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ing: “If you can do anything for me on "Agency is a legal relation, founded upon the these terms, I shall be glad to hear from express or implied contract of the parties, you." This expression, and the subsequent or created by law, by virtue of which one acceptance of a commission by the Western party—the agent-is employed and authorizTrust & Investment Company, are the only ed to represent and act for the other the facts or circumstances in the record tending principal—in business dealings with thiril in the remotest way to substantiate the claim persons. The distinguishing features of the of agency. The matter of the commission agent are his representative character and we will refer to later. In their letter of his derivative authority." Mechem on Agency, December 5th the Western Trust & Invest- $ 1. We fail to see a single element of such ment Company said: "To cut it short, our relationship in the record before us. The people will pay you $25,000 net for the prop- Western Trust & Investment Company may erty." . This offer would seem to preclude not have informed the appellants in so many a claim for commission or a claim of agency, words that they were interested in the purand the reply of the appellants that $215 | chase, and the appellants may not have per acre already fixed was the best they known of such interest to a moral certainty ; could do should also be construed as a net but their suspicions were aroused, and they offer. In fact, the entire correspondence shows made no inquiry, for the all-sufficient reathat the appellants and the Western Trust son that at that time they did not care. The & Investment Company were dealing at arms' i appellants concede that loose expressions in length, and that the latter represented the the correspondence militate against their purchase, if anybody. Thus, in their letter | present claims, and we can find nothing but of February 14, 1905, the appellants say to loose expressions in their favor. Ordinarily the respondent Lawyer: "If you do not wish a court of equity will not seize upon mere to pay so much, there is no compulsion upon loose expressions for the sole purpose of enyou to take it. We are willing to risk hold- abling parties to reap where they have not ing it for a higher price." In their letter sown. to their bankers they say: "The inclosed There is no error in the record, and the deed is to be delivered to Mr. Jay Lawyer judgment is affirmed. of the Western Trust & Investment Co., Jamison Blk., Spokane, on the following con- HADLEY, C. J., and FULLERTON, DUNditions: He is to pay $26,950 (as mentioned | BAR, and ROOT, JJ., concur. CROW, J., in deed) less 5 per cent. commission and less took no part. also $18.00 for abstract. That he is to pay a net sum of $25,581.50.

of $25,581.50. Besides, he is to show you tax receipt for 1904 taxes: Mr.

(47 Wash. 249) Lawyer understood that this is the condi

COLUMBIA CANAL CO. v. BENIAM, tion, we having refused to reduce our pur

(Supreme Court of Washington. Oct. 7, 1907.) chase price by these amounts."

COURTS-STATE COURTS-JURISDICTION-PUBNow, as to the acceptance of the commis


A state court has no jurisdiction to enjoin sion on the sale by the Western Trust &

defendant from proceeding to obtain title to Investment Company. In the first place, public lands, for which he has filed an entry in they were clearly not entitled to a commis- the proper land office, and to require him to file sion as a matter of law, because of their

a relinquishment of his claims thereto and to

appoint a commissioner to file a relinquishment interest in the purchase. In the second place, on defendant's failure to do so; the court being in our opinion they were not entitled to a powerless to grant relief until the title passes commission as a matter of contract; and,

from the government. while their subsequent conduct in accepting

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 13, Courts, $ 1333.] a commission is in a measure inconsistent with their statement that they expected

Appeal from Superior Court, King County; none, yet we think that statement is fully

R. B. Albertson, Judge. borne out by the testimony. In their letter

Action by the Columbia Canal Company transmitting the opinion of their attorney on

against W. L. Benham. From a decree for the abstract, they referred to the taxes of plaintiff, defendant appeals. Reversed and 1904, the old city taxes, the cost of the ab

remanded. stract, and the claim on account of a defi- Jesse A. Frye, for appellant. Shank & ciency in acreage, but made no reference to a Smith, for respondent. commission, and no provision whatever was made for its payment. From all the circum- RUDKIN, J. This is an appeal by the stances, therefore, we are constrained to hold defendant from the following decree entered that the Western Trust & Investment Com- against him in the court below: “It is pany were not entitled to a commission as a hereby ordered, adjudged, and decreed that matter of law or contract and expected none. the defendant be, and he hereby is, restrainIts subsequent acceptance is a circumstance ed and enjoined from proceeding further in against them; but an agency existed or did any manner whatever, in person or by agent not exist pending the negotiations for the or attorney, to obtain title to the northwest sale, and could neither be created nor ab- quarter (N. W. 14) of section ten (10), in rogated by what subsequently transpired. township seven (7) north, range thirty-one

