#### The State, ex rel. Beane, Director of Law, *v.*Krebs et al., City Commission of City of Dayton.

(No. 1834

Decided January 15, 1945.)

*Mr. G. J. Brennan,*for relator.

*Mr. M. J. Gilbert,*for respondents.

*428Hornbeck, J.

This is an action for a writ of mandamus commanding the respondents to comply with their duty, as provided in Section 44 of the Charter of the City of Dayton, Ohio, to accept the bid of Wall, Cassel & Groneweg, certified public accountants, to make a continuous audit to which we will hereinafter refer more at length.

Averments of the petition material to a determination of the question for adjudication are that Section 44 of the Charter of the City of Dayton, is as follows: “Section 44. The commission shall cause a continuous audit to be made of the books of account, records, and transactions of the administrative departments of the city. Such audit, during each fiscal year shall be made by one or more certified public accountants who hold a certificate issued by the State Board of Accountancy of Ohio or by a state maintaining an equal standard of professional requirements, which entitles the holder of such certificate to an Ohio certificate. The duties of the auditor or auditors so appointed shall include the certifications of all statements required under section 78 of this charter. Such statements shall include a general balance sheet, exhibiting the assets and liabilities of the city, supported by departmental schedules, and schedules for each utility publicly owned or operated; summaries of income and expenditure, supported by detailed schedules; and also comparisons, in proper classifications, with the last previous year. The report of such audit for each previous year shall be printed and a copy thereof furnished to the Ohio state Bureau of Inspection and Supervision of Public Offices, to each member of the commission and to each citizen who may apply therefor; and a condensed summary thereof shall be published in the manner provided by the commission”; that the city of Dayton by its city commission observed *429the requirements of such section by causing a continuous audit to be made, as therein provided, annually until 1928 at which time it was discontinued; that, pursuant to a resolution of the commission on February *2r*1944, the commission invited bids from certified public accountants in the city of Dayton for the making of the audit provided in section 44; that in response thereto the firm of Wall, Cassel & Groneweg submitted its bid for such an audit at a cost of at least $12,000 nor more than $15,000 annually; that such bid was the sole and only bid received; and that it was rejected by the commission which has declined and now declines to accept the bid and comply with the provision of Section 44 of the Charter of the City of Dayton.

The respondents answered and set up four defenses, the first of which admits all facts set forth in the petition except “as hereinafter denied.”

The second defense asserts that the annual audit provided in section 44 of the charter was discontinued upon determination “that the audit regularly made by the Bureau of Inspection and Supervision of Public Offices of the state of Ohio, pursuant to the requirements of law, of the fiscal affairs of the said city of Dayton, Ohio, was in all respects an adequate audit”; and that “the hiring of private accountants to make a regular and continuous audit *would be substantially a duplication of the work regularly performed by the said state Bureau of Inspection and Supervision of Public Offices*and consequently a waste of large amounts of the public funds of said city.” (Emphasis ours.)

The third defense is that the sole bid received by the commissioners for such continuous audit as that referred to in the petition “is grossly disproportionate to whatever good or value might be derived from such *430a duplicating audit and that accordingly said bid was by them rejected.”

The fourth defense sets up at length the provisions of Sections 274 to 291, inclusive, General Code, and, particularly, Section 284 providing that an inquiry be made by the Bureau of Inspection and Supervision of Public Offices “into the methods, accuracy and legality of the accounts, records, files and reports of the office, whether the laws, ordinances and orders pertaining to the office have been observed, and whether the requirements of the bureau have been complied with.”

Further authority of the bureau is set out and, in substance, it is that the uniform system of inspection and audits of the fiscal affairs of Ohio cities set up under constitutional grant and legislative authority is the exclusive, legal method for the performance of such function; that Section 44 of the Charter of the City of Dayton is an encroachment upon the powers and duties of the Bureau of Inspection and Supervision of Public Offices; and that Section 44 of the Charter of the City of Dayton is invalid.

For further answer respondent commissioners state that at the time of submitting the bid, and together with it, the firm of certified public accountants also submitted to them a proposal for “a survey or review of accounting procedures and the preparation of financial statements of the city of Dayton. Said commissioners deem it to be in the public interest that they be free to authorize supplemental auditing of the financial affairs of said city when, as, and if, in their judgment, the welfare of the said city makes such an audit proper and desirable. They are, however, by reason of the recitals heretofore by them made, in serious doubt as to whether such action by them would under the laws of the state of Ohio be proper.”

The answer prays that the prayer of the petition *431be denied and for a declaratory judgment on tbe question therein propounded.

Tbe parties submitted tbe cause on tbe pleadings and an agreed statement of facts, many propositions of which are confirmatory of tbe respective allegations-of tbe petition and answer. We refer particularly to' propositions 6, 7 and 10 of sucb statement as significant in tbe determination of tbe right to tbe writ of mandamus:

> “6. That tbe local audit as called for by section 44 of tbe said charter was discontinued in 1928 by tbe then city commission, after a thorough study of tbe question and in consequence of its conclusion that tbe audit by tbe state of Ohio was adequate, that any further audit was unnecessary and that any expenditure therefor, especially an expenditure so substantial as required, would be a waste of public funds.

