Sidebilder
PDF
ePub

(94 Ohio St. 115)

held, therefore, is governmental and cannot be 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 disposed of without detriment to the public interest in the lands and waters remaining."

The defendants in error contend that the right of the littoral owner to wharf out is a property right which cannot be taken without compensation under the federal and state Constitutions. A similar contention was made in Greenleaf-Johnson Lumber Co. v. Garrison, 237 U. S. 251, 35 Sup. Ct. 551, 59 L. Ed. 939, where the wharves had been erected in keeping with federal and state lines. The claim was not sustained. The proposition announced was:

"The power of the sovereign state or nation is perpetual-not exhausted by one exercise— and all privileges granted in public waters are subject to that power; the exercise of which is not a taking of private property for public use but the lawful exercise of a governmental power for the common good."

In Scranton v. Wheeler, 179 U. S. 141, 164, 21 Sup. Ct. 48, 57 (45 L. Ed. 126) it is said: "The riparian owner acquired the right of access to navigability subject to the contingency that such right might become valueless in consequence of the erection, under competent authority, of structures on the submerged lands in front of his property for the purpose of improving navigation.'

99

The authorities show that the right of a riparian or littoral owner is always subject to the paramount authority of the state and federal governments for the ends set forth.

In this case the defendants aver in their answer that the work complained of was and is for the purpose of enabling them to reach navigation and to perform their duties as common carriers. They insist they have no other object. No other purpose, and no other result, is allowable. In the absence of legislation by the state touching the subject, and until the enactment of such legislation, this was their right.

(No. 15074.)

(Supreme Court of Ohio. Feb. 29, 1916.)

(Syllabus by the Court.)

1. PROHIBITION 3(2)-REMEDY-NATURE OF. The writ of prohibition is an extraordinary legal remedy, whose object is to prevent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction of a matter beyond its cognizance. 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 within its jurisdiction.

[Ed. Note.-For other cases, see Prohibition, Cent. Dig. §§ 5, 6; Dec. Dig. 3(2). For other definitions, see Words and Phrases, First and Second Series, Prohibition.] 2. COURTS

TION.

207(5)—JURISDICTION-PROHIBI

The power to award writs of prohibition having been conferred on this court by the Conthat no law shall be passed or rule made wherestitution, and that instrument having provided by any person shall be prevented from invoking the original jurisdiction of this court, the power that a court or tribunal whose action is sought will always be exercised where it clearly appears to be prohibited has no jurisdiction of the cause or is about to exceed its jurisdiction.

[Ed. Note. For other cases, see Courts, Dec. Dig. 207(5).]

3. OFFICERS 82-TRIAL OF TITLE-INJUNC

TION.

The remedy by injunction cannot be employed to try the title to a public office, but it may be resorted to by one in possession of a public office, under color of title, to protect his possession against the interference of an adverse claimant whose title is in dispute until the latter shall establish his title by law. Reemelin v. Mosby, 47 Ohio St. 570, 26 N. E. 717, approved and followed.

[Ed. Note.-For other cases, see Officers, Cent. Dig. § 114; Dec. Dig. 82.]

Proceeding by the State, on the relation of Raymond T. Garrison, for a writ of prohibition against Bernard F. Brough and others. Writ refused.

In this cause an application for a writ of prohibition against the court of common pleas The record does not disclose any different of Lucas county and two of its judges, Hon. purpose, nor that defendants appropriated Bernard F. Brough and Hon. Byron F. any part of the public property with the ul-Ritchie, was filed to prevent further action terior motive of diverting it to private ends. in a proceeding in injunction pending in that Therefore the judgments below must be affirmed.

It is to be presumed that the Legislature, in the enactment of legislation on the subject, will appropriately provide for the performance by the state of its duty as trustee for the purposes stated; that it will determine and define what constitutes an interference with public rights, and that it will likewise, in a spirit of justice and equity, provide for the protection and exercise of the rights of the shore owners. Judgment affirmed.

NICHOLS, C. J., and DONAHUE and JONES, JJ., concur.

court, which was brought by John W. Dowd against Raymond T. Garrison. Dowd was appointed a deputy state supervisor of elections of Lucas county on May 1, 1912, for a four-year term.

