State ex rel. McKinney v. Schmenk (Slip Opinion)

Mandamus to compel State Employment Relations Board either to find that relator's unfair labor practice charge was timely filed and proceed with a hearing or consider the facts concerning the timeliness question and issue an explanation setting forth its rationale—Writ denied, when.

Appellate procedure—Court of appeals' decision in mandamus action ordering cause returned to magistrate for a determination on the merits appealed to Supreme Court—Appeal dismissed by Supreme Court for want of prosecution—Dismissal of mandamus action by court of appeals for lack of jurisdiction reversed and cause remanded to court of appeals for a consideration of the merits of relator's mandamus action.

Public records—Mandamus sought to compel city of Upper Arlington to provide relator access to a draft collective bargaining agreement being considered by city council—Requested draft agreement provided to relator—Exception to general mootness rule not established by relator—Attorney fees awarded to relator.

<p>APPEAL from tbe District Court of tbe Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action for writ of mandate to compel tbe state engineer to give notice and issue a certificate of completion of diversion</p> <p>works. Writ granted. Appeal by defendant.</p> <p>Numerous eases bave been tried involving questions of jurisdiction relative to tbe distribution of tbe waters of interstate streams for irrigation purposes. These cases, however, only determined tbe rights of individuals, and in no case has tbe interest of the state in its waters been decided; in fact, tbe supreme court of tbe United States has held that this question cannot be raised by tbe individual, but must be raised by the state itself. (Rickey Land & Cattle Co. v. Miller & Lux, 218 U. S. 258, 31 Sup. Ct. 11, 54 L. ed. 1032; Kansas v. Colorado etc., 206 U. S. 46, 27 Sup. Ct. 655, 51 L. ed. 956.)</p> <p>Although title to things in tbe negative community was never recognized as vesting in the individual, yet tbe right of a state or nation, either as proprietor or by reason of its sovereignty to control the use of things in the negative community for the benefit of its citizens, has become firmly established by the courts. (1 Farnham on Waters and Water Rights, 74, 75; State v. Rodman, 58 Minn. 393, 59 N. W. 1098; Freund, Police Power, p. 447; Commissioners etc. v. Withers, 29 Miss. 21, 64 Am. Dec. 126; Geer v. Conn., 161 U. S. 519, 16 Sup. Ct. 600, 40 L. ed. 793; Hudson County Water Co. v. Me-Garter, 209 U. S. 349, 28 Sup. Ct. 529, 52 L. ed. 828, 14 Ann. Cas. 560.)</p> <p>When Idaho became a state, Congress approved the constitution adopted in the constitutional convention, and thereby passed the title and control of all of the public waters within the state to the state of Idaho, by ratifying sec. 1 of art. 15.</p> <p>That the legislature has always assumed that the state owns its waters is to be gathered from a careful consideration of all the water laws passed since Idaho

Municipal corporations—Ordinance passed privatizing city of Westlake's trash collection services—Elections—Mandamus sought to compel city et al. to submit petition proposing amendment to city charter to use only public service employees for trash collection services to the Cuyahoga County Board of Elections and to have the proposed charter amendment placed on the November 5, 2002 general election ballot—Writ granted—Request for attorney fees granted.