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law. The contract itself contained the fol- | another Court of Appeals subsequently renders lowing provision:

a judgment upon the same question in conflict "The contractor agrees that he will comply therewith, the judges of the former court are not with the provisions of the labor laws of the authorized by the provision quoted to make and city of Cleveland and the state of Ohio, particu- enter a finding of such subsequent conflict,

arlarly as outlined in section 196 of the city char- rest the enforcement of the judgment entered by

it, and certify the record of the case to this

court for final determination. Section 196 of the city charter contains

[Ed. Note.-For other cases, see Courts, Cent. the same provisions as to eight-hour day on Dig. 88 708_711, 715, 716; Dec. Dig. Om 240.) public work as are included in the statute

Jones, J., dissenting. and the ordinance above referred to. Therefore, if the things charged in the affidavit Application by State, on the relation of are true, the defendant violated not only the the Sylvania Home Telephone Company, ordinance, but the constitutional provision for mandamus to Richards and others, Judgreferred to, the charter of the city, and the es of the Court of Appeals of Lucas County. express terms of his contract.

Denied. [4] The parties when they made the contract must be held to have contemplated the

This is a proceeding in mandamus, brought

on the relation of the Sylvania Home Teleexpress provision of the Constitution, as well as the power of the state and the mu

phone Company against the defendants, who

are judges of the Court of Appeals of Lucas nicipalities to enact reasonable police regulations in the interest of the public health county, to compel them to certify to this court and welfare. Holden v. Hardy, 169 U. S. for review and final determination the case 366, 18 Sup. Ct. 383, 42 L. ED. 780, and of Sylvania Home Telephone Co. v. BerSteele, Hopkins & Meredith Co. v. Miller, key Farmers' Mutual Telephone Co. et al. 92 Ohio St. 115, 125, 110 N. E. 648, L. R. A. The latter case was brought in the common 1916C, 1023.

pleas of Lucas county to enjoin the defendMoreover, in this case, by the terms of the ant company, which was a company organize contract itself, the parties thereto specific ed not for profit, from constructing and operally bound themselves to observe the regu

ating a telephone plant in territory already lations covered by the ordinance complained occupied by the plaintiff, until the defendant of. Plaintiff in error does not present a sit- should procure from the Public Utilities Com

The uation which avoids the enforcement of the mission of Ohio permission so to do. ordinance.

defendants in that action admitted in their The judgments will be affirmed.

answer substantially that they were conJudgments affirmed.

structing a telephone system in Richfield

township in the territory occupied by the NICHOLS, C. J., and JOHNSON, DONA- plaintiff, and that they had not received from HUE, WANAMAKER, NEWMAN, JONES, the Public Utilities Commission any permisand MATTHIAS, JJ.,

sion to operate their telephone plant in the

territory occupied by the plaintiff company, (94 Ohio St. 287)

but alleged that they were not required, unSTATE ex rel. SYLVANIA HOME TELE-der the laws of Ohio, to procure from the PHONE CO. v. RICHARDS et al., Judges.

Public Utilities Commission such permission, (No. 15250.)

for the reason that they were a mutual com(Supreme Court of Ohio. May 29, 1916.) pany not for profit. It is admitted by the

pleadings in the case at bar that the com(Syllabus by the Court.)

mon pleas court in the original proceeding 1. COURTS 240 COURTS OF APPELLATE found for the defendants on the issues join

JURISDICTION-CERTIFIED QUESTIONS-Con-
FLICT OF DECISION.

ed; that the cause was appealed to the The provision in section 6, article IV, of Court of Appeals, where judgment was enthe Constitution, that “whenever the judges of tered in favor of the defendants on the 16th a Court of Appeals find that a judgment upon of February, 1914, and that on the 14th of which they have agreed is in conflict witb a judgment pronounced upon the same question by October, 1915, the plaintiff company filed its any other Court of Appeals of the state, the motion in the Court of Appeals of Lucas judges shall certify the record of the case to the county, moving that court to certify the recSupreme Court for review and final determination,” confers exclusive authority on the judges ord of the case to the Supreme Court for reof the Court of Appeals to find the existence of view and final determination, for the reason the conflict referred to, and in order to vest this that the decision of the Court of Appeals court with jurisdiction to review and determine the case, that finding must be entered and certi- was in conflict with judgments rendered by fied with the record of the case to this court. the Courts of Appeals of Delaware and Mor

