Johnson v. Preston

• Decision Date: 27 December 1967
• Docket Number: No. 41071,41071
• Citation: 233 N.E.2d 132,12 Ohio St.2d 100
• Parties: , 41 O.O.2d 407 JOHNSON, Appellant, v. PRESTON, Director of Highways, Appellee.
• Court: Ohio Supreme Court

Page 100

12 Ohio St.2d 100

233 N.E.2d 132, 41 O.O.2d 407

JOHNSON, Appellant, v. PRESTON, Director of Highways, Appellee.

No. 41071.

Supreme Court of Ohio.

Dec. 27, 1967.

Syllabus by the Court

1. The failure to apply for a vacation or modification of an injunction will not bar the defendant from showing a change of law which will justify his acts contrary to the literal provisions thereof.

2. Where the Director of Highways has been permanently enjoined from appropriating real property adjacent to a limitedaccess highway for a rest area for the reason that there existed no statutory authority for the taking of the property for such purpose, the subsequent entry of the director on the same premises for the same purpose under authority of a subsequent legislative enactment does not constitute a violation of the injunction.

Elmer C. Myers and Alfred H. Johnson, Cleveland, for appellant.

William B. Saxbe, Atty. Gen., and I. Charles Rhoads, Columbus, for appellee.

SCHNEIDER, Judge.

It appears that on January 7, 1964, in an appeal on law and fact, the Court of Appeals for Medina County (1 Ohio App.2d 62) ordered the Director of Highways 'enjoined permanently from appropriating the lands of Flora L. Johnson * * * for use as a rest area.'

The instant proceeding was commenced in that court on February 17, 1967, by a motion for a citation against the director for contempt of the injunction by reason of two acts on his part, as set forth in the affidavit supporting the motion: (1) entering the property to make a survey; and (2) instituting, on May 17, 1966, an action in the Common Pleas Court of Medina County to appropriate the property for a rest area. (Although that purpose is not specifically mentioned in the affidavit, nor does it appear in the record, the argument of appellant is pregnant with the admission that such was, in fact, the purpose of the appropriation.)

The appellant concedes that the Court of Appeals was entirely correct in finding that the director obviously did not violate its order in entering the lands to make a survey. In so doing, he was patently authorized by Section 5517.01, Revised Code, and he was previously restrained only from taking the lands as a rest area.

However, both parties apparently disagree with the finding of the Court of Appeals that the 'legality' of the pending appropriation proceeding was not before it in this cause. So, to a degree, do we. Therefore, in affirming the judgment of that court, we will attempt to terminate the controversy between the parties on the issue which is before us, as the court below should have done.

In the opening paragraph of the order of January 7, 1964, the court found 'that no statutory provision exists whereby the Director of Highways is vested with authority to appropriate property adjacent to the right of way of a limited-access highway for use as a rest area.' Thus, there is no need to search collaterally for the premise of the injunction. It carries that within its terms as well as the basis of its own extinction, i. e., subsequent legislative action permitting the Director of Highways to appropriate lands for a rest area. That has been accomplished by the amendment of Section 5501.11, Revised Code, effective October 30, 1965 (131 V. 1257, 1735).

It has been announced, correctly, we think, that a perpetual injunction merely enjoins the defendant from doing the act complained of, provided the conditions and the rights of the parties remain the same; and that, where, after the entry of the injunction, the rights of the parties have changed, the injunction may thereby be nullified and a violation thereof may not constitute a contempt of court. State, ex rel. Snepp, v. Michael, 12 Ohio Dec. 674, 676. Nor can an injunction be elevated above its own terms or the circumstances from which the court derived its jurisdiction to decree it in the first instance. See Ohio Society of Professional Engineers v. Hulslander, 86 Ohio App. 497, 502, 89 N.E.2d 119.

Certainly, if the situation here were reversed, that is to say, if the state r a local agency thereof had obtained an injunction against the use of appellant's lands in violation of a statute or ordinance enacted in the exercise of the sovereign power, we cannot imagine appellant conceding the vitality of that injunction to extend beyond the repeal of the statute or ordinance (cf., however, Harford v. Degenhart, 26 Ohio Law Abst. 183), and that she could be held thereafter for contempt in acting contrary to its terms merely because she did not first procure its vacation or modification as a consequence of the repeal.

In affirming the judgment in this case on the basis of the foregoing statements, we necessarily decide that the viability of an injunction may be decided in a proceeding seeking a citation for contempt thereof, and that the failure to apply for a vacation or modification of the injunction will not bar the defendant from showing a change of law or fact to excuse or justify his acts contrary to the literal provisions thereof. However, we should raise the caveat that, in so proceeding to act, the defendant does so at his peril and with an assumption of the risk that his duties as a result of, and the plaintiff's rights in, the injunction have not in law or in fact been altered. See State, ex rel. Beil, v. Dota, 168 Ohio St. 315, 154 N.E.2d 634.

Judgment affirmed.

TAFT, C. J., and ZIMMERMAN...