No. 15074 | Ohio | Feb 29, 1916
The application by the relator for th'e 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
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 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 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
It has come to be well settled that an incumbent of a public office may employ the remedy by injunction 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, 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; Harding v. Eichinger, 57 Ohio St., 371, and Holbrook v. Smedley, 79 Ohio St., 391.
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
An injunction was prayed for and the court, in its opinion, say: “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. 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 de
The claim of the relator is that he himself on that day took the oath of office and entered on the discharge of its duties “by requesting and attempting to obtain a meeting of said board for the purpose of investigating 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 consistent holdings of this court, to an injunction 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 possession) 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
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 inquiry into the act of the state supervisor in removing Dowd. Even if this were conceded 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. The State, ex rel. Gongwer, v. Graves, 90 Ohio St., 311.
In this case it is sufficient to say that Dowd, in his petition in the court of common pleas, denied
It was not contemplated by the people, when they adopted the amendment referred to, that this court would interfere with the proper exercise by inferior courts of the functions and the jurisdiction conferred upon them under the provisions of the constitution. It was intended to be an efficient aid in preventing the abuse or usurpation of judicial functions. It was added to our jurisdiction when new and substantial limitations were made therein. It came with other fundamental matters, in response to what the people regarded as a need created by the changing experiences of our situation, to take its place in our constitutional system of checks and balances through which thus far the spirit of our institutions has been fulfilled.
Writ refused.