[Ed. Note.-For other cases, see Courts, Cent, row counties in causes involving a similar Dig. 88 708–711, 715, 716; Dec. Dig. Om 240.] state of facts and the construction of the 2. COURTS 240COUBTS OF APPELLATE JU- same section of the Code. On the 11th day of

CERTIFIED QUESTIONS ConFLICT OF DECISION.

January, 1916, the Court of Appeals caused Where one Court of Appeals has entered a an entry to be made upon its journal which final judgment in a case pending before it and is set out in the petition of the relator here

concur.

BISDICTION

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in. That entry, after reciting the fling of application to certify the record had been the motion to certify, states that:

prescribed by law, this court fixed a limitaThe court "find that the original action was tion of 70 days from the date of the judg. decided and the judgment entered by this court ment for the filing of the application. in favor of the defendants, on the 16th day of February, 1914; that subsequent to the enter

In Crawford v. Weidemeyer, 93 Ohio St. ing of said judgment, the Court of Appeals of 461, 113 N. E. 267, it was held that, although Delaware county and Morrow county, in the the clause of the Constitution which is incauses set forth in said action, each rendered volved in the case at bar contains no referjudgments directly in conflict with the judgment entered by this court in this cause; that ence to a limitation of time "for the finding the Supreme Court, subsequent to the entering of such conflict or certification of a case to of said judgment, decided in litigation between this court upon the ground of conflict of this court in this cause is not the law; and that judgments of Courts of Appeals,” yet the this cause should not be certified except upon provision should be interpreted by analogy so order from the Supreme Court so to do, because as to authorize a limitation of time. This of the length of time since the entering of the court thereupon also fixed 70 days as such judgment in this case, and because of the changed condition of the parties, and said motion is limitation, but provided that it should aptherefore overruled.'

ply only to cases certified and filed subseThe answer of the defendant judges in quent to May 1, 1916. The question remains this case substantially alleges that, on ac-whether, after a Court of Appeals has encount of the things recited in the entry re-tered its final judgment in a case and anferred to, they are not required to certify the other Court of Appeals subsequently prorecord. On the hearing there was no dispute nounces a judgment upon the same question as to the facts, and the cause was submitted in conflict therewith, the former court may to the court on the legal question presented. thereupon arrest the enforcement of the final

judgment rendered by it, enter a inding of Ray & Cordill, of Toledo, for relator. Mar- the subsequent conflict, and certify the recshall & Fraser, of Toledo, for defendants. ord to this court.

It is insisted by the relator that the proJOHNSON, J. [1, 2] Section 6, art. 4, of vision is comprehensive, and requires a Court the Constitution contains the following: of Appeals to certify its record without ref

"Whenever the judges of a Court of Appeals erence to the time that the conflicting judgfind that a judgment upon which they have ment may have been rendered; that the word agreed is in conflict with a judgment pronounc- “whenever" requires the application of this ed upon the same question by any other Court of Appeals of the state, the judges shall certify broad construction. As to a similar contenthe record of the case to the Supreme Court for tion made with reference to the state of review and final determination."

facts shown, it is said in Crawford v. WeideA single question is presented: Were the meyer, 93 Ohio St. at pages 464, 465, 113 N. defendant judges, under the circumstances E. at page 268: shown by the pleadings, required by the pro "Such a construction of this constitutional vision of the Constitution above quoted to provision would do violence to the very purpose certify to this court the record of the case re-organizing the judicial system of the state, as

of the entire amendment to the Constitution, re ferred to?

so clearly and emphatically stated by the framIt will be observed that on February 16, ers thereof,

That object was to sim1914, the Court of Appeals entered final judg-plify, not complicate, court procedure; to de ment in favor of the defendant company in period of litigation.

