tax appeals under the provisions of §5611 GC, either by the taxpayer or by the county auditor or other officer mentioned in said section.

However, on the considerations above noted and discussed, the board of tax appeals is of the view that it has no jurisdiction and authority to determine, in the first instance, the question of the taxability or non-taxability of the intangible property here in question by acting upon this application for tax exemption: and for this reason it is by the board considered and ordered that said application for tax exemption be and the same hereby is dismissed.”

As indicated above, the Board of Tax Appeals is now convinced that the entry in the Judson Palmer Home case, supra, accurately sets forth this Board’s jurisdiction concerning §5628-la GC, and the conclusion therein is adopted in the instant case; and In re Application of Cleveland Memorial Medical Foundation, 38 O. O. 255, is hereby expressly overruled.

Upon the above considerations it is ordered that the application for tax exemption and remission filed herein by the Battelle Memorial Institute' be, and the same hereby is, dismissed.

I hereby certify the foregoing to be a true and correct copy of the action of the Board of Tax Appeals of the Department of Taxation this day taken with respect to the above matter.

Joseph D. Bryan

Secretary


author: By DOYLE. J:

text:
    SUTTER, Appellee, v. HILL, d. b. a. SINCLAIR-HILL COMPANY et, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21881.
    Decided June 19, 1950.
    John V. Corrigan, Cleveland, for appellee.
    B. C. Turner, Cleveland, for appellant.
    (HUNSICKER, PJ, DOYLE, J, of the 9th District, FESS, J, of the 6th District, sitting by designation.)
   OPINION

By DOYLE. J:

Ann Esther Sutter commenced an action in the Court of Common Pleas of Cuyahoga County against William M. Hill and The Aetna Casualty & Surety Company, in which it was alleged that the said Hill was a duly licensed real estate broker with a bond executed and delivered to the State of Ohio in compliance with §6373-35-GC, with The Aetna Casualty & Surety Company as surety for the broker, and conditioned upon the faithful observance of all of the provisions of the act regulating real estate brokers, and to indemnify any person who might be damaged by a failure on the part of the broker to conduct his business in accordance with the requirements of §6373-25 to §6373-51 GC.

In her petition she alleged that she signed a written offer to purchase certain real estate “on which property defendant broker * * * held an exclusive right to sell on behalf of the owner * * *; that * * * she paid to said broker, doing business as the Sinclair-Hill Realty Company, * * * a partnership, the sum of $500.00; that said amount in accordance with the terms of the contract was to be credited to her account or was to be returned to her upon demand in the event her written offer to purchase was not accepted within thirty days; that defendant broker wholly failed to convey said offer to purchase to the seller; that at the expiration of the thirty-day period plaintiff made demand, according to the terms of the written offer to purchase, for the return of her money; and that defendant broker has failed within a reasonable time to account for, or to remit, or to return, the money which came into his possession which rightfully belongs to the plaintiff.”

The record shows the defendant Hill to be in default of answer to the petition, although the record indicates service of process upon him. The surety company answered by admitting that “it became surety for Wm. M. Hill as a real.estate broker pursuant to §6373-35 GC,” but in further answering denied “each and every allegation of plaintiff’s petition not specifically * * * admitted to be true.”

Upon these pleadings a jury was waived and the cause was tried to the court.

The narrative bill of exceptions recites that at the commencement of the trial “the court stated that since proper service had been made on Wm. M. Hill, the plaintiff was entitled to default judgment against him.” There was then introduced evidence showing that the plaintiff had contacted the realty office of Sinclair-Hill & Company and negotiated with a Mr. Sinclair for the purchase of certain property advertised by the realty company, and, in connection with her offer of purchase evidenced by a signed purchase agreement submitted to her by Sinclair, she gave to Sinclair a money order for $500.00.

At no place in the entire record is there any credible evidence tending to prove that the defendant Hill was a partner in Sinclair Hill & Company, or that he had any connection with the firm or with the plaintiff. Any conclusion that he was associated with Sinclair or the firm of Sinclair Hill & Company or had any dealings with the plaintiff, either directly or indirectly, would be mere guess and speculation.

On February 2, 1950, the following judgment was entered of record:

“A jury having been waived the court finds in favor of and renders judgment for plaintiff against defendant William M. Hill for $535.00 and costs. No record. (Heard and submitted as to Aetna Casualty & Surety Company, Hartford, Conn., a corporation.) ”

On March 9, 1950, appears the following judgment entry:

“A jury having been waived the court finds in favor of and renders judgment for plaintiffff against defendant The Aetna Casualty & Surety Company for $535.00 and costs. No record.”

