author: By the Court.

text:
    Fulton v. Smith.

      Contest of election — Secretary of state — Validity of votes cast— Section 4826, General Code — Successful candidate a probate judge — Constitutional law — Votes for judges for nonjudicial offices void, when — Section 14, Article IV, Constitution.

    (No. 16190
    Decided February 14, 1919.)
    In Contest of Election.

      Mr. Timothy S. Hogan; Mr. Judson Harmon; Mr. George B. Okey and Mr. Simeon M. Johnson, for William D. Fulton.

      Mr. C. T. Marshall and Mr. John V. Campbell, for Harvey C. Smith.
   By the Court.

On the day of the annual election for state offices in November, 1918, Smith was the duly elected, qualified and acting judge of the probate court of Muskingum county. On that day Fulton and Smith were the only candidates for the office of secretary of state and Smith received the majority of votes cast for that office.

His right to receive the commission for and to hold the office is denied by the relator because of the provisions of Section 4826, General Code. That section reads: “All general elections for elective state and county offices and for the office of judge of the court of appeals shall be held on the first Tuesday after the first Monday of November in the even numbered years. All votes for any judge for an elective office except a judicial office, under the authority of this state, given by the general assembly, or by the people, shall be void.”

The last sentence of this section is comprehensive and embraces the office of probate judge. By its terms the votes cast for Smith in November, 1918, while he was probate judge, were void, unless the general assembly was without the constitutional power to make the provisions of the statute applicable to the office of probate judge.

The judicial article of the constitution, Article IV, provides for the judicial structure of the state. Section 1, Article IV of the Constitution of 1851, and also Section 1, Article IV of the Constitution as amended September 3, 1912, enumerate certain courts in which the judicial power of the state shall be vested, and provide for the erection of other courts, from time to time, by the general assembly. In the 1851 provision, as well as in the 1912 provision, the supreme court, courts of common pleas and courts of probate are included in the enumeration.

By the succeeding sections of the judicial article provision is-made for the jurisdiction of the several courts and for the election of judges, their terms of office, and for the filling of vacancies.

Section 14 of this article provides that “The judges of the supreme court, and of the court of common pleas, shall, at stated times, receive, for their services, such compensation as may be provided by law * * * but they shall receive no fees or perquisites, nor hold any other office of profit or trust, under the authority of this state, or the United States. All votes for either of them, for any elective office, except a judicial office, under the authority of this state, given by the general assembly, or the people, shall be void.”

The whole judicial article must be viewed and construed together, and, in the creation of the judicial structure in our system of jurisprudence, the constitutional convention and the people specifically selected two courts the judges of which should not be voted for except for a judicial office.

Under rules which are familiar and sanctioned by experience, it must be presumed that when the makers of the constitution took up and considered the subject and specified the two courts as to which the prohibition should apply they intended that as to the judges of other courts no such prohibition should be made.

We, therefore, hold that the provisions of Section 4826, General Code, in so far as they apply to the judges of any of the courts created by the constitution other than the common pleas court and the supreme court; are invalid.

Demurrer sustained and judgment for defendant.

Nichols, C. J., Jones, Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.


source: Caselaw Access Project

author: Robinson, J.

license: Public Domain

text:
    The State, ex rel. The Northwestern Mutual Life Insurance Co., v. Tomlinson, Superintendent of Insurance.

      Statutory construction — Meaning of words and phrases — Prior definition by legislature — Presumption as to use in later legislation— Section 5432, General Code (100 O. L., 66) — Foreign insurance ' companies — Statement to superintendent of insurance— Gross amount of premiums — Taxation.
    1. Where the language of an existing statute is ambiguous, and the legislature by a previous enactment upon the same subject has in express language, or by clear and indubitable inference, 'defined the meaning of the ambiguous word or phrase used in such statute, it will be presumed, in the absence of a later expression to the contrary, to have used the word or phrase in subsequent legislation in the same sense.
    2. The words “gross amount of premiums received * * * without * * * any deductions whatever,” in Section 5432, General Code (100 O. L., 66), when read in the light of previous legislation on the same subject, clearly contemplate the gross amount of premiums stipulated on the face of the policies in force in Ohio for the period in that section specified,
    (No. 16189
    Decided March 11, 1919.)
    In Mandamus.
    This is an original action in mandamus to direct the superintendent of insurance to revoke an order by him made canceling the license of the relator to do business in Ohio.
    The petition alleges that the relator is a corporation organized under the laws of the state of Wisconsin; that it is a mutual life insurance company doing business'on the level life plan; that its policy holders participate in the surplus and earnings of the company; that it is engaged in the business of loaning money and insuring lives in the state of Ohio; that the aggregate amount of premiums specified in the policies of insurance held by residents of Ohio during the year .1916 was $2,963,-524.70, and in the year 1917 was $3,242,005.68; that the relator did not collect said sums by reason of the fact that a credit was allowed in 1916 upon the premiums due, in the sum of $479,045.48, and in 1917 in the sum of $523,764.52, by way of dividends ; that said dividends in fact were in part the excess collected over and above the sum necessary to carry the risk in previous years, and in part the earnings upon investments in excess of the earnings estimated at the time of the issuing of the policy; that said .defendant claims the excise tax provided for in Sections. 5432 and 5433 of the General Code shall be based upon the premiums stipulated on the face of the policies, and the relator claims that the tax above referred to shall be based upon the premiums actually paid by the insured; and that in November 1918 the superintendent of insurance canceled and revoked the license of the relator to do business within the state, for the sole and only reason that the relator refused to pay tax upon the difference between said respective sums, to-wit: tax in the sum of $11,976.14 for 1916 and tax in the sum of $13,094.11 for 1917. The petition prays the court to revoke the order canceling the license of the relator, and for an order against the defendant commanding him to issue a license to the relator.
    A general demurrer was filed to the petition and the case is here for hearing upon the demurrer.

      Mr. John D. Barnes; Mr. Timothy S. Hogan and Mr. Sam T. Swansen, for relator.

      Mr. John G. Price, attorney general; Mr. B. W. Gearheart and Mr. H. S. Ballard, for respondent.
   Robinson, J.

The question here presented is the construction of Sections 5432 and 5433, General Code, and especially of the clause, “gross amount of premiums received by it from policies covering risks within this state * * * without * * * any deductions whatever,” in Section 5432, General Code.

The question as to the meaning of the term “gross amount of premiums received” is not a new one in the courts of the United States, nor in the courts of many of the states, but has never been settled in Ohio, and were it not for the words “without * * * any deductions whatever,” or were these sections as they now exist the first enactments upon the subject in Ohio, we would have little difficulty in arriving at the conclusion that the term “gross amount of premiums received” from policies covering risks within this state contemplated only the premiums actually paid by the policy holders to the insurance company; for clearly the designation as a dividend of the credit which the insurance company allows each policy holder annually is a misnomer and the credit so designated represents nothing more than the amount of reserve fund to the credit of the insured; and were the sum so designated as a dividend withdrawn in any year by the insured the company would be required either to collect a like sum for the purpose of replacing the reserve fund to the credit of the insured, or obliged to carry the risk without a reserve fund, and would be face to face with a condition of insolvency upon the happening of any extraordinary per cent, of casualties or upon an extraordinary shrinkage of income from investments.

The weight of authority, both in the federal courts and the state courts other than Ohio, is in accord with the foregoing theory, but as early as 1893 the legislature of Ohio by enactment, 90 Ohio Laws,’201, placed its own interpretation upon the term “gross premium and assessment receipts” of insurance companies, and by a clear and indubitable inference declared “gross premium and assessment receipts” to mean the premiums stipulated on the face of the policies, in the following language:

“Every agency of an insurance company * * * transacting business in this state * * * incorporated by the authority of any other state * * * shall return to the auditor of each county in which such company or association does 'business * * * the amount of the gross premium and assessment receipts of such agency * * * provided, however, that in the case of regular companies, wherein policy holders participate in the surplus and earnings of the company, dividends or surplus from previous payments allowed and used in the payment of current premiums,, cancelation or surrender values * ’ * * shall be deducted from such gross receipts.”

For if the legislators did not understand the clause “amount of the gross premium and assessment receipts” to include “dividends or surplus from previous payments allowed and used in the payment of current premiums,” why did they add the proviso that where the policy holders participate in the surplus and earnings of the company such dividends and surplus “shall be deducted from such gross receipts?” Why provide for their deduction if not included ?

