State Ex Rel. Duffy v. Ferguson , 132 Ohio St. 524 ( 1937 )

By the Court.

The Attorney General filed in this court a petition in mandamus to compel the Auditor of State to draw warrants on the Treasurer of State in favor of three appointees of the Attorney General. A general demurrer was filed to the petition and counsel for the respondent Auditor of State agreed that the controversy should be submitted upon the demurrer alone and that no question was raised as to proper party.

In substance, the petition alleged that as attorney for the Public Utilities Commission, it was necessary for relator to employ special counsel and auditors in the presentation of the case of The Ohio Bell Telephone Company v. The Public Utilities Commission in the Supreme Court of the United States; that the General-Assembly passed S. B. No. 29 as an emergency measure, which was approved by the Governor, appropriating $10,000 to the office of the Attorney General for such purpose; that the relator appointed a special counsel and two auditors to fender respectively legal and auditing services in the preparation and presentation of the litigation stated, and that such services were rendered as requested by the relator. It is also alleged in the petition that statements aggregating $6600 for such legal and auditing services, which were rendered by the special counsel and the two auditors, were approved by the relator, who transmitted to the respondent vouchers for the payment of such services, that the Director of Finance had certified that funds were on hand and duly appropriated to pay such obligations, that “each of these vouchers was duly certified by relator, which certificates stated that the services rendered were necessary and properly authorized, and that the amount stated was in accordance with the appropriation made by law, and that the amounts were correct, a legal charge against the state of Ohio and approved for payment.”

The General Assembly by separate enactment having made an appropriation for the specific purpose of enabling the Attorney General to employ special counsel and auditors in the presentation of the case above mentioned, discretion was thereby lodged in that officer to make the appointments and determine the compensation to be paid. By his demurrer the respondent admits the well pleaded allegations of the petition above quoted and, no answer having been filed and the respondent not desiring to plead further, the writ will issue.

Writ allowed.

Weygandt, C. J., Jones, Matthias, Day, Zimmerman and Williams, JJ., concur.