Ohio State Reports. To compel state reporter to furnish assignee of contractor, for publication of Ohio State Reports, manuscript opinions to complete volume, 42 O. S. 264. Police commissioners, 3 C. C. R. 332. Prosecuting attorney. To compel prosecuting attorney to indorse certificate authorizing county commissioners to purchase land for public purposes under 66 v. 54 when the contract complies with the statute, 23 O. S. 335, otherwise not, Id. 568. Receiver. It does not lie against a railroad corporation and its receiver directing their conduct in operating the road, 35 O. S. 154. Recorder. It lies to compel recorder to surrender records after term of office, 7 0.1, to record mortgage, 16 Bull 356. School. See Board of Education. Second mandamus not allowed after refusal, 43 O. S. 457. Solicitor of city. See Condemnation. The writ lies to compel city solicitor to approve of bond of contractor, 43 O. S. 46. Stock. See Corporation. Tax. It lies to compel levy of tax, 17 O. S. 608, after the time has expired, 35 O. S. 458 (see Auditor of County, Commissioners of County, supra); to compel township clerk to draw warrant, 11 O. S. 326; 29 O. S. 161; to compel township trustees to levy tax, 20 O. S. 288, to pay interest on township bonds, 14 O. S. 569, refused, 13 O. S. 311. Treasurer. Against township treasurer, to compel payment of school teachers' wages, 4 O. S. 561; see 17 O. 32; 8 D. S. 347; by treasurer of state to compel county treasurer to transfer to the state treasury the state's proportion of the taxes collected by such county treasurer, 38 O. S. 259. Funds exhausted, 2 C. C. R. 475. Turnpike. It does not lie to compel repair of turnpike, 16 O. S. 308. ? 6742. By what courts it may issue. The writ of mandamus may be issued by the supreme court (1), the circuit court, or the common pleas court; and although it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it can not control judicial discretion (2). [82 v. 38; 77 v. 265; 51 v. 57, 569; S. & C. 1124.] 1. Application should be made to the circuit court unless there are special reasons for making it in the first instance to the supreme court. Such cases in the latter court are not entitled as of right to be heard out of their regular order on the general docket, 26 O. S. 170. 2. 1 O. S. 30, 149; 17 O. S. 608, 616; 24 O. S. 393, 401; 26 O. S. 364; 43 O. S. 652. 26743. Application for the writ. The application for the writ must be by petition, in the name of the state, on the relation of the person applying (1), and verified by affidavit; and the court may require a notice of the application to be given to the defendant, or may grant an order to show cause why it should not be allowed, or may allow the writ without notice. [51 v. 57, 573; S. & Č. 1127.] 1. 5 O. S. 497. Before the revision of 1880, the writ and answer contained the whole pleadings, 1 C. C. R. 119. Form, 19 O. 178. 26744. When writ may not issue. The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law. It may issue on the information of the party beneficially interested. [51 v. 57, 570; S. & C. 1126.] Sec6741n.; 1 0. S. 77; 22 O. S. 534; 42 O. S. 30; 3 C. C. R. 332. ? 6745. When peremptory writ may issue in the first instance. When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a court may, in the first instance, allow a peremptory mandamus; and in all other cases an alternative writ must first be issued, on the allowance of the court, or a judge thereof. [51 v. 57, 2572; S. & C. 1127.] 42 O. S. 263, 275. The refusal to allow an alternative writ is not reviewable on error; the remedy is by application to a higher court, 37 O. S. 121. 26746. The allowance of the writ. The allowance of the writ, and an order that the defendant, immediately upon service, do the act required to be performed, or, when an alternative writ is allowed, that he do the act, or show cause before the court, at a specified time and place, why he does not do the act, shall be entered on the journal. [51 v. 57, 574; S. & C. 1127.] 26747. By whom writ to issue. What to contain. Service. The writ shall be issued by the clerk of the court in which the application is made, and shall contain a copy of the petition, verification, and order of allowance, and shall be served upon the defendant, personally, by copy, by the sheriff of the proper county, or by a person specially authorized by the court or judge; such officer or person shall report his proceedings therewith to the court; and if the service be made by a person not an officer, the return must be verified by his affidavit. [51 v. 57, ? 571; S. & C. 1126.] Counsel must prepare the writ and submit it to the court. It is not the duty of the clerk to prepare it, 4 O. S. 493. The alternative writ must contain a statement of all the facts necessary to justify the order sought for by the proceedings, 22 O. S. 371. It may be amended, 4 O. S. 493; 23 O. S. 335; may, on motion, be required to be made more definite and certain, Id.; see 1 C. C. R. 119; but omissions can not be supplied by affidavits, 22 O. S. 371. On 26748. When defendant may demur or answer. the return day of an alternative writ, or such further day as the court may allow, the defendant may answer as in a civil action; or, if the writ be allowed by a single judge, he may demur. [51 v. 57, 2575; S. & C. 1127.] The answer must respond to all the allegations in the writ, or it will be held bad on demurrer, 14 0. 252. An answer in mandamus to compel a judge to sign a bill of exceptions, that defendant is willing to sign a true bill, and that the bill presented is not true, is sufficient, 22 O. S. 207; see Form, 43 O. S. 16; 19 0.183 26749. Reply and demurrer. The plaintiff may demur to the answer, or reply to any new matter therein; and the defendant may demur to the reply as in a civil [51 v. 57, 576; S. & C. 1127.] action. Formerly no reply was allowed, 9 O. S. 599. 