State ex rel. Masterson v. Ohio State Racing Commission

• Decision Date: 07 December 1955
• Docket Number: No. 34433,34433
• Citation: 130 N.E.2d 829,164 Ohio St. 312
• Parties: , 58 O.O. 98 The STATE ex rel. MASTERSON et al. v. OHIO STATE RACING COMMISSION et al.
• Court: Ohio Supreme Court

Page 312

164 Ohio St. 312

130 N.E.2d 829, 58 O.O. 98

The STATE ex rel. MASTERSON et al. v. OHIO STATE RACING COMMISSION et al.

No. 34433.

Supreme Court of Ohio.

Dec. 7, 1955.

Syllabus by the Court.

1. The remedy of prohibition is a high prerogative remedy, to be used with great caution in the furtherance of justice, and a writ may, but ordinarily will not, be issued where there is a plain adequate remedy either in law or equity available to the relator.

2. The legitimate purpose and scope of the remedy of prohibition is to keep inferior tribunals within the limits of their own jurisdiction.

3. Prohibition will not lie to prevent the exercise of the jurisdiction of the Ohio State Racing Commission conferred by statute to issue permits to conduct horse racing for a stake, purse or award, with pari-mutuel or certificate type of wagering, within the state, on the ground that such commission is exceeding the powers conferred upon it by statute or that the statute conferring the power contravenes some provisions of the Ohio Constitution.

This is an action originating in this court to prohibit the respondent Ohio State Racing Commission from authorizing, permitting, or issuing any permits for conducting horse racing for a stake, purse, or award, with pari-mutuel or certificate type of wagering, within the state of Ohio, and expecially to prohibit the issuing of any such permits to tracks within 30 miles of each other, on the same date or dates.

The relators are Charles P. Masterson and Sophie Borek, citizens of the state of Ohio, and Georgeann Borek, Gerald Borek and Patrick Borek, citizens of Ohio and minors of tender years, by their mother and next friend, Sophie Borek, for and on behalf of the state of Ohio and all its citizens.

The relators allege that they are interested in the execution of the laws of the state of Ohio, in the upholding and enforcing of constitutional prohibitions and in the enforcing of public duties affecting themselves and citizens of Ohio generally; that Sophie Borek is the former wife and Georgeann, Gerald and Patrick Borek are children of John Eugene Borek, who had lost money by wagering at one of the race tracks for which a permit had been given by the respondent commission; that the commission was established pursuant to Section 3769.01 et seq., Revised Code, with power to prescribe rules and conditions under which horse racing for a stake or purse, with pari-mutuel or certificate type of wagering, shall be conducted in the state of Ohio, and, as authorized and restricted by the Horse Racing Act of Ohio, to determine to whom, for what date or dates, and for what track or tracks permits to conduct such horse racing shall be issued.

Relators allege further that at all times herein concerned Section 6 of Article XV of the Constitution of Ohio provided that 'lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this state'; that to conduct either pari-mutuel or certificate type of wagering is to conduct a lottery contrary to the Constitution of Ohio; that both the winners of the lottery and the amounts won are determined by chance; and that any attempted statutory authorization thereof is unconstitutional and void.

Relators allege further that they have no ordinary remedy at law to prohibit the operation of this illegal lottery and abuse of the power by the commission, and, therefore, pray the court for a writ of prohibition.

The issues are submitted on a demurrer to the petition.

George J. McMonagle, Cleveland, Robert E. Sweeney, Westlake, Philip Bartell, Cleveland, William E. Mahon, Bedford, William J. O'Neill, Cleveland, and Michael T. Gavin, for relators.

C. William O'Neill, Atty. Gen., Hugh A. Sherer and William A. Carroll, Columbus, for respondent Ohio State Racing Commission.

Brownfield & Malone, Columbus, for respondent Columbus Trotting Association, Inc.

Marshman, Hollington & Steadman, Cleveland, for respondent Randall Park Jockey Club, Inc.

Edward F. Hackett, London, for respondent Delaware County Agricultural Society.

HART, Judge.

