Wilson v. City of Cincinnati

• Decision Date: 07 June 1961
• Docket Number: No. 36738,36738
• Citation: 172 Ohio St. 303,175 N.E.2d 725
• Parties: , 16 O.O.2d 71 WILSON, Appellee, v. CITY OF CINCINNATI et al., appellants.
• Court: Ohio Supreme Court

Page 303

172 Ohio St. 303

175 N.E.2d 725, 16 O.O.2d 71

WILSON, Appellee, v. CITY OF CINCINNATI et al., appellants.

No. 36738.

Supreme Court of Ohio.

June 7, 1961.

Mark McElroy, Atty. Gen., William E. Fowler, Jr., Youngstown, Thomas C. spraul, James W. Farrell, Jr., city solicitor, and Henry P. Shaw, Cincinnati, for appellants.

Goodman & Goodman, Cincinnati, for appellee.

PER CURIAM.

The principal question raised by the appeal of the Director of Highways is whether the Court of Common Pleas of Hamilton County had jurisdiction to hear and determine this action as against him.

It is the contention of the director that, under the provisions of Section 5501.18, Revised Code, jurisdiction of this type of action against him rests solely in the Court of Common Pleas of Franklin County.

It is a fundamental principal of law that a state can be sued only with its consent.

Section 16, Article I of the Ohio Constitution, provides that 'suits may be brought against the state, in such courts and in such manner, as may be provided by law.'

This section, although authorizing the enactment of legislation to provide for actions against the state, is not self-executing and does not in and of itself authorize actions against the state. Wolf v. Ohio State University Hospital, 170 Ohio St. 49, 162 N.E.2d 475.

Section 5501.18, Revised Code, defining and limiting the jurisdiction of the courts in relation to actions against the Director of Highways, reads as follows:

'The director of highways shall not be suable, either as a sole defendant or jointly with other defendants, in any court outside Franklin county except in actions brought by a railroad company under section 4957.30 of the Revised Code, or by a property owner to prevent the taking of property without due process of law, in which case suit may be brought in the county where such property is situated, or in any action otherwise specifically provided for in Chapters 5501, 5503, 5505, 5511, 5513, 5515, 5517, 5519, 5521, 5523, 5525, 5527, 5529, 5531, and 5533, of the Revised Code.'

An examination of Section 5501.18, Revised Code, clearly shows that, with the exception of actions brought by railroads under certain provisions of the Code and actions by property owners to prevent the taking of their property without due process of law, all actions against the Director of Highways must be brought in Franklin County.

The effect of this section was considered by this court in State ex rel. Jaster v. Court of Common Pleas, 132 Ohio St. 93, 5 N.E.2d 174, 176, wherein Judge Day, at page 98, said:

'By virtue of section 1187, General Code [Section 5501.18, Revised Code], all actions against the Director of the State Highway Department must be brought in the courts of Franklin county, wherein is lodged exclusive jurisdiction over causes against him, and courts of any other county are wholly without jurisdiction to hear matters in which the director is sole defendant or defendant jointly with others. Any court assuming jurisdiction over such causes contrary to section 1187, General Code, does so without authority, and any judgment or decree which it may enter therein will be void and of no effect whatsoever.

"Want of jurisdiction of the cause, equally as much as want of jurisdiction of the person, may render a judgment or decree void * * *.' Buchanan v. Roy's Lessee, 2 Ohio St. 251, at 266, 11 Ohio Jurisprudence, 662, Section 19.'

Thus, this action as to the director can be maintained in Hamilton County only if it falls within the exception relating to the preventing of taking of property without due process.

Is this an action to prevent the taking of property? Obviously, it is not. The petition shows on its face that the property involved in the present action has already been taken and devoted to a public use, and that the present action is not one to prevent a taking but rather an action to recover compensation for a taking which is an accomplished fact. Therefore, the venue of such an action as to the director is clearly confined by Section 5501.18, Revised Code, to the Court of Common Pleas of Franklin County, and the Court of Common Pleas of Hamilton County committed prejudicial error when it failed to sustain the director's motion for dismissal for lack of jurisdiction.

We come now to a consideration of the question raised by the city of Cincinnati which relates as well to the Director of Highways, since the action of the trial court was directed to both defendants. This question is the right of the defendants to file answers in the present action. The trial court determined that this action is in the nature of an appropriation proceeding and that the only question to be submitted to the jury was the value of the property and in effect struck the answers of both defendants, giving them no right to defend as to plaintiff's right to collect compensation.

This brings us to a consideration of the nature of the present action. Although its nature is somewhat vague, it is clearly not an appropriation proceeding. An appropriation proceeding emantes from the public authority, all persons claiming title to the property are brought before the court, and the only question to be determined by the jury is the value of the property. Plaintiff, if he had desired, could have, by mandamus, compelled such proceeding by the public authorities here involved. State ex rel. McKay v....