Opinion
No. 23844
Decided March 29, 1933.
Prohibition — Writ lies only where no other remedy adequate — Writ not substitute for error proceedings — Irregularities in indictments by special grand jury under special prosecuting attorney.
1. 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.
2. Such writ is not available as a substitute for proceedings in error.
ERROR to the Court of Appeals of Williams county.
Plaintiff in error, Victor J. Silliman, filed an original action in the Court of Appeals of Williams county seeking issuance of a writ of prohibition to prevent the Court of Common Pleas of that county from proceeding under the nine indictments that had been returned against him and several others by special grand jury.
The petition alleges at length that the indictments are void and that the Court of Common Pleas is without jurisdiction to proceed under them because said court had improperly and irregularly appointed Attorney D.A. Webster of Bryan, Ohio, to make the necessary investigation and present each and every matter to the consideration of a grand jury to be called, and to prosecute to final determination any and all indictments as a result of said investigation in causes growing out of the insolvency of the State Exchange Bank of Stryker, Ohio. There are numerous other allegations to the effect that this entire matter had been investigated previously by Lisle M. Weaver, who was at that time the regularly elected prosecuting attorney of Williams county, and by the Attorney General of Ohio, and that therefore the Court of Common Pleas was without right, power or authority to appoint Webster special prosecuting attorney or assistant prosecuting attorney. It is also alleged that Webster was disqualified to act and that his appointment had not been requested by Charles T. Stahl, the present duly elected prosecuting attorney.
To the petition defendant filed an answer, which, as will be seen, is immaterial at this stage of the case. To this answer plaintiff filed a demurrer. The Court of Appeals then made the following entry:
"This day this cause came on to be heard on the demurrer filed by plaintiff, to the answer of the defendant, and the same was argued to the court, and the court being fully advised in the premises, finds:
"That the demurrer searches the record, and that the petition of the plaintiff is insufficient and does not state facts sufficient to constitute a cause of action in favor of plaintiff and against the defendant, and orders that the petition of the plaintiff be, and the same is hereby dismissed, at the costs of the plaintiff.
"The court further find that if the plaintiff is entitled to any remedy, it must be sought in the Common Pleas Court, where the indictments were returned by the grand jury, against the plaintiff. Exceptions to the plaintiff."
To this ruling plaintiff filed a petition in error in this court as of right.
Messrs. Newcomer Parker, for plaintiff in error.
Mr. D.A. Webster, Mr. T.T. Shaw and Mr. W.T. Shinn, for defendant in error.
The single question here presented is whether the allegations of plaintiff's petition state properly pleaded facts sufficient to constitute a cause of action for invoking the writ of prohibition.
It is necessary to keep in mind the exact nature of this remedy. Although it is a common-law writ of high antiquity prohibition came into Ohio jurisprudence through the constitutional amendments of 1912. As frequently stated by the text-writers its principal purpose is to prevent an inferior court or other tribunal from assuming a jurisdiction with which it is not legally vested. On page 5 of 22 Ruling Case Law appears the following general statement: "Like all other prerogative writs, prohibition is to be used with great caution and forbearance, for the furtherance of justice and to secure order and regularity in judicial proceedings, and should be used only in cases of extreme necessity." In the case of State, ex rel. Nolan, v. Clen-Dening, 93 Ohio St. 264, 112 N.E. 1029, this court held that "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." Again in the case of State, ex rel. Carmody, v. Justice, Judge, 114 Ohio St. 94, 150 N.E. 430, the following language was used by this court: "The function of a writ of prohibition is to restrain inferior courts and tribunals from exercising jurisdiction beyond that legally conferred, and it will be awarded only when there is no other available adequate remedy." And finally in the recent case of State, ex rel. Frasch, v. Miller, ante, 287, this court held that a writ of prohibition is not available as a substitute for error proceedings.
When the foregoing restated principles are applied to the allegations in the instant case this court is of the opinion that the petition was properly dismissed by the Court of Appeals. Every question with reference to the alleged irregularities can be seasonably and efficiently raised in error proceedings. Clearly, if any court has the power to proceed under these indictments it is the Court of Common Pleas of Williams county alone. The single fact that the action of that court might involve prejudicial irregularities is not a sufficient basis for abandoning the usual proceedings in error and resorting to the extraordinary prerogative writ of prohibition.
It is contended by plaintiff in error that the views of this court as enunciated in the case of State, ex rel. Thomas, Pros. Atty., v. Gessner, 123 Ohio St. 474, 175 N.E. 865, are decisive of the question presented in the instant case. That this position is untenable is indicated by the distinction in controlling facts. In that case no notice had been given the regularly elected prosecuting attorney before the appointment was made; in this case the petition alleges that Stahl made no request for the appointment, but there is no allegation of lack of notice. Furthermore, in that case it was the prosecutor himself who was under investigation; but in this case the petition alleges no such situation.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
DAY, ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.
KINKADE, J., not participating.