There is no other or possible explanation than that they contemplated the term “amount of the gross premium and assessment receipts” to include surplus and earnings used in the payment of premiums. It cannot be successfully urged that there is a distinction between the use of the term, “amount of the gross premium and assessment receipts,” as there used, and the term, “gross amount of premiums received,” as used in the present statute.

The term “amount of the gross premium and assessment receipts” as used by the legislature in that enactment has been carried either in that phraseology, or in the phraseology of the present statute, in the successive amendments and enactments upon that subject.

In 1902 (95 O. L., 290) the legislature amended the section by eliminating the provision for the deductions from gross premiums of “dividends or surplus from previous payments allowed and used in the payment of current premiums,”- and inserted the words, “without deductions for commissions, return premiums, or considerations paid for reinsurance, or any deductions whatever,” and the terms “gross premiums” and “without * * * any deductions whatever,” have been carried in the statute every since and we cannot indulge the presumption that the legislature made the elimination of the one and the insertion of the other without purpose.

The authority of the legislature to impose an excise or franchise tax upon foreign corporations for the privilege of doing business in this state is no longer debatable in Ohio. ( The Southern Gum Co. et al. v. Laylin, 66 Ohio St., 578.) And the only limitation upon the power of the legislature in that respect is that it be reasonable, and that the operation of such tax be uniform upon all corporations of a class throughout the state.

The legislature then might have fixed, as the basis upon which to estimate the tax, the annual surrender value of the policy, the value of the policy at maturity, the amount of dividends earned on the Ohio investments, the amount of matured insurance paid, or any other reasonable basis.

If the legislature had the power to fix as the basis, of taxation the gross premium stipulated on the face of the policy, and it clearly appears from the reading of the statute now in force, in the light of the previous expressions of the legislature upon the same subject, that the legislature by the use of the term “gross premiums” did intend the gross premiums stipulated on the face of its policies, then it is the duty of the court to carry out such intent, upon the principle that where the legislature has by previous enactment expressly or by clear and indubitable implication defined the meaning of a phrase it is presumed thereafter to have used the same phrase in connection with the same subject in the same sense. County-Seat of Linn County, 15 Kans., 500; Converse, Admr., v. The United States, 21 How., 463; United States v. Freeman, 3 How., 556; Henry v. Tilson, 17 Vt., 479; Struthers v. People, 116 Ill. App., 481, and Daniel v. Simms, 49 W. Va., 554:

There seems to be no room for argument that when the legislature, as it did in 90 Ohio Laws, 201, expressly provided for the deduction from “the gross premium and assessment receipts” of “dividends or surplus from previous payments” it understood, intended, and used the term “the gross premium and assessment receipts” as meaning the gross premiums stipulated on the face of the policies. This being so we are obliged, in view of the history of these sections and the continued use of the term “gross premiums” thereafter, and in view of the insertion of the provision “without * * * any deductions whatever,” upon the repeal of the provision for deduction for “dividends or surplus from previous payments,” to hold that the insurance commissioner is authorized to base each year the excise tax of insurance companies doing business in Ohio by virtue of the authority of another state upon the gross premiums stipulated to be paid on the face of the policies in force in Ohio during the preceding year.

The demurrer is therefore sustained, and the writ of mandamus is refused.

Writ refused.

Nichols, C. J., Jones, Matthias, Johnson and Wanamaker, JJ., concur.


author: Wanamaker, J.

text:
    Kintz v. Harriger.

      ’Witnesses — Evidence privileged, when — Perjured testimony before grand jury — Admissible in action for malicious prosecution — Or to support charge of perjury, when — Constitutional law — Protection of reputation.

    1. The Constitution of Ohio, Bill of Rights, Section 16, provides, among other things, “Every person, for an injury done him in his land, goods, person, or¡ reputation, shall have remedy by due course of law.”
    2. It is the primary 'duty of courts to sustain this declaration of right’ and remedy, wherever the same has been wrongfully invaded.
    3. Perjured testimony given wrongfully, maliciously and wilfully before a grand jury may not only be offered in evidence in support of a charge of perjury against the witness so testifying, but also in an action brought by the individual for “an injury done him in his * * * reputation.”
    (No. 15957
    Decided February 11, 1919.)
    Error to the Court of Appeals of Crawford county.
    A petition was filed in the court of common pleas of Crawford county by plaintiff, Kintz, which substantially charged:
    “That on or about the 22nd day of May, A. D. 1915, the defendant, Thomas Harriger * * * wilfully and maliciously and without probable cause gave and furnished to said grand jury certain false information against plaintiff, thereby maliciously and without probable cause, caused and procured plaintiff to be, by the said grand jury, indicted-for the offence of grand larceny.
    “That plaintiff was by the malicious and wilful conduct of the defendant, compelled to defend himself against said false charge so made in the indictment against him and said plaintiff was tried upon said charge of grand larceny * * * by a jury of said County of Crawford, and was by said jury * * * duly acquitted.
    “That by reason of the premises, plaintiff was compelled to expend a large amount of money in the employment of counsel, and in defending himself against said charge, and did by reason of said charge, lose his position which he then had with The Toledo & Ohio Central Railway Company of Bucyrus * * * and was thrown out of employment * * * that he was otherwise injured in his reputation and standing in the community,” to his damage, etc.
    On trial in the court of common pleas judgment was rendered for $800. Upon error to the court of appeals that judgment was reversed.
    The error upon which the same was reversed appears in the opinion of the court of appeals in the following language:
    “The undisputed evidence shows that defendant appeared as a witness before the grand jury and gave evidence without which the indictment would not have been found, and that a verdict of not guilty was returned upon the trial.
    “The evidence in behalf of plaintiff tends to show also that defendant made false statements relating to plaintiff, which originated an inquiry the result of which caused the investigation of the matter by the grand jury; that the testimony so given by defendant before the grand jury was' false and known by defendant to be untrue; and that defendant in giving it was actuated by malice.
    “There is no evidence tending to prove that while testifying before the grand jury, defendant departed from his proper status as a witness and made declarations against plaintiff foreign to the alleged commission of the offense for which plaintiff was indicted.
    “Upon the record the simple question arises: Will the malicious giving of relevant evidence which is false and so by the witness known to be, before a grand jury, from which evidence an indictment results, and without which it would not have been found, and the person indicted is afterward acquitted, serve as a foundation for a cause of action as for malicious prosecution?”
    The court of appeals frankly says:
    “There is no decision in Ohio directly on the question.”
    But the court further says:
    “In the cases outside our state, involving the question before us, and by the text writers, there is complete unanimity touching the doctrine that for the giving of evidence by a witness in a judicial proceeding, so long as such evidence is relevant to the matters concerning which it is given, an action will not lie against the witness, even though the evidence be false, its falsity known by the witness at the time, and that it be maliciously given.”
    After citing in support of this doctrine 60 L. R. A., 139, 17 R. C. L., 339, and 25 Cyc., 381, the court of appeals concludes:

      “It is therefore entirely clear that plaintiff’s action is not maintainable.”
    Error is now prosecuted to this court to reverse the judgment of the court of appeals and to affirm the judgment of the court of common pleas.

      Messrs. Leuthold & McCarron and Mr. Clarence A hi, for plaintiff in error.

      Mr. O. W. Kennedy, for defendant in error.
   Wanamaker, J.

The sole question in this case is whether or not perjured testimony given under oath before a grand jury is privileged, that is, protected by public policy; or whether it may be the basis of a civil action in malicious prosecution.

The court of common pleas held it was not privileged.

The court of appeals held that it was privileged.

The case is here as one of public or great general interest.

The authorities cited by the court of appeals and by counsel for defendant in error in his brief in this case may fairly be said to sustain the judgment of the court of appeals. The weight of precedent for a century and more, in both American and English ruling cases, is undoubtedly to this effect.

This question has not heretofore been squarely or directly decided by the supreme court of Ohio, and we therefore approach it in the light of fundamental facts and primary principles, rather than upon mere precedent.

Our Ohio fathers, in their first constitution, that of 1802, through their Bill of Rights (Section 18, Article VIII), announced much wholesome doctrine in these few words:

“That a frequent recurrence to the fundamental principles of civil government, is absolutely necessary to preserve the blessings of liberty.”

In the Constitution of 1851, still in force, there is found this pertinent language (Bill of Rights, Section 16) : “All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.”

Before we ever had an English Magna Charta, or an American Bill of Rights in the form of a constitution, federal or state, one of the most sacred rights of the citizen was the right to a good name and reputation and to be protected in the enjoyment of that good name and reputation.

