State ex rel. Botkins v. Laws, 92-2144

Decision Date01 June 1994
Docket NumberNo. 92-2144,92-2144
PartiesThe STATE ex rel. VILLAGE OF BOTKINS v. LAWS et al.
CourtOhio Supreme Court

Stanley R. Evans, Village Sol., and Randall W. May, Sidney, for relator.

James F. Stevenson, Shelby County Pros. Atty., and Michael F. Boller, Asst. Pros. Atty., for respondents.

PER CURIAM.

Relator contends that it is entitled to a writ of mandamus to compel respondents to (1) reimburse it a reasonable amount for sums paid to its village solicitor for past prosecutions in the Sidney Municipal Court of criminal violations of state law occurring within the village, and (2) pay its village solicitor prospectively a reasonable amount for such prosecutions. In order to be entitled to a writ of mandamus, relator must establish that (1) relator has a clear legal right to the relief prayed for, (2) respondent has a clear legal duty to perform the act requested, and (3) relator has no plain and adequate remedy at law. State ex rel. Manson v. Morris (1993), 66 Ohio St.3d 440, 441, 613 N.E.2d 232, 233-234; State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus.

When it deems it necessary, the legislative authority of a village may provide legal counsel for the village. R.C. 733.48. The village solicitor for each municipal corporation within the territory of a municipal court shall prosecute all criminal cases brought before the municipal court, including those involving violations of state statutes occurring within the municipal corporation. R.C. 1901.34(A). R.C. 1901.34(C) provides:

"The village solicitor, city director of law, or similar chief legal officer shall perform the same duties, insofar as they are applicable to him, as are required of the prosecuting attorney of the county. He or his assistants whom he may appoint shall receive for such services additional compensation to be paid from the treasury of the county as the board of county commissioners prescribes." (Emphasis added.)

Relator claims that the foregoing provision places a mandatory duty upon respondents to pay Evans and his assistants additional compensation for prosecuting criminal cases in the Sidney Municipal Court. Respondents assert that any duty arising under R.C. 1901.34(C) is discretionary.

R.C. 1901.34(C) provides that the village solicitor and any assistants "shall" receive additional compensation for the services required of them under R.C. 1901.34(A). It is axiomatic that when used in a statute, the word "shall" denotes that compliance with the commands of that statute is mandatory unless there appears a clear and unequivocal legislative intent that it receive a construction other than its ordinary usage. Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 534, 605 N.E.2d 368, 370; Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834, paragraph one of the syllabus. There is no contrary "clear and unequivocal legislative intent" here. Nevertheless, the remainder of R.C. 1901.34(C) specifies that the additional compensation that "shall" be paid is "as the board of county commissioners prescribes," which evidences discretion on the part of the county commissioners.

In Butler Cty. Bd. of Commrs. v. State ex rel. Primmer (1915), 93 Ohio St. 42, 112 N.E. 145, this court interpreted an analogous statutory provision, G.C. 4307 (now R.C. 733.52), which provided:

"The prosecuting attorney of the police or mayor's court shall prosecute all cases brought before such court, and perform the same duties, as far as they are applicable thereto, as required of the prosecuting attorney of the county. The city solicitor or the assistant or assistants whom he may designate to act as prosecuting attorney or attorneys of the police or mayor's court shall receive for this service such compensation as council may prescribe, and such additional compensation as the county commissioners shall allow." (Emphasis added.)

We affirmed the granting of a writ of mandamus to allow and fix a city solicitor's compensation for additional services as a prosecuting attorney in municipal court because "[t]he amount allowed by the council and the amount allowed by the county commissioners is wholly in their judgment, but the statute makes it mandatory upon them to allow something." Id. at 44, 112 N.E. at 146.

Similarly, in State ex rel. Browning v. Fayette Cty. Commrs. (App.1933), 14 Ohio Law Abs. 529, the Second District Court of Appeals held that a writ of mandamus would issue where the county commissioners abused their discretion in allowing only one dollar to a city solicitor for his services in state cases before a municipal court pursuant to G.C. 4307. It determined that the commissioners had abused their discretion where they had "no knowledge as to the nature or extent of the work and * * * no investigation whatever [was made] as to what the services would reasonably be worth." Id. at 531.

