State ex rel. Barber v. Rhodes

• Citation: 136 N.E.2d 60,165 Ohio St. 414
• Decision Date: 05 July 1956
• Docket Number: No. 34679,34679
• Parties: , 60 O.O. 58 The STATE ex rel. BARBER, Pros. Atty., Appellee, v. RHODES, Aud., et al., Appellants, et al.
• Court: United States State Supreme Court of Ohio

Page 414

165 Ohio St. 414

136 N.E.2d 60, 60 O.O. 58

The STATE ex rel. BARBER, Pros. Atty., Appellee, v. RHODES, Aud., et al., Appellants, et al.

No. 34679.

Supreme Court of Ohio.

July 5, 1956.

Syllabus by the Court

1. Section 2307.35, Revised Code, providing that an action against a public officer, for an act done by him in virtue or under color of his office or for neglect of his official duty, 'must be brought in the county where the cause of action or part thereof arose,' confers an absolute right on such an officer of which he may not be deprived, and the joinder of codefendants who reside outside the county where the cause of action arose does not deprive the officer of his right under this section.

2. In an action against the treasurer, auditor and clerk of courts of a county and the Auditor of State, the Treasurer of State and the state Director of Finance to enjoin the county officers from paying over taxes collected for the state until claimed overpayments by the county for the state's care of feeble-minded persons of such county are refunded, to temporarily enjoin the state officers from attempting such collections, and to require the state officers to make an accounting in connection with such overcharges, which action is brought in a county other than in which the Auditor of State, Treasurer of State and state Director of Finance have their official state offices, a motion to quash service of summons on such state officers, filed by them on the ground that Section 2307.35, Revised Code, requires the action to be brought in Franklin County, their official residence, and that the court is, therefore, without jurisdiction over such defendants, is properly sustained.

This cause originated in the Court of Common Pleas of Fulton County.

In his petition plaintiff alleges that he is the prosecuting attorney of Fulton County Ohio, and brings this action under favor of Section 309.12, Revised Code, Section 2921, General Code; that the defendants are James A. Rhodes, Auditor of the State of Ohio; Roger W. Tracy, Treasurer of the State of Ohio; Herbert D. Defenbacher, Director of Finance of the State of Ohio; S. M. Gorsuch, treasurer of Fulton County; Mabel Meeker, Clerk of the Common Pleas Court of Fulton County; and Earl Morr, auditor of Fulton County; that for the year 1931 the Treasurer of State and his predecessors in office charged and collected from Fulton County funds for the support of inmates in feeble-minded institutions of the state of Ohio who were committed from Fulton County; that said charges and collections were made on the basis of $5.50 per week for each such person committed to such institutions; that from 1931 to 1942, inclusive, said treasurer and his predecessors charged and collected from Fulton County funds for said purpose on the basis of $3.50 per week for each such person committed to such institutions; and that the total amount charged and collected for said years was $34,189.50.

Plaintiff alleges further that said rate was arbitrary and in excess of the actual cost of support of said inmates of such institutions for the years stated; that the cost of supporting said inmates from 1931 to 1939, inclusive, did not exceed an average of $3.05 per person per week; that from 1939 to 1942, inclusive, the cost of supporting each of said inmates did not exceed an average of $3.60 per week; that from the year 1931 to the year 1942, inclusive, the Treasurer of State charged and collected from Fulton County a net full charge, above the actual cost of maintenance for said inmates, of $28,408.64 and the further sum of $2,857.78 as overpayment by mistake, during the first half of the year 1931; that prior to 1944 the Board of County Commissioners of Franklin County instituted an action against the Auditor of State and the state Director of Finance in the Court of Common Pleas of Franklin County, praying for an accounting of the sums due by reason of overcharges; and that the county commissioners of Fulton County did not institute a like action but relied on an agreement with the Attorney General of Ohio that a like adjustment would be made for overpayments by Fulton County.

