Opinion
No. 38578
Decided February 2, 1966.
Quo warranto — Parties relator — Municipal corporation — Prosecuting attorney — Without authority to invoke original jurisdiction of Supreme Court, when — Action against conservancy district — Dismissal sua sponte
1. A municipal corporation may not invoke the orginal jurisdiction of the Supreme Court in quo warranto for the purpose of protecting its rights in real property. ( State, ex rel. Lindley, v. Maccabees, 109 Ohio St. 454, and State, ex rel. Silvey, v. Miami Conservancy Dist. Co., 100 Ohio St. 483, followed.)
2. A prosecuting attorney may not invoke the original jurisdiction of the Supreme Court in quo warranto against a conservancy district that is neither doing nor asserting a right to do anything in the county of such prosecuting attorney. (Paragraph two of the syllabus in State, ex rel. Finley, Pros. Atty., v. Lodwich, 137 Ohio St. 329, followed.)
3. Where it appears from the allegations of a petition seeking to invoke the original jurisdiction of the Supreme Court in quo warranto that the action is not being maintained on the relation of a relator who has the right to invoke the original jurisdiction of the Supreme Court in quo warranto, the Supreme Court should on its own motion dismiss the action.
IN QUO WARRANTO.
This original action in quo warranto was instituted in this court on December 26, 1963, by the filing of a petition in the name of the state, on relation of the city of Cincinnati, against the Butler Water Conservancy District as respondent.
The petition alleges that "respondent * * * is a conservancy district, incorporated under * * * the Conservancy Act of Ohio, Chapter 6101 et seq. * * * Revised Code, comprising * * * townships * * * in Butler County"; that "respondent * * * has usurped and now claims and is attempting to exercise in contravention of law, the following franchise, power and privilege, to-wit: Those rights and powers granted to conservancy districts"; that "respondent * * * has filed an action in the Common Pleas Court of Butler County * * * claiming under provisions of Section 6101 et seq. * * * the power, privilege and right to prevent the relator, through its water department, from using its property located within the Butler Water Conservancy District for waterworks purposes"; that "respondent is seeking to enjoin the relator from using relator's lands and rights located within the Butler Water Conservancy District, and is attempting to prevent the relator * * * from using its property under claim of authority of the Conservancy Act of Ohio, and in contravention of the rights of the relator as provided by the Constitution and statutes of Ohio"; that "respondent claims the power to prevent the relator from taking water from wells drilled on relator's own property"; that "respondent * * * has asked the Common Pleas Court of Butler County in cause No. 80379, to enjoin the relator * * * from using its property for waterworks purposes and to declare that the respondent has power to control the use of the lands within its territorial limits"; "that the franchise power and privilege that the Butler Water Conservancy District * * * claim, and are attempting to claim, are in contravention of law" because "respondent is one of four conservancy districts claiming under the Conservancy Act authority over lands owned by the relator," "respondent * * * was * * * created to specifically attempt to prevent the relator * * * from using wells on its property within Butler County" and "respondent * * * was not properly organized under the Conservancy Act, and is claiming the franchise, power and privileges of a conservancy district without authority in law"; that "respondent * * * claims * * * the right, power, privilege and franchise to prevent the relator from using wells located on relator's lands [in Butler County] for water supply purposes"; that "there is no provision of the Conservancy Act permitting the respondent to control the taking of water from the aquifer underlying relator's lands"; and that "the Conservancy Act is limited to surface waters."
Such relator prays "that the respondent * * * be compelled to answer the state * * * by what warrant it claims to have, use and enjoy the power, privileges and franchise as aforesaid, and that the respondent * * * be ousted from using and exercising the same."
On June 3, 1964, respondent filed an answer to the foregoing petition.
On January 5, 1965, by agreement of the parties, this court made an order granting the "prosecuting attorney for Hamilton County * * * leave to be made a party relator on behalf of the state of Ohio, Hamilton County and the city of Cincinnati."
