Summary
denying injunctive relief because adequate remedy at law existed
Summary of this case from McClain v. N.W. Comm. Corr. Cent. Jud. CorrOpinion
No. 33961
Decided February 9, 1955.
Injunction — Independent action for injunctive relief not available, when — Order of administrative agency — Remedy of person adversely affected thereby — Right of appeal to Common Pleas Court provided — Inconvenience in perfecting appeal not excuse for resort to injunction — Rural zoning amendment — County commissioners.
1. Where an administrative agency has jurisdiction to make an order in a matter pending before it, and a right of appeal from such order to the Court of Common Pleas is provided by law to any person adversely affected thereby, such person is not authorized to bring an independent action in equity to enjoin the carrying out of such order, where the grounds relied upon in seeking the injunction are such as could be fully litigated in the appeal authorized by law.
2. Mere inconvenience in complying with the necessary steps in taking such an appeal does not constitute an excuse for resorting to an independent action for an injunction in lieu of taking the appeal.
APPEAL from the Court of Appeals for Hamilton County.
On June 10, 1953, appellees, hereinafter designated plaintiffs, instituted an action in equity in the Court of Common Pleas of Hamilton County against appellants.
In their amended petition plaintiffs allege that each of them is an owner of residential property located in the unincorporated area of Sycamore Township in Hamilton County; that the defendants are the duly elected and acting county commissioners of Hamilton County and the building inspector thereof; that the action is brought in behalf of plaintiffs and many others similarly situated, pursuant to Section 3180-36, General Code; that plaintiffs' residences are approximately 15 miles from the city of Cincinnati, where their attorney has his office; that due to the numerous persons involved and the nature of the case it was impossible for them to prepare their petition, following the order of the county commissioners referred to hereinafter, prior to the date of the commencement of the action; and that to require plaintiffs to file their petition within ten days from the date of the order of the county commissioners would constitute an undue hardship upon plaintiffs and deny them due process of law.
Plaintiffs allege further that in the year 1948 the Hamilton County Rural Zoning Commission conducted a field survey of all the unincorporated territory in the county, and that as the result of such survey the commission found a then existing necessity of zoning such unincorporated area as being the only means available to protect property owners against the harmful effects of use of neighboring property, whereupon the county commissioners passed a zoning resolution on August 10, 1949, which was submitted to the voters of the townships and was favorably voted upon by the voters of Sycamore Township.
As part of the zoning resolution a zone map of the county was adopted, dividing the county and townships into districts, including residential A, residential B, residential C, retail business D, light industry F, heavy industry G, and resort H.
On December 20, 1952, an application for zone change was filed with the zoning commission, seeking a change of property, containing 134 acres, from the original classification of residential A, B, and C to industrial G, which application gave as a reason for the requested change, "lack of sufficient land in the county which was zoned industrial."
Hearings were held in accordance with law, and the application came before the county commissioners with recommendations from the zoning commission and the Hamilton County Regional Planning Commission of the change requested.
On May 19, 1953, a hearing was held on the application by the county commissioners, and on May 26, 1953, they passed a resolution entitled, "Zoning Amendment No. 30," approving the change of zoning from residential A, B, and C to industrial G.
The plaintiffs allege further that the county commissioners acted arbitrarily and capriciously in that the zoning amendment states no facts upon which the county commissioners reached their conclusion, and that, unless the court intervenes, the zoning amendment will become effective on June 25, 1953, and the defendant county building inspector will issue building permits permitting the erection of industrial-type buildings on the 134-acre tract.
The plaintiffs allege further that the use of these premises for industrial purposes will result in great congestion of population, increased traffic problems, overcrowded schools, destruction of the privacy of plaintiffs' property, creation of noise and confusion in what is now a quiet and peaceful community, lessening of property values, and great harm to the county zoning plan and property owners; that the order of the county commissioners violates Section 1, Article I of the Constitution of Ohio, and Section 1, Article XIV of the Amendments to the Constitution of the United States, in that "the Board of County Commissioners acted arbitrarily and unreasonably, and solely to meet the demands made upon it by those who contended that the passage of said resolution was necessary to raise additional funds for the township schools; and further said resolution is unreasonable and not a proper exercise of the police powers, in that it denies to persons thereby the equal protection of the laws and has no reasonable relation to public health, safety and welfare of said local community and the entire county."
