Furnishings and Equipment for Judge, Courtroom and Personnel for Courtroom Two, In re

• Decision Date: 17 June 1981
• Docket Number: No. 80-1032,80-1032
• Citation: 423 N.E.2d 86,20 O.O.3d 367,66 Ohio St.2d 427
• Parties: , 20 O.O.3d 367 In re FURNISHINGS AND EQUIPMENT FOR the JUDGE, COURTROOM AND PERSONNEL FOR COURTROOM TWO.
• Court: Ohio Supreme Court

Page 427

66 Ohio St.2d 427

423 N.E.2d 86, 20 O.O.3d 367

In re FURNISHINGS AND EQUIPMENT FOR the JUDGE, COURTROOM AND PERSONNEL FOR COURTROOM TWO.

No. 80-1032.

Supreme Court of Ohio.

June 17, 1981.

Syllabus by the Court

When a judge undertakes to enforce his ex parte order, directing a board of county commissioners to purchase furnishings and equipment reasonably necessary for the proper and efficient operation of the court, by proceedings in contempt, the board has a remedy by way of appeal only from the finding and order in the contempt proceedings. (State, ex rel. Edwards, v. Murray, 48 Ohio St.2d 303, 358 N.E.2d 577, explained and followed; Bd. of Commrs. v. Harshman, 101 Ohio St. 529, 130 N.E. 935, approved and followed.)

On November 30, 1979, appellant, Judge Donald D. Simmons of the Court of Common Pleas of Wood County, entered a "Journal Entry and Order" directing appellees, the Board of County Commissioners and the Auditor of Wood County, to purchase, without competitive bidding, certain furnishings and equipment that appellant had ordered from David A. Sanders, Inc., for use in connection with Courtroom Two of the Wood County Courthouse. In this ex parte order, appellant found that a real and present emergency existed because construction was soon to be completed on Courtroom Two and there was no suitable or available equipment and furnishings for the courtroom, jury room, judge's chambers, and that the need and cost of these items had not been budgeted with the cost of the construction and renovation project.

On December 21, 1979, Judge Simmons entered a second order in response to a letter he had received that day from the board of county commissioners, in which they indicated they would not comply with the court's order of November 30. In the second order, appellant ordered appellees to appear in court on January 7, 1980, for a hearing to determine whether appellees would comply with the order of November 30 and to show cause why the commissioners should not be punished for their apparent contempt of court.

On December 31, 1979, appellees filed a notice of appeal from the November 30 judgment entry and order, and a motion for a stay of enforcement of judgment pending appeal without a supersedeas bond. Appellees, on the same day, also filed a writ of prohibition to prohibit the proposed January 7 proceedings. The Court of Appeals dismissed the complaint for a writ of prohibition ¹ and granted a stay of enforcement of the November 30 order pending appeal without supersedeas bond.

In a split decision, the Court of Appeals reversed the trial court. The majority found that Judge Simmons did not have the authority to issue the ex parte order of November 30 ordering appellees to purchase the furnishings and equipment for Courtroom Two without competitive bidding. The court determined that the remedy the judge should have sought to compel such purchases was a writ of mandamus.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Middleton, Roebke & Rayle and Max E. Rayle, Bowling Green, for appellant.

Hayward, Cooper, Straub, Walinski & Cramer, John F. Hayward and Jacqueline M. Boney, Toledo, for appellees.

PAUL W. BROWN, Justice.

The Court of Appeals held that mandamus is the only proper remedy by which a judge can compel a board of county commissioners to purchase furnishings and equipment necessary for the proper and efficient operation of the court. Such a conclusion is incorrect. This court has repeatedly held that when a board of county commissioners refuses to appropriate funds or provide quarters and equipment reasonably requested by the court, a judge may seek to enforce his order by way of mandamus or by proceedings in contempt. In re Appropriation for 1979 (1980), 62 Ohio St.2d 99, 100, 403 N.E.2d 974; State, ex rel. Edwards, v. Murray (1976), 48 Ohio St.2d 303, 358 N.E.2d 577; Zangerle v. Court of Common Pleas (1943), 141 Ohio St. 70, 46 N.E.2d 685. The Court of Appeals believed that this prior law, allowing the court to enforce its order by proceedings in contempt, was changed by the enactment of R.C. 307.01(B). ² That statute, however, is essentially identical to R.C. 2151.10, which was found to be unconstitutional in the recent case of State, ex rel. Johnston, v. Taulbee (1981), 66 Ohio St.2d 417, 423 N.E.2d 80. ³

For the reasons expressed in State, ex rel. Johnston, v. Taulbee, we find R.C. 307.01(B) to be unconstitutional. Thus, appellant did not err in ordering appellees to appear at a hearing at which they could show cause why they should not be held in contempt for refusing to comply with the order.