crease and limit, not to extend indefinitely, the

The word 'when. the original case. The motion to certify ever' as used in this provision may be regarded was filed about 20 months thereafter, Octo- as meaning 'if' or 'should.'” ber 14, 1915. On January 11, 1916, the Court

It is provided in the same section of the of Appeals caused an entry to be made on judicial article of the Constitution in which its journal, in which it is recited that the the clause under investigation here is found original action was decided and judgment en- that "Judgments of the Courts of Appeals tered in favor of defendants on the 16th day shall be final in all cases," except as to cerof February, 1914; that subsequent to the tain enumerated classes in which jurisdiction entering of that judgment the Court of Ap- is conferred upon the Supreme Court. It is peals of Delaware county rendered a judg- generally known, and nowhere disputed, that ment in conflict with its judgment, and that the purpose of the constitutional convention for the reasons set out it then refused to and of the people was to provide for one certify the record to this court.

trial and one review, except in the enumeratIn city of Akron v. Roth, 88 Ohio St. 456, ed cases referred to. It is equally evident 103 N. E. 465, this court had under considera- that the constitutional convention felt that tion the clause in section 2 of article 4, which it would be wholly unwise to create such a provides that in cases of public or great gen- judicial structure as would permit one Court eral interest the Supreme Court may, “with- of Appeals to disregard and refuse to follow in such limitation of time as may be prescrib- the judgment pronounced by another Court ed by law," direct any Court of Appeals to of Appeals upon the same question, without certify its record, and, in view of the fact some method of composing the conflict thus

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sidering was inserted. By its terms a court, tion or proceeding instituted in or before such of appeals—which differs as to the proper court or judge, affirming that, upon the matters disposition of a legal question involved in a bility does or does not exist."

submitted for its decision, a legal duty or liacase pending before it from the judgment

In same volume of Cyc. p. 835: pronounced upon the same question by an

“The rendition of a judgment is the judicial other Court of Appeals—may adhere to its act of the court in pronouncing the sentence of view, but in such event is required to include the law upon the facts in controversy as ascerin its entry a finding of the conflict and a tained by the pleadings and verdict.' certification of the record of the case to this It must be kept in mind that in each case court for review and final determination. the jurisdiction of the courts is invoked to The authority to find and determine the ex- adjudicate the rights of the parties in that istence of the conflict is vested exclusively particular controversy; and when a judgin the judges of the Court of Appeals who ment has been rendered in due course by have agreed upon the conflicting judgment, a court of final jurisdiction the parties and in order to vest this court with jurisdic- should not be left in doubt as to its finality tion to review and determine the case, the or be led to speculate on the possibility that finding of the conflict must be entered and a different court in a controversy between the record certified. This will result in an different parties may afterwards differently authoritative pronouncement upon legal ques-decide the legal questions involved. It fretions and the bringing about of the uniformi- quently happens that a court of last resort ty in judicial holdings which is desirable. overrules a reported decision formerly made But there is not disclosed any intention to by it, but no one would contend that the permit, and the language used does not re- overruling operated to open afresh the conquire such a construction as well permit, the troversy disposed of in the overruled case. opening up of final judgments theretofore The chief objects of the amendment to the rendered, and in many cases fully enforced judicial article to the Constitution were to or complied with. The language is:

avoid the mischief of endless litigation and “Whenever the judges of a court of appeals find to secure the salutary results that come with that a judgment upon which they have agreed the assurance of the conclusive effect of final is in conflict with a judgment pronounced upon the same question by any other Court of Ap- judgments. peals of the state, the judges shall certify the The writ will be denied. record of the case, etc.