91 P.-61

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(31) east, in Walla Wallacounty, Washing-, S.) 347, 19 L. Ed. 62; Secretary v. McGarration, whether under his entry of the said han, 9 Wall. (C. S.) 298, 19 L. Ed. 579. And land as desert land, filed in the United

filed in the United we think it would be quite as objectionable States Land Office, at Walla Walla, Wash- to permit a state court, while such a quesington, on, to wit, August 2, 1900, or other- tion was under the consideration and withiwise, and that defendant, his agents, or at- in the control of the executive departments, torneys and each of them be, and they here- to take jurisdiction of the case by reason by are, forbidden and enjoined from taking of their control of the parties concerned, and any steps in the matter of the said entry or render decree in advance of the action of any other proceedings in the land office of the government, which would render its patthe United States in connection with the said ents a nullity when issued. After the l'nited land, sa ve and except only as hereinafter di- States has parted with its title, and the inrected. And it is further ordered and de- dividual has become vested with it, the equicreed that the defendant do forthwith file, ty sulject to which he holds it may be enor cause to be filed, in the United States forced, but not before. Johnson v. Towsley, Land Office at Walla Walla, Washington, a 13 Wall. (l'. S.) 72, 20 L. Ed. 485; Shepley relinquishment of all claims to said land and v. Cowan, 91 U. S. 330, 23 L. Ed. 124. The the whole thereof, and that, in the event of doctrine of this case has been reaffirmeil in bis failure so to do within twenty (20) days many subsequent cases in the same court. from this date, Heber M. Hoyt, Esquire, a United States v. Schurz, 102 U. S. 378, 26 member of the bar of this court, who is L. Ed. 167; Carrick v. Lamar, 116 C. S. 423, hereby appointed commissioner for the pur- 6 Sup. Ct. 124, 29 L. Ed. 677; Cruickshank v. pose, shall forthwith, in the name and as Bidwell, 170 U. S. 73, 20 Sup. Ct. 280, 44 L. the act of said defendant, execute such re- Ed. 377; Kirwin v. Murphy, 189 U. S. 35, 23 linquishment in due and proper form, and Sup. Ct. 599, 47 L. Ed. 698; Cosmos Exploracause the same to be filed in said land office, tion Co. v. Gray Eagle Oil Co., 1990 U. S. with certified copies of findings, conclusions, 301, 23 Sup. Ct. 092, 24 Sup. Ct. 800, 47 L. and decree. But such relinquishment by the Ed. 1061; Humbird v. Avery, 195 U. S. 480, commissioner shall not of itself relieve the 25 Sup. Ct. 123, 49 L. Ed. 286; Oregon v. defendant from making relinquishment in Hitchcock, 202 U. S. 60, 26 Sup. Ct. 508, 50 person as hereinabove ordered.”

L. Ed. 93). To the same effect, see Casey v. In view of the conclusion we have reached Vassor (C. C.) 50 Fed. 258; Forbes v. Drison the question of the court's authority to coll, 4 Dak. 336, 31 N. W. 633; Vantongeren enter such a decree, we deem it unnecessary v. Heffernan, 5 Dak. 180, 38 N. W. 52; Hays to make a further statement of the case, ex- V. Parker, 2 Wash. Ter. 198, 3 Pac. 901. In cept to say that the lands described in the McCord v. Hill, 104 W’is. 457, 80 N. W. 735, decree are public lands of the United States, the court said: “It is only after the United and the appellant has made entry thereof States has parted with its title and the inunder the provisions of the desert land act dividual has become vested with it that the in the proper land office. Notwithstanding equities on which he holds it may be enforcthe innumerable attempts that have been ed, and not before.

