held, therefore, is governmental and cannot be

(94 Ohio St. 115) alienated, except in those instances mentioned STATE ex rel. GARRISON v. BROUGH et al. of parcels used in the improvement of the interest thus held, or when parcels can be dis

(No. 15074.) posed of without detriment to the public in- (Supreme Court of Ohio. Feb. 29, 1916.) terest in the lands and waters remaining.”

(Syllabus by the Court.) The defendants in error contend that the 1. PROHIBITION 3(2)-REMEDY-NATURE OF. right of the littoral owner to wharf out is a

'The writ of prohibition is an extraordinary property right which cannot be taken without legal remedy, whose object is to prevent a court

or tribunal of peculiar, limited or inferior power compensation under the federal and state Con- from assuming jurisdiction of a matter beyond stitutions. A similar contention was made its cognizance. The writ cannot be made to in Greenleaf-Johnson Lumber Co. v. Garri- serve the purpose of a writ of error to correct son, 237 U. S. 251, 35 Sup. Ct. 551, 59 L. Ed. mistakes of the lower court in deciding questions

. . 939, where the wharves had been erected in [Ed. Note.-For other cases, see Prohibition, keeping with federal and state lines. The Cent. Dig. 88 5, 6; Dec. Dig. O3(2). claim was not sustained. The proposition For other definitions, see Words and Phrases, announced was:

First and Second Series, Prohibition.] "The power of the sovereign state or nation


TION. is perpetual-not exhausted by one exercise and all privileges granted in public waters are

The power to award writs of prohibition subject to that power; the exercise of which having been conferred on this court by the Conis not a taking of private property for public that no law shall be passed or rule made where

stitution, and that instrument having provided use but the lawful exercise of a governmental by any person shall be prevented from invoking power for the common good.”

the original jurisdiction of this court, the power In Scranton v. Wheeler, 179 U. S. 141, 164, that a court or tribunal whose action is sought

will always be exercised where it clearly appears 21 Sup. Ct. 48, 57 (45 L. Ed. 126) it is said: to be prohibited has no jurisdiction of the cause

“The riparian owner acquired the right of or is about to exceed its jurisdiction. access to navigability subject to the contingency

[Ed. Note.-For other cases, see Courts, Dec. that such right might become valueless in con- Dig. Om 207(5).] sequence of the erection, under competent au- 3. OFFICERS 82–TRIAL OF TITLE-INJUNCthority, of structures on the submerged lands

TION. in front of his property for the purpose of im- The remedy by injunction cannot be emplosproving navigation."

ed to try the title to a public office, but it may The authorities show that the right of a Office, under color of title, to protect his posses

be resorted to by one in possession of a public riparian or littoral owner is always subject sion against the interference of an adverse claimto the paramount authority of the state and ant whose title is in dispute until the latter shall

establish his title by law. Reemelin v. Mosby, federal governments for the ends set forth.

47 Ohio St. 570, 26 N. E. 717, approved and In this case the defendants aver in their followed. answer that the work complained of was and [Ed. Note.-For other cases, see Officers, Cent. is for the purpose of enabling them to reach Dig. § 114; Dec. Dig. On 82.] navigation and to perform their duties as

Proceeding by the State, on the relation of common carriers. They insist they have no Raymond T. Garrison, for a writ of prohibiother object. No other purpose, and no other tion against Bernard F. Brough and others. result, is allowable. In the absence of legis-Writ refused. lation by the state touching the subject, and until the enactment of such legislation, this

In this cause an application for a writ of was their right.

prohibition against the court of common pleas The record does not disclose any different of Lucas county and two of its judges, Ho:1. purpose, nor that defendants appropriated Ritchie, was filed to prevent further action

