
    The State, ex rel. Keville, v. Faurot et al., City Commission of Lima.
    
      (Decided January 14, 1933.)
    
      Mr. B. F. Welty, Mr. F. W. Durbin, Mr. John F. Emans, Mr. Carl BlanJc and Mr. Robert F. Jones, for relator.
    
      Mr. Melvin C. Light, Mr. Elmer Welty and Mr. John W. Roby, for respondents.
   Klinger, J.

This is a proceeding in mandamus to compel members of the city commission of the city of Lima, Ohio, to do the following:

(1) Pass an ordinance to record the result of the election on a city charter, held November 8, 1932.

(2) Pass an ordinance showing a record of the votes cast at the election to amend the city charter of the city of Lima, Ohio, held November 8, 1932.

(3) Declare that the charter adopted November 2, 1920, by the city of Lima, Ohio, was repealed.

(4) Declare that the charter approved by the electors on November 8, 1932, is a valid charter of the city of Lima, Ohio, and record said charter in a suitable book for reference and information.

(5) Authorize the clerk of the city of Lima, Ohio, to send a copy of said charter so adopted by the electors of the city of Lima, Ohio, November 8, 1932, to the secretary of state, as provided by Section 9 of Article XVIII of the Constitution of Ohio.

(6) Pass an ordinance to call for the election of a mayor, auditor, city solicitor of Lima, Ohio, as provided by the charter adopted November 8, 1932, and the laws of Ohio.

(7) Pass an ordinance to divide the city of Lima, Ohio, into wards upon the basis of one ward for each seven thousand population or major portion thereof, as provided by the charter adopted November 8,1932, and the laws of Ohio.

(8) Repeal an ordinance passed November 12, 1932, by the city commission dividing the city of Lima, Ohio, into wards, because it is illegal.

(9) Pass an ordinance to fix the salaries of the mayor, city solicitor, and auditor, and of the defendant city commissioners as the legislative authority of the city of Lima, until their successors are elected and qualified in accordance with the provisions of the charter adopted by the electors of the city of Lima, Ohio, on November 8, 1932.

This action is instituted by John P. Keville, as a taxpayer, on behalf of the city of Lima, Ohio, by favor of Section 4314 of the General Code of Ohio, for the reason that the city solicitor of Lima, Ohio, refused, and still refuses, to bring a suit.

In the answer, the defendants admit their capacity as members of the city commission of the city of Lima, Ohio, and aver that on the 13th day of June, 1932, the petition to amend the charter of the city of Lima, Ohio, as referred to in the petition, together with original copies, some eighty-one in number, were placed on file by order of said city commission, and that the same since that date have been, and continue to be, a part of the permanent record and files of the city of Lima, Ohio. Defendants further aver that on or about the 25th of July, 1932, said city commission, by ordinance, which was immediately thereafter certified to the deputy state board of elections of Allen county, Ohio, caused said proposition to be submitted to the electors of said city, and that said election was duly proclaimed and held, and that thereafter said deputy state board of elections duly certified to the city of Lima the result of said election; that said ordinance and certificate of the board of elections was placed on file and ever since has been and will continue to be a part of the permanent records of the city of Lima, Ohio, and the same will be and continue to be at all reasonable times open for public examination and inspection; and defendants further aver that the deputy state board of elections transmitted a duly certified copy of said amendment tó the secretary of state of Ohio, as provided by Section 9 of Article XVIII of the Constitution of Ohio.

Defendants admit that a majority of the electors voting cast their ballots in favor of the adoption of said amendment, and that thereby the charter referred to in the petition as having been adopted in 1920 was repealed, and that since the 14th day of November, 1932, all of the officers of the city of Lima, Ohio, have continued in office and administered the affairs of the city in accordance with, and by virtue of, the amendment adopted on November 8, 1932, and will so continue to administer tbe government and business affairs of tbe city.

