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An examination of several sections of the fa final order from which error may be prose General Code is essential. It is provided by cuted, and that the time from which the section 547 that:

statute, relative to the institution of pro“No proceeding to reverse, vacate or modify ceedings in error begins to run, is the date a final order of the commission shall be deemed of the judgment sought to be reversed, and commenced unless the petition therefor is filed not the date of overruling the motion for a within sixty days after the entry of the final new trial. order complained of upon the journal of the In view of the statutory provisions above commission."

referred to, and the decisions of this court Our question, therefore, is whether the construing and applying the same, the next final order complained of is the adverse rul- question here presented is whether there are ing upon the application for rehearing, or any provisions of the statutes governing pro the ruling and order of the commission ceedings before the public utilities commisagainst which the application for rehearing sion or proceedings in error from the finding is directed, and as to which a rehearing be- and order of the public utilities commission fore the commission is sought. How are we

so inconsistent with the statutes above cited to determine what is meant by a “final or.

as to make them inapplicable to proceedings der"? If the term "final order” is defined in error from the public utilities commission. elsewhere in the statute, that definition By reason of the statutory definition of "final should be applied to proceedings in error order," and the interpretation and applicafrom the public utilities commission, par- tion of that provision by this court in the ticularly in view of the provisions of sec

cases above cited, some of which were de tion 552, General Code, to the effect that un- cided long prior to the enactment of the less otherwise provided by law all processes public utilities statutes, it must be concluded in actions and proceedings in court arising that, in enacting those statutes, and particunder the chapter relating to the public util- ularly section 547, General Code, the Legisities commission shall be the same as in civil lature hy the language employed intended to actions. A "final order” is defined in section limit the period during which proceedings 12258, General Code, as:

in error might be commenced to 60 days from

the entry of the order of the commission, "An order affecting a substantial right in an action, when in effect it determines the action and not from the overruling of the applicaand prevents a judgment, and an order affecting tion for rehearing, for if the latter had a substantial right made in a special proceed- been intended it would have been a very ing."

simple matter to provide in the statute that This provision has been before this court the application for a rehearing.

the time should run from the overruling of in numerous cases for interpretation and ap be observed that under the provisions of sec

It is to plication, in several of which the specific tion 543, General Code, no corporation or question has been presented whether the action of a court in overruling a motion for a

person may in any court urge or rely on any new trial was or was not a final order. The ground not set forth in an application for a latest one is the case of Wells, Jr., v. Wells, It therefore follows that in every case pre

rehearing before the utilities commission. 105 Ohio St. 471, 138 N. E. 71, where, in con- sented to the public utilities commission an sidering the provisions of section 12270, General Code, limiting the period within which application for rehearing must be filed, and proceedings may be brought to reverse, va

the matters therein set forth presented to cate, or modify a judgment or final order to the utilities commission, before there may be "70 days after the entry of the judgment or

a proceeding in error to the Supreme Court final order complained of,” this court held from the action and order of the commission. such provision applicable to divorce proceed

Such application for rehearing must be ogs, and that the 70 ays began to run from filed within 30 days after the order of the the date of the entry of the decree, and not commission, and all orders of the commisfrom the date of the overruling of a notion sion, under section 614-41, General Code, for a new trial, expressly following and ap- take effect and become operative 30 days proving Young v. Shallenberger, 53 Ohio St. after service thereof, unless a different time 291, 41 N. E. 518; Dowty v. Perple, 58 Ohio is provided in the order, but, under the proSt. 395, 50 N. E. 923; and Craig v. Welply, visions of section 543, General Code, such 104 Ohio St. 312, 136 N. E. 143. In that case

application for rehearing must be made bethe court further held in the syllabus that: fore the effective date of the order. If the

application is made 10 days or more before “A motion for a new trial affects the time the effective date of the order, it must either when the limitation begins to run only in those be granted or denied before the effective date cases where the motion for a new trial prevents the entry of a judgment."

or the order shall stand suspended until the

application is granted or denied, and any In the cases above cited this court has application for rehearing made within less clearly and conclusively determined that the than 10 days before the effective date of the overruling of a motion for a new trial is not order, a rehearing of which is sought, not

