Board of County Commissioners v. Harshman

102 Ohio St. (N.S.) 452

• Court: Ohio Supreme Court
• Decided: May 24, 1921
• Docket: No. 16885
• Status: Published

Opinion

By the Court.

This was originally a proceeding brought by the defendant in error against the plaintiff in error, the board of county commissioners, seeking an injunction to prevent a proposed improvement of Beaver creek in Greene county by certain alterations in the channel thereof, pursuant to a proceeding pending before the commissioners.

The petition contained definite allegations as to the illegality of the proposed proceedings of the commissioners; issue was made up by pleadings,' and, after judgment in the court of common pleas in favor of the commissioners, the cause was appealed to the court of appeals of Greene county where a decree was rendered in favor of the plaintiff, and the commissioners were enjoined from proceeding with the proposed improvement. Subsequently, on March 23, 1918, on motion of the commissioners, the former decree of judgment was modified. Under the modified decree the commissioners were authorized to proceed with the improvement in a certain specified manner. The modified decree required that certain outlets should be provided into the new channel of the stream and that a certain concrete wall should be constructed of sufficient length and height to prevent the water from overflowing in the direction specified in the decree.

On December 17, 1919, a complaint in contempt against the county commissioners having been filed in the court of appeals for failure and refusal to comply with the former amended decree of the court, rendered on the 23d day of March, 1918, to which complaint the commissioners filed answer, the court made a further order, and found that the amended decree, entered on the 23d of March, 1918, “was rendered by this court upon the agreement of all the parties to this suit, and that the terms and conditions should be carried out by the defendant Board of County Commissioners of Greene county, Ohio, and that the defendant Board of County Commissioners of Greene county, Ohio, have not complied with or carried out the orders of said original amended decree as ordered .by the court.”

The court thereupon included in its entry an order requiring the commissioners to comply with the making of the improvements provided for in said original amended decree, on or before May 15, 1920, and set forth in the decree a specific detailed statement of the things to be done in that behalf.

On December 11, 1920, on the hearing of the complaint made to the court of appeals, the members of the board of county commissioners were by that court adjudged to be guilty of contempt in failing to comply with the former judgment and decree of the court and were each fined five dollars and the costs of prosecution.

This proceeding is brought to reverse that finding and judgment of the court of appeals.

It is contended by the plaintiff in error that there is not shown in the record any indication of intention by the commissioners to disobey the order of the court and that the commissioners were without the authority in law and means to proceed with the doing of the work specified in the order of the court.

It will be noted that the modified order of the court of appeals was made on the motion of the commissioners and agreed to by the parties in the case. The questions of fact alleged in the complaint in the contempt proceeding were submitted to and tried by the court of appeals. No reason is shown why this court should disturb the finding of the court of appeals on those issues and we are of the opinion that the finding and order of the court are fully justified.

The judgment of the court of appeals will be therefore affirmed.

Judgment affirmed.

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