Opinion
No. 33313
Decided January 28, 1953.
Prohibition — Remedy not available to restrain ministerial act — Planning commission — Preparation of plans and maps — Power lines not permitted in zoned area — Plans and recommendations ineffective until adopted.
IN PROHIBITION.
In the petition in prohibition in this case, filed originally in this court, relator, The Ohio Power Company, alleges that it is a public utility engaged in generating, transmitting and distributing electric energy; that in connection with its business it has projected the construction of power lines which are to cross Plain and Blendon townships in Franklin county; that respondent Franklin County Regional Planning Commission is presently engaged in the development of a plan for Plain and Blendon townships, which will contain terms and provisions forbidding relator from proceeding with the construction and use of power lines in accordance with its project; that relator believes respondent commission will proceed with the adoption of its plan and undertake to prevent relator from proceeding with eminent domain proceedings unless the commission is prohibited from so doing by court order; that respondent commission has requested the prosecuting attorney to seek an injunction against relator proceeding with condemnation of land for construction of such power lines; and that the respondent commission is without jurisdiction or power to prevent relator from exercising its power of eminent domain.
The prayer of the petition is for a writ of prohibition restraining the respondent commission from further proceeding with the adoption of a plan which will prevent or undertake to prevent relator from proceeding with the acquisition of property and the construction and use of power lines.
Respondents have filed a demurrer to the petition on the ground that the facts stated therein do not constitute a cause of action.
Messrs. Day, Cope, Ketterer, Raley Wright and Messrs. Alexander, Ebinger Wenger, for relator.
Mr. Ralph J. Bartlett and Mr. Frank H. Kearns, prosecuting attorneys, Mr. Robert P. Barnhart and Mr. Howard F. Wehr, for respondents.
The powers and duties of the respondent commission are defined by Section 4366-15, General Code, to be the making of "plans and maps of the region * * * showing the commission's recommendation for systems of transportation * * * and other public improvements which affect the development of the region." Section 4366-16, General Code, requires the commission, "after making the regional or county plan," to "certify a copy thereof to the * * * county commissioners." Section 4366-17, General Code, provides that "the county commissioners * * * may adopt such plan," and prescribes the effect of such adoption. It thus appears that the powers and duties of the commission are limited to the making of plans showing its recommendations, that such plans and recommendations are without legal effect until adopted by the county commissioners, and that the functions of the commission are purely ministerial. No rights of relator would be affected by the completion of the plans by respondent commission or by its recommendation.
The petition discloses that no definite plans are now in existence and does not allege any attempted unlawful assumption of jurisdiction of a judicial or quasi-judicial nature. The allegation that the respondent commission "has requested the prosecuting attorney of Franklin county Ohio to seek an injunction against relator proceeding with the condemnation of land for the construction of such power lines" refutes any suggestion that the respondent commission intends to attempt a usurpation of any judicial authority.
The extraordinary remedy of prohibition is not available to prevent the performance of a purely ministerial act. State, ex rel. Meurer, v. Eyrich, Jr., 154 Ohio St. 471, 96 N.E.2d 412.
The demurrer is sustained and a writ is denied.
Writ denied.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.