Tbe defendants aver that there is pending in the court of common pleas of Allen county, Ohio, an action filed prior to December 27, 1932, which was the date when this action was commenced, praying for an injunction enjoining the defendants in this action, and also the city manager, city solicitor and city auditor, from drawing salaries in excess of those fixed by the charter adopted November 8, 1932.

The defendants admit that they, on the 12th of November, 1932, passed an ordinance dividing the city of Lima into six wards, and that each of said wards contains approximately seven thousand of the population.

The defendants deny that the charter adopted November 8, 1932, the law, or the Constitution, authorizes or permits the holding of an election for mayor, auditor, city solicitor, and members of the council, except on the first Tuesday after the first Monday in November in odd-numbered years, and that there is no provision of any kind or character for a special election.

In 1920 the voters of the city of Lima adopted a charter under the Constitution of Ohio, designated as the commission-manager plan. All of the present city commissioners and other officers were elected or appointed under the authority provided by the charter of 1920.

In November, 1932, the voters of the city of Lima, by referendum petition, amended the charter of 1920, and in this charter, as amended, they seek to change the form of government of the city of Lima. Among other things, they seek to abolish the position of city manager, and the positions of the city commissioners, and to provide for the election of a city council, mayor and other city officials. This amended charter, to-getter with, the Constitution and statutes of Ohio, is now the law and authority for the operation of the affairs of the city of Lima.

The amended charter, as adopted, provides in Section 131 that the provisions of this charter shall he in effect for all purposes on the first Monday following the approval by the electors.

Section 125 of the amended charter provides that all persons holding office at the time this charter goes into effect shall continue in office and in the performance of their duties until provision shall have been otherwise made, in accordance with- the provisions of this charter, for the performance of the duties of or the discontinuance of any such office.

The amended charter adopted November 8, 1932, in fixing the salaries for the different officials of the city of Lima, made a very substantial reduction in the salaries allowed the officials under the old charter.

The relator seeks by this proceeding to compel the city commissioners of the city of Lima to forthwith put into operation the new charter in every particular.

The first proposition requested is that the commission pass an ordinance to record the result of the election held on November 8,1932. No authority was cited by counsel on either side directing that the city officials do anything more than was done by them, inasmuch as they did file the petition and all the other papers; and no special provision is made, at least none was cited to the court, requiring that the same be recorded, or that an ordinance must be passed showing the record of the vote cast.

The second and third propositions requested — that the commission pass an ordinance showing a record of the votes cast at the election to amend the charter held November 8, 1932, and declaring that the charter adopted November 2, 1920, by the city of Lima, Ohio, was repealed — are vain requests. They answer no purpose and are not such functions that the extraordinary legal remedy of mandamus may be resorted to.

As to the fourth proposition, that the commission declare that the charter approved by the electors on November 8, 1932, is a valid charter of the city of Lima, Ohio, and record said charter in a suitable book for reference and information, it may be said that there is no authority demanding that they keep the charter recorded in a suitable book for reference and information.

The fifth request has been complied with. The result of the election was certified to the secretary of state by both the board of elections and the city commission. In the opinion of this court, however, it was not necessary for the city commission to certify or send a copy to the secretary of state, but under Section 9 of Article XVIII of the Constitution of Ohio, it was the duty of the board of elections.

The sixth request, that the commission pass an ordinance to call for the election of a mayor, auditor, city solicitor, as provided by the charter adopted November 8, 1932, and the laws of Ohio, it may be said that there is no provision in the new charter adopted in 1932, or in the Constitution' or statutes, requiring a special election for the nomination and election of officers on the adoption of the charter. Hence there is no authority by which this court could command performance of a duty that is not specifically provided for by the Constitution, the statutes or the charter.

In the seventh request the relator asks that this court compel the city commission to pass an ordinance to divide the city into wards, as provided by the charter adopted November 8, 1932, and the laws of Ohio (see Section 4212, General Code).

