# State ex rel. McDonald v. Kroeger

> Ohio Court of Appeals · January 11, 1938 · 27 Ohio Law. Abs. 329

URL: https://www.frixlaw.com/law-library/cases/6746558

## Case

- **Full name:** STATE ex McDONALD et v. KROEGER et
- **Court:** Ohio Court of Appeals
- **Decided:** January 11, 1938
- **Citations:** 27 Ohio Law. Abs. 329
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Barnes, Geiger, Hornbeck, Kornbeck
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ON APPLICATION FOB BEHEABING
Decided Jan 28, 1938
By THE COURT
The above entitled cause is now being determined on respondent’s application for rehearing.
Memoranda accompanies the application.
We have carefully examined the memorandum accompanying the application and also we have examined our original opinion. We find no propositions not considered by us before releasing our opinion.
Our attention is again called to §687-11 GC. It is our conclusion that this section is not applicable under the facts presented in relator’s petition. We call attention to the second paragraph in the above section, which reads as follows:
“The order of the court on such application shall not be deemed a final order; but by leave of court an independent suit may be brought and maintained by any such person deeming himself aggrieved thereby to restrain any action thereby au-' thorized.”
*333 The action in the instant case makes no compiaint as to the discretion exercised by tile superintendent or the approval of his order made by the Common Pleas Court. On the contrary the present action asks that the order be carried out. We agree that'the superintendent had a discretion to determine when, if at all, he would make his application under §68 <-23 GC. We think also that tie had control of this action up until the time of the hearing and, before hearing, might at any time have dismissed. However, we are unable to follow the argument that he may invoke the jurisdiction of the Common Pleas Court; bring the action to a filial hearing and determination and then claim the right to exercise a right to make the order effective or not at his will. This same section §687-23 GC, as we view it, makes it mandatory upon the superintendent to file a certified copy of the order with the Secretary of State. The pertinent part of this section contained in the last paragraph reads as follows: "The superintendent shall file a certified copy of such order in the office of the Secretary of State.”
Our attention is called to the case of The Cairo & Fulton Ry. Co. v Hecht, 95 U. S. 168 -170, in which case the Supreme Court determined that ás against the government the word “shall” when used in statute is to be construed as “may” unless a contrary intention is manifest. If this case is applicable, which we doubt, we think the legislative intent is manifest that the word “shall” should have its ordinary meaning. To construe it as meaning “may” would be contrary to the manifest intent.
The present'aetion is in no sense an action against the state but clearly is an action against an officer to require him to follow a clear mandate of the law.
The application for rehearing will be overruled.
BARNES, PJ, HORNBECK and GEIGER, JJ, concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6746558. Public record. Not legal advice.