
    The State, ex rel. Morgan, v. Rusk, Dir. of Finance.
    
      (Decided June 23, 1930.)
    
      Mr. A. H. Martin, for plaintiff in error.
    
      Mr. Walter Booth, for defendant in error.
   Vickery, P. J.

This action came into this court on a petition in error to the common pleas court of Cuyahoga county.

In that court the action was one in mandamus to compel Auditor Rusk of the city of Cleveland to issue a warrant in favor of relator, Garrett A. Morgan, in the sum of $2,000, and the court of common pleas held that the relator was not entitled to the writ and so found against him. It is to reverse that finding that error is prosecuted here.

The history of the causes which gave rise to this litigation is of exceeding interest and must have stirred the minds and hearts of many of Cleveland’s citizens, for it relates back to 1916, at which time a great calamity shocked the people of Cleveland when an explosion took place in the water works tunnel that was then being constructed, in which a great many workmen lost their lives, and it records many deeds of valor and heroism, especially on the part of the relator, Morgan.

It seems that at the time of this gas explosion in the tunnel Morgan was at -home and was aroused from his sleep by the persons in charge of the rescue work, and was requested to go to the scene of the disaster and to use an invention which he had perfected, a gas mask, to see whether he could not rescue some of the persons who were in danger in the tunnel. The record shows that he was requested by a police inspector in charge, and by other high officers who came to his house and took him to the scene of the disaster, to go down into the tunnel, which he did, although others were afraid, and he succeeded in bringing to the surface several men who had died from the explosion, and recovered several persons who were resuscitated and their lives saved.

This matter attracted wide attention, and I believe the record shows that he made demands for compensation at various times, and that ultimately the Cleveland council, recognizing his heroic conduct, and recognizing that he was requested by the authorities to go into this place of danger and hazard his life, sought to compensate him by passing an ordinance authorizing the city to pay him $2,000, for which the city auditor refused to issue a warrant, claiming that there was no basis for the allowance of such claim.

We have gone over this record and heard the arguments of counsel, and we wonder where the basis for this objection is. If we understand the nature of the charter of the city of Cleveland it has within its proper domains the same power that the Ohio Legislature would have to pass private bills, or to do anything that the Legislature might do. Now the thing that we wish to accentuate in this case is that Morgan was not a volunteer, that he performed these services upon the request of the authorities; and that appears to have been a point which the learned judge in the court below seems to have lost sight of. Of course, if a man does a heroic act and is a mere volunteer, he cannot recover; nor can a subsequent promise to pay him be the basis of a recovery. There must, not only have been a promise, but it must have been based upon a prior request or legal liability; but where there is a prior request, and then after the services are rendered there follows the subsequent promise, under all the laws of contracts of which we have knowledge there is laid a perfect basis for a right to recover.

Now we want to cite in this connection a case that arose in this county. Spitzig v. State, ex rel. Hile, 119 Ohio St., 117, 162 N. E., 394. The county commissioners are liable only when made so by statute. An accident happened in the courthouse by the falling of an elevator, and Spitzig was very seriously injured in that accident. The county was not liable because there was no statutory liability. Under such circumstances the claimant went to the Legislature and had a private bill passed which authorized the county commissioners of Cuyahoga county to settle that claim for a sum not to exceed $15,000, and to pay the injured party in settlement the amount upon which they had agreed. A settlement was made for $12,500, and the county commissioners authorized the auditor to draw a warrant out of the general fund to pay this sum of money. Whereupon an injunction suit was brought to prevent the auditor from issuing such a warrant, because there was no legal basis- for the payment of this sum of money. ' That was heard by the courts, and the Supreme Court found — and we think properly found — that the auditor must issue the warrant, although that was a more far-fetched case than the instant one, because there was no legal liability on the county commissioners at all, and, of course, there was no request in the first instance, in favor of the injured man. It is claimed by the city in the instant case that the county commissioners were negligent in that case, and it is argued that the right to pay was based upon negligence. There is no negligence unless it be actionable negligence. Negligence is a term that is used, upon which, if it exists, an action can be predicated to recover. Now there was no negligence upon the part of the county commissioners in the Spitsig case because there was no actionable negligence, or negligence which gave rise to a cause of action; therefore it was not a basis for a lawsuit and could not be. But the Legislature of Ohio, the supreme lawmaking body of the state, could, by private bill, authorize the county commissioners of Cuyahoga county to pay a claim which there was a moral obligation on their part to pay. If the above injured party was guilty of. no negligence himself, and was injured while riding in one of the public elevators in the court house, there is no reason why he should bear the brunt of it rather than the entire community, and so the Legislature having plenary power, having power to legislate upon any subject which is not prohibited by the. Constitution of the United States or of the state of Ohio, might readily authorize the county commissioners to pay such a hill, and that theory- was sustained by the Supreme Court and- Spitzig received his money.

Now, adverting again to the instant case, the difference between it and the case of which I have just spoken is that in the instant case a man at the request of the authorities performed services which were not only laudable, but heroic, and subsequently the legislative body of the city, having the same plenary powers within its province that the Legislature of the state has, passed an ordinance authorizing the payment of $2,000 to this man, and we think that it had power to pass such legislation, and we further think the record in this case shows that the council was not only authorized to pass the bill, but that the city auditor ought to have paid it; and we are of opinion that the court below, in refusing to issue the writ of mandamus, misunderstood the facts and the law, and that his finding was contrary to the facts, to the greater weight of evidence, and to the law, and for these reasons the judgment of the common pleas court will be reversed. Having all the facts before us, and the relator being entitled to the writ of mandamus, and having original jurisdiction in mandamus, we order the writ issued that the court of common pleas should have ordered issued. The judgment of the court will therefore be that the cause be reversed, and that the writ of mandamus issue ordering the city auditor to draw the voucher to pay this $2,000.

Judgment accordingly.

Levine, J., concurs.

Sullivan, J., not participating.  