State ex rel. Broadway Petroleum Corp. v. City of Elyria

• Decision Date: 30 April 1969
• Docket Number: No. 68-352,68-352
• Citation: 247 N.E.2d 471,47 O.O.2d 149,18 Ohio St.2d 23
• Parties: , 47 O.O.2d 149 The STATE ex rel. BROADWAY PETROLEUM CORP., Appellant, v. CITY OF ELYRIA et al., Appellees.
• Court: Ohio Supreme Court

Page 23

18 Ohio St.2d 23

247 N.E.2d 471, 47 O.O.2d 149

The STATE ex rel. BROADWAY PETROLEUM CORP., Appellant, v. CITY OF ELYRIA et al., Appellees.

No. 68-352.

Supreme Court of Ohio.

April 30, 1969.

Syllabus by the Court

1. Where it is not contended, and the record does not indicate, that the facts before a Common Pleas Court were otherwise than alleged in a petition for a writ of mandamus, its judgment peremptorily allowing such a writ should not be disturbed if the allegations of the petition would support the issuance of that writ.

2. Where legislation has specifically provided for review by a city board of zoning appeals of the determination of its building inspector in refusing a building permit, neither the building inspector, the city nor its mayor may attack or avoid a decision of that board in judicial proceedings, except as authorized by legislation to do so.

This action was instituted in the Common Pleas Court of Lorain County on October 26, 1967, by the filing of a petition in mandamus against the city of Elyria, its building commissioner and its mayor.

The petition alleges that relator had contracted to purchase certain property, located in an R-1 single family residence use district in Elyria, and on October 6, 1966, had applied to the city building inspector for a permit to construct a gasoline service station on the property; that the application was rejected and relator appealed to the city board of zoning appeals which, on December 10, 1966, 'granted the appeal * * * for a building permit and ordered the building inspector to issue said permit'; that, upon request of the city law director, the board of zoning appeals on December 17, 1966, moved to reconsider its granting of that building permit, but on January 7, 1967, again granted relator its requested building permit; that, on January 16, 1967, the building inspector filed a notice of appeal from the ruling of the board to the Common Pleas Court; that relator filed a motion to dismiss the appeal 'on jurisdictional grounds'; that the motion to dismiss was sustained on the ground that no statute or ordinance gave the building inspector the right to appeal; that the building inspector appealed to the Court of Appeals, but later, on October 17, 1967, he voluntarily dismissed that appeal; and that, on October 19, 1967, relator 'renewed its original application * * * for the building permit, which the board of zoning appeals (had) ordered to be issued,' but the building inspector refused and still refuses to issue that permit.

On the same day that the petition was filed in the instant case, the Common Pleas Court issued a peremptory writ of mandamus requiring the city, its building inspector and its mayor to give to relator the building permit which it had requested.

The order issuing that writ was reversed by a judgment of the Court of Appeals.

The cause is now before this court upon appeal from that judgment of the Court of Appeals pursuant to the allowance of a motion to certify the record.

Sanford W. Likover, Cleveland, for appellant.

Kosma J. Glavas and J. C. Wm. Tattersall, Elyria, for appellees.

TAFT, Chief Justice.

The only assignment of error and the only argument advanced by the city and its officials in their brief before the Court of Appeals was 'that the Court of Common Pleas * * * erred in issuing a peremptory writ of mandamus without affording * * * (them) an opportunity to be heard.'

Section 2731.06 Revised Code, reads, so far as pertinent:

'When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory mandamus.'

There is nothing in the record, either through a bill of exceptions or otherwise, to indicate, and it is not even contended, that the facts before the Common Pleas Court were or are otherwise than as alleged in the petition for mandamus.

Where it is not contended, and the record does not indicate, that the facts before a Common Pleas Court were otherwise than as alleged in a petition for a writ of mandamus, its judgment peremptorily allowing such a writ should not be disturbed if the allegations of the petition would support the issuance of that writ.

The petition in the instant case alleges that there was a decision of the Elyria Board of Zoning Appeals which determined that relator was entitled to the building permit, which he seeks in the instant case, and ordered the building inspector to issue that permit to relator. The petition alleges further that that decision was rendered upon an appeal by relator to that board from a rejection by the building inspector of relator's application for the permit.

