Opinion
No. 34433
Decided December 7, 1955.
Prohibition — Purpose and scope of remedy — Available, when — Permit to conduct horse racing for wager — Issuance by Ohio State Racing Commission — Prohibition not available to prevent.
1. The remedy of prohibition is a high prerogative remedy, to be used with great caution in the furtherance of justice, and a writ may, but ordinarily will not, be issued where there is a plain adequate remedy either in law or equity available to the relator.
2. The legitimate purpose and scope of the remedy of prohibition is to keep inferior tribunals within the limits of their own jurisdiction.
3. Prohibition will not lie to prevent the exercise of the jurisdiction of the Ohio State Racing Commission conferred by statute to issue permits to conduct horse racing for a stake, purse or award, with parimutuel or certificate type of wagering, within the state, on the ground that such commission is exceeding the powers conferred upon it by statute or that the statute conferring the power contravenes some provisions of the Ohio Constitution.
IN PROHIBITION.
This is an action originating in this court to prohibit the respondent Ohio State Racing Commission from authorizing, permitting, or issuing any permits for conducting horse racing for a stake, purse, or award, with pari-mutuel or certificate type of wagering, within the state of Ohio, and especially to prohibit the issuing of any such permits to tracks within 30 miles of each other, on the same date or dates.
The relators are Charles P. Masterson and Sophie Borek, citizens of the state of Ohio, and Georgeann Borek, Gerald Borek and Patrick Borek, citizens of Ohio and minors of tender years, by their mother and next friend, Sophie Borek, for and on behalf of the state of Ohio and all its citizens.
The relators allege that they are interested in the execution of the laws of the state of Ohio, in the upholding and enforcing of constitutional prohibitions and in the enforcing of public duties affecting themselves and citizens of Ohio generally; that Sophie Borek is the former wife and Georgeann, Gerald and Patrick Borek are children of John Eugene Borek, who had lost money by wagering at one of the race tracks for which a permit had been given by the respondent commission; that the commission was established pursuant to Section 3769.01 et seq., Revised Code, with power to prescribe rules and conditions under which horse racing for a stake or purse, with pari-mutuel or certificate type of wagering, shall be conducted in the state of Ohio, and, as authorized and restricted by the Horse Racing Act of Ohio, to determine to whom, for what date or dates, and for what track or tracks permits to conduct such horse racing shall be issued.
Relators allege further that at all times herein concerned Section 6 of Article XV of the Constitution of Ohio provided that "lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this state"; that to conduct either pari-mutuel or certificate type of wagering is to conduct a lottery contrary to the Constitution of Ohio; that both the winners of the lottery and the amounts won are determined by chance; and that any attempted statutory authorization thereof is unconstitutional and void.
Relators allege further that they have no ordinary remedy at law to prohibit the operation of this illegal lottery and abuse of the power by the commission, and, therefore, pray the court for a writ of prohibition.
The issues are submitted on a demurrer to the petition.
Mr. George J. McMonagle, Mr. Robert E. Sweeney, Mr. Philip Bartell, Mr. William E. Mahon, Mr. William J. O'Neill and Mr. Michael T. Gavin, for relators.
Mr. C. William O'Neill, attorney general, Mr. Hugh A. Sherer and Mr. William A. Carroll, for respondent Ohio State Racing Commission.
Messrs. Brounfield Malone, for respondent Columbus Trotting Association, Inc.
Messrs. Marshman, Hollington Steadman, for respondent Randall Park Jockey Club, Inc.
Mr. Edward F. Hackett, for respondent Delaware County Agricultural Society.
Section 2, Article IV of the Constitution of Ohio, provides that the Supreme Court "shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo," but the Constitution does not define any of these remedies.
The nature and extent of this court's jurisdiction in prohibition were first considered by this court in the case of State, ex rel. Nolan, v. ClenDening, 93 Ohio St. 264, 112 N.E. 1029, wherein it was held:
"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."
In the course of the opinion in that case, the remedy is defined and discussed as follows:
"The definition generally recognized in those jurisdictions in which this writ has long been in use is as follows:
"`The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior tribunal properly and technically denominated such, or to an inferior ministerial tribunal possessing incidentally judicial powers and known as a quasi-judicial tribunal, or even in extreme cases to a purely ministerial body, commanding it to cease abusing or usurping judicial functions. A writ of prohibition is a prerogative writ to be used with great caution and forbearance for the furtherance of justice, and for securing order and regularity in all the tribunals where there is no other regular and ordinary remedy. The legitimate scope and purpose of the writ is to keep inferior courts within the limits of their own jurisdiction, and to prevent them from encroaching upon the jurisdiction of other tribunals.' (32 Cyc., 598.) `This writ is of English origin, being one of the great common-law prerogative writs long in use.' (Ib., note 2.)
