State, Ex Rel. Cullinan v. Boards, Elections

277 N.E.2d 448, 28 Ohio App. 2d 281, 57 Ohio Op. 2d 443, 1968 Ohio App. LEXIS 422

• Court: Ohio Court of Appeals
• Decided: September 18, 1968
• Docket: 387 and 1814
• Status: Published

Opinions

Per Curiam.

These causes were filed originally in the courts of appeals of the counties designated above.

The petition in cause no. 387, the Portage county case, contains a prayer for a writ of mandamus. The petition in cause no. 1814, the Trumbull county case, contains a prayer for a writ of prohibition. Both actions will be considered together in this opinion.

We believe we can readily dispose of cause no. 387 under the bolding of the Supreme Court in State, ex rel Pressley, v. Indus. Comm., 11 Ohio St. 2d 141. The fourth paragraph of the syllabus is as follows:

“Where a petition filed in the Supreme Court or in the Court of Appeals is in the form of a proceeding in man damus but the substance of the allegations makes it manifest that the real object of the relator is for an injunction, such a petition does not state a cause of action in mandamus and since neither the Supreme Court nor the Court of Appeals has original jurisdiction in injunction the action must be dismissed for want of jurisdiction * * * (citing cases).”

We are of the opinion that, in cause no. 387, relator, in substance, is asking for an injunction when she asks for a writ of mandamus and hence under the holding of Pressley this court is without jurisdiction to entertain the action.

R. C. 3513.22 provides, in part, as follows:

“If, after certifying and sending abstracts and parts thereof, a board finds that any abstract or part thereof is incorrect, it shall promptly prepare, certify, and send a corrected abstract or part thereof to take the place of such incorrect abstract or part theretofore certified and sent.”

In correcting the abstracts, the respondents, in cause no. 387, did exactly what the mandate of the law required. Therefore, to issue the writ of mandamus as requested by relator would prevent respondent board of elections, in cause no. 387, from performing an act especially enjoined on them by law.

Plaintiff has not stated a cause of action in cause no. 387. In fact, she has asked for relief contrary to the provisions of R. 0. 3513.22.

We are also of the opinion that the observations made above apply with equal force to cause no. 1814.

The majority of this court wishes to emphasize that its decision is not based upon a procedural matter as stated in the separate concurring opinion. The holding of Pressley states that neither a court of appeals, nor the Supreme Court has original jurisdiction in the matter under this factual situation. We wish to further emphasize the fact that a court must have jurisdiction of the subject matter and the relator must state a cause of action in order to get into and stay in court. It is the considered opinion of the majority of this court that relator has neither invoked the jurisdiction of the proper court under the holding of Pressley, nor stated a canse of action in either of her petitions. Therefore, relator’s petitions must be dismissed.

Petitions dismissed.

Beown, Gray and McLaughlin, JJ., concur.

Geay, J., of the Fourth Appellate District, McLaughlin, J., of the Fifth Appellate District, and Brown, J., of the Sixth Appellate District, sitting by designation in the Seventh Appellate District.