Writ denied. We are convinced that the framers of the clause intended to draw a distinction be NICHOLS, C. J., and DONAHUE and tween a judgment agreed upon by the judges NEWMAN, JJ., concur. JONES, J., dissents of one Court of Appeals and a judgment pro- from second proposition of syllabus. nounced by another Court of Appeals. Every one knows that the necessary proce

(94 Ohio St. 373) dure in the consideration of cases is for the judges to examine the case, consult, and STATE ex rel. THOMAS v. TUSCARAWAS

COUNTY LIQUOR LICENSING agree upon the judgment which they will

BOARD et al. (No. 15262.) thereafter pronounce. These are the steps by which the judges agree upon what the

(Supreme Court of Ohio. July 1, 1916.) judgment shall be, but when the judgment is

(Syllabus by Editorial Staff.). pronounced, it is then the action of the court. 1. MANDAMUS Ew4(5)-NATURE AND GROUNDS We think it clear that the drawers of the

OF REMEDY-ADEQUATE REMEDY AT LAW. clause in question had these natural and nec Under License Law, § 31 (Gen. Code, & essary steps and this situation in mind. It 126146, as added by Act April 18, 1913 (103 is the duty of the court to ascertain and give as to the rejection of applications for liquor li

Ohio Laws, p. 229]), providing that all decisions effect to the intent of the people, and the censes made before the beginning of the license language used should be given its ordinary year shall be final on the fourth Monday in Noand reasonable meaning.

vember following, when the licenses shall be

issued, section 38 (Gen. Code, 1261-53, as No narrow reasoning should be allowed to added by Act April 18, 1913 (103 Ohio Laws, disregard that intention, and no merely tech- p. 233]), giving an appeal to the state board nical rules should be permitted to defeat it. from final decisions of the county board, and

section 39 (Gen, Code, $ 1261–54, as added by But even a technical definition of the terms Act April 18, 1913 [103 Ohio Laws, p. 233]), reis in harmony with the manifest intention quiring the county board within five days after of the people as above indicated. A judg- notice of its final action to the applicant to ment is defined in 1 Freeman on Judgments ord of the proceedings, providing the applicant

cause to be prepared a complete and true rec(4th Ed.) § 2, as:

shall have requested it within one day after re"The decision or sentence of the law pronounc-ceipt of notice, where an applicant failed to ed by a court or other competent tribunal upon comply, with the requirements of section 39, the matter contained in the record."

and did not exercise his right to an adequate

remedy at law by appeal to the state board, he In 23 Cyc. 665, it is said:

cannot afterwards resort to a proceeding in “At common law a judgment is the determina- mandamus. tion or sentence of the law, pronounced by a [Ed. Note.-For other cases, see Mandamus, competent judge or court, as the result of an ac- | Cent. Dig. $$ 20, 21, 24-34; Dec. Dig. Om 4(5).]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. INTOXICATING LIQUORS Ow71-LICENSE, determined that it would not entertain the ap

PROCEEDINGS ON APPLICATION CONCLU- plication, and ordered the same dismissed. SIVENESS OF DECISION.

Where an applicant for liquor license ap- Thereupon, at the request of relator, a certified plied to the county board for rehearing, and ap- copy of the renewal application, dated Septempealed to the state board from the order dis, ber 14, 1915, a copy of all minutes of the pro missing his application therefor, he was bound ceedings in his case, and a copy of his applicaby the order of the state board affi that of the county board.

tion for a reconsideration were transmitted to [Ed. Note.--For other cases, see Intoxicating the state liquor licensing board. On February Liquors, Cent. Dig. 88 71, 72; Dec. Dig. Om71.] 25, 1916, a hearing was had before the state

Application by the State, on relation of board in the matter of the appeal of the reFred G. Thomas, for mandamus to the Tus- lator, who was represented by counsel, and carawas County Liquor Licensing Board and the state board took the matter under considothers. Denied.

eration, and on March 21, 1916, the decision

of the state board, sustaining the action of Shauck & Weinland, of Columbus, and Wil- the county board, was received by the latter. kin & Fernsell, of New Philadelphia, for re The relator in his petition asks that a writ lator. Edward C. Turner, Atty. Gen., A. 0. l of mandamus issue, commanding the defendDickey, of Cincinnati, and E. E. Lindsay, Pros. ants to issue to him a certificate of renewal Atty., of New Philadelphia, for defendants.

