Opinion
No. 24313
Decided January 31, 1934.
Mandamus — Writ denied to compel prosecuting attorney to institute quo warranto — Writ not issued to control discretion under directory statute — Section 12306, General Code.
IN MANDAMUS.
Messrs. Denman, Miller Beatty and Messrs. Matthews Matthews, for relators.
Messrs. McConnaughey, Shea, Denmann McConnaughey, for respondent.
This cause came on to be heard upon the petition of relator, praying that a writ of mandamus issue compelling the respondent, as prosecuting attorney, to immediately make and prosecute an application to the Court of Appeals for leave to bring and prosecute an action in quo warranto, to try the right of relators' title to offices of directors of a private corporation, to oust the incumbents therefrom, and to induct the relators into said offices; the answer of the prosecuting attorney, admitting that a request to bring a proceeding in quo warranto, or file an application for leave therefor, was made by relators and refused by the respondent; and the reply thereto; and was argued by counsel. On consideration whereof it is ordered and adjudged that a writ of mandamus be, and the same hereby is, denied for the reasons:
(1) A writ of mandamus lies to compel the performance of a duty specifically enjoined by law and to compel an official to exercise discretion, but such writ will not lie to control discretion of an officer. State, ex rel. Methodist Children's Home Assn. of Worthington, v. Board of Edn. of Worthington Village School Dist., 105 Ohio St. 438.
(2) Section 12306, General Code, is directory and not mandatory investing the prosecuting attorney with authority to institute quo warranto, and
(3) The respondent, under the pleadings, has exercised his discretion and refused to institute the requested proceeding in quo warranto. Writ denied.
WEYGANDT, C.J., ALLEN, STEPHENSON, JONES, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.