Opinion
No. 29048
Decided April 28, 1943.
Mandamus — Necessary to show affirmatively no plain and adequate remedy available — Writ not issued where prior pending actions involve subject matter, when — Or where temporary restraining orders prohibit parties from doing acts.
1. To entitle relator to a writ of mandamus, the record must disclose affirmatively that there is no plain and adequate remedy in the ordinary course of the law; in the absence of such showing the writ will be denied. ( State, ex rel. Cope, v. Cooper, Gov., 121 Ohio St. 519, approved and followed.)
2. Where prior actions, to which relator could be made a party and which involve the same subject matter as the instant action, are pending in another court having jurisdiction to grant full and adequate relief to all parties, a writ of mandamus will not be granted during the pendency of such prior actions.
3. Where a court of competent jurisdiction has granted temporary restraining orders prohibiting parties from doing certain specified acts, a writ of mandamus will not issue to compel the doing of such prohibited acts during such time as the restraining orders remain in full force and effect. ( Ohio Indiana Rd. Co. v. Commissioners of Wyandot County, 7 Ohio St. 278, approved and followed.)
IN MANDAMUS.
This is an action in mandamus originating in this court.
It is alleged in the petition, in substance, that relator is a corporation organized and existing under the laws of the United States of America with its principal place of business in the village of North Baltimore, Wood county, Ohio; that respondent, the village of Botkins, is a municipal corporation in Shelby county; that respondents, J.H.M. Schurr, Walter Snyder and L.J. Behrns, are respectively the duly elected, qualified and acting, mayor, clerk and treasurer of the village; that respondents, G.W. Bush, M.A. Wiest, Harry Wahler, A.C. Schafer, U.T. Kennedy and Ralph Taylor are the duly elected, qualified and acting members of council of the village; that respondents, Arthur F.R. Billings, Ed.F. Salm and Rodney Blake are respectively the duly elected, qualified and acting auditor, treasurer and prosecuting attorney of Shelby county, and as such constitute the budget commission of such county; that relator is the bona fide owner and holder of 14 negotiable anticipatory notes of $1,000 each, dated November 15, 1940, and due and payable on May 15, 1941, bearing interest at the rate of 4% per annum until paid, and payable at the office of the treasurer of the respondent village; that the notes are past due and unpaid although demand has been made by relator for the payment thereof; that on September 30, 1938, a special election was held upon the question of the issuance of bonds of the village of Botkins in the sum of $14,000 for the purpose of constructing or acquiring waterworks for supplying water to such village and the inhabitants thereof; that more than 65% of the persons voting at such special election voted in the affirmative; and that thereafter the council of the village duly and legally authorized the issuance of a series of general obligation bonds of the village.
It is further alleged in the petition that in anticipation of the issuance of such bonds, the notes here in question were issued by virtue of ordinance No. 300 passed by the village council, were sold to Granberry Company, and a day or two later were purchased by relator; that all of the acts were done pursuant to and in full compliance with the Constitution and laws of Ohio; that the assessed valuation of all taxable property in the village is approximately $366,500; that the tax rate for the year 1941 for said village is as follows (in mills):
Village Township School District County Total
4.90 .80 5.70 3.10 14.50;
that the respondent village and its officers and the budget commission of Shelby county have declared that no provision for debt and interest charges on such notes will be made unless they are ordered so to do by a court of competent jurisdiction; that they have failed and refused to issue and sign the bonds in anticipation of the sale of which the notes were issued; that relator is without legal or other remedy to secure payment of the notes and interest except by writ of mandamus; and that the village has no property subject to levy and sale on execution.
The prayer of the petition is that this court by writ of mandamus require the respondents and each of them to do all and singular the acts necessary to issue the bonds, levy and collect the taxes to retire such bonds at maturity and to pay the relator the notes and interest thereon.
Three separate answers have been filed which will be noted according to the date of filing in this court.
