Opinion
No. 24970
Decided November 27, 1934.
Prohibition — Transfer of motor vehicle license and fuel tax funds — Petition to prohibit Tax Commission's approval of transfer — Section 5625-13c, General Code — Action not such judicial function, nor of such finality, to justify writ — Original jurisdiction of Common Pleas Court not contravened for convenience — Section 5625-13f, General Code.
1. A writ of prohibition will not issue against the performance of the duties prescribed for the Tax Commission of Ohio in Section 5625-13 c, General Code. The action of the Tax Commission, therein required, is not such a judicial function, nor of such finality, as to justify the issuance of a writ of prohibition.
2. The original jurisdiction of the Court of Common Pleas over the subject, as provided in Section 5625-13 f, General Code, will not be contravened by writ of prohibition for a matter of convenience.
IN PROHIBITION.
This case originated in this court on petition of the relator for a writ of prohibition "commanding defendants to refuse to pass upon or approve the petition of the Village of Moreland Hills and all other similar petitions in which it is sought to transfer funds obtained from either the Motor Vehicle License Tax or the Motor Vehicle Fuel Tax to any purposes except those set forth in Sections 6309-2, 5537 and 5541-8 of the General Code of Ohio."
The petition alleges that the relator, Fred H. Caley, has paid the Motor Vehicle License Taxes and the Motor Vehicle Fuel Taxes; that the state of Ohio has imposed such taxes on the privilege of operating motor vehicles upon the highways of the state, and that the purpose of such taxes is to construct, maintain and repair such highways; that the distribution of such taxes is controlled by Sections 6309-2, 5537 and 5541-8 of the General Code, and that the 90th General Assembly enacted the following sections of the General Code, which became effective on June 7, 1933:
"Sec. 5625-13 a. In addition to the transfers authorized in section 5625-13, the taxing authority of any political subdivision may transfer any public funds under its supervision, except the proceeds or balances of loans, bond issues, or special levies for the payment thereof, from one fund to another in the manner hereinafter provided.
"Sec. 5625-13 b. A resolution of such officers shall be passed by a majority of all the members thereof, declaring the necessity therefor, and such officers shall prepare a petition addressed to the court of common pleas of the county in which the funds are held. The petition shall set forth the name and amount of the fund, the fund or funds to which it is desired to be transferred, a copy of such resolution with a full statement of the proceedings pertaining to its passage, and the reason or necessity for the transfer. A duplicate copy of said petition shall be forwarded to the state tax commission for their examination and approval.
"Sec. 5625-13 c. If the petition is disapproved by the tax commission it shall be returned within ten days from the receipt thereof to the officers who submitted it, with a memorandum of the tax commission's objections. This disapproval shall not prejudice a later application for approval. If the petition is approved by the tax commission, it shall be forwarded within ten days from the receipt thereof to the clerk of the county to whose court of common pleas the petition is addressed, marked with the approval of the tax commission. When approved, the tax commission shall notify immediately the officers who submitted the petition, who then may file the petition in the court to which it is addressed.
"Sec. 5625-13 d. The petitioner shall give notice of the filing, objects and prayer of the petition, and of the time when it will be for hearing. The notice shall be given by one publication in two newspapers having a general circulation in the territory to be affected by such transfer of funds, preference being given to newspapers published within the territory. If there are no such newspapers, the notice shall be posted in ten conspicuous places within the territory for the period of four weeks.
"Sec. 5625-13 e. The petition may be heard at the time stated in the notice, or as soon thereafter as convenient for the court. Any person or persons, objecting to the prayer of such petition, shall file their objections in such cause on or before the time fixed in the notice for hearing, and they shall be entitled to be heard.
"Sec. 5625-13 f. If, upon the hearing the court finds that the notice has been given as herein required, that the petition states sufficient facts, that there are good reasons, or that a necessity exists for the transfer, and that no injury will result therefrom, it shall grant the prayer of the petition and order the petitioners to make such transfer.
"Sec. 5625-13 g. A copy of the findings, orders and judgments of the court, shall be certified by the clerk and entered on the records of the petitioning officers or board, and thereupon the petitioners may make the transfer of funds as directed therein. All costs of such proceedings shall be paid by the petitioners, except in case objections are filed, the court may order such objectors to pay all or a portion thereof as is just and equitable."
The petition further alleges that the village of Moreland Hills is attempting to transfer an unexpended balance of five hundred dollars ($500.00) from the motor vehicle license tax fund and two hundred dollars ($200.00) from the gasoline tax fund, which has been allocated to it in accordance with the provisions of Sections 6309-2, 5537 and 5541-8, General Code, to the "General Fund" of the village for general expenses of the municipality; that the council of said municipality has passed a resolution declaring it necessary to make such transfer; that in accordance with the provisions of Sections 5625-13 a to 5625-13 g, General Code, a petition has been prepared, addressed to the Court of Common Pleas of Cuyahoga county, setting forth a copy of such resolution, and requesting authority to make such transfer of funds; that a duplicate copy of such petition has been forwarded to the defendant, the Tax Commission of Ohio, with the request that it approve the petition; that the defendant has already approved more than 175 petitions of a similar nature filed by other municipalities and political subdivisions; that the defendant claims the right and authority to pass upon and approve the petition of the village of Moreland Hills and other similar petitions; that "Defendants do not have authority under the provisions of the Constitution and General Code of Ohio to pass upon or approve said petition of the Village of Moreland Hills or any other petitions having for their purpose the transfer of moneys obtained either from Motor Vehicle License Taxes or Motor Vehicle Fuel Taxes to funds which can be drawn upon for governmental expenditures not connected with the improvement, maintenance and repair of public roads, highways and streets."
