Opinion
No. 35560
Decided June 11, 1958.
Schools — Bond issue for construction and improvement of buildings — Ministerial duty of clerk of local district board of education — Mandamus — Not available to require performance.
IN MANDAMUS.
This action in mandamus was instituted in this court by the Board of Education of the Miami Trace Local School District, Fayette County, against Thompson, the clerk of that board. The petition alleges that relator adopted a resolution declaring the necessity of issuing bonds for the acquisition of real estate, construction of school buildings, improvement of school buildings and provision of furnishings therefor; to levy a tax outside the ten-mill limitation to pay interest on and retire the bonds; and to submit to the electors the question of issuing the bonds. The petition sets forth in chronological order the steps taken by relator, the county auditor and the county board of education to issue the bonds and alleges further the submission of the question to the electors, the favorable result thereof, the passage of the resolution by relator to issue the bonds, and the refusal of respondent Thompson to certify the resolution to the county auditor and to advertise the bonds for sale.
The prayer of the petition is for a writ commanding respondent Thompson to certify to the county auditor the resolution to issue bonds, to advertise and sell the bonds, and to execute and deliver the bonds to the purchaser.
Respondent Thompson filed an answer to the petition, in which it is alleged that "in view of the intervenors' various claims she is doubtful as to her duties and for that reason refuses to proceed with the sale of said bonds."
The intervening respondents filed a demurrer to the petition, "on the grounds that said petition does not state facts which show a cause of action in that relator has an adequate remedy at law or by way of self-help and that therefore it has no need for the relief sought."
The case has been submitted on the demurrer.
Miss Grace Fern Heck, Mr. Henry J. Crawford and Mr. Richard C. Addison, for relator.
Mr. Richard P. Rankin, for respondent Senath Thompson, clerk.
Messrs. Griffith Griffith and Messrs. Brownfield Malone, for intervening respondents, Charles A. Fabb and others.
The respondent Thompson, elected by the relator as its clerk pursuant to Section 3313.22, Revised Code, refuses to perform a ministerial duty as such clerk, which the relator has ordered her to perform, because she is "doubtful" as to her duties. The relator has an adequate remedy by way of self-help, since the clerk serves at the pleasure of the relator and may be removed summarily at any time at its will ( Schrock v. Board of Education of Euclid School Dist., 141 Ohio St. 528, 533, 49 N.E.2d 177).
Relator contends that this court, in the case of State, ex rel. Underground Parking Commission, v. Alexander, Secy.-Treas., 167 Ohio St. 359, 148 N.E.2d 500, did not intend to establish a rule as to remedy by way of self-help which would bar the instant action but intended only to make a limited application of the rule on the basis of the facts involved therein, and relator cites as authority the later case of State, ex rel. Board of Education of Painesville Local School District, v. Crandall, Clerk, 167 Ohio St. 399, 149 N.E.2d 163, wherein such rule was not applied. This contention is without merit. In the Crandall case, there was neither reason nor opportunity to apply the rule, since the court there held that the petition in mandamus failed to state a cause of action, in that it was obvious that the mandatory provisions of Section 133.041, Revised Code, relative to securing the approval of the state Department of Education, had not been complied with, and denied the writ for that reason.
The demurrer to the petition is sustained and the writ is denied on authority of the Underground Parking Commission case, supra.
Demurrer sustained and writ denied.
ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
The majority opinion is based solely on the decision of this court in the case of State, ex rel. Underground Parking Commission, v. Alexander, Secy.-Treas., 167 Ohio St. 359, 148 N.E.2d 500.
However, as the relator pointedly observes, there is an important and controlling distinction between that and the instant case. The earlier case involved but two parties — the relator and the respondent. The instant case also involves intervening taxpayers who admittedly have no control whatsoever over the clerk of the board of education. Hence, this decision marks a considerable extension of the rationale of the earlier case which was limited to its particular facts.