
    HEALTH — MANDAMUS.
    [Licking (5th) Circuit Court,
    March Term, 1911.]
    Voorhees, Shields and Powell, JJ.
    State ex rel. John M. Ankele v. Elmer Orr et al.
    Petition Failing to State Cause for Mandamus to Compel Municipality to Appoint Board of Health.
    Grounds for the granting of a writ of mandamus to compel a municipal council to establish a board of health are not stated in the petition filed in this case and demurrer lies thereto.
   BY THE COURT.

In this case the relator recites that he is an elector, citizen and taxpayer, and the mayor of the city of Newark; also, the owner of real estate in said city; that the defendants constitute the city council of said city of Newark; that the said city is a municipality in the state of Ohio, of more than five thousand inhabitants, and of the grade of a city.

The plaintiff recites there is no board of health existing in or for said city; that it is the duty of said defendants, enjoined upon them by Sec. 4404 G. C. of the state of Ohio, to establish a board of health, but that they neglect, decline and refuse to establish the same; that by the ordiflary course of law, there is no adequate remedy against the defendants for so neglecting and refusing to establish such board.

After making the allegation that he had requested the city solicitor to bring this action, which he refused to do, the plaintiff says that relator brings the action on behalf of the said' city of Newark. He prays for an order requiring the defendants to establish such board; that an alternative writ of mandamus may be issued, requiring them to show cause, by a day to be named, why they do not establish such board, and that, on final hearing, a peremptory writ may be issued requiring such establishment to be made.

•Upon this petition, an alternative writ was allowed.

The defendant, instead of making answer, and showing cause why such action had not been taken, filed a demurrer to this petition. The demurrer was overruled by the court of common pleas, and judgment, was rendered in favor of the plaintiff to recover costs from the said defendants. Whereupon, the defendants took an appeal to the circuit court.

As the case now stands in this court, the matter that is before us for determination is whether or not this demurrer to the petition is well taken.

We are of the opinion that it is well taken; that the petition does not state a good cause of action, and that the demurrer to the same should be sustained.  