DocketNumber: Nos. 387 and 1814
Citation Numbers: 277 N.E.2d 448, 28 Ohio App. 2d 281
Judges: <italic>Per Curiam.</italic>
Filed Date: 9/18/1968
Status: Precedential
Modified Date: 1/13/2023
I would add a few observations to the foregoing decision with which I concur.
Even if, for the sake of argument, the Court of Appeals had jurisdiction to maintain an original action in mandamus and in prohibition concerning the subject matter of an election controversy in both cases, the substantive law applicable to the facts stated in both petitions would require a denial of relief to relator in both cases. I prefer to emphasize the substantive law applicable and to predicate our decision entirely upon it rather than upon rules of law delineating and concerning original jurisdiction of the Court of Appeals in mandamus and prohibition which rests on the shifting sands of questionable results in some controlling cases of our highest state court.
In the original mandamus action in the Court of Appeals for Portage County, Case No. 387, the relator, designated plaintiff herein, sought a writ of mandamus primarily to order respondents, designated defendants herein, to proceed with an official recount of ward 3 in Aurora village, Portage county, which relator's opponent, Hoose, had demanded, concerning the Democratic nomination for a six-year term as judge of the Court of Appeals of the Eleventh Appellate District, before making any revision or correction of the official abstract of votes cast in the primary election for that office. Also, it demands that if a revised abstract had been made and certified (which it already had) to the Trumbull county board of elections, the most populous county in the Eleventh Appellate District, *Page 284 such official revised abstract should be further amended to conform to the first official abstract issued by the Portage county board of elections.
The first official abstract made relator the winner in the district by five votes, and the revised or corrected official abstract made her the loser by six votes.
Predicated on the Portage county proceedings, the plaintiff in the original prohibition action in the Court of Appeals for Trumbull county, case no. 1814, sought a writ of prohibition primarily prohibiting the Trumbull county board of elections from canvassing the purported amended official abstract from the Portage county board of elections and from making an amended declaration of the results of such election based on such purported amended abstract.
When the recount hearing for ward 3 in Aurora village was held, all of the marked ballots were missing and could not be found. The hearing developed uncontradicted facts that the ward 3 tally or work sheet, summary statement and report accounting for ballots, and poll book, all prepared by ward 3 election officials in the course of their duties, and the Democratic unofficial count, revealed 40 votes for Hoose and 39 votes for Cullinan. However, without any explanation by anyone concerning the reason for the variance, the Democratic party official count and report by the Portage county board of elections given to Trumbull county for ward 3 in Aurora village, showed 30 votes for Hoose and 39 for Cullinan.
Thereupon, the Portage board recognized the error and discrepancy and revised and amended the original Democratic party official abstract to reflect the correct fact that ten votes should be added to the total cast for Hoose in ward 3, Aurora Village. This revision made Hoose the winner of the nomination.
On the basis of the above factual summary, the Portage county board of elections had the mandatory duty to make this corrected abstract by reason of paragraph 5 of R. C.
The statutory recount procedure under R. C.
The relator challenges the jurisdiction of the Court of Appeals of Portage county, in case no 387, to proceed to final judgment in this action after the date respondents filed a notice of appeal to the Ohio Supreme Court from the final order granting a peremptory writ, without hearing, to relator. The Court of Appeals, thereafter, vacated the peremptory writ. Subsequently, this appeal to the Ohio Supreme Court was either dismissed for want of prosecution, or the notice of appeal was removed by order of the Court of Appeals. Relator contends the filing of the notice of appeal directed to the judgment granting a peremptory *Page 286 writ caused the Court of Appeals to lose jurisdiction of the subject matter and it lost the right to make further orders in the case. Such a position is untenable.
An appeal on questions of law does not necessarily bring an entire case before the appellate court, but affects only the final order, judgment or decree sought to be reviewed. As to the remainder of the cause, the lower court retains all jurisdiction not inconsistent with that of an appellate court to review, affirm, modify or reverse the final order, judgment or decree from which the appeal was perfected. In re Kurtzhalz,
The jurisdictional objections raised in the per curiam
opinion, for maintaining an original mandamus action filed in the Court of Appeals for Portage county, is fully supported by thePressley case, supra,1 cited therein, and especially paragraph 4 of the syllabus2 and on the basis of at *Page 287
least five other very recent cases decided by the Ohio Supreme Court. State, ex rel. Central Service Station, Inc., v.Masheter,
In Sibarco, supra, where there was an original action in mandamus in the Court of Appeals, relief was denied *Page 288 by the Ohio Supreme Court, reversing the Court of Appeals, because there was an adequate remedy at law by administrative appeal under chapter 2506, Ohio Revised Code. In Durek, supra, where there was an original action in mandamus in the Court of Appeals, the writ was denied by the Court of Appeals, and the judgment affirmed by the Ohio Supreme Court, for the stated reason that whatever remedy existed should have been asserted by relator in the Common Pleas Court by the appropriate form of action — a mandatory injunction or statutory mandamus.4Danford, supra, concerned an original action in mandamus in the Court of Appeals, and the Ohio Supreme Court held that the writ should be denied because there was a plain and adequate remedy by way of mandatory injunction in the Common Pleas Court.5 The Singer case, supra, concerning *Page 289 an original action for mandamus relief in the Court of Appeals, and the Ohio Supreme Court held that the writ should not be granted where it is sought as a substitute for an administrative appeal under R. C. chapter 2506.