Courts possess all powers necessary to secure and safeguard the free and untrammeled exercise of their judicial functions. State, ex rel. Foster, v. Bd. of County Commrs. (1968), 16 Ohio St.2d 89, 242 N.E.2d 884, paragraph two of the syllabus; Zangerle, supra. However, because an equal branch of the government may not impinge on the authority and rights of the other branches, a court cannot exercise its inherent power to order a board of county commissioners to act unless the court's order is reasonable and necessary for the proper and efficient operation of the court. State, ex rel. Finley, v. Pfeiffer (1955), 163 Ohio St. 149, 126 N.E.2d 57. It is, therefore, important that a reviewing court have a complete record of the proceedings below so that it can determine if the trial court abused its discretion in ordering the board of county commissioners to act. It is especially important for the board of county commissioners to ensure that there is a full record because it is incumbent upon the board to point out errors that affirmatively appear in the record. Otherwise, all reasonable presumptions consistent with the record will be indulged in favor of the regularity and legality of the proceedings below. Cf. Beach v. Sweeney (1958), 167 Ohio St. 477, 150 N.E.2d 42; In re Sublett (1959), 169 Ohio St. 19, 157 N.E.2d 324; Cleveland v. Whipkey (1972), 29 Ohio App.2d 79, 88, 278 N.E.2d 374; 4 Ohio Jurisprudence 3d, Appellate Review, Sections 248, 552 and 553. In the instant cause, however, the reviewing court need not infer the reasonableness of appellant's order from the failure of appellees to bring facts into the record from which an abuse of discretion could be discerned because appellant's order of November 30 was not a final appealable order.

When a judge undertakes to enforce his order by proceedings in contempt, instead of by way of mandamus, a board's remedy is by way of appeal from a finding of contempt. State, ex rel. Bd. of County Commrs., v. Juvenile Division (1978), 54 Ohio St.2d 113, 374 N.E.2d 1369; State, ex rel. Edwards, supra; Bd. of Commrs. v. Harshman (1920), 101 Ohio St. 529, 130 N.E. 935. ⁴ Until there is a finding and order in the contempt proceedings, there is no final appealable order.

For the foregoing reasons we dismiss the appeal.

Appeal dismissed.

FRANK D. CELEBREZZE, C. J., and COOK, SWEENEY, LOCHER and REILLY, JJ., concur.

HOLMES, J., concurs in the judgment.

COOK, J., of the Eleventh Appellate District, sitting for WILLIAM B. BROWN, J.

REILLY, J., of the Tenth Appellate District, sitting for CLIFFORD F. BROWN, J.

HOLMES, Justice, concurring in judgment.

I concur in the judgment in this matter, but, in so doing, I feel it necessary to comment on a number of points discussed in the majority opinion.

First, I must note that I believe R.C. 307.01(B) to be constitutional, and so stated in my concurrence in State, ex rel. Johnston, v. Taulbee (1981), 66 Ohio St.2d 417, 423 N.E.2d 80. Therefore, the procedures set forth in such section of law should have been followed in the first instance. Under such section, if the county commissioners for any reason do not comply with the budget request of the court, the judge may bring a mandamus action in the Court of Appeals of the district.

I am in agreement with the majority that this court has previously held that where the board of county commissioners fails, or refuses, to comply with an ex parte order of the common pleas court requesting certain furnishings and equipment, the judge may enforce his order by way of mandamus or by proceedings in contempt. In re Appropriation for 1979 (1980), 62 Ohio St.2d 99, 403 N.E.2d 974; State, ex rel. Edwards, v. Murray (1976), 48 Ohio St.2d 303, 358 N.E.2d 577; Zangerle v. Court of Common Pleas (1943) 141 Ohio St. 70, 46 N.E.2d 685. However, it is my view that the enactment of R.C. 307.01(B) has not changed the possible alternative routes of the common pleas court to test the determination of the board of county commissioners. As stated, the common pleas court may still proceed to mandamus where upon submission of a budget request the commissioners have failed to comply. Also, the statute makes specific reference to the exercise of the common pleas court of its contempt powers by using the following language:

" * * * If, prior to the filing of an action under Chapter 2731. of the Revised Code or during the pendency of the action, any judge of the court exercises the contempt power of the court of common pleas in order to...