Our constitutional fathers must have so regarded it or they would not have specially designated it in the organic law of our state.

Solomon has aptly spoken: “A good name is rather to be chosen than great riches and loving favor rather than silver and gold.” Shakespeare fittingly joined Solomon in his appreciation when he said:

“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’t is something, nothing;
’T was mine, ’t is his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.”

The great ambition of the great Lincoln, in his own words, was to be “truly esteemed of my fellow men by rendering myself worthy of their esteem.”

This primary and precious right solemnly proclaimed in Holy Writ, in the lives and literature of our own people, in our constitutions and bills of rights, is too sacred a thing to be denied or destroyed by a mere “Thus saith the court.”

Precedents are valuable for information, admonition, and as milestones in the nation’s progress. ¡But they do not necessarily imply the last word of wisdom. They are not always to be adopted. They are quite frequently to be avoided. They are worth exactly what they weigh in right and reason when applied to the particular circumstances of each particular case. They must always have due regard to the natural equities of each special case.

It was an easy step from the dogma, the king can do no wrong, to the corollary, the king’s councillor, the king’s chancellor, the court can do no wrong. The courts are fallible, though some of us seem fearful of admitting it. The judicial records show that we have reversed not only other courts, but have reversed even ourselves, and wisely, too; and so it will ever be. The old doctrine that the regular orderly processes of the court cannot be inquired into, though tainted with fraud and perjury, where personal rights are lost or damages sustained, finds little favor in these modern times when justice is the goal of all good government, judicial no less than legislative or administrative.

It is to say the least a singular sort of logic that holds that any ordinary citizen, in any ordinary conversation, by the use of false and malicious slander, wrongs another citizen, for which the latter has a right of action in damages, but that when the wrongdoer, in order to give additional credibility and sanction to his wrong, uses a court of justice as the vehicle for his perjury in the assassination of character, a public policy should intervene to protect him in his wrongdoing and save him from redressing the grievous injury he has committed against his fellow citizen.

What do courts mean when they say that a public policy demands the absolute privilege of such testimony ?

A correct definition, at once concise and comprehensive, of the words “public policy” has not yet been formulated by our courts. Indeed, the term is as difficult to define with accuracy as the words “fraud,” “equity,” “welfare.”

In substance, it may be generally said to be the community common sense and common conscience extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like. It is that general and well-settled public opinion relating to man’s plain, palpable duty to his fellow man, that has due regard to all circumstances of each particular situation.

Our written public policies are put into our constitutions, our statutes, and ordinances, but our unwritten public policies rest largely in judicial judgment and public opinion.

Manifestly, when the constitution of the state declares and defines certain public policies, such public policies must be paramount, though a score of statutes conflict and a multitude of judicial decisions be to the contrary.

No general assembly is above the plain, potential provisions of the constitution, and no court, however sacred or powerful, has the right to declare any public policy that clearly contravenes or nullifies the rights declared in the constitution.

What public policy is invaded when the plaintiff Kintz, in a court of competent jurisdiction, pleads and proves the false and malicious testimony given by Harriger before the grand jury?

Can it be that courts and grand juries have any duty to protect known perjurers? Surely cases are abundant in the record which show that the public has prosecuted witnesses for perjury, not only in the trial court but before the grand jury. Surely as against the public there is no such immunity. Why should there be any immunity as against the private citizen who has been especially wronged, who has been “filched” of his good name ?

What is the particular policy under whose mask it is sought to invoke the absolute privilege of protection to the perjured witness in this case? It is undoubtedly regard for the ancient doctrine of giving absolute immunity and protection to judicial proceedings in due course of law. But surely such a doctrine can by no possible jugglery be applied to a court of justice or to any of its proceedings — a court, which is charged first, last and all the time with administering justice, based upon the truth — when it has before it an obvious and palpable case of the grossest injustice, based upon the grossest untruth.

The doctrine as announced from leading cases appears at 25 Cyc., 376, in these words:

“The doctrine of absolute privilege is founded on the principle that in certain cases it is advantageous for the public interest that persons should not be in any way fettered in their statements and is confined to cases where the public service or the due administration of justice requires that a person shall speak his mind freely.”

No quarrel can be had with this doctrine when fairly interpreted and applied. If it be manifestly “advantageous for the public interests that persons should not be in any way fettered in their statements,” and if “the due administration of justice requires that a person shall speak his mind freely,” then it must be conceded that the public right should be paramount to any private right. But surely the word “fettered” here is not to be used in the broad sense that perjured testimony may be offered. Surely the oath that the witness takes before the grand jury, in and of itself, fetters him to the truth. It is only when he violates the obligation of that oath that he commits the wrong.

Moreover, “that a person shall speak his mind freely” accords with the doctrine of freedom of speech and freedom of press; but that same constitutional right is qualified by the fact that he shall be responsible for its abuse.

The celebrated case of Vogel, Exr., v. Gruaz, 110 U. S., 311, uses this language in announcing the policy: “The avenue to the grand jury should always be free and unobstructed.”

This is probably the shortest and strongest plea in the shape of public policy made for the immunity of perjury before the grand jury. This doctrine is subject to the same criticism announced above.

You might as well have no oath “truly to testify” if you apply the doctrine of absolute privilege, as contended for in the court below.

Having had some six years’ experience as prosecuting attorney, and some seven years as a judge of the court of common pleas, I think I may say with some assurance that the avenues of a grand jury should never be free and unobstructed to per-jurors— to those who want to wreak their vengeance or employ their hate in the star chamber proceedings of the grand jury.

I can conceive of no good reason why the grand jury should be “free and unobstructed” to the lawless. the conscienceless, and the utterly irresponsible citizen who seeks to work reprisals upon his fellows.

A public policy like a tree must be judged by its fruits. Contemplate for a moment the consequences of such a public policy when it became generally known to the [public. When acted upon generally by the public, think of the number of reputations, built up by many years of patient and honorable reverence for law and order, and by successful achievement, that could be destroyed over night l;y those who could thus assassinate character with impunity. But not alone would the wrongs fall as an insufferable burden upon the individual; contemplate the large number of wrongful, unwarranted and unconscionable prosecutions that would be conducted in the name of the state, at great labor, time and expense, which must finally result in the acquittal of those indicted and put upon trial by such false and malicious testimony.

The egregious evil that would result to society, to the public and to every private citizen from announcing and sustaining such a doctrine of absolute privilege of immunity to perjurers before grand juries is so manifest that no further argument would seem necessary.

The whole duty of courts is to ascertain the facts, the truth in any given controversy, and then apply the fundamental principles of justice to that truth, and when by any species of jugglery it is claimed that the courts should announce a public policy that works out the greatest injustice, bottomed upon the grossest untruth, — well, it is just such hairsplitting distinctions as these that have too frequently undermined, and justly undermined, public confidence in our courts.

If this prosecution had been started before a magistrate, upon an affidavit falsely, wilfully and maliciously made, including the identical matters testified to before the grand jury, the rule is well settled in Ohio, though it is with regret that I say many states hold to the contrary, that such perjured affidavit can be made the basis of an action in malicious prosecution.

Why then should there be any different rule applied, when, instead of doing it publicly before the magistrate, by affidavit, the wrongdoer does it in the secret chambers of the grand jury room and thereby obtains the sanction of an official action by having the charge found and presented by the grand jury as an official arm of the court.

It surely is a distinction without any difference, except that before the justice of the peace the charge was that of the prosecuting witness alone, whereas by indictment the prosecuting witness wrongfully caused it to be made the official charge of a grand jury in the court of common pleas.

True, one qualification has been placed by those courts holding for complete immunity, to-wit, as long as such evidence is relevant to the matter concerning which it is given. If irrelevant, therefore, these same courts have held that it may be used as the basis of a suit in damages for malicious prosecution, though given under the cover of a grand jury.

How are these two positions distinguishable? Obviously upon the basis that in one the evidence is relevant, and in the other irrelevant. But both do damage, that which is relevant more frequently than that which is irrelevant.

Yet how can such a distinction apply to an obvious and admitted falsehood? A falsehood is relevant to nothing. It fits no truth. It does not even fit another falsehood. After all, it is but the “tangled web.”

Oaths are too lightly regarded nowadays, not only before the grand jury but in trial courts; aye, in every place where they are required for some qualification.

It is high time indeed for the public to know what the oath implies, the obligation which it carries, and that one may not maliciously assassinate the good name of another under the mask of an oath before a grand jury and then have a court of justice intervene to protect him from such a rank wrong.