Thereafter, a reply was filed by the city of Cincinnati as relator on February 19, 1965. From the record, it does not appear that any pleading has ever been filed by the prosecuting attorney for Hamilton County as relator although he does appear as a relator in the caption to the brief and reply brief of relators filed on September 22, 1965, and December 16, 1965, respectively, and has signed those briefs as prosecuting attorney for Hamilton County.
Mr. William A. McClain, city solicitor, Mr. Lyle W. Castle, Mr. Clyde E. Lewis, Mr. Melvin G. Rueger, prosecuting attorney, and Mr. Raymond C. Wetherell, for relators.
Mr. Robert E. Marrs and Mr. John Richard Moser, for respondent.
At the outset it may be noted that the petition discloses the pendency in the Common Pleas Court of Butler County of an action which could provide relators with the relief that they seek in the instant case, i. e., the right to operate Cincinnati's wells in Butler County without interference from respondent district. Hence, this action apparently represents an attempt by relators to bypass the Common Pleas Court and the Court of Appeals by substituting the extraordinary writ of quo warranto for a trial before the Common Pleas Court and appeals from its judgment and from a subsequent judgment of the Court of Appeals.
Furthermore, it may be noted that none of the other three districts alleged to be "claiming under the Conservency Act authority over lands owned by the relator" in Butler County have been made parties respondent. Thus, this action without their presence would seem to be an especially inappropriate action for determining the rights of respondent with respect to lands within its district because such a determination would probably also determine the rights with respect to the same lands of those three districts not before the court.
As stated by Jones, J., in the opinion in State, ex rel. Lindley, v. Maccabees (1924), 109 Ohio St. 454, 456, 142 N.E. 888, 889:
"Under the common law, because franchises emanated from and public offices were under the control of the crown, the writ of quo warranto was never employed by a private individual to test the usurpation or misuser of a franchise, or to challenge the title to the office. The writ could only be employed by the crown at the instance of its own officers, usually the attorney general. The function of the writ was to protect the rights of the crown against the usurpation of governmental prerogatives, and thus safeguard the public interests."
In that case, the syllabus reads:
"1. The only authority given an individual to institute an action in quo warranto is found in * * * [what is now Section 2733.06, Revised Code]. Under its provisions one claiming title to a public office may bring such action in his private capacity.
"2. Section 2, Article IV of our Constitution, as amended in 1912, merely confers original jurisdiction in quo warranto upon this court; it grants no power of invocation, but safeguards the remedy only where the law empowers its exercise."
See also State, ex rel. Silvey, v. Miami Conservancy District Co. (1919), 100 Ohio St. 483, 128 N.E. 87.
There is no provision of law that empowers a municipal corporation to invoke the jurisdiction of this court in quo warranto. Undoubtedly, the purpose of adding the Hamilton County prosecuting attorney as a party was to get around the foregoing decisions and bring this case within the provisions of Section 2733.05, Revised Code, which reads in part:
"The Attorney General or a prosecuting attorney may bring an action in quo warranto upon his own relation, or, on leave of the court, or of a judge thereof in vacation, he may bring the action upon the relation of another person * * *."
In State, ex rel. Finley, Pros Atty., v. Lodwich (1940), 137 Ohio St. 329, 29 N.E.2d 959, 131 A.L.R. 1205, the syllabus reads:
"1. A prosecuting attorney is a county officer whose election is provided for and whose duties are prescribed by statute.
"2. A prosecuting attorney is not authorized to bring an action in quo warranto in the name of the state against an officer of the state neither performing nor asserting a right to perform any official duties in the county of such prosecuting attorney."
See also State, ex rel. Lowes, v. Thompson, (1878), 34 Ohio St. 365.
There is no allegation in the petition that respondent is doing or asserting a right to do anything in Hamilton County.
It follows that this court should on its own motion dismiss this action for the reason that neither relator has the right to invoke the original jurisdiction of this court in quo warranto on the facts alleged in the petition.
Petition dismissed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.