(145 N.E.) granted within 20 days, may be taken by the may at the expiration of the period of suspenparty making the application as denied, un sion impose and collect the rates set forth hereless the effective date of the order is extend- in." ed for the period of the pendency of the ap Each of the two orders therein complained plication. It is further provided in that sec- of were entered more than 60 days prior to tion that an application for a rehearing does the institution of this proceeding in error. not excuse any one from compliance with It has been suggested, however, that those and obedience to the order or decision, or orders, having been such as permitted the stay its enforcement, except in such cases utility company to charge rates in accordand upon such terms as the commission may ance with the schedule it had filed, upon givby order direct.

ing a bond in accordance with the provisions While it is true, as urged, that these pro- of the statute, and the order of the comvisions do require the filing of an application mission pursuant thereto, were not final orfor rehearing, there is to be found nowhere ders, and that a proceeding in error is not a provision requiring the postponement of available until a full hearing and the final proceedings in error until an application for determination of the commission of the rates rehearing is passed upon by the commission, to be charged and collected by such utility. or precluding the institution of proceedings in For the purposes of this decision we have error prior to the disposition of an application assumed without deciding that the orders for a rehearing, just as there is no provision heretofore entered affected a substantial requiring that a motion for a new trial shall right and came within the statute defining be overruled as a condition precedent to a "final order." If they do not, it would folproceeding in error. It has been determined low that this proceeding has been permaturein both the case of Dowty v. Pepple, supra, ly brought. and Young v. Shallenberger, supra, that pend.

For the reasons stated we have reached ency of a motion for a new trial does not the conclusion that the petition in error was toll the statute or relieve the party com- not filed within 60 days after the entry of plaining from prosecuting error within the the final order complained of upon the jour. limit of time prescribed by the statute. The nal of the commission, and that the motion to point urged, that until the determination of dismiss must be sustained. the application for a rehearing, the party

Motion sustained. filing the application cannot know whether it will be necessary to prosecute error, is an ROBINSON, JONES, DAY, ALLEN, and swered by the decision and the course of rea- CONN, JJ., concur. soning in Young v. Shallenberger, supra, where this court expressly held in the syllabus:

"The overruling of a motion for a new trial STATE ex rel. BOLCE et al. v. HAUSER, is not a final order to which error can be prose

Bldg. Com'r. (No. 18812.) cuted.”

(Supreme Court of Ohio. Dec. 9, 1924.) As heretofore stated, under the provisions of section 543, General Code, no ground inay

(Syllabus by the Court.) be urged in the court that is not set forth 1. Validity of zoning ordinance. in the application. As a matter of course the Whether the zoning ordinance adopted application for a rehearing cannot contain a April 1, 1924, by the city of Cincinnati is conground that such application has been restitutionally valid, quære. fused, and therefore proceedings in error 2. Municipal corporations Ow626 - Exemption cannot be based upon the overruling of an from zoning ordinance of applicants previousapplication for rehearing.

ly filing plans and specifications not invalid In passing upon an application for a re classification, hearing, the commission neither makes nor If the power to pass such zoning ordinance enters an order, particularly if the applica- be conceded, the city council could exempt from tion is overruled. It merely refuses to va- its operation any applicants who had filed, in cate or modify the order theretofore entered. accordance with existing laws, plans, and speci

fications, or corrected plans and specifications, What is claimed to have been the final order prior to the adoption of such ordinance. The in this case is well shown in the brief of classification or exemption of such persons is counsel for plaintiff in error, when they say: not invalid.

“The petition in error brings up for review 3. Municipal corporations on 626 - City em. the action of the commission, deterinining to powered to exempt certain class from zoning enter upon a hearing concerning the propriety ordinance by later ordinance if no vested of the increased rates and charges set forth in right affected. said tariff, and suspending the operation of the As the city council had such powers of schedule for 120 days from April 1, 1924, and classification and exemption in the first inlater fixing the amount of the bond and approv- stance, when it adopted the zoning ordinance of ing the bond given in order that the company | April 1, 1924, it had power likewise to ex

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was

empt such class from the operation of such nance had not been adopted. It was adoptordinance by a later ordinance, if it deemed ed on April 1, 1924, and went into effect on that such exempted class had not been justly May 4, 1924. The zoning ordinance divided dealt with or needed relief. This rule applies the city into zones and districts, and estabwhere no vested rights have been affected lished a zone plan regulating and limiting thereby.

