Opinion
No. 34890
Decided October 24, 1956.
Municipal corporations — Pending initiative petition to repeal existing ordinance — Does not suspend such ordinance — Mandamus to compel execution and delivery of bonds denied — Taxpayer's injunction suit to restrain bond issue pending — Lack of good faith not shown.
IN MANDAMUS.
Relator, as a taxpayer, filed in this court a petition in mandamus in which he alleges that the council of the village of Waterville passed an emergency measure for the issuance of first mortgage revenue bonds for the purpose of extending and improving the municipal electric light and power system established and operated by the village; that respondents, the mayor and the clerk of the village as executive and fiscal officers of the village, have refused to sign, execute and deliver the bonds in accordance with the terms of the ordinance; that all other necessary and proper steps to effectuate the validity and delivery of the bonds have been taken; and that he has no plain and adequate remedy in the ordinary course of the law. The prayer of the petition is for a writ compelling the respondents to sign, execute and deliver the bonds.
An answer was filed by Harry G. Roebke, the village solicitor, on behalf of the respondents, in which he admits the factual allegations of the petition and by way of defense alleges that the refusal on the part of respondents to execute and deliver the bonds is for the reason that after the passage of the ordinance providing for the issuance of the bonds there was filed with the respondent clerk a copy of an ordinance to be proposed by initiative petition for the purpose of repealing the bond ordinance, and an initiative petition proposing the adoption of such repealing ordinance was filed with the respondent clerk for transmittal to the board of elections.
Thereafter, respondent Hutchinson, individually and as mayor, filed an answer in which he denies that the bond ordinance is valid and alleges that he refused to sign the bonds because, among other reasons, there is pending in the Common Pleas Court an injunction suit to restrain the respondents and the village from issuing the bonds, and that the pendency of such suit is a bar to this mandamus action.
Relator has filed a demurrer to the answer of the village solicitor "for the reason that the matters, allegations and statements therein contained are insufficient in law to constitute a defense."
Relator has filed a motion to strike from the files the answer of the mayor, individually and as mayor, on the ground that "there is already on file in this court an answer in his behalf," and "said answer is a sham and was not filed in good faith but merely for the purpose of delay."
The cause has been submitted on the petition, the answers, the demurrer and the motion to strike.
Messrs. DiSalle, Green, Haddad Lynch, for relator.
Mr. Harry G. Roebke, village solicitor, and Messrs. Spengler, Nathanson, Hebenstreit Heyman, for respondents.
The pendency of the proposed initiative petition to repeal the existing bond ordinance which was passed as an emergency measure does not suspend such existing bond ordinance. Relator's demurrer to the answer filed by the village solicitor is sustained for the reasons advanced in the case of Wiegand, Mayor, v. Ferguson, 124 Ohio St. 73, 177 N.E. 35.
As there is no showing of bad faith in the institution of the taxpayer's injunction suit to restrain the issuance of the bonds, the relator's motion to strike from the files the answer of the mayor is overruled. The rule is well established in this state "that the relator has not shown a clear right to a writ of mandamus when there is previously pending an injunction suit against the particular officer or board sought to be coerced, touching the same subject matter, so long as it does not affirmatively appear in the record that the taxpayer's suit was not instituted in good faith." State, ex rel. Commercial Investors Corp., v. Zangerle, Aud., 126 Ohio St. 247, 250, 185 N.E. 69.
Demurrer sustained and motion overruled.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.