Opinion
No. 35906
Decided June 3, 1959.
Mandamus — Parties — Enforcement of statute — Performance of judicial functions — Relator must have beneficial interest — Attorney as such, not qualified, when.
An attorney does not have such "beneficial interest" in the enforcement of a statute dealing with the performance of judicial functions, solely by reason of being a member of the legal profession, as to enable him to maintain an action for a writ of mandamus commanding the performance of such functions. (Paragraph one of the syllabus of State, ex rel. Blackwell, a Taxpayer, v. Bachrach et al., City Council, 166 Ohio St. 301, distinguished.)
APPEAL from the Court of Appeals for Cuyahoga County.
This action in mandamus originated in the Court of Appeals for Cuyahoga County and is before this court on an appeal from the judgment of the Court of Appeals sustaining the demurrer of the respondent, appellee herein, to the amended petition filed by the relator, appellant herein, and denying the writ of mandamus.
In his amended petition the relator alleges that he is and was for "many years" a citizen, taxpayer and member of the Bar of Cuyahoga County, Ohio, and that the respondent is a duly elected judge and the duly designated Chief Justice of the Court of Common Pleas of that county. Generally, the amended petition alleges that the respondent has not complied with the statutory obligations of his office.
Specifically, the relator complains of noncompliance on the part of the respondent with the following provisions of Section 2301.04, Revised Code:
"In each county having more than two judges of the Court of Common Pleas, said judges may designate one of their number Chief Justice, who shall continue as such Chief Justice until the end of his term, whereupon a succesor may be chosen.
"The Chief Justice of the Court of Common Pleas shall have the general superintendence of the business of the court, and shall classify and distribute it among the judges. In january of each year, he shall file a complete annual report with the Clerk of the Court of Common Pleas, covering the preceding calendar year, which report shall show the work performed by the court and by each of the judges thereof, the number of days and hours of attendance in court, of each judge, and such other data as the Chief Justice of the Supreme Court requires. A copy of said report shall be transmitted by the clerk to the Chief Justice of the Supreme Court, and another copy shall be filed by such clerk with the Secretary of State. Copies of such annual reports shall be printed for free distribution.
"* * *
"Each judge of a Court of Common Pleas having a Chief Justice shall, at least once each month, make a report in writing, to the Chief Justice of said court, of the duties performed by such judge, in such manner and form as said Chief Justice requires."
The alleged effective date of Section 2301.04, Revised Code, was October 1, 1953, and it is alleged that the respondent by virtue of designation and redesignation by the judges of the Common Pleas Court of Cuyahoga County has been Chief Justice thereof continuously since December 1954, but that, during the respondent's first term as such Chief Justice and "up to now" during his second term, he has not performed certain of the duties imposed by this section of the Revised Code.
The amended petition alleges that the respondent has neglected and refused to prepare forms on which the individual judges can report to him as Chief Justice the various items of information required to be supplied under this statute; that the respondent has not filed with the Clerk of the Common Pleas Court for the years 1955, 1956 and 1957 the annual reports required by this section; that "he is not now" gathering such information for the year 1958; and that he "has refused to do so, although requested to do so." It does not appear by whom such request was made, although in his brief relator states that he personally made frequent requests.
The prayer of the amended petition seeks the issuance of a peremptory writ of mandamus directing the respondent to prepare and deliver to his fellow judges an adequate number of forms for them to report to him the various items of information required to be compiled under this statute. The prayer further asks that the respondent be required thereafter so long as he shall remain Chief Justice to gather and annually report and publish such information.
The demurrer to the amended petition filed by the respondent is general, the grounds thereof being as follows:
"That it appears on the face of the amended petition that the amended petition does not state facts which show a cause of action."
The Court of Appeals sustained the demurrer on the grounds that the relator does not allege that a personal right of his own was invaded by the claimed inaction of the respondent, and that the statute sued under does not "spell out" an absolute duty as to the requests contained in the relator's prayer.
The relator asks that this court reverse such judgment and enter final judgment in his favor against the respondent.
Mr. George B. Harris, for appellant.
Mr. John T. Corrigan, prosecuting attorney, Mr. A.M. Braun and Mr. John L. Dowling, for appellee.
Although the record does not disclose this fact, it is the contention of the relator, both in his brief filed in the Court of Appeals and in his oral argument before this court, that Section 2301.04, Revised Code, was enacted to expedite the judicial process and to relieve the congestion then existing in the Common Pleas Court of Cuyahoga County, Ohio. It is his contention, again not established by the record before us, that the period from the filing date to the date of trial in civil cases in Cuyahoga County has increased from eight months to 30 months in the last dozen years prior to the institution of this action. Possessing the conviction that compliance with the spirit of the statute would reduce this period from 30 months to six months, the relator has prosecuted this action to cause such compliance to be accomplished.
