In re Furnishings & Equipment for the Judge, Courtroom & Personnel for Courtroom Two

Paul W. Brown, J. The Court of Appeals held that mandamus is the only proper remedy by which a judge can compel a board of county commissioners to purchase furnishings and equipment necessary for the proper and efficient operation of the court. Such a conclusion is incorrect. This court has repeatedly held that when a board of county commissioners refuses to appropriate funds or provide quarters and equipment reasonably requested by the court, a judge may seek to enforce his order by way of mandamus or by proceedings in contempt. In re Appropriation for 1979 (1980), 62 Ohio St. 2d [429] 99, 100; State, ex rel. Edwards, v. Murray (1976), 48 Ohio St. 2d 303; Zangerle v. Court of Common Pleas (1943), 141 Ohio St. 70. The Court of Appeals believed that this prior law, allowing the court to enforce its order by proceedings in contempt, was changed by the enactment of R. C. 307.01(B).2 That statute, however, is essentially identical to R. C. 2151.10, which was found to be unconstitutional in the recent case of State, ex rel. Johnston, v. Taulbee (1981), 66 Ohio St. 2d 417.3 [430] For the reasons expressed in State, ex rel. Johnston, v. Taulbee, we find R. C. 307.01(B) to be unconstitutional. Thus, appellant did not err in ordering appellees to appear at a hearing at which they could show cause why they should not be held in contempt for refusing to comply with the order. Courts possess all powers necessary to secure and safeguard the free and untrammeled exercise of their judicial functions. State, ex rel. Foster, v. Bd. of County Commrs. (1968), 16 Ohio St. 2d 89, paragraph two of the syllabus; Zangerle, supra. However, because an equal branch of the government may not impinge on the authority and rights of the other branches, a court cannot exercise its inherent power to order a board of county commissioners to act unless the court’s order is reasonable and necessary for the proper and efficient operation of the court. State, ex rel. Finley, v. Pfeiffer (1955), 163 Ohio St. 149. It is, therefore, important that a reviewing court have a complete record of the proceedings below so that it can determine if the trial court abused its discretion in ordering the board of county commissioners to act. It is especially important for the board of county commissioners to ensure that there is a full record because it is incumbent upon the board to point out errors that affirmatively appear in the record. Otherwise, all reasonable presumptions consistent with the record will be indulged in favor of the regularity and legality of the proceedings below. Cf. Beach v. Sweeney (1958), 167 Ohio St. 477; In re Sublett (1959), 169 Ohio St. 19; Cleveland v. Whipkey (1972), 29 Ohio App. 2d 79, 88; 4 Ohio Jurisprudence 3d, Appellate Review, Sections 248, 552 and 553. In the instant cause, however, the reviewing court need not infer the reasonableness of appellant’s order from the failure of ap-pellees to bring facts into the record from which an abuse of discretion could be discerned because appellant’s order of November 30 was not a final appealable order. When a judge undertakes to enforce his order by proceedings in contempt, instead of by way of mandamus, a board’s remedy is by way of appeal from a finding of contempt. State, ex rel. Bd. of County Commrs., v. Juvenile Division (1978), 54 Ohio St. 2d 113; State, ex rel. Edwards, supra; Bd. of Commrs. v. Harshman (1920), 101 Ohio St. 529.4 [431] Until there is a finding and order in the contempt proceedings, there is no final appealable order. For the foregoing reasons we dismiss the appeal. Appeal dismissed. Celebrezze, C. J., Cook, Sweeney, Locher and Reilly, JJ., concur. Holmes, J., concurs in the judgment. Cook, J., of the Eleventh Appellate District, sitting for W. Brown, J. Reilly, J., of the Tenth Appellate District, sitting for C. Brown, J. Footnotes [2] R. C. 307.01(B), which became effective on July 26, 1979, provides: “The court of common pleas shall annually submit a written request for an appropriation to the board of county commissioners that shall set forth estimated administrative expenses of the court that the court considers reasonably necessary for its operation. The board shall conduct a public hearing with respect to the written request submitted by the court and shall appropriate the amount of money each year that it determines, after conducting the public hearing and considering the written request of the court, is reasonably necessary to meet all administrative expenses of the court. “If the court considers the appropriation made by the board pursuant to this division insufficient to meet all the administrative expenses of the court, it shall commence an action under Chapter 2731. of the Revised Code in the court of appeals for the judicial district for a determination of the duty of the board of county commissioners to appropriate the amount of money in dispute. The court of appeals shall give priority to the action filed by the court of common pleas over all cases pending on its docket. The burden shall be on the court of common pleas to prove that the appropriation requested is reasonably necessary to meet all its administrative ejqpenses. If, prior to the filing of an action under Chapter 2731. of the Revised Code or during the pendency of the action, any judge of the court exercises the contempt power of the court of common pleas in order to obtain the amount of money in dispute, the judge shall not order the imprisonment of any member of the board of county commissioners notwithstanding sections 2705.02 to 2705.06 of the Revised Code.” [3] In footnote 4 of State, ex rel. Johnston, v. Taulbee, the court pointed out that R. C. 2101.11, which applies to probate courts, and R. C. 307.01(B), which applies to common pleas courts, contain the identical provisions that the court found to be unconstitutional in R. C. 2151.10. R. C. 2151.10 provides, in pertinent part, that: “If the judge considers the appropriation made by the board pursuant to this section insufficient to meet all the administrative expenses of the court, he shall commence an action under Chapter 2731 of the Revised Code in the court of appeals for the judicial district for a determination of the duty of the board of county commissioners to appropriate the amount of money in dispute. The court of appeals shall give priority to the action filed by the juvenile judge over all cases pending on its docket. The burden shall be on the juvenile judge to prove that the appropriation requested is reasonably necessary to meet all administrative expenses of the court. If, prior to the filing of an action under Chapter 2731 of the Revised Code or during the pendency of the action, the judge exercises his contempt power in order to obtain the sum of money in dispute, he shall not order the imprisonment of any member of the board of county commissioners notwithstanding sections 2705.02 to 2705.06 of the Revised Code.” [4] We disaffirm the language in In re Appropriation for 1979 (1980), 62 Ohio St. 2d [431] 99,101, to the effect that an ex parte order is final and immediately appealable. Such a finding was not necessary in that case since the commissioners pled guilty to contempt and thereby waived any errors. By our holding today, we clearly state that such an order is not a final appealable order. The board of county commissioners may contest the propriety of the order at the contempt hearing when explaining their refusal to comply with the order. If the board is held in contempt, the propriety of the order will be subject to review on appeal.