* Such being the made through the courts to control the ac- law, a complaint which seeks to have the tion of the land department in disposing of court adjust equities between rival claimthe public domain, the respondent has been ants to government land is fatally defective unable to cite a single precedent for such a if it fails to show that the title has become decree; and, after an exhaustive examination vested in the individual against whom it is of the authorities, this court has been equal | sought to enforce supposed equities.” ly unsuccessful. We are satisfied, however, In Sims v. Morrison, 92 Minn. 341, 100 V. that the authority to enter the decree has W. SS, the court said: “The rule applies been repeatedly denied by the Supreme Court with greater force to the case at bar, for of the United States in analogous cases. In here the legal title to the land is in the Marquez v. Frisbie, 101 U. S. 473, 25 L. Ed. general government, with no certainty that 800, the court, speaking through Mr. Justice it will ever become vested in defendants, Miller, said: “It plainly appears from this, and the rights of both are purely equitable. first, that defendants had not the legal title; The government has the paramount and sole second, that it was in the United States; authority to dispose of its lands, and, unand, third, that the matter was still in fieri, til it parts with and conveys its title, the and under the control of the land officers. courts are powerless to aid litigants in conNothing in record of the case before us gives troversies affecting or involving individual evidence that any further steps in that de- claims thereto." So far as we have been partment have been taken in the case. We able to discover, there is no dissent from have repeatedly held that the courts will these views. The right of the respondent to not interfere with the officers of the gov- maintain this action must rest upon some ernment while in the discharge of their duty equity it has or claims in the land sought to in disposing of the public lands, either by be entered, which is now public land of the injunction or mandamus. Litchfield y. Rer- l'nited States. If it has such an equityister and Receiver, 9 Wall. l'. S. 17.1. 19 L. ! and upon that question we express no opinEd. Osi; Gaines v. Thompson, 7 Wall. (l'. , ival--the courts are powerless to grant relief

until the title passes from the general gov- 6. SAME – PARDOX CONDITIONS – BREACII ernment. The respondent cites the case of

-EVIDENCE. Rader v. Stubblefield from this court, re

Petitioner was pardoned because of his in

valid condition, on condition that he be cared ported in 86 Pac. 560, in support of its con- for and supported by his relatives so long as he tention. The difference between enjoining lived, and that he be placed in the care and the prosecution of an action inter partes in surveillance of a certain doctor. He remaineil

with his relatives not more than two or three another court, and enjoining the prosecution

days after release, and they did not provide for of a claim for public land before the special or support him. He supported himself. and tribunal charged with the administration of was married shortly before his rearrest. On the public land laws, is apparent. The judg

revocation of the pardon, it was also shown that

he frequented houses of prostitution and saloons, ment appealed from was in excess of the

and often became intoxicateri. Held sufficient to jurisdiction of the court, and is without war- show a breach of the conditions of the pardon. rant or authority in law.

Rudkin, Dunbar, and Fullerton, JJ., dissentReversed and remanded.

ing in part. HADLEY, C. J.,

Appeal from Superior Court, Walla Walla and FULLERTON,

County: Thos. II. Brents, Judge. CROW, DUNBAR, and ROOT, JJ., concur.

Habeas corpus on petition of Edward

Spencer against A. Frank Kees, superintend(47 Wash. 276)

ent of the state penitentiary. From an order SPENCER v. KEES, Superintendent State remanding petitioner to custody, he appeals. Penitentiary.

Affirmed. (Supreme Court of Washington. Oct. 8. 1907.)

John H. Pedigo and Garrecht & Dunphy, 1. PARDON -- STATUTES — AUTHORITY OF GOV- for appellant. John D. Atkinson, E. C. MacERNOR. Const. art. 3, § 9, vests the pardoning pow.

donald, Otto W. Rupp, and Lester S. Wilson, er in the Governor under such restrictions as

for respondent. may be prescribed by law. Ballinger's Ann. Codes & St. $ 0997. authorizes the granting of MOUNT, J. This alupeal is from an order a pardon under such conditions and with such restrictions and limitations as the Governor may

in habeas corpus refusing to discharge the think proper, and provides that he may issue appellant from prison. On June 4, 1903, the his warrant to all proper officers to carry into appellant, having been convicted of murder effcct such pardon or commutation, which war. in the second degree, was sentenced by the rant shall be obeyed and executed instead of the sentence, if any, originally given. Yo other

superior court for Spokane county to imregulations or restrictions have been prescribed prisonment in the penitentiary for the term by law, nor any other method provided for de- of 13 years. He was thereupon incarcerateri termining when the conditions of a pardon have in the penitentiary. On May 3, 1903, the been broken. Held, that the provision that the Governor may issue his warrant to carry the Governor granted a conditional pardon which, pardon into effect provides a method for the rer

after reciting the facts above stated, is as ocation of the pardon for breach of conditions, follows: "Whereas, it has been represented and is not limited to affording a method of release of the person pardoned.

