Opinion
No. 20725
Decided February 15, 1928.
Eminent domain — Appropriation of property by board of park commissioners — Jurisdiction of insolvency court — Sections 1629 and 2976-7, General Code — Injunction, and not prohibition, lies to prevent exercise of jurisdiction.
1. Jurisdiction is conferred upon the court of insolvency in proceedings for the appropriation of property for park purposes by the provisions of Sections 1629 and 2976-7, General Code.
2. A writ of prohibition will not lie to prevent the exercise of that jurisdiction upon the ground that a board of park commissioners in making such appropriation is exceeding the powers conferred upon it by law or that the law conferring the power it seeks to exercise contravenes some provision of the Constitution. An ample remedy is afforded by injunction.
IN PROHIBITION.
This is an action in prohibition filed in this court, the questions for decision being presented on demurrer to the petition. The material and substantial averments of the petition are as follows:
There is pending in the court of insolvency of Cuyahoga county a proceeding wherein the board of park commissioners of the Cleveland metropolitan park district is plaintiff and the relators and others are defendants, in which action said board of park commissioners alleged that it had duly taken the steps required by law for the appropriation of certain described land of the relators situated in Bay village in said county, save only the determination and payment of compensation therefor, and prayed the court to cause a jury to be impaneled to make inquiry into and assess compensation to be paid by the plaintiff for an estate and interest in fee simple in the property therein described, and that upon payment to the owner or owners thereof, or by deposit of the amount so assessed, as the court shall order, the possession of said property may be awarded to said plaintiff according to law; that the Cleveland metropolitan park district, when originally organized pursuant to Section 2976-1 et seq., General Code, included a part only of the territory within said county, but has since been enlarged by successive annexations to include all of Cuyahoga county and the township of Hinkley, in Medina county; that the board of commissioners are nonelective officers and are appointed by the probate judge of Cuyahoga county, and assume to act as such under and by virtue of legislation purporting to be enacted pursuant to Section 36 of Article II of the Constitution of Ohio, embracing said statutory provisions as amended and supplemented by the act of January 15, 1920, as set forth in Volume 108, pt. 2, of the Ohio Laws, at pages 1097 to 1100; that the revenues of said board are derived from taxes levied by it on the taxable property within said district, and it purposes to pay therefrom the compensation assessed in said proceeding for the appropriation of relators' land; but that under the provisions of Sections 2, 4, and 7 of Article X of the Constitution of Ohio, authorizing the general assembly to delegate to elective county, township, and other similar boards the power of local taxation for police purposes, as well as under the provisions of Section 26 of Article II and Section 5 of Article XII of said Constitution, forbidding the levying of taxes except in pursuance of law and forbidding the passing of any act taking effect upon the approval of any other authority than the general assembly, except as otherwise provided in said Constitution, and also under the provisions of Section 4 of Article IV of the Constitution of the United States guaranteeing to every state a republican form of government, and of Section 1 of Article XIV of the Amendments to said Constitution, forbidding any state to deprive any person of life, liberty, or property without due process of law, as well as under other and further provisions of said state and Federal Constitutions, said non-elective board of park commissioners cannot lawfully be given or delegated, and does not have or possess the right, power, or authority from the state or the people of Ohio, to levy taxes, and therefrom to pay for property by said board appropriated, and by such means to take relators' land and to maintain in said court of insolvency said proceedings therefor; that said court is without power or jurisdiction to entertain the application of said nonelective board for the assessment of compensation to be paid from revenues derived from taxes by it levied, and to award to said board, on its making such payment, the possession of the relators' said land.
The relators further say that when said application came on for hearing they objected to the jurisdiction of the court to entertain the same and to the authority of said board to take relators' land, which was overruled by the court, and that said hearing proceeded before the said judge and a jury to the rendition of a verdict and judgment in the sum of $12,000, which, it is averred, is but half the amount of the last purchase price and less than half the current value thereof, and that said appropriation proceedings are unlawful and confiscatory. It is asserted that said court of insolvency is without power in such proceeding to hear and determine the question of its own jurisdiction of said application, and that such question of jurisdiction cannot be effectively raised or determined upon any direct review of said proceeding, and hence relators are without remedy except by petition for a writ of prohibition. It is also asserted that unless such writ be granted restraining and prohibiting the judge of said court of insolvency from proceeding, he will proceed with said cause and will order a deposit of said amount, and relators will thereby be deprived of their land and be irreparably damaged.
Relators accordingly pray that the writ of this court issue prohibiting further action in said appropriation proceedings, or any further order or judgment therein.
Messrs. J.R. H.R. Snyder, and Messrs. Snyder, Henry, Thomsen, Ford Seagrave, for relators.
Messrs. Locher, Green Woods, for defendant.
The proceeding which it is sought to have prohibited in this action was one instituted by the board of park commissioners of the Cleveland metropolitan park district for the assessment of compensation for certain land in which the relators have an interest, the appropriation of which was contemplated for park purposes. The action had been fully tried and submitted to a jury, the jury had returned its verdict, and a motion for a new trial was pending when this suit was instituted.
