State ex rel. Benton's Village Sanitation Service, Inc. v. Usher, 72-704

• Decision Date: 25 April 1973
• Docket Number: No. 72-704,72-704
• Citation: 34 Ohio St.2d 59,63 O.O.2d 90,295 N.E.2d 657
• Parties: , 63 O.O.2d 90 The STATE ex rel. BENTON'S VILLAGE SANITATION SERVICE, INC., Appellant, v. USHER et al., Appellees.
• Court: Ohio Supreme Court

Page 59

34 Ohio St.2d 59

295 N.E.2d 657, 63 O.O.2d 90

The STATE ex rel. BENTON'S VILLAGE SANITATION SERVICE, INC., Appellant, v. USHER et al., Appellees.

No. 72-704.

Supreme Court of Ohio.

April 25, 1973.

Syllabus by the Court

A writ of mandamus will not issue to compel a district board of health to issue a license to operate a solid waste disposal site or facility pursuant to R.C. Chapter 3734.

Appellant, Benton's Village Sanitation Service, Inc. (hereinafter referred to as Benton), is the prospective operator of a sanitary landfill facility in Wood County, pursuant to R.C. Chapter 3734. On February 4, 1972, Benton applied to appellee Wood County District Board of Health, for a license to operate a solid waste disposal facility as required by R.C. 3734.05(A). Benton also submitted its final site plans, etc., to the state Department of Health, as required by R.C. 3734.05(C). On May 17, 1972, the state Department of Health approved Benton's plans. Appellees, Glenn S. Usher, Wood County District Health Commissioner, and the Wood County District Board of Health took no action upon Benton's application for the license.

On June 6, 1972, Benton filed a petition in the Court of Appeals for Wood County for a writ of mandamus, compelling appellees to issue the license.

Upon the hearing of that action, by agreement of the parties, it was 'established' that 'respondents refused to act on relator's application for the license required by Ohio Revised Code Section 3734.05(A) to operate the solid waste disposal facility (that) the state of Ohio Department of Health approved for relator to construct and operate on Wales Road in the village of Northwood, Wood County, Ohio and (respondents refused to) either issue the license or issue a written order denying the license.' It was also agreed that the Wood County commissioners had established a county garbage and refuse disposal district pursuant to R.C. Chapter 343 and had adopted regulations, inter alia, authorizing the commissioners to cancel all licenses issued by appellees to operate solid waste disposal facilities in Wood County, and requiring that all solid wastes generated within and coming from outside and into the Wood County Garbage and Refuse Disposal District be disposed of only at the county landfill site.

There was apparently a dispute between the village of Northwood, where Benton proposed to operate its landfill site, and the county commissioners as to whether Northwood was included within the district established by the county commissioners. Appellees contended that this dispute must be resolved before they could act upon relator's application for the license.

The majority of the Court of Appeals denied the writ of mandamus on the ground that Benton '* * * has a plain and adequate remedy in the ordinary course of the law.'

The cause is now before this court upon appeal from the judgment of the Court of Appeals.

Harkins & Reckless, Walter W. Reckless, Columbus, Cobourn, Smith, Rohrbacher & Gibson and Fred A. Smith, Toledo, for appellant.

Daniel T. Spitler, Pros. Atty., and Robert W. Maurer, Bowling Green, for appellees.

C. WILLIAM O'NEILL, Chief Justice.

It is axiomatic that 'the writ of mandamus must not be issued where there is a plain and adequate remedy in the ordinary course of the law.' R.C 2731.05. The majority of the Court of Appeals held that such an adequate remedy at law is available to appellant by way of appeal under R.C. Chapter 2506.

R.C. 2506.01 provides that 'every final order, adjudication, or decision' of an administrative body is appealable to the Common Pleas Court. However, this statute also provides that 'a 'final order, adjudication, or decision' does not include * * * any order which does not constitute a determination of the rights, duties, privileges, benefits, or legal relationships of a specified person * * *.'

Obviously, a refusal to act does not determine any rights, duties, privileges, benefits, or legal relationships of the appellant; and, therefore, appeal under R.C. Chapter 2506 is not...