Opinion
No. 24605
Decided November 26, 1958.
Common Pleas Court — Chief Justice — Annual report — Contents — Method of reporting and information reported discretionary with Chief Justice — Section 2301.04, Revised Code — Enforcement of statute — Mandamus — Party relator — Attorney as such not qualified, when.
1. The provisions of Section 2301.04, Revised Code, that the Chief Justice of a Court of Common Pleas shall report annually, "which report shall show the work performed by the court and by each of the judges thereof, the number of days and hours of attendance in court, of each judge, and such other data as the Chief Justice of the Supreme Court requires," do not prescribe the precise method in which the judges are to report and the information to be reported, except for the days and hours of work, and under such provisions the form of the report and its contents are discretionary with the Chief Justice of the Court of Common Pleas except as to requests received from the Chief Justice of the Supreme Court.
2. An action in mandamus by a resident and taxpayer of a county, who is also an attorney at law, will not lie to compel the Chief Justice of the Court of Common Pleas of relator's county to perform the functions set forth in such provisions, where the relator does not plead that his personal rights have been invaded by the failure of the Chief Justice to so perform.
APPEAL: Court of Appeals for Cuyahoga County.
Mr. George B. Harris, for relator.
Mr. John T. Corrigan, prosecuting attorney, Mr. A. M. Braun and Mr. John L. Dowling, for respondent.
The relator has filed his petition in this court seeking a writ of mandamus, in which he alleges:
(1) That he is a resident and a taxpayer and also is a member of the Bar of Cuyahoga County.
(2) That Judge Samuel H. Silbert, the respondent, is a duly elected judge of the Court of Common Pleas of Cuyahoga County whose term of office expires January 1, 1963.
(3) That in December 1954, under the authority of Section 2301.04, Revised Code, his associate judges (he at that time being a judge of the court and the court then being composed of 15 judges) designated the respondent to be the Chief Justice of the Court of Common Pleas of Cuyahoga County until the end of his then term of office ending January 1, 1957.
(4) That in January 1957, the associate judges of respondent (then 19 in number) again designated him to be Chief Justice of the Court of Common Pleas of Cuyahoga County, and that he is now serving in that capacity.
(5) That, since October 1, 1953, Section 2301.04, Revised Code, has read, in part, as follows:
"In each county having more than two judges of the Court of Common Pleas, said judges may designate one of their number Chief Justice, who shall continue as such Chief Justice until the end of his term, whereupon a successor may be chosen.
"The Chief Justice of the Court of Common Pleas shall have the general superintendence of the business of the court, and shall classify and distribute it among the judges. In January of each year, he shall file a complete annual report with the Clerk of the Court of Common Pleas, covering the preceding calendar year, which report shall show the work performed by the court and by each of the judges thereof, the number of days and hours of attendance in court, of each judge, and such other data as the Chief Justice of the Supreme Court requires. A copy of said report shall be transmitted by the clerk to the Chief Justice of the Supreme Court, and another copy shall be filed by such clerk with the Secretary of State. Copies of such annual reports shall be printed for free distribution.
"* * *
"Each judge of a Court of Common Pleas having a chief justice shall, at least once each month, make a report in writing, to the Chief Justice of said court, of the duties performed by such judge, in such manner and form as said Chief Justice requires."
(6) That, during his term or terms to the date of the filing of this petition, the respondent has not performed the following duties specifically and mandatorily imposed upon him by law:
(a) To prepare forms to be used by each of the judges of the court to report to the Chief Justice the number of days and hours in attendance in court and the work performed by him, or to otherwise gather said data.
(b) That because of the aforesaid refusal, respondent has failed to make and file with the clerk, for the years 1955, 1956, and 1957 (the years he has served as Chief Justice of the Court of Common Pleas of Cuyahoga County), an annual report covering each calendar year and showing the work performed by the court and each of the judges thereof, and the number of days and hours of attendance of each judge of the court, and that he is not now gathering such data and refuses to do so for the year 1958, as is required by law, although requested to do so.
