#### The State, ex rel. Grant, *v.*The Joint Board of County Commissioners of Wood and Hancock Counties et al.

*Supreme court*— Dismissals—Jurisdiction *of subject-matter acquired by another tribunal*— Joint *county ditch proceeding.*

(No. 17588

Decided December 19, 1922.)

In Mandamus.

The relator, George E. Grant, files his petition against the respondents in this court, averring that he is a resident taxpayer of Wood county and is the owner of lands lying near to and which will be benefited by the construction of the ditch improvement; that he brings this action for the benefit of himself and a large number of other landowners whose lands will be benefited by the improvement and who are similarly situated; that on the 9th day of January, 1917, pursuant to the provisions of Sections 6563-1 to 6563-48, General Code, A. J. Doblinger, together with other landowners in the vicinity, filed a petition with the county auditor of Wood county praying for the cleaning out, enlarging, deepening, widening and straightening of a certain ditch and a branch thereof located partly in Wood county and partly in Hancock county; that such proceedings were had upon the petition that on the 16th day of February, 1917, the joint board of commissioners of Wood and Hancock counties determined to proceed with the improvement as prayed for; that pursuant to a resolution of the joint board of commissioners of *202Wood and Hancock counties the surveyors of Wood and Hancock counties made a joint report of their survey of the proposed improvement, and submitted plans, specifications and profiles thereof, and an estimate of the cost of the same, together with a map showing the lands benefited or affected thereby, etc.; that upon' the filing of such report, it appearing that commissioners Turner Mackey and Gleorge V. Poe of Hancock county were personally interested in the proposed ditch improvement, J. M. McClelland and W. H. Bergman were appointed to act as commissioners in the proceeding in' the place of Mackey and Poe; that on December 12, 1919, the report of the county surveyors was adopted; that on May 18, 1920, the joint board of county commissioners of Wood and Hancock counties granted the prayer of the petition for the ditch improvement; that on March 23, 1921, the joint board of commissioners met to determine the proportion of the cost and expense of the improvement to be paid by each county, and being unable to agree thereon directed by a unanimous vote that the secretary notify the governor of Ohio to appoint a board of arbitrators to determine the same; that thereupon the governor did appoint a board of arbitrators, which board so appointed filed its report on July 6, 1921, fixing the proportion of the cost and expense of the improvement at 75 per cent, thereof to be paid by Wood county and 25 per cent, thereof to be paid by Hancock county; that the estimated cost of the ditch improvement is the sum of $371,105.10, of which sum as fixed by the board of arbitrators Wood county is liable and obligated to pay the sum of $278,328.83 and Hancock county the sum of $92,776.27; that on *203the 11th day of July, 1921, the secretary of the joint board of commissioners duly notified the auditors of the two counties of the filing of the report of the arbitrators and transmitted to them a copy thereof; that the board of county commissioners of Wood county thereupon provided for the issuance of the bonds of the county to raise the funds necessary to pay its portion of the cost of the improvement; that the board of county commissioners of Hancock county on the 19th day of August, 1921, directed that of the 25 per cent, of the cost of the improvement 2/25 thereof be assessed against Hancock county and the remaining 23/25 thereof be assessed against the several parcels of land in Hancock county which will be drained and benefited thereby, but did not then, or since, take any action providing for or looking to the issuing or sale of the bonds of the county, or for providing in any manner the funds necessary to pay the portion of the cost of the improvement so apportioned to Hancock county; and that the joint board of county commissioners since receiving the report of the arbitrators and causing the same to be certified to the two counties has done no act or thing looking toward the construction of the ditch improvement, and on the 26th day of April, 1922, declined to proceed with the performance of its duties under the law, the three Wood county members voting to proceed with the construction of the improvement and the three Hancock county members voting against proceeding therewith. The petition then prays that a writ of mandamus may issue directing the board of commissioners of Hancock county to proceed to determine the question of providing the sum of $92,776.27 to pay the portion of *204the cost of the improvement apportioned to Hancock county, aud to cause to be issued and sold the bonds of Hancock county to an amount sufficient to pay the same, and to proceed to perform all other duties devolving upon that board in relation to the improvement; and commanding the board of county commissioners of Wood county to proceed to issue and sell the bonds of that county in an amount sufficient to enable the county to pay the sum of $278,-328.83 apportioned to it, and to proceed to perform all other duties devolving upon such board of county commissioners with respect to the improvement; and commanding the joint board of county commissioners of Wood and Hancock counties to proceed to the performance of all duties devolving upon such joint board in relation to such improvement.

