State ex rel. Botkins v. Laws

[This opinion has been published in Ohio Official Reports at 69 Ohio St.3d 383.]

THE STATE EX REL. VILLAGE OF BOTKINS v. LAWS ET AL.

[Cite as State ex rel. Botkins v. Laws, 1994-Ohio-518.]

Mandamus to compel Shelby County Commissioners to pay village solicitor for

services provided by him in Sidney Municipal Court—Limited writ granted

to compel commissioner to exercise their discretion pursuant to R.C.

1901.34(C) in determining reasonable amount of compensation due village

solicitor.

(No. 92-2144—Submitted March 1, 1994—Decided June 1, 1994.]

IN MANDAMUS.

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{¶ 1} On October 26, 1992, the village of Botkins, relator, filed a complaint

seeking a writ of mandamus to compel the Shelby County Commissioners,

respondents, to comply with R.C. 1901.34(C) by paying relator's village solicitor,

Stanley R. Evans, for services provided by him and his assistants in the Sidney

Municipal Court. The complaint named William E. Leighty, Adolph J. Meyer, and

Thomas A. Zimpher, in their capacities as Shelby County Commissioners, as

respondents. Following this court's overruling of respondents' motion to dismiss

relator's complaint, John Laws and C. Richard Meeker, as duly elected successors

to Leighty and Meyer as Shelby County Commissioners, as well as Zimpher, filed

an answer which admitted some of the allegations of the complaint and asserted

that relator had no standing to bring the action. Respondents further contended that

relator had failed to include a necessary party, i.e., the village solicitor, in its action.

{¶ 2} The parties filed an agreed partial statement of facts, and relator filed

an affidavit of its mayor, Donald Doll. The pleadings and evidence presented

pursuant to Section 7 of S.Ct.Prac.R. VIII set forth the following facts. Relator is

an Ohio municipal corporation situated in Shelby County, Ohio, and is organized

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as a statutory form of municipal government as provided by Section 2, Article

XVIII, Ohio Constitution. The Sidney Municipal Court has territorial jurisdiction

over all of Shelby County, including relator. Pursuant to R.C. 733.48, relator, under

its legislative authority, deeming it necessary, employed a village solicitor to, inter

alia, provide legal counsel to it. Evans has been the village solicitor for relator

since January 1, 1989. The county and/or state receive any fines paid for the

violation of state laws which occur within the county, as well as those violations

which occur inside municipal corporations located therein. Village Solicitor Evans

and his assistants have prosecuted cases in the Sidney Municipal Court involving

alleged criminal violations of state law that occurred within relator's territorial

boundaries.

{¶ 3} On August 23, 1990, Evans, by letter to the Shelby County

Prosecuting Attorney, requested the prosecutor's opinion regarding payment to the

solicitor for prosecutions in the Sidney Municipal Court pursuant to R.C.

1901.34(C). On October 15, 1990, the prosecutor, in a letter to Evans, noted that

the statutory directive was discretionary rather than mandatory and stated that

Evans should contact respondents directly. On October 30, 1990, Evans, Doll, and

the village's police chief met with respondents and discussed the payment issue. By

letter dated December 17, 1990, Evans requested a decision from respondents on

the reimbursement matter. A May 9, 1991 letter from Evans to respondents

reiterated the request for a decision and included an invoice for legal services

rendered in April 1991 for criminal prosecutions in the Sidney Municipal Court.

The invoice listed the types of legal services rendered, the corresponding dates, and

a total balance due of $410.

{¶ 4} By letter dated May 16, 1991 to Evans, respondents denied his request

that the county pay him for his legal services pursuant to R.C. 1901.34(C). The

respondents specified that the county possessed "no legal obligation" to assume

those costs. On March 25, 1992, Evans, in another letter to respondents, again

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requested that the county pay his legal expenses pursuant to R.C. 1901.34(C). In

an April 9, 1992 letter, respondents again denied Evans' request, stating that they

had not located any case "where commissioners are responsible for costs of

prosecution of village misdemeanant cases" and further noting that it was

"inadvisable to enter into any * * * agreement" with relator concerning such

payment.