Bernard F. Brough and Hon. Byron F. any part of the public property with the ulterior motive of diverting it to private ends. in a proceeding in injunction pending in that Therefore the judgments below must be af- court, which was brought by John W. Dowd

against Raymond T. Garrison. Dowd was firmed, It is to be presumed that the Legislature, tions of Lucas county on May 1, 1912, for a

appointed a deputy state supervisor of elecin the enactment of legislation on the sub- tions of Lucas county on May 1, 1912, for a

four-year term. ject, will appropriately provide for the per

It is set forth in the petition filed in this formance by the state of its duty as trustee for the purposes stated; that it will deter-court that on October 27, 1915, the secremine and define what constitutes an inter- tary of state, as state supervisor of elections, ference with public rights, and that it will removed Dowd for cause, and issued a certifilikewise, in a spirit of justice and equity, cate of appointment to Garrison as his sucprovide for the protection and exercise of the cessor for the unexpired term. The petition

sets forth in full detail all of the steps leadrights of the shore owners.

ing up to the removal of Dowd by the state Judgment affirmed.

supervisor, and alleges that they were all

taken in full compliance with the statutes. NICHOLS, C. J., and DONAHUE and It is further alleged that Garrison at once JONES, JJ., concur.

qualified as the successor of Dowd and preFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

sented himself at the rooms of the board offendant in said suit, from interfering with deputy state supervisors as a member, and said John W. Dowd in the performance by that he is now a de facto deputy state super- Dowd of the duties and the exercise of the visor and inspector of elections and a mem- power incident to the office of a member of ber of said board de facto, and became and the board of state supervisors and inspectors was and is vested with color of right to hold of election of Lucas county, while said Dowd said office as against said Dowd until it shall was in possession of said office, exercising be determined by a court of competent juris- such powers and performing such duties, and diction in appropriate proceedings that said only until said Raymond T. Garrison should order of removal was null, illegal, and void. establish his title to said office, if title he

The petition herein then alleges that on has thereto, in an action at law, as required October 28, 1915, which was the day follow- by the laws of Ohio for trying title to public ing the alleged removal, said Dowd brought office, or until the possession of said John W. a proceeding in the court of common pleas of Dowd should be otherwise terminated acLucas county against Garrison, as defendant, cording to law. The opinion of the judge praying for an injunction restraining Garri- overruling the motion referred to was also atson "from interfering with said Dowd in the tached to the answer. exercise of the duties of deputy state super It is further alleged that the defendants visor and inspector of elections, and from have at all times refrained and will continue appearing at the office of said board, demand- to refrain from assuming any jurisdiction in ing said Dowd to vacate said office, and said suit to try the claimed title of said Dowd from in any wise obstructing, interfering or said Garrison to the office referred to, with, or hindering said Dowd in the perform- and also that the defendants have proceeded ance of said duties"; that in his petition for in said suit with all reasonable dispatch. an injunction Dowd "alleged the opinion and

The petition in the case of Dowd v. Garconclusions that he was then a duly appoint- rison, a copy of which is attached to the ed, qualified, and acting deputy state super-answer, after alleging the appointment and visor and inspector of elections for said coun- qualification of Dowd and the date of the ty and a member of said board; that his expiration of his term, and that he is now, term would not expire until May 1, 1916; and ever since his appointment has been, a that he had not vacated said office, nor re- duly appointed, qualified, and acting deputy linquished his rights therein or the exercise state supervisor, proceeds to set forth in of the powers and duties thereof”; and that full detail a certain alleged agreement and Dowd's petition then proceeded to allege that conspiracy to trump up, file, and sustain he was summarily, arbitrarily, and illegally charges for the removal of said Dowd by the removed pursuant to certain alleged fraudu- state supervisor of elections. It is alleged lent arrangements and contrivances by which that said action was willfully, knowingly, and pretended charges were to be and were al- maliciously taken against the plaintiff, and leged to have been presented against him as a in disregard of his rights and in pursuance justification for said removal.

of the conspiracy referred to. After setting The petition herein then further alleges out the alleged plan for the preparation and that a temporary injunction was attempted filing of said alleged false charges, the petito be granted by said Brough, defendant, that tion averred as follows: a motion to dissolve the same was overruled,

