State ex rel. City of Cincinnati v. Butler Water Conservancy Dist.

• Decision Date: 02 February 1966
• Docket Number: No. 38578,38578
• Citation: 34 O.O.2d 185,214 N.E.2d 86,5 Ohio St.2d 80
• Parties: , 34 O.O.2d 185 The STATE et rel. CITY OF CINCINNATI et al. v. BUTLER WATER CONSERVANCY DISTRICT.
• Court: Ohio Supreme Court

Page 80

5 Ohio St.2d 80

214 N.E.2d 86, 34 O.O.2d 185

The STATE et rel. CITY OF CINCINNATI et al. v. BUTLER WATER CONSERVANCY DISTRICT.

No. 38578.

Supreme Court of Ohio.

Feb. 2, 1966.

Syllabus by the Court

1. A municipal corporation may not invoke the original jurisdiction of the Supreme Court in quo warranto for the purpose of protecting its rights in real property. (State ex rel. Lindley v. The Maccabees, 109 Ohio St. 454, 142 N.E. 888, and State ex rel. Silvey v. Miami Conservancy Dist. Co., 100 Ohio St. 483, 128 N.E. 87, followed.)

2. A prosecuting attorney may not invoke the original jurisdiction of the Supreme Court in quo warranto against a conservancy district that is neither doing nor asserting a right to do anything in the county of such prosecuting attorney. (Paragraph two of the syllabus in State ex rel. Finley, Pros. Atty. v. Lodwich, 137 Ohio St. 329, 29 N.E.2d 959, 131 A.L.R. 1205, followed.)

3. Where it appears from the allegations of a petition seeking to invoke the original jurisdiction of the Supreme Court in quo warranto that the action is not being maintained on the relation of a relator who has the right to invoke the original jurisdiction of the Supreme Court in quo warranto, the Supreme Court should on its own motion dismiss the action.

This original action in quo warranto was instituted in this court on December 26, 1963, by the filing of a petition in the name of the state, on relation of the city of Cincinnati, against the Butler Water Conservancy District as respondent.

The petition alleges that 'respondent * * * is a conservancy district, incorporated under * * * the Conservancy Act of Ohio, Chapter 6101 et seq. * * * Revised Code, comprising * * * townships * * * in Butler County'; that 'respondent * * * has usurped and now clsims and is attempting to exercise in contravention of law, the following franchise, power and privilege, to-wit: Those rights and powers granted to conservancy districts'; that 'respondent * * * has filed an action in the Common Pleas Court of Butler County * * * claiming under provisions of Section 6101 et seq. * * * the power, privilege and right to prevent the relator, through its water department, from using its property located within the Butler Water Conservancy District for waterworks purposes'; that 'respondent is seeking to enjoin the relator from using relator's lands and rights located within the Butler Water Conservancy District, and is attempting to prevent the relator * * * from using its property under claim of authority of the Conservancy Act of Ohio, and in contravention of the rights of the relator as provided by the Constitution and statutes of Ohio'; that 'respondent claims the power to prevent the relator from taking water from wells drilled on relator's own property'; that 'respondent * * * has asked he Common Pleas Court of Butler County in cause No. 80379, to enjoin the relator * * * from using its property for waterworks purposes and to declare that the respondent has power to control the use of the lands within its territorial limits'; 'that the franchise power and privilege that the Butler Water Conservancy District * * * claim, and are attempting to claim, are in contravention of law' because 'respondent is one of four conservancy district claiming under the Conservancy Act authority over lands owned by the relator,' 'respondent * * * was * * * created to specifically attempt to prevent the relator * * * from using wells on its property within Butler County' and 'respondent' * * * was not properly organized under the Conservancy Act, and is claiming the franchise, power and privileges of a conservancy district without authority in law'; that 'respondent * * * claims * * * the right, power, privilege and franchise to prevent the relator from using wells located on relator's lands [in Butler County] for water supply purposes'; that 'there is no provision of the Conservancy Act permitting the respondent to control the taking of water from the aquifer underlying relator's lands'; and that 'the Conservancy Act is limited to surface waters.'

Such relator prays 'that the respondent * * * be compelled to answer the state * * * by what warrant it claims to have, use and enjoy the power, privileges and franchise as aforesaid, and that the respondent * * * be ousted from using and exercising the same.'

On June 3, 1964, respondent filed an answer to the foregoing petition.

On January 5, 1965, by agreement of the parties, this court made an order granting the 'prosecuting attorney for Hamilton County * * * leave to be made a party relator on behalf of the state of Ohio, Hamilton County and the city of Cincinnati.'

Thereafter, a reply was filed by the city of Cincinnati as relator on February 19, 1965. From the record, it does not appear that any pleading has ever been filed by the prosecuting attorney for Hamilton County as relator although he does appear as a relator in the caption to the brief and reply brief of relators filed on September 22, 1965, and December 16, 1965, respectively, and has signed those briefs as prosecuting attorney for Hamilton County.

William A. McClain, City Sol., Lyle W. Castle, Cincinnati, Clyde E. Lewis, Delaware, Ohio, Melvin G. Gueger, Pros. Atty., and Raymond C. Wetherell, Cincinnati, for relators.

Robert L. Marrs and John Richard Moser, Hamilton, for respondent.

TAFT, Chief Justice.

At the outset it may be noted that the petition discloses the pendency in the Common Plead Court of...