Davis v. State, Ex Rel. Pecsok
| Decision Date | 19 February 1936 |
| Docket Number | 25407 |
| Citation | 130 Ohio St. 411,200 N.E. 181 |
| Parties | Davis, Mayor, Et Al. v. The State, Ex Rel. Pecsok. |
| Court | Ohio Supreme Court |
Mandamus - Writ lies to compel performance, and not creation, of duty - Municipal corporations - Anticipatory tax collection notes issued and retired, how - Funds to pay notes appropriated from next semi-annual tax settlement - Appropriation or collection therefor cannot be made after two tax settlements pass - Chief accounting officer of Cleveland not required to pay anticipatory notes, when.
1. In proceedings in mandamus a court can not create a legal duty. The creation of a legal duty is a distinctive function of the legislative branch of government. The most that a court can do in mandamus is to command the performance of an act which the law specially enjoins as a duty resulting from an office trust or station, when a clear right to such performance is presented.
2. Anticipatory notes issued by a city under authority of Sections 2293-4, 4296-1, 4296-2 and 4296-3, General Code of Ohio, and the provisions of a city charter enacted in conformity thereto, must be issued and retired in strict conformity therewith.
3. Funds for the payment of such anticipatory notes are appropriated as a matter of law for their payment at the next succeeding semi-annual settlement, and when such notes are permitted to run past two semi-annual settlements without collection, and the appropriated funds are expended, no power has been delegated to make another appropriation or provide for their collection.
4. It was the duty of the chief accounting officer of the city of Cleveland when the notes herein became due to collect the same from the proceeds of the next semi-annual settlement when a sum necessary for their retirement was appropriated as a matter of law. That time having passed, and the moneys appropriated as a matter of law for the payment of the notes having passed with it, there is no authority of law provided for their collection.
The facts in this case are almost wholly documentary. On January 28, 1932, current revenue notes totalling $1,500,000 were issued by the city of Cleveland and purchased by the Sinking Fund Commission of the city of Cleveland. On June 22, 1932, the face amounts and interest on these notes were paid. On August 13, 1932, a current revenue note for $1,250,000 was issued by the city of Cleveland and thereafter listed as an investment in the Treasury Investment Account of they city, and purported to be paid on the face amount and interest of said note by a check drawn on the city treasury on January 16, 1933. On the same date (January 16 1933) a current revenue note for $1,250,000 was issued by the city of Cleveland and thereafter listed as an investment in the Treasury Investment Account of the city of Cleveland, and purported to be paid on the face amount and interest of said note by check drawn on the city treasury July 1, 1933. On the same date (July 1, 1933) a current revenue note for $1,250,000 was issued by the city of Cleveland and thereafter listed as an investment in the Treasury Investment Account of the city and purported to the paid on the face amount and interest of said note by check drawn on the city treasury January 24, 1934. On the same date (January 24, 1934) a current revenue note for $ 1,250,000 was issued by the city of Cleveland, and thereafter listed as an investment in the Treasury Investment Account of the city.
The record discloses that no payment or purported payment was made on the face amount of this note. However, $25,000 in interest was paid on September 19, 1934.
It is developed by the record that all of the cash of the city of Cleveland is commingled and deposited as one general deposit in the various city depositories. There is no ear-marking of such cash in its depositories with reference to any particular fund or account. All of the various funds of the city of Cleveland are set forth in the Commissioner of Accounts' monthly report to the Mayor. On this document there is no provision whatsoever for a fund known as Treas- ury Investment Fund. Operating funds of the city of Cleveland are numbered 1 to 125, and under this heading is found General Funds, 1 to 99. Miscellaneous Funds is numbered 126.
After the first current revenue note was issued by the city of Cleveland to the Treasury Investment Account of the city of Cleveland, all of the other current revenue notes referred to were not connected with the General Funds of the city of Cleveland, 1 to 99, and the transactions involving said notes as revealed on the books of the city of Cleveland have no relation whatsoever to the General Fund. All of the vouchers and receiving warrants were payable to and distributable from Fund No. 126.
It is claimed on behalf of the city of Cleveland:
1. That there was no consideration for the current revenue notes issued by the city of Cleveland and listed with the Treasury Investment Account of the city of Cleveland.
2. That the current revenue notes, aside from the one issued and sold to the Sinking Fund Commission, were executed and listed with the Treasury Investment Account purely as a bookkeeping transaction in order to bring about a book balance in the financial status of the city.
3. The execution of the current revenue notes and the listing thereof with the Treasury Investment Account was done solely for the purpose of covering up irregular acts committed back in the year 1932.
4. Under the law setting up the Treasury Investment Account such account does not have any cash to loan and the transactions complained of could not have occurred between this account and the General Fund of the city of Cleveland. This account shows merely what securities have been acquired with dates of acquisition and disposition.
5. There is no clear duty to be performed by plain- tiffs in error which can be compelled by a writ of mandamus.
6. If any duty ever existed, or if there were ever any wrongful acts or dereliction of duty, it happened back in the year 1932, and defendant in error has been guilty of laches.
Defendants in error claim that the city received the benefit of the money represented by the revenue notes and is estopped to deny the right of its creditor to loan the money.
Mr. Ezra Z. Shapiro, director of law, Mr. Alfred Clum and Mr. Gordon C. Locke, for plaintiffs in error.
Messrs. Phillips & Falsgraf, for defendant in error.
This is a taxpayer's action in mandamus originating in the Court of Appeals of Cuyahoga County, Ohio, wherein it was sought to compel Harry L. Davis, as Mayor of the city of Cleveland, Louis C. West, as Director of Finance, Russell v. Johnson, as Treasurer, and F. E. McKee, as Commissioner of Accounts of the city, to issue a voucher and check for the payment of $1,250,000, claimed to be owing by the city to the Treasury Investment Account.
The Court of Appeals found in favor of the relator and awarded a writ of mandamus as prayed for. Error is prosecuted to this court to reverse the judgment of the Court of Appeals of Cuyahoga county, Ohio.
It is conceded that whatever there is of law in this case must be found in the following sections of the General Code of Ohio and of the Charter and Code of the city of Cleveland:
Section 4296-1, General Code: "The council or other legislative authority of any city may by ordinance provide that whenever there are moneys in the treasury of such city which will not be required to be used by such city for a period of six months or more, such moneys may in lieu of being deposited in a bank or banks be invested in obligations of such city in the manner prescribed in the next succeeding three sections hereof. * * *"
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