
    The State, ex rel. Erman, v. Gilman, Dir. of Public Utilities of City of Cincinnati, et al.
    (Decided December 5, 1932.)
    
      Messrs. Paxton & Seasongood, for relator.
    
      Mr. John D. Ellis, city solicitor, for respondents.
    
      Messrs. Freiberg & Simmonds and Messrs. Taft, Stettinius S Hollister, for parties defendant.
   Hamilton, J.

This is an original action for mandamus.

The relator alleges in his petition that the defendant, Edgar Dow Gilman, is and was the director of public utilities of the city of Cincinnati; the defendant Stephen W. McGrath is and was at the times hereinafter mentioned the treasurer of the city of Cincinnati; that he, the relator, is a resident citizen, and taxpayer of the city of Cincinnati.

The petition further recites that the city of Cincinnati caused to be issued to Taxicabs of Cincinnati, Inc., an Ohio corporation, operating a fleet of Yellow cabs in the city of Cincinnati, 240 taxicab licenses. Following this allegation the relator pleads ordinance No. 56-6 of the code of ordinances of the city of Cincinnati, as follows: “Whenever any person, firm or corporation holding one or more licenses for taxicabs or autos-for-hire shall for a period of sixty (60) consecutive days fail to make a reasonable and consistent effort to operate any such licensed taxicab or autos-for-hire, the Director- shall notify the City Treasurer, who shall revoke the license of such vehicle or vehicles.”

The petition further sets up Section 65-25 of the ordinances of the city of Cincinnati with reference to meter conditioning of the taxicabs for service.

The petition recites that notwithstanding the provisions of the code of ordinances, Taxicabs of Cincinnati, Inc., has had only 80 of its taxicabs inspected and sealed; that therefore 160 of its taxicabs could not have been legally used during the past five months; that 63 of the taxicabs of Taxicabs of Cincinnati, Inc., have been in dead storage in a nonoperable condition for a period of over a year; that approximately 100 of its said taxicabs have been in dead storage, and in a non-operable condition, and that for more than 60 days last past Taxicabs of Cincinnati, Inc.,' has not operated more than 50 taxicabs per day.

The petition then states that on or about August 10, 1932, the director of public utilities caused to be revoked 40 of said licenses issued to Taxicabs of Cincinnati, Inc., notwithstanding Taxicabs of Cincinnati, Inc., failed to make a reasonable and consistent effort to operate 160 of its taxicabs, and did not have this number of taxicabs in condition so that they could have been either physically or legally operated.

The petition further states that if the defendants had performed their legal duty, they would have caused to have been revoked and would have revoked, 160 of the licenses held by Taxicabs of Cincinnati, Inc., instead of 40.

The petition then recites that on October 20,1932, the relator made a written demand upon the defendant, Edgar Dow G-ilman, director of public utilities, to notify the defendant, the city treasurer, to revoke at least 120 licenses held by Taxicabs of Cincinnati, Inc., and advised said defendant that in default of his taking this action immediately the relator would take the' appropriate legal proceedings to compel the performance of this legal duty by the defendant.

The petition further recites that the relator notified the city solicitor to take proper action to compel the performance by the defendant, the director of public utilities, of his legal duty. Relator then states that the director of public utilities has failed to perform his legal duty and has refused to revoke said 120 licenses for taxicabs, and that the city solicitor has failed to institute proper proceedings, and prays that a writ of mandamus issue commanding the defendant, Edgar Dow G-ilman, to notify immediately the city treasurer to revoke for nonuse at least 120 licenses held by Taxicabs of Cincinnati, Inc., and commanding the defendant Stephen W. McGrath to revoke said licenses.

To this petition the defendants filed a demurrer on the grounds that the plaintiff did not have legal capacity to sue, and that the petition did not state grounds sufficient to constitute a cause of action.

The case is considered on the demurrer.

