Opinion
No. 30776
Decided December 11, 1946.
Mandamus — Writ not issued during time injunction decree in effect, when.
Where a court of competent jurisdiction has enjoined the doing of a specified act, a writ of mandamus will not issue, during the time the decree of injunction remains in full force and effect, to compel the performance of such enjoined act. ( Ohio Indiana Rd. Co. v. Commissioners of Wyandot County, 7 Ohio St. 278, and State, ex rel. First Natl. Bank, North Baltimore, Ohio, v. Village of Botkins, 141 Ohio St. 437, approved and followed.)
IN MANDAMUS.
Relator instituted this action in this court against respondents, the Deputy State Supervisors of Elections of Summit county, Ohio. The relief sought is a writ of mandamus commanding the respondents to order and hold a requested election.
It is alleged in the petition that on June 19, 1946, relator, as agent, filed a petition with the respondents as Deputy State Supervisors of Elections for Summit county, Ohio, requesting them to order an election to obtain the sense of the electors, residing within a certain territory located in Summit county and described in such petition, upon the question whether such territory should be detached from the village of Tallmadge; that the petition contained the names of the requisite number of qualified electors; that petitioners complied with all the requirements of law; and that the respondents refused to order and conduct the requested election.
The respondents filed an amended answer in which it is alleged, inter alia:
"The defendants [respondents] further say that on or about the 27th day of July, 1945, the plaintiff filed with the defendants a petition for an election and attached thereto a description of a tract of land, and that said petition and said tract of land described was the same as that which the plaintiff [relator] filed with the defendants on or about June 19, 1946, as set forth in their petition in this action. The defendants granted said former petition and ordered an election thereon; that Alice L. Norton filed an action in the Court of Common Pleas of Summit county, Ohio, case No. 151901 of said court, against the defendants to enjoin the granting of said petition and holding of said election, and that the Common Pleas Court by its judgment in said cause permanently enjoined the defendants therefrom; that said action was appealed to the Ninth District Court of Appeals, case No. 3762, and that said Court of Appeals rendered a written opinion in said cause on March 18, 1946, and rendered a judgment affirming the judgment of the Common Pleas Court, and that thereafter the Supreme Court of Ohio in case No. 30691 on or about June 1, 1946, overruled a motion of the defendants to certify the record of said cause to said court, and that by reason of the foregoing the defendants were required by law to deny the petition of the plaintiff filed with them on or about June 19, 1946, and that it was their clear legal duty to deny said petition, and that they were advised to do so by their legal counsel, the Prosecuting Attorney of Summit county, Ohio, upon the authority of and the law established by said previous case."
None of the quoted allegations of the amended answer were denied by the reply.
The cause was submitted upon the petition, the amended answer and the reply.
Mr. Daniel E. Falkner and Mr. William I. Dotson, for relator.
Mr. Alva J. Russell, prosecuting attorney, Mr. William A. Spencer and Mr. James M. Hinton, for respondents.
No evidence was offered in support of any of the allegations contained in the pleadings, nor have the parties filed an agreed statement of facts. Therefore, the cause will be disposed of as though on motion for judgment on the pleadings.
At the outset it may be well to restate the principle that a writ of mandamus is not a writ of right, but that the granting of such writ is a matter which rests in the sound discretion of the court.
In the case of State, ex rel. Apple, v. Pence et al., Board of Education of Shelby County School Dist., 137 Ohio St. 569, 31 N.E.2d 841, it was held:
"In exercising the extraordinary power of mandamus a court should take into consideration the facts and conditions existing at the time it determines whether to issue a peremptory writ." See, also, Trumbull County Board of Education v. State, ex rel. Van Wye, 122 Ohio St. 247, 171 N.E. 241, and State, ex rel. Haines, v. Board of Education of Greene County School Dist., 131 Ohio St. 609, 3 N.E.2d 527.
With that well-established rule in mind, we are confronted with this factual situation: There is a subsisting decree enjoining the respondents from doing the very act which the relator in the instant case asks the court to compel respondents to do by the issuance of a writ of mandamus.
In such a situation the law in this state has been firmly established for many years.
In the case of Ohio Indiana Rd. Co. v. Commrs. of Wyandot County, 7 Ohio St. 278, this court held:
"The court will not, by mandamus, compel a party to do what, by a subsisting decree of injunction, he is prohibited from doing, although the party seeking the remedy by mandamus is not a party to the decree of injunction."
There has been no deviation from the rule pronounced in that case. See, also, State, ex rel. Grant, v. Joint Board of County Commrs. of Wood and Hancock Counties, 106 Ohio St. 201, 140 N.E. 124; State, ex rel. Standard Oil Co., v. Harris, Bldg. Inspector, 109 Ohio St. 392, 141 N.E. 244; State, ex rel. Keville, v. Faurot et al., City Commrs., 126 Ohio St. 646, 186 N.E. 718, and State, ex rel. First National Bank, North Baltimore, v. Village of Botkins, 141 Ohio St. 437, 48 N.E.2d 865.
The respondents having been enjoined from ordering or holding the requested election, it follows that the writ will be denied and the petition dismissed.
Writ denied.
WEYGANDT, C.J., WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.
ZIMMERMAN, J., not participating.