As I view the record on this appeal, the demurrer of the commission to the petition of the plaintiff presents the definite question as to whether the court may substitute its opinion for that of the commission, respecting the necessity for the appropriation of certain property rights of the plaintiff.
All the available facts relevant and necessary to a determination of that question are presented to the court by the allegations of the petition.
It is necessary only to apply the established rules of law to *Page 237 the facts and the conclusion seems clear that the petition does not contain facts sufficient to entitle the plaintiff to an injunction which would prevent the commission from the exercise of its discretion as duly authorized by the Legislature of the state.
The pertinent allegations of the petition of the plaintiff, referring to the right to erect any billboard, sign and advertising device, which right is sought to be appropriated, are "that same is not a necessary part, or required in, the construction, maintenance and operation of said Ohio Turnpike by the defendant commission," and, also, "as said right is not being taken for a public use, for highway purposes or in time of war or other public exigencies apparently requiring the immediate seizure of said right."
Certain provisions of the Ohio Turnpike Act define clearly the authority and discretionary powers of the commission applicable to the situation presented in this case as follows:
Section 5537.02, Revised Code. "There is hereby created a commission to be known as the `Ohio Turnpike Commission.' Such commission is a body both corporate and politic in this state, and the exercise by it of the powers conferred by Sections5537.01 to 5537.23, inclusive, of the Revised Code, in the construction, operation, and maintenance of turnpike projects shall be held to be essential governmental functions of the state, but the commission shall not be immune from liability by reason thereof."
Subsections A, E, H, I, J and O of Section 5537.04, Revised Code:
"(A) Adopt bylaws for the regulation of its affairs and the conduct of its business;
"* * *
"(E) Construct, maintain, repair, police, and operate turnpike projects, and establish rules and regulations for the use of any such turnpike project;
"* * *
"(H) Acquire, hold, and dispose of real and personal property in the exercise of its powers and the performance of its duties under Sections 5537.01 to 5537.23, inclusive, of the Revised Code;
"(I) Acquire, in the name of the state, by purchase or *Page 238 otherwise, on such terms and in such manner as it deems proper, or by the exercise of the right of condemnation in the manner provided by Section 5537.06 of the Revised Code, such public or private lands, including public parks, playgrounds, or reservations, or parts thereof or rights therein, rights of way, property, rights, easements, and interests as it deems necessary for carrying out Sections 5537.01 to 5537.23, inclusive, of the Revised Code, and full compensation shall be paid for public lands, playgrounds, parks, parkways or reservations so taken;
"(J) Designate the locations, and establish, limit, and control such points or ingress to and egress from each turnpike project as are necessary or desirable in the judgment of the commission and of the director of highways to insure the proper operation and maintenance of such projects, and prohibit entrance to such project from any point not so designated, and, at its cost, at all points of ingress and egress, cause to be erected large and suitable signs, facing traffic from each direction on the toll road, which shall designate the number and other designations of all United States or state highways of ingress or egress, the names of all Ohio municipal corporations with a population of five thousand or more within a distance of seventy-five miles on such roads of ingress or egress, and the distance in miles to such designated municipal corporations;
"* * *
"(O) Do all acts necessary or proper to carry out the powers expressly granted in Sections 5537.01 to 5537.23, inclusive, of the Revised Code."
Section 5537.07, Revised Code. "The commission is hereby authorized and empowered to acquire by purchase, whenever it deems such purchase expedient, any land, property, rights, rights of way, franchises, easements, and other interests in lands as it deems are necessary or convenient for the construction and operation of any turnpike project, upon such terms and at such price as it considers reasonable and can be agreed upon between the commission and the owner thereof, and take title thereto in the name of the state."
It is significant that the petition of the plaintiff contains no allegations charging the commission with either fraud or an abuse of discretion or that it is acting arbitrarily or in bad faith. *Page 239
The petition does contain a complete description of the property of the plaintiff and the manner in which it will be traversed by the turnpike and sets out a portion of the resolution of the commission which describes the specific advertising rights which the commission is seeking to appropriate, as follows:
"All rights to erect on any of the aforesaid remaining lands any billboards, sign, notice, poster, or other advertising device which would be visible from the travelway of Ohio Turnpike Project No. 1, and which is not now upon said lands."
The principle of law is well established in this state that "in the absence of fraud, bad faith, or abuse of discretion, a court of equity will not attempt to substitute its judgment for the judgment of an administrative or executive officer or board when acting within limits of discretion vested in them by law."
Lattsco, Inc., v. Mutual Mortgage Investment Co., 33 Ohio Law Abs., 644, 6 Ohio Supp., 102; Gall v. City of Cincinnati,18 Ohio St. 563; Braden v. Commrs. of Logan County, 31 Ohio St. 386; Thompson v. Love, 42 Ohio St. 61; Katz v. Linder, 17 C. C. (N.S.), 518, 32 C. D., 260, affirmed 88 Ohio St. 549,106 N.E. 1064; State, ex rel. Landis, v. Board of Commrs. of ButlerCounty, 6 Ohio App. 440, affirmed 95 Ohio St. 157,115 N.E. 919; Brannon v. Board of Edn. of Tiro Consolidated District,99 Ohio St. 369, 124 N.E. 235; Snyder v. Board of ParkCommissioners of Cleveland Met. Park Dist., 125 Ohio St. 336,181 N.E. 483; Bloch v. Glander, Tax Commr., 151 Ohio St. 381,86 N.E.2d 318; State, ex rel. Gerspacher, v. Coffinberry,157 Ohio St. 32, 104 N.E.2d 1.