"High, in his excellent work Extraordinary Legal Remedies, clearly states the prevailing doctrine, wherever the writ is in general use, and enumerates three conditions necessary to warrant the granting of relief through the writ of prohibition. They are as follows:
"`1. That the court, officer or person against whom it is sought is about to exercise judicial or quasi-judicial power.
"`2. That the exercise of such power is unauthorized by law.
"`3. That it will result in injury for which no other adequate remedy exists.'" (Italics supplied in part.)
In the later case of State, ex rel. Burtzlaff, v. Vickery et al., Judges, 121 Ohio St. 49, 166 N.E. 894, this court, in reviewing the nature of the high prerogative remedy of prohibition, said:
"* * * This court was given original jurisdiction by the constitutional amendment of 1912 in prohibition, but the Constitution does not define the nature of the writ, neither has the Legislature ever defined it. We must therefore look to the principles of the common law. The writ of prohibition has been defined in general terms as an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior tribunal commanding it to cease abusing or usurping judicial functions. Its legitimate scope and purpose is to keep inferior courts within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals."
Not only in this state but in other jurisdictions, this definition and purpose of the writ are recognized and have been adopted. It is stated in 42 American Jurisprudence, 144, Section 8:
"In the absence of any statutory provision to the contrary, it is a general rule that prohibition, being an extraordinary writ, cannot be resorted to when ordinary and usual remedies provided by law are adequate and available."
It is clearly apparent that the relators have an appropriate and adequate remedy in equity, and if they have such remedy they can not pursue the remedy of prohibition. They here seek to prevent the racing commission, an administrative agency, from exercising powers under what they claim is an unconstitutional statute. The remedy of injunction, legislatively defined as a "command to do or refrain from doing a particular act," is clearly available under such circumstances. See Section 2727.01, Revised Code.
In the case of State, ex rel. Harrison, a Taxpayer, v. Perry, Coroner, 113 Ohio St. 641, 150 N.E. 78, this court held:
"A writ of prohibition will not issue when a plain adequate remedy, either in law or in equity, is available to the applicant."
In the course of his opinion in that case, Judge Robert H. Day said:
"It is a general principle relative to the extraordinary writ of prohibition that the writ will not issue where there is an adequate remedy at law, or in equity, readily available to the applicant, either by appeal, or writ of error, or any other writ, motion, or proceeding appropriate to the relief, such as injunction, mandamus, quo warranto, etc. * * *."
Again, in the case of State, ex rel. MacDiarmid, v. Eastman, Judge, 118 Ohio St. 121, 160 N.E. 626, in which was sought an order to prevent a board of park commissioners from a claimed illegal appropriation of real estate for park purposes, this court held:
"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."
Attention should be called to the recent case of State, ex rel. Masterson, a Taxpayer, v. Ohio State Racing Commission, 162 Ohio St. 366, 123 N.E.2d 1, wherein one of the relators in the instant case, solely as a taxpayer, sought an injunction to restrain the respondent Ohio State Racing Commission from expending funds or issuing permits for the conducting of horse racing in this state, and wherein this court affirmed the judgment of the Court of Appeals which in turn had affirmed the judgment of the Court of Common Pleas holding that the relator lacked the legal capacity to maintain the action. There was no holding in that case that injunction was not a proper remedy if invoked by one having the capacity to bring the action. In the syllabus of that case, this court specifically held:
"In the absence of statutory authority, a taxpayer lacks legal capacity to institute an action to enjoin the expenditure of public funds unless he has some special interest therein by reason of which his own property rights are placed in jeopardy."
In view of the foregoing discussion, this court is of the view that the petition does not state a cause of action. The demurrer to the petition is sustained and a writ is denied.
A motion to strike the petition is overruled.
It is unnecessary to decide other questions raised in this action.
Demurrer sustained and writ denied.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN and BELL, JJ., concur.
STEWART, J., dissents.
TAFT, J., concurs in paragraph one of the syllabus but dissents from paragraph three of the syllabus and from the judgment.
This cause is now before the court on the "special demurrer to petition" of the Racing Commission stating as grounds therefor that "the court has no jurisdiction of the subject of the action" and the "plaintiffs have not the legal capacity to sue"; and also on the "motion" of Columbus Trotting Association, Inc., an intervening defendant, "for an order striking from its files the petition * * * for the * * * reasons" that "the court has no jurisdiction of the subject of the action," that "the forum is inappropriate to a determination of the issues" and "that the issue presented * * * is res adjudicata."