Plaintiff alleges further that in 1938 Fulton County was given a credit of $2 per week for each person committed to such an institution during the years 1932 to 1938, inclusive; that thereafter from 1939 to 1948 the state of Ohio failed, refused and neglected to perform the agreement; that in 1947 Fulton County received part payment on account of overcharges in the amount of $2,240.49; that the Treasurer of State still has in his possession $6,398.17, the balance of the sums theretofore received from Fulton County for the support of such inmates; that he refuses to apply such excess collection to the repayment to Fulton County for such support; that the sum of $6,398.17 has been illegally withdrawn from the treasury of Fulton County; that the Auditor of State, Treasurer of State and state Director of Finance have collected, are now collecting and will continue to collect from Fulton County moneys for the maintenance and operation of the Bureau of Inspection and Supervision of Public Offices and for compensation of state examiners and assistants, as well as for hospital care of crippled children, inheritance taxes, levy for bond retirement, taxes on real estate and personal property, sales tax, casual and use tax, notation of liens, auto titles, and other items normally due the state of Ohio from the treasurer, auditor and Clerk of the Common Pleas Court of Fulton County; that such sum will be placed in the state treasury and will be used for the purposes of the state of Ohio, although Fulton County, as hereinbefore stated, has now in the state treasury said sum of $6,398.17 for which it is entitled to credit from the state of Ohio; that the Auditor of State and state Director of Finance will illegally draw from Fulton County funds so allegedly due from Fulton County and said moneys will be misapplied, for all of which plaintiff has no adequate remedy at law; and that each of said defendants will perform each of said acts, although there is no sum due from Fulton County, unless restrained therefrom by order of the court.

Plaintiff alleges further that the treasurer of Fulton County, Clerk of the Common Pleas Court of Fulton County and auditor of Fulton County will, unless restrained by order of the court, issue warrants, pay and permit to be paid further and additional sums of money on the charges hereinbefore mentioned to the state of Ohio before receiving credit from the state for the sum due Fulton County from the state, for which plaintiff has no adequate remedy at law; and that all the defendants are necessary parties to a complete determination and settlement of the questions involved.

The prayer of the petition is for a temporary injunction enjoining the Auditor of State, Treasurer of State and state Director of Finance from collecting or attempting to collect any such funds due or claimed to be due the state of Ohio from Fulton County or from withholding any now due; that the treasurer of Fulton County, clerk of courts of Fulton County and auditor of Fulton County be enjoined from paying to the Auditor of State, Treasurer of State and state Director of Finance any such sums of money now due or to become due from Fulton County to the state, until further order of the court; that upon final hearing said injunction be made permanent until the money in the treasury of the state and the credits due Fulton County, as alleged herein, be properly applied; and that the Auditor of State, Treasurer of State and state Director of Finance be required to make an accounting of all funds in the treasury of the state, collected as hereinbefore stated.

The Auditor of State, Treasurer of State and state Director of Finance filed a motion in the Common Pleas Court of Fulton County to quash service of summons on them 'for no other purpose, and without submitting themselves to the jurisdiction of this court,' for the reason that Section 2307.35, Revised Code requires that this action be brought in Franklin County and the Common Pleas Court is without jurisdiction.

The Common Pleas Court of Fulton County sustained the motion to quash service of summons and dismissed the cause as to the Auditor of State, Treasurer of State and state Director of Finance.

An appeal was thereupon prosecuted to the Court of Appeals for Fulton County, and that court reversed the judgment of the Court of Common Pleas and remanded the cause for further proceedings.

The cause is before this court upon allowance of a motion of certify the record.

C. William O'Neill, Atty. Gen., and Joseph S. Gill, Columbus, for appellants.

John H. Barber, Pros. Atty., Wauseon, and Milton L. Farber, Columbus, for appellee.

HART, Judge.

The plaintiff claims that jurisdiction has been obtained over the defendant state officers by the issuance of process in this action and that they may be...