Section 2, Article IV of the Constitution of Ohio, provides that the Supreme Court 'shall have original jurisdiction in quowarranto, mandamus, habeas corpus, prohibition and procedendo,' but the Constitution does not define any of these remedies.

The nature and extent of this court's jurisdiction in prohibition were first considered by this court in the case of State ex rel. Nolan v. Clen Dening, 93 Ohio St. 264, 112 N.E. 1029, wherein it was held:

'The writ of prohibition is a high prerogative writ to be used with great caution in the furtherance of justice, and only where there is no other regular, ordinary and adequate remedy.'

In the course of the opinion in that case, the remedy is defined and discusses as follows:

'The definition generally recognized in those jurisdictions in which this writ has long been in use is as follows:

"The writ of prohibition is an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior tribunal properly and technically denominated such, or to an inferior ministerial tribunal possessing incidentally judicial powers, and known as a quasi judicial tribunal, or even in extreme cases to a purely ministerial body, commanding it to cease abusing or usurping judicial functions. A writ of prohibition is a prerogative writ, to be used with great caution and forbearance for the furtherance of justice, and for securing order and regularity in all the tribunals where there is no other regular and ordinary remedy. The legitimate scope and purpose of the writ is to keep inferior courts within the limits of their own jurisdiction, and to prevent them from encroaching upon the jurisdiction of other tribunals.' 32 Cyc., 598. 'This writ is of English origin, being one of the great common-law prerogative writs long in use.' Id. note 2.

'High, in his excellent work Extraordinary Legal Remedies, clearly states the prevailing doctrine, wherever the writ is in general use, and enumerates three conditions necessary to warrant the granting of relief through the writ of prohibition. They are as follows:

"(1) That the court, officer, or person against whom it is sought is about to exercise judicial or quasi judicial power.

"(2) That the exercise of such power is unauthorized by law.

"(3) That it will result in injury for which no other adequate remedy exists." (Italics supplied in part.)

In the later case of State ex rel. Burtzlaff v. Vickery, Judges, 121 Ohio St. 49, 166 N.E. 894, 895, this court, in reviewing the nature of the high prerogative remedy of prohibition, said:

'* * * This court was given original jurisdiction by the constitutional amendment of 1912 in prohibition, but the Constitution does not define the nature of the writ, neither has the Legislature ever defined it. We must therefore look to the principles of the common law. The writ of prohibition has been defined in general terms as an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior tribunal commanding it to cease abusing or usurping judicial functions. Its legitimate scope and purpose is to keep inferior courts within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals.'

Not only in this state but in other jurisdictions, this definition and purpose of the writ are recognized and have been adopted. It is stated in 42 American Jurisprudence, 144, Section 8:

'In the absence of any statutory provision to the contrary, it is a general rule that prohibition, being an extraordinary writ, cannot be resorted to when ordinary and usual remedies provides by law are adequate and available.'

It is clearly apparent that the relators have an appropriate and adequate remedy in equity, and if they have such remedy they can not pursue the remedy of prohibition. They here seek to prevent the racing commission, an administrative agency, from exercising powers under what they claim is an unconstitutional statute. The remedy of injunction, legislatively defined as a 'command to do or refrain from doing a particular act', is clearly available under such circumstances. See Section 2727.01, Revised Code.

In the case of State ex rel. Harrison v. Perry, 113 Ohio St. 641, 150 N.E. 78, this court held:

'A writ of prohibition will not issue when a plain adequate remedy, either in law or in equity, is available to the applicant.'

In the course of his opinion in that case, Judge Robert H. Day said:

'It is a general principle relative to the extraordinary writ of prohibition that the writ will not issue where there is an adequate remedy at law, or in equity, readily available to the applicant, either by appeal, or writ of error, or any other writ, motion, or proceeding appropriate to the relief, such as injunction, mandamus, quo warranto, etc. * * *'

Again, in the case of State ex rel. MacDiarmid v. Eastman, 118 Ohio St. 121, 160 N.E. 626, in which was sought an order to prevent a board of park commissioners from a claimed illegal appropriation of real estate for...