Opinion
No. 27197
Decided March 1, 1939.
Office and officer — Judiciary cannot compel action by officer, when — City solicitor authorized to institute mandamus, when — Section 4313, General Code — Petition must allege facts showing duty expressly enjoined — Mandamus lies to compel official to make public improvements, when — Writ not available where authority of official permissive or discretionary — Officials may abandon construction of public improvements, when.
1. The judicial branch of government cannot compel action on the part of any officer of government by mandamus or otherwise until such officer has so far failed to act as to constitute a violation of official duty.
2. A city solicitor is authorized to bring a mandamus action under Section 4313, General Code, only in case an officer or board fails to perform some specific duty expressly enjoined by law or ordinance; and in such case the petition must specifically set out facts showing the duty expressly enjoined by law or ordinance, the performance of which is sought to be compelled by such writ.
3. Public officials may be compelled by writ of mandamus to make certain public improvements when the same are specially and particularly enjoined and commanded by law to be made as a part of their official duty and responsibility; but mandamus will not lie to control the action of public officials with reference to the construction of public improvements if their authority to act is merely permissive or their obligation to act lies within their discretion and judgment.
4. Even though public officials within their discretion have determined to construct certain public improvements, such officials may, at any subsequent time, in the exercise of like discretion, abandon the construction of such public improvements, provided no private right has intervened which requires protection, and unless such public improvements are specially enjoined and commanded by law to be made.
APPEAL from the Court of Appeals of Auglaize county.
In 1933 the city council of the city of Wapakoneta adopted an ordinance authorizing application to the Federal Emergency Administrator of Public Works for a loan to the city for the purpose of constructing an electric light and power plant to be used in connection with a distribution system already owned by the city.
In August, 1934, an ordinance was passed by the city council authorizing the submission of a proposed initiative petition to the electors of the city, incorporating therein an ordinance declaring it necessary for the city to construct such light and power plant, which ordinance of necessity was adopted by the electors of the city in the November election of 1934. Thereafter, on February 6, 1935, the council adopted a resolution approving a loan and grant agreement with the United States for a loan to the city of not to exceed $146,000 to provide funds for the building of the plant and authorizing the mayor and auditor to execute the loan agreement on behalf of the city.
No further steps seem to have been taken in the matter until May, 1936, when the city council passed another ordinance declaring it necessary to construct such light plant; authorizing the issuance of $104,000 mortgage revenue bonds of the city under Section 12, Article XVIII, Constitution of Ohio, for the purpose of constructing the plant; authorizing a pledge of revenues from the plant to redeem the bonds; and adopting a franchise ordinance stating the terms upon which, in case of foreclosure, the purchaser, at any foreclosure sale of the plant under the mortgage securing the bonds, might operate the plant in the city of Wapakoneta. The United States made an offer to purchase such proposed bonds on certain terms and conditions and a modified proposal to lend the city the further sum of $146,000, which was accepted and approved by the city council. In August, 1936, at the instance of the United States, an elaborate superseding loan agreement was entered into relating to the loan and proposed purchase of bonds, making provisions for distribution of funds as the construction of the light plant proceeded, covering the right of approval of specifications, approval of contract, providing for labor, etc. The mayor and auditor of the city, by a resolution of council, were authorized to execute such superseding loan agreement.
In October, 1937, at the instance of the United States, an amendment to the superseding loan and grant agreement was submitted to the city proposing the installation of a Diesel electric power plant in lieu of all the former proposals for the installation of steam generators, boilers, etc. Engineers were then hired by the city to prepare plans and specifications and to supervise the proposed construction.
On February 16, 1938, before the bonds were issued or contract let for the construction of the proposed light plant, the city council of Wapakoneta, composed of the members of council who are now made respondents in this action, adopted an ordinance fixing the price at which the Central Ohio Light Power Company should furnish and deliver the electric energy requirements of the city of Wapakoneta for resale, which rate-fixing ordinance was accepted by the Central Ohio Light Power Company on February 18, 1938. On the same day that the rate-fixing ordinance was adopted, the city council passed other ordinances repealing all the former legislation relating to the building of a municipal light plant, including the resolution of necessity theretofore adopted by the vote of electors, the ordinance authorizing the issuance of bonds and a mortgage securing the same, the ordinance approving the superseding loan agreement with the United States, and an ordinance authorizing the service director to advertise for bids for the construction of the proposed light plant.