While this court has never before had before it the precise question in this case, some landmarks have been made touching the civil action known as malicious prosecution. Some of these cases have been invoked to sustain the judgment below.

Let us examine several of them briefly.

In this behalf the case of Lanning v. Christy, 30 Ohio St., 115, has been invoked. This was not an action, however, in malicious prosecution. It was an action for libel, put in the form of a written plea. Yet fundamentally it does deal with some of the basic principles involved here, because it relates to defamatory matter touching one’s good name and reputation.

The syllabus of that case reads as follows:

“An action will not lie for statements contained in an answer alleged to be libelous, if such statements were honestly made, without malice, and if they were relevant, believed by defendant to be true, and were made upon probable cause, and under advice of counsel.”

This syllabus might tend to sustain the soundness of the judgment below were it not for the fact that the Lanning v. Christy case differs from the case at bar in the following respects:

1. “Honestly made.”

2. “Without malice.”

3. “Believed by defendant to be true.”

4. “Made upon probable cause.”

5. “Under advice of counsel.”

Not a single one of these distinguishing elements appears in the present case.

The other Ohio case relied upon is the case of Liles v. Gaster, 42 Ohio St., 631. It is sufficient to quote a part of the first paragraph of the syllabus in that case, which recites this fact: “For aught that is stated in the petition, these answers were relative to the issue then on trial, and were honestly believed to be true, though in fact they were untrue.”

Courts have gone a long way in protecting the bona fides of the individual. But where the facts are not only not convincing but concededly to the contrary, it is inexcusable, especially upon the part of a court, to extend its powers for the protection of such infamy.

The judgment of the court of appeals is therefore reversed and the judgment of the court of common pleas affirmed.

Judgment reversed.

Nichols, C. J., Matthias, Johnson and Donahue, JJ., concur.

Robinson, J., not participating.


text:
    Lozier v. Lozier et al.

      Trust estates — Assignment of interest authorized, when — Conflict of laws — Will executed and trustees reside in New York — Testatrix dies and will probated in Ohio — Law of Ohio governs, when.

    (No. 15977
    Decided March 11, 1919.)
    Error to the Court of Appeals of Cuyahoga county.
    This action was brought in the court of common pleas of Cuyahoga county, Ohio, to determine whether or not a certain trust interest under the will of Mary M. Lozier, of Cleveland, Ohio, was governed by the laws of New York, which admittedly made said interest unassignable, or by the laws of Ohio, which admittedly left said interest assignable.
    The court of common pleas held that said testamentary trust interest was controlled by the laws of New York, and, therefore, was unassignable. Upon error the court of appeals reversed on the ground that said testamentary trust interest was governed by the laws of Ohio, and was, therefore, assignable.
    Error is now prosecuted to this court to reverse the judgment of the court of appeals and affirm the judgment of the court of common pleas.
    The essential and controlling facts are not in dispute. Mrs. Mary M. Lozier on the 12th of December, 1905, was a resident of Cleveland, Ohio. She was then temporarily in the city and state of New York, where and when she made a will creating a trust in favor of her son, Edwin R. Lozier, and his wife, Eva Davies Lozier, through certain trustees, who were then resident of New York. Thereafter said Mary M. Lozier, while in the state of New York, made a codicil to this will, touching the same trust, modifying certain paragraphs, but not essentially changing said trust so far as this cause is concerned. Thereafter, the testatrix died at her home in Cleveland, Cuyahoga county, Ohio. Her will was offered and admitted to probate in said Cuyahoga county. The testamentary trustees continue to reside in New York, and have possession of the securities constituting the trust under the provisions of the will and the codicil. While such trust is in existence and operation, said Edwin R. Lozier assigns his interests in said trust to his wife, Eva Davies Lozier.
    It is not contended that said assignment was procured by fraud, mutual mistake, or that it was invalid for any other reason than that said trust was at the time administered under the laws of New York and the laws of New York forbid such assignment.

      Messrs. White, Johnson, Cannon & Neff, for plaintiff in error.

      Messrs. Goulder, White & Garry; Messrs. Squire, Sanders & Dempsey and Messrs. Tread-way & Marlatt, for defendants in error.
   By the Court.

At first blush this case seemed to present a formidable question, but upon more careful consideration, when bared to the bone, the question seems very simple.

Property does not pass under will by any natural right. Its transmission by way of inheritance or otherwise, after death, is solely by virtue of our statutes. When this will was made by a resident of Ohio and offered and admitted to probate in the:state of Ohio, it became an Ohio instrument, creating an Ohio trust, to be administered agreeable to Ohio law, unless the terms and provisions of the instrument clearly indicated some specific terms or provisions clearly showing a contrary intention on the part of the testatrix. That the testamentary trustees were residents of New York is not enough to show such contrary intention. The presumption is that they were selected for personal confidence, rather than geographical location — rather than mere jurisdiction as to the administration of the trust.

It is not enough that the securities had as their situs the city and state of New York. Being personal property their domicile is ambulatory and follows their lawful custodian. Under the Ohio law the primary lawful custodian of this trust is the probate court of Cuyahoga county, Ohio, and the testamentary trustees mentioned in the will are simply the instruments or agents of the court of Ohio in the administration of the trust.

The law of Ohio, haying authorized the will and the probate of the will, also fixed the terms and conditions for the administration of the trust created by the will.

If it had been the intention of the testatrix to attach some provision against assignment or alien-ability, to the provision creating the trust in favor of the plaintiff in error, Edwin R. Lozier, the natural thing for her to have done in that behalf was to have so written it in the will. She is presumed to know that otherwise the law of Ohio would control in the administration of the will and that under the law the plaintiff in error’s interest could be aliened as any other interest in the property.

We are unable to discover any substantial evidence of a persuasive nature that the testatrix did not intend that the trust should be administered agreeable to the laws of Ohio and the trust property have all the attributes usually pertaining thereto.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Jones, Matthias, Donahue, Wanamaker and Robinson, JJ., concur.

Nichols, C. J., not participating.


author: Donahue, J.

text:
    The State, ex rel. McKey, Trustee, v. Cooper, Auditor, et al.

      Mandamus — Writ not to issue, when — 1Conditions precedent— Right of relator and duty of respondent — Substantial doubt exists, when — Fees due county treasurer — Claimed by trustee in bankruptcy, successor of assignee for creditors, and others.

    1. A writ of mandamus will not be granted to compel a county auditor to issue a warrant upon the county treasurer for the payment of public funds, unless the relator’s right is clear, and the act to be enforced is one of legal obligation. (State, ex rel. Gallinger et al., v. Smith, Auditor, 71 Ohio St., 13, approved and followed.)
    2. There is a substantial doubt as to the right of a relator, as trustee in bankruptcy, to the fees due the bankrupt for services as' county treasurer, where such fees are also claimed by a trustee for creditors appointed to succeed an assignee named in a deed of assignment executed and delivered by such treasurer, and are further claimed by persons to whom they were assigned by him in writing before the deed of assignment was filed or bankruptcy proceedings commenced, and where it also appears that the fees in dispute have been paid upon order of court, to a receiver appointed upon a motion in aid of execution filed in an action against such treasurer in his individual capacity prior to the assignment and bankruptcy proceedings, in which action the defendant treasurer in his individual capacity was duly and legally served with summons. (State, ex rel. Hildebrandt, v. Stewart, 71 Ohio St., 55, approved and followed.)
    (No. 15484
    Decided February 25, 1919.)
    In Mandamus.
    This is an original proceeding in mandamus instituted on relation of Frank M. McKey, as trustee in bankruptcy of Peter Parker, a bankrupt, against the defendants, Gabe F. Cooper, as auditor of Lucas county, Ohio, and Clarence L. Conlisk, treasurer of said county, to compel the issue and payment of a warrant or warrants covering sundry official fees, accruing, at six semiannual intervals between February 1909 and August 1911, to Peter Parker, for commission upon moneys collected as a result of suits instituted by him as treasurer of Lucas county, upon which collections Parker was allowed five per cent, in the semiannual settlements above stated.
    The petition contains six causes of action, each based upon the separate semiannual settlements, the first being the settlement of February 1909, upon which he was allowed fees aggregating $2811.08 upon the proceeds of four separate judgments against The Toledo Railways & Light Company, collected November 17, 1908, to January 12, 1909.
    On May 15, 1908, judgments were entered in these four cases mentioned in the first cause of action, and on motion of Peter Parker, by his attorney William G. Ulrey, the court declared his fees of $2811.08 a lien on these judgments, less $702.77 which the court declared to be a lien in favor of Ulrey, attorney, to compensate him for his services in these actions.
    The First National jBanle of Bellevue obtained a judgment against Peter Parker in cause No. 55335 in the court of common pleas of Lucas county, Ohio, upon which judgment execution was issued and returned unsatisfied.
    On May 19, 1908, after the court of common pleas had declared the fees of Peter Parker a lien upon the proceeds of the judgments he had secured against The Toledo Railways & Light Company, the bank sought to subject this and other fees due to Peter Parker, as treasurer, to the payment of its claim, by a motion in aid of execution filed in cause No. 55335, whereupon the court entered an order restraining the county auditor, county treasurer, The Railways & Light Company, and others named in the motion, from transferring, delivering, or in any way disposing of any property, money or credits of Peter Parker, and requiring them to appear and answer concerning the same. A copy of this order was served upon the auditor, treasurer and The Railways & Light Company and others, but no copy or other notice was served upon Peter Parker, except the original summons in that action.
    On June 10, 1908, the court appointed Chambers, the then sheriff, receiver, and ordered Biddle, the then treasurer, to pay to the said receiver the funds of Peter Parker .coming into his hands by virtue of the lien theretofore granted Parker in the four cases against The Railways & Light Companjr, except the amount of Mr. Ulrey’s claim, and further restrained Biddle, treasurer, and other co-defendants, from transferring, delivering, or in any way disposing of any property, money, or credits of Peter Parker, except as aforesaid.
    On May 26, 1908, The First National Bank of Bellevue commenced a civil action in aid of execution, being cause No. 58844 on the civil docket of the court of common pleas of Lucas county, the object of which was to reach the interest of Parker in the judgments in the four cases against The Railways & Light Company.

