Opinion
No. 68-718
Decided May 21, 1969.
Mandamus — To require removal of detainer placed against relator — Respondent officer without authority to remove detainer — Mandamus not available remedy.
APPEAL from the Court of Appeals for Hamilton County.
On November 12, 1968 appellant filed a petition for a writ of mandamus in the Court of Appeals, alleging that on or about November 28, 1958, subsequent to appellant's incarceration in the Ohio Penitentiary for armed robbery, a detainer was lodged against him by Stanley R. Schrotel, who was then the Chief of Police of the city of Cincinnati. Appellant prayed that the court issue an order to respondent directing him to remove the detainer placed against petitioner and to grant any other relief deemed necessary under the premise.
The Court of Appeals denied the writ and appellant perfected his appeal to this court.
Mr. Paul B. Tipton, in propria persona. Mr. Melvin G. Rueger, prosecuting attorney, and Mr. Leonard Kirschner, for appellee.
Appellant states in his brief that he has "* * * made numerous attempts via letters and a petition for a writ of mandamus to the court (Municipal Court, Cincinnati, Ohio), requesting the detainer be dismissed or withdrawn or that arrangements be made that a trial be had according to the laws and the Constitution of Ohio." He relies on State, ex rel. Lotz, v. Hover (1962), 174 Ohio St. 68, 186 N.E.2d 841. In that case, the prisoner had been indicted and was diligent in seeking action on the indictments. The court allowed a writ of mandamus ordering the prosecuting attorney to dismiss the indictments. However, upon rehearing the writ was withdrawn ( 174 Ohio St. 380) on the ground that the prosecuting attorney could dismiss the indictments only with the consent of the Court of Common Pleas and therefore did not have the complete power to perform the act required.
Appellee points out in his brief that Stanley R. Schrotel was no longer Chief of Police at the time appellant filed his petition. However, even if the petition is considered as being brought against the office of Chief of Police, that officer, by lodging a detainer against appellant based upon armed robbery warrants issued against him, is merely performing his duty and has no authority to remove the detainer placed against him.
As stated in State, ex rel. Lotz, v. Hover, supra:
"A writ of mandamus may only issue if the person against whom such writ is directed has the complete power to perform the act." No such complete power exists in the present case.
The judgment of the Court of Appeals denying the writ is affirmed.
Judgment affirmed.
TAFT, C.J., MATTHIAS, O'NEILL, SCHNEIDER, HERBERT and DUNCAN, JJ., concur.
ZIMMERMAN, J., not participating.