Opinion
No. 34751
Decided June 6, 1956.
Clerk of Courts — Duty to file petition presented for filing — Legal sufficiency of petition and right to file — Power to determine vested in Court — Mandamus.
IN MANDAMUS.
By this action in mandamus, instituted in this court, relator requests a writ requiring respondent, clerk of courts of Pike County, to accept and file a petition by which relator seeks an injunction against certain elected and appointed officials of Pike County. Relator alleges that the petition was presented to the respondent, together with $25 required by rule of court to pay costs; that respondent refused to accept and file the petition as required by Section 2303.09, Revised Code; and that by reason thereof relator has been denied access to the court.
Respondent, in his answer, by way of defense, alleges, first, that the petition contains no averment that a written request had been made on the prosecuting attorney to bring the suit; second, that the respondent determined costs in the amount of $300, which would normally be expended in bringing the case to a final determination, but relator has not tendered costs in such amount; and, third, that the prosecuting attorney, after investigation into the substantive matter in relator's petition for injunction, has filed a petition seeking a restraining order against expenditure of public funds and a determination of the legality of the existence and acts of certain appointed officials. Respondent prays that the petition be dismissed.
By way of reply, relator alleges that it is not the prerogative or duty of respondent to examine into the contents or legal sufficiency of any pleadings presented to him for filing; that he, relator, has complied with the rules of court relative to costs; that respondent is without legal authority to require any additional security for costs; and that the third defense does not constitute a legal defense to this action.
Messrs. Herbert, Tuttle, Applegate Britt, Mr. Joseph S. Deutschle, Jr., and Mr. W.T. Reed, for relator.
Mr. Wray Bevens, prosecuting attorney, for respondent.
There is a duty enjoined by law upon respondent, a ministerial officer of the court, to accept and file the petition tendered by relator.
A writ of mandamus is allowed on authority of State, ex rel. Wanamaker, Judge, v. Miller, Clerk, 164 Ohio St. 176, 128 N.E.2d 110.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.