The answer of the village of Botkins and its officers, including the mayor, clerk, treasurer and council, admits most of the material facts alleged in the petition; alleges as a first defense that on February 11, 1941, Herbert Wical, a taxpayer, filed suit in the Court of Common Pleas of Shelby county, No. 12247 on the docket of that court, against the then mayor, the then clerk and the then council of such village, which action is still pending, wherein Wical sought to enjoin the officers of the village from issuing or selling the $14,000 par value of general obligation waterworks bonds, which are the same bonds referred to in relator's petition; and denies all other allegations made in the petition.
By way of a second defense it is alleged that on February 14, 1942, Herbert Wical, a taxpayer of the village of Botkins, brought an action in the Court of Common Pleas, No. 12394 on the docket of that court, against the clerk and treasurer of the village of Botkins, which case is still pending, and obtained a temporary restraining order against the clerk enjoining him from preparing any vouchers and enjoining the treasurer from withdrawing any funds or issuing any checks against funds of the village for the purpose of paying any part or all of the $14,000 par value anticipatory notes as provided in ordinance No. 300; and that the temporary restraining order is still in force. The prayer of this answer is that relator's petition be dismissed.
The second answer, filed by A.C. Schafer, U.T. Kennedy and Ralph Taylor, individually and as councilmen of the village, after admitting that the notes in question were issued by the village and that relator is the holder of all such notes, alleges that the village was paid for such notes and the waterworks system has been completed and is now in operation; that Herbert Wical filed three suits in the Common Pleas Court of Shelby county, one on February 11, 1941, No. 12247; one on November 24, 1941, No. 12357, and one on February 14, 1942, No. 12394; that all of such suits were filed subsequent to the issuance and delivery of relator's notes; and that relator is not a party to any of such suits. This answer prays that the relief sought by relator be granted.
The third answer is filed by Arthur F.R. Billings, Ed.F. Salm and Rodney Blake, as the budget commission of Shelby county, Ohio, setting forth the filing on November 21, 1941, of cause No. 12357 in the Common Pleas Court of Shelby county against these three answering respondents, alleges that a temporary restraining order was issued against the budget commission enjoining it from certifying any tax levy for the payment of principal and interest of and on such anticipatory notes, and that that order is still in full force and effect. This answer prays for instructions.
The replies admit the filing and pendency of cases Nos. 12247, 12357 and 12394, admit the granting of the temporary restraining orders and allege that relator was never made a party to any of the suits filed in the Court of Common Pleas of Shelby county; that it was informed and believes that the notes described were issued, sold and delivered to Granberry Company, and that such notes were purchased, paid for and delivered to relator on January 10, 1941, prior to the filing of any of such actions; and that the actions were not brought in good faith.
On September 23, 1942, three of the respondent councilmen of the village of Botkins, to wit, G.W. Bush, M.A. Wiest and Harry Wahler, filed a motion to dismiss the relator's petition upon four grounds set forth therein, which motion was overruled on October 28, 1942.
Testimony was offered by deposition to support the claims of the respective parties, which it is unnecessary to review for the reason that there is no real dispute as to the facts.
Mr. Kenneth Adams, for relator.
Mr. Leo M. Winget and Mr. H.E. Beery, for the village of Botkins, J.H.M. Schurr, V.H. Blanke, L.J. Behrns, respectively mayor, clerk and treasurer of the village, and G.W. Bush, M.A. Weist, Harry Wahler, A.C. Schafer, U.T. Kennedy and Ralph Taylor, individually and as members of council of the village of Botkins.
Mr. Frank H. Marshall, for A.C. Schafer, U.T. Kennedy and Ralph Taylor, individually and as members of the council of the village of Botkins.
Mr. Rodney R. Blake, for Arthur F.R. Billings, Ed. F. Salm and Rodney Blake, as the budget commission of Shelby county.
Counsel in their briefs and in oral argument have discussed many questions of fact and law. We think that the record presents a three-fold barrier to relator's right to the relief for which it prays.
First. Has the relator a plain and adequate remedy at law?
