State ex rel. Skilton v. Miller

• Decision Date: 24 November 1954
• Docket Number: 23304,Nos. 23303,s. 23303
• Citation: 99 Ohio App. 481,122 N.E.2d 662
• Parties: , 72 Ohio Law Abs. 91, 59 O.O. 277 STATE of Ohio on relation of Henry A. SKILTON, Relator, v. David J. MILLER, Judge of Police Court of Cleveland Heights, Ohio et al., Respondents.
• Court: Ohio Court of Appeals

Page 481

99 Ohio App. 481

122 N.E.2d 662, 72 Ohio Law Abs. 91, 59 O.O. 277

STATE of Ohio on relation of Henry A. SKILTON, Relator, v. David J. MILLER, Judge of Police Court of Cleveland Heights, Ohio et al., Respondents.

Nos. 23303, 23304.

Court of Appeals of Ohio, Cuyahoga County.

Nov. 24, 1954.

Wallach & DeVinne, Cleveland, for relator.

Roger Zucker, Cleveland, for respondents.

KOVACHY, Judge.

These are two proceedings in mandamus originally filed in this court. The relator, the respondents and the relief sought in each are the same. In the petitions the relator says inter alia that he is a citizen of the State of Ohio; that he executed two written conplaints under oath and filed one with the respondent, Richard McGilvery in his capacity as Clerk of the Police Court in the City of Cleveland Heights, and the other with the respondent, David J. Miller, Judge of said Police Court; that upon such filing he promised complete cooperation with the appropriate police officials together with the production of witnesses in the prosecution of the violations of the state law alleged in the complaints; that he damanded that a warrant or summons be issued thereon as provided by the laws of the State of Ohio; and that both respondents have refused to comply with his demands.

It is admitted by respondents that the complaints filed set forth a violation of Section 3773.24 of the Revised Code of the State of Ohio. In Case No. 23303 relator avers that he purchased a loaf of bread on Saturday, August 21, 1954 and again on Sunday, August 22, 1954 at a store known as Miether's Ice Cream Store located at 1920 Lee Road, Cleveland Heights, Ohio. In Case No. 23304 he avers he purchased a loaf of bread on Saturday, August 21, 1954 at a restaurant and store known as Damon's located at 2466 Fairmont Boulevard, Cleveland Heights, Ohio.

Relator seeks a writ of mandamus commanding the respondents or either of them 'to issue a warrant or summons upon the offense charged in the attached affidavit * * *' in each case.

Demurrers were filed to the petitions by the respondents on the ground that the petitions do not state facts that show causes of action.

Section 2731.02 of the Revised Code of Ohio in part reads as follows:

'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 ours.)

In the consideration of these demurrers, we are faced at the outset with the question whether the relator, under the facts set forth in his petitions, is 'the party beneficially interested' in accordance with the requirement of the law pertaining to the issuance of the extraordinary writ of mandamus. The Supreme Court of Ohio in State ex rel. Stanley v. Cook, 146 Ohio St. 348, 66 N.E.2d 207, 208, states the law as follows in the syllabi:

'1. Mandamus is an extraordinary writ and will not lie unless the relator can establish a clear legal right thereto. Paragraph one of the syllabus of State ex rel. Baen v. Yeatman, Aud., 22 Ohio St. 546; paragraph two of the syllabus of State ex rel. Papadopoulos v. Industrial Commission, 130 Ohio St. 77, 196 N.E. 780; paragraph one of the syllabus of State ex rel. Skinner Engine Co. v. Kouri, Dir., 136 Ohio St. 343, 25 N.E.2d 940; and State ex rel Stein v. Department of Highways, 136 Ohio St. 252, 25 N.E.2d 285, approved and followed.

'2. In the absence of a showing that a relator had a beneficial interest, either as an individual, taxpayer, or as a citizen, in obtaining a peremptory writ of mandamus, such writ will not be granted. Paragraph one of the syllabus of State ex rel. Brophy v. City of Cleveland, 141 Ohio St. 518, 49 N.E.2d 175, and State ex rel. Latta, Chief of Police v. White, Industrial Commission, 140 Ohio St. 197, 42 N.E.2d 902, approved and followed.'

Relator in his petitions says that he is a citizen of Ohio. He demands the arrest of persons for violating, he avers, the so-called 'Sunday Closing Law.' This is a general law of the State of Ohio and was enacted for the benefit of the citizens of the state as a whole. His interest, therefore, is one that he shares with all citizens. It is not specific or peculiar in himself. A relator, in order to be justified in obtaining a peremptory writ compelling the arrest of individuals, must show that such arrest would...