Thomas v. Markbreit

Hamilton Circuit Court

Thomas v. Markbreit

12 Ohio C.C. (n.s.) 166, 1909 Ohio Misc. LEXIS 229

DecidedApril 3, 1909

StatusPublished

This text of 12 Ohio C.C. (n.s.) 166 (Thomas v. Markbreit) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thomas v. Markbreit, 12 Ohio C.C. (n.s.) 166, 1909 Ohio Misc. LEXIS 229 (Ohio Super. Ct. 1909).

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Opinion

The only question involved in this application for leave to file a petition in error is, whether a petition under Section 2 of the act of March 22, 1906 (98 O. L., 68), was prematurely filed with the mayor of Cincinnati.

That part of Section 2 applicable to the question is as follows:

“The petition provided for in this section shall not be filed until after two years or more shall have elapsed after the filing of the petition provided for in Section 1 of this act. ’ ’.

[169]*169While it is plain that the provision permits a filing of a petition at any time after two years from the filing of a petition provided for in Section 1, it does not attempt to limit the operation and effect of the decision of the mayor or judge upon the original petition. This is provided for in Section 6 as follows:

“And the law shall remain in full force and effect in said .residence district for two years and thereafter until another petition is presented under the provisions of Section 2 of this act.”

This provision does not mean that the law, under the decisions of the mayor or the judge, shall remain in force only until another petition is presented under Section-2; but at least two years and thereafter also, unless another petition is presented. It seems to contemplate a filing of the petition at such time as a decision thereon would not conflict with or annul the decision rendered under Section 1. The petition under either section amounts to nothing until approved by the mayor or judge, and it is his decision that gives effect to the law, which according to Section 6 shall operate for at least two years from the time the petition is held sufficient by the mayor or judge. The decision of the mayor or judge is, in the language of the act, only prima facie evidence, and a later one can not annul a former one, the duration of which is determined by.the act itself.

It seems clear, therefore, that a petition under Section 2 may be filed at any time after two years from the filing under Section 1, and it is equally clear that the decision of the mayor under Section 2 can not take effect until two years after this decision under Section 1. Leave to file petition in error denied.

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The only question involved in this application for leave to file a petition in error is, whether a petition under Section 2 of the act of March 22, 1906 (98 O. L., 68), was prematurely filed with the mayor of Cincinnati.

That part of Section 2 applicable to the question is as follows:

“The petition provided for in this section shall not be filed until after two years or more shall have elapsed after the filing of the petition provided for in Section 1 of this act. ’ ’.

[169]*169While it is plain that the provision permits a filing of a petition at any time after two years from the filing of a petition provided for in Section 1, it does not attempt to limit the operation and effect of the decision of the mayor or judge upon the original petition. This is provided for in Section 6 as follows:

“And the law shall remain in full force and effect in said .residence district for two years and thereafter until another petition is presented under the provisions of Section 2 of this act.”

This provision does not mean that the law, under the decisions of the mayor or the judge, shall remain in force only until another petition is presented under Section-2; but at least two years and thereafter also, unless another petition is presented. It seems to contemplate a filing of the petition at such time as a decision thereon would not conflict with or annul the decision rendered under Section 1. The petition under either section amounts to nothing until approved by the mayor or judge, and it is his decision that gives effect to the law, which according to Section 6 shall operate for at least two years from the time the petition is held sufficient by the mayor or judge. The decision of the mayor or judge is, in the language of the act, only prima facie evidence, and a later one can not annul a former one, the duration of which is determined by.the act itself.

It seems clear, therefore, that a petition under Section 2 may be filed at any time after two years from the filing under Section 1, and it is equally clear that the decision of the mayor under Section 2 can not take effect until two years after this decision under Section 1. Leave to file petition in error denied.

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Bluebook (online)

12 Ohio C.C. (n.s.) 166, 1909 Ohio Misc. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-markbreit-ohcircthamilton-1909.