Judges Crow and Kinder are of the opinion that the ordinance adopted by the city commission, dividing the city into six wards, is without authority and null and void, under Section 25 of the amended charter, inasmuch as that section clearly continues the existing districting until the council to be elected under the amended charter shall have taken that step. Such is the finding of the court on that point. Judge Kli'ngee does not concur in this conclusion.

The city commission did cause the city to be divided into six wards. If they were required, under the statute and charter to do this at that time, they have done the very thing that the relator seeks the aid of this court to compel them to do. The mere fact that in doing this work they made the division differently than this court or the relator might do does not warrant interference on the part of the court by this extraordinary legal remedy.

Mandamus is an extraordinary legal remedy and is not available where the statute, Constitution and municipal charter provide ways and means to secure the relief or prevent the wrongs contemplated. The mere fact that a public official in the doing of an official act does it differently than desired by the people interested does not warrant the court in exercising its authority of mandamus.

In the eighth proposition, the relator asks that the city commission be directed to repeal an ordinance passed November 12, 1932, dividing the city into wards, because it is illegal. This would be exercising an extraordinary legal remedy for a purpose not contemplated under our Constitution and laws. We know of no authority to compel, by mandamus, a council or commission to repeal an ordinance because it is illegal.

The ninth request is that the commission pass an ordinance to fix the salaries in accordance with the provisions of the charter adopted by the electors of the city of Lima on November 8, 1932, until their successors are elected and qualified. As stated before, the new charter specifically provides that the officers shall continue to hold their respective offices, and function until the new order is inaugurated and established. The court would he without authority to compel the city commission to fix different compensation for the same kind of services performed during the interim— until a new set of officers is elected and qualified as provided in the new charter — than was allowed before the election adopting the new charter.

The matter of salaries is the subject of another suit now pending in the court of common pleas of Allen county, Ohio, which was commenced before the instant case was filed, which, under all the decisions in Ohio, prevents this court from adjudicating the same question. Moreover, the petition of relator herein sets forth that the salaries were- fixed by an ordinance of the city commission prior to the adoption of the amended charter, and Section 124 of the amended charter provides that all ordinances in force at the time of the taking effect of the amended charter, not inconsistent with its provisions, shall continue in full force and effect until amended or repealed.

In addition to the Constitution, statutes, and city charter, heretofore referred to, we cite the following cases in support of the conclusions herein given: State, ex rel., v. Campbell, 48 Ohio St., 435, 27 N. E., 884; State, ex rel. Hinchliffe, v. Gibbons, 116 Ohio St., 390, 156 N. E., 455; State, ex rel. Cist, v. City of Cincinnati, 101 Ohio St., 354, 129 N. E., 595; State, ex rel. Cope, v. Cooper, Governor, 121 Ohio St., 519, 169 N. E., 701; State, ex rel. Barner, v. Marsh, Clerk, 121 Ohio St., 477, 169 N. E., 564; State, ex rel. Fiore, v. Indus. Comm., 121 Ohio St., 611, 172 N. E., 373; State, ex rel. City of Bucyrus, v. Indus. Comm., 121 Ohio St., 504, 169 N. E., 568; State, ex rel. Kauffman, v. Indus. Comm., 121 Ohio St., 472, 169 N. E., 572; State, ex rel. Auflick, v. Indus. Comm., 121 Ohio St., 352, 168 N. E., 841; State, ex rel. Copeland, v. State Medical Board, 107 Ohio St., 20, 140 N. E., 660; State v. Kuhner & King, Partners, 107 Ohio St., 406, 140 N. E., 344.

Section 4316, General Code, requires that in a case like this the.taxpayer shall be allowed his costs when the court is satisfied that he had good cause to believe his allegations were well-founded; nothing appeared at any place in this case to suggest that the taxpayer did not bring this suit in good faith and it must be presumed that he did so act. Hence the costs are adjudged against respondents, but the judgment not being in favor of the taxpayer no compensation for his attorneys is allowed.

For the foregoing reasons, the prayer of the relator for a peremptory writ will be denied, at costs of the respondents.

Writ denied.

Crow and Kinder, JJ., concur.  