the usage and location of buildings in the Original mandamus by the State, on the various zones of the city. Under the zone relation of Henry Bolce and others, against plan so adopted the premises of the relators, George R. Hauser, Commissioner of Build- upon which this building was to be conings of City of Cincinnati, etc. Writ allow- structed, were classed as “residence B” proped.-[By Editorial Staff.]

erty, within a zone wherein buildings to be This is an original action in mandamus utilized for retail store purposes could not instituted by the relators in this court, be constructed, and within which all conwherein they pray that a writ issue com-structions were to be set back a certain dismanding the respondent, as commissioner tance from the lot line. of buildings of the city of Cincinnati, to re

On September 2, 1924, the city council scind his revocation of a building permit adopted a second ordinance, which for contheretofore issued to the relators, and ask venience is called the “Duttenhofer ordithat the permit be reissued to them, author- nance.” This ordinance became effective on izing them to proceed with the construction October 7, 1924, and, according to its title, of a certain building contemplated in an ap- purported to regulate the erection or alteraplication which is on file in the office of the tion of buildings by fixing a time within respondent. The respondent demurred gen- which corrected, revised, supplemental, or erally to the petition, and this cause

additional plans and specifications might be heard upon such demurrer.

filed with the commissioner of buildings, for The pertinent facts appearing from the pe- which applications had been made or pertition are as follows: The Bolces were the mits issued prior to May 4, 1924. The "Dutowners of certain lots in the city of Cincin- tenhofer ordinance" did not purport to renati. Desiring to improve the premises by peal or amend the zoning ordinance theretothe contemplated erection, flush with the fore adopted, but did refer to it in express sidewalk, of a one-story building, for the terms, and upon its face sought to give relief purpose of housing retail stores, the relators, to those who had filed applications for buildon March 13, 1924, applied to the respondent, | ing permits prior to the time when such as they were required to do by the city's zone ordinance became effective, to wit, May building code, for a permit authorizing such 4, 1924. It gave such applicants permission contemplated construction. The specifica- within 90 days from its effective date to tions accompanying the application recited, file supplemental, additional, modified, revisamong other things, that the partition walls ed, and completed plans and specifications, were to be 9 inches in thickness, instead of which, if done in compliance with the build13 inches, as required by such building code. ing code in force prior to May 1, 1924, were On March 14, 1924, the respondent, as com- to be approved by the commissioner of build. missioner of buildings, after examining the ings, who was required to issue a building plans and specifications, issued to the relat- permit accordingly. The “Duttenhofer ordiors a permit for such construction. On May nance” also provided that nothing contained 26, 1924, and before the construction of the therein should require any change in the plan, building authorized by the permit had begun, construction, or use of a building for which the respondent revoked the permit thereto- a permit had been issued in accordance with fore issued, assigning as a reason therefor the terms of that ordinance provided the conthat the plans were not in compliance with struction under the permit should be comthe building code. On the next day the re- menced within 6 months, certain other por. lators addressed a communication to re-tions of the construction completed within spondent offering to make the plans conform 1 year, and the entire building completed to the building code in any respect, and es- within 2 years after the date of said permit. pecially with regard to making the walls 13 The relators allege that they filed their instead of 9 inches in thickness. They also original plans and specifications, together tendered the proper fee, and requested a re- with their application for a building permit, scission of the revocation of the permit there prior to May 4, 1924 to wit, on March 13, tofore issued. The respondent refused to re-1924, and that they also tiled with the rescind his revocation, being of the opinion spondent corrected plans and specifications to that, even if the plans and specifications comply with the building code in force prior were corrected in compliance with the build- to May 4, 1924, and requested the issuance of Ing code, the building relators proposed to a permit authorizing the construction of the erect, and its usage, “would now be contrary building shown in their corrected plans and to the zoning ordinance in force and effect" specifications. The respondent, however, rein the city. At the time of the issuance of fused to issue or reissue such permit to the the permit to the relator this zoning ordi- relators, wherefore this action in mandamus.