> *“7.*That a local audit has never been resumed for tbe reason that each successive city commission in office continuously since 1928, after due and careful consideration, arrived at tbe same conclusion.

> “10. That after a full and careful consideration, defendant commissioners, by a vote of its majority, determined that tbe making of sucb an audit would be substantially a duplication of tbe service now regularly performed by tbe Bureau of Inspection and Supervision of Public Offices of tbe state of Ohio and, therefore, a waste of public funds, and tbe said bid was for that reason thereupon rejected.”

Tbe net effect of tbe subject matter of those quoted propositions is that an administrative body, namely tbe City Commission of tbe City of Dayton has construed section 44 as requiring a duplication of tbe audits of tbe financial affairs of tbe city of Dayton made regularly by tbe Bureau of Inspection and Supervision of Public Offices of tbe state of Ohio under *432the state laws. Such an interpretation covering a long period of time must be given some weight with a court which has under consideration the construction of section 44 of the city charter, if such construction can be adopted under the language of the section. 37 Ohio Jurisprudence, 698, Section 387.

It is our judgment, that, under the agreed statement of facts and upon the averments of the second defense of the answer to which no reply has been filed, it may be held that section.44 requires substantially the‘ same inspectional procedure and audit of the fiscal affairs of the city of Dayton as is provided by the applicable sections of the G-eneral Code under which the Bureau of Inspection and Supervision of Public Offices operates, which service the bureau performs and the results of which it *makes available to the*respondents.

This then brings us to the nice question for determination, namely, does the fact that the city commis•sion now receives by action of the Bureau of Inspection and Supervision of Public Offices substantially the same results as would be obtained upon observation of the letter of section 44 establish a defense to the averments of the petition and the language of the section. It is our judgment that it is a defense although the provisions of .section 44, providing that the commission shall cause a continuous audit to be made, are mandatory.

There is authority to the effect that a court may not refuse to grant the writ of mandamus where under the law there is a mandatory obligation to do that which the writ seeks to accomplish. For instance, there is the right of a shareholder to inspect the books of a corporation. *Weihenmayer*v. *Bitner, Secy., 88*Md., 325, 42 A., 245, 45 L. R. A., 446, and note; *Kuhbach**433v. *Irving Cut Glass Co.,*220 Pa., 427, 69 A., 981, 20 L. R. A. (N. S.), 185, and note.

However, the general principle governing mandamus is that it is a summary and extraordinary writ, the issuance of which is within the sound discretion of the court and, “although mandamus is classified as a legal remedy, its issuance is largely controlled by equitable principles, and the writ may be refused for reasons comparable to those which would lead a court of equity, in the exercise of its sound discretion, to withhold its protection of an undoubted legal right.” 34 American Jurisprudence, 829, Section 33; *State, ex rel. Commercial Investors Corp.,*v. *Curry,*50 Ohio App., 245, 248, 197 N. E., 805.

> “Under the guise of enforcing a public right, the writ will not issue if in fact it will operate to the detriment rather than to the benefit of the general public.” 34 American Jurisprudence, 831, Section 35, and cases there cited.

The discretion in granting the writ should be broad enough to support the refusal to grant the writ in the situation here presented. To grant the relief would require a duplication of effort to accomplish the same result as the state audit, at *&*regular annual cost to the city of a substantial sum of money.

We, therefore, deny the writ upon the one proposition that our discretion in the situation here appearing is sufficient to support such action. It will be so ordered. , i

Upon the fourth defense of the answer to the effect that section 44 of the charter is invalid, we find against the respondents.

Upon the question propounded by the answer we have serious doubts if such an issue is made as is contemplated by the Uniform Declaratory Judgments Act. It is doubtful indeed if there is any dispute dis*434closed by the record. See *Hammontree*v. *Hawley,*40 Ohio Law Abs., 483, 57 N. E. (2d), 319. We will, however, express an opinion as it may be helpful.

The factual development on the question is not as complete as is desirable. There is little more than a mere statement by caption of that which the respondents desire to do, namely, to conduct *“a*survey or review of accounting procedures and the preparation of financial statements of the city of Dayton.” Insofar as the preparation of financial statements of the city of Dayton is concerned, section 44 affords sufficient authority for such procedure. The mere fact that this court will not require the commission to do that which it is authorized to perform under the section would not preclude its action thereunder if it desired to adopt any or all of the procedure therein prescribed. As “to a survey or review of accounting procedures,” we find nothing in section 44, which will support such action. We are satisfied that, under section 78, the Director of Finance could, within reasonable limits, be provided with funds for the purpose of a survey or review of accounting procedures, insofar as it would be of advantage in effectuating the provisions of the section, namely, the devising and maintaining for the city adequate records to detail financial transactions. This expression of opinion is not more specific because the'question as propounded is general and not specific.

An entry may be prepared in accordance with this opinion.

*Judgment accordingly.*

Geiger and Nichols, JJ., concur.

Nichols, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.