{¶ 5} Relator compensated Evans for his and his assistants' prosecutorial

services in prosecuting criminal cases in the Sidney Municipal Court, and the

solicitor assigned all of his rights and claims for such compensation from

respondents to relator. According to Doll, relator, since 1986 has paid its village

solicitors at least $7,000 for the prosecutorial services at issue. By resolution

adopted on September 8, 1992, relator authorized Evans to commence this action

to compel respondents to pay it the compensation authorized by R.C. 1901.34(C).

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Stanley R. Evans, Village Solicitor, and Randall W. May, for relator.

James F. Stevenson, Shelby County Prosecuting Attorney, and Michael F.

Boller, Assistant Prosecuting Attorney, for respondents.

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Per Curiam.

{¶ 6} Relator contends that it is entitled to a writ of mandamus to compel

respondents to (1) reimburse it a reasonable amount for sums paid to its village

solicitor for past prosecutions in the Sidney Municipal Court of criminal violations

of state law occurring within the village, and (2) pay its village solicitor

prospectively a reasonable amount for such prosecutions. In order to be entitled to

a writ of mandamus, relator must establish that (1) relator has a clear legal right to

the relief prayed for, (2) respondent has a clear legal duty to perform the act

requested, and (3) relator has no plain and adequate remedy at law. State ex rel.

Manson v. Morris (1993), 66 Ohio St.3d 440, 441, 613 N.E.2d 232, 233-234; State

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ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53,

399 N.E.2d 81, paragraph one of the syllabus.

{¶ 7} When it deems it necessary, the legislative authority of a village may

provide legal counsel for the village. R.C. 733.48. The village solicitor for each

municipal corporation within the territory of a municipal court shall prosecute all

criminal cases brought before the municipal court, including those involving

violations of state statutes occurring within the municipal corporation. R.C.

1901.34(A). R.C. 1901.34(C) provides:

"The village solicitor, city director of law, or similar chief legal officer shall

perform the same duties, insofar as they are applicable to him, as are required of

the prosecuting attorney of the county. He or his assistants whom he may appoint

shall receive for such services additional compensation to be paid from the treasury

of the county as the board of county commissioners prescribes." (Emphasis added.)

{¶ 8} Relator claims that the foregoing provision places a mandatory duty

upon respondents to pay Evans and his assistants additional compensation for

prosecuting criminal cases in the Sidney Municipal Court. Respondents assert that

any duty arising under R.C. 1901.34(C) is discretionary.

{¶ 9} R.C. 1901.34(C) provides that the village solicitor and any assistants

"shall" receive additional compensation for the services required of them under

R.C. 1901.34(A). It is axiomatic that when used in a statute, the word "shall"

denotes that compliance with the commands of that statute is mandatory unless

there appears a clear and unequivocal legislative intent that it receive a construction

other than its ordinary usage. Ohio Dept. of Liquor Control v. Sons of Italy Lodge

0917 (1992), 65 Ohio St.3d 532, 534, 605 N.E.2d 368, 370; Dorrian v. Scioto

Conservancy Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834,

paragraph one of the syllabus. There is no contrary "clear and unequivocal

legislative intent" here. Nevertheless, the remainder of R.C. 1901.34(C) specifies

that the additional compensation that "shall" be paid is "as the board of county

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commissioners prescribes," which evidences discretion on the part of the county

commissioners.

{¶ 10} In Butler Cty. Bd. of Commrs. v. State ex rel. Primmer (1915), 93

Ohio St. 42, 112 N.E. 145, this court interpreted an analogous statutory provision,

G.C. 4307 (now R.C. 733.52), which provided:

"The prosecuting attorney of the police or mayor's court shall prosecute all

cases brought before such court, and perform the same duties, as far as they are

applicable thereto, as required of the prosecuting attorney of the county. The city

solicitor or the assistant or assistants whom he may designate to act as prosecuting

attorney or attorneys of the police or mayor's court shall receive for this service

such compensation as council may prescribe, and such additional compensation as

the county commissioners shall allow." (Emphasis added.)

{¶ 11} We affirmed the granting of a writ of mandamus to allow and fix a

city solicitor's compensation for additional services as a prosecuting attorney in

municipal court because "[t]he amount allowed by the council and the amount

allowed by the county commissioners is wholly in their judgment, but the statute

makes it mandatory upon them to allow something." Id. at 44, 112 N.E. at 146.

{¶ 12} Similarly, in State ex rel. Browning v. Fayette Cty. Commrs.

