Cullen v. State
| Decision Date | 05 July 1922 |
| Docket Number | 17482 |
| Citation | 105 Ohio St. 545,138 N.E. 58 |
| Parties | Cullen, As Vice Mayor, Etc. v. The State, Ex Rel. City Of Toledo, By Etc. |
| Court | Ohio Supreme Court |
Mandamus - Writ to issue, when - Performance of specific acts required by law.
A writ of mandamus will not Issue to compel the observance of law generally, but will be confined to commanding the performance of specific acts specially enjoined by law to be performed.
This was an original action in mandamus in the court of appeals of Lucas county and is here upon a petition in error.
The defendant in error sought to compel the plaintiff in error to perform certain official acts incident to his office, as presiding officer of council, to-wit, to recognize certain rules adopted by a majority of the members elected to council and the standing committees elected by the council under such rules. The controversy between the council and the vice-mayor grew out of the appointment by the vice-mayor of certain members of council as the standing committees and the election by a majority of council of certain members as such standing committees, the vice-mayor recognizing the standing committees by him appointed and the majority of council recognizing the standing committees by it elected.
In 1915 the city adopted a home-rule charter which contained no code of rules governing the deliberations of council. Some ten years prior thereto the council of the city of Toledo adopted by resolution certain rules to govern its deliberations and procedure for the years 1905 and 1906, the original rules providing that the committees of council should be elected by that body. In 1906, however, the rules were amended giving the right to the vice-mayor to appoint such committees. Without any further formal action in the succeeding years up to January 2, 1922, the rules adopted in 1905 and amended in 1906 were observed and followed by council and vice-mayor of that city. On that date, being the first session of the council elected at the preceding election, the vice-mayor appointed members of the standing committees. At the same session the council adopted a motion that a committee on rules named in the motion be elected, "Whose duty it shall be to recommend to this council rules to govern the deliberations of said council * * * and that until said committee makes its report the rules of the preceding council shall govern."
At the next meeting of council, On January 9, the committee elected by council on January 2 reported rules to govern council for the years 1922 and 1923. A motion was made and seconded that these rules be adopted, and upon a vote being had 11 members of council voted in favor of the adoption of the rules and 9 against it. The vice-mayor ruled the motion lost "Having failed to receive the affirmative vote of three-fourths of all members elected." Upon an appeal being taken from the decision of the chair 11 members of council voted not to sustain the chair and 9 members voted to sustain the chair. Whereupon the vice-mayor ruled "that the decision of the chair was sustained, the repeal [appeal] having failed to receive the necessary three-fourths vote of all members elected." A motion was then carried referring the matter of changing rules back to the committee on rules.
On January 30, a motion was again made and seconded to adopt the rules recommended by the committee. The vice-mayor refused to entertain the motion and an appeal was taken from the decision of the chair, and he refused to put the question on appeal; whereupon a member of council put the question and there were twelve votes against the chair, the other members of council not voting. Eleven members then voted a recess of fifteen minutes, during which recess the vice-mayor declared the session adjourned, and together with eight members of the council withdrew from the chamber. Upon the expiration of the fifteen minutes, the eleven members returned, the duly elected president pro tem of council assumed the chair, and the eleven members of council voted in favor of the adoption of the committee s report and of the rules presented by it to council; the president pro tem declared the measure thus voted for to have been adopted, and thereupon the members of the standing committees were elected by the council.
On February 6 the vice-mayor presiding ruled in turn upon two particular measures which were brought up in council, that these measures were out of order, upon the ground that they had not been submitted to the committee appointed by him on January 2 and had not been approved by that committee although they had been submitted to and approved by the committee elected under the special rules adopted by a majority of council. The rulings of the chair were met by appeals, in the form of motions. The motions were put by the vice-mayor and the decisions of the chair were not sustained. The two measures which the vice-mayor had declared to be out of order were then submitted to the council and voted...
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... ... 348, 66 N.E.2d 207, 208, it was held ... in paragraph seven of the syllabus: 'A writ of mandamus ... will not issue to compel the observance of law generally, but ... will be confined to commanding the performance of specific ... acts specially enjoined by law to be performed. Cullen, ... Vice Mayor, v. State ex rel. City of Toledo, 105 Ohio ... St. 545, 138 N.E. 58; State ex rel. Kunick v. Urner, ... Aud., 135 Ohio St. 9, 18 N.E.2d 607; State ex rel ... Foster v. Miller et al., Tax Comm., 136 Ohio St. [148 ... Ohio St. 197] 295, 25 N.E.2d 686; ... [74 N.E.2d 87] ... ...
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