Thereupon, under date of March 18, 1938, the city solicitor of the city of Wapakoneta, claiming his right so to do by virtue of Section 4313, General Code, filed this action in mandamus in the Court of Appeals of Auglaize county in the name of the city of Wapakoneta against the present mayor, members of the city council, director of public service and safety, and members of the building commission of that city as respondents, setting up in detail the legislation and action of the members of the city council in previous years as hereinbefore detailed in this statement of facts, and claiming that the repeal legislation of the council is void and contrary to law on the ground of fraud and bad faith on the part of council and the Central Ohio Light Power Company because he, as city solicitor, and the city auditor were not consulted with reference to such repeal legislation or with reference to the contract fixing rates for electric current; because council had taken advice from the attorney for the Central Ohio Light Power Company; because certain features of the light contract had not been made public; and because the passage of such legislation is unconstitutional and void in that it impairs the obligation of contracts.
The prayer of the petition is, "that a writ of mandamus issue commanding said defendants, and each and all of them to proceed with and to do and perform or cause to be done and performed all acts and things necessary in and to the building and construction of said municipal light plant of the city of Wapakoneta, Ohio." An alternative writ was issued by the court without notice and without hearing. The respondents filed a motion to strike out substantially all the allegations of the petition, except the formal parts. The Central Ohio Light Power Company, on its own motion, was made a party defendant and also filed a motion to strike out practically all the allegations of the petition because irrelevant and immaterial.
The parties were notified to appear before the Court of Appeals on April 22, 1938, for hearing on the motion to strike, at which time an informal conference or hearing was had. The record shows that on June 10 the minutes of the court and opinion were filed. On June 20, a motion for rehearing was filed by the relator together with a brief covering all the points in controversy. On June 28, a journal entry was filed by which the court, sua sponte, struck the petition from the files and quashed the alternative writ of mandamus theretofore issued, for the reasons that the city solicitor, in the judgment of the court, was without legal capacity to bring the action; that none of the respondents owes any duty, performance of which might be compelled by mandamus; and that the petition failed to state a cause of action for the issuance of the writ. No application was made for leave to amend the petition. This case is now in this court on appeal as of right from the Court of Appeals.
Mr. A.A. Klipfel, Jr., city solicitor, for appellant.
Mr. Otto J. Boesel, Mr. H.S. Vaubel, Mr. Emmett D. Lusk and Mr. Walter S. Jackson, for appellees.
The legal questions involved in this action are: (1) Does the city solicitor of the relator city, under the facts of this case, have authority to institute this action under favor of Section 4313, General Code? (2) May the Court of Appeals in a mandamus action, on consideration of motions by the respondents to strike out substantial portions of the petition, sua sponte strike the petition itself from the files and quash the alternative writ of mandamus, when the court finds that the relator is without legal capacity to sue; that none of the defendants owes any duty the performance or which may be compelled by mandamus, and the petition otherwise fails to state a cause of action? (3) Do the facts, including the legislation of the city council of Wapakoneta as set out in the petition, create a duty upon the part of the respondents to act as prayed for therein, and, if so, may such action be compelled by mandamus?
On considering these issues, it must always be borne in mind that mandamus is an extraordinary legal remedy. While the judicial branch of government is coordinate with the legislative and executive branches, it has no power or function in the first instance to initiate or compel the initiation of any governmental activity. Its sole function is to protect rights, to redress wrongs, and to restrain the other two branches of government from exceeding their power and authority. Therefore, the judicial branch of government cannot compel action on the part of any officer of government by mandamus or otherwise until such officer has so far failed to act as to constitute a violation of official duty. In other words, courts will not compel performance until there is a clear violation of a duty to act. The question then throughout the consideration of this case is: Have the respondents or any of them committed any wrong by failure to act as matters stood on the day of the filing of the petition?
