Opinion
No. 35188
Decided October 30, 1957.
Mandamus — Writ refused by Supreme Court, when — Lack of adequate ordinary remedy in law or equity not shown — Remedy of injunction available — Schools — Board of education — Meetings to be open to public — Section 121.22, Revised Code.
IN MANDAMUS.
ON DEMURRER to petition.
The relators, electors and residents of Minford Local School District of Scioto County, have invoked the original jurisdiction of this court to obtain a writ of mandamus to require respondents, members of the local board of education, to hold and conduct all their future regular or special board meetings in an open or public manner "and in accordance with the mandatory requirements" of Section 121.22, Revised Code.
In their petition, relators allege that they are residents of and electors in the Minford Local School District and bring the action on behalf of themselves and as representatives of other qualified electors of the district; that respondents are the duly elected, qualified and acting members of the Board of Education of Minford Local School District; that, since respondents have been members of the board, the board has consistently and persistently conducted its meetings in contravention and in violation of Section 121.22, Revised Code, and has, after specific requests for public meetings by electors of the district, wilfully refused to conduct its meetings in public as required by statute.
The relators set forth specific instances in which the board refused to conduct public or open meetings as required by statute and allege further that the board, "unless required to do so by the order of this court, will continue to disregard said statute."
The prayer is for a writ requiring respondents to hold their future regular and special board meetings in an open or public manner "in accordance with the mandatory requirements" of Section 121.22, Revised Code.
The respondents demur to the petition on the grounds (1) that there is a defect of parties respondent in that the action should be brought against the board in its corporate capacity and not against the individuals constituting the board, and (2) that the facts contained in the petition do not constitute a cause of action against respondents.
Mr. M.M. Carlisle, for relators.
Mr. Everett Burton, Jr., prosecuting attorney, for respondents.
Section 2731.05, Revised Code, provides that "the writ of mandamus must not be issued where there is a plain and adequate remedy in the ordinary course of the law."
This court has held in State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, 162 Ohio St. 302, 123 N.E.2d 23, that, "before a writ of mandamus will be granted by the Supreme Court under its constitutional powers as contained in Section 2 of Article IV of the Ohio Constitution, a clear legal right thereto must be shown, and the burden of establishing such right is upon the relator"; and that "a writ of mandamus will ordinarily be refused by the Supreme Court under its constitutional powers unless the relator shows affirmatively that there is no plain and adequate remedy in the ordinary course of the law, including equitable remedies." (Emphasis supplied.)
The demurrer to the petition is sustained on the sole ground that there is another adequate ordinary remedy by way of injunction, and the petition is dismissed.
Demurrer sustained and petition dismissed.
ZIMMERMAN, STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.