Appeal was perfected to this court from the judgment last noted (March 9, 1950), and the following errors are assigned as grounds for reversal:

“1. Having received evidence that the plaintiff had no cause of action against defendant Wm. M. Hill, the court erred in entering a default judgment;
“2. The court erred in overruling the defendant’s motion for judgment made at the close of plaintiff’s case:
“(a).'The court erred in accepting the principal’s default as conclusive against the surety;
“(b) The court erred in finding against the surety when there was no evidence against the principal.
“3. The court erred in overruling the defendant’s motion for judgment at the close of all the evidence.”

In consideration of the above claims, we are of the opinion that the claim of error first asserted is not tenable. Appeal was not taken from that judgment, and certainly we cannot in this appeal from a different judgment, rendered against another party, determine the merits of the default judgment against Hill.

Proceeding now to the second claim of error, we determine the law to be that where, in an action by a creditor against a principal, judgment is obtained by default against the principal, and. the creditor then continues his action against'the surety, the rendition of the judgment by default against the principal does not create a rebuttable presumption of the principal’s liability, nor does it establish a prima facie case. Proof of the default judgment against the principal is evidence only of the fact of its rendition., Restatement of the Law, Security, Sec. 139 (3), and Comment on Subsection (3) at page 375.

However, in the case under consideration, assuming that the default judgment is some evidence of the surety’s liability, the facts before us rebut such evidence to such a degree that reasonable minds might conclude only that no case was made against the surety.

For the reasons stated, the judgment under review is reversed, and the cause is remanded.

HUNSICKER, PJ, and FESS, J, concur.


author: By PHILLIPS, PJ.

text:
    BLOODWORTH et, Plaintiffs-Appellants, v. RAPPORT, Defendant-Appellee.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 680.
    Decided June 7, 1950.
    Harry Brokaw, East Liverpool, for plaintiffs-appellants.
    Ben H. Berman, East Liverpool, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

In this opinion plaintiffs-appellants and defendant-appellee will be called plaintiff and defendant respectively.

Plaintiffs, seventeen heirs of J. T. Croxall, deceased, allegedly acting by and through Attorney Harry Brokaw, their duly authorized and acting attorney in fact, executed the following contract with defendant, and paid the money receipted for therein:—

“Received of Maurice Rapport the sum of One Hundred ($100.00) Dollars as part payment for the Croxall Chemical and Supply Company property, consisting of the building and an additional lot fronting on Broadway and Union Streets, with a thirty-five (35) foot frontage.
“The said Maurice Rapport agrees to pay for said property the sum of Twelve Thousand Five Hundred ($12,500.00) Dollars and said Harry Brokaw agrees to sell said property for said price. One Hundred ($100.00) Dollars having this day been paid and the balance of Twelve Thousand Four Hundred ($12,400.00) Dollars shall be paid upon delivery of a good and sufficient deed, free and clear of any encumbrances, conferring said real estate to Maurice Rapport and Sara Rapport.
“This agreement is by and between said Harry Brokaw, acting under power of attorney for his clients, who he represents as being all of the heirs of Joseph T. Croxall, deceased and Maurice Rapport. Said Maurice Rapport and Sara Rapport will take possession of said premises on this 24th day of October, 1947.
Harry Brokaw
Maurice Rapport.”

Defendant took possession of the real estate described in such contract on October 24, 1947, and shortly subsequent thereto, "about three or four days,” allegedly without advising plaintiffs of his intention to rescind such contract, nor informing them of his reason therefor, nor making any demand of any nature upon plaintiffs, advised them (through their attorney in fact) that he had decided not to keep the real, estate described therein.

Subsequently, after duly endeavoring to sell such real estate for $12,500.00, plaintiffs sold it for $10,000.00, the alleged highest price obtainable, and sued the defendant in the • court of common pleas for damages for $2400.00, the difference between the contract and sale prices less the down payment of $100.00.

The jury returned a verdict for defendant, upon which the trial judge duly entered judgment, from which judgment plaintiffs appealed to this court on questions of law.

While plaintiffs assigned no • grounds of error separately formally in their brief, yet we assume from the argument of their counsel, made orally and by brief; that they contend that the trial judge erred to their prejudice in his general charge to the jury, and contend that the verdict of the jury and judgment entered thereon are against the manifest weight of the evidence and contrary to law.

While the power of attorney naming plaintiffs’ attorney in fact was a matter of record on October 24, 1947, yet the evidence discloses that on that date the power of attorney naming the same person attorney in fact for plaintiffs’ spouses, as for plaintiffs, was executed, secured and recorded subsequent thereto. Accordingly on the date of the execution of the contract with defendant the attorney in fact could not release dower. However at the time of the sale of such real estate for $10,000.00 the necessary releases of dower had been procured, and plaintiffs could, and did, prepare a deed conveying such premises to the purchaser by an instrument satisfactory to him; and there is evidence that the respective parties were so informed, and that the question of time of conveyance was discussed.