The respondents claim, in the first place, that the city solicitor of the city of Wapakoneta had no power or capacity to bring this action. The city solicitor claims this authority under Section 4313, General Code, which provides that: "In case any officer or board fails to perform any duty expressly enjoined by law or ordinance, the solicitor shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty." (Italics ours.) What duty is expressly enjoined by law or ordinance upon the respondents to do what the prayer of the petition in this case demands, namely, "to proceed with and to do and perform or cause to be done and performed all acts and things necessary in and to the building and construction of said municipal light plant"? "Expressly enjoined," means not impliedly but specifically, in so many words, commanded. The relator in its petition and likewise in its brief in this court fails to point out any such express command directed to the respondents, and the court finds none in the record.
At the time the petition was filed there was no legislation in force in the city of Wapakoneta providing for the building of a light plant, much less commanding the respondents to build one. It is true the relator makes the claim that the ordinances repealing the former legislation dealing with the construction of a light plant are void and illegal because of ulterior motives on the part of the respondent councilmen in passing them, but they are undoubtedly the law as to the subject-matter contained therein until some court declares them illegal and void. This court is not called upon to do so, and would have no right to do so in this case. Furthermore, as will later appear in this opinion, even if the former legislation had not been repealed there is no "express" duty enjoined upon the respondents to issue bonds, advertise for bids, or let a contract to build a light plant. A city solicitor is authorized to bring a mandamus action under Section 4313, General Code, only in case an officer or board fails to perform some specific duty expressly commanded by law or ordinance, such as the payment of money in hand to the party to whom it is commanded or adjudged by law to be paid. State, ex rel. Nead, v. Nolte, 111 Ohio St. 486, 146 N.E. 51, 37 A. L. R., 1426, and State, ex rel. Ballard, v. Harrison, 81 Ohio St. 98, 90 N.E. 150. The allegations in the petition of the relator must disclose the right to bring such an action under favor of this section. Since there are no such facts stated in the petition, the city solicitor is without authority, under the statute, to maintain the action. Furthermore, although the question is not raised in the record, the solicitor had no authority to bring this action in the name of the city. A mandamus action must be brought in the name of the state on the relation of the person applying for the writ. Section 12286, General Code.
The relator also claims that the court had no right to strike its petition from the files and terminate the action. The respondents filed motions to strike out certain portions of the petition because irrelevant and immaterial, and the court, on examination of the petition, treated the motions as a general demurrer, dismissed the action and quashed the alternative writ on the ground that the solicitor was without capacity to bring and maintain the action; that the respondents owed no duty the performance of which could be compelled by mandamus, and that the petition failed to state a cause of action. If the court was right in this finding, it was doubtless justified in treating the motions as demurrers and dismissing the action, in the absence of further pleading upon the part of the relator. While this practice is not to be commended, on the other hand it is not without precedent. 31 Ohio Jurisprudence, 853, 854, Section 269. The relator had a right to apply for leave to amend its petition, or regard the action of the court as a final disposition of the matter so far as the Court of Appeals was concerned, and from the record it appears that it chose the latter course.
The court issued the alternative writ in the first instance without notice or hearing, and, finding on further consideration of the petition that it had been wrongfully issued, the court, undoubtedly, had like authority to dismiss it. The court gave the relator ample opportunity to present its side of the case as is evidenced by the brief of the relator filed as a part and in support of its motion for rehearing before the final entry of dismissal was filed. In this respect this court sees no prejudicial error to the relator.
Coming to matters of greater substance, can the court under the allegations of the petition compel the respondents by mandamus to do and perform generally all things necessary to build and construct a light plant? In this case it is sought to compel the members of the city council and other city officials to exercise, not ministerial duties clearly defined, but duties which would involve not only discretion and judgment but legislative action concerning a project of infinite detail. The officials of the city of Wapakoneta several years before the filing of the petition in this case were imbued with the idea and policy of constructing a municipal light plant for the city. It was their right and privilege to pursue such an enterprise as a matter of public policy. Through them the city made decisions looking to that end. No doubt they were honest in their conviction that this course was for the best interests of the city and the people. But before they had started the construction which they had in mind, and before the city had obligated itself to issue bonds or had employed contractors to construct a plant, the city officials now representing the city, likewise invested with official authority and the right to form policies and speak the mind and will of the municipality, decided to abandon the project. By their action, and through the discretion which they are authorized to exercise, they deem it best not to build a light plant at this time, but in lieu thereof to purchase electric current for the city and its people to be distributed over the distribution lines owned by the city. It is a matter of judgment as to which course is best, but the present officials of the city, the respondents in this case, are entitled to exercise that judgment.
