State ex rel. Gilligan v. Hoddinott , 36 Ohio St. 2d 127 ( 1973 )

Cblebeezze, J.

Mention of the writ of prohibition first appeared in the Ohio Constitution in 1912 and is found in Section 2, Article IY. Since it was not defined by the General Assembly, or in the Constitution, it has developed according to common-law principles.

In the case of In re Rice (1894), 155 U. S. 396, the Supreme Court of the United States set out the requirements. for granting the writ:

“Where it appears that the court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset and has no other remedy is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record * * * the granting * * * 0f the writ is discretionary.”

In State, ex rel. Nolan, v. ClenDening (1915), 93 Ohio St. 264, the court made clear that the writ of prohibition applies to the exercise of judicial or quasi-judicial power, where the exercise of the power was unauthorized by law, and where the exercise of such power would cause injury for which no other adequate remedy exists. These ClenDening requirements still retain substantial vitality in Ohio. See, generally, 63 American Jurisprudence 2d 225, Prohibition; 44 Ohio Jurisprudence 2d 169, Prohibition.

It is clear that a judge who decides to issue an order finding a person in contempt is exercising judicial power. The first requirement in ClenDening, supra, is met in this cause since Judge Hoddinott informed counsel for Governor Gilligan that he had decided to find the Governor in civil contempt.

It is equally clear that a Court of Common Pleas is a court of general jurisdiction, having the power to enforce its lawful orders by way of proceedings in contempt. Respondent argues, therefore, that since he clearly had the power to issue a preliminary injunction, and to enforce that injunction, he had jurisdiction over the cause before him; that, therefore, prohibition will not lie. Respondent cites State, ex rel. Rhodes, v. Solether (1955), 162 Ohio St. 559; State, ex rel. Mansfield Telephone Co., v. Mayer (1966), 5 Ohio St. 2d 222; State, ex rel. Toledo Shore Line Rd. Co., v. Court of Common Pleas (1967), 11 Ohio St. 2d 193.¹

This court has no quarrel with the principles adopted in the above eases. However, the question which must be determined is whether the Court of Common Pleas, through its preliminary injunction, had the authority and the jurisdiction to interfere with the Governor in the performance of executive acts which were dependent upon his judgment or discretion.

In State, ex rel. Armstrong, v. Davey (1935), 130 Ohio St. 160, 163, wherein the Governor had discretion in setting the date for a special election, the court stated:

“* * * No executive act dependent upon the judgment or discretion of the Governor is subject to judicial control, and mandamus will not lie unless there has been a clear abuse of discretion.

“ ‘Before the judiciary will interfere in such a case, it must clearly appear that such officer has so far departed from the line of his duty under the law that it can be said he has in fact so far abused such discretion that he has neglected or refused to exercise any discretion. ’ 38 Corpus Juris, 660, Section 199.”

The Governor had before him evidence which reasonably established that an inflammatory situation existed which could lead to injury to persons and property in the area of Burr Oak State Park. The Governor has the duty to protect the citizens of the state and state property from harm. He took discretionary executive action to close Burr Oak State Park because he had determined that the situation warranted such action. In the circumstances before us, we do not find a clear abuse of discretion. Therefore, the Court of Common Pleas exceeded its jurisdiction when the decision was made to hold the Governor in contempt.

This holding should not be read as an affirmation of extraordinary powers in the Governor. Rather, our decision involves a comparison of competing interests. The Governor’s exercise of discretion was aimed at protecting state citizens and state property from harm. That interest far outweighs the interest which Ohio Inns has in protecting its contract rights.

Respondent also argues that, even though the other requirements for granting prohibition may be met, appellate review of a finding of contempt would be an adequate remedy in the ordinary course of the law. However, in State, ex rel. Tempero, v. Colopy (1962), 173 Ohio St. 122, this court upheld the issuance of a writ of prohibition by the Court of Appeals, even though an adequate remedy was available:

‘ ‘ This court in the exercise of its discretion will usually refuse to allow a writ of prohibition or of mandamus where the relator has an adequate remedy in the ordinary course of the law. However, it has the power to, and may in the exercise of its discretion, issue such a writ in such an instance.”

There are times when the exercise of sound discretion in the performance of executive acts represents the highest calling of a chief executive officer.² Absent a clear showing of abuse of that discretion, the judicial branch of government must refrain from interfering in that exercise.

For the foregoing reasons, the writ of prohibition is allowed.

Writ allowed.

O’Neill, C. J., Iíeebert, CoeRigan, Steen and W. Beown, JJ., concur. P. Beown, J., dissents.

1 Respondent argues that the Common Pleas Court must make the initial determination of jurisdiction. We agree, but that determination was made when the judge orally told counsel for relators that he was going to hold them in contempt.

2 See United States v. Chalk (C. A. 4, 1971), 441 F. 2d 1277; Bright v. Nunn (C. A. 6, 1971), 448 F. 2d 245; Krause v. Rhodes (C. A. 6, 1972), 471 F. 2d 430.