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(146 N.E.) Kelley & Remke, of Cincinnati, for relat- , ber 2, 1924, relieving those who had applied ors.

for building permits, or to whom such perSaul Zielonka, City Sol., and Landon L. mits were issued prior to May 4, 1924, with. Forchheimer, Asst. City Sol., both of Cincin- in the power of the city council? The “Dutnati, for respondent.

tenhofer ordinance," although referring to Charles 0. Rose, Gerritt J. Fredriks, Jr., the zoning ordinance, does not purport to John M. McCaslin, Henry B. Street, Robert amend or repeal it. It is a separate and inP. Goldman, Taft, Stettinius & Hollister, dependent ordinance which designates and Michael G. Heintz, all of Cincinnati, class of persons who are exempted from the amici curiæ.

operation of the zoning ordinance, and its

distinct purpose was to grant relief to those JONES, J. For the purposes of this case who had made application for permits prior the demurrer concedes the truth of the al- to May 4, 1924, when the zoning ordinance legations contained in the petition. It is went into effect. therein alleged that the relators by filing [3] The principal question presented is their original plans and specifications on whether the city council at the time of the March 13, 1924, and by preparation of their passage of the zoning ordinance had the corrected plans and specifications, had com- power to make a classification which would plied with the building code of Cincinnati in exempt those who had applied for or securforce prior to May 4, 1924. It is manifest, ed permits prior to or at the time of its therefore, that the relators were entitled to adoption. If there be a real basis for such a building permit from the respondent, un- classification, and if the same be not unwarless the latter was prevented from issuing ranted, or arbitrary, the city council unthe same by reason of the adoption by the doubtedly could recognize such class and excity council of the two subsequent ordinances empt it from the operation of the zoning relating to the zoning of the city.

ordinance. The city council might well recThe relators contend that they were en- ognize the fact that there were applicants titled to a reissue of the building permit by who had secured plans and specifications, the commissioner of buildings for two rea had filed the same with the building comsons; First, that the original zoning ordi- missioner, and had expended money upon the nance, which became effective May 4, 1924, faith of the building code as it theretofore was unconstitutional and void; and, second, existed. We see no reason why the city if such ordinance was valid, that the subse council could not recognize the fact that quent or "Duttenhofer" ordinance, passed such a class existed, and therefore relieve September 2, 1924, excepted the relators those within the class from the operation from the operation of the original ordinance, and effect of a zoning ordinance adopted by and, as relators had filed their corrected it. As the classification here attempted canplans and specifications prior to May 4, 1924, not be held to be unreasonable, the city in accordance with the terms of the “Dut-council undoubtedly had the power to extenhofer ordinance," they were not affected empt such class from its operation when it by the zoning ordinance previously adopted. adopted the original zoning ordinance,

Since cases involving the constitutionality Since that power existed, the city council of various zoning plans are now before this likewise had the power, if it deemed that court for future consideration, we announc- such applicants for permits had not been ed to counsel that this court would not pass justly dealt with or needed relief, to do that upon the constitutional validity of such or- which it could have done when it adopted dinances until counsel interested therein the original ordinance. The legal principle should have an opportunity to present their here announced is similar to that applied to various cases. However, in view of the in- curative laws validating irregular or void sistency of counsel in the instant case for proceedings. It is generally held that a legits early consideration, and because of delay islative body may pass such laws if in the in extensive contemplated improvements by first instance it had plenary power over the applicants for permits who have complied subject, and at the time could have avoided with the provisions of the "Duttenhofer the irregularity. The constitutional validity ordinance," this court agreed to determine of legislative curative provisions is upheld whether the latter ordinance would relieve where they do not affect vested rights secursuch applicants for building permits from ed under the original law. So far as this the operation of the zoning ordinance. record appears no vested rights have been in

(1) We do not pass upon the constitution-terfered with. If there be a vested right, ality of the first or original zoning ordi- it would accrue in favor of those lot owners nance adopted April 1, 1924. In the posture who had been denied the right lawfully to this case has now taken we will assume that use their property through the adoption of the city council had power to pass that ordi- the zoning ordinance which affected its use. pance, and that the same was constitutional Since the question of the constitutionality of and valid.

a zoning ordinance and its effect upon vested [2] If valid, was the passage of the sec- rights is held in abeyance, we do not pass ond or "Duttenhofer" ordinance of Septem- upon that feature at this time.