Plaintiffs contend that the contract did not specify any date for deeding such real estate.

Plaintiffs’ evidence is that the possible inability or delay in furnishing a good and sufficient deed was discussed immediately prior to the signing of the purchase agreement; that “I (Harry Brokaw) didn’t actually hand him the deed, but I had it ready and called him on the telephone, and he said that he didn’t want it, and wouldn’t take it”; that plaintiffs’ attorney in fact and real estate broker considered the market value' of such property was $10,000.00 at the time it was sold to defendant for $12,500.00.

Defendant’s evidence is that at the time of the execution of the agreement he believed the attorney in fact possessed the powers of attorney necessary to execute the deed to the property forthwith, which he thought had a market value of $12,500.00; that upon inquiry made after the execution of such agreement he was informed by the attorney in fact that he did not know when he could deliver the deed to such property; that he had not secured power of attorney from all of husbands and wives of the heirs of J. T. Croxall, deceased, some of which heirs were separated from their spouses; that an action in partition might be necessary before the deed could be delivered, which action would delay delivery thereof; that it was after receipt of such information that defendant rescinded and refused to pay the balance of the purchase price due on such property; that several months subsequent thereto he was notified that a deed to the property he had agreed to buy was ready for delivery, which he never refused to accept; that when delivery of the deed was discussed he referred the attorney in fact to his attorney at law, which the attorney in fact admitted; that subsequently the property was sold by the attorney in fact, and no real estate brokerage fee paid, and that plaintiffs incurred no loss.

On pre-trial the respective parties stipulated:—

“It is stipulated by and between counsel for plaintiffs and counsel for defendants, that plaintiffs’ Exhibit “a” was signed on October 24, 1947, and that at that time Harry Brokaw had Power of Attorney for certain of the heirs of Joseph T. Croxall, deceased, but that he did not have Power of Attorney for the husbands and wives of the heirs of Joseph T. Croxall deceased.
“It is.further, stipulated by and between counsel that at the time said agreement was signed Judge Brokaw stated that he was in the process of obtaining the power of attorney from the husbands and wives of the heirs of Joseph T. Croxall, deceased.
Harry Brokaw
Attorney for the Plaintiffs
Ben H. Berman
Attorney for the Defendants.”
In his general charge to the jury the trial judge said:—
“Now, if at the time the agreement was signed and the $100.00 was paid and the keys were delivered Mr. Rapport did not know that Mr. Brokaw did not represent, or did not yet have power of attorney from the husbands and wives, that if he found that out after the agreement had been signed and money paid and delivered to him, he did have a right within a reasonable time to decide whether he would go on with it or whether he would rescind it.”

By the foregoing charge the trial judge is accused of leading the “jury astray” and committing error prejudicial to plaintiffs.

We have read the general charge of the trial judge to the jury carefully, and in its entirety, keeping in mind that the trial judge is charged with repeating and thus emphasizing the quoted claimed erroneous charge. Basing our decision upon the evidence submitted to us for review, and construing such charge as a whole, we conclude that the trial judge erred to plaintiffs’ prejudice in his charge in the respects urged by plaintiffs.

Accordingly the judgment of the court of common pleas being contrary to law for error of the trial judge in his general charge to the jury stated supra is reversed.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. MINNIEAR, Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 157.
    Decided March 23, 1951.
    Blake & Lewis, Sidney, for plaintiff-appellee.
    Cummins & Boiler, Sidney, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from an order overruling a motion for a new trial and also a motion for a judgment notwithstanding the verdict. The record reveals that the appellant was charged with dumping refuse in violation of §12652 GC; that the jury returned a verdict of guilty but that sentence has never been pronounced. It would therefore appear that this Court has no jurisdiction to pass upon the question presented. Sec. 13459-4 GC provides that an appeal in a criminal case may be filed as a matter of right within “thirty days from sentence and judgment.” In the case of State of Ohio v. Clark, 61 Oh Ap 156, at page .157 the court says:

“We have not found any cases in which a similar holding has been made as to criminal cases but on the contrary have found that it has always been the rule in this state that error proceedings do not lie in a criminal case before final judgment in the case. Inskeep v. State, 35 Oh St, 482; Kinsley v. State, 3 Oh St, 508; Cochrane v. State, 30 Oh St, 61. And the various criminal codes of this state, from the beginning, have never provided otherwise. This rule is now embodied in §13459-4 GC, relating to appeals in criminal cases, which provides that ‘such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment such appeal may be filed only by leave of the court or two of the judges thereof.’ ”

See also State v. Feeser, 27 Abs 306; State v. Carmen, 31 Abs 330. Since this is a jurisdictional question the court has no power to consider the appeal, and therefore the same is sua sponte dismissed.

