Opinion
No. 35393
Decided May 21, 1958.
Mandamus — Parties relator — Must have beneficial interest in action sought — No beneficial interest where no legal right affected — Wage scales on public works — Determination by Department of Industrial Relations — Hearing — Record — Appeal.
APPEAL from the Court of Appeals for Franklin County.
The relators, the general Contractors Association of Akron and Vicinity and the Associated General Contractors of America, Inc., Akron Chapter, instituted this action in mandamus in the Court of Appeals. In their petition they allege that they are bona fide organizations of employers engaged generally in the construction industry and principally in the locality of Summit, Portage and Medina Counties; that relators have entered into an agreement with the Hod Carriers, Building and Common Laborers Union pertaining to wages, hours and conditions of employment; that relators requested the Department of Industrial Relations to determine the prevailing rates of wages of mechanics and laborers for the class of work called for by any public improvement in the locality of Portage, Summit and Medina Counties, in the manner and form provided for by Section 4115.01 et seq., Revised Code; that the respondent Director of Industrial Relations made what purported to be a determination of the prevailing wage in those counties for common laborers; that thereafter relators requested such department that a hearing or rehearing be had for the purpose of making a record; and that the director refuses to proceed under the Administrative Procedure Act.
Relators allege further that they requested the Department of Highways for a determination of wages to be paid on public improvements within its jurisdiction in the locality of the above-named counties; that the department advised relators that it had certified such wage rates; that relators requested a hearing or rehearing for the purpose of making a record for appeal, which the department refused; and that both respondents, the Director of Industrial Relations and the acting Director of Highways, still refuse, in the making of a determination of wages, to proceed in the manner provided for by the Administrative Procedure Act.
The prayer of the petition is for a writ directing the respondent directors to provide for a hearing or rehearing for the purpose of making a record which may be the basis of an appeal in the matter of the determination of wage rates, and that respondents be enjoined from certifying or furnishing to any public authority and to any contractor, for the purpose of entering into a contract, the wage rates to be paid until they have been determined pursuant to the Administrative Procedure Act.
The respondents filed a demurrer to the petition, the first ground of which is that the relators have no beneficial interest in the act which they are seeking to have performed, in that no legal right of the relators has been affected.
The Court of Appeals sustained the demurrer on the grounds that relators do not have a sufficient beneficial interest in the act which they seek to have performed, and that the petition fails to state a cause of action in that there is no duty specifically enjoined by law upon respondents to perform the act prayed for.
An appeal as of right brings the cause to this court for review.
Mr. Scott A. Belden, for appellants.
Mr. William Saxbe, attorney general, and Mr. Thomas L. Startzman, for appellees.
It appears from the petition that relators are organizations of employers, and that such employers are engaged in the construction industry. It does not appear from the petition that either of the relators ever has entered or intends to enter into a contract with a public authority for the construction of a public improvement. The petition fails to allege that relators have a legal right to the action sought to be enforced by this proceeding; that they have been injured in any manner different from that affecting the public generally, or in any manner whatsoever; or that any legal private right of either organization has been affected in any manner by the inaction of respondents.
Under those circumstances, neither relator has a beneficial interest in the act which they seek to have performed or has the capacity to bring the action. In order to maintain an action in mandamus, a relator must have a beneficial interest in the act sought to be compelled.
"If no legal right of a person can be affected by the failure of a public official to act in any given matter, such person does not have a beneficial interest such as will permit him to maintain an action in mandamus to require such official to so act." State, ex rel. Skulton, v. Miller, Judge, 164 Ohio St. 163, 128 N.E.2d 47.
Since the petition fails to show a cause of action in favor of relators, the Court of Appeals properly sustained the demurrer.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MATTHIAS, BELL and HERBERT, JJ., concur.
TAFT, J., concurs in the judgment.