Opinion
No. 35356
Decided March 12, 1958.
Underground Parking Commission — Issuance of bonds — Prospectus and notice of sale — Ministerial duty of secretary-treasurer of commission to prepare — Mandamus — Not available to require performance.
IN MANDAMUS.
This is an action in mandamus originated in this court by the Underground Parking Commission, created by Section 5538.02, Revised Code, for the purpose of constructing an underground parking lot beneath the state Capitol grounds, against its secretary-treasurer to compel him to prepare a prospectus and to publish a notice of sale of revenue bonds which the commission wishes to issue under its statutory powers.
The relator in its petition alleges that it has the power to issue such bonds; that it can proceed no further with its statutory duties until such bonds are issued; that respondent has a legal duty to prepare such prospectus and notice of sale; that the failure to do so will cause irreparable injury; and that it has no adequate remedy at law.
The respondent admits the operative facts alleged by relator and the statutory provisions here involved. However, he denies he has a legal duty to perform. He alleges that the resolution directing him to prepare the prospectus directs him to include a statement that any property acquired or used by the commission will be exempt from taxation. He alleges further that such property does not constitute "public property used exclusively for any public purpose" within the meaning of Section 2, Article XII of the Ohio Constitution; that Section 5538.18, Revised Code, exempting such parking lot from taxes or assessments, is, therefore, unconstitutional; and that "the act purporting to create relator is unconstitutional, invalid and void in that it contravenes Article XIII, Section 1 of the Ohio Constitution, because it confers corporate powers by special act, or, in the alternative that it contravenes Article II, Section 26 of said Constitution, in that it is a law of a general nature which does not have uniform operation throughout the state."
To this answer relator has filed a demurrer, and the case is now before this court on the demurrer.
Messrs. Squire, Sanders Dempsey, Mr. Henry J. Crawford, Mr. Carl H. Tangeman, Mr. Bruce S. Lane and Messrs. Vorys, Sater, Seymour Pease, for relator.
Messrs. Day, Cope, Ketterer, Raley Wright, for respondent.
Obviously, the allegation of the petition that the relator "has no adequate remedy at law or in equity" is a conclusion bottomed only on the allegations of fact set forth therein.
Before we reach the issues of constitutionality, an examination of Section 5538.02, Revised Code, is advisable.
After providing for the appointment of four members by the Governor, with the advice and consent of the Senate, and making the Director of Public Works a member ex officio, the section provides further:
"The commission shall elect one of its appointed members as chairman and another as vice-chairman, and shall appoint a secretary-treasurer who need not be a member of the commission." (Emphasis added.)
The pleadings establish that the respondent is the duly appointed, qualified and acting secretary-treasurer of the commission.
Counsel for the relator, in their brief supporting the demurrer, state that "respondent refused [on two specified grounds] to perform those ministerial duties" of preparing a prospectus and publishing a notice of sale of the revenue bonds proposed in accordance with the mandate of section 3 of the bond resolution attached to the petition as exhibit A. It is, therefore, recognized that the respondent's function is purely ministerial.
It is apparent from the words of Section 5538.02, Revised Code, that, if respondent will not perform those ministerial duties, the commission can appoint a secretary-treasurer who will. Since a member of the commission may be so appointed and a majority of the commission are in favor of performance of those duties, it is obvious that relator has an adequate remedy by way of self-help. Hence, it does not need the relief sought.
The writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.