Opinion
No. 36365
Decided November 16, 1960.
Mandamus — Petition subject to demurrer, when — Remedy by injunction available — Discretionary power of Court of Appeals — Depositories of county funds — Financial institutions eligible.
APPEAL from the Court of Appeals for Lorain County.
This action in mandamus was instituted in the Court of Appeals by three banking institutions located in the city of Elyria, the county seat of Lorain County, against the Board of County Commissioners of Lorain County, seeking to require the respondent board to award to relators all the active funds of the county and contending that such awarding is a mandatory duty under Section 135.06, Revised Code, relative to depositories under the Uniform Depository Act.
It appears from the petition that the respondent advertised for bids to become public depositories of funds under the control of the county to be on active deposits for a term of two years; that specified amounts, less than the total to be awarded, were awarded to the three relators; and that other sums were awarded to other banking institutions not having offices in the city of Elyria.
Relators allege that by virtue of Section 135.06, Revised Code, they are entitled to the award of the total amount of such active deposits and are substantially prejudiced by respondent's dereliction of duty for which they have no adequate remedy in the ordinary course of the law.
The prayer of the petition is that a writ issue requiring respondent to award relators active deposits of public funds under its control for a two-year period, specifying the amounts to be awarded each relator, which specified amounts comprise all the active funds of the funds of the county.
A motion and a supplemental motion to dismiss the petition were filed by respondent on the grounds of improper joinder of relators, relators' failure to establish eligibility, failure to comply with statutes, and that they have an adequate remedy at law by way of appeal.
The parties agreed in open court that the motion and supplemental motion be considered as a demurrer to the petition, on the ground that the petition fails to state a cause of action, and the cause was so submitted to the court.
The court found that mandamus may not be substituted for the remedy of mandatory injunction, which is available to relators, and that the purpose of relators as pleaded is primarily the protection or enforcement of their purely private rights, sustained the "demurrer" and dismissed the petition.
An appeal as of right brings the cause to this court for review.
Messrs. Fauver Fauver, for appellants.
Mr. Paul J. Mikus, prosecuting attorney, and Mr. Andrew J. Warhola, for appellee.
Was the Court of Appeals in error in holding that the petition is subject to demurrer?
Section 2731.05, Revised Code, provides that "the writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law." This principle was recognized in State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, 162 Ohio St. 302, where it is stated at page 308:
"A careful review of the decisions of this court indicates that the following principles are to be applied in considering whether the Supreme Court in the exercise of its discretion should grant the extraordinary writ of mandamus under its constitutional powers.
"1. The relator must be the party beneficially interested.
"2. Before the writ may issue, it must appear affirmatively that there is no plain and adequate remedy in the ordinary course of the law, including equitable remedies.
"3. The extraordinary writ of mandamus may not be used as a substitute for a mandatory injunction.
"4. It may not be used where the purpose of the relator is primarily the enforcement or protection of purely private rights."
The relators in the instant action are parties beneficially interested. However, they have an adequate ordinary remedy by way of injunction. State, ex rel. Adams, v. Rockwell et al., Board of Education of Minford Local School District, 167 Ohio St. 15.
Relators contend that the principles announced in the Libbey-Owens-Ford case, supra, are not applicable to the Court of Appeals or to the exercise of discretion by that court in mandamus actions originating therein. In State, ex rel. Wesselman, v. Board of Elections of Hamilton County, 170 Ohio St. 30, paragraph two of the syllabus reads:
"A Court of Appeals that allows a writ of mandamus to a relator does not thereby abuse its discretion merely because such relator also has an adequate remedy in the ordinary course of the law."
That decision not only recognizes that the Court of Appeals has the same discretionary power with respect to allowance of a writ of mandamus as this court does in such cases but also illustrates the reluctance of this court to interfere with the exercise by that court of its discretionary power. See, also, State, ex rel. Schulman, v. Cuyahoga County Board of Elections, 167 Ohio St. 19.
This court is of the opinion that the Court of Appeals did not abuse its discretion in sustaining the "demurrer" and dismissing the petition, and its judgment is hereby affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.