The record makes abundantly clear without contradiction that relator is the owner and holder of 14 anticipatory notes of $1,000 each, dated November 15, 1940, due and payable on May 15, 1941, bearing interest at the rate of 4% per annum until paid, and that the notes are past due and unpaid.
Relator has filed no action to recover upon the notes but has been content to rely upon this allegation in its petition: "Relator further alleges that it is without legal or other remedy to secure payment of said notes and the interest due and past due thereon, except by writ of mandamus as hereinafter prayed for; that said village has no property subject to levy and sale on execution * * *."
This allegation is denied by the answer of the village.
The burden of proof upon this disputed question of fact was upon the relator and it offered no evidence to sustain that claim.
Property held by a municipality in its proprietary capacity, as distinguished from its governmental capacity, is subject to levy and sale after judgment. The record discloses that respondent, the village of Botkins, does own property in its proprietary capacity.
The record further discloses that in the Court of Common Pleas of Shelby county there is an action pending to determine the legality of relator's notes and relator has at no time made any attempt to be made a party to that cause. That court has full and complete jurisdiction to determine the legality of the relator's notes and, if appropriate pleadings be filed, to grant relator such relief as is justified under the facts and law.
The notes here in question were executed under and by virtue of Section 2293-25, General Code (which is a part of the Uniform Bond Act of the state of Ohio), in anticipation of the issuance and sale of bonds of the same par value as the notes, but this fact does not add to or detract from the relator's right to bring an action at law upon the notes after breach. The relator is interested in the issuance of the bonds only to the extent that the village use the proceeds to pay the relator's notes. If the notes were paid from any other source relator would have no interest in the issuance of the bonds.
Section 12287, General Code, reads in part as follows:
"The writ [mandamus] must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law. * * *"
In State, ex rel. Cope, v. Cooper, Gov., 121 Ohio St. 519, 169 N.E. 701, it is said (paragraph one of the syllabus):
"A writ of mandamus does not issue in virtue of any prerogative power, and in modern practice a proceeding in mandamus is an action at law in cases where it is the appropriate remedy, and where there is no plain and adequate remedy in the ordinary course of law."
State, ex rel. White, v. City of Cleveland, 132 Ohio St.) 111, 5 N.E.2d 331, holds:
"A writ of mandamus will not be issued except to command the performance of a specific duty enjoined by law, nor will it be issued where there is a plain and adequate remedy in the ordinary course of law."
Upon this state of the record we can not conclude that the relator is without a plain and adequate remedy at law. See State, ex rel. Timeus, v. Piper, 64 Ohio St. 595, 61 N.E. 1145; State, ex rel. Ballard, Solicitor, v. Harrison et al., Trustees, 81 Ohio St. 98, 90 N.E. 150; State, ex rel. Tax Comm., v. Mills, Aud., 103 Ohio St. 172, 132 N.E. 727; State, ex rel. Phelps, v. Gearhart, Supt. of Ins., 104 Ohio St. 422, 135 N.E. 606; State, ex rel. Domhoff Joyce Co., v. Harlan et al., Judges, 109 Ohio St. 634, 144 N.E. 610; State, ex rel. Bassichis, v. Zangerle, Aud., 126 Ohio St. 118, 184 N.E. 289.
Second. Where a prior action is pending involving the same subject matter in a court having jurisdiction a writ of mandamus by another court is barred unless it is plain that adequate relief is not obtainable in the prior case.
The record discloses that Herbert Wical, a taxpayer of the village of Botkins, filed three suits in the Common Pleas Court of Shelby county, which three suits are still pending on the docket of that court. The first, No. 12247, was filed on February 11, 1941, against the then mayor, the then clerk, and the then council of the village. The prayer of the petition was for an injunction against the defendants issuing, selling or delivering $14,000 par value general obligation waterworks bonds of the village. In anticipation of the sale of those bonds the relator's $14,000 par value notes were issued. The present officers have been made parties by an appropriate entry.
