Opinion
No. 37773
Decided December 5, 1962.
Mandamus — Not available where ordinary remedy at law afforded — Training center for mentally deficient persons — Transportation — Who to furnish.
IN MANDAMUS.
The relator, the Summit County Child Welfare Board, has invoked the original jurisdiction of this court by filing herein a petition in mandamus against the Commissioner of Mental Hygiene of the state of Ohio.
According to the allegations of the petition, relator has established in Summit County, pursuant to Section 5127.01, Revised Code, a training center and workshop for mentally deficient persons. Relator alleges that for such training centers and workshops to be effective it is necessary for someone to transport the mentally deficient persons from and to their homes and from and to such training centers and workshops. Here, relator concludes as a matter of law that respondent is the proper person to determine whether the parents and guardians of such mentally deficient persons should furnish such transportation or whether relator should provide the transportation.
The prayer of the petition is that a writ of mandamus issue against the respondent requiring him to make and publish his decision in this matter.
The respondent has filed a general demurrer to the petition, and the cause is now before the court on the petition and the demurrer thereto.
Mr. John S. Ballard, prosecuting attorney, and Mr. John D. Smith, for relator.
Mr. Mark McElroy, attorney general, and Mr. William P. Meehan, for respondent.
Relator is afforded by a declaratory judgment action a plain and adequate remedy in the ordinary course of the law. In such a case, a writ of mandamus may be denied. State, ex rel. Moran, v. Welling, Dir., 172 Ohio St. 516.
The demurrer is sustained and a writ of mandamus is denied.
Writ denied.
ZIMMERMAN, TAFT, MATTHIAS, CRAWFORD, O'NEILL and GRIFFITH, JJ., concur.
CRAWFORD, J., of the Second Appellate District, sitting by designation in the place and stead of HERBERT, J.