To this petition the board of county commissioners of Hancock county filed its answer admitting the averments of the petition and averring in substance as its reason for not proceeding further with the improvement that on the 7th day of September, 1921, there was filed in the common pleas court of Hancock county, Ohio, a cause entitled The State of Ohio, on relation of Harlan F. Burket, Prosecuting Attorney for Hancock County, v. Walter W. Brown et al., as Commissioners of Hancock County, Number 20154, in which the legality of all the proceedings set up in the petition of the relator herein was attacked- and it was claimed that the apportionment of the cost and expenses of the improvement by the board of arbitrators was illegal and void, and in which petition so brought by the prosecuting attorney of the county it was prayed as relief that the commissioners and acting commissioners of the *205county of Hancock be perpetually enjoined from selling or offering for sale any bonds for tbe construction of the proposed improvement, from paying any money to tbe county of Wood for such construction, and from levying any tax upon tbe taxable property in tbe county or against the lands affected by or contributory to tbe ditch to pay to Wood county, and that tbe joint board of county commissioners of tbe two counties be enjoined from taking any further steps looking to tbe construction of tbe improvement wherein any of the costs and expenses thereof would be assessed against Hancock county. Tbe answer of tbe Hancock county board of commissioners further averred that this cause was pending in tbe court of common pleas until tbe 21st day of April, 1922, at which time it was dismissed by the plaintiff without final judgment having been rendered; that there was filed in tbe common pleas court of Hancock county upon September 8, 1921, another action seeking injunction against tbe board of commissioners of Hancock county, tbe same being entitled Daniel W. Frick et al. v. Walter W. Brown et al., as Commissioners of Hancock County, Ohio, being numbered 20156, in which action like averments as to tbe illegality of tbe ditch proceedings were made and a like injunction prayed for; that this cause was pending in tbe common pleas court of Hancock county until tbe 21st day of April, 1922, when tbe same was dismissed by tbe plaintiffs therein before final judgment was rendered ; that on tbe 21st day of April, 1922, there was filed in the common pleas court of Hancock county another action entitled Tbe State of Ohio, on relation of Harlan F. Burket, as Prosecuting Attorney *206for Hancock County, Ohio, v. Walter W. Brown, as a Commissioner of Hancock County, Ohio, J. M. Mc-Clelland and William Bergman as acting Commissioners for Hancock County, Ohio, and Walter W. Brown, J. M. McClelland and William Bergman as the acting Board of County Commissioners for Hancock County, Ohio, Guy C. Davis as Treasurer of Hancock county, Ohio, and Robert J. Hanrahan as Auditor of Hancock County, Ohio, Number 20347, in which action there was made substantially the same claims of invalidity of the proceedings had in the ditch improvement as had been made in the two causes Numbers 20154 and 20156, which were dismissed, and praying that Sections 6563-1 to and including 6563-47 of the General Code be found, adjudged and decreed to be unconstitutional, void and of no effect, and that in case such Sections of the General Code be found to be constitutional the court under his general equity powers shall determine the amount which can be legally raised by assessment according to benefits against the lands of Hancock county affected by the improvement and tributary to the watershed draining into the improvement and enjoin the sale of bonds of Hancock county for any greater amount, also that defendants be enjoined from taking any steps or doing any acts towards levying taxes or raising any greater sum of money, or the selling of any greater amount of bonds than the amount so found; and that this cause is still pending arid undetermined in the court of common pleas of Hancock county.