It will be noted that the petition does not state any special or private right of the relator invaded or postponed by the action or nonaction of the defendants. The sole right of relator to maintain the action is grounded on Ms being a citizen of tbe city of Cincinnati, and it is claimed, under authority of Brissel et al., County Commrs., v. State, ex rel. McCammon, 87 Ohio St., 154, 100 N. E., 348, that this allegation is all that is necessary to entitle him to maintain the action. It is true that under the third paragraph of the syllabus of that case a broad statement of the general rule of law is made, which is to the effect that, where the relief sought is the enforcement of a public duty by a public officer or board it is sufficient to sustain the right of the relator to maintain the suit that he show that he is a citizen, and, as such, interested in the execution of the laws. Undoubtedly this is the general rule in Ohio, although contrary, as we view it, to the weight of authority. See note in 52 L. R. A., N. S., 415 et seq. This rule was first pronounced by the Supreme Court of Ohio in the case of State, ex rel., v. Henderson, 38 Ohio St., 644.

In the Henderson case the Supreme Court stated in the opinion, at page 649, that: “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. ’ ’

An examination of the authorities leads to the conclusion that the Supreme Court has gone farther in the use of the writ to control official action than any of the other courts of the several states, and farther than the federal court. This court is controlled by the action of the Supreme Court of Ohio, if applicable. However that may be, neither the Supreme Court of OMo nor any other court in any reported decision has ever held that the writ will lie to compel action on the part of the legally constituted authority where the exercise of that authority involves judicial, g-wusi-judicial, or discretionary powers. In fact, all authorities hold that the writ will not lie where the matter complained of involves the exercise of gwsi-judicial or discretionary powers, but will lie where the duty is ministerial.

In the cases decided by the Supreme Court of Ohio, while the general rule has been stated, an examination shows some special interest in each case on the part of the relator. The Brissel case, supra, relied upon, involved a breach of an agreement among the several commissioners of adjacent counties establishing a hospital. After the arrangement was made and the hospital built, the commissioners of one county refused to carry out their financial obligation. The commissioners of another county of the district brought the action, praying for a writ. It was unnecessary in that case to resort to the general rule as to the right to bring the action, since it would seem that the relator would have a special interest in its enforcement as a taxpayer and party to the contract.

In the Henderson case, supra, the second paragraph of the syllabus is: “Mandamus will not lie upon the relation of a citizen and owner of land abutting upon a street through which said line of railroad would pass if constructed, to compel the city clerk to make the advertisement required of him by the ordinance, when he wrongfully refuses or neglects so to do.” (Italics ours.)

This was a case where the city clerk refused to make publication of the passage of an ordinance concerning a right of way for a railroad. The court in the opinion states, at page 650:

“What would be the relator’s rights in such a state of affairs it is unnecessary to discuss. Suffice it to say that the publication of the advertisement for proposals would invest him with no right whatever against the city or any of its officers or against any person or company. How then can he ask this order against the city clerk? He is an officer of council and bound to obey its orders. If he fails to do so, that body is by no means powerless; but if it is satisfied, what business, we ask, is it of any other person? I cannot complain of yonr agent because he has not performed his duty toward you in a matter in which I have no interest and where you are satisfied. Were this writ asked upon the relation of the city against its officer the case might be otherwise, but the city is not complaining.

“We are unable to see that any right of the relator has been invaded or postponed, or to find interest in him which would be legally affected by granting him the relief prayed for.”

•Applying this pronouncement to the instant case, the relator states no right as to him that is invaded or postponed. There is no allegation that he has ever applied, or that any one in whom he is interested has applied, for a license to operate taxicabs in the city of Cincinnati; or that more cabs- are licensed than public necessity demands.

If the director of public utilities failed to perform his duties to the great detriment of the city, the law affords a method of removal.'

It must be considered that the decision in the Henderson case was made in the light of the general rule as to the right of a citizen to bring such an action. Moreover, as heretofore stated, no court has ever held the writ to lie where the matter sought to be enforced is quasi-judicial in its character or involves the exercise of discretion.

