State ex rel. McMaken v. Tual

9 Ohio Cir. Dec. 42

• Court: Lucas Circuit Court
• Decided: February 25, 1895
• Status: Published

Opinion

Scribner, J.

This was a proceeding in mandamus against Charles E. Tual, as the sheriff of Lucas county, Ohio.

The relator sets forth in his petition that he is now and has been since September 3, 1894, the duly elected, qualified and acting treasurer of Lucas county, Ohio, and as such treasurer is the successor of Samuel A. Hunter, late treasurer of Lucas county, Ohio. i

That the defendant is now and has been since the first day of January, 1894, the duly elected, qualified and acting sheriff of Lucas county, Ohio.

Relator further says that by the consideration of the common pleas court of Lucas county, Ohio, in cause No. 33481, wherein Samuel A. Hunter, treasurer, was plaintiff, and John R. Osborn "et al. were defendants, the said Samuel A. Hunter, treasurer, received judgment against said John R. Osborn et al., defendants, and a decree ordering the sale of lot No. one (1) Boody’s addition to the city of Toledo and said Lucas county, Ohio.

That thereafter, and after the said Samuel A. Hunter, treasurer, had been succeeded to office by the relator herein, Jason A. Barber, attorney for relator, filed a precipe for an order of sale in said cause No. 33481, and thereupon the clerk of said common pleas court caused to be issued to the sheriff, defendant herein, an order of sale, directing him to appraise and sell said lot No. 1, Boody’s addition to the city of Toledo aforesaid, a copy of which order of sale is hereto attached marked “A.”

Relator further says that thereafter, and on, to-wit, the first day of February, 1895, the said sheriff, defendant herein, caused said appraisal and notice of sheriff’s sale of said lot No. 1 aforesaid, to be published in the Toledo Legal News.

The relator says that the said Toledo Legal News is not a newspaper printed and of general circulation in the county of Lucas, but is a technical publication solely lor the use of the courts and lawyers of the bar of said county, and devoted specially to the interests of the legal profession ; that the said Toledo Legal News contains no matters of general interest, but is simply a record of the proceedings of the several courts of said county, and of advertisements, including some of the decisions of the several courts of the state of Ohio, and occasionally other states, a court directory, cards of attorneys and counselors at law, a list of transfers of real estate in Lucas county, Ohio, the chattel mortgages filed in the city of Toledo in said county, and some miscellaneous advertisements and hotel arrivals; that except as above it does not publish or assume to publish the current news or news of the day.

Relator further says that there are newspapers printed and of general circulation within said county, in which said notice could have been published as required by law, but that the said Charles E. Tual, sheriff, defendant herein, refuses, though requested so to do, to publish said notice in any other publication than the said Toledo Legal News, and the relator says that such publication of said notice of sale is not and will not be a legal publication of said notice, and a purchaser under such sale will not acquire good title to said lot.

A copy of the issues of the said Toledo Legal News of the date the first of February, 1895, is hereto attached and marked “S.”

Next follows the prayer of this petition :

“ Wherefore the relator prays that a writ of mandamus may issue,, commanding the defendant, as sheriff of Rucas county, that he proceed according to law to publish said notice of the sale of said lot in a newspaper printed and of general circulation within said county of Rucas, in. accordance with the statute in such case made and provided.”

The petition is duly verified and a copy is attached of the paper mentioned in the petition, and a copy of the execution issued showing, that a judgment was recovered in the court of common pleas; that the execution was issued by the clerk of that court to the sheriff of Rucascounty, the defendant in this proceeding, as alleged in the petition.

And then follows the answer of the defendant, the sheriff of Rucascounty, which is quite voluminous in its nature and in which it is admitted, among other things, that the plaintiff is the treasurer of said county; that the defendant is the sheriff of said county ; that a decree was recovered in the court of common pleas as alleged in the petition; that an order of sale was issued to him as stated and that he has Gaused the-notice of sale to be published in the Toledo Legal News, as in. the petition, alleged, and various other matters are admitted in the answer, and some allegations of new matter are set forth in the answer.