"It was arranged, agreed, and understood beand that unless prohibited by the order of tween said parties so conspiring as aforesaid the court the defendants would proceed with that upon the filing of said false charges aforethe hearing of the cause and the granting of said said Hildebrant would pretend to give the

plaintiff a fair and impartial hearing upon said a permanent injunction.

charges and to carry out said appearances would It is then alleged in the petition for pro- send to plaintiff a copy of said charges and aphibition that said steps have been, are, and point a day and hour at which plaintiff would be will be in flagrant excess and abuse of the required to appear before him at his office in the

capitol building of Columbus, Ohio, but that said legitimate jurisdiction of said court and Hildebrant would willfully and knowingly, with judges, for the reason that the relator was the consent and at the request of said other para de facto officer, and that said Dowd was ties so conspiring with him as aforesaid, and in not a de facto officer, but a mere pretender. disregard of plaintiff's rights in that behalf, apThe defendants in the proceeding in this 1 o'clock p. m. of Tuesday, September 7, 1915,

of court, by their answer and return, set forth at which time said parties so conspiring as aforea transcript of the proceedings in the court said knew that it would be impossible for plainof common pleas of Lucas county, which is rial witnesses in his behalf to meet and defend

tiff to secure the attendance of any of his matehere referred to in the petition for pro against said charges, it being the fact, as said hibition, with the exception of the testimony parties so conspiring as aforesaid well knew, taken on the hearing of the motion to dis- that said McCarthy, Dennis, and Van Loo and solve the temporary injunction,

one Dennis F. Sullivan, deputy clerk of said

board, and one, Austin Gibbons, clerk and steThe answer alleges that the defendants nographer of said board, each of whom was a herein never assumed or attempted to exer- material witness for plaintiff in his defense to cise, and they would not assume or attempt he could not safely have gone to said hearing,

or to exercise, jurisdiction in said suit further were compelled to remain on duty in their respecthan to enjoin said Raymond T. Garrison, de- tive positions aforesaid for the purpose of con

ducting a special election in Springfield township, Lucas county, Ohio, throughout said day of September 7, 1915, and to make a complete preparation, that is, provide and have provided the necessary ballots, place, and locate the necessary election booths and furnish all necessary supplies to the election officers in said booths and fill vacancies of both officials in the 249 voting precincts in the city of Toledo, Ohio, for a primary election for the nomination of candidates for the various city and ward offices of said city of Toledo, Ohio, which was to be held, and which said parties so conspiring well knew was to be held, on Tuesday, September 14, 1915. It was further a part of said plan and conspiracy by and among said parties so conspiring as aforesaid, and it was agreed, arranged, and understood between them, if the plaintiff should, by any means be able to produce his said witnesses at said hearing or at any continuation thereof, said Hildebrant would hear their testimony in behalf of plaintiff, but that he would give such hearing simply for the purpose of giving the appearance of an intention on his part to deal fairly with plaintiff. It was planned, agreed, and understood, however between said parties that notwithstanding any testimony which might be offered by plaintiff in his behalf showing the falsity of said charges aforesaid, he, said Hildebrant would attempt to remove the plaintiff from his said office aforesaid and would make and enter the order of removal of plaintiff from said office as hereinbefore mentioned.”

The petition then proceeds with the allegation that the state supervisor and inspector of elections, in pursuance of said conspiracy and agreement, summarily and arbitrarily removed the plaintiff from his of fice, although he knew that the plaintiff was innocent of the pretended charges so made against him. Certain arbitrary proceedings are alleged to have taken place in the carrying out of this purpose, and it is then alleged that the state supervisor attempted to and did issue a certificate of appointment to the defendant, Garrison, that the defendant pretended to and did take an oath of office, attempted otherwise to qualify for said office, and “demanded of plaintiff that he be allowed to enter upon the duties of a member of said board succeeding this plaintiff, and threatens to interfere, and is interfering, with this plaintiff in the performance of his duties as a member of Said board as aforesaid, and is attempting to, and, unless restrained by this court, will continue to attempt to, interfere with and hinder plaintiff in the discharge of plaintiff's duties,” although the said defendant, Garrison, had not been recommended by the Republican executive committee of Lucas county, and that other steps required by law to be taken in order to legally make an appointment were not complied With.

