STATE Ex TURNER v. BREMEN (Vil.)

A ruling has heretofore been made (115 Ohio St. 510,154 N.E. 526) upon the demurrer filed to the original petition in mandamus herein. The court ordered that the demurrer filed to the petition be sustained as to the first ground of demurrer appearing therein, namely, that there is a defect of parties defendant for the reason that under Section 5649-1c, General Code, the fiscal officer, in this instance the clerk of the village, is a necessary party to the action, and that under Section 2295-13, General Code, the treasurer of the village is a necessary party to the action. It was also ordered and adjudged in that ruling that the demurrer filed to the petition herein be sustained as to the second ground of demurrer appearing therein, namely, that the petition does not state facts which show a cause of action, in that there is no allegation in the petition that relator's judgment was ever certified to the council of the village by the fiscal officer, the clerk of said village, as required by Section 5649-1c, General Code.

Thereafter, upon leave being obtained, the relator filed an amended petition in which she joined the clerk of the village of Bremen and the treasurer of the village as parties defendant, and alleged that the defendant, the clerk of the village, has failed, neglected, and refused to certify to the council of the village the amount of tax necessary to provide for the payment of such final judgment, and still so fails and neglects and refuses. The prayer of the amended petition prays that:

"A writ of mandamus issue, commanding said defendant, E.J. Young, clerk, to certify to said council the amount of tax necessary to provide for the payment of said judgment, and that the defendants appropriate the money to pay said judgment, if any there be in the treasury of said village, that can be used for that purpose, or that, if there is no fund in the treasury of said village that can be appropriated and used in the payment of said judgment, that said officers be required to levy a proper and sufficient tax upon all the taxable property of said village to pay said judgment with the interest thereon or that said officers issue the bonds of the said village for that purpose, * * * and that the said treasurer, George W. Baldwin, place all moneys raised for said purpose in the judgment fund and disperse the same according to law."

To this amended petition the defendant has demurred upon the grounds: (1) that there is a misjoinder of parties defendant; (2) that separate causes of action against several defendants are improperly joined; (3) that the amended petition does not state facts which show a cause of action against these defendants.

Upon consideration of the record and briefs, it is ordered and adjudged that the demurrer filed to the amended petition be overruled as to the first two grounds of demurrer appearing therein, namely, that there is a misjoinder of parties defendant, and that separate causes of action against several defendants are improperly joined. This court having ordered a joinder of the new parties defendant, and having ordered a joinder of the causes of action against these new parties defendant, it has been heretofore ruled by this court that there is no misjoinder of parties and no improper joinder of separate causes of action in the petition as amended.

Since the relator in her amended petition has prayed that a writ of mandamus issue commanding the defendant, the clerk of the village, to certify to the council of the village the amount of tax necessary to provide for the payment of the judgment, the petition no longer is demurrable upon the ground that it does not allege certification by the clerk. When the clerk has certified the amount of tax necessary to provide for the payment of the judgment, the allegation necessary will have been supplied, and this petition prays for the relief necessary to secure that particular result. The fact that the clerk and treasurer have not as yet refused to act does not make them improper parties. The relator could hardly be expected to bring separate actions against the clerk, the council, and the treasurer; and, in fact, in proceedings for a writ of mandamus, the relator may join all officers having control of the legal machinery to effect that purpose, although they act by separate and successive steps. McKie v. Rose (C. C.), 140 F., 145; Hicks,Aud., v. Cleveland (C.C.A.), 106 F., 459; Labette CountyCommissioners v. United States, ex rel. Moulton, 112 U.S. 217,5 S. Ct., 108, 28 L.Ed., 698; Ryan v. Hoffman,Aud., 26 Ohio St. 109; State, ex rel. Price, Atty. Gen., v.Huwe et al., 103 Ohio St. 546, 134 N.E. 456.

Under Sections 5649-1c and 2295-8, General Code, and under the facts alleged in the amended petition, the council of the village rests under a clear legal duty either to place the amount of the judgment in the annual tax-levying ordinance resolution or other measure for the full amount certified, or to issue bonds in accordance with law in an amount not exceeding the amount of the judgment, and carrying interest not to exceed 6 per cent., for the purpose of providing funds with which to pay such final judgment. The clerk of the village rests under a clear legal duty to certify to the council the amount of tax necessary to provide for the payment of this final judgment, and also, if the subdivision is unable, with due consideration of the best interests of the village, to pay the final judgment, to certify that fact to the council. The treasurer rests under a clear legal duty to receive and disburse the fund raised by taxation or bond issue, according to law. 2 Sutherland on Statutory Construction (2d Ed.), Section 637; Board of Supervisors of Rock Island County v.United States, 71 U. S. (4 Wall.), 435, 18 L.Ed., 419; State, ex rel. Whiteman, v.Chase, Governor, 5 Ohio St. 528; City of Galena v. Amy, 72 U.S. (5 Wall.), 705, 18 L.Ed., 560; P. De Ronde Co. v. UnitedStates Sugar Equalization Board (D.C.), 299 F., 659, at page 663; Uhl v. Badaracco, 199 Cal., ___, 248 P. 917; State, exrel. Foote, v. Bartholomew, 103 Conn. 607, 132 A. 30;Chase v. United States (C.C.A.), 261 F., 833; United States,ex rel. Siegel, v. Thoman, 156 U.S. 353, at page 359,15 S.Ct., 378, 39 L.Ed., 450; Washington County v. Davis,162 Ark. 335, 258 S.W. 324; McDonald v. Board of Freeholdersof Hudson County, 98 N.J. Law, 386, 121 A. 297; Id.,99 N.J. Law, 170, 122 A. 801; People, ex rel. Reynolds, v. CommonCouncil of City of Buffalo, 140 N.Y. 300, 35 N.E. 485, 37 Am. St. Rep., 563.

Demurrer to amended petition overruled.

MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.