(App.1933), 14 Ohio Law Abs. 529, the Second District Court of Appeals held that

a writ of mandamus would issue where the county commissioners abused their

discretion in allowing only one dollar to a city solicitor for his services in state cases

before a municipal court pursuant to G.C. 4307. It determined that the

commissioners had abused their discretion where they had "no knowledge as to the

nature or extent of the work and * * * no investigation whatever [was made] as to

what the services would reasonably be worth." Id. at 531.

{¶ 13} In these cases, it is "evidently the legislative intent that the

commissioners are to provide additional compensation in amounts commensurate

with the additional duties involved, and where such additional duties are negligible,

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to withhold such additional compensation entirely." See 1985 Ohio Atty.Gen.Ops.

No. 85-086, at 2-349 to 2-350, fn. 1, and 1952 Ohio Atty.Gen.Ops. No. 2183 at

793, construing prior versions of R.C. 1901.34(C).

{¶ 14} Based upon the foregoing authorities, it is manifest that respondents

possessed a mandatory duty under R.C. 1901.34(C) to compensate Evans and his

assistants for their additional services, but that the amount of such compensation

was within the discretion of respondents. This interpretation gives effect to all parts

of R.C. 1901.34(C). See State v. Arnold (1991), 61 Ohio St.3d 175, 178, 573

N.E.2d 1079, 1082 (a statute shall be construed, if practicable, as to give effect to

every part of it). Cf., also, State ex rel. Cleveland Mun. Court v. Cleveland City

Council (1973), 34 Ohio St.2d 120, 63 O.O.2d 199, 296 N.E.2d 544 (where

legislative authority possesses discretion in funding requests, the party seeking

money is not entitled to an unquestioned appropriation of all sums requested).

{¶ 15} A writ cannot issue to control an officer's exercise of discretion, but

it can be issued to compel him to exercise it when he has a clear legal duty to do

so. State ex rel. Hodges v. Taft (1992), 64 Ohio St.3d 1, 4, 591 N.E.2d 1186, 1189;

State ex rel. Martin v. Corrigan (1986), 25 Ohio St.3d 29, 25 OBR 24, 494 N.E.2d

1128. Respondents refused relator's and Evans' requests for additional

compensation because it felt that it had "no legal obligation" to do so.

Consequently, respondents failed to exercise their discretion as required by the

plain language of R.C. 1901.34(C). Nevertheless, respondents raise several

additional contentions in support of denying mandamus relief here.

{¶ 16} Respondents assert that (1) this case should proceed to an

evidentiary hearing, (2) Evans could not contractually assign his right to

compensation, (3) Evans was not entitled to prosecute criminal actions in the

absence of enabling legislation authorizing him to perform such duties, (4) relator

is not the real party in interest, (5) mandamus will not lie against the successor

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commissioners, and (6) mandamus will not lie against the ex-commissioners in

their individual capacities.

{¶ 17} Respondents initially claim that factual issues remain which require

an evidentiary hearing pursuant to R.C. 2731.09. However, to the extent that R.C.

2731.09 conflicts with Section 7 of S.Ct.Prac.R. VIII, the rule supersedes the

statute. See, generally, Whiteside, Ohio Appellate Practice (1993) 134, Section T

10.07. More importantly, in the case at bar, the issues are subject to determination

based solely upon the admissions contained in respondents' answer as well as the

parties' agreed statement of facts, i.e., the dispositive facts are uncontroverted.

{¶ 18} As to respondents' assertion that Evans could not contractually

assign his right to compensation, R.C. 1901.34(C) provides for payment to the

village solicitor, city director of law, similar chief legal officer, or their assistants

for the additional duties specified in R.C. 1901.34(A). Nevertheless, the

compensation already earned by a public officer may validly be assigned by him,

although an assignment of future compensation not yet earned is contrary to public

policy and thus void. Serrill v. Wilder (1907), 77 Ohio St. 343, 357, 83 N.E. 486,

491, citing Mechem, Public Office and Officers, Section 874. Further, Evans was

required to prosecute criminal actions by virtue of R.C. 1901.34(A). Therefore, the

absence of additional enabling legislation is not fatal to relator's claim.