Public officials under certain circumstances may be compelled by writ of mandamus to make certain public improvements, but this is because such matters are specially and particularly enjoined and commanded by law as a part of their official duty and responsibility. 25 Ohio Jurisprudence, 1086, 1087, Section 113. See also 46 A. L. R., 266, annotation. The building of a light plant is not such an enterprise. It is not a duty specially enjoined by law upon the respondents as a part of their official duty and responsibility. It is a matter of policy for their best judgment and decision. Mandamus will not lie to control the action of public officials with reference to the construction of public improvements if their authority to act is merely permissive, or their obligation to act lies within their discretion and judgment. State, ex rel. Geering, v. Board of Commrs. of Henry County, 31 Ohio St. 211; State, ex rel., v. Commissioners, 49 Ohio St. 301, 30 N.E. 785.
Having such discretion in the premises, it was within the power and authority of the respondent councilmen to repeal the former legislation looking toward the construction of a light plant. The fact that plans had been made or steps taken for the construction of the plant did not preclude the respondents, as members of the city council, from abandoning it. State, ex rel. Geering, v. Board of Commrs. of Henry County, supra.
In the case last cited, it was contended that since the county commissioners had taken steps to build a bridge, they could not abandon the project. In this connection, the court, on page 213, says: "They [counsel] contend that, having taken the first step under the act, the commissioners are bound to go on to the end. We do not so understand the law. If such be the law applicable to the building of this bridge, then it must be the law applicable to the building of any and all bridges authorized to be built by the commissioners; their discretion must, in every case, be exhaustively exercised before they commence the work, no matter what may afterward happen. They have no locus penitentiae, and the first step in the work necessitates the last step. Such can not be the law of the case. Surely, the law 'specially enjoins' no such duty upon the county commissioners — the duty to persist in a work deemed useless and injurious."
Furthermore, the construction of a light plant would now require a financing program and legislation of infinite detail which would call for judgment and discretion on the part of the respondents. A writ of mandamus will not issue to a legislative body or its officers to require the performance of duties which are purely legislative in character and over which such legislative bodies have exclusive control. This is so because legislation calls for the exercise of judgment and discretion, especially when it relates to a building and contract program, and because, as in this case, it would mean the control and regulation by the court of a general course of conduct for a series of continuous acts to be performed under varying conditions over quite a period of time, a responsibility and burden which is outside the scope of the judicial function and which the courts will not assume.
The court is of the opinion that this is a matter to be worked out by the duly elected officers of the city of Wapakoneta, who alone are authorized to determine the mind and will of local government, and that the courts are not only without power to interfere, but would be doing the city and its people a dis-service if they were to interfere with the authority and discretion of its duly elected public officials, and attempt to carry out functions of government by compulsion through judicial decree.
In the case of Commrs. of Rollersville Portage Free Turnpike Road v. Commrs. of Sandusky County, 1 Ohio St. 149, involving a mandamus proceeding against the county commissioners of Sandusky county to compel them to go forward in laying out a new road and in levying a property assessment to provide the necessary funds, all of which had been authorized by the, Legislature, Judge Corwin, in the course of his opinion, at page 150, said: "There is no other provision in said act for levying such tax by the county commissioners, either permissive or mandatory, and the first question presented for our consideration is, whether the provisions of the third section of said act, absolutely require such tax to be levied, or whether they merely give authority to the county commissioners to levy such tax at their discretion. It must be conceded that if the exercise of such authority is left by law to the discretion of the county commissioners, that discretion must be exercised in their own way, and upon their own responsibility; and when no act has been done by them under such authority, and no private right has intervened, which requires protection, no other tribunal is authorized to interfere with and control that discretion, whatever differences of opinion might be entertained as to the propriety or impropriety of the action of said commissioners. And the great protection against the abuse of such discretion, or the failure or refusal to exercise it for the promotion of the public welfare, is found in the right of the public, by their own act, to change the officers in whom such discretion is vested." These principles are applicable to the case at bar.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.