It is set forth in the petition, filed in this court that on October 27, 1915, the secretary of state, as state supervisor of elections, removed Dowd for cause, and issued a certificate of appointment to Garrison as his successor for the unexpired term. The petition sets forth in full detail all of the steps leading up to the removal of Dowd by the state supervisor, and alleges that they were all taken in full compliance with the statutes. It is further alleged that Garrison at once qualified as the successor of Dowd and pre

sented himself at the rooms of the board of | fendant 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 said office as against said Dowd until it shall be determined by a court of competent jurisdiction in appropriate proceedings that said order of removal was null, illegal, and void.

Dowd should be otherwise terminated according to law. The opinion of the judge overruling the motion referred to was also attached to the answer.

of election of Lucas county, while said Dowd was in possession of said office, exercising such powers and performing such duties, and only until said Raymond T. Garrison should 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 Lucas county against Garrison, as defendant, praying for an injunction restraining Garrison "from interfering with said Dowd in the 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 supervisor and inspector of elections for said county and a member of said board; that his term would not expire until May 1, 1916; that he had not vacated said office, nor relinquished his rights therein or the exercise of the powers and duties thereof"; and that Dowd's petition then proceeded to allege that he was summarily, arbitrarily, and illegally removed pursuant to certain alleged fraudulent arrangements and contrivances by which pretended charges were to be and were alleged to have been presented against him as a justification for said removal.

The petition herein then further alleges that a temporary injunction was attempted to be granted by said Brough, defendant, that a motion to dissolve the same was overruled, and that unless prohibited by the order of the court the defendants would proceed with the hearing of the cause and the granting of a permanent injunction.

It is then alleged in the petition for prohibition that said steps have been, are, and will be in flagrant excess and abuse of the legitimate jurisdiction of said court and judges, for the reason that the relator was a de facto officer, and that said Dowd was not a de facto officer, but a mere pretender.

The defendants in the proceeding in this court, by their answer and return, set forth a transcript of the proceedings in the court of common pleas of Lucas county, which is here referred to in the petition for prohibition, with the exception of the testimony taken on the hearing of the motion to dissolve the temporary injunction.

The answer alleges that the defendants herein never assumed or attempted to exercise, and they would not assume or attempt to exercise, jurisdiction in said suit further than to enjoin said Raymond T. Garrison, de

answer, after alleging the appointment and qualification of Dowd and the date of the expiration of his term, and that he is now, and ever since his appointment has been, a duly appointed, qualified, and acting deputy state supervisor, proceeds to set forth in full detail a certain alleged agreement and conspiracy to trump up, file, and sustain charges for the removal of said Dowd by the state supervisor of elections. It is alleged that said action was willfully, knowingly, and maliciously taken against the plaintiff, and in disregard of his rights and in pursuance of the conspiracy referred to. After setting out the alleged plan for the preparation and filing of said alleged false charges, the petition averred as follows:

"It was arranged, agreed, and understood between said parties so conspiring as aforesaid that upon the filing of said false charges aforesaid said Hildebrant would pretend to give the plaintiff a fair and impartial hearing upon said charges and to carry out said appearances would send to plaintiff a copy of said charges and appoint a day and hour at which plaintiff would be required to appear before him at his office in the Hildebrant would willfully and knowingly, with capitol building of Columbus, Ohio, but that said the consent and at the request of said other parties so conspiring with him as aforesaid, and in 'disregard of plaintiff's rights in that behalf, appoint as the time for said hearing the hour of 1 o'clock p. m. of Tuesday, September 7, 1915, at which time said parties so conspiring as aforesaid knew that it would be impossible for plainrial witnesses in his behalf to meet and defend tiff to secure the attendance of any of his mateagainst said charges, it being the fact, as said parties so conspiring as aforesaid well knew, that said McCarthy, Dennis, and Van Loo and one Dennis F. Sullivan, deputy clerk of said board, and one, Austin Gibbons, clerk and stenographer of said board, each of whom was a material witness for plaintiff in his defense to he could not safely have gone to said hearing, said charges, and without whom or any of them were compelled to remain on duty in their respective positions aforesaid for the purpose of con

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.

