49 N.E.2d 175

THE STATE, EX REL. BROPHY ET AL. v. CITY OF CLEVELAND ET AL.

No. 29043Supreme Court of Ohio.
Decided May 26, 1943.

Mandamus — Writ not issued to require public officials to act — Relator without beneficial interest where no legal right to be affected — Second action to require performance of acts ordered in first action.

1. Where no legal right of a person can be affected by the failure of public officials to act in any given matter, he has no such beneficial interest as will permit him to maintain an action in mandamus against them to require official action in such matter.

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2. A writ of mandamus will not issue in a second action between the same parties or between parties representing such parties to require the performance of what the court in the first action has already ordered to be done.

IN MANDAMUS.

This is an action in mandamus originating in this court in which the relator seeks a writ commanding the respondent to make provision for the payment and to pay to the waterworks fund of the city of Cleveland the sum of $637,861.80, plus interest thereon, by appropriating and transferring such amount from the general fund of such city.

In this case it is disclosed that the relator, although not a resident or taxpayer of the respondent city, is a purchaser of water from the waterworks system operated by such city; that he brings this action on behalf of himself and other purchasers of water in like situation; that prior to September 19, 1932, the respondent city made certain withdrawals from the waterworks fund, transferring the amounts so withdrawn to the general or other funds of the respondent city; that on such date an action was instituted in the Common Pleas Court of Cuyahoga county by a purchaser of water, alleging such withdrawals and transfers to be illegal and wrong as to water rate payers; that on December 26, 1933, that court declared the withdrawals and transfers to be illegal and ordered the respondent city to pay the sum of $637, 861.80 to the waterworks fund of the city; and that said cause was appealed to the Court of Appeals and in turn to the Supreme Court of Ohio, where the order and judgment were affirmed. (Se Hartwig Realty Co. v. City of Cleveland, 128 Ohio St. 583, 192 N.E. 880.)

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It is alleged in the petition that said order contained the following:

“Said defendants and their successors are hereby ordered to collect and refund to the department of public utilities of water and heat of the city of Cleveland the sum of $6037,861.80.”

The relator further alleges that the respondents have taken no steps to refund said sum or any part thereof, and still owe the sum so ordered to be paid.

The respondent city of Cleveland filed an answer to relator’s petition admitting the court order above referred to but denying that relator is a purchaser of water from the city of Cleveland in his own right, but that the water in question is delivered to the premises of parties for whom the relator is agent; and further that the petition fails to state facts sufficient to constitute a cause of action.

By answers to interrogatories attached to the petition and by depositions taken, the above-recited facts are established as true.

Mr. Wm. R. Fairgrieve, Mr. David J. Brophy, Mr. Hugh McNamee
and Mr. Merritt A. Vickery, for relator.

Mr. Thomas A. Burke, Jr., director of law, Mr. Joseph H. Crowley and Mr. Charles W. White, for respondents.

HART, J.

Two main questions are made by the record in this case. They are (1) does the relator have legal capacity to sue; and (2) does the petition state facts sufficient to constitute a cause of action?

It is clear from the uncontroverted facts in this case that the relator was acting merely as agent for others in the purchase of water for property owners in the city of Cleveland; that he was reimbursed by these

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owners for sums paid by him for water, and that he has in fact no pecuniary interest in water rates charged by or paid to the city of Cleveland. Generally, agents have no implied power to institute actions even in respect to the subject matter of their agency. 2 American Jurisprudence, 154, Section 194.

Section 12287, General Code, requires that the person bringing an action in mandamus must be a party beneficially interested in the relief sought. Where no legal right of a person can be affected by the failure of public officials to act in any given matter, he has no such beneficial interest as will permit him to maintain an action in mandamus, against them to require official action in such matter. State, ex rel. Latta, Chief, v. White, 140 Ohio St. 197, 42 N.E.2d 902 State, ex rel. Meyer, v. Henderson, 38 Ohio St. 644.

Furthermore, the relief sought in this case, as shown by the petition, is identical with that sought and heretofore granted by the court in the case referred to in relator’s petition. (Hartwig Realty Co. v. City of Cleveland, supra.) A writ of mandamus will not issue in a second action between the same parties or between parties representing such parties to require the performance of what the court in the first action has already ordered to be done. It would be a vain thing for this court to grant a peremptory writ to require the performance of what the court has already ordered, and since the granting of such a writ is a matter of discretion with the court and not a matter of right, it will not grant such relief a second time State, ex rel. Mettler, Pros. Atty., v. Stratton et al., Commrs., 139 Ohio St. 86, 38 N.E.2d 393. The remedy of a water rate paver interested in the order heretofore granted by the court must be sought in a proper court to compel compliance with the order already

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made. The petition does not state a cause of action and the allowance of the writ will be denied.

Writ denied.

WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, BELL and TURNER, JJ., concur.

WILLIAMS, J., not participating.