31 N.E.2d 841 | Ohio | 1941
In coming to a conclusion the court below considered five stated questions. It will be necessary here to examine only one of these questions, viz.: "3. When a court is asked to exercise the extraordinary power of mandamus, is it limited to a consideration of the facts and conditions as they existed at the time the proceeding was initiated, or must it take into consideration the facts and conditions existing at the time it determines whether or not a peremptory writ should issue?" The Court of Appeals held: "Plaintiff's rights must be determined as of February 11, 1939, and hence the subsequent action through which *573 centralization was effected would not defeat the right." In so holding the court below erred.
Mandamus is a writ commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.
The transfer of territory was sought under Section 4696, General Code. This court has held: (a) The mandatory provision of Section 4696, General Code, has no application to the territory of centralized school districts; and (b) under the provisions of Sections 4696 and 4727, General Code, a board of education of a county school district is authorized to transfer territory from a centralized school district to another district upon the petition of two-thirds of the qualified electors of the territory sought to be transferred, but is notrequired to make such transfer, though the petition therefor be signed by 75 per centum of such qualified electors. State, exrel. Darby, v. Hadaway,
Section 4726, General Code, authorizes a rural board of education to submit the question of centralization to a vote.
This court held in the first paragraph of the syllabus in the case of State, ex rel. County Bd. of Edn. of Wood Co., v. Bd.of Edn. of Bloom Twp. Rural School Dist.,
The record does not disclose that the appellant board was responsible for the election to centralize. Therefore, no principle of estoppel need be considered. The fact that the board was a party to this mandamus proceeding *574 in nowise prevented the Houston Rural School District from submitting the question of centralization to the electors or the duly qualified electors of the district from voting at election to centralize. On the question of centralization the following is found in the minutes of two meetings of the board,viz., the minutes of the meeting of July 8, 1939, show "The county board of education met in regular session, Saturday, July 8, 1939, in the office of the county superintendent, with President Rehfus presiding. * * * The special election of the Houston Rural School District, on June 29, 1939, for centralization, as certified by the county board of elections is as follows:
"For centralization — 362.
"Against centralization — 4."
In the minutes of October 14, 1939, there is the following: "A report of the board of elections of Shelby county, Ohio, was filed with this board showing that centralization had carried in the Houston Rural School District, June 29, 1939, by a vote of 362 for centralization to 4 against centralization, and this board of education therefore finds that the Houston Rural School District in Shelby county, Ohio, is a centralized school district as provided by law."
As stated in 25 Ohio Jurisprudence, 1020, 1021:
"The writ [of mandamus] is not demandable as a matter of right; it only issues when the relator makes a clear case for its application. So, it is apparent that mandamus will not be awarded in all cases, even when a prima facie right to relief is shown, but regard will be had to the exigency which calls for the exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing on the particular case. The court may consider the applicant's rights, the interests of third persons, the importance or unimportance of the case, and the applicant's conduct, in determining whether the writ shall issue." *575
At page 1022 of the same volume it is said: "It is a fundamental principle of the law of mandamus that the writ will never be granted in cases where, if issued, it would prove unavailing."
In the case of State, ex rel. Ingerson, v. Berry, Clerk ofCourts,
Again it is stated in 25 Ohio Jurisprudence, 1023: "Nor will mandamus be allowed, unless the act of duty, enforcement of which is sought, is legally possible at the time." (Italics ours.)
In the course of the opinion in the case of State, ex rel.Nixon, v. Merrell, Dir.,
In the case of Summit County Board of Education v. State, exrel. Stipe, supra, it was held in the course of the per curiam:
"However, upon the authority of the case of State, ex rel.Darby, v. Hadaway,
"It has been argued here, and doubtless was argued below, that since it was the mandatory duty of the plaintiff in error board of education, from the 15th day of April to the 27th day of April, 1926, to pass a resolution transferring the territory, a court whose jurisdiction has been invoked after that duty has ceased to be mandatory must order that done which it was the mandatory duty of the plaintiff in error board of education at one time to do, notwithstanding the fact that the duty had ceased to be mandatory and had become discretionary. We do not regard the proposition sound as applied to the facts of this case."
In the case of Trumbull County Board of Education v. State,ex rel. Van Wye,
In the course of the opinion in that case, Allen, J., said (page 256): "Moreover, the Court of Appeals, in our judgment, should have taken into consideration the events which occurred subsequent to the filing of the petition in mandamus, * * *" and (page 257) "It is the general rule that 'the question whether a mandamus should issue to protect the interest of the public does not depend upon a state of facts existing when *577
the petition was filed, if that state of facts has ceased to exist when the final judgment is rendered.' Northern PacificRd. Co. v. Washington Territory,
"In Sullivan v. Secretary of Commonwealth,
"To the same effect are People, ex rel. Tilden, v. Massieon,Mayor,
" 'When a court is asked to exercise the extraordinary power of mandamus, it is not limited to a consideration of the facts and conditions as they existed at the time the proceeding was initiated, but should take into consideration the facts and conditions existing at the time it determines whether a peremptory writ should issue.' "
In the course of the per curiam in the case of State, ex rel.Haines, v. Bd. of Edn.,
Therefore, the judgment of the Court of Appeals is reversed and final judgment is rendered for appellants.
Judgment reversed.
WEYGANDT, C.J., WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.