State ex rel. Bennett v. Lime
| Decision Date | 12 July 1978 |
| Docket Number | No. 77-1366,77-1366 |
| Citation | 55 Ohio St.2d 62,9 O.O.3d 69,378 N.E.2d 152 |
| Parties | , 9 O.O.3d 69 The STATE ex rel. BENNETT et al., Appellants, v. LIME, Auditor, et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Where parties to a mandamus action are also parties, or may be joined as parties, in a previously filed declaratory judgment action involving the same subject matter, a court, in the exercise of its discretion, may refuse to issue a writ of mandamus.
The instant cause arises out of an original action in the Court of Appeals for Cuyahoga County seeking, on behalf of relators, Clarence Bennett, Kenneth Novak and Francis Szabo, a writ of mandamus to compel, inter alia, the auditor of the city of Parma, Joseph S. Lime, to pay relators their regular pay as police officers while they are required to serve on active duty as members of the United States Army Reserve.
On October 4, 1976, Parma, a noncharter municipality, enacted an ordinance (since codified as Section 173.02 of the Codified Ordinances of the City of Parma), under which the city deducts the military pay of employees from the salary it pays to them during the period that they are required to serve on active duty. Prior to relators filing a complaint for a writ of mandamus with the appellate court, Bennett, Novak and others sought a declaratory judgment in the Court of Common Pleas of Cuyahoga County ruling Section 173.02 unconstitutional as being in conflict with R.C. 5923.05, and awarding them damages. The Court of Common Pleas upheld the constitutionality of Section 173.02 on August 3, 1977.
On October 3, 1977, the Court of Appeals granted a motion to dismiss the mandamus action on the ground that there was an adequate remedy at law.
The cause is now before this court on an appeal as of right.
Paul Mancino, Jr., and Burt H. Sagen, Cleveland, for appellants.
Andrew Boyko, Law Director, and Stephen P. Bond, Parma, for appellees.
The main issue raised by this cause is whether a writ of mandamus should issue to compel the city to pay relators their full salaries as police officers for the period they are on active military duty.
Two of the relator-appellants have already been allowed to pursue declaratory judgment relief in the Court of Common Pleas of Cuyahoga County, and the third could have been joined in that action and can be joined in any appeal of that action. Civ. R. 21.
" Neither this court nor the Court of Appeals has discretion to decline...
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State ex rel. Essi v. City of Lakewood, Ohio
...relief, and whether such act would be impossible, illegal, or useless." Pressley at 161-162, 228 N.E.2d 631. State ex rel. Bennett v. Lime , 55 Ohio St.2d 62, 378 N.E.2d 152 (1978) ; and State ex rel. Dollison v. Reddy , 55 Ohio St.2d 59, 378 N.E.2d 150 (1978). {¶26} There are peculiar prin......
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...we have sometimes held that a pending declaratory judgment action may bar a mandamus action, see State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 9 O.O.3d 69, 378 N.E.2d 152, syllabus, we have also held that this precedent is inapplicable when — as here — the pending declaratory judg......
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...effective relief, and whether such act would be impossible, illegal, or useless." Id. at 161-162, see, also, State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 378 N.E.2d 152; State ex rel. Dollison v. Reddy (1978), 55 Ohio St.2d 59, 378 N.E.2d 150; and State ex rel. Mettler v. Commiss......
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