Opinion
No. 81-806
Decided February 24, 1982.
Mandamus — Quo Warranto — Complaints properly dismissed, when.
APPEALS from the Court of Appeals for Scioto County.
Appellant, Jerome B. Freeman, is an inmate at the Southern Ohio Correctional Facility. Appellant commenced two actions in the Court of Appeals for Scioto County. In the first such action, he sought a writ of mandamus to compel appellee, Clerk of the Scioto County Municipal Court, to issue criminal warrants against certain of the officer-employees of the Southern Ohio Correctional Facility. In the second, appellant sought a writ of quo warranto to oust appellee, Ronald C. Marshall, as the superintendent of said institution.
Although appellant styles his action "State, ex rel. Freeman, v. Helen Hayes," Clerk, it appears that "Ms. Hayes" was not Municipal Court Clerk at the time this action was filed.
The Court of Appeals dismissed both complaints and the causes, having been consolidated, are now before this court upon appeals as of right.
Mr. Jerome B. Freeman, pro se. Mr. William J. Brown, attorney general, and Ms. Lianne L. Santellani, for appellee Marshall.
This court has consistently held that "[i]n order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ. R. 12[B][6]), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242. Also, in considering such motion, the court must assume the truth of the allegations contained in the complaint. See Royce v. Smith (1981), 68 Ohio St.2d 106.
Applying these principles to the complaint for a writ of mandamus, we find no error on the part of the court in dismissing such complaint. "Mandamus lies only to command performance of an action which the law specifically enjoins as a duty resulting from an office, trust or station." State, ex rel. Van Curen, v. Adult Parole Authority (1976), 45 Ohio St.2d 298, 299.
We, likewise, find no error in the dismissal of appellant's complaint in quo warranto. Assuming, arguendo, that appellee is a "public officer" within the meaning of R.C. 2733.01, and, that the office of superintendent is a "public office" within the meaning of R.C. 2733.06, appellant has shown no claim of entitlement to such office. Absent such a claim, appellant cannot, as a private person, maintain an action in quo warranto. See State, ex rel. Silvey, v. Miami Conservancy District Co. (1919), 100 Ohio St. 483; State, ex rel. Appleman, v. Conley (1931), 124 Ohio St. 265; Maranze v. Bd. of Elections (1958), 167 Ohio St. 323; State, ex rel. Macdonald, v. Shawnee Country Club (1965), 2 Ohio St.2d 176; State, ex rel. Annable, v. Stokes (1970), 24 Ohio St.2d 32; and State, ex rel. Halak, v. Cebula (1977), 49 Ohio St.2d 291.
For the foregoing reasons, the judgments of the Court of Appeals are hereby affirmed.
Judgments affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.