      Peter Parker, the county treasurer, the sheriff, and others, were made defendants, and all served with summons except Peter Parker, who was then a nonresident of the state. In that case the court found that these judgments had been paid and that Biddle, as treasurer, in pursuance of the order of the court entered in cause No. 55335, had paid to Chambers, who had been appointed receiver in that case, the amount or proportion of the judgments found to be due Parker, and declared to be a lien upon these funds and that the same should be applied by Newton, successor of Chambers, to the payment of the judgment due to the ¡Bellevue bank.
    It was further ordered and adjudged that a warrant for $627.97 be drawn upon the county treasurer in favor of The First National Bank of Bellevue, and paid to that bank upon its judgment. This amount represented the fees of Parker on other judgments recovered by him as treasurer of Lucas county.
    In 1911 Peter Parker returned to Toledo and there made an assignment for the benefit of his. creditors. The assignee, Robert G. Young, also claims this fund, but has filed no answer in this cause.

      Messrs. Hall, Flowers & Cotter and Mr. Ben W. Johnson, for relator.

      Mr. John C. D’Alton and Mr. Allen J. Seney, for respondents.

      Messrs. Tracy, Chapman & Welles and Mr. Harry E. King, for the First National Bank of Bellevue.
   Donahue, J.

The relator asks that a writ of mandamus issue out of this court, commanding the defendant, Gabe F. Cooper, as auditor of Lucas county, to deliver to the relator his warrant on the defendant, Clarence L. Conlisk, as treasurer of Lucas county, for the amount of the official fees of Peter Parker, as treasurer, accruing at six semiannual intervals between February 1909 and August 1911, aggregating $3467.29; and commanding the defendant; Clarence L. Conlisk, as treasurer of Lucas county, to pay such warrant.

While a writ of mandamus will issue against a public officer to compel the performance of an official duty enjoined upon him by law, yet such writ will not be granted unless the relator’s right is clear and the act to be enforced is one of absolute obligation. (State, ex rel. Gallinger, v. Smith, Auditor, 71 Ohio St., 13.) Where there is a substantial doubt as to the relator’s right, the writ will be refused. State, ex rel. Hildebrandt, v. Stewart, Id., 55.

An action in mandamus will not lie against the treasurer, Clarence L. Conlisk, until he has refused to perform an official act enjoined upon him by law. He could neither pay nor refuse payment except upon the presentation of a proper warrant issued by the auditor of Lucas county. This petition necessarily concedes that no such warrant has ever been issued. Therefore, the writ as to the treasurer, Conlisk, must be refused.

From averments of the petition it appears that these fees were ascertained to be due to Peter Parker, former treasurer of Lucas county, at the six semiannual settlements between February 1909 and August 1911. So far as the defendant, Gabe F. Cooper, as auditor of Lucas county, is concerned, this is the only official record upon authority of which he is authorized to issue such vouchers. If the statutes of Ohio enjoin any duty upon him, it is the duty of issuing to Peter Parker warrants upon the county treasurer in the amounts named. It is conceded, however, by all the parties to this suit, that Peter Parker is not now entitled to have such vouchers issued to him. These fees are now claimed by the relator, as trustee in bankruptcy of Peter Parker, and also by Robert G. Young, as trustee for the creditors of Peter Parker, successor to the assignee named in the deed of assignment.

This trustee has also commenced a similar action in the common pleas court of Lucas county against the county auditor, asking that a writ of mandamus issue out of that court, commanding the county auditor to issue to him a voucher for the sum of $2061.75, being a part of the same fund demanded by the relator in this action.

It further appears by the answer to the sixth cause of action, and the admission in the reply, that some of counsel representing the relator in the present proceeding also .represent Young, trustee, in the action in the common pleas court of Lucas county. It would therefore appear that even in the minds of counsel for relator and Young there exists a substantial doubt as to the proper person entitled to receive these warrants.

However that may be, the fact that both the trustee in bankruptcy and the trustee in the assignment proceeding are presumably in good faith, making claim to these fees is sufficient to justify the county auditor in refusing to issue the warrants to relator until a court of competent jurisdiction determines which claimant is lawfully entitled to receive the same; for, regardless of the ultimate decision that may be reached, the auditor is not required to decide at his peril which of these trustees is entitled to receive this fund; and especially is this true where the record upon which he must base his action shows that the fees belong to Peter Parker, and each trustee makes the claim that under and by virtue of his respective appointment he has succeeded to all the rights and interest of Peter Parker therein.

The question of the relator’s right to this fund is further complicated by the fact that the auditor of Lucas county has issued his warrant, and the treasurer of Lucas county has paid this fund, upon the order of a court of competent jurisdiction, to a receiver appointed by that court. In answer to this, however, it is contended on the part of the relator, that the common pleas court did not have jurisdiction of the person of Peter Parker, for the reason that he was not served with summons in cause No. 58844. That is perhaps true, but that case may be wholly disregarded in the determination of the issue joined in this action.

In the action of The First National Bank of Bellevue against Peter Parker, No. 55335 on the docket of the common pleas court of Lucas county, Peter Parker was duly and legally served with summons.

On June 10, 1908, the court of common pleas in cause No. 55335, appointed Chambers receiver, and ordered the county treasurer to pay to the receiver the-funds of Peter Parker, coming into his hands by virtue of the lien theretofore granted by the common pleas court of Lucas county to Parker at his request, in the four cases against The Railways & Light Company.

It is absolutely of no importance in the disposition of this case whether the court of common pleas erred either in decreeing that Parker’s fees should be a lien upon'the proceeds of the judgments in the four cases against The Railways & Light Company, or whether it erred in its order appointing a receiver and ordering the county treasurer to pay these funds to the receiver. Parker was a party to all of these suits. The judgment in each of these cases finally and fully adjudicated the rights of all the parties thereto, and is binding not only upon Peter Parker himself, but upon all persons claiming under him.

In cause No. 58844, in which action Parker was not served with summons, an examination of the docket and journal entries shows that the court found specifically that these judgments, the four judgments against The Railways & Light Company, had been paid, and that Biddle, as treasurer, in pursuance of the order of the court entered in cause No. 55335, had paid to Chambers, receiver, the amount found to be due Parker in each of these Railways & Light Company cases and declared to be a' lien upon the proceeds of the judgments entered therein.

It therefore appears that these funds were not paid by the treasurer of Lucas county to the receiver appointed in cause No. 55335 upon any order of court made in cause No. 58844, but were paid to him upon the order made in cause No. 55335, in which cause the receiver was appointed, and in which cause Parker had been duly and legally served with summons. So that, as far as the fees due Parker from the proceeds of the four judgments against The Railways & Light Company are concerned, the defense of the auditor does not rest upon any order made in cause No. 58844, but, on the contrary, upon the order made in cause No. 55335.