The prayer of the petition was:

“That a temporary order may be allowed restraining defendant from further interfering with plaintiff in the exercise of plaintiff’s duties in said office aforesaid, and from appearing at the office of plaintiff and said board, demanding of plaintiff to vacate said office, and from in any wise obstructing, interfering with, or hindering plaintiff in the performance of his said duties as member of said board; and that upon hearing hereof said restraining order and injunction may be made permanent, and that defendant may be

permanently enjoined flom in any wise, inter: fering with, hindering, or obstructing plaintiff in his incumbency of said office, or in the exercise of his powers and duties therein as such officer and member; and plaintiff prays for all other proper relief.” There was also included in the answer of the case at bar a copy of the opinion of the common pleas court of Lucas county, overruling the motion to dissolve the temporary restraining order issued in that case.

Ben W. Johnson, of Toledo, and Harry F. West, of Columbus, for relator. Denman & Wilson, of Toledo, for defendants.

JOHNSON, J. [1, 2] The application by the relator for the issuance of the extraordinary writ of prohibition is based upon the contention that the court of common pleas of Lucas county had no jurisdiction to entertain the petition for injunction referred to in the petition of the relator, and no power to grant the relief prayed for in that petition. There is substantial agreement in the authorities and between counsel in this case as to the nature, extent, and necessary circumstances for the proper application of the unusual Writ of prohibition. The object of the writ is to prevent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction of a matter beyond its legal cognizance. EStablished Order and the respect due to properly constituted inferior courts require that it should never issue unless it clearly appears that the inferior court is about to exceed its jurisdiction. The writ cannot be made to serve the purpose of a writ of error, to correct mistakes of the lower court in deciding questions of law or evidence within its jurisdiction.

The proper function of prohibition is to check usurpations of inferior tribunals and to confine them within the limits prescribed by law for their operations. It does not lie to prevent a subordinate court from deciding erroneously or from enforcing an erroneous judgment in a case in which it has a right to adjudicate. In all such cases the aggrieved party must pursue the ordinary remedies for the correction of errors. However, the inclusion of prohibition, by the recent constitutional amendments, among the enumerated Subjects of original jurisdiction in this court, accompanied by the general provision that no law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the Supreme Court, admonishes us that where it appears that a court or tribunal whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, a party who has no other adequate remedy is entitled to a writ of prohibition as a matter of right. Ex debito justitiae.

It should be kept in mind that, subject to these limitations, this prerogative writ should be used with great caution and forbearance, for the furtherance of justice and in the exercise of a Sound discretion, to be

determined in accordance with the circum "The plaintiff below mistook his remedy. The stances of each particular case.

petition shows that Harding, and not Eichinger, The relator claims that the allegations of was in possession of the office when the action

was commenced. Injunction may be resorted to Dowd, in his petition filed in the common by the incumbent of a public office to protect his pleas of Lucas county, disclose that the court possession against interference by an adverse did not have jurisdiction to grant any in- claimant until the latter establishes his title, but

is not the appropriate remedy to try the title. junctive relief. The defendants, on the other Reemelin v. Mosby, 47 Ohio St. 570 (26 N. E. hand, claim that the petition of Dowd, which 717]. Quo warranto is the proper form of remis attached to their answer in this case, edy.” shows that it had such jurisdiction. Defend It is alleged in the petition filed by Dowd ants also allege that the record under investi. in the court below that on May 1, 1912, he gation demonstrates that they never assumed was appointed by the state supervisor and inor attempted to exercise, and that they aver spector of elections as a deputy state superthat they would not assume or attempt to visor and inspector of elections for the term exercise, jurisdiction in that suit further than ending May 1, 1916; that he took the oath to enjoin Raymond T. Garrison, defendant of office and entered on the performance of (relator herein), from interfering with Dowd its duties; that since that time he has been in the performance of the duties and the ex- the duly qualified and acting deputy state ercise of the powers incident to the office of a supervisor; and that his term of office will member of the board referred to, while he not expire until May 1, 1916. The relator was in possession thereof exercising its du- here admits the due appointment and qualities, and then only until said Garrison should fication of Dowd as such deputy state superestablish his title to said office, if title he has visor, and that he was duly and legally actthereto, in an action at law, as required by ing as such, until his removal, but joins issue the laws of Ohio for trying title to public with the defendants as to the possession by office,