A copy of the petition in the cause last referred to is attached to the answer, which petition avers, among other things, that all the contemplated im*207provement is to be made in Wood county except less than one mile thereof, and is to reclaim and drain Wood county lands; that the improvement passes through forty-one sections of land in Wood county and passes through and directly drains only one section of land in Hancock county; that the apportionment by the board of arbitrators was without regard to the question of benefits to the lands in Hancock county; that a large portion of the lands sought to be assessed in Hancock county are 40 or 50 feet above the outlet and that it is wholly immaterial whether the ditch is cleaned out or improved, or whether a dam is built across the ditch at its outlet, as the lands in Hancock county are mostly uplands and the natural fall in the streams is such that the natural drainage would not be affected either by the building of a dam across said watercourse in Wood county or by cleaning out the watercourse; that the surveyor of Hancock county by actual survey and computation has determined that it is only possible to raise 12/25 of the sum of $92,776.27, which amounts to $44,532.60 on the lands in Hancock county affected by the improvement and assessed according to benefits, leaving the sum of $48,243.65 unprovided for, which will have to be paid by the general taxpayers of Hancock county if the board of county commissioners of Hancock county is required to issue and sell bonds in the sum of $92,-776.27, the amount apportioned by the board of arbitrators; and that the board of commissioners of Hancock county has determined that 2/25 of that sum should be.paid out of the general funds of the county and that- the balance should be raised by assessment.

*208To this answer the relator filed a general demurrer.

*Mr. Jonathan E. Ladd*and *Mr. Frank A. Baldwin,*for relator.

*Mr. H. F. Burket,*prosecuting attorney, and *Mr. A. G. Fuller,*for respondents.

By the Court.

While the joint board of county commissioners of Wood and Hancock counties and the board of county commissioners of Wood county are made parties defendant in this action, together with the board of county commissioners of Hancock county, and while it appears that the joint board of county commissioners of Wood and Hancock counties and the board of commissioners of Wood county are not made parties in the action pending in the court of common pleas of Hancock county, the petition discloses that the board of county commissioners of Wood county, both as a county board and as members of the joint board, is quite willing to be mandamused as prayed for herein, for it appears by the petition that at its last meeting held on the 26th day of April, 1922, the three Wood county members voted to proceed with the construction of the improvement and the three Hancock members voted against proceeding therewith. It further appears by the petition that the board of commissioners of Wood county has provided for the issuance of the bonds of the county to raise the funds necessary to pay its portion of the cost of the improvement, and it is apparent that the failure of the board to offer the same for sale is due to the failure of the board of commissioners of Hancock county to act because *209of the litigation in one form or another that is now and has been pending in the court of common pleas of Hancock county ever since the 7th day of September, 1921, and were it not for the fact that the board of county commissioners of Wood county and the joint board of county commissioners of Wood and Hancock counties are not parties to the cause pending in Hancock county it would not be contended that the filing of the petition in mandamus here could supplant the jurisdiction already acquired by the court of common pleas of Hancock county, and since the only purpose of this proceeding appears to be to compel the members of the board of county commissioners of Hancock county in their dual capacity as members of that board and as members of the joint board to perform their alleged duties with reference to the improvement, which the pending cause in Hancock county seeks to enjoin them from performing, and since the only issues here are among the issues pending there, this court will not simply because of the joining of the board of county commissioners of Wood county, who as such board and as members of the joint board are willing and anxious to do all the things here sought to command them to do, supplant the jurisdiction already acquired by the court of common pleas of Hancock county.

The demurrer will, therefore, be overruled and the petition dismissed.

*Demurrer overruled and petition dismissed.*

Marshall, C. J., Hough, Wanamaker, Robinson, Jones, Matthias and Clark, JJ., concur.