
    The State, ex rel. White, v. City of Cleveland et al.
    (Decided April 13, 1932.)
    
      Mr. S. J. Kornhauser, for plaintiff.
    Mr. W. George Kerr, Mr. Anthony R. Fiorette, Mr. Dan B. Cull, Mr. Fred Desberg and Mr. J. M. Berne, for defendants.
   Levine, P. J.

This is an original action in mandamus filed in this court, wherein it is sought by the relator, George White, to compel the defendants to enter into a contract with the relator upon specified terms for the leasing of the music hall, in the city of Cleveland, which is a part of the public auditorium, to be used by the relator for the week beginning May 1, 1932, during which he proposes to present the performance which he is conducting as “George White’s Scandals.”

Various arguments were presented to the court on pertinent points of law.

In support of a demurrer to the relator’s petition it was pointed out in brief of counsel that the duties of the commissioner of the public auditorium and stadium are all set forth in an ordinance enacted by the council of the city of Cleveland; that unless the petition pleads the ordinance this court cannot take judicial notice of same, as it must be pleaded and proven as other evidence.

In view of the concession of counsel for relator that the council is empowered to enact an ordinance governing the use of the public auditorium, or any part of it, and that it is within its power to exclude certain activities from any part of the public auditorium, it would seem that the failure to plead the ordinance would constitute a substantial defect in the petition. This court cannot take judicial notice of the contents of the ordinance, nor can it consider the ordinance, in view of the failure to plead the same in the petition. As far as this court knows, the acts of the commissioner and of the director of public parks were in full conformity with the mandate of the city council.

We will assume, for the sake of argument, that the ordinance was pleaded and presented in evidence. A study of the same reveals that “the Public Auditorium is to be administered or controlled by the Commissioner * * * subject to the provisions of the Charter and ordinances * * * and subject to the supervision and direction of the Director of Parks and Public Property * * * he shall have power from time to time to enter into contracts * * * under such rules as may be established by the Board of Control * *

As we construe this language it is to the effect that the commissioner is empowered to enter into contracts subject to certain limitations. In other words, when he does enter into a contract the same must be subject to certain limitations. Nowhere in the ordinance do we find any mandatory provision compelling the commissioner to enter into contracts. His power as well as his duties are derived from the ordinance, and unless the ordinance makes it mandatory upon him to enter into contracts under certain conditions he is under no duty to do so.

We are not concerned with the wisdom or lack of wisdom on the part of the commissioner in refusing to accept the offer of the relator, as this is not a judicial question, but, instead, we deem' it to be a matter of political policy for which the responsible heads are answerable not to the courts but to the people as a whole.

The writ of mandamus was designed to compel the performance of a duty enjoined by law, and unless the law creates such a duty the courts cannot be called upon, first, to create the duty, and, second, to compel its performance.

The various citations found in the brief of counsel for the relator refer to matters wherein the law imposed a mandatory duty upon the officer against whom the writ was directed. No such situation exists in this case.

Holding as we .do, the writ will be denied, and. the petition of relator dismissed.

Writ denied and petition dismissed.

Weygandt, J., concurs.

Vickery, J., not participating.  