In these cases, it is "evidently the legislative intent that the commissioners are to provide additional compensation in amounts commensurate with the additional duties involved, and where such additional duties are negligible, to withhold such additional compensation entirely." See 1985 Ohio Atty.Gen.Ops. No. 85-086, at 2-349 to 2-350, fn. 1, and 1952 Ohio Atty.Gen.Ops. No. 2183 at 793, construing prior versions of R.C. 1901.34(C).

Based upon the foregoing authorities, it is manifest that respondents possessed a mandatory duty under R.C. 1901.34(C) to compensate Evans and his assistants for their additional services, but that the amount of such compensation was within the discretion of respondents. This interpretation gives effect to all parts of R.C. 1901.34(C). See State v. Arnold (1991), 61 Ohio St.3d 175, 178, 573 N.E.2d 1079, 1082 (a statute shall be construed, if practicable, as to give effect to every part of it). Cf., also, State ex rel. Cleveland Mun. Court v. Cleveland City Council (1973), 34 Ohio St.2d 120, 63 O.O.2d 199, 296 N.E.2d 544 (where legislative authority possesses discretion in funding requests, the party seeking money is not entitled to an unquestioned appropriation of all sums requested).

A writ cannot issue to control an officer's exercise of discretion, but it can be issued to compel him to exercise it when he has a clear legal duty to do so. State ex rel. Hodges v. Taft (1992), 64 Ohio St.3d 1, 4, 591 N.E.2d 1186, 1189; State ex rel. Martin v. Corrigan (1986), 25 Ohio St.3d 29, 25 OBR 24, 494 N.E.2d 1128. Respondents refused relator's and Evans' requests for additional compensation because it felt that it had "no legal obligation" to do so. Consequently, respondents failed to exercise their discretion as required by the plain language of R.C. 1901.34(C). Nevertheless, respondents raise several additional contentions in support of denying mandamus relief here.

Respondents assert that (1) this case should proceed to an evidentiary hearing, (2) Evans could not contractually assign his right to compensation, (3) Evans was not entitled to prosecute criminal actions in the absence of enabling legislation authorizing him to perform such duties, (4) relator is not the real party in interest, (5) mandamus will not lie against the successor commissioners, and (6) mandamus will not lie against the ex-commissioners in their individual capacities.

Respondents initially claim that factual issues remain which require an evidentiary hearing pursuant to R.C. 2731.09. However, to the extent that R.C. 2731.09 conflicts with Section 7 of S.Ct.Prac.R. VIII, the rule supersedes the statute. See, generally, Whiteside, Ohio Appellate Practice (1993) 134, Section T 10.07. More importantly, in the case at bar, the issues are subject to determination based solely upon the admissions contained in respondents' answer as well as the parties' agreed statement of facts, i.e., the dispositive facts are uncontroverted.

As to respondents' assertion that Evans could not contractually assign his right to compensation, R.C. 1901.34(C) provides for payment to the village solicitor, city director of law, similar chief legal officer, or their assistants for the additional duties specified in R.C. 1901.34(A). Nevertheless, the compensation already earned by a public officer may validly be assigned by him, although an assignment of future compensation not yet earned is contrary to public policy and thus void. Serrill v. Wilder (1907), 77 Ohio St. 343, 357, 83 N.E. 486, 491, citing Mechem, Public Office and Officers, Section 874. Further, Evans was required to prosecute criminal actions by virtue of R.C. 1901.34(A). Therefore, the absence of additional enabling legislation is not fatal to relator's claim.

Respondents, as they did in their dismissal motion, contend that relator is not the real party in interest. Civ.R. 17(A) provides that "[e]very action shall be prosecuted in the name of the real party in interest." Additionally, a complaint for a writ of mandamus must set forth facts showing that the relator is a party beneficially interested in the requested act before a proper claim is established. R.C. 2731.02; Hodges, supra. A real party in interest is one who is directly benefitted or injured by the outcome of the case rather than one merely having an interest in the action itself. McCormac, Ohio Civil Rules Practice (2 Ed.1992) 64, Section 4.02, citing W. Clermont Edn. Assn. v. W. Clermont Bd. of Edn. (1980), 67 Ohio App.2d 160, 21 O.O.3d 457, 426 N.E.2d 512; see, also, Barksdale v. Ohio Dept. of Adm. Serv. (1992), 78 Ohio App.3d 325, 329, 604 N.E.2d 798, 800-801. Since relator has an interest, by virtue of Evans' assignment of his claims, it is a real party in interest as to its claim for reimbursement for additional compensation under R.C. 1901.34(C).

However, relator does not possess sufficient direct beneficial interest as to its request...

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