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


author: By BLYTHIN, J.

text:
    KRAUS, Plaintiff, v. HALLE BROTHERS COMPANY AND CITY OF CLEVELAND, Defendants.
    Common Pleas Court, Cuyahoga County.
    Nos. 603635, 603636.
    Decided July 14, 1950.

      Henderson, Quail, Schneider & Peirce, Frank A. Quail and Louis S. Peirce, for the Halle Brothers Company.
    Lee C. Howley, Director of Law, Robert J. Selzer, Asst. Director of Law, for the City of Cleveland.
    William J. Kraus, Myron D. Malitz and A. E. Greenfield, for William J. Kraus, a Taxpayer, etc.
   OPINION

By BLYTHIN, J.

These two causes were tried and are treated together, because the issues are precisely the.same in each.

The actions are brought by William J. Kraus, a taxpayer, on behalf of the City of Cleveland against The Halle Brothers Company and the City of Cleveland following demand by the plaintiff upon the proper officers of the city that such an action be brought, and rejection of that demand.

Defendant, The Halle Brothers Company is a corporation operating a department store and doing a general mercantile business.

Cause No. 603,635 concerns that portion of East 12th Street, in said city, a public thoroughfare which runs in a general southerly direction a distance of about two hundred and forty-five feet from Huron Road to Prospect Avenue and being about twelve feet wide.

On May 26, 1947 the Council of said City passed Ordinance No. 2835-46, which ordinance became effective July 6, 1947 and, in substance, authorized The Halle Brothers Company its successors and assigns to construct, maintain and use a bridge structure across said East 12th Street (twelve feet wide) and extending from Prospect Avenue northerly to about its intersection with Brownell Court, a distance of about ninety-six feet, and having a clearance above the grade of East 12st Street ranging from fourteen feet, eight inches to seventeen feet. The ordinance further authorized the company to construct, maintain and use under East 12th Street, across its full width, a reinforced concrete tunnel starting a very short distance north of Prospect Avenue and running under East 12th Street a distance of about eighty-two feet, with an inside height of approximately sixteen feet and with the ceiling not less than two and a half feet below the grade of. East 12th Street. . The ordinance stated plainly the purpose to be to permit the company to connect all floors above the second floor of two buildings of the company, one on each side of East 12th Street and to likewise connect the basements of those buildings. It also provided that the company was to be obligated to secure all customary permits and was to pay the entire cost and expense of supporting, altering, changing, moving or relocating any city owned structure made necessary by reason of the construction of the tunnel and that no structure or support was to be placed within East _12st Street between the established grade of the1 Street and the overhead clearance of the bridge and that the company was to provide the required artificial lighting within East 12th. Street covered by .the bridge structure and was to restore East 12th Street to as good a condition as before being disturbed by the authorized operations. All of these things were to be done to the- satisfaction and approval of the Director of Public Service of the city.

Section 3 of the Ordinance provided that the company was, upon the city’s modification or revocation of the authority then being granted, to support, alter, change, relocate or remove, at its own expense, the structures erected under the authority granted; such right of modification or revocation .being specifically retained for exercise whenever the public interest required it. It was also provided that the company was to be obligated, at its own cost and expense, to restore East 12th Street to its original condition following operations involved as a result of modification or revocation of the authority granted.

Section 4 of the Ordinance provided that the company, its successors and assigns, were to save the City harmless from any damage, loss or liability .for injury to persons or property, public or private, due to the contemplated constructions or by reason of the presence, use and maintenance of the structures, both above and below East 12th Street.

Section 5 provided for acceptance of the terms of the Ordinance by the company within twenty days after its passage.

The company accepted the terms of the ordinance by appropriate action within the twenty day period. The Halle Brothers Company is the long term lessee or the owner in fee of the properties on both sides of East 12th Street within the boundaries of the structures authorized by the terms of the ordinance and it will be noted that the ordinance, by its express terms, forbids any placing of any structure or support within East 12th Street. There is, in fact, no encroachment or structure on the surface of East 12th Street. The authority granted under the ordinance was to construct above and below the street surface. There is no proof that the use of the street surface has been interfered with beyond the period actually necessary for the construction operations. The tunnel or subway has been completed and the structure above has been completed to the extent of nine stories high and it is not claimed that the construction in any manner deviates from the authority granted. It is claimed by plaintiff that the company proposes to use, and is actually using, the space within the structures above and below the street for their general business use and that public rights are violated by the existence of the structures in that they occupy air and subterranean rights which are public property. It is also claimed that the ordinance itself is wholly void in that it presumes to authorize the use of public property for private use and is, therefore, an abuse of corporate power, wholly unauthorized and a violation of law. It is further claimed that the company is occupying “valuable land” free of taxation contrary to the provisions of the Constitution of the State of Ohio, Article VIII, Section 6, but no evidence was offered to substantiate such claim. It- is still further claimed that the reasonable rental value of claimed rights of the city occupied by the company is about $7500.00 per year and that unless relief is granted herein the company will continue to occupy rights of the public, and to the exclusion of the public, without compensation. .