Relator prays "that a peremptory writ of mandamus be issued directing respondent, Samuel H. Silbert, as Chief Justice of the Court of Common Pleas for Cuyahoga County, Ohio, to prepare and deliver to each of the judges of said court an adequate number of forms for each of them to report to him, monthly, the aforesaid data showing the work done by each of said judges, together with the days and hours of attendance in court by each of them during the calendar year 1958 and thereafter, so long as he shall remain Chief Justice, or in such other manner as he or this court may determine, gather and annually report and publish said information, as the law requires, or that an alternative writ be issued requiring respondent to show cause why such a final and peremptory writ should not be issued, and, upon his failure to show cause, that a final writ of mandamus be issued so ordering and directing."
The demurrer of the respondent challenges the sufficiency of the facts pleaded to state a cause of action and also challenges the relator's legal capacity to maintain the action.
Section 2731.01, Revised Code, provides:
"Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."
Section 2731.02, Revised Code, provides:
"The writ of mandamus may be allowed by the Supreme Court, the Court of Appeals, or the Court of Common Pleas and shall be issued by the clerk of the court in which the application is made. Such writ may issue on the information of the party beneficially interested.
"Such writ shall contain a copy of the petition, verification, and order of allowance."
The petition of the relator, as above set out, does not contain an allegation that he has been injured in a manner different from that affecting the public generally or in any manner whatsoever or that any legal private right of his has been affected in any manner by the inaction of the respondent as alleged in the petition.
The Supreme Court of Ohio in the case of State, ex rel. General Contractors Assn. of Akron and Vicinity, v. Wait, Dir., 168 Ohio St. 5, 150 N.E.2d 851, quoting the second paragraph of the syllabus of the case of State, ex rel. Skilton, v. Miller, Judge, 164 Ohio St. 163, 128 N.E.2d 47, stated the law clearly applicable to the facts here pleaded, as follows:
"If no legal right of a person can be affected by the failure of a public official to act in any given matter, such person does not have a beneficial interest such as will permit him to maintain an action in mandamus to require such official to so act."
The Miller case (affirming the judgment of this court reported in 99 Ohio App. 481, 122 N.E.2d 662, decided November 24, 1954) involved the refusal of the police judge of Cleveland Heights (also the Clerk of the Police Court, there being two causes presented in the same appeal) to issue a warrant for the arrest of a person against whom a complaint had been filed charging a violation of the Sunday closing law. The second paragraph of the syllabus of the Miller case (Ohio App.) provides:
"2. In the absence of a showing that the relator has a beneficial interest, either as an individual taxpayer or as a citizen, in obtaining a peremptory writ of mandamus, such writ will not be granted."
See, also, paragraph two of the syllabus of the case of State, ex rel. Stanley, v. Cook, Supt. of Banks, 146 Ohio St. 348, 66 N.E.2d 207.
Under the foregoing authorities, we find that the relator does not plead that a personal right of his has been invaded by the claimed inaction of the Chief Justice, under the provisions of Section 2301.04, Revised Code, and for that reason is without a lawful right to maintain this action.
It also appears that, by the terms of the statute, there is no specific duty directing the Chief Justice to prepare forms or to spell out what information shall be sought in the form to be provided by the Chief Justice for the use of his associates. The statute, as quoted above, provides, in part, that the Chief Justice shall report annually, "which report shall show the work performed by the court and by each of the judges thereof, the number of days and hours of attendance in court, of each judge, and such other data as the Chief Justice of the Supreme Court requires." The foregoing contains all the provisions of the statute upon which relator relies. Not a syllable is found in the text that prescribes the precise method in which the judges are to report and the information to be reported, except for the days and hours of work. Both the form of the report and its contents are discretionary with the Chief Justice, except as to requests that may be received from the Chief Justice of the Supreme Court.
In order to allow the issuance of a writ of mandamus, a clearly defined legal duty must be enjoined by law. From the foregoing text of the statute, no absolute duty is spelled out as to the requests contained in the relator's prayer.
For the foregoing reasons, the demurrer is sustained, and, it being clear from the facts pleaded that no personal right of the relator is or can be pleaded, the writ is denied and final judgment is entered for the respondent.
Writ denied.
SKEEL, P. J., HURD and KOVACHY, JJ., concur.