2 6750. Judgment on default. If no answer be made, a peremptory mandamus must be allowed against the defendant. [51 v. 57, 576; S. & C. 1127.] 26751. Pleadings construed as in civil action. The pleadings shall have the same effect, and must be construed, and may be amended, as in civil actions. [51 v. 57, 2 577; S. & C. 1127.] 43 O. S. 16. 26752. Issues of fact; how tried. Issues of fact made by the pleadings must be tried, and the further proceedings thereon had, in the same manner as in civil actions. [51 v. 57, ? 577; S. & C. 1127.] 26753. What damages may be recovered. If judgment be given for the plaintiff, the relator may recover the damages which he has sustained, to be ascertained by the court, or a jury, or by a referee or master, as in a civil action, and costs; and a peremptory mandamus shall also be granted to him without delay. [51 v. 57, 2 578; S. & C. 1128.] Where judgment is given for plaintiff, this section does not authorize the assessment of damages against the state in favor of the relator, 36 O. S. 409. 26754. Such recovery shall be a bar. Such recovery of damages against a defendant shall be a bar to any other action upon such cause of action. [51 v. 57, 2 579; S. & C. 1128.] 2 6755. Costs against relator. If judgment be given for the defendant, all costs shall be adjudged against the relator. [75 v. 813, ? 15.] See 4 Bull 608, 614. 2 6756. Penalties. When a peremptory mandamus has been directed to a public officer, body, or board, commanding the performance of a public duty specially enjoined by law, and the court finds that such officer, or any member of such body or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a fine, not exceeding five hundred dollars, upon such officer or member; and such fine, when collected, shall be paid into the treasury of the county wherein the duty ought to have been performed, and the payment thereof shall be a bar to an action for any penalty incurred by such officer or member by reason of such refusal or neglect. [51 v. 57, 580; S. & Č. 1128.] ? 6757. When county auditor to levy and assess tax. When a peremptory mandamus has been awarded against the commissioners of a county, or the trustees or board of education of a township, or the council, trustees, or board of education of a municipal corporation, to levy and assess a tax to pay interest upon a debt, or to create a sinking fund for the payment of a funded debt, and such officers have resigned, or refuse or neglect to levy and assess such tax, or their offices are vacant, the court, upon the motion of an interested person, and upon being satisfied of the fact of such resignation, vacancy, or refusal or neglect to levy such tax, and of the right of such person to have the same levied and assessed, may cause a special order to be issued to the auditor of the proper county, commanding him to levy and assess upon the taxable property of the county, township, or municipal corporation the taxes required by law, or the judgment or order of said court, to be levied and assessed for the purposes aforesaid, and to place the same upon the duplicate for collection by the county treasurer. [63 v. 15, 1; S. & S. 604.] 26758. Auditor responsible as an officer of court. His fees. When such special order is issued to the auditor he shall be responsible for the execution thereof in the same manner as if he were an officer of the court; and he shall receive such fees for his services in executing the order, if not otherwise fixed by the court, as he is allowed by law for making tax duplicates; which fees, and all other costs of the proceeding, he shall add to the taxes levied in executing such order, and place the same upon the duplicate for collection with such taxes. [63 v. 15, 22; S. & S. 606.] 6759. The last two sections not to limit power of court. The provisions of the last two sections shall not be construed to limit the power of the court to carry its order and judgment into execution, or to punish any officer named therein for contempt or disobedience of its orders or writs. [63 v. 15, 23; S. & S. 607.] CHAPTER III. QUO WARRANTO. 26760. When quo warranto may be brought. A civil action may be brought in the name of the state: 1. Against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, civil or military, or a franchise, within this state, or an office in a corporation created by the authority of this state. 2. Against a public officer, civil or military, who does or suffers an act which, by the provisions of law, works a forfeiture of his office. 3. Against an association of persons who act as a corporation within this state without being legally incorporated. [75 v. 814, 815; 36 v. 68, ? 1; S. & C. 1264.] Quo warranto is now a civil action, and proceeds by petition and not by information, 8 Rec. 422; 34 O. S. 365. The presidency of a city council is a public office, within the meaning of this section, 45 O. S. 196. The action lay to oust police commissioners appointed by the governor under 82 v. 101, and removed by him for misconduct, 44 O. S. 98; but not to oust the superintendent of police appointed under that act and suspended by the mayor for insubordination, Id. 137. It was held the proper remedy to test the legality of the election of trustees of a cemetery association, 5 O. S. 238. It was brought to test the constitutionality of the act, 82 v. 236, relating to parol of prisoners, 43 O. S. 629. It does not lie to try title to an office the term of which has expired, 17 O. 143, or nearly expired, 17 O. S. 543, or where the statute has provided a mode of contest, 15 O. S. 114. Quo warranto for usurpation must be against the individuals, not against the corporation, 18 O. S. 263; 8 Rec. 422. For forms of pleading see 18 0. S. 263. Acknowledgment of certificate of incorporation before notary, instead of justice of peace, under S. & C. 272, held bad on quo warranto, 21 O. S. 662. |