Relief is sought to the extent of a restraining order to halt building operations over and under the street, an order declaring the ordinance of Council void; an order requiring the company to demolish and remove its constructions over and below the street; but if those are not granted there be found the reasonable rental value of the use of the street by the company and an order made for payment of same by the company to the city, and for other relief warranted by the pleadings and the evidence.

The issues in cause No. 603,636 can be said to be identical with those in cause No. 603,635. They are, however, raised between the same parties concerning a similar situation and construction on that section of East 12th Street running in a general southerly direction from Euclid Avenue to Huron Road, which construction proceeded under Ordinance No. 2011-45 passed' by the Council of the City of Cleveland on October 15th, 1945 which ordinance is similar in terms generally to Ordinance No. 2835-46 and differing from it only in such details as location, size of construction etc. East 12th Street between Euclid Avenue is approximately two hundred feet long and sixteen and a half feet wide. The construction underneath the street is across its entire width and for about seventy-two feet of the length. The construction above the street is about eleven stories high, across the entire width and for about ninety-eight feet of the length. The company owns, either on long term lease or in fee, the properties on both sides of East 12th Street and there is no encroachment by any structure on the surface of the street.

The Court cannot now consider the issuance of an order restraining the construction because it has already proceeded to completion. The company by its answer sets forth its claim that prior to the passage of said ordinances it indicated to the City of Cleveland and its officials its desire to construct the improvements mentioned in this cause: that such improvements would be of great benefit and profit to the city itself in that they would, among other things, enhance the city’s tax duplicate but stated further that the improvements and constructions would not be undertaken unless and until said ordinances were pased by the council of said city and became effective. It further avers that its plans were freely and widely publicized at the time and no protests of any kind were filed until the bringing of this action and that the plaintiff is therefore guilty of laches. The company further avers that if any cause of action ever existed it accrued prior to June 15, 1947 and that these causes, filed June 16, 1949, are barred under the provisions of §4315 GC. The City of Cleveland filed its answer supporting that of The Halle Brothers Company and asserting that the public rights in the premises have been fully protected and the improvements made to the satisfaction of the city. Replies were filed traversing the averments of those answers.

It is important at the outset to ascertain and determine the extent of the rights of the public in East 12th Street and the rights of the company, if any it has separate and apart from the rights of the public in general. There is in evidence, Plaintiff’s Exhibit 10, a copy of an ordinance passed by the Council of the City of Cleveland on October 16, 1846 establishing two alleys, one of them being now East 12th Street between Euclid Avenue and Huron Road. There is no recital of facts regarding ownership or the wishes or actions of any owner but a mere declaration that “the same are hereby established public alleys and shall be ranked among the public alleys of the City of Cleveland.” It was stated that no such evidence is available as to the section between Huron Road and Prospect Avenue but the parties hereto entered into a stipulation that it has been openly and notoriously used by the public as a thoroughfare for the past thirty years. There is in evidence too, Plaintiff’s Exhibit 11, a copy of a page, Plate 5, of a city street atlas of 1898 and the section now known as East 12th Street, Huron to Prospect, is thereon clearly shown, partly as Crooked Alley and partly as Hodge Alley. Plaintiff’s Exhibit 17 shows it enlarged — Crooked Alley as Brownell Court and Hodge Alley as East 12th Street. There is no claim, and certainly no evidence, that the City of Cleveland is the owner of a fee simple title to any portion of East 12th Street and there is no escape from the conclusion that the city’s right in East 12th Street is that of a holder of the legal title as a trustee for the public, and for use as a public thoroughfare.

Laches.

Is the plaintiff’s action barred by laches? It is a well recognized principle of law that he who seeks equity must do equity and must be reasonably prompt and diligent in his efforts and movements to effect the protection of his claimed rights, and especially is this true in those cases in which others are proceeding and expending funds, or otherwise materially changing their status on the theory, entertained in good faith, that they are proceeding within their legal rights. It is claimed that the plans for the constructions herein complained of were widely and extensively publicized long before any actual construction was undertaken, and that commitments and expenditures of very large sums of money had been made over many months of time before any claim of illegal action was asserted by the plaintiff and that, therefore, he cannot now be heard on his complaint. Authorities are far from uniform in statement of the rule to be applied in a case such as the case at bar. Naturally, the peculiar or particular facts of a case may, and often do, govern in the determination .of the. firmness to be exercised and of the effect to be given to delay in the institution of legal action.