It will be noted that the petition recites facts on which the director might be justified in finding that the holder of the licenses sought to be revoked had failed for 60 consecutive days to make a reasonable and consistent effort to operate such taxicabs, and would be justified in notifying the city treasurer to that effect. These allegations themselves show there was a question of fact to be determined by the director before action. It must be considered that these licenses are property rights of Taxicabs of Cincinnati, Inc. Taxicabs, Inc., may have a complete defense to these facts, and might be able, on hearing, to show that they had made every reasonable and consistent effort to operate the taxicabs during the time. This shows the quasi-judicial character of the obligations imposed on the director of public utilities of the city of Cincinnati to determine under the facts whether he was required under the ordinances to notify the city treasurer to cause the revocation of the licenses.

It may be claimed that the facts alleged in the petition could be controverted by answer, and that this court could try the question whether or not under the facts the officers should have acted, as prayed for in the petition. This would mean that this court would take from the director of public utilities of the city of Cincinnati the power to determine the facts as to the violation of the ordinances, which is judicial. The result would be, the court, through mandamus, would try the facts, removing therefrom the power vested in the defendants. The relief sought is not to compel the officer to act, but that he be ordered to act in a certain way.

If the relator has rights that have been invaded or postponed, he has ample remedy; and, if the city desires to complain of its agent, it has ample remedy.

Carried to a logical conclusion, to grant this writ would establish the proposition that the courts have supervisory control over all executive and administrative officers as to the discharge of their legal duties, and that, upon complaint of a dissatisfied citizen concerning the discharge of such duties, the court will, by mandamus, inquire into the matter complained of, and direct and command the officer regarding the execution of his duties, notwithstanding no detriment or injury to the public or the relator is charged. This, in effect, would contravene the provision of the United States Constitution establishing the three branches of government, executive, legislative, and judicial, and would destroy the independence of the executive branch. The majority of the court are unwilling to subscribe to the usurpation of such power by the courts. We believe the American system of removing officers, derelict in the discharge of their duties, by the electorate at the polls, is the better way and the better law, in the absence of any detriment or injury to the public or the individual complaining, and especially so when the matter complained of is quasi-judicial and involves the exercise of discretion on the part' of the officer. It may be claimed that under the facts alleged in the petition the director has no discretion. This begs the question. The truth must be first ascertained, which is primarily the duty of the director, and is not merely a ministerial act.

The conclusion of the majority of the court is that the plaintiff has not the right to maintain this action, and that the petition does not state facts sufficient to constitute a cause of action.

The demurrer is sustained, and the petition dismissed at the costs of the relator.

Petition dismissed.

Boss, P. J., and Cushing, J., concur.

Boss, P. J.

I concur in the majority opinion; but for these reasons: The allegations of the petition and of the amendment to the petition definitely set forth an abuse of discretion on the part of the director of public utilities in refusing to take the required action when the licensees have for more than 60 consecutive days failed to make any reasonable and consistent effort to operate such taxicabs under their licenses. The relator being merely a citizen, under the third paragraph of the syllabus in the case of Brissel et al., County Commrs., v. State, ex rel. McCammon, 87 Ohio St., 154, 100 N. E., 348, would have the right to maintain such an action. This rule is, however, directly modified by tbe decision in tbe case of Luginbuhl et al., County Commrs., v. State, ex rel. Blank, 100 Ohio St., 223, 126 N. E., 71, wherein the court say: ‘ ‘ The record in this case discloses no abuse of that discretion, nor does it disclose that the relator has been deprived of any right guaranteed to a citizen by the constitution of the state or of the United States, and therefore no case is made justifying the issuance of the extraordinary writ of mandamus. The courts will not usurp functions which- by law are vested in administrative bodies. ’ ’

Ohio thus has fallen in line with the great weight of authority, requiring the violation of such personal right in order to give a relator the right to mandamus. The relator, therefore, has no capacity to sue under the allegations of the pleadings, though otherwise a cause of action is stated.  