The case was argued before us quite fully upon the testimony which, was submitted and upon the legal propositions which were involved in the case, and we have given to the examination of the case much consideration. We have examined very carefully and fully all the authorities which have been referred to, but, at the very outset of the investigation we have come to a question which seems to us to be of paramount control and importance in the case, and that is, as to- whether or not the court has jurisdiction to grant the prayer of this petition.

Section 6742, Rev. Stat., provides as follows:

“ The writ of mandamus may be issued by the Supreme Court, the circuit court, or the common pleas court; and although it may require am inferior tribunal to exercise its judgment, or proceed to the discharge of' any of its functions, it cannot control judicial discretion.”

There is no question but what the circuit court has jurisdiction in mandamus proceedings under that statute, and that is conferred by the-constitution as well as by the statute upon the circuit court ;.but, an important question arises in this manner; it seems that- according to the-undisputed allegations of the petition, the treasurer of the county recovered a judgment against the defendant named ,-and upon that judgment execution issued upon the order of the plaintiff, upon the judgment by the clerk of the court of common pleas, in which the judgment was-recovered, to the sheriff of the county, commanding him to proceed in the manner pointed out by the statute to enforce the decree — make the judgment.

Now the circuit court is asked, by virtue of the power committed to it, or conferred upon it, both by the constitution and the law in regard; to proceedings in mandamus, to require the sheriff in executing his process, not to advertise (because that is what it amounts to) the sale which would be required under the execution, with a- particular paper. The petitioner in the mandamus proceeding insists that the sheriff is about, to advertise in a publication known as The Toledo Legal News. The-statute requires, as stated in the petition, that notice of a sale under process issued upon a judgment shall be given, by advertisement in a newspaper printed and of general circulation in the county. The averment, of the petition is, that the sheriff has advertised but not in a newspaper of general circulation in the county, and this count is asked to do what ? 'To require the sheriff to proceed, in the language of the prayer of the petition : “ To proceed according to law to publish said notice of the sale of said lot in a newspaper printed and ot general circulation within .said county of Lucas.’ ’

The averment in the petition is that the paper in which the sheriff is proceeding to advertise is not a newspaper printed and of general circulation within the county of Lucas, and this court is asked to compel .him — require him — to proceed to advertise it, not in any particular newspaper, but in a newspaper of general circulation in the county, it being ■averred that the paper in which the sheriff is proceeding to advertise his notice of sale is not a newspaper printed and of general circulation in the county.

Now, in the first place, the writ which the sheriff is proceeding to ■execute is a writ issued to him by the court of common pleas. It does not issue from this court; it is a process over which the court from which it is issued has full control and in regard to which the court may ■order and direct the sheriff as to' it shall seem right and proper in obedience to the requirements of the law, and it would seem, therefore, possibly, proper that that court whose process is handed to the sheriff for execution — if he is directed by any authority — that he should be directed by the court of common pleas.

Suppose, for example, the sale should be made by the sheriff upon the writ in his hands. The court of common pleas is called upon to approve and confirm that sale; the sale is not complete until it has been confirmed or approved by the court of common pleas. Could this court, by any proceeding known to the law, interfere with the action of the court of common pleas in that case, for a sale made or the return of a sale made, by the sheriff of the county? It would seem to us very difficult to sustain a proposition of that kind.

In a case referred to, in an early volume of the Ohio Reports, cited in argument, a sale was set aside by the court acting upon the return of the sheriff.

In the cases cited during the argument, all of which we have examined, we find, in some instances, we find that a reviewing court has .acted upon the return of the officer and reversed the judgment, or affirmed it, as circumstances might seem to require, or there has been a ■direct application in the court itself where the process was issued and returned and which afterwards came up under review by the appellate ■court; but we find no case in which the court has undertaken, by a writ of mandamus, to order the sheriff to advertise in any particular publication and sell property under a writ issued to him from another court.

The cases bearing upon this subject may be found collected in Merrill on Mandamus, in sec. 34, and cases to some considerable extent are there cited.