Many cases are to be found in which it is clear that the plaintiff has some personal axe to grind even though his suit be in the nature of a taxpayer’s suit and be, as a matter of law, entitled to proceed strictly as such.

Other cases involve a challenge to the discretion of parties, usually public officials. Courts are loathe to overrule such officials in matters involving discretion in the performance of duties imposed upon them by law. In such cases a lack of diligence is considered and is weakening to the entire position of a plaintiff taxpayer.

In the case at bar the plaintiff is clearly without personal interest and is acting only as a taxpayer on behalf of all other taxpayers. Furthermore, his complaint is not directed to' discretion, judgment or compliance with detail requirements. It is based on a claim of complete lack of power. If in the instant case The Halle Brothers Company has encroached on public property by leave of the city authorities and it should appear that those authorities were wholly without power to grant such leave it would be a rather revolutionary position to assume to say that taxpayers are barred from asserting the public rights just because the hour is somewhat late. Public rights can not with such ease be surrendered or lost. The court is convinced that the claim of laches has no merit in this cause and that the law is correctly stated in State ex rel v. Green et al, 18 O. N. P. (N. S.) 97 (1915).

Syl. 3. * * * As such taxpayer sues in a purely representative capacity his action is not barred by individual laches, notwithstanding the alleged invalidity of the specifications might have been known to him three months before the institution of suit, and in the interim large public expenditure has been incurred and'important public interests have become involved upon the faith of such specifications.”

The court, at page 101, said:

“Moreover, it must be borne in mind that in the present suit it is not the interest of an individual that is sought to be vindicated, but the rights of all taxpayers of the county. Those rights, whatever they may be, may not be put aside because of an infirmity in the position of the particular taxpayer who as relator assumes to represent the public interest.”

(Affirmed by Court of Appeals 22 C. C. (N. S.) 1. Motion to certify overruled by Supreme Court of Ohio 1915).

Saunders v. Board of Education, 59 N. E. (2) 936. (42 Abs 172) (Court of Appeals, Montgomery Co. 1944).

In this case the cdurt cites State ex rel v. Green, supra,' and says; page 942,-

“Another reason alleged is that the unsuccessful bidder was guilty of laches in that he did not bring the action until at least 25% of the work was done by the successful bidder. In the case of State ex rel Waltz v. Green, 18 Ohio N. P. (N. S.) 97, it is held that: ‘One who sues as a taxpayer to enjoin the performance of a public contract on the ground that the specifications therefore are invalid, is not estopped by the fact that as an advocate of unsuccessful bidders he endeavored to procure for them the award of the contract; nor because of such fact will his suit be dismissed on the ground of a total lack of good faith. As such taxpayer sues in a purely representative capacity his action is not barred by individual laches, notwithstanding the alleged invalidity of the specifications might have been known to him three months before the institution of suit, and in the interim large public expenditure has been incurred * * *’
“In the case at bar, we have held that the action was not brought on behalf of the taxpayers but was in reality an action solely for the benefit of the plaintiff, and for .that reason we are of the opinion that the rule stated in the above cited case in reference to laches of a taxpayer does not control.”

The statement amounts to agreement with the holding in State ex rel v. Green, supra; that where the suit is in fact a taxpayer’s suit the doctrine of laches does not apply.

The court has examined all the authorities cited in briefs, and some others, and holds that the petition in this cause cannot be dismissed on the ground of laches.

Statute of Limitations

Defendants claim that this cause is barred by the statute of limitations. Sec. 4315 GC is as follows:

“Sec. 4315- GC. No such action to enjoin the performance of a contract entered into or the payment of any bonds issued by a municipal corporation, shall be brought or maintained unless commenced within one year from the date of such contracts or bonds.”

It is claimed that Ordinance No. 2835-46 became effective July 7, 1947 and that Ordinance No. 2011-45 was passed by the Council on October 15, 1945; that by their terms they constitute a contract when accepted; that'they were, in each case, accepted within, the twenty day period prescribed in them; that these actions were not commenced until June 16, 1949 and are, therefore barred.

The ordinances in question provide, in part:

“That as a condition of the authority herein granted, the said The Halle Bros. Company shall accept the terms of this ordinance in writing within 20 days after the passage thereof, and when so accepted it shall constitute a contract between the City of Cleveland and said The Halle Bros. Company, its successors and assigns, subject to all the conditions of all parts of this ordinance.”

A mere recitation that a certain enactment shall constitute a contract does not make it so. Contracts of a municipal corporation can only be made for the legitimate purposes of the corporation and in the manner provided and authorized by law. Counsel have not directed the court’s attention to any authority which could justify the viewing of the ordinances as contracts of the kind and character referred to in said §4315 GC. The ordinances in question are in the nature of conditional permits or licenses.

