State ex rel. Zellner v. Board of Education

Celebrezze, J. We agree with appellee that our decision in this cause must be controlled by considerations of orderly procedure. However, it is not consideration of preserving the hierarchy of structure in public education in Ohio which persuades us. Rather, our answer depends upon considerations of comity, orderly procedure and judicial economy. Appellant urges that the Court of Appeals should have stayed its action and deferred to the action already commenced in the federal District Court. A motion for a stay of proceedings is, of course, primarily addressed to the court’s discretion. When such a stay is sought consideration is pertinent to £ ‘ * * * whether [201] it is in the state or in the federal forum that a more complete disposition of the issues may be obtained and whether it is the federal or the state court that possesses a greater familiarity and expertise with the trial of such issues.” General Aniline & Film Corp. v. Bayer (1953), 305 N. Y. 479, 485, 113 N. E. 2d 844. However, as a threshold issue, appellees have argued that they are not party to the federal suit, and that therefore considerations of comity cannot be applied. State, ex rel. First Natl. Bank, v. Botkins (1943), 141 Ohio St. 437, 48 N. E. 2d 865, is directly on point. In paragraph two of the syllabus, the court said: “Where prior actions, to which relator could be made a party and which involve the same subject matter as the instant action, are pending in another court having jurisdiction to grant full and adequate relief to all parties, a writ of mandamus will not be granted during the pendency of such prior actions.” Certainly a declaratory judgment action questioning the constitutionality of an administrative order to transfer territory in a school district and a mandamus action to compel that transfer are actions concerned with the same subject matter. Appellee argues that complete relief cannot be given in the federal forum because a declaratory judgment in ap-pellee’s favor cannot compel the Cincinnati board to act. While at first glance this argument is persuasive, when we consider the “more complete disposition of the issues,” General Aniline, supra, the federal forum still prevails. We need not look at the remedy, which may or may not be available in federal court. We need only look to our original considerations. 1.. In the area of school desegregation, the federal district courts were designated as the proper forum in Brown v. Bd. of Edn. of Topeka (1955), 349 U. S. 294, and have been harvesting familiarity and expertise in the area since that time. 2. Judgment by this court granting the writ of manda202 miis- would not forestall the federal court from finding a facial basis for the transfer order and holding it unconstitutional. 3. A finding by the federal court that the transfer is without racial basis and constitutional should determine the whole controversy. The Cincinnati board would then have no excuse to refuse to make the transfer; and if it failed to voluntarily make the transfer, all objections raised to the summary judgment by the Court of Appeals would be removed. 4. If the federal court finds a racial basis in the transfer, the electors of the Four-Mile area will have received a final answer, albeit not the one they desire. Appellee argues that the Court of Appeals has no authority to exercise jurisdictional discretion in mandamus. Appellee cites State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141, 228 N. E. 2d 631. The argument is, of course, correct as far as it goes. But appellee is mistaken in the assertion that this ruling prevents the action now taken. The Court of Appeals has exercised its jurisdiction. We are not deciding that it is within the court’s discretion to refuse jurisdiction. At this point, we decide that there is no requisite clear showing of a right to issuance of the writ of mandamus sufficient for the granting of a summary judgment. For the foregoing reasons, the judgment of the Court óf Appeals is reversed and the cause is remanded to that court, with instructions to sustain the motion of respondent to dismiss. Judgment reversed. O’Neill, C. J., Herbert, Corrigan, Stern and W. BeowN, JJ., concur.