15 N.E.2d 353
No. 26972Supreme Court of Ohio.
Decided May 25, 1938.
Mandamus — State not compelled to pay county distributive share of retail sales tax — County indebted to state — One-half cost of maintaining insane persons committed to private institutions — Detention hospitals designated and approved by county commissioners — Sections 3154 and 3155, General Code.
IN MANDAMUS.
This action in mandamus was brought in this court by the state, on relation of members of the Board of County Commissioners of Cuyahoga county, against the State Auditor and Director of Finance, and seeks a peremptory writ compelling the Auditor of State to issue, and the Director of Finance to approve, a voucher and a warrant on the Treasurer of State to the County Treasurer of Cuyahoga county, for a sum claimed to be due in payment of the distributive share of that county upon a proper allocation of the moneys collected under the state Retail Sales Tax Law. The relators aver that Cuyahoga county is not indebted or otherwise obligated to the state of Ohio in any sum whatever, and that without right and contrary to law respondents have refused and failed to issue and approve a voucher and warrant in the sum claimed to be due.
The respondents answer that the sum of money in question was withheld from the county’s distributive share of the sales tax funds after the Auditor of Cuyahoga county had been duly furnished with a statement of such county’s indebtedness to the state, as provided by law; that relators, as county commissioners, had entered into no agreement for the payment of such indebtedness as authorized by law, and that such amount so withheld represents the county’s share of the cost
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of maintaining insane persons duly committed by the Probate Court to detention hospitals of that county and detained therein, under authority of Amended Substitute House Bill No. 542, passed by the 92nd General Assembly as an emergency measure March 29, 1937, and approved by the Governor April 2, 1937, which commitments of such insane persons to such detention hospitals were made by the Probate Court of Cuyahoga county since and prior to the effective date of Amended Substitute House Bill No. 542, April 2, 1937, 117 Ohio Laws, — .
The relators, by reply, deny such indebtedness and further deny that the institutions to which such insane persons were committed were or are detention hospitals established by the county commissioners or otherwise in pursuance of law, and deny that during the period covered by such statement of cost of maintenance such insane persons were committed to or detained in such institutions by authority of or with the approval or consent of the relators as county commissioners.
The case was submitted upon the pleadings and a stipulation of facts.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Ralph W. Edwards, for relators.
Mr. Herbert S. Duffy, attorney general, and Mr. William S. Evatt., for respondents.
BY THE COURT.
The funds involved in this controversy are a portion of Cuyahoga county’s share of the proceeds of the retail sales tax distributable January 1, 1938, retained by the state, and for which the State Auditor has refused to issue the warrant of the state upon the ground that Cuyahoga county is indebted to the state in the amount in question. A very voluminous so-called “Stipulation of Facts” has been prepared and presented, and upon such agreed statement of
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facts this case was submitted for determination. However, the facts essential to the disposition of the legal question presented are comparatively simple and within a rather narrow compass.
The claimed indebtedness of the county by reason of which the warrant of the state is withheld is its half of the cost of maintaining insane wards committed to county detention hospitals. The sole question at issue, therefore, is whether Cuyahoga county owes the state for such cost of care and maintenance of certain persons adjudged by the Probate Judge of Cuyahoga county to be insane and committed to certain private hospitals and sanitariums in Cuyahoga county during the period from April 2, 1937, to January 1, 1938, and the decision of that question depends upon whether such hospitals during the period stated were “detention hospitals” within the meaning of that term as used in Section 3155, General Code.
It is agreed that as early as 1927 the County Commissioners of Cuyahoga county, by reason of the overcrowded condition of the state hospital at Cleveland, made provision for additional housing and hospital facilities for persons adjudged to be insane, by contracts with the authorities of the city of Cleveland whereby the hospitals of the city were established as detention hospitals, and that until September, 1935, such adjudicated insane persons were then cared for in these hospitals and sanitariums at the cost of Cuyahoga county. The commitment of such persons by the Probate Judge of the county to such hospitals and sanitariums had been pursuant to formal action and approval by the county commissioners. The law at that time required the payment of the cost of the care and maintenance of such wards to be borne by the county. By amendment of the statute, effective September 5, 1935, the state became liable for the care and maintenance of insane persons committed to detention hospitals by a Probate Judge. Though the entire cost of
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care and maintenance of such adjudicated insane persons so committed was then paid by the state, the county commissioners still retained and exercised the right to designate and establish the detention hospitals to which such commitments might be made; and in Cuyahoga county such designation (with one possible exception) was never altered or revoked. Such was the situation when the amendment of Section 3155, General Code, now in force, became effective April 2, 1937; and thereafter the cost of the care and maintenance of adjudicated insane persons in designated detention hospitals under the provisions of the amended statute was to be equally borne by the county and state. It was under and by virtue of the provisions of such amended statute that it is claimed the indebtedness in question was incurred. The county commissioners now seek to avoid liability for the county’s portion for such care and maintenance upon the ground that these institutions in which such insane persons were cared for and maintained pursuant to commitment thereto by the Probate Judge of Cuyahoga county had not been designated as detention hospitals by the county commissioners.
As heretofore stated, the hospitals in question had been previously designated or approved by the county commissioners as detention hospitals. It will be assumed that, when such designation was made, action was taken pursuant to the provisions of Sections 3154 and 3155, General Code, as they then existed. When, in 1935, the county availed itself of the 1935 amendment of Section 3155, General Code, which required the state to meet the entire expense of the care and maintenance of insane persons confined in such detention hospitals, the county commissioners made no change or alteration in such designation of detention hospitals, but merely directed attention to the fact that the county was no longer liable for the care and maintenance of insane persons committed thereto. Accordingly, the state then paid these institutions for the service rendered as
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detention hospitals pursuant to their previous designation as such by the county commissioners. It is conceded that the institutions in question have supplied the essential service and provided care and maintenance for the state’s wards duly committed thereto from Cuyahoga county and that the bills rendered are in all respects correct.
We do not feel disposed to indulge in technical niceties in the construction and application of these statutory provisions where the welfare of the state’s unfortunate wards is involved. Whether the designation of such detention hospitals was originally made in strict conformity with the statutes then in force or whether these institutions comply with the various technical requirements specified need not now be the subject of inquiry. Having been designated and used for the purpose indicated during the period when the state was paying the entire cost and expense of the care and maintenance of such wards, there can be no well-founded objection to the maintenance of that same status of these detention hospitals during the period when such expense is borne equally by the county and state. Having secured the benefit of such previous designation when the state was paying the entire cost and expense, the county should not now be permitted to renounce that action and thus relieve itself from the obligation now imposed by the statute. Good faith and fair dealing should be required of men, whether acting with or without official title.
Clearly the situation presented does not warrant the allowance, but on the contrary requires the denial, of the writ of mandamus sought. It is well settled that only duties specially enjoined by law are enforcible by mandamus and the right thereto must be certain and clear.
Writ denied.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.
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