State, Ex Rel. Baker v. Hasler

185 N.E.2d 578, 117 Ohio App. 61, 23 Ohio Op. 2d 18, 1962 Ohio App. LEXIS 585

• Court: Ohio Court of Appeals
• Decided: October 25, 1962
• Docket: 9249
• Status: Published

Opinions

Heldebrant, J.

Relator, as an individual citizen, freeholder and taxpayer, filed this action in mandamus in this court to compel the Mayor and the Solicitor of the village of Elmwood Place, Ohio, to remove a sign, affixed to the City Hall of that village, supporting a candidate for governor.

Respondents demurred to the petition on two grounds, viz:

“1. That the plaintiff-relator has no legal capacity to sue.

“2. That relator’s petition does not state facts which entitle him to relief in mandamus.”

The cause was presented to this court upon the demurrer and was argued by counsel.

Section 2731.01, Revised Code, defines mandamus as follows :

“Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

Under the above statute, the act sought to be compelled by mandamus must be one “which the law specially enjoins as a duty” resulting from an office, trust, or station. The writ is not available to command performance of an implied power only, and this court cannot first create the duty and then compel its performance.

We, therefore, feel the petition herein does not state facts sufficient to justify the granting of the writ.

Writ denied.

Long, P. J., concurs.