
    The State, ex rel. The Commercial Investors Corp., v. Zangerle, County Aud.
    (Decided June 27, 1932.)
    
      Mr. Max P. Goodman, Mr. Max Efros and Messrs. Boyd, Brooks S Wickham, for relator.
    
      Mr. P. L. A. Lieghley, for defendant.
   Vickery, J.

This case was heard in this court as an original action for a writ of mandamus against the auditor of Cuyahoga county, John A. Zangerle, to compel him to issue a voucher for $139,590.

The petition in mandamus having set up all the allegations that were necessary to warrant the issuance of said writ, an alternative writ was issued by this court, and the county auditor was then served and notified to appear and show cause why said writ of mandamus should not be permanently allowed. Whereupon he filed an answer which set up what this court thinks to 'be a sufficient defense, if true. Whereupon an amended petition was filed which set up some additional facts, and the answer, not being changed, was refiled so as to apply to the amended petition; and, inasmuch as the issue thus raised brought the truth or falsity of some facts into question, which required either an agreed statement of facts or some evidence, the parties agreed upon a statement of facts and a stipulation, upon which, together with the pleadings and arguments of counsel, the case was submitted to this court.

From all these sources we learn that Chester avenue is one of the streets within the city of Cleveland, and that it was desired by the city of Cleveland to extend said street from Eighty-ninth street to Ninety-seventh street by opening up the territory between Eighty-ninth and Ninety-seventh streets. This property was occupied by various buildings, seventeen parcels of which it was necessary to acquire before the street could be extended. By an arrangement between the city of Cleveland and the county commissioners of said county it was agreed as to how the expense of putting said street through should be borne. By virtue of said agreement, the county commissioners apparently agreed to make said street a county highway, and to assume a portion of the expenses, and, so far as it appears, every step was taken regularly to comply with what was regarded to be the law in connection with the maldng of a city street into a county highway. So far as it appears, everything was regular and in accordance with the statutes of the state in such matters provided.

One of the buildings in the line of this proposed improvements was an apartment house owned by the relator company, consisting of 29 suites contained in a brick structure three stories high. It faced East Ninety-third street, stood on a lot 50 feet in width, and extended backward from Ninety-third street about 200 feet. Before any action was taken by the county commissioners, this property was appraised by three disinterested appraisers at about $131,000, and the owner of the property, the relator herein, asked $175,000 for said property. However, relator was finally prevailed upon by the county commissioners to accept $139,590, which the county commissioners agreed to pay.

Subsequently a deed was made and tendered to the agent for the county commissioners, and a resolution was passed by the board of county commissioners authorizing County Auditor John A. Zangerle to draw a voucher on the county treasurer for the amount of money named therein.

It further appears that there was money in the county treasury appropriated by the budget commission for this purpose, amounting to more than the sum called for by the voucher. But, before this voucher could be paid, as shown by the record, a taxpayer’s suit was brought, enjoining the county commissioners and the county auditor from further proceeding with this work, and especially enjoining the county auditor from issuing and delivering this voucher. Whereupon the county commissioners, by resolution, directed the county auditor to withhold the drawing and delivering of this voucher until after the proceeding had been disposed of, which proceeding was an injunction suit brought in the court of common pleas, which is a court of general jurisdiction with authority to hear such matters, and had jurisdiction over the subject-matter and over the county auditor and the other parties that were made defendants in said action. And thereafter this action in mandamus was brought in this court.

The county auditor, acting under the instructions of the county commissioners, refused to issue said warrant for $139,590, or any part thereof, for the reason that a suit was pending in which he was enjoined from so doing.

This is the status of the case that is presented to this court, asking the court by a writ of mandamus to compel the county auditor to issue the warrant, in the face of an injunction suit against him to test the validity of the whole proceedings in a court of competent jurisdiction.

The writer of this opinion expresses some doubt as to whether the county commissioners have a right to aid in the extension of a city street, wholly within the city limits, over which no bridge or other structure which is to be kept up by the county is involved, and thus compel the taxpayers of the whole county to bear a portion of the expense that should more properly be borne by the city which wishes to extend its streets. If such a thing were possible, and it is not necessary to say in this action whether it is, the writer of this opinion can see no reason why, by agreement between the county commissioners and the authorities of the municipality, the taxpayers of the entire county could not be made to bear the expense of the widening and the opening and improvement of streets wholly and entirely within the city. Whether this can be done or not is not now necessary to decide, for it is settled upon well-recognized authority that a writ of mandamus should not be issued by any court against a person unless the duty to perform the act is clear and unequivocal ; and, if the writ could be lawfully issued, the party against whom the writ is directed would have the legal right, and it would be his duty, to issue the warrant without such writ.