of license in accordance with his application

filed September 14, 1915. PER CURIAM. This is a proceeding in

[1] The relator in his application applied mandamus submitted to the court upon the to the county liquor licensing board for a pleadings and an agreed statement of facts. renewal of a saloon license, and represented The relator, Fred G. Thomas, was engaged in that the premises where the business of sellthe saloon business at 530 West Front street ing intoxicating liquors was to be carried on in the city of New Philadelphia for more than was 530 West Front street, New Philadelphia. two years prior to the 14th day of September, When the county board on November 2, 1915, 1915, pursuant to a license theretofore duly granted the application of relator, but susgranted and renewed by the Tuscarawas County Liquor Licensing Board, and contin- his saloon from 530 West Front street to a

pended his license certificate until he moved ued in said business until the fourth Monday location within the business district of New of November, 1915. On the 14th day of Sep Philadelphia, that in effect was a rejection tember, 1915, he filed with the Tuscarawas of his application for a renewal license at County Liquor Licensing Board an application for renewal of his saloon license for the his then location. Section 31 of the license year beginning the fourth Monday of No-law (section 1261—46, General Code; 103 O. vember, 1915, the business, according to his L. 229) provides that all decisions as to the application, to be carried on at the same rejection of applicants who shall have applied location, 530 West Front street, New Phila- prior to the beginning of the license year shall delphia. On October 25, 1915, the county be final on the fourth Monday in November board announced a list of applicants success following, at which time the licenses allowed ful in obtaining a license certificate for the shall be issued. Section 38 (section 1261— license year of 1915–1916. The name of re 53, General Code) provides that an appeal lator did not appear in this list nor did it may be taken to the state board from all final appear in an additional list announced on decisions of the county board, with certain October 28, 1915. On November 2, 1915, there exceptions which are unimportant here. The was a hearing before the county board on the provisions of section 39 require the county application of relator, at which hearing he board, within five days after personal notice was present. According to the minutes of of its final action to the applicant, to cause the board his application for a saloon li- to be prepared a complete and true record of cense was granted, and he was then notified the proceedings, providing the applicant shall that his application would be granted, but have requested the same within one day after that the license certificate would be suspend the receipt of such notice. In the case under ed until such time as he would move his consideration the applicant, on November 22, saloon from its present location to a location 1915, being the fourth Monday in November, within the business district of New Philadel- when the decision as to the rejection of the phia. On November 22, 1915, a notification application became final, was notified of the to the same effect was sent relator. On De final action of the board. He did not comply cember 10, 1915, he with his attorney appear with the requirements of section 39, and did ed before the county board and requested a not exercise his right to a plain and adequate hearing upon the suspension of his license remedy at law by way of appeal to the state certificate. On February 11, 1916, he filed an board from the final decision of the county application with the board to reconsider the board. He cannot now resort to a proceeding question of issuing him a saloon license to car. in mandamus. ry on business at the former location, 530 West [2] After having failed to follow the reFront street, New Philadelphia. Upon the quirements of the statute relating to an aphearing of this application the county board | peal, he made application to the county board

JJ.,

concur.

error.

for a rehearing of his case. We find nothing stions of an adopted child, is not restricted to in the liquor license law authorizing the coun- personal rights and privileges. ty board to entertain an application for a recent. Dig. ss 33, 34; Dec. Dig. Om 18.

[Ed. Note.-For other cases, see Adoption, hearing after its decision has become final. But, assuming for the purposes of this case First and Second Series, All.]

For other definitions, see Words and Phrases, that such a proceeding is proper, when the application of the relator to reconsider the

Error to Court of Appeals, Lucas County. matter was denied by the county board, and

Proceedings between Frederick C. Kroff the same was dismissed, and he then sub- and Norman G. Amrhein and others. From

Affirmed. mitted his case to the state board on appeal, the judgment, Kroff brings error. he was bound by its order. State ex rel. In November, 1876, Simon and Otilley FearKrauss v. Lucas County Liquor Licensing settle legally adopted Mattie Stein, afterBoard, 93 Ohio St. 373, 113 N. E. 265.