to me by Dr. Yancy C. Blalock, physician at 2. SAME-CONDITIONS.

the said penitentiary, that the said Edward Under Const. art. 3. $ 9, vesting the par

Spencer is an invalid, is failing in health, doning power in the Governor under such re- and cannot live, which statement is indorsed strictions as may be prescribed by law, the Governor has power to grant pardons on any

by Hon. Jesse T. Mills, chairman of the state conditions capable of performance which are

board of control, who also recommends the neither illegal nor immoral.

granting of executive clemency to the said [Ed. Note.--For cases in point, see Cent. Dig. Edward Spencer, now, therefore, I, Albert E. vol. 37, Pardon, 88 4, 614, S.]

Mead, Governor of the state of Washington, 3. SAME - BREACH OF CONDITIONS – Revoca- | by virtue of the authority in me vested, do TION. Where the Governor issued a conditional the condition and understanding that he be

hereby pardon the said Edward Spencer, on pardon to petitioner, the Governor was authorized to enforce the performance of the condi- placed immediately under the care and surveiltions, and to issue his warrant revoking the par- lance of Dr. Yancy C. Blalock, who shall redon, according to its terms, on a breach of con

port immediately to the governor any violation ditions. {Ed. Vote.--For cases in point, see Cent. Dig.

of the conditions on which this pardon is vol. 37, Parion, 8 31.]

granted, and on further condition that the 4. HABEAS CORPUS-BURDEN OF PROOF.

relatives of the said Edward Spencer provide Where a conditional pardon was reroked for and support him so long as he shall live, by the Governor for alleged breach of the con- and that failure on their part so to do, or on ditions, the court was authorized in a habeas

the part of the said Elward Spencer to recorpus proceeding to place the burden on the state of showing the violation of such condi

main with them and under the surveillance tions.

of the said Dr. Yanıy C. Blalock shall cause [Ed. Vote.--For cases in point, see Cent. Dig. the revocation of this partion and the revol. 25. Habeas Corpus, $ 78.]

commitment of the said Edward Spencer to 5. SAME-APPEAL-MODE OF TRIAL.

the penitentiary to serve out the remainder A habeas corpus proceeding being triable of his term according to the sentence imposevi de novo on appeal, the order will not be reversed because of the improper admission of evidence.

on him by the court hereinbefore mentioned. TEX. Yote.--For cases in point, see Cent. Dig.

And I hereby authorize the superintendent vol. 25, Ilabeas Corpus, § 114.]

of the penitentiary to liberate the said Ed

ward Spencer on the conditions named here- that the responde at wrongfully and without in.” The terms and conditions of this pardon authority detains the appellant in custody. were accepted by Spencer, and, in pursuance The writ was issued, and, for a return therethereof, he was released from the penitentiary to, the respondent alleged the revocation of on May 14, 1905. Thereafter, on May 16, the conditional pardon, for the reason that 1906, the Governor revoked the conditional all the conditions thereof had been violated, pardon by issuing under his hand and the and also alleged that the pardon was void seal of state his declaration as follows: "To because it was obtained by fraudulent repall of whom these presents shall come, greet- resentations. Appellant moved to strike out ing: Whereas, on the eighth day of May, 1903, of the return the allegations relating to the a conditional pardon was granted to Edward violation of the conditions of the pardon and Spencer, a prisoner in the state penitentiary, the allegations of fraud. This motion was on representations made to the Governor that overruled by the court. Appellant then dethe said Edward Spencer was an invalid in

nied the allegations of the return, and, upon an advanced stage of consumption, who could

these issues, the cause was tried to the court live but a short time, that his friends and

without a jury, appellant's demand for a relatives living in the county of Walla Walla jury being denied. The court ruled that the stood ready to receive and care for him, and burden of proof was upon the state to show that his condition was such that it would be that appellant had violated the terms of the but an act of common humanity to permit

pardon. After hearing the evidence the him to leave the prison so that he might die

court, without making any findings of fact, outside of its walls. And, whereas, the condi

denied the application for discharge, and retions of the said conditional pardon as set

manded the appellant to the custody of the forth therein were as follows, to wit: “That superintendent of the penitentiary to serve he (the said Edward Spencer) be placed im

out his original sentence. This appeal is mediately under the care and surveillance of prosecuted from that order. Dr. Yancy C. Blalock, who shall report im

