State Ex Rel v. Clendening

• Decision Date: 11 December 1915
• Docket Number: 15038
• Citation: 112 N.E. 1029,93 Ohio St. 264
• Parties: The State, Ex Rel. Nolan, v. Clendening Et Al.
• Court: Ohio Supreme Court

112 N.E. 1029

93 Ohio St. 264

The State, Ex Rel. Nolan, v. Clendening Et Al.

15038

Supreme Court of Ohio

December 11, 1915

Writ of prohibition - Purpose and scope - Ultra vires jurisdiction - Removal for misconduct in office - Participation in referendum.

1. Under the Ohio constitution of 1912 the writ of prohibition was added to the original jurisdiction of the supreme court.

2. 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.

3. The writ may be invoked against inferior courts or inferior tribunals, ministerial or otherwise, that possess incidentally judicial or quasi-judicial powers, to keep such courts or tribunals within the limits of their own jurisdiction.

4. If such inferior courts or tribunals, in attempting to exercise judicial or quasi-judicial power, are proceeding in a matter wholly or partly outside of their jurisdiction, such inferior courts or tribunals are amenable to the writ of prohibition as to such ultra vires jurisdiction.

5. Where inferior courts or tribunals are vested with power to remove public officials upon the ground of misconduct in office and written charges are filed before them declaring and defining such misconduct, if such charges do not constitute misconduct in office under the constitution of Ohio or the statutes of the state in such case made and provided, such inferior courts or tribunals are exceeding their jurisdiction in that behalf and may be enjoined by such writ of prohibition, if there be no other adequate remedy.

6. In the case at bar none of the charges presented constitutes a legal charge of misconduct in office as known under the laws of Ohio, and by reason thereof the defendant board was without jurisdiction to hear and determine the same.

IN PROHIBITION.

This is an action for a writ of prohibition brought by John F. Nolan as relator, against the defendants, Byron M. ClenDening, M M. Rose and Frank Hay, as the state liquor licensing board of the state of Ohio.

Said relator was, on July 22, 1914, duly appointed as a commissioner on the Jefferson county liquor licensing board for a period of four years. He duly qualified for such position, assumed the duties of the same and was, at the time of the commencement of the suit, acting as such county commissioner.

On September 23, 1915, certain charges were filed before the state liquor licensing board of Ohio against said John F Nolan and others, as follows:

"No One -

"That John F. Nolan, being then and there a duly qualified and acting member of said county liquor licensing board, was then and there at the times mentioned, guilty of misconduct in office in taking part, other than by voting, in an election involving the prohibition and numerical limitation of saloons.

"No. Two -

"That the said John F. Nolan, on or about the twentieth day of August, 1915, and at divers times since said date, being a duly qualified and acting member of the county liquor licensing board of Jefferson county, in the state of Ohio, was then and there guilty of misconduct in office by reason of his acts and conduct as follows, to-wit:

"That he then and there engaged actively with divers other persons, many of whom were either liquor licensing officials under the laws of Ohio, or licensees engaged in the saloon business in said state, in the distribution and circulation of refer- endum petitions among the voters, and that he counseled and advised and requested licensees engaged in the saloon business in said county to circulate petitions and procure signatures of voters thereto for the purpose of calling a referendum election on what is known as the McDermott liquor licensing law, found in Vol. 106, Ohio Laws, page 560, which act amends the liquor licensing laws of Ohio under which his said office was held; that by reason of his influence of his office as such licensing official and by his counsel and request said petitions were placed in the hands of many licensees who were induced to procure signatures thereto, and the same were filed as provided by law with the secretary of state, causing such referendum election to become a part of the regular or general election in the state of Ohio to be held November 2, 1915; that said referendum election on said McDermott law and said regular or general election then and there involve the prohibition of the liquor traffic and the numerical limitation of saloons in Ohio; that said McDermott law, together with the liquor licensing laws which were amended by the enactment of the same, provides for the regulation of the liquor business and the licensing thereof in Ohio and for the limitation of saloons, and the prohibition of saloons in certain territory; and that at said regular election and as a part thereof, the question of adopting an amendment to the constitution prohibiting saloons and the selling of intoxicating liquors in Ohio is to be voted on by the electors, which said proposed amendment was duly initiated as prided by law prior to the acts herein complained of.

