State, Ex Rel. Dawn v. Kyle

After some twenty years service as a member of the police department of the city of Cincinnati, Ohio, relator was discharged on or about October 5, 1942, under circumstances which did not preclude his receiving the pension provided by section 45 of the rules adopted by the board of trustees of the police relief fund of the city on August 31, 1942, and he was accordingly placed on the pension roll.

In the court below, relator obtained a writ of mandamus compelling the trustees, respondents, to pay him the increased monthly amount provided by the amended rules adopted on August 30, 1943, from and after that date.

The appeal is upon questions of law.

The petition alleges in substance a duty on the part of the respondents to pay the increased pension and their failure to do so, "although the defendants, as such board, have been requested by the relator to do so."

The case was disposed of in the court below on an interpretation of sections 45-48 and 51 of the rules adopted on August 30, 1943, as compared with similar sections in existence on October 5, 1942, adopted August 31, 1942, under which relator's pension rights became fixed. Interpretation of the words "retired" in section 48 and "retirement" in section 45 of the rules adopted on August 30, 1943, was made. The bill of exceptions contains only the rules of August 31, 1942, and August 30, 1943, and a pension check of relator.

Section 51 of the rules of August 30, 1943, provides:

"In case of controversy as to the application or interpretation of any rule in any particular case, the board may hear testimony and argument and determine the controversy. Its determination shall be final."

The record is so meager as to be inadequate for intelligent review.

It appears that relator ignored rule 51 and precipitated the respondents into court without first having invoked the procedure provided by such rule.

The writ of mandamus is an extraordinary writ, and will not be issued as a substitute for existing remedies. While the petition alleges a bare request for increase and a failure to pay, it fails to allege a failure or refusal to pay after hearing or deliberation as contemplated by section 51, above quoted.

Where a condition precedent to the right to compel performance of a duty is imposed, it must appear that such condition has been performed. 25 Ohio Jurisprudence, 1184, Section 249. Nor will the writ be granted in anticipation of a supposed omission of duty, however strong the presumption that respondents will refuse to perform the duty involved. 25 Ohio Jurisprudence, 1000, Section 26. See, also, State, ex rel. Juhlman, v. Conners, 122 Ohio St. 355, 171 N.E. 589.

It appearing that relator failed to avail himself of the remedy afforded by rule 51, quoted supra, and that such procedure is a prerequisite to the granting of the drastic relief prayed for, the judgment of the Court of Common Pleas is reversed, and the cause remanded with instructions to dismiss the petition.

Judgment reversed.

ROSS, P.J., and MATTHEWS, J., concur.