{¶ 19} Respondents, as they did in their dismissal motion, contend that

relator is not the real party in interest. Civ.R. 17(A) provides that "[e]very action

shall be prosecuted in the name of the real party in interest." Additionally, a

complaint for a writ of mandamus must set forth facts showing that the relator is a

party beneficially interested in the requested act before a proper claim is

established. R.C. 2731.02; Hodges, supra. A real party in interest is one who is

directly benefitted or injured by the outcome of the case rather than one merely

having an interest in the action itself. McCormac, Ohio Civil Rules Practice (2

Ed.1992) 64, Section 4.02, citing W. Clermont Edn. Assn. v. W. Clermont Bd. of

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Edn. (1980), 67 Ohio App.2d 160, 21 O.O.3d 457, 426 N.E.2d 512; see, also,

Barksdale v. Ohio Dept. of Adm. Serv. (1992), 78 Ohio App.3d 325, 329, 604

N.E.2d 798, 800-801. Since relator has an interest, by virtue of Evans' assignment

of his claims, it is a real party in interest as to its claim for reimbursement for

additional compensation under R.C. 1901.34(C).

{¶ 20} However, relator does not possess sufficient direct beneficial interest

as to its request to compel respondents to pay the village solicitor prospectively.

Moreover, the village solicitor has not joined this action as a relator. Although

Civ.R. 17(A) provides that "[n]o action shall be dismissed on the ground that it is

not prosecuted in the name of the real party in interest until a reasonable time has

been allowed after objection for ratification of commencement of the action by, or

joinder or substitution of, the real party in interest," pleading defects such as the

failure to amend a complaint to join a proper party may not be ignored. Patterson

v. V & M Auto Body (1992), 63 Ohio St.3d 573, 577, 589 N.E.2d 1306, 1309.

Relator and Evans were afforded a reasonable time to allow the joinder of the

solicitor to the action but never did so.

{¶ 21} Furthermore, the function of mandamus is to compel the

performance of a present existing duty as to which there is a default; it is not granted

to take effect prospectively, and it contemplates the performance of an act which is

incumbent on the respondent when the application for a writ is made. State ex rel.

Willis v. Sheboy (1983), 6 Ohio St.3d 167, 6 OBR 225, 451 N.E.2d 1200, paragraph

two of the syllabus; State ex rel. Krejci v. N. Royalton Civ. Serv. Comm. (1985), 17

Ohio St.3d 140, 141, 17 OBR 284, 285, 478 N.E.2d 239, 240. Therefore, relator's

claim for mandamus to compel prospective payment to the village solicitor must be

denied.

{¶ 22} Regarding respondents' remaining arguments concerning the

substitution of two of them as commissioners during the pendency of this action,

Civ.R. 25(D)(1) provides:

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"When a public officer is a party to an action in his official capacity and

during its pendency dies, resigns, or otherwise ceases to hold office, the action does

not abate and his successor is automatically substituted as a party. * * *" Since the

action is really against the position rather than the person, the action is not affected

by the change in office. See, generally, McCormac, supra, at 87, Section 4.31; see,

also, State ex rel. Gill v. Winters (1990), 68 Ohio App.3d 497, 589 N.E.2d 68;

Brooks v. Barry (Jan. 30, 1992), Gallia App. No. 90CA27, unreported. Therefore,

the action here is not affected by the election of two new commissioners during the

pendency of this action. Moreover, since the two ex-commissioners, Leighty and

Meyer, were sued solely in their official capacities, they have already been

automatically removed from the action, and their pending motion for summary

judgment is consequently moot. With regard to respondents' contention that there

was no denial or default, the evidence indicates that they twice denied requests for

compensation pursuant to R.C. 1901.34(C). No further requests were required.

{¶ 23} Accordingly, relator is entitled to a limited writ of mandamus to

compel respondents to exercise their discretion pursuant to R.C. 1901.34(C) in

determining a reasonable amount of compensation due Evans for the additional

services already rendered, which claims he has assigned to relator. In exercising

their discretion, respondents are under no duty to award all sums requested, i.e.,

they are not bound by the amount that relator determined was proper in paying its

village solicitor. Nevertheless, their decision should be based upon the evidence

submitted to relator concerning the reasonable value of these services. Browning,

supra. Thus, relator's request to compel payment to its village solicitor

prospectively is denied.

{¶ 24} Accordingly, for the foregoing reasons, relator's request for a writ of

mandamus is granted in part and denied in part.

Writ granted in part and

denied in part.