It is therefore our opinion that the city of negligence, but avers that the injuries suscouncil did not exceed its powers in passing |tained by the plaintiff "were caused wholly the "Duttenhofer ordinance” relieving those and solely through his own negligence and applicants who had applied for permits prior fault and that of said Elmer Rutter," driver to May 4, 1924. For the reasons stated, the of the motor car. This allegation of negli. writ prayed for should be allowed.

gence is denied by plaintiff in his reply. Writ allowed.

A general verdict was returned in favor of

plaintiff below. Judgment on the verdict was MARSHALL, C. J., and MATTHIAS, reversed by the Court of Appeals, which, in DAY, ALLEN, and CONN. JJ., concur.

its entry, found affirmatively that no error existed in the record save that of refusing to give to the jury, before argument, special

request No. 1, asked for by the defendant. GIBBS v. SCIOTO VALLEY RY. & POWER Special request No. 1 is as follows: CO. (No. 18495.)

"The jury is instructed that, if the negli.

gence of the plaintiff directly contributed to (Supreme Court of Ohio. Dec. 16, 1924.)

the injury of which he complains, he cannot (Syllabus by Editorial Staff.,

recover from the defendant, although the de

fendant may have been negligent." 1. Trial 260(8)-Refusal of special request substantially covered by one given held with

Defendant's counsel had asked for ten spe out prejudicial error.

cial requests, four of which were given and There was no prejudicial error in refusing six refused. Among the four given was spe special request that contributory negligence cial request No. 8, to wit: prevented recovery, substance of which was substantially embodied in one given at request in which plaintiff was riding and the car of the

"Even though the collision of the automobile of same party.

defendant was caused by any one or more of 2. Appeal and error cm 1064(1)-Statement in the acts of negligence against defendant men

general charge that defendant in cross-peti- tioned in the amended petition, plaintiff cannot tion raised claim of contributory negligence recover if his own negligent act or omission diheld without prejudicial error.

rectly contributed to the injuries sustained by Where answer pleaded that plaintiff's in- him." juries were caused wholly by his negligence and that of driver of automobile, and evidence

Error is now prosecuted to this court, supported claim that both defendant and plain wherein it is sought to reverse the judgment tiff were negligent, there was no prejudicial of the Court of Appeals and to affirm that error in statement in general charge that de- of the court of common pleas. fendant in "cross-petition" raised claim of

E. N. Huggins, C. L. Corkwell, and Timothy “contributory negligence" by plaintiff.

S. Hogan, all of Columbus, for plaintiff in er3. Appeal and error Om228–Exceptions to en- ror. try of reversal and remand held sufficient for

M. A. Daugherty, of Lancaster, and Oscar review by supreme court.

W. Newman, of Columbus, for defendant in Exceptions to entry by court of appeals of

error. reversal and remand was sufficient on which to base review in Supreme Court.

PER CURIAM. [1] An inspection of the Error to Court of Appeals, Fairfield two special requests, one of which was given County.

and the other refused, discloses that the sub

stance of the special request refused was subAction by Ambrose Gibbs against the Scioto stantially embodied in the one given at the Valley Railway & Power Company. Judg. instance of counsel for the defendant. Both ment for plaintiff was reversed by the Court of these requests were so framed that not. of Appeals, and plaintiff brings error. Judg-withstanding negligence upon the part of the ment of Court of Appeals reversed, and that railway company plaintiff could not recover of common pleas affirmed.—[By Editorial if his own negligence contributed to the inStaff.]

jury. That no prejudicial error intervened Gibbs, the plaintiff in error, brought an ac- upon that subject was held in Limbaugh v. tion against the railway company seeking to Western Ohio R. Co., 94 Ohio St. 12, 113 N. recover damages sustained by him in a col- E. 687. lişion between a motor car and a trolley car [2] The answer of the railway company, operated by the company. At the time of the although it contained a general denial, discollision Gibbs was a passenger in the motor closes that it pleaded that the injuries suscar, which was being driven by one Elmer (tained were caused wholly by the negligence Rutter. The petition contains allegations of of the plaintiff and the driver of the car. various acts of negligence upon the part of This was the exact situation developed by the railway company.

the pleadings in Rayland Coal Co. v. McFadThe answer consists, in the main, of denials (den, Adm'r, 90 Ohio St. 183, 107 N. E. 330.

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