
    Cullen, as Vice Mayor, etc. v. The State, ex rel. City of Toledo, by etc.
    
      Mandamus — Writ to issue, when — Performance of specific acts required by law.
    
    A writ of mandamus will not issue to compel the observance of law generally, hut will he confined to commanding the performance of specific acts specially enjoined hy law to he performed.
    (No. 17482
    Decided July 5, 1922.)
    Error to the Court of Appeals of Lucas county.
    This was an original action in mandamus in . the court of appeals of Lucas county and is here upon a petition in error.
    
      The defendant in error sought to compel the plaintiff in error to perform certain official acts incident to his office, as presiding officer of council, to-wit, to recognize certain rules adopted by a majority of the members elected to council and the standing committees elected by the council under such rules. The controversy between the council and the vice-mayor grew out of the appointment by the vice-mayor of certain members of council as the standing committees and the election by a majority of council of certain members as such standing committees, the vice-mayor recognizing the standing committees by him appointed and the majority of council recognizing the standing committees by it elected.
    In 1915 the city adopted a home-rule charter which contained no code of rules governing the deliberations of council. Some ten years prior thereto the council of the city of Toledo adopted by resolution certain rules to govern its deliberations and procedure for the years 1905 and 1906, the original rules providing that the committees of council should be elected by that body.' In 1906, however, the rules were amended giving the right to the vice-mayor to appoint such committees. Without any further formal action in the succeeding years up to January 2, 1922, the rules adopted in 1905 and amended in 1906 were observed and followed by council and vice-mayor of that city. On that date, being the first session of the council elected at the preceding election, the vice-mayor appointed members of the standing committees. At the same session the council adopted a motion that a committee on rules named in the motion be elected, “Whose duty it shall be to recommend to this council rules to govern the deliberations of said council * * * and that until said committee makes its report the rules of the preceding council shall govern.”
    At the next meeting of council, on January 9, the committee elected by council on January 2 reported rules to govern council for the years 1922 and 1923. A motion was made and seconded that these rules be adopted, and upon a vote being had 11 members of council voted in favor of the adoption of the rules and 9 against it. The vice-mayor ruled the motion lost, “Having failed to receive the affirmative vote of three-fourths of all members elected.” Upon an appeal being taken from the decision of the chair 11 members of council voted not to sustain the chair and 9 members voted to sustain the chair. Whereupon the vice-mayor ruled “that the decision of the chair was sustained, the repeal [appeal] having failed to receive the necessary three-fourths vote of all members elected.” A motion was then carried referring the matter of changing rules back to the committee on rules.
    On January 30, a motion was again made and seconded to adopt the rules recommended by the committee. The vice-mayor refused to entertain the motion and an appeal was taken from the decision of the chair, and he refused to put the question on appeal ; whereupon a member of council put the question and there were twelve votes against the chair, the other members of council not voting. Eleven members then voted a recess of fifteen minutes, during which recess the vice-mayor declared the session adjourned, and together with eight members of the council withdrew from the chamber. Upon the expiration of the fifteen minutes, the eleven members returned, the duly elected president pro tern of council assumed the chair, and the eleven members of council voted in favor of the adoption of the committee’s report and of the rules presented by it to council; the president pro tern declared the measure thus voted for to have been adopted, and thereupon the members of the standing committees were elected by the council.
    On February 6 the vice-mayor presiding ruled in turn upon two particular measures which were brought up in council, that these measures were out of order, upon the ground that they had not been submitted to the committee appointed by him on January 2 and had not been approved by that committee, although they had been submitted to and approved by the committee elected under the special rules adopted by a majority of council. The rulings of the chair were met by appeals, in the form of motions. The motions were put by the vice-mayor and the decisions of the chair were not sustained. The two measures which the vice-mayor had declared to be out of order were then submitted to the council and voted upon. The measures passed their first reading, but did not receive the number of votes necessary to suspend the rules and pass them at the same session. Thereafter, and before a subsequent meeting of council, the city solicitor filed a petition in the court of appeals of Lucas county for a writ of mandamus: ‘ ‘ Commanding the defendant, Edward D. Cullen, as Vice-Mayor of the City of Toledo, and President of Council of the City of Toledo, to forthwith perform his duties as presiding officer of Council, as required by law and the charter of said City of Toledo; to declare as such presiding officer that the rules of procedure voted upon at the meeting of Council on January 30th, 1922, were duly adopted; to recognize the standing committees elected under said rules and to refer to such standing committees the legislation referred to standing committees by Council; and not to interfere with the defendant clerk in the performance of his duties in referring legislation to such standing committees; and that the defendant Clerk of Council perform his legal duty as such Clerk by delivering all legislation, records, and papers to the standing committees under the rules of January 30th, 1922, that are referred by Council to standing committees; and for all other proper and adequate relief; and that an alternative writ of mandamus issue out of this court against said defendants, commanding them and each of them to do each and every of the acts and things herein-before set forth, or to show cause why the same should not be done.”
    An alternative writ was issued, trial was had, and the court of appeals issued a peremptory writ of mandamus commanding defendant “to recognize as valid the rules adopted by council on January 30, 1922, and the standing committees appointed by the council pursuant to said rules.”
    
