
    The State, ex rel. The Commercial Investors Corporation, v. Curry et al.
    (Decided October 22, 1934.)
    
      Messrs. Boyd, Brooks & Wickham, for plaintiff in error.
    
      Mr. Frank T. Cullitan and Mr. Henry 8. Brainard, for defendants in error.
   Lemert, J.

This is a proceeding in error to reverse the judgment of the Common Pleas Court of Cuyahoga county in dismissing, on the pleadings and opening statement, a petition for a writ of mandamus against the County Commissioners and County Auditor. The petition in this case is quite lengthy, and it is not our purpose or intention to go into a lengthy discussion' of the proceedings in the court below, but to briefly state the matter before us for consideration. Suffice it to say that the Board of County Commissioners of Cuyahoga county in 1931 and 1932 took the appropriate proceedings under Section 6860, General Code, to establish a county road, and to acquire for this road certain property including a large apartment house and its site on East 93rd Street, Cleveland, Ohio, owned by the relator, The Commercial Investors Corporation. In May, 1932, the commissioners made an award of $139,590 to the relator for the property, the relator tendered the County Commissioners a deed therefor, and a warrant was directed to be drawn upon the County Auditor for the payment of the award. However, relator has the title, and has continued in uninterrupted possession and control of the property.

After this direction, but before the warrant was issued, a taxpayer’s action was brought in the Common Pleas Court, attacking the validity of the commissioners ’ proceedings in establishing the road and the propriety of paying the award to relator. The commissioners requested the auditor to withhold issuance of the warrant pending the disposition of the suit, and the auditor refused to issue the warrant. The relator, The Commercial Investors Corporation, believing itself entitled to have the warrant issued, brought an action in mandamus in the Court of Appeals of Cuyahoga county. That court denied the writ (State, ex rel. The Commercial Investors Corp., v. Zangerle, County Aud., 44 Ohio App., 65, 184 N. E., 32) and the Supreme Court on error affirmed the judgment of the Court of Appeals (126 Ohio St., 247, 185 N. E., 69).

Following the Supreme Court’s decision, the relator intervened in the taxpayer’s action, and that action came on for trial and was decided against the taxpayer in the Common Pleas Court. After the expiration of the time for appeal or error proceedings, relator again applied to the auditor and the commissioners for payment of its award, and payment was again refused. By this time the money set aside to pay the award had been transferred to another fund, and spent. Thereupon the relator commenced the present action in the Common Pleas Court to compel the commissioners and auditor to provide funds and issue the warrant for the award. On this showing the Common Pleas Court dismissed the petition, and plaintiff in error is herein contending, first, that the commissioners were without authority in law to rescind the award, and, second, that the relator has been entitled to the payment of the award since the termination of the taxpayer’s suit.

The real estate or property in question in this case was one of a total number of properties, seventeen in number, extending from East 97th street to East 89th street, city of Cleveland, the relator’s property being situated on East 93rd street.

An examination of the statutes governing the rights and duties of County Commissioners, in connection with the statutory provisions permitting the County Commissioners to abandon an improvement, and those prohibiting them from paying for one parcel until all are secured, is to recognize the wisdom of such legislative requirement that the county shall determine the cost of the entire project without incurring liability for single parcels before finally determining whether it will proceed with the improvement. Surely the declared public policy with respect to such improvements is clear that the county shall not take or be required to take parcels which have no utility except in connection with a complete project. Section 6869, General Code, specifically provides that no property shall be taken, however, until all compensation and damages are paid or the amount allowed is deposited with the court. Since there was no payment, and no deposit, it must be conceded that the statute absolutely prohibits the taking and paying for a separate parcel.

Keeping in mind that the instant action is one in mandamus, the granting of a writ of mandamus is always discretionary with the court and may be denied even though there might be a legal right to the writ. This principle applies with much greater force when the granting of the writ would be detrimental to the public interests. The discretion which a court may exercise in such cases is not an arbitrary discretion, but a judicial or legal one, to be exercised on established principles and in accordance with well settled rules of law, and where under these rules a clear right to the issuance is shown it is an abuse of discretion for the court to deny the application of the writ, but the court, in the exercise of its discretion, may and should take into consideration a wide variety of circumstances in determining whether the writ should issue. In such cases the interest of the general public would be considered in determining whether the writ should issue, and the writ may be refused where such interest would be injuriously affected.

We are of the opinion that the plaintiff in this case has misconceived its remedy, if it has any, and if it has any remedy it would be in an action for damages for breach of contract.

In the case of State, ex rel. Bradley, v. Board of Commissioners of Cuyahoga County, 128 Ohio St., 181, 190 N. E., 571, the Supreme Court in the second paragraph of the syllabus said: “Mandamus will not lie to compel the county authorities to pay the amount agreed upon for the purchase of land and for damages where the County Commissioners refuse to proceed with the contract and the injuries for which the damages were to be paid have only partly accrued. In such case the remedy is in damages for breach of contract.”

We are of the opinion that an award such as was made in the instant case is not an offer which may be ripened into a contract by acceptance, but merely constitutes the amount which the county is willing to pay when and if the improvement is to be completed; that a road-opening proceeding involves one complete project rather than the acquiring of separate parcels of land, and that the County Commissioners are prohibited from acquiring or paying for separate parcels of land, and may not pay for any of such property until all necessary parcels may be secured at an aggregate price satisfactory to the County Commissioners. We believe it to be in harmony with a sound public policy that all legal questions as to the right to establish a road, and all questions as to the aggregate cost of the property needed for the entire improvement, be determined before the county pays for or incurs an obligation to take any property involved in the proposed project, and that the net effect of all these provisions is to demonstrate clearly that the making of the award is one of the special steps in the appropriation proceedings, and in the determination of the cost of the project, and that the acceptance of said award does not create a binding contract but is only an expression of satisfaction that the amount be paid if the improvement goes forward.

We are, therefore, of the opinion that the granting of a writ herein would be in direct violation of the statutes governing this case. It, therefore, follows that the action of the trial court in granting defendant’s motion, and in dismissing the petition and entering judgment for the respondents, should be and the same is hereby affirmed.

Judgment affirmed.

Richards and Montgomery, JJ., concur.

(Lemert and Montgomery, JJ., of the Fifth Appellate District, and Richards, J., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.)  