Without considering whether, under the law of Ohio, an attorney admitted to the practice by the Supreme Court of the state is a "member" of the Bar of any individual county, it is recognized that the relator stands before this court as a practicing lawyer of Cuyahoga County of many year's standing, in addition to being a citizen and taxpayer there. The relator does not contend, however, that as such practicing attorney he has personally experienced delay in having any matter, in which he has been a party or an attorney, brought to trial in the Common Pleas Court of Cuyahoga County. Neither does he complain of any other impairment of any rights of which he may be possessed in any of his three listed capacities, but, rather, he takes the commendable position that the prosecution of this action is on the basis of his desire to perform a civic duty.
"Mandamus" is defined by Section 2731.01, Revised Code, as a writ commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.
Section 2731.02, Revised Code, provides that the writ may issue on the information of the "party beneficially interested."
Section 2731.04, Revised Code, provides that application for a writ of mandamus must be by petition "in the name of the state on the relation of the person applying" but makes no provision as to who may or may not so apply and contains no amplification of the phrase, "party beneficially interested," in Section 2731.02. As is therefore to be expected, a review of the rights of various parties seeking such a writ has frequently been made by this court.
In some of the cases in which judicial comment has been made on this subject, the court, in the individual cases before it, has been content to hold only that the relators there suing had the right to maintain the actions for the writ. Such a holding was made in the case of State, ex rel. Blackwell, a Taxpayer, v. Bachrach et al., City Council, 166 Ohio St. 301, 143 N.E.2d 127. The first of the six paragraphs of the syllabus in that case authorizes the maintaining of the action by a relator who shows that "he is a citizen and as such is interested in the execution of the laws," but, as is pointed out in a concurring opinion in that case, that paragraph of the syllabus was not only inapplicable to the facts there presented but was not necessary to the decision. The writ of mandamus there sought was applied for under authority of Sections 733.58 and 733.59, Revised Code. These sections read together authorize "any taxpayer" to make application for the writ under facts such as existed there.
In the earlier case of State, ex rel. Skilton, v. Miller, Judge, 164 Ohio St. 163, 128 N.E.2d 47, 49 A.L.R. (2d), 1279, in the majority opinion by Judge Bell, who also wrote the majority opinion in the Bachrach case, it is stated that under facts such as there presented a relator, in order to maintain an action in mandamus, must have a beneficial interest in the act sought to be compelled. There, as here, the interest of the relator was in causing a compliance with and an enforcement of "the statutory law."
This subject is discussed in the article on mandamus in Ohio Jurisprudence (2d), written by William L. Hart, formerly a judge of this court. After a reference therein to Sections 2731.01, 2731.02 and 2731.04, Revised Code, it is stated as follows (35 Ohio Jurisprudence [2d], 417, Section 135):
"In accordance with the above statutes and the holdings of the Ohio courts, the relator must have a beneficial interest in the mandamus action and the relief sought therein, and a petition in mandamus must show a beneficial interest in the relator in the acts sought to be compelled. If it does not appear that the relator has such a beneficial interest, the writ will be denied. Accordingly, the rule is well settled in Ohio that if no legal right of a person can be affected by the failure of a public official to act in any given manner, such person does not have a beneficial interest such as will permit him to maintain an action in mandamus to require such officials to so act." (Emphasis supplied.)
In accordance with the foregoing, it is our conclusion that in order to properly be a relator in a mandamus action the applicant must allege and prove that he has a beneficial interest in the subject matter of the action, and that such interest must be different from and transcend that of the citizenry generally. In the present case if the interest of the relator is different from and transcends that of other citizens and taxpayers, it can only be because he is also an attorney. However, as has been previously pointed out, there is no claim that in this professional capacity either he or his clients have been either inconvenienced or harmed in any manner.
We are not here required to hold that the "beneficial interest" must be of a pecuniary nature. We will, however, pass upon the limited question as to whether the relator in a mandamus action, solely by reason of being a member of the legal profession, has such a "beneficial interest" in the enforcement of a statute dealing with the performance of judicial functions as to enable him to maintain a mandamus action to compel the performance of such functions. It is our conclusion that no such right is thereby created and we so hold.
It being our conclusion that the relator does not allege facts which justify the entertainment by the Court of Appeals of this mandamus action, we will not here consider the question presented as to whether the statute under consideration is directory only or mandatory.
It being the finding of the Court of Appeals that no invasion of a personal right of the relator has been pleaded, the judgment of that court denying the writ is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.