THE STATE EX REL. VILLAGE OF BOTKINS v. LAWS ET AL.
No. 92-2144
SUPREME COURT OF OHIO
Decided June 1, 1994
69 Ohio St.3d 383 | 1994-Ohio-518
Submitted March 1, 1994
Mаndamus to compel Shelby County Commissioners to pay village solicitor for services provided by him in Sidney Municipal Court—Limited writ granted to compel commissioner to exercise their discretion pursuant to R.C. 1901.34(C) in determining reasonable amount of compensation due village solicitor.
IN MANDAMUS.
{¶ 1} On October 26, 1992, the village of Botkins, relator, filed a complaint seeking a writ of mandamus to compel the Shelby County Commissiоners, respondents, to comply with
{¶ 2} The parties filed an agreed partial statement of facts, and relator filed an affidavit of its mayоr, Donald Doll. The pleadings and evidence presented pursuant to Section 7 of S.Ct.Prac.R. VIII set forth the following facts. Relator is an Ohio municipal corporation situated in Shelby County, Ohio, and is organized
{¶ 3} On August 23, 1990, Evans, by letter to the Shelby County Prosecuting Attorney, requested the prosecutor‘s opinion regarding payment to the solicitor for prosecutions in the Sidney Municipal Court pursuant to
{¶ 4} By letter dated May 16, 1991 to Evans, respondents denied his request that the county pay him for his legal services pursuant to
{¶ 5} Relator compensated Evans for his and his assistants’ prosecutorial services in prosecuting criminal cases in the Sidney Municipal Court, and the solicitor assigned all of his rights and claims for such compensation from respondents to relator. According to Doll, relator, since 1986 has paid its village solicitors at least $7,000 for the prosecutorial services at issue. By resolution adopted on September 8, 1992, relator authorized Evans to commence this action to compel respondents to pay it the compensation authorized by
Stanley R. Evans, Village Solicitor, and Randall W. May, for relator.
James F. Stevenson, Shelby County Prosecuting Attorney, and Michael F. Boller, Assistant Prosecuting Attorney, for respondents.
Per Curiam.
{¶ 6} Relator contends that it is entitled to a writ of mandamus to compel respondents to (1) reimburse it a reasonable amount for sums paid to its village solicitor for past prosecutions in the Sidney Municipal Court of criminal violatiоns of state law occurring within the village, and (2) pay its village solicitor prospectively a reasonable amount for such prosecutions. In order to be entitled to a writ of mandamus, relator must establish that (1) relator has a clear legal right to the relief prayed for, (2) respondent has a clear legal duty to perform the act requested, and (3) relator has no plain and adequate remеdy at law. State ex rel. Manson v. Morris (1993), 66 Ohio St.3d 440, 441, 613 N.E.2d 232, 233-234; State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus.
{¶ 7} When it deems it necessary, the legislative authority of a village may provide legal counsel for the village.
“The village solicitor, city director of law, or similar chief legal officer shall perform the same duties, insofar as they are applicable to him, as are required of the prosecuting attorney of the county. He or his assistants whom he may appoint shall receive for such services additional compensation to be paid from the treasury of the county as the board of county commissioners prescribes.” (Emphasis added.)
{¶ 8} Relator claims that the foregoing provision places a mandatory duty upon respondents to pay Evans and his assistants additional compensation for prosecuting criminal cases in the Sidney Municipal Court. Respondents assert that any duty arising under
{¶ 9}
{¶ 10} In Butler Cty. Bd. of Commrs. v. Stаte ex rel. Primmer (1915), 93 Ohio St. 42, 112 N.E. 145, this court interpreted an analogous statutory provision, G.C. 4307 (now
“The prosecuting attorney of the police or mayor‘s court shall prosecute all cases brought before such court, and perform the same duties, as far as they are applicable thereto, as required of the prosecuting attorney of the county. The city solicitor or the assistant or assistants whom he may designate to act as prosecuting attorney or attorneys of the police or mayor‘s court shall receive for this service such compensation as council may prescribe, and such additional compensation as the county commissioners shall allow.” (Emphasis added.)
{¶ 11} We affirmed the granting of a writ of mandamus to allow and fix a city solicitor‘s compensation for additiоnal services as a prosecuting attorney in municipal court because “[t]he amount allowed by the council and the amount allowed by the county commissioners is wholly in their judgment, but the statute makes it mandatory upon them to allow something.” Id. at 44, 112 N.E. at 146.
{¶ 12} Similarly, in State ex rel. Browning v. Fayette Cty. Commrs. (App.1933), 14 Ohio Law Abs. 529, the Second District Court of Appeals held that a writ of mandamus would issue where the county commissioners abused their disсretion in allowing only one dollar to a city solicitor for his services in state cases before a municipal court pursuant to G.C. 4307. It determined that the commissioners had abused their discretion where they had “no knowledge as to the nature or extent of the work and * * * no investigation whatever [was made] as to what the services would reasonably be worth.” Id. at 531.
