Ohio Bell Tel. Co. v. Ferguson

• Decision Date: 23 January 1980
• Docket Number: No. 79-935,79-935
• Citation: 399 N.E.2d 1206,15 O.O.3d 117,61 Ohio St.2d 74
• Parties: , 15 O.O.3d 117 The OHIO BELL TELEPHONE CO. v. FERGUSON, Auditor et al.
• Court: Ohio Supreme Court

Page 74

61 Ohio St.2d 74

399 N.E.2d 1206, 15 O.O.3d 117

The OHIO BELL TELEPHONE CO. v. FERGUSON, Auditor et al.

No. 79-935.

Supreme Court of Ohio.

Jan. 23, 1980.

Pursuant to the authority granted in R.C. 125.02, the Ohio Department of Administrative Services ("department") contracts for and superintends the telephone and telegraph system for state departments, offices, and institutions. The Ohio Bell Telephone Company, relator herein, is under contract with the state to supply these telecommunication services. In compliance with its contract, relator provides the department with monthly bills which reflect, inter alia, detailed billing information on long distance telephone calls charged to the state's system, which information reflects both the number from which the call originated and the number called.

Relator further provides the department, on a monthly basis, magnetic computer tapes designated as: equipment records, toll usage records, and WATS/FX message detail records. These tapes exclusively reflect all the information contained in the monthly bills in addition to details on WATS/FX calls. The magnetic computer tapes are used by the department in the allocation of charges for telecommunication services among the various state departments, agencies, courts, and legislative bodies. After the allocation process the department supplies to each of the various state agencies and departments a computer print-out reflecting the amount of telecommunication services charged to the agency or department. The computer print-out lists the type call, type code, numbers and charged amount allocated to each such agency and department. Each agency and department then presents the computer print-out to the Auditor of State as a voucher for the payment of the charges shown thereon.

On June 20, 1979, respondents (Thomas E. Ferguson, Auditor of State, and Don C. Soliday, State Examiner, Bureau of Inspection and Supervision of Public Offices) caused a subpoena duces tecum to issue to the relator, which subpoena requested the equipment records tape, toll usage records tape, and WATS/FX message detail records tape for the period of June 1, 1979, to June 30, 1979, inclusive. The subpoena required the aforesaid tapes to be produced by July 16, 1979. Relator has refused to comply with the subpoena duces tecum issued to it. ¹

Relator brought this original action in prohibition in this court to prohibit the respondents from taking any further action with respect to the subpoena duces tecum.

Crabbe, Brown, Jones, Potts & Schmidt, Charles E. Brown, and Ira Owen Kane, Columbus, for relator.

William J. Brown, Atty. Gen., and Cynthia E. Wayland, Columbus, for respondents.

PER CURIAM.

The writ of prohibition is an extraordinary writ and is issued only in cases of necessity arising from the inadequacy of other remedies. Three conditions must exist to support the issuance of the writ: (1) the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) it will result in injury for which no other adequate remedy exists. See, e. g., State ex rel. Bell v. Blair (1975), 43 Ohio St.2d 95, 330 N.E.2d 902, State ex rel. Lehmann v. Cmich (1970), 23 Ohio St.2d 11, 260 N.E.2d 835; State ex rel. Masterson v. Ohio State Racing Comm. (1955), 164 Ohio St. 312, 130 N.E.2d 829.

Respondents allege that the power to issue the subpoena is by way of the statutory authority in R.C. 117.03, which grants a state examiner the power, inter alia, to issue a subpoena in an appropriate instance. Respondents fail to read that power in conjunction with the entirety of R.C. Chapter 117. R.C. 117.01 provides, in pertinent part:

"This section creates the bureau of inspection and supervision of public offices, in the office of the auditor of state, which bureau shall inspect and supervise the accounts and reports of all state offices as provided in sections 117.01 to 117.19, of the Revised Code, including every state educational, benevolent, penal, and reformatory institution, public institution, and the offices of each taxing district or public institution in the state. The bureau may examine the accounts of every private institution, association, board, or corporation receiving public money for its use, and may require of them annual reports in such form as it prescribes. * * * "

Also relevant to this cause is R.C. 117.09 ², which authorizes a biennial examination by the Bureau of Inspection and Supervision of Public Offices.

It is uncontested that respondents' actions in issuing the subpoena in this case are in the exercise of a quasi-judicial power. State ex rel. Robusky v. Chicko (1967), 11 Ohio App.2d 235, 230 N.E.2d 134, reversed on other grounds (1969), 17 Ohio St.2d 1, 244 N.E.2d 478. This court has held that the R.C. 117.03 subpoena power is to be used to facilitate the comprehensive biennial examination required by R.C. 117.09, and is not to be used for "spot-check" investigations. Lindley v. Ferguson (1977), 52 Ohio St.2d 60, 369 N.E.2d 482. Respondents have never contended that the subpoena was issued pursuant to such a biennial examination. Clearly, then, respondents have...