The right of the relator to this fund, or any part of it, is doubtful for the further reason that on March 17, 1906, prior to the appointment of the relator as trustee in bankruptcy proceedings, and prior to the date of the assignment made by Parker for the benefit of his creditors, Parker assigned in writing to The Toledo {Bank the fees due him from Lucas county upon moneys recovered by him in the several actions described in the petition. In the same year he also assigned the same funds to William Mattison. These assignments were made by Parker presumably in good faith. He at least attempted to part with his right under the statute of this state to 'demand that the auditor of Lucas county issue to him a voucher covering these fees. The county auditor is not required to determine the validity of these assignments, nor is he required to determine whether they take precedence over the judgment and orders of the common pleas court in favor of The First National Bank of Bellevue in cause No. 55335.

Even if no bankruptcy proceedings had been commenced, and Parker had made no deed of assignment for the benefit of his creditors, he would now be in no position to demand that the auditor issue him a voucher for the fees that he had attempted to assign to The Toledo Bank and to William Mattison. Under such circumstances, the county auditor would have a clear right to refuse to issue to Parker any warrant upon the county treasurer until Parker had determined by action the validity or invalidity of the purported assignments. Certainly Parker’s trustee in bankruptcy, or the trustee in the assignment proceedings, is in no better position than Mr. Parker would be if such trustees had never been appointed.

Whenever by his own act, or the action of a court of competent jurisdiction in a proceeding in which he has been duly and legally served with summons, the right of Parker to demand and receive such warrant and payment of the same from the county treasurer is rendered doubtful or uncertain, mandamus will not lie upon his relation, nor will it lie to settle the rights of rival claimants claiming under him.

The rights of these respective claimants must first be determined in an action at law, and not in an action in mandamus against the county auditor, who is not concerned in their dispute, but is concerned in protecting the county from the payment of public funds to persons not entitled to receive the same.

Section 12287 specifically provides that “The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law.” In this case there is a plain and adequate remedy at law, where the rights of the county and every claimant to this fund can be fully protected and full and complete relief afforded. The relator has not shown a clear legal right to the relief sought. On the contrary, there is at least a substantial doubt as to his right to this fund or any part of it, and therefore a writ of mandamus will be refused and the petition of the relator dismissed at his cost.

Writ refused.

Jones, Matthias, Johnson, Wanamaker and Robinson, JJ., concur,


author: Jones, J.

text:
    Yee Bow v. The City of Cleveland et al.

      Municipal corporations' — Ordinance regulating laundries — Classification not unreasonable or discriminatory, when — Police power — Ordinance not invalid because operation limited, when —Legislative or judicial ppwer not delegated to administrative officer, when — Constitutional law,

    1. In. the regulation of laundries, a city ordinance defining a public laundry to be any premises, etc., used for the purpose of laundering certain washable articles "for thirty or more owners of such articles per week, and for pay,” is not unreasonable nor discriminatory. The basis of classification therein employed is natural and reasonable, and the provisions of the ordinance operate uniformly upon the class therein named.
    2. When a city has the right, under its police power, to impose regulations upon ia business, the validity of an ordinance cannot be attacked merely because its scope was not extended to cover the entire field of possible abuses which such, ordinance seeks to prevent. ,
    3. An ordinance imposing'on an administrative officer, as a prerequisite to the issuance of .a license, the duties of ascertaining whether sanitary and drainage arrangements are sufficient to protect the public health and whether “adequate ventilation” and “adequate plumbing and drainage facilities” are provided on the premises, does not confer arbitrary legislative or judicial powers upon such officer in a constitutional sense. If his conduct should prove to be arbitrary or palpably unwarranted, resort may be had to the courts.
    4. The provisions of' the ordinance referred to in propositions one and three herein violate neither the state nor the federal constitution.
    (No. 16106
    Decided March 11, 1919.)
    Error to the Court of Appeals of Cuyahoga county.
    Plaintiff in error filed his petition in the court of common pleas of Cuyahoga county seeking an injunction to restrain the enforcement of a city ordinance. This ordinance provided for the regulation of the public laundry business in the city by means of inspection and license. Section one of the ordinance is as follows:
    “Section 1. Definition — Any building, structure, place, premises or establishment, which is used for the purpose of laundering wearing apparel, table or bed linen, curtains, rugs, towels, or any or all of said articles for thirty or more owners of such articles per week, and for pay, regulated either by a flat-rate, piece price, or by weight, shall be deemed a public laundry for the purpose of this ordinance.”
    Other sections of the ordinance provide that public laundries cannot be maintained or operated without a license from the commissioner of assessments and licenses, to whom applications were required to be made. These applications were then transmitted to the health commissioner of the city for investigation and report. Thereupon the health commissioner was required to make an examination of the premises for the purpose of ascertaining whether the location, construction and ventilation of such laundries, and the sanitary and drainage arrangements thereof, were “sufficient to properly protect the public health, and the health of the persons to be employed in such proposed laundry.” Among other requirements provided for in said ordinance was the requirement that “All rooms used in connection with such laundry shall be provided with adequate ventilation by means of windows, air-shafts, air-ducts or other mechanical apparatus, if needed, so as at all times to insure a free circulation of fresh air in such laundry.”
    Provisions were also made whereby any person aggrieved by any finding or order of the commissioner of assessments and licenses, or the commissioner of health, should have the right of appeal to a board of appeals, composed of the mayor, director of law and director of public safety. A violation of any of the provisions of the ordinance is máde a misdemeanor.
    In his petition plaintiff urged that the ordinance was in violation of the state and federal constitutions, was an unconstitutional interference with his business, and asked the court to restrain the defendants from enforcing the ordinance.
    A general demurrer was filed in the court of common pleas, which was sustained. Plaintiff perfected his appeal to the court of appeals, which sustained the judgment of the lower court. Error is now prosecuted to this court.

      Messrs. Boyd, Cannon, Brooks & Wickham and Mr. John J. Sullivan, for plaintiff in error.

      Mr. W. S. FitzGerald, director of law, and Mr. Alfred Clum, assistant city solicitor, for defendants in error.
   Jones, J.

The argument attacking the constitutionality of this ordinance is based upon two grounds: (1) That it was class legislation of unequal operation and discriminatory in character; (2) That the ordinance delegated to an administrative officer of the city legislative and judicial powers.

It is conceded that the city in the reasonable exercise of its police power had the right to regulate public laundries as a measure of public safety and for the protection of the health of employes and of the public. The first ground of attack is urged for the reason that section one of the ordinance is arbitrary, unreasonable and amounts to a discrimination between persons doing the same business, in that the ordinance is made applicable only to those laundering articles for thirty or more owners of such articles per week, and for pay. Diversity of patrons was the basis adopted by the legislative policy of the city in making this classification. Concededly the city had the right to enlarge or lessen the scope of this classification and apply it to hotels doing a considerable business; but the court is not warranted in substituting its own judgment as to the scope of classification unless the latter clearly appears to be unwarranted and unreasonable. Conceding that the city had, in the exercise of its police power, the right to impose regulations that were necessary for the protection of the public health, the ordinance does not become invalid because it does not cover the whole field of possible abuse. (Hall, Supt. of Banks, v. Geiger-Jones Co., 242 U. S., 539.) The provisions of the ordinance in question are not an unreasonable exercise of the police power, are not discriminatory, but operate uniformly and geographically upon the class stipulated in the ordinance, and this case is therefore distinguishable from the Ohio cases relied upon by the plaintiff in error.

The constitutional validity of the ordinance is also attacked for .the reason that the same grants to an administrative officer arbitrary legislative and judicial powers, and this because it imposes upon the health commissioner, as a prerequisite to the issuance of a license, the duty of ascertaining whether the sanitary and drainage arrangements are sufficient to protect the public health and whether “adequate ventilation” and “adequate plumbing and drainage facilities” have been provided. It is claimed that these features of the ordinance are left to the arbitrary judgment of an administrative officer, and that no fixed standard has been provided as a guide for official action and for the information due those operating public laundries.