{¶ 13} In these cases, it is “evidently the legislative intent that the commissioners are to provide additional compensation in amounts commensurate with the additional duties involved, and where such additional duties are negligible,
{¶ 14} Based upon the foregoing authorities, it is manifest that respondents possessed a mandatory duty under
{¶ 15} A writ cannot issue to control an officer‘s exercise of discretion, but it can be issued to compel him to exercise it when he has a clear legal duty to do so. State ex rel. Hodges v. Taft (1992), 64 Ohio St.3d 1, 4, 591 N.E.2d 1186, 1189; State ex rel. Martin v. Corrigan (1986), 25 Ohio St.3d 29, 25 OBR 24, 494 N.E.2d 1128. Respondents refused relator‘s and Evans’ requests for additionаl compensation because it felt that it had “no legal obligation” to do so. Consequently, respondents failed to exercise their discretion as required by the plain language of
{¶ 16} Respondents assert that (1) this case should proceed to an evidentiary hearing, (2) Evans could not contractually assign his right to compensation, (3) Evans was not entitled to prosecute criminal actions in the absence of enabling legislation authorizing him to perform such duties, (4) relator is not the real party in interest, (5) mandamus will not lie against the successor
{¶ 17} Respondents initially claim that factual issues remain which requirе an evidentiary hearing pursuant to
{¶ 18} As to respondents’ аssertion that Evans could not contractually assign his right to compensation,
{¶ 19} Respondents, as they did in their dismissal motion, contend that relator is not the real party in interest.
{¶ 20} However, relator does not possess sufficient direct beneficial interest as to its request to compel respondents to pay the village solicitor prospeсtively. Moreover, the village solicitor has not joined this action as a relator. Although
{¶ 21} Furthermore, the function of mandamus is to compel the performance of a present existing duty as to which there is a default; it is not granted to take effect prospectively, and it contemplates the performance of an act which is incumbent on the respondent when the application for a writ is made. State ex rel. Willis v. Sheboy (1983), 6 Ohio St.3d 167, 6 OBR 225, 451 N.E.2d 1200, paragraph two of the syllabus; State ex rel. Krejci v. N. Royalton Civ. Serv. Comm. (1985), 17 Ohio St.3d 140, 141, 17 OBR 284, 285, 478 N.E.2d 239, 240. Therefore, relator‘s claim for mandamus to compel prospective payment to the village solicitor must be denied.
{¶ 22} Regarding respondents’ remaining arguments concerning the substitution of two of them as commissioners during the pendency of this action,
“When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. * * *”
Since the action is really against the position rather than the person, the action is not affected by the change in office. See, generally, McCormac, supra, at 87, Section 4.31; see, also, State ex rel. Gill v. Winters (1990), 68 Ohio App.3d 497, 589 N.E.2d 68; Brooks v. Barry (Jan. 30, 1992), Gallia App. No. 90CA27, unreported. Therefore, the action here is not affected by the election of two new commissioners during the pendency of this action. Moreover, since the two ex-commissioners, Leighty and Meyer, were sued solely in their official capacities, they have already been automatically removed from the action, and their pending motion for summary judgment is consequently moot. With regard to respondents’ contention that there was no denial or default, the evidence indicates that they twice denied requests for compensation pursuant to
{¶ 23} Accordingly, relator is entitled to a limited writ of mandamus to compеl respondents to exercise their discretion pursuant to
{¶ 24} Accordingly, for the foregoing reasons, relator‘s request for a writ of mandamus is granted in part and denied in part.
Writ granted in part and denied in part.
DOUGLAS and RESNICK, JJ., concur in part and dissеnt in part.
DOUGLAS, J., concurring in part and dissenting in part.
{¶ 25} I concur with the majority‘s holding that pursuant to
{¶ 26}
{¶ 27} With regard to prosecutions by a village solicitor involving violations of state law, the village itself does not receive any fines imposed. See, e.g.,
{¶ 28} The majority confirms that “Evans was required to prosecute criminal actions by virtue of
{¶ 29} The majority confuses the import of the requested relief sought by relator. Relator is seeking a reasonable amоunt of compensation for payments made to its village solicitor for past prosecutions, and essentially a determination from this court that respondents, under similar circumstances in the future, must follow the law set forth by the General Assembly and provide a reasonable amount of compensation to relator or its village solicitor for prosecution of all criminal cases involving a state law which are commenced in the Sidney Municipal Court. Furthermore, the majority‘s reliance on Willis and Krejci, supra, in my opinion, is misplaced. Neither decision involved
{¶ 30} Today‘s majority holds that
{¶ 31} For the foregoing reasons, I concur in part and dissent in part.
RESNICK, J., concurs in the foregoing opinion.