Opinion
No. 77-236
Decided February 1, 1978.
Mandamus — Writ denied, when — To compel reassessment of public improvement — Legislative power discretionary — Clear legal duty not shown — R.C. 727.39.
IN MANDAMUS.
On August 11, 1977, a statement of facts was filed with this court by the city of Niles, relator herein, pursuant to the prayer for the issuance of a writ of mandamus in the instant cause, alleging the following:
A plan for Storm Sewer District No. 4 was authorized by Niles City Council Resolution No. 2145, adopted in 1958. Resolution of Necessity No. 2216 was adopted on August 19, 1959. Special assessments, apparently pursuant thereto, were levied in 1962, and equalized in 1964 by an Equalization Board, and postcards were forwarded to property owners in 1964 advising them of the assessments. Objections were filed by property owners, and litigation ensued.
On September 6, 1966, the Court of Common Pleas of Trumbull County consolidated all cases encompassing objections to the assessments, set the assessments aside, and ordered a new assessment be made under court supervision. The court appointed three appraisers, and ordered property owners to be notified when the assessment was made.
The trial court on April 28, 1971, ordered that the assessment filed under its supervision and subsequently equalized be confirmed and ordered to record. Appeal was taken by property owners.
On May 30, 1972, the Court of Appeals for Trumbull County ruled that the trial court, having set aside the assessments, had no further jurisdiction, and lacked jurisdiction to order a new assessment. The judgment of the trial court was reversed.
Notes of the relator totaling $185,000, held by the Treasury Investment Board, have been issued and reissued. The most recent of these obligations, dated October 12, 1976, remains unpaid, and respondents have made no payment arrangements.
Pursuant to Ordinance No. 48-76, respondents attempted to revoke and forgive all assessments paid or unpaid, and directed the entire expense be met from the Sewer Fund. Pursuant to a referendum petition, Ordinance No. 48-76 was repealed at the general election of November 7, 1976.
Despite the efforts of some respondents, apparently including Fremont Camerino, Arthur Doutt, and Phillip Rickard, Jr., other respondents, apparently including Joseph Cicero, Ralph Infante, and Gevene Sprecacenere have refused to assess, allocate the property owners' and city's shares, authorize payment of the notes pursuant to statute, or to provide for the retirement of debts. Tentative assessment estimates have been prepared by the City Engineer and filed in his office awaiting respondents' actions.
In the instant cause, relator seeks an order directing respondents, as members of the Niles City Council, and the mayor of Niles, to adopt an ordinance approving the estimated assessments on file with the City Engineer; to proceed with the levy of the assessments for Storm Sewer District No. 4; to adopt procedures providing notice to and receive objections from property owners to be assessed; to provide an Equalization Board to equalize assessments objected to; to provide the necessary legislation retiring the notes and debt obligations; and to pass the legislation necessary to pay the Treasury Investment Board for the sum of $185,000, plus interest.
This cause is now before this court pursuant to Section 2(B)( 1)(b) of Article IV of the Constitution of Ohio.
Mr. Mitchell F. Shaker, city solicitor, for relator.
Mr. Mitchell F. Shaker, city solicitor, for respondents Mr. Fremont J. Camerino, Mr. Arthur M. Doutt and Mr. Phillip A. Rickard, Jr.
Messrs Pfau, Comstock Springer, and Mr. David C. Comstock, for respondents Mr. Joseph Cicero, Mr. Ralph Infante and Mr. Gevene C. Sprecacenere.
Mr. Nick A. Bernard, Mr. John J. Burke, Mr. Anthony R. Corea and Mr. Lawrence A. Zachariah, for respondents pro se.
The instant action has been filed with this court pursuant to R.C. 733.58, which provides:
"In case an officer or board of a municipal corporation fails to perform any duty expressly enjoined by law or ordinance, the solicitor shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty." (Emphasis added.)
To demonstrate that he is entitled to a writ of mandamus, a relator must show (1) that he enjoys a clear legal right to the relief for which he prays, (2) that respondent is under a clear legal duty to perform the act demanded by relator, and (3) that he has no plain and adequate remedy in the ordinary course of the law. See State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631; and State, ex rel. National City Bank, v. Bd. of Education (1977), 52 Ohio St.2d 81, 369 N.E.2d 1200.
R.C. 727.39 provides:
"When it appears to the legislative authority of a municipal corporation that a special assessment is invalid by reason of informality or irregularity in the proceedings, or when an assessment is adjudged to be illegal by a court of competent jurisdiction, the legislative authority may order a reassessment whether the improvement has been made or not.
"Proceedings upon a reassessment, and for the collection thereof, shall be conducted in the same manner as is provided for the original assessment." (Emphasis added.)
In ascertaining whether relator has a clear legal right to the relief for which he prays, we first determine whether R.C. 727.39 encompasses a "duty expressly enjoined by law," within the meaning of R.C. 733.58.
In Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St.2d 102, 271 N.E.2d 834, the Dorrian appellant contended that the word "may," as utilized in R.C. 6101.45 and 6101.46, was mandatory in nature, and that a court of appeals had erred in interpreting it in those sections as being permissive. This court explained that a statutory usage of the term "may" is generally construed to render optional, permissive, or discretionary the provision in which it is embodied; this is so at least when there is nothing in the wording, sense, or policy of the provision demanding an unusual interpretation. The term "shall" usually is interpreted to render mandatory the provision containing it.
"The word `may' will not be given the meaning of `shall' or `must' where it is apparent from the whole section or statute that such was not the legislative intention." 50 Ohio Jurisprudence 2d 33, Statutes, Section 21.
Consistent with Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St.2d 102, 271 N.E.2d 834, and with the judgment in the instant cause are State, ex rel. Ewing, v. Without A Stitch (1974), 37 Ohio St.2d 95, 103, 307 N.E.2d 911, appeal dismissed 421 U.S. 923, and Malloy v. Westlake (1977), 52 Ohio St.2d 103, 106, 370 N.E.2d 457. This court reiterated in Without A Stitch and Westlake that the use of the word "shall" in a statute must be construed as imposing a mandatory duty, unless there appears a clear and unequivocal legislative intent that it receive a meaning other than its ordinary meaning.
The language of R.C. 727.39 discloses no clear intent of the General Assembly that the term "may," as encompassed therein, be construed as mandatory rather than permissive, nor are we persuaded that the sense or policy of this provision requires an unusual interpretation. Consequently, the power pursuant to R.C. 727.39 of a legislative authority to order a reassessment, whether the relevant improvement has been made or not, is permissive or discretionary in nature.
In view of the foregoing, relator has not established the clear legal duty necessary for the relief of mandamus, and the writ is denied.
Writ denied.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.