Opinion
No. 37599
Decided March 13, 1963.
Mandamus — Cause of action not stated — Suit to require city commission to perform its duties lawfully — Writ denied.
IN MANDAMUS.
The relator, Emanuel Nadlin, an elector of the city of Dayton, on behalf of himself and all others similarly situated filed originally in this court a petition in mandamus against the members of the City Commission of the City of Dayton, in which he sets out constitutional, statutory and city ordinance provisions prohibiting lotteries and the sale or the dealing in of lottery tickets.
He alleges that the game of bingo is a lottery; that the respondents, intending to contravene provisions of the Constitution, federal statutes and ordinances of Dayton, "exceeded its jurisdiction by beginning to undertake to regulate by rule a lottery, the play of bingo, in the city of Dayton."
The prayer of the petition is that "a writ of mandamus issue to compel the respondents to perform their official duties pursuant to their oath of office, and lawfully within the provisions of and not in derogation nor in violation of the Ohio Constitution, federal statutes, and municipal ordinances, and such other relief as he may be entitled."
Respondents moved to dismiss the proceeding for the reason that "a case is not pleaded warranting the exercise of the original jurisdiction of the Supreme Court." Relator moved that respondents' motion be stricken or considered as a demurrer.
Mr. Emanuel Nadlin, in propria persona. Mr. Herbert S. Beane, city attorney, and Mr. Maurice J. Gilbert, for respondents.
The petition does not set forth facts indicating that respondents are required to perform any specific duty imposed upon them by law and therefore does not state a cause of action in mandamus. Relator's motion is overruled, respondents' motion to dismiss is sustained, and judgment denying the writ is rendered accordingly.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.