Thomas v. Markbreit

Ohio Circuit Courts

Thomas v. Markbreit

21 Ohio C.C. Dec. 335

DecidedJuly 1, 1909

StatusPublished

This text of 21 Ohio C.C. Dec. 335 (Thomas v. Markbreit) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thomas v. Markbreit, 21 Ohio C.C. Dec. 335 (Ohio Super. Ct. 1909).

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Opinion

GIFFEN, J.

The only question involved in this application for leave to file a petition in error is, whether a petition under Sec. 2 of the act of March 22, 1906 (98 O. L. 68; Lan. Rev. Stat. 7283b; B. 4364-30b), was prematurely filed with the mayor of Cincinnati.

[336]*336That part of Sec. 2 applicable to the question is as follows:

“The petition provided for in this section shall not be filed until after±wo:years' or móre:sháir have- elapsed after the filing of'the-petition provided for in Sec. 1 of this act.”

While 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 Sec. 1 (Lan. 7283a; B. 4364-30a) Rev. Stat., 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 Sec. 6 (Lan. 7283f; B. 4364-30f) Rev. Stat., as follows:

“And the law shall remain in full force and effect in said resident district for two years and thereafter until another petition is presented under the,.provisions of .See. 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 Sec. 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 Sec. 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 flaw; which, according to Sec.- 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 cannot annul a former one, the duration of which is determined by the act itself.

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

Swing and Smith, JJ., concur.

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GIFFEN, J.

The only question involved in this application for leave to file a petition in error is, whether a petition under Sec. 2 of the act of March 22, 1906 (98 O. L. 68; Lan. Rev. Stat. 7283b; B. 4364-30b), was prematurely filed with the mayor of Cincinnati.

[336]*336That part of Sec. 2 applicable to the question is as follows:

“The petition provided for in this section shall not be filed until after±wo:years' or móre:sháir have- elapsed after the filing of'the-petition provided for in Sec. 1 of this act.”

While 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 Sec. 1 (Lan. 7283a; B. 4364-30a) Rev. Stat., 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 Sec. 6 (Lan. 7283f; B. 4364-30f) Rev. Stat., as follows:

“And the law shall remain in full force and effect in said resident district for two years and thereafter until another petition is presented under the,.provisions of .See. 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 Sec. 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 Sec. 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 flaw; which, according to Sec.- 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 cannot annul a former one, the duration of which is determined by the act itself.

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

Swing and Smith, JJ., concur.

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21 Ohio C.C. Dec. 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-markbreit-ohiocirct-1909.