On November 21, 1941, the second action was filed, No. 12357, against Arthur F. R. Billings, Ed. F. Salm and Rodney Blake, respectively, the auditor, treasurer and prosecuting attorney of Shelby county, constituting the budget commission of that county, to enjoin the budget commission from certifying any tax for the payment of principal and interest of and on the anticipatory notes here in question.
On February 14, 1942, the third action was filed, No. 12394, against the clerk and treasurer of the village to onjoin them and each of them from doing any act with the view to withdrawing any of the funds of the village to pay any or all of the principal and interest upon the notes.
In case No. 12357 the court issued a temporary restraining order against the defendant, the budget commission of Shelby county, restraining it from doing the acts complained of during the pendency of the suit or until the further order of the court.
In case No. 12394 the court issued a temporary restraining order against the clerk and treasurer restraining them and each of them from doing any of the acts complained of during the pendency of the suit.
These three actions were still pending and undecided at the time of the filing of the relator's petition and the restraining orders were in full force and effect.
It is true that the relator is not a party to any of those actions. There is no reason, however, why relator could not apply to be made a party, and (if such application be granted) could set up every claim in those actions which has been set up in the petition for this writ.
In State, ex rel. Akron Coal Co., v. Board of Directors of Muskingum Watershed Conservancy District, 136 Ohio St. 485, 26 N.E.2d 766, it is said:
"Where a prior action is pending between the same litigants, involving the same subject matter, in a court having jurisdiction, a mandamus proceeding in another court is barred, unless it is plain that adequate relief is not obtainable in the prior case."
This rule has been held to apply to cases wherein the same subject matter was involved, even if the litigants were not the same. The relator, however, does allege in the petition that the actions in the Shelby county Court of Common Pleas were not brought in good faith, but no evidence was offered to support that claim and there is nothing in the record from which an inference of bad faith may be drawn.
The disposition of those three law suits will dispose of the questions here presented. There is no allegation in the relator's petition that the officers of the village and the budget commission of the county are not ready and willing to issue the bonds and to pay the relator's notes, the sole reason for their failure to act being the allowance of the restraining orders preventing them from so doing. We think, therefore, that the questions here presented can be fully tried and determined in the causes pending in the Court of Common Pleas of Shelby county. See State, ex rel. Commercial Investors Corp., v. Zangerle, Aud., 126 Ohio St. 247, 185 N.E. 69; 11 Ohio Jurisprudence, 727, Section 81; 38 Corpus Juris, 572, Section 451.
Third. This court will not issue a writ of mandamus to compel a party to do that which he is prohibited from doing by a subsisting restraining order.
As has been said, the Court of Common Pleas of Shelby county has issued a temporary restraining order against the budget commission of Shelby county restraining it from certifying any tax for the payment of the principal and interest of the notes owned and held by relator; and has restrained the village clerk and treasurer from doing any act with a view to withdrawing any funds from the treasury of the village to pay all or any part of the interest and principal of these notes.
By a long line of decisions this court has held that the courts of this state will not by a writ of mandamus compel a party to do that which he is prohibited from doing by a writ of injunction.
This court, in the case of Ohio Indiana Rd. Co. v. Commrs. of Wyandot County, 7 Ohio St. 278, held:
"The court will not, by mandamus, compel a party to do what, by a subsisting decree of injunction, he is prohibited from doing, although the party seeking the remedy by mandamus is not a party to the decree of injunction."
There has been no deviation from the rule pronounced in that case. See State, ex rel. Grant, v. Joint Board of County Commrs. of Wood and Hancock Counties, 106 Ohio St. 201, 140 N.E. 124; State, ex rel. Standard Oil Co., v. Harris, Bldg. Inspector, 109 Ohio St. 392, 141 N.E. 244; State, ex rel. Keville, v. Faurot et al., City Commrs., 126 Ohio St. 646, 186 N.E. 718.
We have not considered and express no opinion upon the other questions presented. Our conclusion is that the application for the writ should be denied and the petition dismissed.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, WILLIAMS and TURNER, JJ., concur.