Opinion
No. 31917
Decided March 15, 1950.
Municipal corporations — License as professional bondsman — Section 722-2, Code of Ordinances of Cincinnati — City treasurer to determine whether applicant "responsible person" — More than financial responsibility required — Applicant convicted of violating laws — No abuse of discretion in refusing to issue license — Writ of mandamus denied.
APPEAL from the Court of Appeals for Hamilton county.
The original jurisdiction of the Court of Appeals was invoked by a petition for a writ of mandamus directing the treasurer of the city of Cincinnati to issue to relator a license to do business as a professional bondsman, in accordance with Sections 722-2 and 722-2 a of the code of ordinances of that city.
The petition alleges that on May 2, 1949, relator made written application for a license, he proffered the license fee required, the city treasurer notified relator that his application was denied and the treasurer refused to issue a license to relator. His petition alleges also that relator has the necessary qualifications and has met the requirements set forth in the ordinances.
The answer of the respondent treasurer admits he refused and still refuses to issue the license, for the reason that relator is not a "responsible person" within the meaning of that term as used in Section 722-2 of the Code of Ordinances of the City of Cincinnati.
The Court of Appeals found that the relator was not entitled to a writ of mandamus and he perfected an appeal as of right to this court.
Additional facts appear in the per curiam opinion.
Mr. William F. Hopkins, for appellant.
Mr. Henry M. Bruestle, city solicitor, and Mr. James W. Farrell, Jr., for appellee.
The pertinent part of Section 722-2 of the Code of Ordinances of the City of Cincinnati reads:
"Any responsible person or firm may obtain from the city treasurer, a license to do business as a professional bondsman on payment of an annual license fee of one hundred dollars * * *." (Emphasis added.)
Section 722-2 a of the code of ordinances requires an applicant for such license to furnish with the application a surety bond in favor of the city of Cincinnati in any sum, not less than $1,000, adequate to cover at all times the total amount of all outstanding, undischarged bail bonds, recognizance bonds, appeal bonds or other court bonds on which he shall be liable as surety.
The relator contends that the city treasurer has the administrative duty to issue a license where an applicant is financially responsible.
It is the position of counsel for the city treasurer that the term, "responsible," as used in Section 722-2 of the code of ordinances, imposes moral as well as financial qualifications upon an applicant seeking a license as a professional bondsman, and that the city treasurer is clothed with authority to determine, in the exercise of a sound discretion, the possession of such qualifications.
Webster's New International Dictionary (2 Ed.) defines, in part, "responsible" as follows: "Able to respond or answer for one's conduct and obligations; trustworthy, financially or otherwise."
It was stipulated by counsel in the Court of Appeals that on January 12, 1949, relator was convicted of the offense of making false statements for the purpose of defrauding the United States in violation of Section 72 of Title 18 of the United States Code and making false statements under oath for the purpose of obtaining bond in violation of Section 231 of Title 18 of the United States Code, and on June 25, 1947, relator was convicted of the offense of attempting to evade his income tax in violation of the United States Income Tax Law. It was stipulated also that he had been convicted twice of the offense of possession of untaxed intoxicating liquor and once of the offense of unlawful possession of intoxicating liquor without a permit. It was stipulated further that relator had satisfied all judgments rendered against him on forfeited bonds.
This court is of the opinion that under Section 722-2, supra, more than financial responsibility of a person is a prerequisite to the issuance of a license as a professional bondsman, that the city treasurer had authority to determine whether the relator was a responsible person, and that under the stipulated facts of this case there was no abuse of discretion in refusing to issue a license to relator.
It is the established law of this state that a writ of mandamus will lie to compel the performance of an act specially enjoined by law as a duty resulting from a public office, but will not issue to control discretion unless it be clearly shown that the refusal to act is an abuse of discretion. Board of Education of Sycamore v. State, ex rel. Wickham, 80 Ohio St. 133, 88 N.E. 412, paragraph one of syllabus. See, also, State, ex rel. Ins. Co., v. Moore, 42 Ohio St. 103; State, ex rel. Franklin County Agricultural Society, v. Stroop, 100 Ohio St. 522, 126 N.E. 443; State, ex rel. Collett, v. Truax, Secy. of Agriculture, 117 Ohio St. 78, 157 N.E. 792; and 25 Ohio Jurisprudence, 1131, Section 176.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.