A situation on all fours with the cases at bar was before the court in Kellogg v. Traction Co., 80 Oh St 331, and the court treated the ordinances of the City of Cincinnati as a permit or license. It had the precise purpose of the ordinances now before this court. In distinguishing the ordinance granting authority to build a bridge across the street from a franchise the court said: page 348:

“* * * but when the use is not in the nature of a franchise but is a use that is recognized as permissible by an abutter, the city may authorize it by a permit or a license, under the general power given it of care, supervision and control. Such a permit or license is a mere regulation of the use; it contained none of the elements of a contract, and is revocable at the pleasure of the city. * * *”

The court holds that the statute of limitations mentioned does not apply in the cases at bar.

Did the City have the power to authorize the constructions complained of?

The real and important question in these cases is that of whether or not the City of Cleveland, by its Council, had the power and authority to grant the rights now being enjoyed by The Halle Bros. Company and which led to the constructions installed in accordance with the conditions of the ordinances here claimed to be invalid.

Upon oral argument some reference was made.to the provisions of the Charter of the City of Cleveland and especially to the one enumerating the powers which the city intended to exercise and enjoy. They are not important in the consideration of the subject of power. Under the provisions of our constitution all municipalities in Ohio are vested with all powers of local self-government, subject only to certain limitations therein expressed.

Constitution of Ohio, Art. XVIII, Sec. 3.

“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 general laws.”

The City of Cleveland cannot, by charter, take unto itself any powers. The charter of a municipality merely selects methods and prescribes the mode of exercising powers fully granted by the constitution.

Prior to the adoption of the constitutional provision above shown (1912) municipal corporations had only such powers as were specifically granted to them by the State. It will be noted that even under the present broad powers enjoyed by municipalities they may not enforce any local police regulations if in conflict with general laws. A perfect example of operation under such provisions is the law of the State governing vehicular traffic on public thoroughfares, especially as to permissible rates of speed.

The legislature could in all probability have undertaken, under the constitutional provision mentioned, to legislate anew and to limit the control of municipalities over the streets within their boundaries. It has not done so, and the broad powers granted, and liabilities imposed, by the provisions of §3714 GC remain in force and effect today to the same extent as they did prior to 1912.

Sec. 3714 GC

“Council to have care, supervision and control — Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision , and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

We have here a public thoroughfare held in trust for the public with its control for public use vested in the municipality. Originally public street^ were deemed to be for mere travel and transportation but with the growing necessities of urban centers the public uses have been enlarged or expanded so that they include features not even thought of in days gone by, and such features have become recognized as legitimate “street uses or purposes.” The total ownership not being in the city but being limited to a holding in trust for public use, it is still to be considered as a right to use — now a much expanded use — but use nevertheless. Some privileges may be . granted to the .abutter.

It has for a long period of time been recognized that "the abutter may, by legislative authority or municipal sanction, use portions of the street for strictly private use when such use does not interfere with any legitimate public use nor endanger the public. Dillon on Municipal Corporations, 5th Ed., Sec. 1180, page 1872, states the matter quite clearly:

“* * * It is, however, competent for the legislature to authorize a limited use of the sidewalks in front of buildings in cities and villages for area-ways, cellar openings, or underground vaults, for the more convenient and beneficial enjoyment of the adjacent premises. The use of the sidewalk for these purposes restricts somewhat the free and unembarrassed use of the sidewalk for pedestrians, but it is justified on the ground that the general interests are served,.by making available to the greatest extent valuable property, increasing business facilities, giving encouragement to improvement, and adding to taxable values. The legislative power to permit the use of the streets and sidewalks for these purposes may be delegated to the municipal authorities. * * *”

It is a matter of common knowledge that such uses are constantly and extensively made of lands within the area of the public streets under authority of mere permits issued by' municipal authorities, which permits are nothing more than licenses subject to revocation at any time that the public rights and convenience dictate. Such-use is not confined-to area-ways, cellar openings and underground vaults but has been extended to innumerable cases of hitching posts, stepping stones, trap doors on the surface and to awnings, porches, bay windóws, cornices, verandas and like ornamental projections above the surface, all, and always, subject to removal in favor of any and all public rights and conveniences. The municipality having the superior right to all use of the street for public purposes, it would hardly be proper to refer to the privileges of the abutter as rights but it certainly must be true thatv the municipality may lawfully permit him the privilege of use of rights neither used nor needed by the public.

The court has examined all the authorities cited by able counsel for the parties to these actions, as well as many others, and is forced to the opinion that the law, as pronounced in Ohio, is clear and consistent with the authorities generally.

Stone v. Cuyahoga Light Co., 9 Ohio N. P. (N. S.) 545 (1909) Syllabus 5.—

“The use by the' owner of an abutting lot of an excavation beneath the sidewalk rests upon license or permission, and does not vest in the lot owner such juristic right as will enable him to prevent the placing of such steam pipe in and through such excavation, when authorized by the proper authorities.”