Plaintiffs allege further that they have no adequate remedy at law and pray that the resolution be held unconstitutional and void and that an injunction be granted to prevent its enforcement.
Defendants filed a demurrer to the amended petition upon three grounds:
1. The court has no jurisdiction of the subject matter of the action.
2. The action was not brought within the time limited for the commencement of such action.
3. The petition does not state facts which show a cause of action.
The Court of Common Pleas sustained the demurrer, and, plaintiffs having failed to plead further, that court, upon motion, dismissed the amended petition.
An appeal on questions of law was perfected to the Court of Appeals which, finding in its journal entry that there was error upon the face of the record to the prejudice of plaintiffs in that the Court of Common Pleas erred in sustaining the demurrer and in dismissing the amended petition, reversed the judgment of the Court of Common Pleas and remanded the cause to that court for further proceedings.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Matthews Matthews, for appellees.
Mr. C. Watson Hover, prosecuting attorney, Mr. William J. Schmid and Mr. Carl B. Rubin, for appellants.
There is but one question of law presented to us for decision, to wit, is the amended petition demurrable?
From its face, the amended petition obviously was filed pursuant to the provisions of Section 3180-11, General Code (Section 303.12, Revised Code), which are as follows:
"Amendments or supplements to the zoning resolution may be made in the same manner and for the same purposes provided in this act for the adoption of the original resolution, except that such amendments or supplements may be made without submitting them to a vote of the electors, unless within 30 days after the adoption of the amendment or supplement there is presented to the Board of County Commissioners a petition, signed by a number of qualified voters residing in the unincorporated area of the township or part thereof included in the zoning plan and affected by the amendment or supplement equal to not less than 8 per cent of the total vote cast for all candidates for Governor in such area at the last preceding general election at which a Governor was elected, requesting the Board of County Commissioners to submit the amendment or supplement to the electors of such area for approval or rejection at the next primary or general election. Any person adversely affected by an order of the Board of County Commissioners adopting, amending or rescinding a regulation under the authority of this act may appeal to the Court of Common Pleas of such county on the ground that such Board of County Commissioners failed to comply with the law in adopting, amending, rescinding, publishing, or distributing said regulation, or that said regulation as adopted or amended by the Board of County Commissioners is unreasonable or unlawful or that the revision of the regulation was unreasonable or unlawful."
That plaintiffs intended to rely upon this section is indicated by their claim in the amended petition that "said resolution is unreasonable and not a proper exercise of police powers" and is otherwise unlawful.
The original petition in the present case was filed 15 days after the order of the county commissioners amending the zoning ordinance, and the Court of Common Pleas held that the demurrer to it should be sustained since no appeal was filed from the order of the commissioners to the Common Pleas Court within 10 days. That court treated the filing of the amended petition as an appeal and held Section 12223-7, General Code (Section 2505.07, Revised Code), to be applicable. That section provides for a limitation of time within which appeals from various courts may be perfected to higher ones, and that all other appeals shall be perfected within 10 days.
However, Section 2461, General Code (Section 307.56, Revised Code), provides:
"A person aggrieved by the decision of the county commissioners in any case, may appeal within 15 days thereafter, to the next [ sic] Court of Common Pleas, notifying the commissioners of such appeal at least ten days before the time of trial. The notice shall be in writing, and delivered personally to the commissioners, or left with the auditor of the county. At its next session the court shall hear and determine the appeal, which decision shall be final."
It is obvious that Section 12223-7, General Code (Section 2505.07, Revised Code), is a statute of general application and contains the language, "unless otherwise provided by law," whereas Section 2461, General Code (Section 307.56, Revised Code), is a statute applying only to an appeal by one aggrieved by an order of a board of county commissioners in any case.
