
    The State, ex rel. Reams, Pros. Atty., v. Dusha, d. b. a. City Coal Co.
    (Decided January 28, 1935.)
    
      Mr. John W. Briclcer, attorney general,' Mr. Oscar A. Brown, Mr. Frasier Beams, prosecuting attorney, and Mr. Arnold F. Bunge, for plaintiff.
    
      Messrs. Denman, Miller <£ Beatty, for defendant.
   Crow, J.

This case, which is here on appeal, originated in the Common Pleas Court of Lucas county, by petition, wherein the state of Ohio, on relation of the Prosecuting Attorney of Lucas county, sought an injunction against Edward Dusha, a retail dealer in coal in Toledo, Ohio, to prevent violation of a code adopted pursuant to an act of the General Assembly of Ohio, 115 Ohio Laws, 603 et seq., which we will refer to as the Ohio Act.

On the trial in this court defendant conceded that he had not complied with certain requirements of the code, namely, that he had not contributed to the expenses of its administration, that he had not made any report pursuant thereto, and that he had made and would continue to make sales below the code prices.

There was no evidence tending to prove that he in any manner participated in or encouraged the formulation or establishment of the code; nor did he in any way consent thereto.

Provisions of some of the codes adopted in Ohio pursuant to the statutes we have referred to have come before Courts of Common Pleas of the state, resulting in discord in regard to fundamentals.

Without treating any of the decisions of the Common Pleas Courts we hold that the decision of the Supreme Court of the United States, January 7, 1935, in the case of Panama Refining Co. v. Ryan, 293 U. S., 388, 55 S. Ct., 241, 79 L. Ed., 223, and the reasoning of the opinion of the eminent Chief Justice, are decisive of the case we have here.

The Ohio Act under which the code was established, with which defendant has not complied in the particulars we have alluded to, possesses in essence the identical infirmities found by the Supreme Court of the United States in the federal statute which was the subject of controversy in the case cited above.

We could not, were we inclined to so undertake, add to or take from the reasoning of the opinion of the learned Chief Justice, for, as would be expected, the reasoning is perfect.

Therefore, without further’words, we find that as to the matters requiring decision-in the case at bar the provisions of the Ohio Act under which the code in issue arose are invalid in that the act in its relation to such matters is an unwarranted delegation of legislative power to an administrative officer, the Governor of the state, and to other persons sought to be authorized with him to formulate codes.

The finding and judgment will therefore be for the defendant at the costs of plaintiff.

Since the foregoing was written there has come to our knowledge the decision of the Court of Appeals of Hamilton county, in the case of Riesenberg v. Divisional Code Authority, which perpetually enjoined defendant from taking steps to determine the reasonable cost of retailing solid fuel in so far as it affected the plaintiff, and from attempting to prevent the sale of solid fuel by him below the cost determined by defendant, on the ground that defendant Divisional Code Authority No. 23, Retail Solid Fuel Industry, had not been granted authority by the Ohio Act to determine the lowest reasonable cost of retailing solid fuel, or to prevent the sale of solid fuel under said cost as determined, the court having found that the plaintiff had not signed the code of fair competition of the Retail Solid Fuel Industry.

No opinion was filed in the case, but it is clear that the court decided the Ohio Act ineffectual to authorize the prevention of the sale of coal under the cost fixed by the code. To that extent the decision was in accordance with our holding in the instant case.

In the case at bar a judgment and decree will be rendered for the defendant and the petition will be dismissed.

Decree for defendant.

Richards and Lloyd, JJ., concur.

Crow, J., of the Third Appellate District, sitting by designation in place of Overmyer, J., of the Sixth Appellate District,  