Chapter 2731: MANDAMUS

2731.01 Mandamus defined.

Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.

Effective Date: 10-01-1953

2731.02 Courts authorized to issue writ - contents.

The writ of mandamus may be allowed by the supreme court, the court of appeals, or the court of common pleas and shall be issued by the clerk of the court in which the application is made. Such writ may issue on the information of the party beneficially interested.

Such writ shall contain a copy of the petition, verification, and order of allowance.

Effective Date: 10-01-1953

2731.03 Writ does not control judicial discretion.

The writ of mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion.

Effective Date: 10-01-1953

2731.04 Application for writ.

Application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit. The court may require notice of it to be given to the defendant, or grant an order to show cause why it should not be allowed, or allow the writ without notice.

Effective Date: 10-01-1953

2731.05 Adequacy of law remedy bar to writ.

The writ of mandamus must not be issued when there is plain and adequate remedy in the ordinary course of the law.

Effective Date: 10-01-1953

2731.06 Peremptory writ in first instance.

When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory mandamus. In all other cases an alternative writ must first be issued on the allowance of the court, or a judge thereof.

Effective Date: 10-01-1953

2731.07 Allowance of writ entered on journal.

The allowance of the writ of mandamus, and an order that the defendant, immediately upon service, do the act required to be performed, or, when an alternative writ is allowed, that he do the act or show cause before the court, at a specified time and place, why he does not do the act, shall be entered on the journal.

Effective Date: 10-01-1953

2731.08 Service of writ.

The writ of mandamus shall be served upon the defendant personally, by copy, by the sheriff or by a person specially authorized by the court or judge issuing the writ. Such officer or person must report his proceedings therewith to the court. When the service is made by a person not an officer, the return must be verified by his affidavit.

Effective Date: 10-01-1953

2731.09 Pleadings - effect.

On the return day of an alternative writ of mandamus, or such further day as the court allows, the defendant may answer as in a civil action. If the writ is allowed by a single judge, said defendant may demur.

The plaintiff may demur to the answer or reply to new matter therein, and the defendant may demur to the reply, as in a civil action.

The pleadings have the same effect, must be construed, may be amended, and issues of fact made by them must be tried, and further proceedings thereon had, in the same manner as in civil actions.

Effective Date: 10-01-1953

2731.10 Peremptory writ allowed on failure to answer.

If no answer is made to an alternative writ of mandamus, a peremptory mandamus must be allowed against the defendant.

Effective Date: 10-01-1953

2731.11 Recovery of damages.

If judgment in a proceeding for a writ of mandamus is rendered for the plaintiff, the relator may recover the damages which he has sustained, to be ascertained by the court or a jury, or by a referee or master, as in a civil action, and costs. A peremptory mandamus shall also be granted to him without delay.

Such recovery of damages against a defendant is a bar to any other action upon such cause of action.

Effective Date: 10-01-1953

2731.12 Costs against relator.

If judgment in a proceeding for a writ of mandamus is rendered for the defendant, all costs shall be adjudged against the relator.

Effective Date: 10-01-1953

2731.13 Failure to obey writ.

When a peremptory mandamus has been directed to a public officer, body, or board commanding the performance of a public duty specially enjoined by law, and the court finds that such officer, or a member of such body or board, without just excuse, refused or neglected to perform the duty so enjoined, such court may impose a fine not exceeding five hundred dollars upon such officer or member. Such fine shall be paid into the county treasury of the county in which the duty should have been performed, and its payment is a bar to an action for any forfeiture or fine incurred by such officer or member by reason of such refusal or neglect.

Effective Date: 10-01-1953

2731.14 Writ to force tax levy - county auditor to levy and assess tax.

When a peremptory mandamus has been awarded against a board of county commissioners, a board of township trustees, the legislative authority of a municipal corporation, or a board of education of a school district to levy and assess a tax to pay interest upon a debt or to create a sinking fund for the payment of a funded debt, and such officers have resigned, or refuse or neglect to levy and assess such tax, or their offices are vacant, upon the motion of an interested person and on being satisfied of the fact of such resignation, vacancy, or refusal or neglect to levy such tax, and of the right of such person to have it levied and assessed, the court may issue a special order to the auditor commanding him to levy and assess upon the taxable property of the county, township, or municipal corporation the taxes required by law, or by the judgment or order of such court, to be levied and assessed for such purposes, and to place such taxes upon the duplicate for collection by the county treasurer.

Effective Date: 11-21-1988

2731.15 County auditor shall execute order.

When a special order is issued to a county auditor under section 2731.14 of the Revised Code, he is responsible for its execution as if he were an officer of the court. He shall receive such fees for his services in executing the order as may be fixed by the court. He shall add such fees and all other costs of the proceeding to the taxes levied in executing such order, and place them upon the duplicate for collection with such taxes.

Effective Date: 10-01-1953

2731.16 Power of court.

Sections 2731.14 and 2731.15 of the Revised Code do not limit the power of the court to carry its order and judgment into execution, or to punish any officer named therein for contempt or disobedience of its orders or writs.

Effective Date: 10-01-1953