Dowd on October 28th, the date of the filing It has come to be well settled that an in- of his petition in the court of common pleas. cumbent of a public office may employ the The claim of the relator is that he himself remedy by injunction to protect his possession on that day took the oath of office and enagainst the interference of an adverse claim-¡tered on the discharge of its duties "by reant, whose title is in dispute, until the latter questing and attempting to obtain a meetshall establish his title by law, but it is not ing of said board for the purpose of investithe appropriate remedy to try the title to a gating irregularities and nonperformance of the appropriate remedy to try the title to a duty by election officers,” and demanded of public office or to determine questions concerning the authority to make appointments said Dowd that “your relator enter, without thereto. This proposition has been distinctly interference, upon the further and complete decided in Reemelin et al. v. Mosby, 47 Ohio discharge of his duties, and attempted to, St. 570, 26 N. E. 717, Harding v. Eichinger, and, if he had not been restrained, 57 Ohio St. 371, 49 N. E. 306, and Holbrock would have continued,” etc. Therefore, there v. Smedley, 79 Ohio St. 391, 87 N. E. 269. was presented to the common pleas court by

Dowd a case which entitled him, under the 16 Ann. Cas. 155.

rule which has been established by the conIn Harding v. Eichinger, supra, the peti-sistent holdings of this court, to an injunction of the plaintiff below, Eichinger, alleged, tion restraining Garrison from interfering in substance, that he had been elected as a with him in his possession of the office until member of the board of education of the city Garrison should establish his title by a proper of Mansfield by the voters of his ward, and proceeding at law. That issue (as to poswas duly qualified as such officer ; that there session) was one which Garrison was entitled after, on the third Monday of that month, to have heard by the court of common pleas, he met with the board in session, and at- and we are forced to presume that that tempted to exercise his rights, privilege, and court would have proceeded to determine it franchise by voting to organize said board in impartially between the parties. If that court the election of its officers and by participat- had found that Dowd was in possession under ing in the other necessary business of the color of title, it would have been its duty to body, but was unlawfully and forcibly pre-grant the injunction as above stated, and if vented in the performance of his duties by it had found that Garrison was in possession the defendant below, Harding, who was then at the time of the commencement of that suit, and there neither a resident or elector of said it would have been its duty to dismiss the ward nor a member of said board, but de proceeding. This conclusion would of itself fendant did then and there unlawfully usurp require the dismissal of this application for a the office and membership of the plaintiff; writ of prohibition. On the record it is shown that defendant voted for candidates for the that the relator has mistaken his remedy. offices aforesaid, and acted on other business

It is insisted by the relator that the allegaof the board ; that defendant's vote and actions in the petition of Dowd in the court tion aforesaid were all accepted and recorded below, subsequent to those to which we have by a pretended president and clerk.

referred, are wholly insufficient to justify an [3] An injunction was prayed for, and the inquiry into the act of the state supervisor court, in its opinion, say:

in removing Dowd. Even if this were con

ceded, it would not determine or preclude

(94 Ohio St. 12) the question of possession by Dowd under LIMBAUGH v. WESTERN OHIO R. CO. color of title, which is the essential matter

(No. 14990.) in determining the jurisdiction of the court (Supreme Court of Ohio. Feb. 29, 1916.) of common pleas in the original proceeding. It must not be overlooked that the only order

(Syllabus by the Court.) that court could make would be one enjoining 1. APPEARANCE Em 19(1)—JURISDICTION:

When the actual wrongdoer, who is not Garrison until he had established his title by served or made a party defendant in an action, a proper proceeding.