It is now generally held that quasi-judicial duties and administrative functions may be imposed upon administrative officers for the purpose of ascertaining the conditions under which the law or ordinance becomes effective. It will not be presumed that the action of the administrative officer will be either arbitrary or unwarranted. Should it so prove to be, the aggrieved person would have the right to relief through the courts. But it is said that the ordinance has fixed no standard for official guidance, but has left the sanitary arrangements and ventilation of each public laundry to the untrammeled judgment of the health commissioner for determination whether such are sufficient and adequate. It is exceedingly doubtful whether a fixed standard could be adopted by the city in its regulation of those features. What would prove to be sufficient and adequate in one public laundry might be entirely insufficient and inadequate in another. And any attempt to provide by law for the multitudinous details defining what would be sufficient and adequate measures of regulation, applicable to each and every laundry falling within the class mentioned, would seriously tax legislative ingenuity. But it is now generally held that discretionary powers may be lodged in administrative officers to determine whether the terms of a law or ordinance of this character have been complied with, and that such “terms like other general terms get precision from the sense and experience of men.” That there is ample support for this principle is furnished by the two following federal cases, originating in this state, wherein practically every question here made was decided: Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S., 230, and Hall, Supt. of Banks, v. Geiger-Jones Co., 242 U. S., 539. In the first-named case the legislature left to the judgment and discretion of a board of censors the approval of such films only as the board might find to be “moral, educational or amusing and harmless in character.” In the second case the legislative act required the executive officer, as a condition of a license, to be satisfied of the good or bad business repute of the applicant for a license. Both acts were sustained by the supreme court of the United States. The principles involved in those cases are similar to the ones here in controversy. Like questions were involved and decided in favor of these legislative powers in the following cases: Gundling v. Chicago, 177 U. S., 183; Red “C” Oil Manufacturing Co. v. Board of Agriculture of N. C., 222 U. S., 380, and People of State of N. Y., ex rel. Lieberman, v. Van de Carr, Warden, 199 U. S., 552.

We, therefore, hold that the features of the ordinance complained of violated neither the state nor the federal constitution. The judgment of the court of appeals is affirmed. .

Judgment affirmed.

Nichols, C. J., Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.


author: Johnson, J.

text:
    The Village of Oak Harbor v. The Public Utilities Commission et al.

      Public utilities commission — Complaint against rates fixed by municipality— Existing ordinance prerequisite to jurisdiction, when — Section 614-44 et seq., General Code.

      In order that the public utilities commission may proceed on a complaint filed byt a public utility, under the provisions of Section 614-44 et seq., General Code, to fix rates to be paid to the utility for its product or service in a municipality, it is necessary that there should be an ordinance in existence passed by the municipality fixing the rate or charge complained of, and that the commission after a hearing shall find that the rate “so fixed by ordinance is or will be unjust or unreasonable, or insufficient to yield reasonable compensation for the service or product.”
    (No. 16078
    Decided March 11, 1919.)

      Error to the Public Utilities Commission.
    This is a proceeding brought to reverse an order of the public utilities commission.
    In January, 1886, the village granted The Oak Harbor Natural Gas Company a franchise to lay, maintain, operate, repair and remove mains and pipes in, through and under the streets and public grounds of the village, for the transportation and supply of gas for fuel, heating and power purposes to the village and its inhabitants for the period of twenty-five years. Pursuant thereto the company constructed the mains and pipes and furnished and supplied gas for fuel, heating and power purposes to the village and its inhabitants.
    After the expiration of the twenty-five year period, to-wit, on the 28th day of December, 1915, the village passed an ordinance granting the right to maintain and lay pipes and lines in the streets, alleys and lanes, and conduct natural and artificial gas to the consumers thereof in the village, so long as said, consumers are not required to pay said company for said gas more than 50 cents per thousand cubic feet, or more than one dollar per month minimum, but said right in no event to extend over five years from the date of the taking effect of the ordinance. Said right was granted upon the express conditions hereinafter mentioned.
    Section 2 contained conditions that the company should file with the clerk of the village before the ordinance should take effect a true plat showing the location of all pipe lines and pipes; that no new or additional pipes should be laid until a plan and plat of the proposed locations thereof, and manner and method of laying the same, had been first presented to and approved by the council; and other specific provisions with reference to the payment of damages by the company and with reference to the crossing of improved streets. Section 3 provided that on the company failing to comply with any of the conditions mentioned in Section 2, all rights granted in. Section 1, should, upon notice of the council, terminate and end, and Section 4 provided that the ordinance should take effect and be in force from and after its- passage and on the said company paying the cost of publication thereof. The ordinance was never published, the natural gas company has not filed or furnished to the clerk of the village the true plat referred to, and has not paid the costs of publication of the ordinance.
    On February 26, 1916, the company filed its complaint with the public utilities commission in which the foregoing facts were substantially set out.
    A demurrer was filed to the complaint, which was first sustained, and, afterwards, on rehearing, overruled. The village filed its answer. An amendment was subsequently filed to the complaint, and on the final hearing the commission made its order fixing the rate at 70 cents per thousand cubic feet.
    This proceeding is brought to reverse the order of the commission.
    Additional facts are stated in the opinion.

      Mr. John Duff, for plaintiff in error.

      Mr. Joseph McGhee, attorney general; Mr. C. A. Radcliffe and Messrs. Graves, Stahl & Duff, for defendants in error.
   Johnson, J.

The contention of the village is that the public utilities commission was without jurisdiction to entertain the complaint and make the order, the reversal of which is sought.

A statement of the steps taken, in their chronological order, will assist in the consideration of the question.

The period fixed for the franchise granted the company, under which the company had laid its pipes and furnished gas, having expired, the village on the 28th of December, 1915, passed an ordinance which granted the company the right to maintain and lay in the streets its pipes and conduct natural and artificial gas for the period of five years, and fixed the rate which consumers should be required to pay at 50 cents per thousand cubic feet.

Among other conditions in the ordinance it was provided that before it should take effect a true plat showing the location of all the pipe lines and pipes of the company in the village should be filed with the clerk of the village, and that on the company failing to comply with any of the conditions the ordinance should terminate and end as though it had not been passed. It was also a condition precedent to the taking effect of the ordinance that the company should pay the cost of its publication.

It is admitted that the company never paid the cost of publication of the ordinance, that the ordinance was never published, and that the company never filed the plat referred to.

On the 25th day of February, 1916, the company notified its consumers in the village that it would thereafter charge 75 cents per thousand, and thereupon, after the notice was received, the village, on the same day, ordered the company to remove its pipes from the streets.

On March 7th, the company appeared before the council and refused to accept the franchise ordinance, and on the following day the village repealed the ordinance.

The appeal to the public utilities commission was filed by the company on the day following the date on which it increased the charge to 75 cents and on which it had been ordered to remove its pipes by the village.

So the situation was that the franchise granting the privilege to lay the pipes and conduct its business in the village had expired and no new franchise or contract had been made and agreed upon by the parties.

Thus the status of the parties under the circumstances was as stated in The City of Columbus v. The Columbus Gas Co., 76 Ohio St., 309, 331: “Former ordinances referred to in the answer had run their course and had expired, and the gas company wanted and needed the ordinance of 1892, and without it the company had no right as against the will of the council to longer continue its business in the streets and other public grounds.”

In The East Ohio Gas Co. v. The City of Akron, 81 Ohio St., 33, 53, it is said: “If the refusal to comply is final, the company necessarily incurs the penalty of forfeiture of its franchise to serve the people of the city.”

In Detroit United Railway v. City of Detroit, 229 U. S., 39, it was held:

“Where a street railroad company is operating in the streets of a city for a definite period and has enjoyed the full term granted, the municipality may, upon failure of renewal of the grant, require the company within a reasonable time to remove its tracks and other property from the streets, without impairing any contractual obligation protected by the Federal Constitution or depriving the company of its property without due process of law.”

In the opinion, at page 45, it is said: “The Railway took the several grants with knowledge of their duration and has accepted and acted upon them with that fact clearly and distinctly evidenced by written contract. The rights of the parties were thus fixed and cannot be enlarged by implication.” (Citing cases.)

In order that there should have been a valid contract between the parties, which renewed the franchise, it was necessary not only that there should be an ordinance duly passed and published in accordance with law, but that the company should accept its terms. (East Ohio Gas Co. v. City of Akron, 81 Ohio St., 33.) Until such acceptance, it lacked the essentials of a contract. It was a mere proposition.

We have no doubt that if the period fixed for the duration of an existing franchise has expired, and the municipality thereafter duly and legally passes a new rate ordinance, which goes into legal effect with reference to the product or service contemplated in the franchise, such action would amount to an implied extension of the old franchise, for the term fixed in the ordinance, for the rate. But in this case at the time the company filed its appeal with the public utilities commission its franchise had expired and no new franchise had been granted and accepted; no new rate ordinance had been passed. The company had not only not accepted the new franchise ordinance, but it had in contravention of the terms of the ordinance notified its customers that the price of gas would be 75 cents instead of the 50 cents fixed by the ordinance. And thereafter it appeared before the council and specifically refused to accept the ordinance.

