concurring in part and dissenting in part. I concur with the majority in its decision as to and treatment of appellant’s second proposition of law. I respectfully dissent to the majority’s decision as to appellant’s first proposition of law.
Pursuant to R.C. 4909.39, the commission has an obligation to strike any non-rate portions of an ordinance when such provisions are unjust or unreasonable. The provisions complained of by appellant are both unjust and unreasonable on their face. In addition, contrary to the majority’s finding, appellant did, I believe, directly present these issues to the commission. Appellant raised the unreasonableness of Sections 5, 6 and 7 of Garfield Ordinance Nos. 21-1994 and 32-1994 in its various filings with the commission. Further, it is overly technical to say that *168testimony elicited on cross-examination, that the records the ordinances required appellant to keep were not presently kept and were expensive to analyze, did not present the commission with the issues. Such a ruling simply encourages appellant to file yet another complaint seeking the commission’s determination of the issues. To avoid a res judicata defense, appellant need only add another issue, and issues seem abundant in these cases.
Resnick and Stratton, JJ., concur in the foregoing opinion.