State ex rel. Buddenberg v. Zesch

5 Ohio N.P. 274

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: January 31, 1898
• Status: Published

Opinion

SPIEGEL, J.

Relator, Henry O. Buddenberg, prays for an alternative writ of mandamus against the Consistory of ihe German Reformed (Salem) Church of Cincinnati, commanding them to restore him to full membership in said organization, of which he alleges to have been deprived illegally..Does tüe writ lie? It is 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. ’ ’ Keeping this definition of the writ in view, our supreme court, in the case of the Fraternal Mystic Circle v. The State of Ohio, ex rel., Lincoln Fritter, decided December 14, 1897, and tobe found in No. 3, vol 39, page 43, Weekly Law Bulletin, has determined that it is exclusively of a public character, clearly'excluding the idea that it may be resorted to for the purpose of enforcing the performances of duties in which the public have no interest. Private actions are appropriate for the redress of private wrongs. A church in this country, although embracing in some of its objects matters of a public nature, is nevertheless regarded in law as a private body, and a religious corporation is governed by the same rules which control other private civil corporations. This being the case, the writ does not lie, and the application, therefore, must be refused.

But has the plaintiff no other remedy than an action at law for damages, which is, in this case, not only entirely inadequate, but depriving plaintiff, by reason of such an action,if filed,of his right to a restoration to membership? (See State ex rel. v. Lippa, 28 Ohio St., 6655). I think he has where the benefits to be enjoined are not determinable by any rules that could be given to the jury, in fixing their money value. An action for damages would not afford an adequate remedy, but equity would by the grant of an injunction. Whatever form, if any, such an injunction would assume, is a matter to be determined upon final hearing of the case. This view has also been adopted by Judge Pratt, of Toledo, in the case of Cheney v. Ketcham, decided in the Lucas County Common Pleas Court since the decision of the Fraternal Mystic Circle case by our supreme court. See Ohio Nisi Prius Reports, vol. 5, page 139, attached to No. 12 of vol. 39, Weekly Law Bulletin. Plaintiff, if he desires, may therefore Withdraw his application for a writ of mandamus and substitute therefor a petition for an injunction.