
    STATE ex KERLIN v PETERS et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2596.
    Decided Nov 2, 1931
    Gorman, Kirkley>& O’Brien, Toledo, for plaintiff.
    Martin S. Dodd, Law Director, Toledo, for defendant.
   LLOYD, J.

On these facts, is the relator entitled to the writ prayed for? We think not. It seems to us that it can not be said that any obligation had been created on the part of the City of Toledo to purchase the real estate of which The Commercial Savings Bank & Trust Company holds the record title or that, even if the bonds had been issued and sold, any part of the sum realized therefrom would be applicable to the purchase of that particular property without further legislative action by the City Council. Unless a contract were made for the purchase of this particular parcel of real estate, which in the instant case admittedly was not, the Council reserved the privilege and discretion of subsequently determining what real estate was available and most suitable for the intended purpose as well as the right to repeal the ordinances or postpone the proceedings thereunder. The particular intended purpose of the proposed issuance of bonds was to acquire playgrounds, , but no obligation was created thereby to purchase for that purpose any particular parcel or parcels of real estate. Nor would a trespassing upon a particular piece of property by employes of the municipality at the request of the councilman of the ward where the premises are situated, or the cutting of weeds thereon or the unauthorized removal therefrom of railroad ties, create an obligation upon the part of the city which 'did not theretofore exist. The . amount required to consummate the purchase of the real estate held by th^ bank had not then been lawfully appropriated and was not in the treasury or in process of collection to the credit of the appropriate fund, and a certificate to that effect by the fiscal officer of the City of Toledo, which was necessary to validate any proposed contract involving the expenditure of money, was not and, of course, could not be made.

' No application of the proceeds of such bonds, if issued and sold, could be made without further legislative action by the council, and there is no evidence that any present urgent necessity exists for the establishment of further playgrounds in Toledo, or any need therefor, except as declared in the ordinance.

Mandamus is an extraordinary remedial process 'which is awarded not as a matter of right but in the exercise of a sound judicial discretion, its issuance being largely governed by equitable principles, and, although other reasons might be stated why, in the exercise of the discretion vested in the court the writ sought should not be granted, in our judgment those above given, not only warrant but require a denial thereof and the dismissal of the petition.

RICHARDS and WILLIAMS, JJ, concur.  