State ex rel. Skilton v. Miller

• Decision Date: 27 July 1955
• Docket Number: No. 34352,34352
• Citation: 164 Ohio St. 163,49 A.L.R.2d 1279,128 N.E.2d 47,57 O.O. 145
• Parties: , 49 A.L.R.2d 1279, 57 O.O. 145 The STATE ex rel. SKILTON, Appellant, v. MILLER, Judge, et al., Appellees.
• Court: Ohio Supreme Court

Page 163

164 Ohio St. 163

128 N.E.2d 47, 49 A.L.R.2d 1279, 57 O.O. 145

The STATE ex rel. SKILTON, Appellant, v. MILLER, Judge, et al., Appellees.

No. 34352.

Supreme Court of Ohio.

July 27, 1955.

Syllabus by the Court.

1. A relator, in order to maintain an action in mandamus, must have a beneficial interest in the act sought to be compelled.

2. If no legal right of a person can be affected by the failure of a public official to act in any given matter, such person does not have a beneficial interest such as will permit him to maintain an action in mandamus to require such official to so act.

3. A private citizen, who seeks a writ of mandamus to compel the issuance of a warrant for the arrest of a person accused by his complaint, filed in the police court of a municipality, of a misdemeanor in violating the Sunday closing law, is not a party beneficially interested, within the meaning of Section 2731.02, Revised Code, where the petition in mandamus does not show that he was injured by such violation in any manner different from that as to the general public.

Relator, as a citizen of the state of Ohio and on the public's behalf, filed a petition in the Court of Appeals of the Eighth Appellate District for a writ of mandamus against David J. Miller, Judge of the Police Court of the City of Cleveland Heights, Ohio, and Richard A. McGilvery, clerk of said court.

Relator alleges, in substance, that on August 24, 1954, he filed with each respondent a complaint which set forth a violation of Section 3773.24, Revised Code (the 'Sunday closing law'), by one Miether, owner and operator of an ice cream store, in that Miether caused his store to be open for business on Sunday, August 22, 1954. Relator alleges also in his petition that he would co-operate as a complaining witness and would produce witnesses to the violation, but that the respondents refused to issue a warrant or summons on said complaint. Relator alleges further that such refusal is without justification, since neither of the respondents has reasonable ground to believe the offense was not committed; that each respondent has authority and is required in his respective capacity as judge or clerk of said police court to issue a warrant or summons as demanded; and that, unless the same be issued, the violation will go unpunished, the laws of the state will be flouted, and others will be encouraged to violate the law.

Each of the respondents filed a demurrer to the petition on the ground that 'the petition does not state facts that show a cause of action.'

The Court of Appeals found that the petition does not set forth facts showing the relator to be 'the party beneficially interested', as required by Section 2731.02, Revised Code, and consequently, that said petition fails to show a cause of action in relator, and sustained the demurrers, 122 N.E.2d 662.

The cause is before this court on appeal from the Court of Appeals.

Wallach & De Vinne, Cleveland, for appellant.

Roger A. Zucker, Director of Law, and Arnold M. Edelman, Cleveland, for appellees.

BELL, Judge.

Relator contends that the issuance of a warrant or summons is purely a ministerial act, involving no exercise of discretion on the part of the respondents. This question was not determined by the Court of Appeals because that court found that the relator is not the party beneficially interested, and that the petition therefore fails to show a cause of action in him. And if that question is to be determined here, it must first be determined that relator has the right to make the demand for a warrant.

Section 2731.02, Revised Code provides:

'The writ of mandamus may be allowed by the supreme court, the court of appeals, or the court of common pleas and shall be issued by the clerk of the court in which the application is made. Such writ may issue on the information of the party beneficially interested.' (Emphasis added.)

Although this exact point has apparently never been raised in Ohio, there are several cases which have discussed the question as to the 'party beneficially interested.'

There is a line of cases involving election questions where it was held that a citizen has sufficient interest as an elector to maintain an action in mandamus to compel compliance with the election laws. State v. Brown, 38 Ohio St. 344 (to compel sheriff to give notice to qualified voters to elect a common pleas judge and instituted upon a relation of an elector of the county); State ex rel. Gregg v. Tanzey, 49 Ohio St. 656, 32 N.E. 750 (to compel board of elections to complete abstracts of votes and instituted upon relation of an elector of the county); State ex rel. Newell v. Brown, 162 Ohio St. 147, 122 N.E.2d 105 (action in prohibition permitted by elector to prevent the placing of names of candidates on ballot).

In State ex rel. Trauger v. Nash, 66 Ohio St. 612, 64 N.E. 558, relator, as an elector, citizen and taxpayer of Ohio, brought an action in mandamus against George K. Nash, Governor of Ohio, to compel him to appoint a person as Lieutenant Governor, as required by statute in the event of a vacancy in that office. The first paragraph of the syllabus in that case reads:

'The attorney general not having become such, a private citizen may be the relator in a mandamus proceeding to enforce the performance of a public duty affecting himself as a citizen and the citizens of the state at large.'

Although the court in that case concluded that a majority of courts have held that a private citizen petitioning for mandamus must show a special interest in himself, it recognized that "the rule which rejects the intervention of private complainants against public grievances is one of discretion, and not of law." It must also be kept in mind that in that case the Attorney General, upon whose relation such an action would normally be brought, was representing the Governor.

In State ex rel. v. Henderson, 38 Ohio St. 644, this court held that the clerk of the city of Cincinnati was required, under an ordinance, to advertise for sealed proposals for the construction of a street railway. In discussing the question of whether the clerk could be compelled by mandamus to perform this duty, upon the relation of a citizen and owner of property along the line of the proposed railroad, Longworth, J., J., said, at page 648:

'As regards the degree of interest on the part of the relator, requisite to make him a proper party on whose information the proceedings may be instituted, a distinction is taken between cases where the extraordinary aid of a mandamus is invoked, merely for the purpose of enforcing or protecting a private right, unconnected with the public interest, and those cases where the purpose of the application is the enforcement of a purely public right, where the people at large are the real party in interest, and, while the authorities are somewhat conflicting, yet the decided weight of authority supports the proposition that, where the relief is sought merely for the protection of private rights, the relator must show some personal or special interest in the subject matter, since he is regarded as the real party in interest and his rights must clearly appear. On the other hand, where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen, and, as such, interested in the execution of the laws.'

Although that language might be relied upon as authority for relator's position herein, it must be considered in the light of later pronouncements of this court. Thus in State ex rel. Brophy v. City of Cleveland, 141 Ohio St. 518, 49 N.E.2d 175, 176, wherein the relator, who was neither a resident nor a taxpayer of respondent city, sought to require the transfer of municipal funds, this court held:

'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.'

The petition in the instant...