State ex rel. Grant v. Joint Board of County Commissioners , 106 Ohio St. (N.S.) 201 ( 1922 )

By the Court.

While the joint board of county commissioners of Wood and Hancock counties and the board of county commissioners of Wood county are made parties defendant in this action, together with the board of county commissioners of Hancock county, and while it appears that the joint board of county commissioners of Wood and Hancock counties and the board of commissioners of Wood county are not made parties in the action pending in the court of common pleas of Hancock county, the petition discloses that the board of county commissioners of Wood county, both as a county board and as members of the joint board, is quite willing to be mandamused as prayed for herein, for it appears by the petition that at its last meeting held on the 26th day of April, 1922, the three Wood county members voted to proceed with the construction of the improvement and the three Hancock members voted against proceeding therewith. It further appears by the petition that the board of commissioners of Wood county has provided for the issuance of the bonds of the county to raise the funds necessary to pay its portion of the cost of the improvement, and it is apparent that the failure of the board to offer the same for sale is due to the failure of the board of commissioners of Hancock county to act because of the litigation in one form or another that is now and has been pending in the court of common pleas of Hancock county ever since the 7th day of September, 1921, and were it not for the fact that the board of county commissioners of Wood county and the joint board of county commissioners of Wood and Hancock counties are not parties to the cause pending in Hancock county it would not be contended that the filing of the petition in mandamus here could supplant the jurisdiction already acquired by the court of common pleas of Hancock county, and since the only purpose of this proceeding appears to be to compel the members of the board of county commissioners of Hancock county in their dual capacity as members of that board and as members of the joint board to perform their alleged duties with reference to the improvement, which the pending cause in Hancock county seeks to enjoin them from performing, and since the only issues here are among the issues pending there, this court will not simply because of the joining of the board of county commissioners of Wood county, who as such board and as members of the joint board are willing and anxious to do all the things here sought to command them to do, supplant the jurisdiction already acquired by the court of common pleas of Hancock county.

The demurrer will, therefore, be overruled and the petition dismissed.

Demurrer overruled and petition dismissed.

Marshall, C. J., Hough, Wanamaker, Robinson, Jones, Matthias and Clark, JJ., concur.