We have held again and again that a special statutory provision which applies to a specific subject matter constitutes an exception to a general statutory provision covering other subjects as well as the specific subject matter which might otherwise be included under the general provision. Acme Engineering Co. v. Jones, Admr., 150 Ohio St. 423, 83 N.E.2d 202; State, ex rel. Elliott Co., v. Connar, Supt., 123 Ohio St. 310, 175 N.E. 200; State, ex rel. Steller et al., Trustees, v. Zangerle, Aud., 100 Ohio St. 414, 126 N.E. 413.
It seems obvious, therefore, that Section 2461, General Code (Section 307.56, Revised Code), would be the applicable statute governing an appeal from the county commissioners to the Court of Common Pleas in the present case. However, in the present case no appeal was perfected under either statute.
The action on plaintiffs' amended petition is an independent one in equity for an injunction.
Plaintiffs in their brief and argument maintain that this is so, and the Court of Appeals so treated the action and stated that where "the change effected by the amendment is arbitrary, unreasonable, and violative of constitutional rights, a court of equity will grant relief in an original action."
Plaintiffs make no claim that they complied with the appellate procedure under either of the appeal statutes considered above, and in the amended petition it is alleged that there was no adequate remedy at law available to plaintiffs.
The only question then presented to this court is whether plaintiffs were authorized to institute the present action in equity as an alternative to and in place of the appeal provided for by statute.
There is no question here of failure to exhaust administrative remedies before perfecting an appeal to the courts. There is no claim of the omission of any procedural steps and, therefore, the case of State, ex rel. Lieux, v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d 414, is not applicable. That case was a mandamus action brought to compel the village of Westlake to issue a building permit which was refused by the building commissioner on the ground that it violated the zoning ordinance of the village.
The zoning ordinance provided for an appeal to a board of appeals from the order of the commissioner, which was not taken by the relator. This court reversed the judgment of the Court of Appeals granting the writ, for the reason that relator had not exhausted the administrative remedies before bringing his original action.
A case more nearly in point with the present one is that of State, ex rel. Stein, v. Sohngen, Dir., 147 Ohio St. 359, 71 N.E.2d 483, in which the relator sought in this court a writ of mandamus commanding the Director of Liquor Control and the Board of Liquor Control to show cause why they should not grant him a liquor permit. The refusal to issue the permit was based on a regulation of the board limiting the number of such permits. This court denied the writ on the ground that an adequate remedy at law was afforded by the Liquor Control Act, which provided for a review of the action of the Director of Liquor Control by an appeal to the Board of Liquor Control and then an appeal to the Court of Common Pleas of Franklin County from an adverse decision of the Board of Liquor Control.
The whole theory of equitable actions is based upon the principle that they are necessary for the attainment of justice in a situation where there is no adequate remedy at law as to an aggrieved person.
By Section 3180-11, General Code (Section 303.12, Revised Code), there is provided a plain and adequate remedy in the ordinary course of the law by an appeal from the order of the county commissioners to the Court of Common Pleas, which court has full power to grant all the relief for which plaintiffs pray in their amended petition.
It was frankly admitted by plaintiffs in argument that they had full knowledge of all the proceedings before the county commissioners, and, as protestors, participated in the hearings. They allege it was inconvenient for them to appeal from the order of the county commissioners because plaintiffs resided 15 miles away from their attorney. However, mere inconvenience is never an excuse for failure to avail one's self of a legal remedy.
The Court of Appeals in its opinion cited many cases to support the proposition that an independent action may be brought to test the order of an administrative agency, where constitutional questions are involved. There are cases cited in which attacks on the jurisdiction of administrative boards were made by such independent actions. However, the present case differs from those cited, in that here the jurisdiction of the county commissioners as to the zoning amendment is unchallenged, the claim of plaintiffs simply being that the order rendered was unreasonable, unlawful and violated due process. This claim could be determined only by an examination of the facts upon which the county commissioners based their order, and that is a question which could be fully litigated upon the appeal provided for by statute.
Since plaintiffs had a plain adequate remedy at law by which the questions raised in their amended petition could be adjudicated, and since they were not entitled to equitable relief upon their claim that they were without such an adequate legal remedy, the Court of Common Pleas was not in error in sustaining the demurrer to the amended petition.
It follows that the judgment of the Court of Appeals must be and it, hereby, is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and TAFT, JJ., concur.