Opinion · Ohlaw Ohio
STATE EX REL. v. RHODES, 165 Ohio St. 414 (1956)
136 N.E.2d 60
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1956-07-05
- Topic
- general
STATE EX REL. v. RHODES, 165 Ohio St. 414 (1956) 136 N.E.2d 60 THE STATE, EX REL. BARBER, PROS. ATTY., APPELLEE v. RHODES, AUD., ET AL.,APPELLANTS, ET AL.
Citator
UpLaw has not yet analyzed STATE EX REL. v. RHODES, 165 Ohio St. 414 (1956). The absence of a flag is not a finding that it is good law.
STATE EX REL. v. RHODES,165 Ohio St. 414(1956)
136 N.E.2d 60
THE STATE, EX REL. BARBER, PROS. ATTY., APPELLEE v. RHODES, AUD., ET AL.,
APPELLANTS, ET AL.
No. 34679
Supreme Court of Ohio.
Decided July 5, 1956.
1. Section2307.35, Revised Code, providing that an action against a public officer, for an act done by him in virtue or under color of his office or for neglect of his official duty, "must be brought in the county where the cause of action or part thereof arose," confers an absolute right on such an officer of which he may not be deprived, and the joinder of codefendants who reside outside the county where the cause of action arose does not deprive the officer of his right under this section.
2. In an action against the treasurer, auditor and clerk of courts of a county and the Auditor of State, the Treasurer of State and the state Director of Finance to enjoin the county officers from paying over taxes collected for the state until claimed overpayments by the county for the state's care of feeble-minded persons of such county are refunded, to temporarily enjoin the state officers from attempting such collections, and to require the state officers to make an accounting in connection with such overcharges, which action is brought in a county other than that in which the Auditor of State, Treasurer of State and state Director of Finance have their official state offices, a motion to quash service of summons on such state officers, filed by them on the ground that Section2307.35, Revised Code, requires the action to be brought in Franklin County, their official residence, and that the court is, therefore, without jurisdiction over such defendants, is properly sustained.Page 415
This cause originated in the Court of Common Pleas of Fulton County.
In his petition plaintiff alleges that he is the prosecuting attorney of Fulton County, Ohio, and brings this action under favor of Section309.12, Revised Code (Section 2921, General Code); that the defendants are James A. Rhodes, Auditor of the State of Ohio; Roger W. Tracy, Treasurer of the State of Ohio; Herbert D. Defenbacher, Director of Finance of the State of Ohio; S.M. Gorsuch, treasurer of Fulton County; Mabel Meeker, Clerk of the Common Pleas Court of Fulton County; and Earl Morr, auditor of Fulton County; that for the year 1931 the Treasurer of State and his predecessors in office charged and collected from Fulton County funds for the support of inmates in feeble-minded institutions of the state of Ohio who were committed from Fulton County; that said charges and collections were made on the basis of $5.50 per week for each such person committed to such institutions; that from 1931 to 1942, inclusive, said treasurer and his predecessors charged and collected from Fulton County funds for said purpose on the basis of $3.50 per week for each such person committed to such institutions; and that the total amount charged and collected for said years was $34,189.50.
Plaintiff alleges further that said rate was arbitrary and in excess of the actual cost of support of said inmates of such institutions for the years stated; that the cost of supporting said inmates from 1931 to 1939, inclusive, did not exceed an average of $3.05 per person per week; that from 1939 to 1942, inclusive, the cost of supporting each of said inmates did not exceed an average of $3.60 per week; that from the year 1931 to the year 1942, inclusive, the Treasurer of State charged and collected from Fulton County a net full charge, above the actual cost of maintenance for said inmates, of $28,408.64 and the further sum of $2,857.78 as overpayment by mistake, during the first half of the year 1931; that prior to 1944 the Board of County Commissioners of Franklin County instituted an action against the Auditor of State and the state Director of Finance in the Court of Common Pleas of Franklin County, praying forPage 416an accounting of the sums due by reason of overcharges; and that the county commissioners of Fulton County did not institute a like action but relied on an agreement with the Attorney General of Ohio that a like adjustment would be made for overpayments by Fulton County.