has been substituted for another mistakenly It being conceded by both parties that the sued, and, after such substitution, appears by common pleas court in the injunction pro- wards question the jurisdiction of the court

counsel and contests the merits, it cannot afterceeding had no jurisdiction to try and de- over it. termine the title, it follows that the allega [Ed. Note.-For_other cases, see Appearance, tions in the petition of Dowd in the court of Cent. Dig. $ 79; Dec. Dig. Om 19(1).) common pleas, which relate to the alleged 2. TRIAL m260(1)-INSTRUCTIONS_REFUSAL, conspiracy and fraudulent steps which led

It is not prejudicial error to refuse special up to his removal, were irrelevant, except thereof has been fully embodied in other re

requests before argument, when the substance as they might relate to the possession of quests given before argument, at the instance Dowd under color of title at the beginning of the same party. of the suit. Those allegations affect the va

[Ed. Note.-For other cases, see Trial, Cent. lidity of the proceedings for the removal of Dig. $ 651; Dec. Dig. Om 260(1).] Dowd, the validity of Garrison's title, and

Error to Court of Appeals, Allen County. the right of Garrison to the possession of

Action by M. J. Limbaugh against the the office, and they would be relevant and Western Ohio Railroad Company. Judgappropriate in a proper action to determine ment for plaintiff was reversed by the Court the validity of those proceedings. State ex of Appeals, and plaintiff brings error. Judg. rel. Gongwer v. Graves, 90 Ohio St. 311, 107 inent of Court of Appeals reversed, and that N. E. 1018.

of common pleas affirmed. In this case it is sufficient to say that The Western Ohio Railroad Company, as Dowd, in his petition in the court of common lessee, was, at the time of the injury to M. pleas, denied the validity of the proceedings J. Limbaugh, operating its cars over an inby which he was removed, asserted title to terurban railroad belonging to the Western the position, and alleged that he was in pos- Ohio Railway Company. Suit was filedi session under color of his original title, which against the Western Ohio Railway Company is admitted by the relator to have been valid, and service made on that defendant. After and the court of common pleas in the injunc- the issues were joined the case came on for tion proceeding could entertain jurisdiction to trial in that situation, the defendant rail. determine only the question of such posses-way company being represented by the firms sion and enter its decree in accordance there of Wheeler & Bentley and Goeke, Anderson with. We think it clear that it is not shown & Musser as its attorneys. During the progfrom this record that the court of common ress of the trial it developed that the neglipleas has, in the proceeding referred to, abus-gent acts, if any, were committed by the ed or usurped judicial functions, or that it is Western Ohio Railroad Company, the operatattempting to go beyond its proper jurisdic-ing corporation, and not by the defendant tion.

served. The plaintiff called one F. D. CarIt was not contemplated by the people, penter as a witness, who testified that he was when they adopted the amendment referred president of the railway company, the lessor, to, that this court would interfere with the and was also general manager and vice presproper exercise by inferior courts of the ident of the lessee railroad company, and functions and the jurisdiction conferred upon that the two firms of counsel appearing for them under the provisions of the Constitu- the defendant sued were also attorneys for tion.

. It was intended to be an efficient aid the railroad company. On the development in preventing the abuse or usurpation of of these facts, and just before resting the judicial functions. It was added to our ju- case, the plaintiff moved the court for leave risdiction when new, and substantial limita- to amend the petition by substituting the tions were made therein. It came with other name of the Western Ohio Railroad Company fundamental matters, in response to what the in place of the Western Ohio Railway Compeople regarded as a need created by the pany. This motion was sustained by the changing experiences of our situation, to court, and the record discloses that countake its place in our constitutional system sel excepted on behalf of the defendant, but of checks and balances through which thus for which particular defendant it does not far the spirit of our institutions has been appear. Immediately after such substitufulfilled.

tion counsel for the defendant asked the Writ refused.

court to "direct the jury to return a verdict

in its favor of no cause of action." This reNICHOLS, C. J., and DONAHUE, NEW-quest was refused. Thereupon evidence was MAN, and JONES, JJ., concur.

offered by the defendant in support of the de

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« ForrigeFortsett »