Opinion
No. 78-1100
Decided May 16, 1979.
Department of Transportation — Actions against director — Where brought.
Pursuant to R.C. 5501.22, an action against the Director of Transportation may not be brought outside Franklin County where the complaint seeks to recover compensation for an alleged completed taking of property. ( State, ex rel. Jaster, v. Ct. of Common Pleas, 132 Ohio St. 93; Wilson v. Cincinnati, 172 Ohio St. 303; State, ex rel. Braman, v. Masheter, 5 Ohio St.2d 197, followed.)
APPEAL from the Court of Appeals for Trumbull County.
On August 24, 1972, the state of Ohio, appellant herein, filed condemnation proceedings against Joseph Sarkies of Sarkies Enterprises, Inc., appellee herein, appropriating a part of his land, leaving east and west residues. The purpose of the appropriation was for the construction of State Routes No. 5 and No. 82. Appellee was compensated for this taking pursuant to a settlement.
Appellee's lands, including that which was appropriated by the state, were partially located in an area designated by the federal government as a "wetland" preservation site. Federal participation in road construction projects was conditioned upon state assurances that lands so designated as wetland preservation sites would remain undisturbed, except so far as these lands were part of an actual construction area. Accordingly, the state provided in its construction contract proposal that fill material could only be obtained from outside this wetland area.
The contract was let on May 17, 1977, to the A.P. O'Horo Company. Subsequent thereto, appellee approached the O'Horo Company, offering to sell fill dirt from his lands. The O'Horo Company submitted a request to excavate a borrow pit on the west residue to the state of Ohio, Department of Transportation. The Department of Transportation refused to grant O'Horo the permit, since a substantial portion of the area from which the fill would be obtained was in the wetland preservation area.
Appellant's refusal to grant the permit was pursuant to "Construction Material Specifications" which were incorporated by reference in the construction contract between the state of Ohio and the O'Horo Company. These specifications reserve in the Director of Transportation the power to approve the location from which fill dirt shall be obtained for use in highway construction and are included by reference in all state road construction contracts. This provision was in addition to the specific prohibition in the contract of the use of fill material from the wetland preservation area.
On August 11, 1977, appellee filed a complaint in the Court of Common Pleas of Trumbull County alleging that "but for the arbitrary and confiscatory refusal of defendant, State of Ohio, Department of Transportation, [the O'Horo Company] would contract with plaintiff for the purchase and sale of plaintiff's dirt." Appellee sought a temporary injunction pending resolution of his cause, and an order declaring his property to have been taken, with a directive to the Director of Transportation to file appropriation proceedings to determine proper compensation. The court held for appellee and ordered the Director of Transportation to initiate appropriation proceedings within 30 days.
On appeal, the Court of Appeals affirmed, one judge dissenting.
The cause is before this court upon allowance of a motion to certify the record.
Messrs. Letson, Griffith, Kightlinger Woodal, and Mr. Edward L. Lavelle, for appellee.
Mr. William J. Brown, attorney general, Mr. Donald J. Guittar, Mr. Vincent P. Korey and Mr. Michael K. Nunner, for appellant.
The threshold issue before this court is whether the instant cause should have been dismissed by the trial court, upon appellant's motion, for lack of jurisdiction over the subject matter by virtue of R.C. 5501.22.
This statute provides, in relevant part, as follows:
"The director of transportation shall not be suable, either as a sole defendant or jointly with other defendants, in any court outside Franklin County except in actions brought by a railroad company under section 4957.30 of the Revised Code, or by a property owner to prevent the taking of property without due process of law, in which case suit may be brought in the county where such property is situated, or in any action otherwise specifically provided for in Chapters 5501, 5503, 5511, 5512, 5513, 5515, 5516, 5517, 5519, 5521, 5523, 5525, 5527, 5528, 5529, 5531, 5533 and 5535 of the Revised Code."
Although the complaint named the state of Ohio, Department of Transportation as defendant, it is not disputed that the complaint was actually directed to the Director of Transportation, in whose name the Department of Transportation acts. See R.C. 5519.01 and 163.02, which place the power to initiate appropriation proceedings on behalf of the Department of Transportation with the Director.
In State, ex rel. Jaster, v. Ct. of Common Pleas (1936), 132 Ohio St. 93, at page 98, this court stated as follows:
"By virtue of Section 1187, General Code [a predecessor to R.C. 5501.22], all actions [subject to certain exceptions] against the Director of the State Highway Department [now Director of Transportation] must be brought in the courts of Franklin county, wherein is lodged exclusive jurisdiction over causes against him, and courts of any other county are wholly without jurisdiction to hear matters in which the director is sole defendant or defendant jointly with others. Any court assuming jurisdiction over such causes contrary to Section 1187, General Code, does so without authority, and any judgment or decree which it may enter therein will be void and of no effect whatsoever.
"`* * * want of jurisdiction of the cause, equally as much as want of jurisdiction of the person may render a judgment or decree void; * * *.' Buchanan v. Roy's Lessee, 2 Ohio St. 251, at 266; 11 Ohio Jurisprudence, 662, Section 19." The above passage was cited, and quoted with approval, in Wilson v. Cincinnati (1961), 172 Ohio St. 303, at pages 305-306.
Accordingly, this cause could be brought in Trumbull County only if the statutory exception which permits actions outside Franklin County "by property owner[s] to prevent the taking of property without due process of law" (emphasis added) is applicable.
As in Wilson, supra, and State, ex rel. Braman, v. Masheter (1966), 5 Ohio St.2d 197, the issue becomes whether the present action was initiated to prevent a taking of property or to recover compensation for a taking which was an accomplished fact. To answer this question we must look to the face of the complaint. See Wilson and Braman, supra.
The substance of the complaint herein is as follows:
"5. The refusal to permit defendant, A.P. O'Horo Company to purchase dirt from plaintiff constitutes * * * an appropriation of plaintiff's property by defendant, State of Ohio * * *.
"* * *
"Wherefore, plaintiff prays for a temporary injunction pending determination of the rights of the parties by this Court and asks this Court to determine that defendant, State of Ohio, has in fact by its actions appropriated plaintiff's property, and plaintiff asks that it be ordered to file an appropriation proceeding to determine the value thereof and pay said proceeds to plaintiff in accordance with the statutes of Ohio; * * *."
It is clear from the language of the complaint that appellee alleged his property to have been taken by the state. Since the trial court was without authority, pursuant to R.C. 5501.22, to hear an issue other than that concerning the prevention of a taking, the cause should have been dismissed by the trial court. The fact that plaintiff sought a temporary injunction pending determination of the parties' rights did not vest the court with jurisdiction, since the injunction was conditioned upon resolution of an issue which the court lacked power to hear.
For reason of the foregoing, the judgment of the Court of Appeals is reversed.
In resolving this cause as we do upon jurisdictional grounds, this court is by no means conceding that the state, in prohibiting the contractor from purchasing fill dirt from the appellee, appropriated a compensable property interest of appellee.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.