ducting a special election in Springfield town-, permanently enjoined from in any wise intership, Lucas county, Ohio, throughout said day fering with, hindering, or obstructing plaintiff of September 7, 1915, and to make a complete in his incumbency of said office, or in the exerpreparation, that is, provide and have provided cise of his powers and duties therein as such offithe necessary ballots, place, and locate the neces- cer and member; and plaintiff prays for all othsary election booths and furnish all necessary er proper relief." 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 fairÎy 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."

that the inferior court is about to exceed its

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 The petition then proceeds with the al- prohibition. The object of the writ is to prelegation that the state supervisor and in-vent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction spector of elections, in pursuance of said conspiracy and agreement, summarily and ar- of a matter beyond its legal cognizance. Esbitrarily removed the plaintiff from his of- tablished order and the respect due to properfice, although he knew that the plaintiff ly constituted inferior courts require that it was innocent of the pretended charges so should never issue unless it clearly appears 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 The proper function of prohibition is to an oath of office, attempted otherwise to check usurpations of inferior tribunals and to qualify for said office, and "demanded of confine them within the limits prescribed by plaintiff that he be allowed to enter upon law for their operations. It does not lie to the duties of a member of said board suc- prevent a subordinate court from deciding ceeding this plaintiff, and threatens to inter- erroneously or from enforcing an erroneous fere, and is interfering, with this plaintiff judgment in a case in which it has a right to in the performance of his duties as a mem- adjudicate. In all such cases the aggrieved ber of said board as aforesaid, and is at-party must pursue the ordinary remedies for tempting to, and, unless restrained by this the correction of errors. However, the inclucourt, will continue to attempt to, interfere sion of prohibition, by the recent constituwith 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.

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.

tional 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 justitiæ.

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 It should be kept in mind that, subject to wise obstructing, interfering with, or hindering these limitations, this prerogative writ plaintiff in the performance of his said duties should be used with great caution and foras member of said board; and that upon hearing

hereof said restraining order and injunction may bearance, for the furtherance of justice and

determined in accordance with the circumstances of each particular case.

The relator claims that the allegations of Dowd, in his petition filed in the common pleas of Lucas county, disclose that the court did not have jurisdiction to grant any injunctive relief. The defendants, on the other hand, claim that the petition of Dowd, which is attached to their answer in this case, shows that it had such jurisdiction. Defendants also allege that the record under investigation demonstrates that they never assumed or attempted to exercise, and that they aver that they would not assume or attempt to exercise, jurisdiction in that suit further than to enjoin Raymond T. Garrison, defendant (relator herein), from interfering with Dowd in the performance of the duties and the exercise of the powers incident to the office of a member of the board referred to, while he was in possession thereof exercising its duties, and then only until said Garrison should establish his title to said office, if title he has thereto, in an action at law, as required by the laws of Ohio for trying title to public

"The plaintiff below mistook his remedy. The petition shows that Harding, and not Eichinger, was in possession of the office when the action was commenced. Injunction may be resorted to by the incumbent of a public office to protect his possession against interference by an adverse claimant until the latter establishes his title, but is not the appropriate remedy to try the title. Reemelin v. Mosby, 47 Ohio St. 570 [26 N. E. 717]. Quo warranto is the proper form of remedy."

It is alleged in the petition filed by Dowd in the court below that on May 1, 1912, he was appointed by the state supervisor and inspector of elections as a deputy state supervisor and inspector of elections for the term ending May 1, 1916; that he took the oath of office and entered on the performance of its duties; that since that time he has been the duly qualified and acting deputy state supervisor; and that his term of office will not expire until May 1, 1916. The relator here admits the due appointment and qualification of Dowd as such deputy state supervisor, and that he was duly and legally acting as such, until his removal, but joins issue with the defendants as to the possession by 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 shall establish his title by law, but it is not the appropriate remedy to try the title to a public office or to determine questions concerning the authority to make appointments thereto. This proposition has been distinctly decided in Reemelin et al. v. Mosby, 47 Ohio St. 570, 26 N. E. 717, Harding v. Eichinger, 57 Ohio St. 371, 49 N. E. 306, and Holbrock v. Smedley, 79 Ohio St. 391, 87 N. E. 269,

office.