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MOYER, C.J., A.W. SWEENEY, WRIGHT, F.E. SWEENEY and PFEIFER, JJ.,

concur.

DOUGLAS and RESNICK, JJ., concur in part and dissent in part.

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DOUGLAS, J., concurring in part and dissenting in part.

{¶ 25} I concur with the majority's holding that pursuant to R.C.

1901.34(C), relator is entitled to reimbursement from respondents for

compensation relator has paid to its village solicitor, Stanley R. Evans. I do not,

however, agree with the discussion and holding of the majority that respondents are

not obligated to pay compensation to relator or Evans for future prosecutions of

criminal cases involving state law violations which are brought in the Sidney

Municipal Court. Would the majority have relator and/or Evans file a mandamus

action in this court after every prosecution? Unfortunately, that is the practical

effect of today's decision. The case at bar is not simply a cause of action for

restitution or past payments due relator from respondents. This is a statutory

construction case and, even though the present action lies in mandamus, once we

construe a statute, such as R.C. 1901.34, that construction is binding upon all those

who happen to fall within the statutory scheme.

{¶ 26} R.C. 1901.34(A) requires that Evans prosecute criminal cases in the

Sidney Municipal Court for alleged state law violations which occur within relator's

territorial boundaries. Further, R.C. 1901.34(C) provides that the village solicitor

perform the same duties as are required of the prosecuting attorney in the county,

and that the solicitor and any of his or her assistants "shall receive for such services

additional compensation to be paid from the treasury of the county

* * *." (Emphasis added.)

{¶ 27} With regard to prosecutions by a village solicitor involving

violations of state law, the village itself does not receive any fines imposed. See,

e.g., R.C. 2949.11. In such an instance, these fines end up in the hands of the county

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and/or state and, consequently, the village is forced to bear the prosecutorial

expenses. Fortunately, the General Assembly enacted R.C. 1901.34 to help remedy

this inequity. Compensation received by a municipal corporation from a county for

services rendered by a village solicitor and his or her assistants helps to defray costs

of potentially expensive criminal prosecutions.

{¶ 28} The majority confirms that "Evans was required to prosecute

criminal actions by virtue of R.C. 1901.34(A)." However, citing State ex rel. Willis

v. Sheboy (1983), 6 Ohio St.3d 167, 6 OBR 225, 451 N.E.2d 1200, and State ex rel.

Krejci v. N. Royalton Civ. Serv. Comm. (1985), 17 Ohio St.3d 140, 17 OBR 284,

478 N.E.2d 239, the majority ignores the general requirements of R.C. 1901.34(C)

and holds that "relator's claim for mandamus to compel prospective payment to the

village solicitor must be denied."

{¶ 29} The majority confuses the import of the requested relief sought by

relator. Relator is seeking a reasonable amount of compensation for payments

made to its village solicitor for past prosecutions, and essentially a determination

from this court that respondents, under similar circumstances in the future, must

follow the law set forth by the General Assembly and provide a reasonable amount

of compensation to relator or its village solicitor for prosecution of all criminal

cases involving a state law which are commenced in the Sidney Municipal Court.

Furthermore, the majority's reliance on Willis and Krejci, supra, in my opinion, is

misplaced. Neither decision involved R.C. 1901.34(C) nor were they a result of

our interpretation of a state law. Additionally, Butler Cty. Bd. of Commrs. v. State

ex rel. Primmer (1915), 93 Ohio St. 42, 112 N.E. 145, which is also extensively

relied upon by the majority, indicates that an interpretation of a state statute by this

court, even though the underlying action is in mandamus, is not frozen in time and

thereby limited solely to the party requesting relief. This court noted that "[t]his

[G.C. 4307] being a state statute, providing for compensation for services rendered

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to the state, it should be so construed to have uniform operation as far as practicable

throughout the state." Id. at 45, 112 N.E. at 147.

{¶ 30} Today's majority holds that R.C. 1901.34(C) should be applied in a

vacuum. However, such a finding perpetuates an issue which should be put to rest.

To prevent the same or similar problem from arising in the future, this court's

interpretation of R.C. 1901.34(C) should be binding upon all those who come

within the requirements of the statutory scheme.

{¶ 31} For the foregoing reasons, I concur in part and dissent in part.

RESNICK, J., concurs in the foregoing opinion.

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