wards known as Mattie Fearsettle. Mattie Counsel for the relator question the right Fearsettle married one Fred Hamley. In of the county liquor licensing board to refuse February, 1912, Mattie (Fearsettle) Hamley a license certificate upon the sole ground that died intestate, leaving surviving her daughthe saloon is located in a residence district ter, Hester Hamley, her husband, Fred Hamwherein the sale of intoxicating liquors has ley, and her foster parents, Simon and Otil. not been prohibited by law or by any petition, ley Fearsettle. Thereafter Hester Hamley vote, or other proceeding of the electors. But married Norman G. Amrhein, defendant in in view of our holding that the relator failed error. In June, 1914, Otilley Fearsettle died to avail himself of the remedy prescribed by intestate, and in August, 1914, Simon Fearlaw, it becomes unnecessary to pass upon settle died intestate, possessing fee-simple tithis question.

tle to the property in dispute. In January, Writ denied.

1915, Hester Hamley Amrhein died testate,

devising all her property to her husband, NICHOLS, C. J., and JOHNSON, DONA- Norman G. Amrhein, her only surviving heir HUE, NEWMAN, JONES, and MATTHIAS, at law. Plaintiff in error, Frederick C. Kroff,

WANAMAKER, J., not partici- is a half-brother of Simon Fearsettle. pating.

Allen J. Seney, of Toledo, for plaintiff in

Amos L. Conn, of Toledo, for defend(94 Ohio St. 282)

ants in error. KROFF V. AMRHEIN et al. (No. 14997.) (Supreme Court of Ohio. May 29, 1916.) WANAMAKER, J. A. and B. are husband

and wife, but childless. Pursuant to the laws (Syllabus by the Court.)

of Ohio they adopt one C. as their daughter. 1. ADOPTION Cw18 — STATUTORY PROVISIONS C. subsequently marries D. and has issue in -EFFECT. The primary and paramount purpose of sec

a daughter, E. E. marries F. C.'s decease is tion 8029, General Code, is to make an adopted prior to A.'s and B.'s. A. and B. die in 1914, child the equal of a natural child “to all legal intestate. In 1915 E. dies testate, willi all intents and purposes."

her property, including real estate from A. [Ed. Note.--For other cases, see Adoption, and B., to her husband, F. Does F. thereby Cent. Dig. 88 33, 34; Dec. Dig. Om18.]

take any title to A.'s and B.'s lands? The 2. ADOPTION Eww18_STATUTORY PROVISIONS lower courts decided in favor of F. To reEFFECT.

This same purpose is further evidenced and verse that judgment error is prosecuted here. emphasized in section 8030, General Code, which

The answer to this question must be found invests such adopted child with "all the rights in our statutes of adoption and descent. and privileges” of a child of the blood or a Adoption of C. is admittedly regular. What child begotten in lawful wedlock. (Ed. Note. For other cases, see, Adoption, of such adoption?

do the statutes declare to be the legal effect Cent. Dig. 88 33, 34; Dec. Dig. Om 18.]

[1] Section 8029, General Code, in part 3. ADOPTION 23–STATUTORY PROVISIONS reads as follows: EFFECT. The only limitation put upon an adopted

"When the foregoing provisions (statutory child is in the last sentence of section 8030, steps to adoption) are complied with, if the

• it shall make an orGeneral Code, which provides in substance that,

court is satisfied, * if the death of the adopted child occur subse der setting forth the facts, and declaring that, quently to the death of the adopting parents, from that date, to all legal intents and purposes, and such adopted child be "without issue,” then such child is the child of the petitioner," etc. and in that event the line of heirship reverts To layman and lawyer it should be perfectback to the adopting parents.

ly plain that the legislative intent here ex[Ed. Note. - For other cases, see Adoption, pressed was to make such adopted child the Cent. Dig. 8 42; Dec. Dig. Om 23.]

equivalent of a natural child of the adopting (Additional Syllabus by Editorial Staff.) parents; otherwise what could have been 4. ADOPTION 18 – EFFECT — "ALL RIGHTS the purpose of such adoption and what the AND PRIVILEGES.

The phrase "all the rights and privileges," meaning of the words "such child is the child as used in section 8030 of the General Code, of the petitioner

to all legal inrelating to the rights, privileges, and obliga- I tents and purposes”?

Com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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