Opinion
No. 79-570
Decided November 7, 1979.
Quo warranto — Remedy not available, when — To test legality of official action by public officer — Complaint dismissed, when.
IN QUO WARRANTO.
This is an action in quo warranto brought in this court by the Prosecuting Attorney of Clark County. In his complaint he prays that the members of the Board of County Commissioners, Clark County, respondents herein, show by what warrant they exercise the powers, privileges and rights involved in adopting Resolution No. 655-79, wherein the board determined that the plan of the Community Hospital of Springfield and Clark County to build a doctor's office building adjacent to the hospital and financed by the hospital's own bonds would be beneficial to the county. He asks that respondents be ousted from the exercise of these claimed powers, privileges and rights.
Mr. James A. Berry, prosecuting attorney, pro se. Messrs. Squire, Sanders Dempsey and Mr. George I. Meisel, for respondents.
Relator is requesting this court to issue a writ of quo warranto to prevent the members of the Board of County Commissioners, Clark County, from exceeding their alleged lawful authority. In paragraph two of the syllabus in State, ex rel. Hogan, v. Hunt (1911), 84 Ohio St. 143, this court stated that "the legality of the exercise of a mere function alleged to be erroneously exercised by one who***is a public officer, can not be inquired into by a proceeding in quo warranto." The extraordinary remedy of quo warranto is properly employed to test the actual right to an office or franchise. It can afford no relief for official misconduct, and can not be employed to test the mere legality of official action by public officers.
Therefore, this action is dismissed, sua sponte.
Complaint dismissed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
HOLMES, J., dissents.