Now applying that doctrine, can anybody say that the county auditor would be warranted in issuing a voucher for such a large sum of money as is called for in this lawsuit, $139,590, or for any sum for that matter, in the face of an injunction ordering him not to draw said voucher, and that injunction issued by a court of competent jurisdiction having authority to issue said writ of injunction?

While in this case there was no temporary restraining order granted, yet that does not change the legal aspect of the case. If in spite of a temporary restraining order the auditor should issue the voucher, he would be liable for contempt of court; no restraining order having been issued, he would not be liable for contempt of court in drawing a voucher. But if, in the face of an injunction suit being filed and service being made upon him, he does what it is sought to restrain him from doing by a writ of injunction, treating it as a nullity, and nevertheless goes on in spite of it, and issues what it is sought to restrain him from doing, and if, thereafter, the court should hold that the proceedings were illegal, or that the voucher or warrant for the money should not have been issued, or was wrongfully issued, then undoubtedly the county auditor would be liable on his bond for the wrongful issuance of said warrant; and, notwithstanding the county prosecutor and the director of law refused to bring such suit, while it might be indicative of the fact that they did not think the suit was well planted, yet he is a bold man indeed who will undertake to prophesy what the decision of the court will be upon any proposition of law; and if, as in the present instance, the suit was brought by a reputable and high-class lawyer, and he should be successful and win the lawsuit and have it sustained by the court of last resort in the state, and this building had been paid for and the v oucher issued, the relator would get the money of the taxpayers of the county, and the city or county would have upon its hands an apartment house without any use for it whatever; and, in the event the auditor paid it without an order of court, he would clearly be liable upon his bond for the amount of money thus wrongfully paid out in the face of a suit seeldng to enjoin him from paying it.

How anybody can say, in view of that situation, that the1 duty of the county auditor was clear and unequivocal to pay this money is more than I can understand. If, however, he paid it out under a writ of mandamus from a higher court, if the higher court had any authority to issue the writ under the present circumstances, he probably would be absolved from blame, and the public taxpayers would lose the sum of $139,-590, without any redress against anybody, inasmuch as one cannot hold a judge or court for a wrongful decision.

It is argued, however, in this case, that the failure of the county prosecutor, and apparently of the law director of the city of Cleveland, to bring this suit, or their refusal to bring it, is tantamount to an admission that the injunction suit is not well founded, and that this court should compel the person to come into this court, or compel the prosecutor to set forth in this court the real reasons upon which this suit below is predicated. In other words, it is sought to have this court, which has in injunction matters only appellate or error jurisdiction, ignore the powers and duties of the court below and assume original jurisdiction in this court and try out the case as to whether the taxpayer’s suit is well planted in the court below.

"We do not understand that this court has any such power or that it is the duty of this court so to hold.

It is a well-settled doctrine in this state and other states that the court which assumes jurisdiction in the first instance is the court in which the rights must be litigated. In the present case, the injunction sought in the common pleas court was filed before the mandamus suit in this court, and the party who desires this writ of mandamus to issue and to be made perpetual, if not made a party in that case, has the right to go into that court and be made a party, and then he can contest the right of the taxpayer to win the injunction suit; and, if he is successful, the auditor would undoubtedly issue the warrant as he should do without any further action on the part of any court, unless the judgment of the court is appealed, and then not until that judgment is finally disposed of would the auditor be safe in drawing a voucher and handing it to the party who seeks the writ.

In the course of argument and in the briefs two cases have been cited to us: One, a decision of common pleas Judge Stephenson, then of the common pleas court and now of the Supreme Court of Ohio, reported in 28 O. D. (N. P.), 307, 20 N. P. (N. S.), 233, entitled State, ex rel. Lowe, v. Wilson, Treasurer of Brown County. An examination of that case will show that Judge Stephenson refused the writ, but it is argued that he refused the writ because the Court of Appeals decided a question which was not before it, which indicated that the party bringing the injunction suit had good grounds for bringing it. Inasmuch as that question was not before the Court of Appeals, we think that was nothing but dicta, and was binding upon nobody, and consequently the decision of Judge Stephenson in the 20 Nisi Prius Case is not authority for the proposition that is laid down in this case.

The other case that was cited was State, ex rel. Manix, v. Auditor of Darke County, 43 Ohio St., 311, 1 N. E., 209, but an analysis of that case will clearly show that there are at least two things in said case which totally changed the aspect of that ease from the instant case. In other words, the cases are not parallel and are no authority for this case.

Taking the whole record into consideration, this court can come to no other conclusion than that the answer of the auditor sets up a complete defense, that said answer is supported by the evidence in this case, and that at least at the present stage of the litigation the relator is not entitled to a permanent writ of mandamus. We can come to no other conclusion, therefore, than that the petition must be dismissed at the costs of the relator.

Petition dismissed.

Levine, P. J., and Weygandt, J., concur.  