State ex rel. Sibarco Corp. v. City of Berea

• Decision Date: 06 July 1966
• Docket Number: No. 39846,39846
• Citation: 218 N.E.2d 428,36 O.O.2d 75,7 Ohio St.2d 85
• Parties: , 36 O.O.2d 75 The STATE ex rel. SIBARCO CORP. et al., Appellees, v. CITY OF BEREA et al., Appellants.
• Court: Ohio Supreme Court

Page 85

7 Ohio St.2d 85

218 N.E.2d 428, 36 O.O.2d 75

The STATE ex rel. SIBARCO CORP. et al., Appellees, v. CITY OF BEREA et al., Appellants.

No. 39846.

Supreme Court of Ohio.

July 6, 1966.

Syllabus by the Court

1. The writ of mandamus must not be issued, whether in the exercise of the court's discretion or otherwise, when there is a plain and adequate remedy in the ordinary course of the law. (Second paragraph of the syllabus of State ex rel. Wesselman v. Board of Elections of Hamilton County, 170 Ohio St. 30, 162 N.E.2d 118, is overruled, and any decision or opinion of this court or any part thereof that is in conflict with the foregoing principle of law is disapproved.)

2. Where a zoning ordinance is unconstitutional to the extent that it is applied to prohibit a proposed use of certain property and where a building commissioner denies an application for a building permit because that proposed use of that property is prohibited by that zoning ordinance and the owner of the property duly exhausts his administrative remedies by an unsuccessful appeal to the Board of Zoning Appeals, an appeal to the Common Pleas Court pursuant to Chapter 2506, Revised Code, from the final order of the Board of Zoning Appeals will provide the owner of the property with a plain and adequate remedy to prevent the unconstitutional application of the zoning ordinance as a basis for refusing the building permit.

The Sibarco Corporation (hereinafter referred to as Sibarco) has title or contract rights to certain properties located at a point where Henry Street, Westbridge Drive, Prospect Street and West Bridge Street interest in the city of Berea. The land is zoned for single-family dwellings (1-A-1) and apartments or hotels (2-A). Sibarco desires to construct a gasoline station on this land. In order to secure favorable zoning provisions for such construction, Sibarco petitioned the Planning Commission and the Council of the city of Berea for an amendment to the zoning ordinance, but was unsuccessful. Sibarco then formally applied for a building permit to erect a gasoline station on the above properties. Building Commissioner McDonald denied the application. An appeal was taken to the Board of Zoning Appeals which affirmed the commissioner's denial.

Sibarco, together with Walter E. Mischnick (who owned certain of the aforementioned properties to which Sibarco had a contract right of purchase), instituted an action in mandamus invoking the original jurisdiction of the Court of Appeals for Cuyahoga County against the city of Berea and Building Commissioner McDonald, seeking an order commanding the appellants to issue the building permit to relators. The Court of Appeals heard the case on the merits and allowed the writ to issue. Appellants appeal, as a matter of right, to this court.

Sanford W. Likover, Cleveland, for appellees.

John D. Munkacsy, Director of Law, Squire, Sanders & Dempsey and James A. Smith, Cleveland for appellants.

HERBERT, Judge.

Appellants contend that the Court of Appeals exceeded the original jurisdiction conferred upon it by the Constitution of Ohio, Section 6, Article IV, when it allowed the extraordinary writ of mandamus to issue although relators had available a plain and adequate remedy in the ordinary course of law by way of appeal pursuant to Chapter 2506 of the Revised Code.

The decisions of the Supreme Court have been quite inconsistent and conflicting in recent years when endeavoring to determine the proper use of mandamus in the exercise of the original jurisdiction conferred upon this court and the Court of Appeals by Sections 2 and 6, Article IV of the Ohio Constitution.

A few of such cases may well be noted.

In the Matter of Turner (1832), 5 Ohio 542, the court, in its opinion, at page 543, had the following to say:

"The original nature of the writ,' as is said in 3 Burrows, 1267, 'and the end for which it was formed, direct on what occasion it shall be used. It was introduced to prevent disorder, from a failure of justice, or a defect of police; therefore, it ought to be used upon all occasions, where the law has established no specific remedy, and where in justice and good government, there ought to be one." (Emphasis added.)

The court, in its opinion, in Cincinnati, Wilmington & Zanesville R. R. Co. v. Com'rs of Clinton County (1852), 1 Ohio St. 77, at page 105, said:

'It is now too well settled to require reference to authorities, that this writ (mandamus) lies in all cases, where the relator has a clear legal right to the performance of some official or corporate act by a public officer or corporation, and no other adequate, specific remedy.' (Emphasis added.)

In State ex rel. Juhlman v. Conners et al. (1930), 122 Ohio St. 355, at page 358, 171 N.E. 589, at page 590, the court said, in a per curiam opinion:

'The writ of mandamus is an extraordinary writ, and will not be issued as a substitute for an existing, adequate, and available remedy in equity or in law, but only where such remedy, in equity or in law, does not exist, is not adequate, or is not available.'

The syllabus in State ex rel. Sibarco Corp. v. Hicks, Bldg. Inspr. (1964), 177 Ohio St. 81, 202 N.E.2d 615, reads:

'By reason of Section 2731.05, Revised Code, enacted pursuant to Section 4, Article IV, Ohio Constitution, it is error for the Common Pleas Court to issue a writ of mandamus in those cases where there is a plain and adequate remedy in the ordinary course of the law.'

