State ex rel. Keyser v. Commissioners

57 Ohio St. (N.S.) 86

• Court: Ohio Supreme Court
• Decided: November 16, 1897
• Status: Published

Opinion

By the Court.

We do not think it necessary to pass on the constitutionality of the law, for, admitting its validity, the relator is not, as we think, entitled to the relief asked or any part of it.

1. The petition does not show that it is the duty of the commissioners to appoint him in preference to any one else. It does not show that he is the only soldier in the county entitled under the law to be employed as janitor of the court house, in fact, it appears that there are such'. So that if the law be valid, the commissioners have a discretion as to which one of the soldiers in the county shall be employed; and in refusing to appoint him they violate no duty enjoined on them by law.

2. Nor does the refusal of the commissioners to appoint any other honorably discharged soldier of the county, afford any ground for relief in this proceeding. The object of the writ is to compel an officer to do some specific thing enjoined on him by law, and not to compel him to enforce the general mandates of the law — or, in other words, to execute the law — not in favor of some particular person entitled to his official action — but generally in favor of all persons within its provisions, by selecting some one of them. To do so would simply be to duplicate the act of the legislature in making the law. If. there he any remedy for an omission of tliis kind on the part óf the commissioners, it must be by indictment as provided in section two of the amendatory act; or else by an appeal to the people at the proper time in the election of county commissioners.

Writ refused and petition dismissed.