Opinion
No. 73-418
Decided February 13, 1974.
Mandamus — Writ available, when — Action by municipal corporation — To compel city treasurer to sign warrant — Expenditure pursuant to municipal ordinance — Fee for appraisal of appropriated real property.
IN MANDAMUS.
On June 14, 1971, the city council of Reynoldsburg, a noncharter city, adopted a resolution to proceed with a road improvement and for the issuance of notes and bonds in anticipation of the levy and collection of improvement assessments. On September 13, 1971, an ordinance was adopted to appropriate the necessary real estate and authorized the city solicitor to file appropriation proceedings. Pursuant to an ordinance of October 11, 1971, a note was issued in anticipation of the issuance of bonds; and, from the proceeds of the note, the city auditor established an improvement fund.
An appraiser was hired by the solicitor to appraise certain properties, and appraisal reports were made to be used in the negotiation and trial of the cases involving appropriated properties.
Statements for his services were submitted by the appraiser, and warrants for their payment were issued by the auditor of Reynoldsburg. Respondent, treasurer of Reynoldsburg, refused to sign them, questioning the qualifications of the appraiser. The solicitor then notified respondent that the appraiser involved was a "qualified" appraiser and that there was no legal justification for respondent's refusal to sign the warrants. Respondent continued to refuse to sign the warrants.
On February 12, 1973, the Reynoldsburg council passed an "Ordinance to pay Appraiser Fees" specifically directing the payment of the fee involved herein. In accordance with the direction of that ordinance, the auditor issued a warrant for the payment of such fee. Respondent refused, however, to sign it.
The city of Reynoldsburg, by its solicitor, then brought an action in mandamus in this court, pursuant to R.C. 733.58, against the treasurer of Reynoldsburg for an order directing him to sign the warrant submitted to him pursuant to the ordinance of February 12, 1973.
Respondent filed a counterclaim in which he seeks an order directing the city of Reynoldsburg to pay his attorney fees and costs of this action.
The matter is submitted to this court on the pleadings, agreed stipulations of fact and exhibits.
Mr. George W. Ankney, Jr., city solicitor, for relator.
Messrs. Milligan Milligan, for respondent.
The warrant submitted to respondent for his signature having been specifically authorized by an ordinance of city council and being regular and valid on its face, respondent was required by law to sign it. R.C. 733.43 and 733.44. Payment is, therefore, a ministerial duty of respondent.
Relator having shown a clear legal duty on the part of respondent to sign the warrant submitted to him pursuant to the ordinance of February 12, 1973, mandamus will lie to compel respondent to sign such warrant.
As to respondent's counterclaim, there is no showing by respondent of any clear legal duty on the part of the city of Reynoldsburg to pay his counsel fees and costs of this action.
Accordingly, the writ of mandamus is allowed directing respondent to sign the warrant authorized by the ordinance of February 12, 1973, and respondent's counterclaim for attorney fees and costs is dismissed.
Writ allowed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.