That appeal and a determination, such as made by the board, were authorized not only by statute ¹ but also by the charter and ordinances of Elyria. ²

In the instant case, in reversing the judgment of the Common Pleas Court allowing the writ of mandamus, the Court of Appeals relied upon the last paragraph of Section 1125.19 of the Elyria Ordinances, which reads:

'No grant of a variance shall be authorized unless the board specifically finds that the condition or situation of the specific piece of property, or the intended use of such property for which the variance is sought is not of so general or recurrent nature as to make reasonably practicable the formulation of a general regulation, amending this zoning code, covering such condition or situation.'

In support of its judgment, the Court of Appeals stated:

'* * * the board of zoning appeals, by virtue of the above quoted section, had the authority to grant a variance in the land use matter before us; but the question that we cannot answer affirmatively is: Did they exercise that authority in accordance with the requirements of the variance section?

'* * * the last paragraph of Section 1125.19 * * * requires that certain specific findings be made, which, in the case before us, were not entered in any record before the trial court, or before this court.'

We are of the opinion that that judgment of the Court of Appeals erroneously authorized an attack upon a decision that the Elyria Board of Zoning Appeals was authorized to make.

As stated by Ranney, J., in Sheldon's Lessee v. Newton (1854), 3 Ohio St. 494, at page 498 et seq.:

'* * * If the court had jurisdiction of the subject-matter, and the parties, it is altogether immaterial how grossly irregular, or manifestly erroneous, its proceedings may have been; its final order cannot be regarded as a nullity, and cannot, therefore, is collaterally impeached. * * * The power to hear and determined a cause is jurisdiction; * * * before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing has been properly brought before the tribunal, to answer the charge therein contained. When these appear, the jurisdiction has attached; the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred; and whether determined rightfully or wrongfully, correctly or erroneously, is alike immaterial to the validity, force and effect of the final judgment, when brought collaterally in question. * * *'

To the same effect, see Moore v. Robison (1856), 6 Ohio St. 302 (first paragraph of syllabus); Mantho v. Board of Liquor Control (1954), 162 Ohio St. 37, 120 N.E.2d 730 (syllabus); and Incorporated Consultants v. Todd (1964), 175 Ohio St. 425, 195 N.E.2d 788.

The same principles of law have been applied with respect to administrative decisions. Thus, in State ex rel. Hasbrook v. Lewis (1901), 64 Ohio St. 216, 233, 60 N.E. 198, 201, it was said in the opinion by Burket, J.:

'It is urged that this is a case in which the boards of equalization had no jurisdiction, and not merely a case of irregular exercise of power. This is not tenable. The petitions admit that the boards of equalization were legally constituted, and that the auditor placed before them for equalization the returns of the district assessors. Having those returns before them for the purpose of equalization, the boards were thereby invested with jurisdiction of the subject-matter, and that jurisdiction continued until they completed their work; and if, in the course of exercising that jurisdiction, they took into consideration matters not required by the statute, that fact might be irregular, but it would not oust the jurisdiction, and would not render the result of their work void.'

See also State ex rel. de Weaver v. Faust (1965) 1 Ohio St.2d 100, 205 N.E.2d 14; 2 American Jurisprudence 2d 451, Section 611.

If we agree with the conclusion of the Court of Appeals that the board of zoning appeals should have entered in the record the specific findings required by the last paragraph of the ordinance, which that court referred to, the failure of the board to do so would at most represent an erroneous exercise of the power and jurisdiction conferred upon it to grant the variance and order the issuance to relator of his requested building permit.

Any other holding would be manifestly unfair to the successful party to a decision that an administrative board was empowered to render. For example, in the instant case relator could not be expected, and would probably not be allowed, to appeal from a decision in his favor.

Even if we agree with respondents' contention that the building inspector had no right to appeal from the decision of the board of zoning appeals ordering him to give to relator the permit that he had requested, it does not follow that the building inspector is a proper party to attack that decision in this or any other legal proceeding.

To permit the building inspector to attack the decision of the board of...