State ex rel. Crebs v. Court of Common Pleas of Wayne County, Probate Division, 73-919

• Citation: 67 O.O.2d 61,309 N.E.2d 926,38 Ohio St.2d 51
• Decision Date: 17 April 1974
• Docket Number: No. 73-919,73-919
• Parties: , 67 O.O.2d 61 The STATE, ex rel. CREBS, Appellant, v. COURT OF COMMON PLEAS OF WAYNE COUNTY, PROBATE DIVISION, et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 51

38 Ohio St.2d 51

309 N.E.2d 926, 67 O.O.2d 61

The STATE, ex rel. CREBS, Appellant, v. COURT OF COMMON PLEAS OF WAYNE COUNTY, PROBATE DIVISION, et al., Appellees.

No. 73-919.

Supreme Court of Ohio.

April 17, 1974.

A complaint was filed against appellant in the Common Pleas Court of Wayne County, Probate Division, charging him with misconduct in the office of village councilman, and asking that 'the proper statutory steps be pursued pursuant to Sections 733.72, and 733.78, Revised Code.'

Appellant's motion to dismiss the complaint, on the ground that 'the statutes under which the action is prosecuted are unconstitutional,' was denied by appellee judge.

A prohibition action was then instituted by appellant in the Court of Appeals to restrain the Court of Common Pleas, Probate Division, and the judge thereof, from proceeding with the misconduct action pending against him in that court. Appellees' motion to dismiss the complaint in prohibition was sustained, and the cause dismissed, the Court of Appeals holding that:

'Prohibition is not available to determine the constitutionality of a statute or ordinance, where the relator has, as he does here, an adequate remedy at law by way of appeal. Prohibition will not be granted, in advance of a trial, to test constitutionality, where the inferior court has jurisdiction independent of the statute in question, and may itself determine jurisdiction, and its decision is then subject to review on appeal.'

An appeal as of right brings the cause to this court for review.

Logee, Lehman & Veney and F. Emerson Logee, Wooster, for appellant.

Keith A. Shearer, Pros. Atty., for appellees.

PER CURIAM.

The judgment of the Court of Appeals is affirmed.

Appellant seeks to have the constitutionality of the statutes, under which the action against him was brought, determined in this prohibition action. However, the unconstitutionality of a statute does not deprive a court of the initial jurisdiction to proceed according to its terms. Appellant has other remedies in the ordinary course of the law and by way of appeal. Furthermore, prohibition cannot be used as a substitute for appeal. State ex rel. Rhodes v. Solether (1955), 162 Ohio St. 559, 124 N.E.2d 411. See State ex rel. Ellis v. McCabe (1941), 138 Ohio St. 417, 35 N.E.2d (1941), 138 Ohio St. 417, 35 N.E.2d

Judgment affirmed.

C. WILLIAM O'NEILL, C. J., and HERBERT, CORRIGAN, STERN, CELEBREZZE, WILLIAM B. BROWN and PAUL W. BROWN, JJ., concur.