State ex rel. de Weaver v. Faust

• Decision Date: 24 February 1965
• Docket Number: No. 38693,38693
• Citation: 205 N.E.2d 14,1 Ohio St.2d 100
• Parties: , 30 O.O.2d 383 The STATE ex rel. de WEAVER, Appellant, v. FAUST et al., Board of Examiners of Plumbers of City of Dayton, Appellees.
• Court: Ohio Supreme Court

Page 100

1 Ohio St.2d 100

205 N.E.2d 14, 30 O.O.2d 383

The STATE ex rel. de WEAVER, Appellant, v. FAUST et al., Board of Examiners of Plumbers of City of Dayton, Appellees.

No. 38693.

Supreme Court of Ohio.

Feb. 24, 1965.

Syllabus by the Court

Sections 2506.01 to 2506.04, inclusive, Revised Code, afford an adequate remedy at law by way of appeal from a final order, adjudication or decision of an administrative board, so that the writ of prohibition will not issue at the instance of a party who alleges irregularities in the proceedings of such a board and anticipates that such a board will deprive him of procedural and substantive rights.

This action in prohibition was instituted in the Court of Appeals. The relator, Fred de Weaver III, alleges that he is a licensed master plumber; that respondents constitute the Board of Examiners of Plumbers of the city of Dayton; that the respondents have notified relator to appear before them for a hearing to determine whether his master plumbers license should be suspended or revoked because of an alleged violation of a city ordinance in the installation of plumbing; that the proposed action of the respondents is under authority of an ordinance which purports to grant to the respondent board the power on its own behalf to subpoena witnesses and compel their attendance and to control the production of records and documents without granting to relator the corollary right to enforce production of evidence; and that the authority of the board is final without provision for appeal.

The relator alleges further that the ordinance is unconstitutional and that the proposed action would subject him to great and irreparable damage in that it will deprive him of his right to engage in his occupation as a plumber and plumbing contractor for which he has no adequate remedy in law or equity.

As a second cause of action the relator attacks the validity of the summons.

The prayer of the petition is for a writ restraining respondents from ordering a suspension or revocation of the master plumbers license of relator.

The respondents filed a general demurrer to the petition.

The Court of Appeals heard the cause in the petition and demurrer thereto, sustained the demurrer for the reason that relator had an adequate remedy of appeal and dismissed the petition.

An appeal as of right brings the cause to this court for review.

Emanuel Nadlin, Dayton, for appellant.

Herbert S. Beane, City Atty., and Joseph P. Duffy, Dayton, for appellees.

SCHNEIDER, Judge.

The remedy of prohibition is not available where there is an adequate remedy in the ordinary course of the law. The relator has an adequate remedy by way of appeal...