State ex rel. Scott v. Masterson

• Decision Date: 20 June 1962
• Docket Number: No. 37418,37418
• Citation: 183 N.E.2d 376,173 Ohio St. 402
• Parties: , 20 O.O.2d 36 The STATE ex rel. SCOTT et al. v. MASTERSON et al.
• Court: Ohio Supreme Court

Page 402

173 Ohio St. 402

183 N.E.2d 376, 20 O.O.2d 36

The STATE ex rel. SCOTT et al. v. MASTERSON et al.

No. 37418.

Supreme Court of Ohio.

June 20, 1962.

Syllabus by the Court

Where the charter of a city provides that councilmen of the city shall be elected by wards which shall be nearly equal in population and further provides that the city council shall redivide the city after each decennial federal census for that purpose, there is a mandatory duty upon city council to comply with the charter.

In Mandamus.

Since 1945 the Charter of the City of Cleveland has contained the following provision:

'Section 25. Redividing the City into Wards.

'The council not later than December 31, 1946, and thereafter immediately after the proclamation by the Secretary of State stating the population of the cities of Ohio, as determinated by the federal census decennially taken, shall redivide the city into 33 wards. Wards so formed shall be as nearly equal in population as may be, composed of contiguous and compact territory, and bounded by natural boundaries or street lines. When any territory is annexed to the city the council shall by ordinance declare it a part of the adjacent ward or wards. The division of the city into wards existing at the time of the adoption of this amendment, shall continue until changed by the council as provided herein.'

Relators, who are residents, taxpayers and electors of the city of Cleveland, instituted this action in mandamus in this court to compel the city council to redistrict the city under the above-quoted provisions of the city charter. Relators state in their petition that they brought this action under Section 733.59, Revised Code, and that they requested the Director of Law of the City of Cleveland to institute the action, and that he has declined to do so.

In their petition, relators state that the city council has failed to act under section 25 of the charter since 1946 in spite the fact that there was a federal census taken in 1950 and in 1960. Relators pray thus:

'1. For a peremptory writ of mandamus commanding the respondent members of the Council of the City of Cleveland, as said council, immediately to redivide the 33 wards of the city of Cleveland in the manner required by Section 25 of the Charter of the City of Cleveland.

'2. That such other and further relief may be granted relators as may be adapted, necessary and proper to the nature of the case, including reasonable attorneys' fee and the costs of this action.'

Respondents filed a demurrer to the petition listing as grounds that:

'(a) it fails to state facts sufficient to constitute a cause of action in favor of relators or any other person similarly situated with them and against the respondents or any of them;

'(b) it fails to state facts which show a cause of action for which a writ of mandamus may issue;

'(c) it appears on the fact of the petition that the court is without jurisdiction to compel respondents to perform acts purely legislative in character.'

Robert W. Chamberlin and Charles R. Miller, Cleveland, for relators.

Ralph S. Locher, director of law, and William T. McKnight, Cleveland, for respondents.

MATTHIAS, Judge.

A secondary question which must be disposed of first is raised by respondents' first ground of demurrer, which questions whether the petition states a cause of action in favor of the relators or any other persons similarly situated. Basically this ground of demurrer is meant to question the standing of the relators to bring this action.

The first paragraph of the syllabus in the case of State ex rel. Blackwell, a Taxpayer, v. Bachrach et al., City Council of Cincinnati, 166 Ohio St. 301, 143 N.E.2d 127, states:

'An action in mandamus, where the relief sought is the enforcement of a public duty by a public officer or board, may be maintained by the relator, where he shows that he is a citizen and as such is interested in the execution of the laws.'

See, also, Brissel et al., County Commrs., v. State ex rel. McCammon, 87 Ohio St. 154, 100 N.E. 348; State v. Henderson, 38 Ohio St. 644, 649; State ex rel. Trauger v. Nash, Governor, 66 Ohio St. 612, 64 N.E. 558.

It appears that the relators as taxpayers and electors have sufficient interest in the execution of the laws to maintain this action.

The primary question raised by this action is whether mandamus lies to compel a city council to comply with a mandatory charter provision requiring the council to periodically reapportion the voting districts of the city.

Section 2731.01, Revised Code, defines mandamus, 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 specially enjoins as a duty resulting from an office, trust, or station.' See State ex rel. Selected Properties, Inc. v. Gottfried, 163 Ohio St. 469, 127 N.E.2d 371.

The basic purpose of the writ of mandamus is to compel a public officer to perform the duties imposed upon him by law, and, even though such duties involve the use of discretion, a court, although it cannot control such discretion, may compel the exercise of such discretion. State ex rel. Masters v. Beamer et al., Bd. of Edn., 109 Ohio St. 133, 141 N.E. 851; State ex rel. City of Middletown v. City Commission, 140 Ohio St. 368, 44 N.E.2d 459.

Respondents contend, however, that in the present instance the failure to act by the city council is a legislative or political matter and is one in which the judiciary cannot interfere.

It has long been an established principle of law that courts do not interfere in political or legislative matters except in those instances where legislative enactments violate the basic law. In those instances where enactments violate the basic law, it was determined early in our judicial history that the courts have not only the power but the duty to declare...