State ex rel. Tulley v. Brown

Ohio Supreme Court

State ex rel. Tulley v. Brown

281 N.E.2d 187, 29 Ohio St. 2d 235, 58 Ohio Op. 2d 489, 1972 Ohio LEXIS 478

CourtOhio Supreme Court

DecidedMarch 24, 1972

DocketNo. 72-196

StatusPublished

Cited by12 cases

This text of 281 N.E.2d 187 (State ex rel. Tulley v. Brown) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Tulley v. Brown, 281 N.E.2d 187, 29 Ohio St. 2d 235, 58 Ohio Op. 2d 489, 1972 Ohio LEXIS 478 (Ohio 1972).

Pincite

Opinions

Per Curiam.

At the outset, it should be noted that the parties neither raised nor argued any constitutional objections² to the overall concept of the Attorney General’s [237]*237statutory power of preliminary examination concerning proposed constitutional amendments under R. 0. Chapter 3519. Thus, and since it is neither necessary to our resolution of the matter before us nor determinative of our jurisdiction to act, a majority of the court reaches no conclusion upon that question.

We note jurisdiction of this matter upon the basis of State, ex rel. Riley Constr. Co., v. East Liverpool Bd. of Edn. (1967), 10 Ohio St. 2d 25, 225 N. E. 2d 246; and State, ex rel. Foreman, v. Brown (1967), 10 Ohio St. 2d 139, 226 N. E. 2d 116. The sole fact that an action is pending in an inferior court of this state does not, ipso facto, deprive this court of jurisdiction to hear and decide a complaint in mandamus. Further, by its own order, the Common Pleas Court of Franklin County has, in effect, withheld the exercise of its subject matter jurisdiction pending our decision.

Respondents contend that the relators are not entitled to a writ of mandamus because the pending trial court action constitutes a plain and adequate remedy in the ordinary course of the law. They orally argue that an action in mandamus could be instituted in this court after the lower court has determined all of the issues before it, and also urge that the instant relators could still file a cross-complaint in the trial court and therein seek the relief requested in the case at bar.

The “ordinary course of the law” doctrine does not comprehend that a relator in a mandamus action be obliged to follow the suicidal course of filing a cross-complaint in his opponent’s different action in another court which would foreclose his own suit in mandamus. Additionally, as was conceded by respondents in oral argument, once an appeal was commenced by respondents from an adverse decision in the trial court, respondents’ present argument would necessarily obtain in resistance to a complaint in mandamus being considered during the pendency of that appeal.'

Mandamus lies to compel the performance of an act whiph is clearly enjoined by law upon a respondent. State, [238]*238ex rel. Freeman, v. Valentine (1971), 25 Ohio St. 2d 184, 267 N. E. 2d 594; State, ex rel. Pistillo, v. Shaker Heights (1971), 26 Ohio St. 2d 85, 269 N. E. 2d 42. Under the facts at bar, the only incumbency enjoined upon the Attorney General by R. C. Chapter 3519 is the specific duty contained in R. C. 3519.01:

“* * * If in the opinion of the Attorney General the summary is a fair and truthful statement of the proposed law, constitutional amendment, or measure to be referred, he shall so certify. * * *”

In the instant case, the Attorney General has unequivocally stated that he finds the summary in question “fair and truthful” under R. C. 3519.01 and stands ready to certify.

We find that relators herein have met their burden in all respects concerning this writ. Requested relief involving the Secretary of State is premature.

Upon the basis stated, the writ of mandamus is allowed.

Writ allowed.

0 ’Neill, C. J., Herbert, Corrigan, Stern and Leach, J J., concur. Sohheider and Browh, JJ., dissent.

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Per Curiam.

At the outset, it should be noted that the parties neither raised nor argued any constitutional objections² to the overall concept of the Attorney General’s [237]*237statutory power of preliminary examination concerning proposed constitutional amendments under R. 0. Chapter 3519. Thus, and since it is neither necessary to our resolution of the matter before us nor determinative of our jurisdiction to act, a majority of the court reaches no conclusion upon that question.

We note jurisdiction of this matter upon the basis of State, ex rel. Riley Constr. Co., v. East Liverpool Bd. of Edn. (1967), 10 Ohio St. 2d 25, 225 N. E. 2d 246; and State, ex rel. Foreman, v. Brown (1967), 10 Ohio St. 2d 139, 226 N. E. 2d 116. The sole fact that an action is pending in an inferior court of this state does not, ipso facto, deprive this court of jurisdiction to hear and decide a complaint in mandamus. Further, by its own order, the Common Pleas Court of Franklin County has, in effect, withheld the exercise of its subject matter jurisdiction pending our decision.

Respondents contend that the relators are not entitled to a writ of mandamus because the pending trial court action constitutes a plain and adequate remedy in the ordinary course of the law. They orally argue that an action in mandamus could be instituted in this court after the lower court has determined all of the issues before it, and also urge that the instant relators could still file a cross-complaint in the trial court and therein seek the relief requested in the case at bar.

The “ordinary course of the law” doctrine does not comprehend that a relator in a mandamus action be obliged to follow the suicidal course of filing a cross-complaint in his opponent’s different action in another court which would foreclose his own suit in mandamus. Additionally, as was conceded by respondents in oral argument, once an appeal was commenced by respondents from an adverse decision in the trial court, respondents’ present argument would necessarily obtain in resistance to a complaint in mandamus being considered during the pendency of that appeal.'

Mandamus lies to compel the performance of an act whiph is clearly enjoined by law upon a respondent. State, [238]*238ex rel. Freeman, v. Valentine (1971), 25 Ohio St. 2d 184, 267 N. E. 2d 594; State, ex rel. Pistillo, v. Shaker Heights (1971), 26 Ohio St. 2d 85, 269 N. E. 2d 42. Under the facts at bar, the only incumbency enjoined upon the Attorney General by R. C. Chapter 3519 is the specific duty contained in R. C. 3519.01:

“* * * If in the opinion of the Attorney General the summary is a fair and truthful statement of the proposed law, constitutional amendment, or measure to be referred, he shall so certify. * * *”

In the instant case, the Attorney General has unequivocally stated that he finds the summary in question “fair and truthful” under R. C. 3519.01 and stands ready to certify.

We find that relators herein have met their burden in all respects concerning this writ. Requested relief involving the Secretary of State is premature.

Upon the basis stated, the writ of mandamus is allowed.

Writ allowed.

0 ’Neill, C. J., Herbert, Corrigan, Stern and Leach, J J., concur. Sohheider and Browh, JJ., dissent.

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281 N.E.2d 187, 29 Ohio St. 2d 235, 58 Ohio Op. 2d 489, 1972 Ohio LEXIS 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-tulley-v-brown-ohio-1972.

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