It is argued by counsel for appellant that mediately to the Governor any violation of

the court erred in refusing to strike out the the conditions on which this pardon is grant

allegations in the return to the writ, to the ed, and on the further condition that the

eifect that the conditions of the pardon had relatives of the said Edward Spencer provide

been violated and that the pardon was profor and support him so long as he shall live,

cured by fraud, for the reason that questions and that failure on their part so to do, or

of this character cannot be tried on an apon the part of the said Edward Spencer to

plication for habeas corpus. This raises the remain with them and under the surveillance

question whether the Governor was authorizof the said Dr. Yancy C. Blalock, shall cause

ed to issue his warrant declaring the condithe revocation of this pardon and the recom

tional pardon void and ordering the appellant mitment of the said Edward Spencer to the

to be again taken into custody without girpenitentiary to serve out the remainder of his ing the appellant an opportunity to be heard. term according to the sentence imposed on

The Constitution, at section 9, art. 3, vests him by the court hereinbefore mentioned.' the pardoning power in the Governor "under And, whereas, the said Edward Spencer has

such regulations and restrictions as may be violated each and every one of the above- prescribed by law." Section 1997, Ballinger's mentioned conditions, thereby rendering the Ann. Codes & St., provides that, in all cases conditional pardon null and void: Yow, in which the Governor is authorized to grant therefore, I, Albert E. Mead, Governor of the pardons, he may grant a pardon under such state of Washington, by virtue of the au- conditions and with such restrictions and thority in me vested, do hereby revoke and under such limitations as he may think proncancel the conditional pardon granted to the er, "and he may issue his warrant to all pro] said Edward Spencer, and by these presents er officers to carry into effect such pardon do order and direct the superintendent of the or commutation, which warrant shall be obeystate penitentiary to apprehend the said Ed- ed and executed instead of the sentence, if ward Spencer, and return him forthwith to any, which was originally given." No other the state penitentiary to serve out the re- regulations or restrictions have been premainder of his term according to the sentence scribed by law, and no other method has been imposed on him by the judge of the superior provided for determining when the conditions court of the state of Washington in and for of a pardon have been broken. The appellant the county of Spokane on the 4th day of insists that the provision that the Governor June, 1903.” In pursuance of this revocation may issue his warrant to carry such pardon of pardon, the superintendent of the peniten- into effect refers only to the manner of retiary apprehended the appellant and im- lease, and was not intended to provide a prisoned him in the penitentiary. Appellant method of revocation. There would be much thereupon applied to the superior court for force in this contention if other provisions Walla Walla county for a writ of habeas cor- had been made for determining when conpus, alleging his original conviction and sen- ditional pardons have been violated, but tence and the conditional pardon as above there are none. We are of the opinion, therestated, and his release thereunder, that he fore, that the provision above stated reposes had complied with all the terms thereof, and power in the Governor, not only to effect the

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release, but to make conditional pardons ef- State v. Fuller, 1 McCord (S. C.) 178; Fla-
fective. There can be no doubt that the Gor- rell's Case, 3 Watts & S. (Pa.) 197; Arthur v.
ernor was authorized to grant the pardon up- Craig, 48 Iowa, 261, 30 Am. Rep. 395. Un-
on the conditions named, or any others which der the circumstances the appellant was at
were capable of being performed and which large merely at the will of the Governor. The
were not illegal or immoral, and, when the Governor had it in his power to order the
appell:unt accepted the conditional pardon as appellant to prison at any time." See, also,
given, he wis bound by all its provisions. If Turner v. Wilson, 49 Ind. 581; Kennedy's
the pardon had been unconditional, the re- Case, 135 Mass. 48; State v. Smith, 1 Bailey,
lease under it would have been final, and the Law (S. C.) 283, 19 Am. Dec. 679; Ex parte
Governor and the courts would have been Marks, 64 Cal. 29, 28 Pac. 109, 49 Am. Rep.
without power to again enforce imprisonment 681; Ex parte Hawkins, 61 Ark. 321, 33 s.
under the original sentence. But this was a W. 106, 30 L. R. A. 736, 54 Am. St. Rep. 209;
conditional pardon, such as the Governor had Commonwealth v. Halloway, 44 Pa. 210, 84
power to impose. He granted it as a matter