The Supreme Court of the state has determined in State, exrel. Ohio Turnpike Commission, v. Allen, Secy.-Treas., 158 Ohio St. 168, 107 N.E.2d 345, that:
"The Turnpike Act, Sections 1201 to 1222, General Code, is a constitutionally valid legislative enactment. (State, ex rel.Kauer, Dir., v. Defenbacher, Dir., 153 Ohio St. 268; State, exrel. Allen, v. Ferguson, Aud., 155 Ohio St. 26, and State, exrel. MacDonald, v. Ferguson, Aud., 155 Ohio St. 46, approved and followed.)"
The Supreme Court has, in other decisions, made announcements in defining and interpreting the authority and *Page 240 discretionary power granted the commission under the provisions of the Turnpike Act, which it seems to me control a decision of the questions presented on this appeal.
In State, ex rel. Allen, v. Ferguson, Aud., 155 Ohio St. 26,97 N.E.2d 660, the ninth paragraph of the syllabus is as follows:
"Subject to constitutional limitations, the General Assembly may ordinarily grant to an agency of the state power to do or authorize others to do anything which an individual might lawfully do and which such agency deems necessary to construct, maintain and operate a public project that the state itself would have authority to undertake. In such an instance it is not necessary, in order to avoid a delegation of legislative power, for the General Assembly to specify or define the particular action which may be taken or authorized or to limit such power in any way, other than by relating it to the construction, maintenance and operation of such public project."
In State, ex rel. Shafer, v. Ohio Turnpike Commission,159 Ohio St. 581, 113 N.E.2d 14, in the opinion of the court announced by Middleton, J., the principles of law applicable in this case are set forth clearly, and in my opinion are decisive of the issues presented. In the opinion in the Shafer case,supra, it is stated, at page 588, as follows:
"The only restraint upon the exercise of discretion by the commission is that which the law imposes upon all administrative bodies, viz., that it act in good faith and not in abuse of its discretion."
From the opinion in the Shafer case, supra, we find further statements concerning the exercise of discretion and the meaning of "abuse of discretion," which are applicable and persuasive in the case before us, as follows:
"The rule is generally accepted that, in the absence of evidence to the contrary, public officers, administrative officers and public boards, within the limits of the jurisdiction conferred by law, will be presumed to have properly performed their duties and not to have acted illegally but regularly and in a lawful manner. All legal intendments are in favor of the administrative action. 42 American Jurisprudence, 680, Section 240; Bloch v. Glander, Tax Commr., 151 Ohio St. 381, *Page 241
86 N.E.2d 318; State, ex rel. Gerspacher, v. Coffinberry et al., IndustrialCommission, 157 Ohio St. 32, 104 N.E.2d 1; Wheeling SteelCorp. v. Evatt, Tax Commr., 143 Ohio St. 71, 54 N.E.2d 132.
"Abuse of discretion by the commission is not specifically charged, but the charge of acting `arbitrarily' and `without the exercise of discretion' means `abuse of discretion' if anything. Reference to a few of the many available decisions will suffice to demonstrate the general understanding of abuse of discretion.
"`The exercise of an honest judgment, however erroneous it may seem to be, is not an abuse of discretion. Abuse of discretion, and especially gross and palpable abuse of discretion, which are the terms ordinarily employed to justify an interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.'People v. N. Y. C. Rd. Co., 29 N.Y. 418, 431, quoted from inAlliance v. Joyce, 49 Ohio St. 7, 22, 30 N.E. 270, by Dickman, J.
"`The meaning of the term "abuse of discretion" in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the court.'Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855.
"`* * * it must be kept in mind that the term "abuse of discretion means more than an error of law or error of judgment * * *." It means "a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence" * * *. Where the court does not exercise a discretion in the sense of being discreet, circumspect, prudent and exercising cautious judgment, there is an abuse of discretion. * * * The term has been defined as "a view or action that no conscientious judge, acting intelligently, could have honestly taken."' State, exrel. Wilms v. Blake et al., Industrial Commission, 144 Ohio St. 619,624, 60 N.E.2d 308. A similar statement appears inState v. Ferranto, 112 Ohio St. 667, 676, 148 N.E. 362."
The commission has determined and declared by resolution that the property rights, in question, of the plaintiff are necessary in the construction and operation of the turnpike, and has provided for full compensation to the plaintiff for those property rights. *Page 242
Therefore, it is my view that the judgment of the Court of Common Pleas to the effect that the petition of the plaintiff failed to state a cause of action for an injunction should be affirmed.