Plaintiff alleges further that in 1938 Fulton County was given a credit of $2 per week for each person committed to such an institution during the years 1932 to 1938, inclusive; that thereafter from 1939 to 1948 the state of Ohio failed, refused and neglected to perform the agreement; that in 1947 Fulton County received part payment on account of overcharges in the amount of $2,240.49; that the Treasurer of State still has in his possession $6,398.17, the balance of the sums theretofore received from Fulton County for the support of such inmates; that he refuses to apply such excess collection to the repayment to Fulton County for such support; that the sum of $6,398.17 has been illegally withdrawn from the treasury of Fulton County; that the Auditor of State, Treasurer of State and state Director of Finance have collected, are now collecting and will continue to collect from Fulton County moneys for the maintenance and operation of the Bureau of Inspection and Supervision of Public Offices and for compensation of state examiners and assistants, as well as for hospital care of crippled children, inheritance taxes, levy for bond retirement, taxes on real estate and personal property, sales tax, casual and use tax, notation of liens, auto titles, and other items normally due the state of Ohio from the treasurer, auditor and Clerk of the Common Pleas Court of Fulton County; that such sum will be placed in the state treasury and will be used for the purposes of the state of Ohio, although Fulton County, as hereinbefore stated, has now in the state treasury said sum of $6,398.17 for which it is entitled to credit from the state of Ohio; that the Auditor of State and state Director of Finance will illegally draw from Fulton County funds so allegedly due from Fulton County and said moneys will be misapplied, for all of which plaintiff has no adequate remedy at law; and that each of said defendants will perform each of said acts, although there is no sum due from Fulton County, unless restrained therefrom by order of the court.Page 417
Plaintiff alleges further that the treasurer of Fulton County, Clerk of the Common Pleas Court of Fulton County and auditor of Fulton County will, unless restrained by order of the court, issue warrants, pay and permit to be paid further and additional sums of money on the charges hereinbefore mentioned to the state of Ohio before receiving credit from the state for the sum due Fulton County from the state, for which plaintiff has no adequate remedy at law; and that all the defendants are necessary parties to a complete determination and settlement of the questions involved.
The prayer of the petition is for a temporary injunction enjoining the Auditor of State, Treasurer of State and state Director of Finance from collecting or attempting to collect any such funds due or claimed to be due the state of Ohio from Fulton County or from withholding any now due; that the treasurer of Fulton County, clerk of courts of Fulton County and auditor of Fulton County be enjoined from paying to the Auditor of State, Treasurer of State and state Director of Finance any such sums of money now due or to become due from Fulton County to the state, until further order of the court; that upon final hearing said injunction be made permanent until the money in the treasury of the state and the credits due Fulton County, as alleged herein, be properly applied; and that the Auditor of State, Treasurer of State and state Director of Finance be required to make an accounting of all funds in the treasury of the state, collected as hereinbefore stated.
The Auditor of State, Treasurer of State and state Director of Finance filed a motion in the Common Pleas Court of Fulton County to quash service of summons on them "for no other purpose, and without submitting themselves to the jurisdiction of this court," for the reason that Section2307.35, Revised Code, requires that this action be brought in Franklin County and the Common Pleas Court is without jurisdiction.
The Common Pleas Court of Fulton County sustained the motion to quash service of summons and dismissed the cause as to the Auditor of State, Treasurer of State and state Director of Finance.
An appeal was thereupon prosecuted to the Court of AppealsPage 418for Fulton County, and that court reversed the judgment of the Court of Common Pleas and remanded the cause for further proceedings.
The cause is before this court upon allowance of a motion to certify the record.
"When the action isrightly broughtin any county, according to Sections2307.32to2307.40, inclusive, of the Revised Code, a summons may be issued to any other county against one or more of the defendants at the plaintiff's request * * *." (Emphasis added.)
On the other hand, the defendant state officers claim that they may not be subjected to the jurisdiction of the Common Pleas Court of Fulton County in this case because no cause of action arose against them in that county, even though they were made codefendants in the action with certain county officers of that county who may properly be sued in that county. The defendant state officers, therefore, filed their motion to quash service against them, predicating their right so to do on the provisions of Section2307.35, Revised Code, the pertinent parts of which are as follows:
"Actions for the following causes must be brought in the county where the cause of action or part thereof arose;
"* * *
"(B) Against a public officer, for an act done by him inPage 419virtue or under color of his office, or for neglect of his official duty * * *."
Section 11271, General Code (Section2307.35, Revised Code), was construed by this court in the case ofState, ex rel.Hawley, v.Industrial Commission,137 Ohio St. 332,30 N.E.2d 332. That case was an action in mandamus instituted in the Court of Appeals for Summit County by a claimant seeking to require the Industrial Commission to revoke an order theretofore made denying him further workmen's compensation. The commission filed its motion to quash service without entering its appearance, which motion was sustained on the ground that the cause of action based on a refusal to hear a claim for compensation arose in Franklin County which was the locus of the commission. The judgment of the Court of Appeals sustaining the motion was affirmed by this court.
The particular language of the statute which is applicable in the instant case was the basis of that judgment, and the question of where a cause of action arises where a claim is made against a state officer or commission was considered. The conclusion reached was that a cause of action arises at the place where the facts creating the necessity for bringing the action occur.
