Mihocka v. Ziegler, 287601

• Citation: 274 N.E.2d 583,28 Ohio Misc. 105
• Decision Date: 22 February 1971
• Docket Number: No. 287601,287601
• Parties: , 57 O.O.2d 132 MIHOCKA et al. v. ZIEGLER et al.
• Court: Court of Common Pleas of Ohio

Page 105

28 Ohio Misc. 105

274 N.E.2d 583, 57 O.O.2d 132

MIHOCKA et al. v. ZIEGLER et al.

No. 287601.

Court of Common Pleas of Ohio, Summit County.

Feb. 22, 1971.

[274 N.E.2d 584] Marvin G. Manes, Akron, for plaintiffs.

Charles L. Parker, Akron, for defendants.

MAHONEY, Judge.

This cause is on for hearing on the petition of the plaintiff for a peremptory writ of mandamus. The defendant-respondents filed several motions, some of which were taken under advisement and all of which the court now finds are not well taken and should be overruled.

The defendant-respondents further by way of the motion questioned the right of the plaintiffs to bring suit and argued that demand was not made pursuant to R.C. § 733.59.

The court finds that under the case of State ex rel. Ninon v. Springdale, 6 Ohio St.2d 1, 215 N.E.2d 592, 'taxpayer' as used in R.C. § 733.59 contemplates and includes any person who, in a private capacity as a citizen, elector, freeholder or taxpayer, volunteers to enforce a right of action on behalf and for the benefit of the public. Thus, Mr. Harig, one of the plaintiffs herein, would be a 'taxpayer,' and his letter on behalf of the 'concerned citizens' to the solicitor the court feels is sufficient compliance with R.C. § 733.59.

Mandamus is defined by R.C. § 2731.01 as follows: 'Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station.'

The law in Ohio is such that the plaintiff has the burden of proof to establish by plain, clear and convincing evidence that he has a right to the relief which he seeks, and that he does not have a plain and adequate remedy at law. The general rule of law is that the court will enforce a duty where there is a clearly defined existing duty by law, and where there has been a plain dereliction of that duty.

As a general rule mandamus will lie to enforce ministerial acts or duties, and further to require the exercise of discretion, but not to control the discretion. Mandamus generally will not issue to control or regulate a general course of conduct, nor will it be granted in anticipation of a supposed omission of duty.

Courts generally have been reluctant to grant a writ of mandamus where a legislative body is involved because of the constitutional principle or doctrine of 'separation of powers.' The checks and balances of our system of government require the courts not to bridle the legislature's discretion or substitute the court's judgment for that of the Legislature. Where the courts have granted the writ, the duty has been one imposed by the constitution, state statute, or city charter. No cases are reported where the duty was found and writ issued in a case involving a non-charter city ordinance.

Generally an initiated ordinance, under the rule of State ex rel. Singer v. Cartledge, 129 Ohio St. 279, 195 N.E. 237, has no greater sanctity than legislation adopted by a city council. In the absence of provisions in the constitution or state statutes limiting or controlling its power, a city council or a non-charter city has power to amend or repeal an initiated ordinance theretofore adopted by the electors. Thus, the ordinance has the same standing as if council itself had passed it. It is not a 'mandate' nor a superior law of any kind. It is just another ordinance.

In the instant case the court feels that the writ of mandamus should be denied in that the plaintiff failed to establish by clear and convincing evidence that the respondents have a clearly defined existing duty, and that there has been a plain dereliction of that duty.

The law (see Appendix, infra) which the plaintiffs claim places the duty upon the respondents is an initiated ordinance passed by the electors of the city of Barberton by a plurality of 43 votes on the third day of November, 1970, and which after a recount was certified to the Secretary of State as correct on November 27, 1970.

Next let us analyze the initiated ordinance. Section Two approves and adopts Urban Renewal Project No. Ohio R-121.

Section Three authorizes and 'directs' the necessary steps by the appropriate officers and bodies to complete the application for * * * financial assistance necessary for * * * R-121 and thereafter to carry out R-121.

Just what are the 'necessary steps' 'to complete,' 'to submit,' and 'to carry out?' They are not defined in the ordinance and must be, therefore, such as is dictated or determined by a federal agency, 'H. U. D.' How can the ordinance make the council, in effect, subservient to the will of the regional office of H. U. D.? I do not feel the voters intended to delegate (nor could they lawfully) council's authority to H. U. D.

It, therefore, is not clear just what are the duties that plaintiff says are imposed on the councilmen. The what, where, when, why, and how of the project are within their The plaintiffs are, in effect, asking this court to regulate the future conduct of the City Council of Bargerton. We would thus oversee the urban renewal program. This court, in effect, would not be requiring the council to exercise discretion, but actually would be controlling that discretion by saying, 'You have to vote, and your vote must be such as is consistent with the renewal program, regardless of the merits of the legislation or its effect on the...