Ám. Dec. 431. If the appellant was entitled of grace, and not of duty. He did not intend

to a trial upon the allegation that he had to completely exonerate the appellant or to violated the conditions of the pardon, the release him from the force and effect of the

court granted that right to him in this prosentence, but expressly provided that a fail- ceeding and placed the burden upon the state ure to comply with the conditions "shall to show that appellant had violated the terms cause the revocation of this pardon and the of the pardon. It has been held that this recommitment of the said Edward Spencer may be done in cases of this kind. Ex parte to the penitentiary to serve out the remainder Brady, 70 Ark. 376, 68 S. W. 34; Ex parte of his term according to the sentence." This Alvarez, 50 Fla. 24, 39 So. 481; 6 Current language manifests a plain intention on the Law, p. 876. part of the Governor to himself maintain con

Appellant also alleges that the court erred trol over the pardon, and to revoke the same in receiving certain evidence. The cause is upon failure of the conditions. If the provi- heard de novo here upon the facts, and we sion that the Governor may issue his war

shall therefore not consider evidence which rant to carry the pardon into effect refers

we think is not proper. We find no evidence only to the release of the convict, as contend- that the pardon was obtained by fraud; but ed by the appellant, then the control of a

we are satisfied that the judgment of the conditional pardon passes from the Governor

court is supported by reason of the breach immediately upon release of the prisoner.

of the conditions of the pardon. The condiWe think such result was not intended by

tions were that the appellant should be placthe language used. This result, of course,

ed under the care and surveillance of Dr. Blafollows from unconditional pardons, because

lock, that his relatives should provide for and in such case the release is conclusive. There

support him so long as he should live, and is no more to be done. But in case of a con

that appellant should remain with his reladitional pardon the enforcement of the condi

tives. The evidence conclusively shows that tions is carrying the pardon into effect, as

appellant did not remain with his relatives much so as the release. We are therefore of

more than two or three days, and that arthe opinion that the Governor had power to

pellant's relatives neither provided for him enforce the performance of the conditions,

nor supported him, but that appellant was and, when he became satisfied that the conditions of the pardon were being violated.

permitted to support and provide for himself, he was authorized to issue his warrant re

rad was married shortly before his arrest by

order of the Governor. The evidence also voking the pardon under the express terms

show's that he frequented houses of prostituof the pardon and under the statute. In

tion and saloons and often became intoxicatWoodward v. Murdock, 124 Ind. 439, 24 N. E. 1017, the court said: "As we have already

ed. It is true the evidence of these last-namsaid, the Governor had authority to grant

ed facts was objected to, but we think they the parole, but, as he did it as a matter of

served to show that appellant was not under grace and not as a duty it was his right to

the surveillance of Dr. Blalock. We think impose such conditions as he saw proper, and

the trial court upon these facts properly when the appellant accepted it he, by im

found that the conditions of the pardon had

been violated. plication, as well as express agreement, did

The order refusing a discharge was thereso subject to all of its terms and conditions. We have examined the following authorities

fore correct, and is affirmed. cited by the Attorney General, and find them pertinent. Ex parte Wells, 18 How. (U. S.)

HADLEY, C. J., and CROW and ROOT, 314, 15 L. Ed. 421; United States v. Wilson, JJ., concur. RUDKIN, DUNBAR, and FUL7 Pet. (l. S.) 149, 8 L. Ed. 610; cases cited LERTON, JJ., are of opinion that the reon page 481 of 6 Crim. Law Mag.; State v. spondent failed to show any violation or the Smith, 1 Bailey, Law (S. C.) 283, 19 Am. Dec. conditions upon which the pardon was grant679; Ex parte Lockhart, 1 Disney (Ohio) 103; ed, and therefore dissent

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