To this petition a general demurrer was filed.
Mr. A.G. Newcomb, Mr. Harold H. Gorman and Mr. William E. Hanna, for relator.
Mr. John W. Bricker, attorney general, Mr. William S. Evatt and Mr. William J. Ford, for respondents.
The demurrer raises a question as to the availability of the remedy sought. Do the facts set forth in the petition justify the issuance of a writ of prohibition?
As has been stated in earlier opinions in this court, three conditions are necessary to warrant that high prerogative writ:
1. The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power.
2. The exercise of such power must be unauthorized by law.
3. It must appear that the refusal of the writ would result in injury for which there is no other adequate remedy. State, ex rel. Nolan v. ClenDening, 93 Ohio St. 264, 271, 112 N.E. 029. It is doubtful whether the first two conditions obtain in this case, and it is certain that the third condition does not obtain.
As to the first condition it is to be noted that the Tax Commission is called upon by Section 5625-13 c, General Code, to approve or disapprove the petition submitted to it. If it disapproves, it is to return the petition with a memorandum of its objections. If it approves, it is required to forward the petition, marked with its approval, to the clerk of the Common Pleas Court to which the petition is addressed. Such a performance is certainly much more ministerial than judicial. Counsel say it is not clear what the purpose of the Legislature was in requiring the submission of the petition to the Tax Commission; but the purpose evidently was to give the Common Pleas Court the benefit of the opinion of the Tax Commission. While the Tax Commission is required to exercise its judgment as to whether or not the petition should be approved, the result of what it does is more in the nature of an expert opinion than a judicial pronouncement. It is to approve or disapprove from a practical point of view, from the point of view of its own particular function. That the commission was not meant to act in a judicial capacity is apparent from the fact that the petition when approved must be submitted to the Common Pleas Court. And the next two sections provide for the giving of notice and the hearing of the petition and objections. Evidently the judicial function with reference to such petition is exercised by the Court of Common Pleas.
As to the second condition, it cannot be said that the exercise of such power by the commission is unauthorized. On the contrary, the law itself commands the exercise of the power. It is the claim of the relator that the transfer of funds requested by the village of Moreland Hills is unlawful. The relator does not claim that Sections 5625-13 a to 5625-13 g, General Code, are invalid or unconstitutional. He states merely that the transfer requested is illegal. The petition alleges that the commission has approved similar petitions. But such approval is not final and the relator has the right to oppose the proceedings in court. The same rule applies with reference to proceedings by the commission that has been applied to proceedings in court:
"Where a court has full and complete jurisdiction of the subject-matter of an action therein pending, a writ of prohibition will not be awarded to prevent an anticipated erroneous judgment. An adequate remedy is available by proceeding in error." State, ex rel. Carmody, v. Justice, Judge, 114 Ohio St. 94,150 N.E. 430.
As to the third condition, it is perfectly apparent from what has been said that another adequate remedy exists. Provision is made for the filing of objections in the Common Pleas Court and full hearings are prescribed. Counsel for the relator state that it would be very inconvenient for the relator to appear in every Common Pleas Court where such a petition is filed. But that is not to say that the remedy is inadequate. The principle is well established in Ohio that such writ may not be employed as a convenient short-cut to a final determination of rights of litigants; it may not be employed as a substitute for error; or for the ordinary available remedies. ( State, ex rel. The Knights Templar and Masonic Mutual Aid Assn., v. Common Pleas Court of Meigs County, 124 Ohio St. 493, 499, 179 N.E. 415; Silliman v. Court of Common Pleas of Williams County, 126 Ohio St. 338, 185 N.E. 420.) As stated in the opinion in the case of State, ex rel. Nolan, v. ClenDening, supra, if revisory jurisdiction has been conferred the relator will be required to avail himself of such remedy.
The provision that such petitions and objections should be heard in the Common Pleas Court is supported by a very sound public policy. The greatest convenience to the greatest number is conserved by hearing such matters in the local courts. If this court were to hold the petition sufficient in this case, then similar petitions would be filed by objectors in subsequent cases, and the legality of the petitions requesting authority to transfer funds would be tested in first instance in this court instead of in the Common Pleas Court as expressly provided by the statutes. A writ of prohibition will not issue where jurisdiction of the subject-matter has been conferred upon another court. State, ex rel. Cleveland Telephone Co., v. Court of Common Pleas of Cuyahoga County, 98 Ohio St. 164, 120 N.E. 335.
Demurrer sustained.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.