dissenting. The respondents in this matter should prevail upon either one of two legal points: upon procedural grounds or upon the merits. This is an original action in mandamus. The relator, a plaintiff in a divorce action now pending in the Court of Common Pleas of Ross County, seeks the order of this court compelling the judge and clerk of that court to effect service of process by publication without prepayment of the costs of publication and to add the costs to the costs of relator’s divorce action.
It is well settled law in Ohio that:
“In order to grant a writ of mandamus, the court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law.” State, ex rel. Westchester Estates, Inc., v. Bacon (1980), 61 Ohio St. 2d 42, 15 O.O. 3d 53, 399 N.E. 2d 81, paragraph one of the syllabus; State, ex rel. Halloran, v. Zapatony (1984), 15 Ohio St. 3d 73, 15 OBR 166, 472 N.E. 2d 357.
It is respectfully submitted that these respondents have no clear legal duty to perform the requested acts. The precise issue presented to respondent Judge Mowrey had been addressed by the Fourth District Court of Appeals in Haynes v. Haynes (Dec. 5, 1986), Ross App. No. 1275, unreported. The court in Haynes adhered to its prior holdings and held that courts are not required to pay public funds to private newspaper organizations in actions affecting marital rights requiring service by publication.
The decision of the court of appeals in Haynes, supra, is persuasive authority upon the Court of Common Pleas of Ross County. Therefore, the common pleas court in the Fourth Appellate District has no clear legal duty to effect the service of process by publication without prepayment of the costs of publication and to add the costs of publication to the costs of the divorce action.
These proceedings should be dismissed because the complaint fails to state a claim in mandamus against respondents upon which relief can be granted.
Second, the majority here strains mightily in extending the reach of the Due Process Clause to pay the costs of publication as an addition to court costs payable on behalf of indigents. The relator and this majority refer to the case of Boddie v. Connecticut (1970), 401 U.S. 371, as being in support of this proposition. That case, of course, in construing the due-process rights of an indigent litigant, dealt only with plaintiff’s filing costs, not publication costs. In Boddie, it was held that due process prohibits a state from denying, solely because of inability to pay fees and costs, access to its courts to indigents who seek judicial dissolution of their marriage. Boddie did not reach the issue of whether public funds should be used to pay publication costs to private newspapers. The opinion in Boddie explicitly limited the scope of its holding, saying:
“In concluding that the Due Process Clause of the Fourteenth Amendment requires that these appellants be afforded an opportunity to go into court to obtain a divorce, we wish to re-emphasize that we go no further than necessary to dispose of the case before us, a case where the bonafides *26of both appellants’ indigency and desire for divorce are here beyond dispute. We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us this right is the exclusive precondition to the adjustment of a fundamental human relationship.” Id. at 382-383.
The Fourth District Court of Appeals, in following Boddie, noted that there was a split of authority in the courts whether to extend the holding in Boddie, but determined to follow what it had previously held in Williams v. Williams (1975), Ross App. No. 597, unreported, and Newman v. Newman (Dec. 12,1981), Scioto App. No. 1347, unreported.
There is no current rule in Ohio which would require the payment of publication costs for a plaintiff proceeding as an indigent. If there is a rule change to accommodate such service it should logically be reviewed by the Rules Advisory Committee appointed by this court, and proper recommendation made to the court. Such a recommendation for an amendment to our Rules of Civil Procedure was made to this court by the Legal Aid Society of Cleveland in September 1980. Such recommendation would have added the following paragraph to Rule 4.4, Process: Service By Publication:
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“In divorce, annulment, and alimony actions, where the plaintiff is proceeding in forma pauperis and where the residence of the defendant is unknown to the plaintiff and cannot with reasonable diligence be ascertained, the clerk shall cause the complaint and summons to be mailed to the defendant’s last known address by ordinary mail and to be posted for six weeks in a conspicuous place in the courthouse. Service shall be complete when the clerk has entered on the record the fact that the complaint and summons have been posted for six weeks and mailed to the defendant.”
Such would seem to be a reasonable approach to the problems presented, but any such provision should be provided by rule change in the appropriate manner — not by opinion of this court.
There being no clear legal right for the issuance of the writ requested, the complaint should be dismissed.
Moyer, C.J., concurs in the foregoing dissenting opinion.