A contrary view permitting the exercise of discretion in the issuance of the writ is expressed in the following cases:

The second paragraph of the syllabus in State ex rel. Wesselman v. Board of Elections of Hamilton County (1959), 170 Ohio St. 30, 162 N.E.2d 118, reads:

'A Court of Appeals that allows a writ of mandamus to a relator does not thereby abuse its discretion merely because such relator also has an adequate remedy in the ordinary course of the law.' (Emphasis added.)

In State ex rel. Spiccia v. Abate, Bldg. Com'r (1965), 2 Ohio St.2d 129, at page 130, 207 N.E.2d 234, at page 236, in the opinion, the court says:

'The appellants' argument that the relief was improperly granted because the relator had an adequate remedy at law ignores the often stated proposition that the Court of Appeals has discretion to issue the writ of mandamus, although there exists a plain and adequate remedy at law. * * * This court will not interfere with exercise of such discretion by that court.' (Emphasis added.)

The following cases also support the principle of law that the Supreme Court and the Court of Appeals, in the exercise of their original jurisdiction in mandamus, have no discretion to issue to writ of mandamus where the relator has or had available a clear, plain and adequate remedy in the ordinary course of the law: State ex rel. Tax Comm. of Ohio v. Mills, Aud., 103 Ohio St. 172, 132 N.E. 727; State ex rel. Bassichis v. Zangerle, Aud., 126 Ohio St. 118, 184 N.E. 289; State ex rel. Podley v. Indus. Comm., 127 Ohio St. 583, 190 N.E. 407; State ex rel. Hile v. Zangerle, Aud., 132 Ohio St. 523, 9 N.E.2d 292; State ex rel. Ward v. Kennedy, Secy. of State, 134 Ohio St. 348, 16 N.E.2d 944; State ex rel. Gladman v. Indus. Comm., 136 Ohio St. 90, 23 N.E.2d 947; State ex rel. McCamey v. Court of Common Pleas of Cuyahoga County, 141 Ohio St. 610, 49 N.E.2d 761; State ex rel. Horvitz Co. v. Sours, Dir., 142 Ohio St. 591, 53 N.E.2d 498; Gannon v. Gallagher, Dir., 145 Ohio St. 170, 60 N.E.2d 666; State ex rel. Stanley v. Cook, Supt. of Banks, 146 Ohio St. 348, 66 N.E.2d 207, paragraph three of the syllabus; Freon v. Carriage Co., 42 Ohio St. 30; State ex rel. Bross v. Carpenter, 51 Ohio St. 83, 37 N.E. 261; State ex rel. White v. City of Cleveland, 132 Ohio St. 111, 5 N.E.2d 331, paragraph one of the syllabus; State ex rel. First National Bank v. Village of Botkins, 141 Ohio St. 437, 48 N.E.2d 865, 148 A.L.R. 205, paragraph one of the syllabus; State ex rel. Shively v. Nicholas, Judge, 151 Ohio St. 179, 181, 84 N.E.2d 918; State ex rel. City of Cincinnati v. Miller et al., Public Utilities Comm., 149 Ohio St. 45, 77 N.E.2d 465; State ex rel. Welker v. Indus. Comm., 150 Ohio St. 464, 83 N.E.2d 226; State ex rel. Hepperla v. Glander, Tax Commr., 160 Ohio St. 59, 113 N.E.2d 357; State ex rel. Adams v. Rockwell et al., Board of Edn., 167 Ohio St. 15, 145 N.E.2d 665; State ex rel. Schafer v. Citizens National Bank of Ironton, 168 Ohio St. 535, 156 N.E.2d 747; State ex rel. Lotz v. Hover, Pros. Atty., 174 Ohio St. 68, 72, 186 N.E.2d 841; State ex Rel. Emmich, dba. Modern Launderers & Dry Cleaners v. Indus Comm., 148 Ohio St. 658, 76 N.E.2d 710; Shelby v. Hoffman, 7 Ohio St. 450, 451, 455, 456; and State ex rel. Lorain County Savings & Trust Co. v. Board of County Com'rs, 171 Ohio St. 306, 170 N.E.2d 733.

Nevertheless, in spite of the array of authorities to the contrary, the following cases approve the exercise of discretion by the appellate court to issue or deny the writ. State ex rel. Wesselman v. Board of Elections of Hamilton County, supra; State ex rel. Feighan v. Green et al., Board of Elections, 171 Ohio St. 263, 169 N.E.2d 551; State ex rel. Spiccia v. Abate, Bldg. Com'r., supra; State ex rel. Grant, Exr., v. Kiefaber et al., Montgomery County Planning Comm., 171 Ohio St. 326, 170 N.E.2d 848; State ex rel. Fredrix v. Village of Beachwood, 171 Ohio St. 343, 170 N.E.2d 847; State ex rel. Coury v. Ohio Bell Telephone Co., 172 Ohio St. 309, 175 N.E.2d 511; State ex rel. Moran v. Welling, Dir., 172 Ohio St. 516, 178 N.E.2d 786; State ex rel. Roger J. Au & Son, Inc. v. Studebaker et al., Com'rs, 175 Ohio St. 222, 193 N.E.2d 84, and State ex rel. Libbey-Owens-Ford Glass Co. v. Indus. Comm., 162 Ohio St. 302, 123 N.E.2d 23.

The proposition advanced in Spiccia, supra (2 Ohio St.2d 129, 207 N.E.2d 234), that '(t)his court will not interfere with the exercise of such discretion (to issue the writ) by that court (Court of Appeals)' appears to be in...