Summary
In State ex rel. Braman v. Masheter (1966), 5 Ohio St.2d 197, 214 N.E.2d 804, the supreme court considered a nearly identical case to the one sub judice.
Summary of this case from State v. Ohio Dept. of TransportationOpinion
No. 39763
Decided March 9, 1966.
Venue — Mandamus to require appropriation of property taken for highway purposes — Action against Director of Highways and city — Section 5501.18, Revised Code — Not affected by joining city situated in county where brought — Action dismissed as to director, retained as to city.
APPEAL from the Court of Appeals for Cuyahoga County.
Relator instituted this action in mandamus in the Court of Appeals for Cuyahoga County against the Director of Highways of the state of Ohio and against the city of Cleveland, in which he alleges that he is the owner in fee of certain property located at what was formerly the southwest corner of the intersection of East 9th Street and Broadway Avenue in Cleveland, Ohio.
Relator alleges that respondents, in constructing an off-ramp from the Innerbelt Freeway, destroyed access to the north line of relator's property; that this has resulted in the reduction in value of relator's property; and that, therefore, relator's property has been taken without due process of law.
Relator alleges that the respondents have refused to institute proceedings to appropriate relator's property which has already been taken. He prays for a writ of mandamus to compel respondents to institute proceedings for the appropriation of his property and the determination of the amount of compensation to which he is entitled.
The Director of Highways moved to quash service of summons against him, and the city demurred to the petition.
The Court of Appeals sustained the motion to quash, sustained the demurrer and dismissed the action.
This cause is before this court upon an appeal as of right.
Mr. Melvin J. Singer, for appellant.
Mr. William B. Saxbe, attorney general, Mr. I. Charles Rhoads, Mr. George E. Mastics and Mr. Eli Manos, for appellee Director of Highways.
Mr. Bronis J. Klementowicz, director of law, Mr. Frank R. Klause and Mr. Harry Auslander, for appellee city of Cleveland.
The questions presented by this appeal are whether the Court of Appeals erred in granting the motion to quash service of summons and in sustaining the demurrer to the petition.
It is provided in Section 5501.18, Revised Code:
"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 * * * 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 * * *."
Under this statute, the director may not be sued in Cuyahoga County unless this case falls within the exception in the above-quoted statute.
This is an absolute right conferred by statute, and the joinder of a defendant which is situated in the county where suit is brought does not deprive the director of this right. State, ex rel. Barber, Pros. Atty., v. Rhodes, Aud., 165 Ohio St. 414; State, ex rel. Gregory, v. Masheter, Dir., 3 Ohio St.2d 43.
It appears from the face of the petition that this suit was not brought to prevent the taking of property without due process of law under the exception in Section 5501.18, supra, but rather was brought to compel the Director of Highways and the city of Cleveland to institute proceedings to appropriate to a public purpose and pay compensation for property alleged to have already been taken. Wilson v. City of Cincinnati, 172 Ohio St. 303; State, ex rel. Gregory, v. Masheter, Dir., supra.
The action against the director should have been brought in Franklin County and the Court of Appeals did not err in sustaining the director's motion to quash service of summons. The city of Cleveland demurred to the petition and the demurrer was sustained for want of jurisdiction.
Section 5501.18, supra, applies only to the Director of Highways and in no way deprives the Court of Appeals for Cuyahoga County of the power to determine the issues between relator and respondent city. Wilson v. City of Cincinnati, supra. The Court of Appeals has jurisdiction of the subject of this action in mandamus under Section 6 of Article IV of the Ohio Constitution. Likewise, the territorial jurisdiction of the Court of Appeals was not exceeded. The Court of Appeals, therefore, erred in sustaining the city's demurrer and dismissing the action.
The judgment of the Court of Appeals is affirmed as to the Director of Highways and is reversed as to the city of Cleveland, and the cause is remanded for further proceedings.
Judgment affirmed in part and reversed in part.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.