16 Ann. Cas. 155.

In Harding v. Eichinger, supra, the petition of the plaintiff below, Eichinger, alleged, in substance, that he had been elected as a member of the board of education of the city of Mansfield by the voters of his ward, and was duly qualified as such officer; that thereafter, on the third Monday of that month, he met with the board in session, and attempted to exercise his rights, privilege, and franchise by voting to organize said board in the election of its officers and by participating in the other necessary business of the body, but was unlawfully and forcibly prevented in the performance of his duties by the defendant below, Harding, who was then and there neither a resident or elector of said ward nor a member of said board, but defendant did then and there unlawfully usurp the office and membership of the plaintiff; that defendant voted for candidates for the offices aforesaid, and acted on other business of the board; that defendant's vote and action aforesaid were all accepted and recorded by a pretended president and clerk.

questing and attempting to obtain a meet-
ing of said board for the purpose of investi-
gating irregularities and nonperformance of
duty by election officers," and demanded of
said Dowd that "your relator enter, without
interference, upon the further and complete
discharge of his duties, and attempted to,
and, if he had not been restrained,
would have continued," etc. Therefore, there
was presented to the common pleas court by
Dowd a case which entitled him, under the
rule which has been established by the con-
sistent holdings of this court, to an injunc-
tion restraining Garrison from interfering
with him in his possession of the office until
Garrison should establish his title by a proper
proceeding at law. That issue (as to pos-
session) was one which Garrison was entitled
to have heard by the court of common pleas,
and we are forced to presume that that
court would have proceeded to determine it
impartially between the parties. If that court
had found that Dowd was in possession under
color of title, it would have been its duty to
grant the injunction as above stated, and if
it had found that Garrison was in possession
at the time of the commencement of that suit,
it would have been its duty to dismiss the
proceeding. This conclusion would of itself
require the dismissal of this application for a
writ of prohibition. On the record it is shown
that the relator has mistaken his remedy.

It is insisted by the relator that the allegations in the petition of Dowd in the court below, subsequent to those to which we have 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 the question of possession by Dowd under color of title, which is the essential matter in determining the jurisdiction of the court of common pleas in the original proceeding. It must not be overlooked that the only order

that court could make would be one enjoining Garrison until he had established his title by a proper proceeding.

It being conceded by both parties that the common pleas court in the injunction proceeding had no jurisdiction to try and determine the title, it follows that the allegations in the petition of Dowd in the court of common pleas, which relate to the alleged conspiracy and fraudulent steps which led up to his removal, were irrelevant, except as they might relate to the possession of Dowd under color of title at the beginning of the suit. Those allegations affect the validity of the proceedings for the removal of Dowd, the validity of Garrison's title, and the right of Garrison to the possession of the office, and they would be relevant and appropriate in a proper action to determine the validity of those proceedings. State ex rel. Gongwer v. Graves, 90 Ohio St. 311, 107

N. E. 1018.

(94 Ohio St. 12)

LIMBAUGH v. WESTERN OHIO R. CO. (No. 14990.)

(Supreme Court of Ohio. Feb. 29, 1916.)

(Syllabus by the Court.)

1. APPEARANCE 19(1)—JURISDICTION.
When the actual wrongdoer, who is not
served or made a party defendant in an action,
has been substituted for another mistakenly
sued, and, after such substitution, appears by
wards question the jurisdiction of the court
counsel and contests the merits, it cannot after-
over it.

[Ed. Note.-For other cases, see Appearance,
Cent. Dig. § 79; Dec. Dig. 19(1).Ĵ
2. TRIAL 260(1)-INSTRUCTIONS-REFUSAL.
It is not prejudicial error to refuse special
thereof has been fully embodied in other re-
requests before argument, when the substance
quests given before argument, at the instance
of the same party.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. 260(1).]

[blocks in formation]

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 filed 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 raildetermine 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 far the spirit of our institutions has been fulfilled.

Writ refused.

NICHOLS, C. J., and DONAHUE, MAN, and JONES, JJ., concur.

for which particular defendant it does not appear. Immediately after such substitution counsel for the defendant asked the court to "direct the jury to return a verdict in its favor of no cause of action." This reNEW-quest was refused. Thereupon evidence was offered by the defendant in support of the de

« ForrigeFortsett »