"No. Three -

"That John F. Nolan, being then and there a duly qualified and acting member of the county liquor licensing board of Jefferson county, Ohio, on or about the twentieth day of August, 1915, and at divers times thereafter was guilty of misconduct in office as such licensing official in that he unlawfully in pursuance of an arrangement and agreement with a member of the state liquor licensing board, and in pursuance of a common purpose and design with other licensing officials of the state of Ohio, then and there actively engaged in advising and counseling and procuring referendum petitions to be circulated by licensees engaged in the saloon business and other persons, for the purpose of securing a referendum election to be held on November 2, 1915, on what is known as the McDermott liquor licensing law passed by the eighty-first general assembly of Ohio, Vol. 106, Ohio Laws, page 560, and did in pursuance of such efforts in connection with such other licensing officials and licensees cause said petitions to be circulated and signed by a sufficient number of voters to bring about such referendum election, with the agreement, understanding and purpose of suspending and defeating such McDermott law and of procuring employment thereafter through the mutual aid and influence of such licensing officials as a member of the licensing board of said county; and in devoting the time of his said office and its influence in behalf of procuring such referendum he in- curred expense and paid money, the amount of which is unknown, for the purpose of procuring such petitions to be circulated and such referendum to be secured, and caused licensees engaged in the saloon business to become interested, along with himself, in bringing about such referendum, and that by such agreement, understanding and common design thus created between such licensees and such liquor licensing officials, the said John F. Nolan is incapacitated to perform the duties of his said office impartially and without prejudice in carrying into effect the letter and spirit of the liquor licensing system of Ohio.

"This twenty-third day of September, 1915. "C. A. REID."

By agreement of the parties an amendment was made to specification No. One in the following language:

"To-wit: A referendum election upon the McDermott law to be held at the coming state election in November, and being the same law and the same election referred to in the other specifications herein, and being the regular election to be held on November 2, 1915, at which said McDermott law is to be submitted."

While said charges were pending before the state liquor licensing board the petition in this case was filed alleging that said board had set October 25, 1915, at ten o'clock for a hearing of said charges against said relator; that he had received due notice of such fact; that said state liquor licensing board was without authority of law to hear said charges; that said charges were insufficient in law and unauthorized by the statute; that each and all of said charges constitute no ground upon which the relator may be removed from office as a member of the Jefferson county liquor licensing board, and that neither of said charges constitutes misconduct in office, bribery, incompetency, gross neglect of duty or gross immorality; that said charges, and each of them, are insufficient in law, and that said state liquor licensing board is without jurisdiction to hear and determine the same; that there was no legal remedy provided for reviewing the action of the state liquor licensing board under the revisory jurisdiction of the supreme court, and, therefore, no adequate remedy at law. Wherefore, the relator prays for the issuing of the writ of prohibition, forbidding and restraining the defendants from hearing and determining said charges so filed before said state board.

Mr. T. S. Hogan and Messrs. McGhee, Davis & Boulger, for relator.

Mr. Edward C. Turner, attorney general, and Mr. A. O. Dickey, for respondents.

WANAMAKER J.

The writ of prohibition is a writ new to Ohio jurisprudence. It was adopted in 1912 as a part of the judicial article and is found in Section 2, Article IV of the Constitution, in the following language:

"It [the supreme court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdic- tion in all eases involving questions arising under the constitution of the United States or of this state, in cases of felony on leave first obtained, and in cases which originated in the courts of appeals, and such revisory jurisdiction of the proceedings of...