      Mr. Alonzo G. Duer; Mr. Curtis T. Johnson and Mr. Ben W. Johnson, for plaintiff in error.
    
      Mr. F. M. Dotson, director of law, and Mr. M. S. Dodd, for defendant in error.
   Robinson, J.

Accepting the conclusion of fact of the court of appeals, that the differences between the vice-mayor and the majority of the members of council “revolve around a controversy as to which is the lawful set of rules governing the council and which standing committees are the lawful standing committees of the council,” and its conclusion of law, that it “entertains no doubt but that a city council acting under a charter like that governing the City of Toledo is a continuing body so far as the passage of legislation is concerned, and that measures, |or instance, providing for city improvements pending in one council remain before the council for the completion of the legislation after the original council has been superseded by new members, and in this sense a city council is a continuing body,” but that “each city council when it meets for the purpose of organizing has the undoubted right to adopt by a majority vote of its members, and as a part of its organization, reasonable rules for its own government not in conflict with the charter or the laws of the state,” we are still unable.to conclude that a proper case was presented in that court for the issuance of the extraordinary writ of mandamus.

The relator sought to have the court command the defendant below, as vice-mayor of the city of Toledo, to obey the law generally, for the prayer is that “a writ of mandamus issue commanding the defendant, Edward B. Cullen, as ‘Vice-Mayor of the City of Toledo, and President of the Council of the City of Toledo, to forthwith perform his duties as presiding officer of Council, as required by law and the charter of said City of Toledo.” Thus far the prayer is to command him to pursue generally a course of conduct which the law and his oath require him to pursue, as distinguished from a specific act enjoined by law to be performed.

The prayer continues, “to declare as such presiding officer that the rules of procedure voted upon at the meeting of Council on January 30th, 1922, were duly adopted.” The validity and potentiality of the rules adopted are not dependent upon a declaration of the vice-mayor, and it would be an idle thing for a court to require such declaration.

The prayer continues, “to recognize the standing committees elected under said rules and to refer to such standing committees the legislation referred to standing committees by Council.” This paragraph, like the first paragraph referred to, is not directed to a specific act, but is directed to the general course of conduct of the vice-mayor with reference to all committees, with reference to all subjects which may properly be considered by the various committees, and with reference to all time.

The prayer continues, “and not to interfere with the defendant clerk in the performance of his duties in referring legislation to such standing committees * * * and for all other proper and adequate relief. ’ ’ This paragraph of the prayer, like the others, applies to the general course of conduct rather than to any specific act, and while a court might well hold that the general course of conduct contended for by the relator, and which he seeks to have the plaintiff commanded to follow, is the course of conduct which the law requires, and, therefore, the course which the vice-mayor is in duty bound to pursue, yet a court will not employ the extraordinary writ of mandamus to supplant every other form of remedy, for if it be employed to compel the observance of law generally, the court would thereby constitute itself the public conscience, and all others would become its agents through which the court would, within the law, exercise its will. The function of a court is to render judgment in actual controversies between adverse litigants, to' command or restrain specific acts affecting existing rights of parties before the court, as distinguished from declaratory judgments affecting possible rights and potential controversies.

In a proper action a court would determine the title of a designated individual to membership upon a committee of council, and in a proper action, for the purpose of making the machinery of government function, a court would command the presiding officer of council to submit a report of a committee to the council, or to refer a measure of council to a committee, but a court does not administer justice wholesale. It confines its activities to the determination of cases where an issue is made and the proper parties are before it. It will not determine in one suit the titles of many claimants for many positions upon many committees of council, but will confine itself to the determination of the title of contending claimants for the same position, and its determination in that respect becomes a precedent only for the determination of the title of other claimants to similar positions, and a court will not determine titles to positions without having the contending claimants before it, and will not do by indirection that which it will not do directly; will not by the extraordinary writ of mandamus command the presiding officer of a council to recognize certain claimants en masse for membership upon committees and thereby oust other claimants en masse, for, while the title of each to membership of his especial committee is like that of each of the others, deriving title from the same source, they would not all be properly joinable in the same action.

The petition seeking the court’s regulation of the general course of conduct of the vice-mayor, as distinguished from the regulation of definite specific acts specially enjoined by law to be performed, does not make a case for the issuance of the writ of mandamus.

The judgment of the court of appeals will be reversed.

Judgment reversed.

Marshall, C. J., Johnson, Hough, Jones and Matthias, JJ., concur.

Wanamaker, J., dissents.  