Cullen v. State ex rel. City of Toledo (105 Ohio St. 545, 1922)

Robinson, J.

Accepting the conclusion of fact of the court of appeals, that the differences between the vice-mayor and the majority of the members of council “revolve around a controversy as to which is the lawful set of rules governing the council and which standing committees are the lawful standing committees of the council,” and its conclusion of law, that it “entertains no doubt but that a city council acting under a charter like that governing the City of Toledo is a continuing body so far as the passage of legislation is concerned, and that measures, |or instance, providing for city improvements pending in one council remain before the council for the completion of the legislation after the original council has been superseded by new members, and in this sense a city council is a continuing body,” but that “each city council when it meets for the purpose of organizing has the undoubted right to adopt by a majority vote of its members, and as a part of its organization, reasonable rules for its own government not in conflict with the charter or the laws of the state,” we are still unable.to conclude that a proper case was presented in that court for the issuance of the extraordinary writ of mandamus.

The relator sought to have the court command the defendant below, as vice-mayor of the city of Toledo, to obey the law generally, for the prayer is that “a writ of mandamus issue commanding the defendant, Edward B. Cullen, as ‘Vice-Mayor of the City of Toledo, and President of the Council of the City of Toledo, to forthwith perform his duties as presiding officer of Council, as required by law and the charter of said City of Toledo.” Thus far the prayer is to command him to pursue generally a course of conduct which the law and his oath require him to pursue, as distinguished from a specific act enjoined by law to be performed.

The prayer continues, “to declare as such presiding officer that the rules of procedure voted upon at the meeting of Council on January 30th, 1922, were duly adopted.” The validity and potentiality of the rules adopted are not dependent upon a declaration of the vice-mayor, and it would be an idle thing for a court to require such declaration.

The prayer continues, “to recognize the standing committees elected under said rules and to refer to such standing committees the legislation referred to standing committees by Council.” This paragraph, like the first paragraph referred to, is not directed to a specific act, but is directed to the general course of conduct of the vice-mayor with reference to all committees, with reference to all subjects which may properly be considered by the various committees, and with reference to all time.

The prayer continues, “and not to interfere with the defendant clerk in the performance of his duties in referring legislation to such standing committees * * * and for all other proper and adequate relief. ’ ’ This paragraph of the prayer, like the others, applies to the general course of conduct rather than to any specific act, and while a court might well hold that the general course of conduct contended for by the relator, and which he seeks to have the plaintiff commanded to follow, is the course of conduct which the law requires, and, therefore, the course which the vice-mayor is in duty bound to pursue, yet a court will not employ the extraordinary writ of mandamus to supplant every other form of remedy, for if it be employed to compel the observance of law generally, the court would thereby constitute itself the public conscience, and all others would become its agents through which the court would, within the law, exercise its will. The function of a court is to render judgment in actual controversies between adverse litigants, to' command or restrain specific acts affecting existing rights of parties before the court, as distinguished from declaratory judgments affecting possible rights and potential controversies.

In a proper action a court would determine the title of a designated individual to membership upon a committee of council, and in a proper action, for the purpose of making the machinery of government function, a court would command the presiding officer of council to submit a report of a committee to the council, or to refer a measure of council to a committee, but a court does not administer justice wholesale. It confines its activities to the determination of cases where an issue is made and the proper parties are before it. It will not determine in one suit the titles of many claimants for many positions upon many committees of council, but will confine itself to the determination of the title of contending claimants for the same position, and its determination in that respect becomes a precedent only for the determination of the title of other claimants to similar positions, and a court will not determine titles to positions without having the contending claimants before it, and will not do by indirection that which it will not do directly; will not by the extraordinary writ of mandamus command the presiding officer of a council to recognize certain claimants en masse for membership upon committees and thereby oust other claimants en masse, for, while the title of each to membership of his especial committee is like that of each of the others, deriving title from the same source, they would not all be properly joinable in the same action.

The petition seeking the court’s regulation of the general course of conduct of the vice-mayor, as distinguished from the regulation of definite specific acts specially enjoined by law to be performed, does not make a case for the issuance of the writ of mandamus.

The judgment of the court of appeals will be reversed.

Judgment reversed.

Marshall, C. J., Johnson, Hough, Jones and Matthias, JJ., concur.

Wanamaker, J., dissents.