Opinion
No. 34501
Decided February 15, 1956.
Prohibition — Writ not available where other adequate remedy — Not substitute for appeal — Not available to determine constitutionality of statute, when.
APPEAL from the Court of Appeals for Cuyahoga County.
The appellant, Gladies B. Heine, instituted in the Court of Appeals an action in prohibition against the Chief Justice of the Cleveland Municipal Court. She alleges in her petition that she is a licensed minister of the New Thought Temple in Cleveland; that two affidavits were filed against her in the Cleveland Municipal Court, based on Section 4731.34, Revised Code, charging her with the illegal practice of medicine; that Section 4731.34 is unconstitutional; that its constitutionality was attacked by appellant in the Municipal Court; that the unconstitutionality of the statute deprives the Municipal Court of jurisdiction; and that the Court of Appeals should immediately take jurisdiction and determine whether the statute is constitutional without exposing appellant to the hardship of a long and expensive trial. The prayer is that an order be issued prohibiting the judges of the Cleveland Municipal Court from proceeding to hear and determine the action therein pending against appellant.
The answer alleges that appellant appeared generally in the Municipal Court and, by counsel, requested a bill of particulars and demurred to the affidavits without reservation; that the offenses complained of were misdemeanors occurring in the city of Cleveland; that the Municipal Court has jurisdiction; and that appellant has a full and adequate remedy at law by appeal.
The Court of Appeals found that appellant "has a plain, adequate, existing remedy at law," and denied the writ.
An appeal as of right brings the cause to this court for review.
Mr. R.A. Kennedy and Mr. A.W. Thomas, for appellant.
Mr. Ralph S. Locher, director of law, Mr. Joseph H. Crowley and Mr. William T. McKnight, for appellee.
The writ of prohibition will be awarded only where there is no adequate remedy in the ordinary course of the law and will not be awarded as a substitute for an appeal. State, ex rel. Rhodes, Aud., v. Solether, Judge, 162 Ohio St. 559, 124 N.E.2d 411; State, ex rel. Winnefeld, v. Court of Common Pleas, 159 Ohio St. 225, 112 N.E.2d 27.
Appellant has an adequate remedy by way of appeal.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.