By the provisions of Section 614-44, General Code, any municipal corporation in which any public utility is established, may, by ordinance, at any time within one year before the expiration of any contract entered into under the provisions of Sections 3644, 3982 and 3983, General Code, between the municipality and the public utility with respect to the rate to be charged by such utility, proceed to fix the rate that such utility may charge for an ensuing period, as provided in those sections.

It is provided in the same section that the utility may file its complaint in writing with the public utilities commission within sixty days after the passage of the ordinance, and that the commission shall thereupon proceed with the matter as provided in that and the succeeding sections, and shall, if it is of the opinion that the “rate so fixed by ordinance” Is unjust or unreasonable, or insufficient to yield reasonable compensation for the service, fix and determine the just and reasonable rate. All of which is to be done in the manner prescribed by those sections.

It will be observed that there is no right of appeal or complaint, at all, until an ordinance is duly and legally passed and in effect, fixing the rate. When such an ordinance is in effect, an appeal may be had. It must also be noted that Section 614-46 provides that if the commission is of opinion that the rate “so fixed by ordinance is or will be unjust * * * the commission shall * * * fix and determine the just and reasonable rate,” etc. Of course this could only be done in case of an ordinance in due and legal effect.

The public utilities commission is an administrative board and only has such authority as the statute creating it has given it. It has no power to confer franchises or make contracts which shall be effective between a municipality and a public utility, or between other parties.

We have repeatedly declared this view of its status and powers. The City of Cincinnati v. The Public Utilities Commission, 91 Ohio St., 331; The City of Cincinnati v. The Public Utilities Commission of Ohio, 96 Ohio St., 270; The Interurban Ry. & Term. Co. v. The Public Utilities Commission, 98 Ohio St., 287, and The Sylvania Home Tel. Co. v. The Public Utilities Commission of Ohio et al., 97 Ohio St., 202.

When an appeal has been filed the procedure is prescribed, and Section 614-46, General Code, provides that the commission shall determine the just and reasonable rate to be charged “during the period so fixed by ordinance, which shall not be less than two years,” and order the same substituted “for the rate” fixed by the ordinance.

Therefore, it would of course be necessary that there must first be an ordinance granting a franchise to the company to occupy the streets and sell its product, and that either that ordinance, or another, must fix the rate. In this case, there not having been any effective ordinance passed, there was nothing from which the public utility was authorized to appeal. As was said in Cincinnati v. Public Utilities Commission, 96 Ohio St., at page 274: “There were no existing rates to alter, amend or suspend.”

As above stated, Section 614-44 provides that the city within one year before the expiration of any contract entered into under the provisions of the sections named, with respect to the rate, price, etc., may proceed to fix the price which the public utility may charge for an ensuing period, as provided in Sections 3644, 3982 and 3983, General Code.

The same section contains the provision that the filing of a complaint by the public utility as herein provided shall be taken and held to be the consent of such public utility to continue to furnish its product or service and devote its property engaged therein to such public use during the terms so fixed by the ordinance or by the provisions of the act.

This provision contemplates and recognizes the right of the utility to discontinue the furnishing of its product or service or the devoting of its property to the public use, if it so desires, at the expiration of the prior franchise contract. And the franchise contract being mutual, the village has a like privilege of termination.

The provision that the filing of the complaint shall be taken to be the consent of the company to continue to furnish its product or service during the term fixed by the ordinance presupposes the existence of an ordinance which fixes the rate appealed from. Of course the village itself has not the power to determine or in any way affect the right of the utility to appeal to the commission. The legislature fixes that.

Where the franchise of a public utility to occupy the streets and public places in a municipality and sell its product and service has not expired, and there is no contract or valid ordinance in effect fixing rates and charges, the method of fixing rates is provided by Section 614-16 and succeeding sections of the General Code. And if the rates fixed in the schedules there required to be filed are claimed to be unjust, unreasonable, or otherwise violative of law, complaint may be filed with the commission, which is required to hear and determine the matter and fix a just rate.

It was decided in Cincinnati v. Public Utilities Commission, 96 Ohio St., 270, that "In the absence of an effective ordinance prescribing rates for service by a public utility, such rates should be established in accordance with the provisions of Section 614-16 et seq., General Code.”

We think the commission had no jurisdiction to entertain the complaint filed in this case and its order is, therefore, reversed.

Order reversed.

Nichols, C. J., Matthias and Robinson, JJ., concur.

Wanamaker, J., concurs in the judgment.


text:
    The State, ex rel. Balli, v. Carrel, Auditor.

      Municipal corporations — Ordinance regulating pool and billiard rooms — Aliens denied license — Constitutional law.

    A municipal ordinance purporting to regulate and license pool and billiard rooms, which contains a provision that “no license shall be granted to a person who is not, by reason of such provision, a citizen of the United States,” is not in conflict with any provision of the state or federal constitution.
    (No. 16172
    Decided March 25, 1919.)
    Error to the Court of Appeals of Hamilton county.

      Mr. George S. Hawke, for plaintiff in error.

      Mr. Saul Zielonka, city solicitor, and Mr. Dennis J. Ryan, assistant city solicitor, for defendant in error.
   By the Court.

Sections 3659 and 3670, General Code, so far as pertinent, read:

“Sec. 3659. To regulate billiard and pool tables, nine or ten pin alleys or tables, and shooting and ball alleys; and to authorize the destruction of instruments or devices used for the purpose of gambling.”

“Sec. 3670. To regulate and license * * * billiard rooms,” etc.

Acting under these powers, as well as the home-rule powers of the constitution, the city of Cincinnati on February 26, 1918, passed an ordinance, which provided, among other things:

“Provided, however, that no license shall be granted to a person who is not a citizen of the United States.”

The relator, Charles Balli, was a subject of Greece and on June 28, 1918, made application to defendant in error to issue a pool table license to him. The defendant in error, obedient to the ordinance, refused such license, and a writ of mandamus was invoked to compel him to issue such license.

The sole question, therefore, is as to the constitutionality of such ordinance.

Similar questions have been before other courts of last resort, especially ordinances regulating licenses to hawkers and peddlers. In Commonwealth v. Hana, 195 Mass., 262, the Massachusetts court held:

“The requirement * * * that a license as a hawker and pedler shall be granted only to a person who is or has declared his intention to become

a citizen of the United States, is constitutional as a reasonable exercise of the police power.”

In Schmidinger v. City of Chicago, 226 U. S., 578, it is held:

“The right of the legislature, or the municipality under legislative authority, to regulate one trade and not another is well settled as not denying equal protection of the laws. * * *

“Local legislative authorities, and not the courts, are primarily the judges of the necessities of local situations calling for police regulation, and the courts can only interfere when such regulation arbitrarily exceeds a reasonable exercise of authority.”

A statute found in 100 Ohio Laws, 89, containing substantially the same provision as does the ordinance of Cincinnati, was before the supreme court of Ohio in Bloomfield v. State, 86 Ohio St., 253, in which cause this particular provision was questioned as being contrary to both state and federal constitution. The court says, at page 266:

“We do not think the statutes of Ohio, and of other -states, which have barred aliens from the liquor traffic in the manner stated have arisen from a spirit of race hatred or inhospitality, or a purpose to deny the equal protection of our laws or equal opportunity under our institutions. But they are based on the belief, that an alien can not be sufficiently acquainted with our institutions, and our life, to enable him to appreciate the relation of this particular business to our entire social fabric. When he has become more familiar with the spirit of the American people and their laws and has become a citizen, he will easily and readily (in the conduct of the -business) assist in the furtherance of the policy of the state.”

Subsequently thereto this same doctrine, which had been held not to be a violation of any provision of state or federal constitution then existing, was expressly incorporated in Section 9, Article XV, of the Constitution, the pertinent part thereof reading as follows:

“License to traffic in intoxicating liquors shall not be granted to any person who at the time of making application therefor is not a citizen of the United States and of good moral character.”

From the foregoing it is quite apparent that the constitution, the statute and the decisions of this court happily cooperate in declaring the public policy of the state which sustains this salutary provision of the ordinance.

The authorities of Cincinnati are presumed to be more familiar with such local conditions than any foreign tribunal or court.

We find no abuse of discretion nor violation of any constitutiona-1 principle in the ordinance attacked. The ordinance, therefore, is a valid and constitutional ordinance and the judgment of the court below is accordingly affirmed.

Judgment affirmed.

Nichols, C. J., Jones, Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.