Other states have similar statutes establishing the venue of an action against a public officer as that place where the cause of action or part thereof arose. Such statutes requiring an action against a public officer for acts done by virtue of his office to be brought in the county where the cause of action arose have been held to confer an absolute right on the officer of which he may not be deprived. The privilege is a personal one which he may waive without affecting the jurisdiction. 92 Corpus Juris Secundum, 760, Section 54; 43 American Jurisprudence, 248, Section 502. SeeState, ex rel. Stephens, v.District Court,43 Mont. 571,118 P. 268. It has also been held that, where the statute so provides, the action must be commenced where the cause of action arose, and the joinder of codefendants who reside outside the county where the cause of action arose does not change the statutory rule. 43 American Jurisprudence, 248, Section 502. See, also, Ann. Cas. 1912C, 346, andHuberv.Wanner, Sheriff,62 N.D. 303,243 N.W. 661.Page 420
Thus, the single question presented to this court is whether the petition sets forth a cause of action which arose in Fulton County against the Auditor of State, Treasurer of State and state Director of Finance.
The charges made by the state for the care of feeble-minded inmates in state hospitals, in connection with which the claimed overcharges resulted, arose under the provisions of Section 1815-12, General Code (108 Ohio Laws, 552, 554), which was repealed August 23, 1943. That section as it then existed provided as follows:
"The county from which an inmate of an institution for the feeble-minded was committed shall be liable for such inmate's support, provided the same is not paid otherwise as provided by this act. The treasurer of each county shall pay to the Treasurer of State, upon the warrant of the county auditor, the amount chargeable against such county for the preceding six months for all inmates therefrom not otherwise supported, upon the presentation of the statement thereof. * * *"
The practice established by this statutory provision required the treasurer of each county to pay to the Treasurer of State the amount due "upon the presentation of the statement thereof." The petition in the instant case alleges that payments were made by the county officers upon such requests by the state, and there is nothing in such practice which would of itself give rise to a cause of action against the state officers in each county to which a statement of the amount due was directed.
Considering the petition as a whole, in connection with the prayer as against the Auditor of State, Treasurer of State and state Director of Finance, plaintiff seeks a temporary injunction enjoining them from collecting funds due or claimed to be due the state of Ohio from Fulton County and an accounting of all such funds in the treasury of the state of Ohio or collected by the state of Ohio as overpayments. No acts or action in Fulton County of the defendant state officers is involved. On the other hand, plaintiff seeks, as against the clerk of courts, auditor and treasurer of Fulton County, a permanent injunction against paying any money due or to become due to the statePage 421until the credits due Fulton County are properly applied. It may well be that the petition states a good cause of action against the defendant county officers but that does not solve the problem as to the state officers.
The gist of this action, as it relates to the defendant state officers, is the establishment of a debt or claim against the state of Ohio in favor of Fulton County for moneys claimed to have been overpaid to the state. This fact clearly appears on the face of the petition. The locus of that debt, if there be one, must be the county where the official duties of the officers representing the state of Ohio as to that matter are performed or carried on — Franklin County. The mere presentation of a statement of claim by a state officer to a public officer of a county for the payment of a claimed debt against the county under an appropriate statute does not constitute a breach of official duty giving rise to a cause of action against the officer within the county to which the demand is sent. We are not dealing with a situation where a state officer is bringing suit against a county or county officer to collect a claimed debt from the county.
This controversy has its foundation in a misinterpretation by state and probably by county officers of a statute which gave rise to a decision by this court in the case ofState, ex rel.Herbert, Atty. Genl., v.Vermillion, Admr.,145 Ohio St. 76,60 N.E.2d 659, in which it was held that the rate charged for the support of inmates of state benevolent institutions may not exceed the cost. The determination of the amount due each county, if any, is purely a ministerial matter which could give rise to no cause of action in each separate county of the state against state officers.
Section2307.35, Revised Code, is a special statute applying to public officers and has application in the instant case, whereas Section2703.04, Revised Code, is general in its scope and has no application where a defendant is a public officer and is sued as such.
On the face of the petition, there is no pleading of facts showing a cause of action in Fulton County against the state officers, and, therefore, the motion to quash was properly sustained by the Court of Common Pleas. The reversal by the Court of Appeals of the sustaining of that motion was error.Page 422
The judgment of the Court of Appeals is reversed, and that of the Common Pleas Court affirmed.Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN and STEWART, JJ., concur.
MATTHIAS and BELL, JJ., dissent.
It appears to me incongruous that an official of this state can go into a county of this state and make an agreement of compromise of a claim (Section115.17, Revised Code) and then, after repudiation of his agreement, escape on a procedural technicality any responsibility therefor.
It ultimately may be shown that the action is not "rightly brought" herein against the county officials so as to permit the joinder of the state officials. If that is true, the state officials of necessity go out too. The time to decide that question is when that question is presented to the court by demurrer or answer and not on a motion to quash. The rights of the state officials can not be prejudiced by such procedure because of the protection afforded them by appeal from the overruling of a motion to quash.State, ex rel. Rhodes, Aud., v.Solether, Judge,162 Ohio St. 559,124 N.E.2d 411.
MATTHIAS, J., concurs in the foregoing dissenting opinion.Page 423