But, again — as already stated — this court, if it made an order under this petition, would have to make it in conformity to the prayer of the petition. And that is what ? The court would have to require the sheriff to proceed to advertise in a newspaper printed and of general circulation within said county of Lucas. This court would not undertake to point •out a paper in which the sheriff should advertise. But practically, upon the statements contained in the petition and the grounds assigned for the interposition of the court, a mandate to advertise in some other paper han the Toledo Legal News, would be in effect equivalent to an injuncti'on forbidding the sheriff to advertise in the Toledo Legal News, for the reason, as is alleged, that is not a newspaper printed and of general circulation in the county. The court cannot, under any view of the law that it can regard, require the sheriff to advertise in any particular paper, but it is asked to command the sheriff, in effect, not to advertise in this particular paper.

Now, this court has no original jurisdiction in injunction proceedings — that is to say — an action cannot be brought in this court for an injunction originally, nor can an action be brought in the court of common pleas and an application be made to this court to grant an injunction, it has not the power to do it. As suggested in a case reported in the State v. Hahn, 50 O. S., 714, which was a proceeding brought to require the authorities to accept a certain sum as the amount of taxes due instead of an amount which was claimed on the part of the superintendent of insurance. This rule is laid down in the syllabus of the case:

1 “ Under sec. 2745, Rev. Stat., as amended April 19, 1893, a regular mutual life insurance company, incorporated under the laws oi another state, and doing business in this state, and having filed its sworn statement in the office of the superintendent of insurance, within sixty days after January 1, 1893, as required by sections 3606 and 3608, is required to pay to the superintendent of insurance in the month of December, 1893, such sum, as added to the amounts paid to the different county treasurers, will produce an amount equal to two and one-half per cent, of the gross premiums and assessment receipts of such company for the year 1892, as shown by such statement filed in the department of insurance.”

And now here is the proposition:

2 “ Mandamus is not the proper remedy to test the question of the amount of taxes to be paid to the superintendent of insurance under sec. 2745, Rev. Stat., and to prevent the superintendent of insurance from revoking the license of an insurance company to do business in this state. Injunction is the proper remedy in such case.”

In that case, after setting out the facts upon which the relator relies as entitling him to a reduction of the amount of the taxes claimed, he prays in his petition : “ That the superintendent be commanded to receive and permit the filing of said supplemental statement, and to accept said sum of $1,957 as payment in full of all demands on the relator.” The court in its opinion goes into the construction of the statute and the rights of the parties under it and overrules the demurrer which the relator filed to the answer of defendant. Practically the result was a decision of the case, so far as the principle involved was concerned; in favor of the defendant, the superintendent of insurance. But Minshall, Judge, when he comes to give his views upon the matter, says at page 719 :

“ This court has original jurisdiction in quo warranto, mandamus, habeas corpus, andprocedendo, and none other. It has no original jurisdiction in matters of injunction, and none can be conferred by the legislature. To assumeit in any case, is simply judicial usurpation. This is a suit for an injunction in the form of a proceeding in mandamus. The form, however, is nothing; it is the substance which gives real character to the proceeding. Hence this court has no jurisdiction of the subject-matter of the suit, and it should be dismissed for want of jurisdiction. I should not, probably, differ from the construction placed on the statute by the majority, if the case were before us in- a proceeding in error ; but it is not, and the construction given can only be regarded as an extra judicial opinion.”'

This is precisely the view that we take of this case. We are constrained to take that view of it. It is, although, in form, a proceeding, in mandamus — a proceeding to require the sheriff to perform the duty imposed upon him by law in the way of advertising — it is practically a proceeding to enjoin him, or to forbid him, from advertising in the Toledo Legal News; which, in our judgment, is simply, in substance, though not in name, a proceeding for an injunction against the sheriff, in which we have no original jurisdiction.

Now, while we regret that the rule of law leads inevitably to this-conclusion, we cannot avoid the duty of declaring what in our judgment the law is.

Under this view of the case — and which we have considered with' very much care and after a thorough examination of the authorities — our judgment is that the petition must be dismissed for want of jurisdiction».