
    The State, ex rel. Bricker, Atty. Genl., v. The Kroger Grocery & Baking Co.
    (No. 24424
    — Decided April 11, 1934.)
    
      Mr. John W. Bricker, attorney general, Mr. Charles G. Williams and Mr. Isadore Topper, for relator.
    
      Messrs. Nichols, Morrill, Wood, Marx é Ginter, for respondent.
   This cause came on to be heard upon the petition, answer, supplemental answer and reply and was argued by counsel. It appears from the petition that the Milk Marketing Commission, under an act passed June 8, 1933, and effective immediately, declined to grant the defendant a license to sell milk under the act; that on October 6, 1933, this petition in quo warranto was filed seeking to oust the defendant for a misuser of its franchises and privileges because of its failure to comply with the schedules of prices adopted by the marketing commission. It further appears from the 21st paragraph of the answer filed by the defendant on the 13th day of October, 1933, that, after the Milk Marketing Commission refused to grant a license to the defendant the latter invoked the proceedings provided by Section 10 of the Milk Marketing Act, by perfecting proceedings in error to the Court of Common Pleas seeking a review of the order of the commission made on October 5, 1933. On October 7th the defendant applied for a stay and on October 11, 1933, a petition in error from the order of the commission was filed by the defendant in the Court of Common Pleas of Hamilton county, seeking the consideration and opinion of that court in determining whether the order of the commission was unlawful or unreasonable.

In view of such error proceedings brought by the defendant this action in quo warranto is held to have been prematurely brought, since it seeks to oust the defendant while the latter is pursuing the remedy especially provided by the Milk Marketing Act. The petition is therefore dismissed without prejudice at the costs of the relator.

Petition dismissed.

Weygandt, C. J., Stephenson, Jones,- Matthias, Bevis and Zimmerman, JJ., concur.

Allen, J., not participating.  