State ex rel. Brophy v. City of Cleveland

• Decision Date: 26 May 1943
• Docket Number: 29043.
• Citation: 141 Ohio St. 518,49 N.E.2d 175
• Parties: STATE ex rel. BROPHY et al. v. CITY OF CLEVELAND et al.
• Court: Ohio Supreme Court

49 N.E.2d 175

141 Ohio St. 518

STATE ex rel. BROPHY et al. v. CITY OF CLEVELAND et al.

No. 29043.

Supreme Court of Ohio

May 26, 1943

Syllabus by the Court.

1. Where no legal right of a person can be affected by the failure of public officials to act in any given matter, he has no such beneficial interest as will permit him to maintain an action in mandamus against them to require official action in such matter.

2. A writ of mandamus will not issue in a second action between the same parties or between parties representing such parties to require the performance of what the court in the first action has already ordered to be done.

This is an action in mandamus originating in this court in which the relator seeks a writ commanding the respondent to make provision for the payment and to pay to the waterworks fund of the city of Cleveland the sum of $637,861.80, plus interest thereon, by appropriating and transferring such amount from the general fund of such city.

In this case it is disclosed that the relator, although not a resident or taxpayer of the respondent city, is a purchaser of water from the waterworks system operated by such city that he brings this action on behalf of himself and other purchasers of water in like situation; that prior to September 19, 1932, the respondent city made certain withdrawals from the waterworks fund, transferring the amounts so withdrawn to the general or other funds of the respondent city; that on such date an action was instituted in the Common Pleas Court of Cuyahoga county by a purchaser of water, alleging such withdrawals and transfers to be illegal and wrong as to water rate payers; that on December 26, 1933, that court declared the withdrawals and transfers to be illegal and ordered the respondent city to pay the sum of $637,861.80 to the waterworks fund of the city; and that said cause was appealed to the Court of Appeals and in turn to the Supreme Court of Ohio, where the order and judgment were affirmed. See Hartwig Realty Co. v. City of Cleveland, 128 Ohio St. 583, 192 N.E. 880.

It is alleged in the petition that said order contained the following: 'Said defendants and their successors are hereby ordered to collect and refund to the department of public utilities of water and heat of the city of Cleveland the sum of $637,861.80.'

The relator further alleges that the respondents have taken no steps to refund said sum or any part thereof, and still owe the sum so ordered to be paid.

The respondent city of Cleveland filed an answer to relator's petition admitting the court order above referred to but denying that relator is a purchaser of water from the city of Cleveland in his own right, but that the water in question is delivered to the premises of parties for whom the relator is agent; and further that the petition fails to state facts sufficient to constitute a cause of action.

By answers to interrogatories attached to the petition and by depositions taken, the above-recited facts are established as true.

Wm R. Fairgrieve, David J. Borphy, Hugh McNamee, and Merritt A. Vickery, all of Cleveland, for relator.

Thomas A. Burke, Jr., director of law, Joseph H. Crowley, and Charles W. White, all of Cleveland, for respondents.

HART Judge.

Two main questions are made by the record in this case. They are (1) does the relator have legal...