Opinion
No. 33612
Decided December 23, 1953.
Mandamus — Writ not substitute for appeal.
IN MANDAMUS.
Relator has invoked the original jurisdiction of this court to obtain a writ of mandamus requiring the members of the Public Utilities Commission to set aside and expunge from its records its order granting to The Cincinnati Suburban Bell Telephone Company authority to file tariff revisions increasing its rates and charges, and also a subsequent order of affirmance.
It appears that the utility's application for rate increase was granted and made effective without a final hearing on the application. An application for rehearing was granted, a rehearing was held, and the former order was affirmed.
Relator contends that the original order of the commission is null and void for failure to hold a final hearing on the application, and that the subsequent order of affirmance after rehearing is likewise void.
Respondents contend that the petition does not state facts which show a cause for action in mandamus, and that there is an adequate remedy in the ordinary course of law.
Mr. Henry M. Bruestle, city solicitor, Mr. James W. Farrell, Jr., and Mr. Robert J. White, for relator.
Mr. C. William O'Neill, attorney general, Mr. James M. Burtch, Jr., and Mr. Everett H. Krueger, Jr., for respondent Public Utilities Commission.
Messrs. Frost Jacobs, Mr. Charles G. Puchta, Jr., and Mr. George C. McConnaughey, for respondent The Cincinnati Suburban Bell Telephone Company.
The cause is submitted on demurrers to respondents' answers to relator's petition by which relator seeks a remedy available by appeal, which appeal it has taken. A writ of mandamus may not be invoked as a substitute for the remedy of appeal. The demurrers to the answers are overruled and the writ is denied. State, ex rel. Stein, v. Sohngen, Dir., 147 Ohio St. 359, 71 N.E.2d 483; State, ex rel. Blackburn, v. Court of Appeals for Franklin County, 154 Ohio St. 237, 95 N.E.2d 273; State, ex rel. Blackburn, v. Court of Appeals for Belmont County, 154 Ohio St. 464, 96 N.E.2d 297.
Writ denied.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.