Opinion
No. 23694
Decided January 11, 1933.
Mandamus — Writ denied to compel county auditor to issue warrant — Taxpayer's injunction pending, and good faith thereof not challenged.
ERROR to the Court of Appeals of Cuyahoga county.
This is a proceeding in error, seeking to reverse the Court of Appeals of Cuyahoga county. The original action was one in mandamus brought in that court, seeking to compel the defendant in error, as auditor of that county, to issue and deliver forthwith to the treasurer of said county a warrant in favor of the relator for the amount of $139,590, such being the amount of an agreed purchase price between relator and the county commissioners of Cuyahoga county for certain property to be used as a city-county street extension in the city of Cleveland.
The case was tried upon an amended petition and the answer thereto, and an agreed statement of facts and a stipulated amendment to such agreed statement of facts.
As above indicated, it was proposed to extend Chester avenue in the city of Cleveland, and the property of plaintiff in error was in the line of the extension. On the same was a valuable apartment house. After considerable negotiation the agreed price of $139,590 was reached, and the commissioners were desirous of going forward and paying that amount. A deed was made and tendered to the agent for the county commissioners, and the record discloses that the money was in the county treasury, appropriated by the budget commission for the purpose of securing this property, in an amount more than the sum called for by the voucher for the same.
In the amended stipulation of facts, paragraph P reads:
"That on or about May 22, 1932, a petition was filed in the Court of Common Pleas by one, Rose M. LeBoff, claiming to be a taxpayer of Cuyahoga County, making as defendants to the action County Commissioners, the City of Cleveland and John A. Zangerle, County Auditor. Together with the petition there was filed a motion seeking a temporary order against John A. Zangerle, Auditor of Cuyahoga County, from delivering a warrant to relator in this action in the sum of $139,590.00; that motion has not been heard and the Court of Common Pleas has not granted any order restraining either of the defendants to that suit. It is also a fact that relator is in nowise a party to that action."
Whereupon the county commissioners by resolution directed the county auditor to withhold the drawing and delivering of the voucher until after the proceedings had been disposed of in the taxpayer's suit. Thereafter the present action in mandamus was instituted in the Court of Appeals. Upon hearing the Court of Appeals denied the writ of mandamus and dismissed the action at the costs of the relator. Error is now prosecuted in this court to reverse such judgment.
Mr. W.H. Boyd, Mr. Max P. Goodman and Mr. Max Efros, for plaintiff in error.
Mr. P.L.A. Lieghley and Mr. Frank T. Cullitan, prosecuting attorneys, and Mr. E.P. Westenhaver, for defendant in error.
The taxpayer's action to enjoin the improvement and the respondent from issuing the voucher to the relator was begun May 22, 1932. The present case was instituted by the relator on June 7th following. The sole question for determination then becomes whether the pendency of the taxpayer's action, to enjoin this public improvement and to restrain the respondent from issuing the voucher, requires this court to reach the conclusion that a clear right to the mandatory writ prayed for is not shown, there being no affirmative showing that the taxpayer's suit was not instituted in good faith.
The decisions of this court indicate that the fact that an injunction suit is pending against the particular officer or board sought to be coerced is sufficient reason for refusing to issue a writ of mandamus, assuming the taxpayer's suit to be in good faith. Ohio Indiana Rd. Co. v. Commrs. of Wyandot County, 7 Ohio St. 278; State, ex rel. Silsbee, v. Boyce, 43 Ohio St. 46, 1 N.E. 217; State, ex rel. Grant, v. Joint Board of Commrs. of Wood and Hancock Counties, 106 Ohio St. 201, 140 N.E. 124; State, ex rel. Standard Oil Co., v. Harris, 109 Ohio St. 392, 141 N.E. 244. See, also, Ohio Jurisprudence, Vol. 25, pp. 1026, 1027 and 1028, Sections 44 and 45.
The present case is claimed to be distinguishable from the foregoing cases for the reason that no temporary injunction was issued against the respondent herein. However, we deem the principle of the cases cited as applicable, there being no affirmative proof of any lack of good faith in the bringing of the taxpayer's suit.
In the case of State, ex rel. Tax Commission, v. Faust, Auditor, 113 Ohio St. 365, 368, 149 N.E. 197, the allowance of the writ of mandamus after the allowance of an injunction in the common pleas court was based upon the statute, Section 1465-31, General Code, which provides that no injunction shall issue, suspend or stay an order, determination or direction of the tax commission. The case of State, ex rel. Tax Commission, v. Fry, Auditor, 116 Ohio St. 325, 155 N.E. 864, can be considered on the same basis. Neither of these cases is controlling in this instance, nor is State, ex rel. Manix, v. Auditor of Darke County, 43 Ohio St. 311, 1 N.E. 209, for the reason that the injunction suit had been finally dismissed before the action in mandamus was filed; and the case is further distinguishable on the facts.
Authorities in other jurisdictions are not uniform, but in this state we feel bound by the rule indicated, to wit, that the relator has not shown a clear right to a writ of mandamus when there is previously pending an injunction suit against the particular officer or board sought to be coerced, touching the same subject-matter, so long as it does not affirmatively appear in the record that the taxpayer's suit was not instituted in good faith.
It is not necessary for us to discuss the question as to whether or not the relator might intervene in the taxpayer's suit, nor for us at this time to express any opinion touching the merits of the taxpayer's suit or its conduct, except to say that in fairness to this relator there should be an early hearing of the same, for were it not for the taxpayer's suit the writ of mandamus prayed for would be awarded.
Our conclusion, therefore, is that we are compelled to deny the right to the writ of mandamus, under the record in this case, and we must enter a judgment of affirmance of the finding of the Court of Appeals.
Judgment affirmed.
DAY, ALLEN, STEPHENSON and JONES, JJ., concur.
WEYGANDT, C.J., not participating.