State Ex Rel v. Brough

• Decision Date: 29 February 1916
• Docket Number: 15074
• Citation: 113 N.E. 683,94 Ohio St. 115
• Parties: State, Ex Rel. Garrison, v. Brough Et Al.
• Court: Ohio Supreme Court

113 N.E. 683

94 Ohio St. 115

State, Ex Rel. Garrison, v. Brough Et Al.

15074

Supreme Court of Ohio

February 29, 1916

Writ of prohibition - Purpose and scope - Confined to jurisdictional questions - Injunction - Title to and possession of public office.

1. The writ of prohibition is an extraordinary legal remedy whose object is to prevent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction of a matter beyond its cognizance. The writ cannot be made to serve the purpose of a writ of error to correct mistakes of the lower court in deciding questions of law within its jurisdiction.

2. The power to award writs of prohibition having been conferred on this court by the constitution, and that instrument having provided that no law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of this court, the power will always be exercised where it clearly appears that a court or tribunal whose action is sought to be prohibited has no jurisdiction of the cause or is about to exceed its jurisdiction.

3. The remedy by injunction cannot be employed to try the title to a public office, hut it may be resorted to by one in possession of a public office, under color of title, to protect his possession against the interference of an adverse claimant whose title is in dispute until the latter shall establish his title by law. (Reemelin v. Mosby, 47 Ohio St. 570 approved and followed.)

IN PROHIBITION

In this cause an application for a writ of prohibition against the court of common pleas of Lucas county and two of its judges Hon. Bernard F. Brough and Hon. Byron F. Ritchie, was filed to prevent further action in a proceeding in injunction pending in that Court, which was brought by John W. Dowd against Raymond T. Garrison.

Dowd was appointed a deputy state supervisor of elections of Lucas county on May 1, 1912, for a four-year term.

It is set forth in the petition filed in this court that on October 27, 1915, the secretary of state, as state supervisor of elections, removed Dowd for cause, and issued a certificate of appointment to Garrison as his successor for the unexpired term.

The petition sets forth in full detail all of the steps leading up to the removal of Dowd by the state supervisor, and alleges that they were all taken in full compliance with the statutes.

It is further alleged that Garrison at once qualified as the successor of Dowd and presented himself at the rooms of the board of deputy state supervisors as a member, and that he is now a de facto deputy state supervisor and inspector of elections and a member of said board de facto, and became and was and is vested with color of right to hold said office as against said Dowd until it shall be determined by a court of competent jurisdiction in appropriate proceedings that said order of removal was null, illegal and void.

The petition herein then alleges that on October 28, 1915, which was the day following the alleged removal, said Dowd brought a proceeding in the court of common pleas of Lucas County against Garrison, as defendant praying for an injunction restraining Garrison "from interfering with said Dowd in the exercise of the duties of deputy state supervisor and inspector of elections, and from appearing at the office of said board, demanding said Dowd to vacate said office, and from in anywise obstructing interfering with or hindering said Dowd in the performance of said duties;" that in his petition for an injunction Dowd "alleged the opinion and conclusions that he was then a duly appointed, qualified and acting deputy state Supervisor and inspector of elections for said County and a member of said board, that his term would not expire until May 1, 1916; that he had not vacated said office, nor relinquished his rights therein or the exercise of the powers and duties thereof," and that Dowd's petition then proceeded to allege that he was summarily, arbitrarily and illegally removed pursuant to certain alleged fraudulent arrangements and contrivances by which pretended charges were to be and were alleged to have been presented against him.as a justification for said removal.

The petition herein then further alleges that a temporary injunction was attempted to be granted by said Brough defendant; that a motion to dissolve the same was overruled and that unless prohibited by the order of the court the defendants would proceed with the hearing of the cause and the granting of a permanent injunction.

It is then alleged in the petition for prohibition that said steps have been, are and will be in flagrant excess and abuse of the legitimate jurisdiction of said court and judges, for the reason that the relator was a de facto officer and that said Dowd was not a de facto officer, but a mere pretender.

The defendants in the proceeding in this court, by their answer and return, set forth a transcript of the proceedings in the court of common pleas of Lucas county, which is here referred to in the petition for prohibition, with the exception of the testimony taken on the hearing of the motion to dissolve the temporary injunction.

The answer alleges that the defendants herein never assumed or attempted to exercise, and they would not assume or attempt to exercise, jurisdiction in said suit further than to enjoin said Raymond T. Garrison, defendant in said suit, from interfering with said John W. Dowd in the performance by Dowd of the duties and the exercise of the power incident to the office of a member of the board of state supervisors and inspectors of election of Lucas County, while said Dowd was in possession of said office, exercising such powers and performing such duties, and only until said Raymond T. Garrison should establish his title to said office, if title he has thereto, in an action at law, as required by the laws of Ohio for trying title to public office, or until the possession of said John W. Dowd should be otherwise terminated according to law.

The opinion of the judge overruling the motion referred to was also attached to the answer.

It is further alleged that the defendants have at all times refrained and will continue to refrain from assuming any jurisdiction in said suit to try the claimed title of said Dowd or said Garrison to the office referred to, and also that the defendants have proceeded in said suit with all reasonable dispatch.

The petition in the case of Dowd v. Garrison, a copy of which is attached to the answer, after alleging the appointment and qualification of Dowd and the date of the expiration of his term, and that he is now, and ever since his appointment has been, a duly appointed, qualified and acting deputy state supervisor, proceeds to set forth in full detail a certain alleged agreement and conspiracy to trump up, file and sustain charges for the removal of said Dowd by the state supervisor of elections.

It is alleged that said action was wilfully, knowingly and maliciously taken against the plaintiff and in disregard of his rights and in pursuance of the conspiracy referred to.

After setting out the alleged plan for the preparation and filing of said alleged false charges, the petition averred as follows:

"It was arranged, agreed and understood between said parties so conspiring as aforesaid that upon the filing of said false charges aforesaid said Hildebrant would pretend to give the plaintiff a fair and impartial hearing upon said charges and to carry out said appearances would send to plaintiff a copy of said charges and appoint a day and hour at which plaintiff would be required to appear before him at his office in the capitol building of Co- lumbus, Ohio, but that said Hildebrant would wilfully and knowingly with the consent and at the request of said other parties so conspiring with him as aforesaid and in disregard of plaintiffs rights in that behalf appoint as the time for said hearing the hour of one o'clock P. M. of Tuesday September 7, 1915, at which time said parties so conspiring as aforesaid, knew that it would be in,possible for plaintiff to secure the attendance of any of his material witnesses in his behalf to meet and defend against said charges, it being the fact, as said parties so Conspiring as aforesaid well knew, that said Mccarthy, Dennis and Van Loo and one Dennis F. Sullivan, deputy clerk of said board, and one, Austin Gibbons, clerk and stenographer of said board, each of whom was a material witness for plaintiff in his defense to said charges and without whom or any of them he could not safely have gone to said hearing, were compelled to remain on duty in their respective positions aforesaid for the purpose of conducting a special election in Springfield township, Lucas county, Ohio, throughout said day of September 7, 1915, and to make a complete preparation, that is, provide and have provided the necessary ballots, place and locate the necessary election booths and furnish all necessary supplies to the election officers in said booths and fill vacancies of booth officials in the 249 voting...