In this case it was disclosed that N. O. Stone owned and occupied a building on the south side, of Euclid Avenue, having a frontage of 50 feet. The basement extended 13 feet underneath the 19 foot sidewalk, furnishing a space 13 x 50 “of great value to him and his property.” The City of Cleveland, granted to The Cuyahoga Light Company, a public utility, the right to lay one of its steam pipes within the southerly side of Euclid Avenue underneath the sidewalk. This naturally would enter and go through the Stone storeroom and he sought to enjoin the company on the ground that what was contemplated was not a proper street use.' The court, naturally, held it to be a proper street'use on the theory that the legitimate use of the street by the public is not necessarily confined to its surface and (2) the Light Company was a, public utility and, as such, entitled to use the public thoroughfares under permission of the municipal authorities. The court (George Phillips, J.) discusses at great length the rights of parties in public streets and then proceeds, — page-553 — to discuss uses made of lands within the streets by private parties.

“There are other private uses habitually made of lands within highways — surface, supersurface and subsurface uses —that do not rest upon absolute right, but rest upon license or permission. These are more in the nature of privileges, and must at any time give way to public uses when needed. An abutting lot owner may, with the permission, or the mere acquiescence, of the municipal authorities, plant and maintain shade trees upon the street; he may in like manner make and maintain an excavation under the sidewalk; and he may in like manner maintain some structures over and above the surface of the street. * * *”

The court was thus speaking within a matter of six months following the decision of the Supreme Court of Ohio in the Kellogg case, infra., and on page 555 said this:

“Kellogg v. Traction Co. supra, is a case in which the city had given to the owner of property on opposite sides of the street, permission to construct a bridge over the street from one building to another belonging to the same party, far enough above the street’s surface to give street clearance, and a taxpayer brought suit to enjoin the erection of such structure over the street. The Supreme Court held that such action could not be maintained; that an abutting lot owner, making private use of part of the street — a use that does not interfere with any public use of the street, and. doing this with the sanction of the municipal authorities — is immune from a taxpayer’s suit to enjoin such use. The case deals with a mere license, and not with any easement appendant to an abutting lot; and it points the distinction between the two.”

Kellogg v. The Cincinnati Traction Co. et al., 80 Oh St 331 (1909), syllabus:—

“The owner of lots abutting on opposite sides of the street may, under a license or permit from the city council, revocable at its pleasure, construct an overhead bridge for the purpose of transporting freight over the street and relieving the street of a serious obstruction to or interference with traffic along the street, the bridge being so constructed that its supports will not be in the street and so that it will not interfere with the light and air of adjoining abutting owners.”

The City of Cincinnati, by ordinance, gave to two companies permission to construct and maintain across Eastern Avenue —one of the principal thoroughfares of the city — a bridge to enable them to transport coal from an elevator on one side of the street to a power house on the other side of the street. - Kellogg brought a taxpayer’s suit against the city and the two companies, seeking to enjoin the construction on the basis of his claim that the city lacked the power to grant such permission and that the execution and performance of such a contract would be an abuse of corporate power. One of the defendant companies was the owner in fee of the properties at both ends of the proposed bridge and the other company was the lessee of those properties. No part of the structure was to rest on any portion of Eastern Avenue as all supports were to be located on the properties of the defendants.

The court stated the issue to be decided in this form — page 342:

“The question for determination is, whether a city taxpayer may enjoin thp construction by an abutter' of a bridge over a street from his property on one side of the street to his property on the other, under an ordinance granting him the right to do so.”

It would be difficult to use language that could more clearly and concisely state the issue in the cases at bar. Summers, J., in a lengthy opinion reviewed the authorities dealing with the question before the court and we shall refrain from quoting beyond this brief word from page 349:

“The easement for a street extends as far below, and as high above the surface of the ground, as is necessary for street purposes, but if the abutter may for a useful purpose, and when the public is not inconvenienced, build an area-way in the street to the basement of his building or place structures under the street, he may subject to the same limitations place structures above the street.”

The court held the ordinance valid and denied the injunction. Since the decision in the Kellogg case, the so-called Home Rule Amendment to the Constitution, Article XVIII, has been adopted. While it can well be doubted if it enlarged the powers of the city in the connection here involved, it certainly did not diminish them. The facts in the Kellogg case are the facts in these cases; the main question for determination is identical and it clearly states the law applicable to such a situation. '

The court holds the ordinances involved in the two eases now being decided to be valid- enactments and there being no claim that their terms and conditions have not been complied with and followed, the causes will be disposed of by the following' entry in each case,, this date;— .

“Trial had; finding and judgment for defendants. Petition dismissed at the costs of the plaintiff. Bond for appeal fixed at $200.00.”