The primary question presented by the demurrer to the petition is whether the facts alleged are such as to entitle the relators to a writ of prohibition. The claim of the relators is predicated upon the view that said board of park commissioners cannot lawfully be given or delegated, and does not have or possess the right, power, or authority to levy taxes and therefrom to pay for property appropriated; that said board is, therefore, without authority to maintain such appropriation proceeding. In short, it is the contention of the relators that Section 2976-10, General Code, conferring upon such board power to levy taxes, is an unconstitutional delegation of the power of taxation, and that, therefore, the means or resources derivable from such source cannot be lawfully used or applied in the appropriation of the relators' lands by said board. The statement of relators' proposition at once discloses that they challenge the right, power, and authority of the board of park commissioners to maintain any action for the appropriation of lands rather than the jurisdiction of the court to entertain such proceeding and to hear and determine the issues presented.
What is the jurisdiction of the court of insolvency relative to such proceedings? It is provided by Section 1629, General Code, that:
"The court of insolvency shall have original jurisdiction in all cases, matters and things relating to and arising under the laws now in force or hereafter enacted regulating * * * the appropriation of land for public use."
The appropriation proceeding here in question was instituted by the board of park commissioners pursuant to authority vested in such board by the provisions of Section 2976-7, General Code, which authorizes said board to acquire lands on behalf of the park district for the purposes therein stated "by gift or devise, by purchase, or by appropriation." It is therein specifically provided that:
"In case of appropriation, the proceeding shall be instituted in the name of the board, and shall be conducted in the manner provided for the appropriation of private property by municipal corporations in so far as such proceedings are applicable."
No further statement is required to demonstrate that jurisdiction of the subject-matter is vested in the court of insolvency. Such court receives its jurisdiction from the Legislature, and the legislative provisions to which we have referred clearly confer jurisdiction in appropriation proceedings, including proceedings for such purpose instituted by the board of park commissioners. It is contended, however, that the power rests in some tribunal to hear and determine the question whether the board of park commissioners has legal authority to levy taxes, and also to determine whether, if it has not such power, funds will be available from which to pay the award.
It is pertinent to observe that it is not even claimed that the board of park commissioners is attempting to violate the right guaranteed the owner by the Constitution that his property will not be taken, even for public uses, without compensation.
It has been frequently held, and must be regarded as the settled law of this state, that an action in prohibition cannot be substituted for a proceeding in error; neither will such action lie if there is any other adequate remedy available. Hence, if the question here raised could have been presented upon error, by action in injunction against the board or otherwise, the relator is not entitled to relief by the extraordinary writ of prohibition. State ex rel. Carmody v. Justice, Judge, 114 Ohio St. 94, 150 N.E. 430, and cases there cited.
It has heretofore been suggested that the power of the board rather than the jurisdiction of the court is challenged in this proceeding. The want of legal authority to provide funds to satisfy the award made for property sought to be appropriated (if that precludes the assessment of compensation) would clearly furnish a ground for injunction against the board of park commissioners to restrain that body from further prosecuting the appropriation proceeding. As was stated in the case of Pontiac Improvement Co. v. Bd. of Commrs. of Metropolitan Park Dist., 104 Ohio St. 447, 135 N.E. 635, 23 A. L. R., 866, the proposition that injunction will lie to prevent an unwarranted or unauthorized proceeding in appropriation has been conclusively determined by the decisions of this court in P., C., C. St. L. Ry. Co. v. City of Greenville, 69 Ohio St. 487, 69 N.E. 976, and Cleveland Pittsburgh Rd. Co. v. City of Martins Ferry, 92 Ohio St. 157, 110 N.E. 642.
The Pontiac Improvement Company case was one wherein the authority of this same board of park commissioners was challenged, it being claimed that it was without right to appropriate certain interests in real estate, and it was there definitely held that the authority to make such appropriation could be challenged and determined by an action in injunction. Likewise, in the case of Sargent v. City of Cincinnati, 110 Ohio St. 444, 144 N.E. 132, this court held that an action in injunction will lie to prevent the taking of property for waterworks purposes upon the ground that the city, under the terms of the lease, then had the full right to the use of the property, and, hence, was without authority to appropriate the fee-simple title.
The contention that the principle announced in the Greenville and Martins Ferry cases, supra, is no longer applicable by reason of the fact that they were decided "before the writ of prohibition could be invoked in Ohio as a possible remedy at law in any such case," or that thereby "injunction has been superseded by prohibition in such circumstances since January 1, 1913," cannot be supported. It has been the consistent holding of this court in numerous cases in which the scope and purpose of the writ of prohibition has been considered that it is a high prerogative writ to be used only where there is no other regular, ordinary, or adequate remedy.
It follows that the demurrer to the petition should be sustained.
Writ denied.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON and JONES, JJ., concur.