It might be inferred from paragraph two of the syllabus of the instant case that one of the reasons for the judgment being rendered in the instant case is that the Racing Commission is not a "tribunal." However, that reason is not suggested by anything in the opinion, probably because the actions of the commission sought to be prohibited are sufficiently quasi-judicial so that the commission may be regarded as acting as a "tribunal." Certainly, its activity in issuing permits to conduct horse racing for a "stake, purse or award, with parimutuel or certificate type of wagering" would appear to more clearly represent the action of a "tribunal" than did the action prohibited by this court in State, ex rel. Newell, Jr., v. Brown, Secy. of State, 162 Ohio St. 147, 122 N.E.2d 105; State, ex rel. Smith, v. Hummell, Secy. of State, 146 Ohio St. 341, 66 318 N.E.2d 111; or State, ex rel. Stanley, v. Bernon et al., Board of Elections, 127 Ohio St. 204, 187 N.E. 733.
A reading of the majority opinion discloses that the law announced in paragraph one of the syllabus and the existence of "an appropriate and adequate remedy in equity" by way of "injunction" are the only reasons given for the conclusion stated in paragraph three of the syllabus and for the judgment being rendered.
The question therefore arises whether relators here have any remedy by way of injunction. In State, ex rel. Masterson, a Taxpayer, v. Ohio State Racing Commission, 162 Ohio St. 366, 123 N.E.2d 1, this court held relator Masterson did not because he had no "special interest * * * by reason of which his own property rights are placed in jeopardy." There are no allegations in the petition in the instant case that even tend to indicate that relators herein had any such "special interest."
Such special interest in a relator was unanimously held not necessary in an action in prohibition in State, ex rel. Newell, Jr., v. Brown, Secy. of State, supra ( 162 Ohio St. 147), where paragraph one of the syllabus reads:
"Ordinarily a person is not authorized to attack the constitutionality of a statute, where his private rights have suffered no interference or impairment, but as a matter of public policy a citizen does have such an interest in his government as to give him capacity to maintain a proper action to enforce the performance of a public duty affecting himself and citizens generally." (Emphasis added.)
But see State, ex rel. Skilton, v. Miller, Judge, ante, 163, 128 N.E.2d 47, which, although difficult to reconcile with that paragraph of the syllabus, does not purport to overrule it.
Although State, ex rel. Newell, Jr., v. Brown, Secy. of State, supra ( 162 Ohio St. 147), was relied upon by the appellant in State, ex rel. Masterson, a Taxpayer, v. Ohio State Racing Commission, supra ( 162 Ohio St. 366), it is not mentioned in the report of the latter case. Some of those who concurred in the latter decision may have done so because the petition involved did not allege, as does the petition in the instant case, that relator was "a citizen." However, if relator had alleged in that case that he was a citizen, a serious question would still have remained whether an injunction would issue, since it was not sought for the protection of property or property rights. State, ex rel. Moyer, v. Baldwin, 77 Ohio St. 532, 546, 83 N.E. 907, 19 L.R.A. (N.S.), 49; 28 American Jurisprudence, 264, Section 70. Certainly, the syllabus and opinion in State, ex rel. Masterson, a Taxpayer, v. Ohio State Racing Commission, supra ( 162 Ohio St. 366), indicate that an injunction would not have issued even if relator therein had alleged that he was a citizen, unless he had also alleged facts indicating that he had some "special interest * * * by reason of which his own property rights" were "placed in jeopardy."
This is not an instance where it might reasonably be contended that this court should in its discretion deny relief because the Court of Appeals has concurrent jurisdiction in prohibition and "the purpose of the relator is primarily the enforcement or protection of purely private rights." Cf. State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, 162 Ohio St. 302, 123 N.E.2d 23; State, ex rel. Allied Wheel Products, Inc., v. Industrial Commission, 161 Ohio St. 555, 120 N.E.2d 421; State, ex rel. D.L. Auld Co., Inc., v. Morse et al., Industrial Commission, 161 Ohio St. 561, 120 N.E.2d 424. But see State, ex rel. Selected Properties, Inc., v. Gottfried, supra ( 163 Ohio St. 469), 475. Relators certainly are attempting to enforce public obligations affecting themselves and citizens generally. See State, ex rel. Newell, Jr., v. Brown, Secy. of State, supra ( 162 Ohio St. 147).
This case therefore represents a holding by this court that relief by way of prohibition should be denied relators because they have an adequate remedy in equity by way of injunction, although this same court has in effect recently held in State, ex rel. Masterson, v. Ohio State Racing Commission, supra ( 162 Ohio St. 366), that no such relators would have such a remedy.
STEWART, J., concurs in the foregoing dissenting opinion.