State ex rel. Temke v. Outcalt, 76-655

• Decision Date: 23 February 1977
• Docket Number: No. 76-655,76-655
• Citation: 360 N.E.2d 701,49 Ohio St.2d 189,3 O.O.3d 248
• Parties: , 3 O.O.3d 248 The STATE ex rel. TEMKE, Appellee, v. OUTCALT, Judge, et al., Appellants.
• Court: Ohio Supreme Court

Page 189

49 Ohio St.2d 189

360 N.E.2d 701, 3 O.O.3d 248

The STATE ex rel. TEMKE, Appellee, v. OUTCALT, Judge, et al., Appellants.

No. 76-655.

Supreme Court of Ohio.

Feb. 23, 1977.

Jacobs, Kleinman, Martin & Seibel and Kenneth F. Seible, Cincinnati, for appellee.

Thomas A. Luebbers, City Sol., Paul J. Gorman and Delores J. Hildebrandt, Cincinnati, for appellants.

PER CURIAM.

Ninety-four years ago, this court enunciated a well-settled rule that in a mandamus proceeding to compel an officer to perform an act which it is claimed the law enjoins upon him as a duty, all the facts necessary to put him in default must be demonstrated. State v. Cappeller (1883), 39 Ohio St. 455, 460 (quoting Cincinnati College v. La Rue (1872), 22 Ohio St. 469). The court has reaffirmed this principle over the years. Ohio ex rel. v. Moore (1883), 39 Ohio St. 486, 487 (citing La Rue and Cappeller); Dye v. State ex rel. Davis (1906), 73 Ohio St. 231, 241, 76 N.E. 829 (quoting La Rue). Relators in mandamus must plead and prove the existence of all necessary facts. State ex rel. Baker v. Hanefeld (1938), 134 Ohio St. 540, 541, 18 N.E.2d 404 (citing La Rue). Absent the demonstration of the clear legal duty to perform as demanded mandamus will not lie. State ex rel. Myers v. Chiaramonte (1976), 46 Ohio St.2d 230, 240, 348 N.E.2d 323.

R.C. 2731.06 provides, in relevant part;

'When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory mandamus.'

Appellee submits that under the above statutory language the Court of Appeals properly could determine that appellee's writ should have issued, absent any hearing whatsoever. However, it has been held relative to G.C. 12288, the statutory forerunner of R.C. 2731.06, that a peremptory writ of mandamus should issue in the first instance only when material facts are admitted disclosing that relator is entitled to relief as a matter both of law and fact. State ex rel. Gulf Ref. Co. v. DeFrance (1950), 89 Ohio App. 334, 338, 101 N.E.2d 782. An alleged right to performance is unclear when the facts underpinning the claimed right are not admitted and it has not been established that no valid excuse can be given for nonperformance of the alleged duty. ¹

Appellee concedes that during the hearing below, the court indicated from the bench that it was prepared to make a ruling without a further evidentiary hearing or trial. Furthermore, appellant did not even file his answer until April 12, 1976. Thus, at the time the writ was issued, the factual contentions of appellee had not been admitted and it had not been proven that no valid excuse could be given for nonperformance of the alleged duty. A Municipal Court...