Opinion
No. 35673
Decided November 5, 1958.
Municipal corporations — Board of Park Commissioners — Service and repair of automotive and other equipment — Budget requirements — Appropriation ordinance — Mandamus.
APPEAL from the Court of Appeals for Hamilton County.
This action in mandamus against the members of council and other officials of the city of Cincinnati originated in the Court of Appeals.
All legislative powers of the city of Cincinnati, which operates under a charter form of government, are vested in the city council, which is required, annually, to adopt an operating budget for all city departments. In 1956, council passed an ordinance which transferred all automotive and other equipment of various city departments, except that belonging to the Board of Park Commissioners, to the municipal garage. That ordinance provides that all such equipment thus transferred and under the custody of the municipal garage shall be rented by it to various departments and agencies of the city needing such equipment, on the basis of cost of maintaining and servicing such equipment. The park board was not included in this pooling arrangement, because it asked to be excluded therefrom, and its equipment cannot be rented by the municipal garage to other departments, but the park board may rent equipment included in the pooling arrangement. In the 1958 appropriation ordinance, council did not provide the park board with any funds with which to operate its own garage for servicing its equipment but, in an account titled "Code 4,000, Current Charges," did provide the board with funds to pay for the repairing and servicing of its equipment at the municipal garage. An ordinance was thereafter passed requiring the park board to have its equipment serviced and repaired at the municipal garage, the charges therefor to be based on the cost to the garage for such service and repair work but not for the use of the equipment. The city employees who had worked at the park board's garage were transferred to the municipal garage.
By this action in mandamus, relator seeks an order requiring council either to transfer the municipal garage service funds, appropriated under the account titled "Code 4,000, Current Charges" in the 1958 ordinance, to certain other accounts from which the funds would be available "for the use of the park board for performance of its services in its garages and with its own employees and equipment, as heretofore," or to appropriate adequate sums to those accounts from other sources. The relator seeks also to make the order of the court apply to future appropriation ordinances and asks that the other respondents be required to take proper action to effectuate the complete and sole control and operation as heretofore by the park board in and over its garage with its maintenance equipment and its employees performing services therein.
The answer alleges that council has the power to determine whether automotive and other equipment owned and used by the park board shall be serviced and repaired by the park board or at the municipal garage at the expense of the park board; that there is no duty imposed by law upon council to appropriate to the park board money to operate a garage for the maintenance of its automotive and other equipment; and that the ordinance to require the park board to have its equipment serviced and repaired at the municipal garage is valid.
The Court of Appeals found that the relator is not entitled to the relief prayed for, and dismissed the petition.
An appeal as of right brings the cause to this court for review.
Mr. Murray Seasongood, Mr. Reuven J. Katz and Mr. Arnold Morelli, for appellant.
Mr. James W. Farrell, Jr., city solicitor, for appellees.
The relator in a mandamus proceeding has the burden of showing a clear legal right to the relief sought. This the relator in the instant case has failed to do.
An examination of the record discloses a failure of proof that any respondent herein or any other officer or employee of the city has at any time refused to comply with any order of the park board relative to its automotive or other equipment, has questioned the board's jurisdiction over it, or has threatened to dispose or has disposed of or assigned any part of it to any other department of the city.
It is manifest from the prayer of the petition that relator seeks also to require city council, the legislative body of the municipality, to amend its 1958 appropriation ordinance relative to the appropriation for the park board and to continue to enact similar legislation annually. We fail to find any clear legal duty of council to do so.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS BELL and HERBERT, JJ., concur.