The foregoing sample of original mandamus actions in the Court of Appeals exhibits the confusion rampant in the area of mandamus proceedings. When a relator seeks a writ of mandamus in the Common Pleas Court, he will be denied relief because he should have sought injunctive relief in that same court, and vice versa. Thus, he would forever be on a judicial treadmill never able to get off and select the correct remedy to afford relief, a total frustration of the purpose and objective of all law and legal remedies. State, ex rel. Marshall, v. CivilService Commission,
The Durek, Danford, and Central Service Station cases, supra, appear to have been modified by the Pressley case without the majority of the Ohio Supreme Court expressly so stating.
The Ohio Supreme Court in Pressley, has thrown a further cloud of uncertainty on the meaning and extent of *Page 290 the application of paragraph four of the syllabus thereof, cited in the per curiam opinion, by reason of paragraphs five and six thereof which read as follows:
"5. Where a petition stating a proper cause of action in mandamus is filed originally in the Supreme Court, and it is determined that there is no plain and adequate remedy in the ordinary course of the law by way of an appeal, the Supreme Court has no authority to exercise jurisdictional discretion and the refusal to exercise jurisdiction on the ground that either of the extraordinary remedies of statutory mandatory injunction (Section
"6. The extraordinary remedies of statutory mandamus and statutory mandatory injunction are not plain and adequate remedies in the ordinary course of the law and the availability of these extraordinary remedies in the Common Pleas Court is not a ground upon which the Supreme Court can adopt or adhere to a rule that it is error for the Supreme Court or the Court of Appeals to exercise jurisdiction in a mandamus action filed originally therein. (Perkins v. Quaker City,
It is for the foregoing reasons that I prefer to base our decision on the substantive law, rather than upon the adjective law and jurisdictional question which is surrounded by the foregoing confusion and uncertainty.
"A mandamus action which will lie originally in this court will also lie under statutory mandamus in the Common Pleas Court. How, then, can it be asserted, as is now contended, that a party who has drafted and filed in this court a petition which states a cause of action in mandamus, which mandamus action would also lie in the Common Pleas Court, must be told by this court that it will not exercise original jurisdiction in his mandamus action because he can change the label on that petition to statutory mandatory injunction and file it in the Common Pleas Court? Such an interpretation is barred by the language of the Constitution, last sentence of Section 2, Article IV, which says that `no law shall be passed * * * whereby any person shall be prevented from invoking the original jurisdiction of the Supreme Court.' (Emphasis added.) Therefore, such an interpretation would constitute a circumvention by this court of the Constitution (last sentence of Section 2, Article IV) and the pronouncement of law in State, ex rel. Toledo, v. Lynch,Aud., supra, and the express intention of the Constitutional Convention of 1912.
"In this instance, there is no relevant distinction between statutory mandamus and statutory mandatory injunction which permits such a rule. Both remedies provide the same relief."
At page 151, the court said:
"The fact that such a cause of action could also be stated in a petition for a statutory mandatory injunction in the Common Pleas Court is not ground under this rule for dismissing the petition in mandamus."
And at 153: "Mandatory injunction is an extraordinary remedy. [Emphasis supplied.] * * * This court cannot make a rule that it is error for the Supreme Court or the Court of Appeals to exercise original jurisdiction in mandamus, where the petition states a proper cause of action in mandamus, upon the ground that there is a plain and adequate remedy available in the ordinary course of the law provided by the statutory remedy of mandatory injunction. * * *"
"This is in accord with R. C.
"* * * The primary function of an injunction is to restrain motion and to enforce inaction, while the purpose of mandamus is to set in motion and to compel action. An injunction ordinarily is employed to prevent future injury, while the purpose of mandamus is to redress past grievances. Clearly the latter is called for here."
Although Pressley, supra, at pages 150, 151 and 152, discusses cases where the petition in mandamus stated facts where the real object was mandatory injunction, and the writ accordingly denied, such as State, ex rel. Stine, v. McCaw,