Summary
holding that because the Ohio constitution limited the court of appeals' original jurisdiction to certain matters not including declaratory judgments, the court of appeals lacked jurisdiction to render that type of judgment
Summary of this case from In re Request of GutierrezOpinion
No. 77-622
Decided January 18, 1978.
Mandamus — Complaint dismissed, when — Declaratory judgment actually sought.
APPEAL from the Court of Appeals for Franklin County.
The relator, Tressa Neer, sought a writ of mandamus in the Court of Appeals ordering the Industrial Commission to consider her appeal with respect to the denial of her claim for death benefits filed as a result of the death of her husband in 1971 by reason of silicosis. The Cleveland Regional Board of Review had found relator's claim to be barred by the time-limitation provisions contained in R.C. 4123.68(X).
The provision for an eight-year limitation upon claims on account of silicosis is now contained in R.C. 4123.68(Y).
Relator contended in the Court of Appeals that the time-limitation provisions of R.C. 4123.68(X) were unconstitutional as being a denial of due process of law and equal protection of the laws.
The Court of Appeals, in sustaining a motion to dismiss filed by the respondent, stated, in part:
"From the complaint, it appears that the claim has not been determined by the respondent but is pending before it. Accordingly, relatrix primarily seeks a declaratory judgment as to the constitutionality of R.C. 4123.68(X). This court has no original jurisdiction in declaratory judgment. It might be proper to join the claim for declaratory judgment with that for mandamus in the Common Pleas Court which has original jurisdiction in both declaratory judgment and mandamus. However, such joinder is not proper in this court which has no original jurisdiction to render a declaratory judgment."
The cause is now before this court upon an appeal as a matter of right.
Messrs. Mancino, Mancino Mancino and Mr. Paul Mancino, Jr., for appellant.
Mr. William J. Brown, attorney general, and Mr. William Naperstick, for appellee.
Appellant is actually seeking a declaratory judgment, since the Court of Appeals has no basis for issuing the mandamus order requested unless it makes a determination that R.C. 4123.68(X) is unconstitutional.
This court stated in State, ex rel. Foreman, v. Bellefontaine Municipal Court (1967), 12 Ohio St.2d 26, at page 28, as follows:
"Statutes which create a declaratory judgment procedure do not extend the jurisdiction of the subject matter of a court but rather extend the power of the court to grant declaratory relief within its respective jurisdiction. In other words, declaratory judgment statutes provide an additional remedy which may be granted by a court but they do not extend the jurisdiction as to the subject matter upon which a court may act. San Ysidro Irrigation District v. Superior Court of San Diego County, 56 Cal.2d 708, 365 P.2d 753, and 26 Corpus Juris Secundum 255, Declaratory Judgments, Section 113."
Although R.C. 2721.02 gives all "courts of record" the power to render declaratory judgments, the 1968 Modern Courts Amendment gives Court of Appeals original jurisdiction only in quo warranto, mandamus, habeas corpus, prohibition, procedendo, and in any cause on review as may be necessary to its complete determination. Section 3(B)( 1)(a)-(f), Article IV of the Ohio Constitution. Permitting a Court of Appeals to give what is basically a declaratory judgment is to expand its constitutionally declared jurisdiction.
For the foregoing reason, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, STEPHENSON and LOCHER, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, siting for SWEENEY, J.