Opinion
No. 36904
Decided June 7, 1961.
Mandamus — Not available as substitute for appeal — Discontinuance of telephone service — Telephones believed used in furtherance of gambling.
IN MANDAMUS.
This action in mandamus was instituted in this court by the filing of a petition in which relatrix alleges that the respondent telephone company has discontinued telephone service at her residence in the city of Upper Arlington pursuant to an order of the Public Utilities Commission to the effect that a telephone company shall refuse to furnish service if it has good cause to believe that such service will be used in furtherance of gambling, and, upon notice from any law enforcement agency that such agency has reason to believe such telephone service is being used in furtherance of gambling, the telephone company shall discontinue such service; that such order is unconstitutional; and that she has suffered, is suffering, and will continue to suffer irreparable injury unless respondent is ordered to furnish adequate telephone service to her. The prayer is for a writ directing the respondent to provide relatrix with telephone service and telephone instrumentalities and facilities as are necessary, adequate, just and reasonable.
The answer admits such order and avers that the Chief of Police of Upper Arlington requested respondent to discontinue telephone service at relatrix's address because he, the chief of police, has reason to believe the telephones at that address are being used for the purpose of furthering gambling; that, until such time as the law enforcement agency shall inform respondent that telephone service shall be provided at relatrix's residence, respondent cannot legally provide such service; and that relatrix has a plain and adequate remedy in the ordinary course of the law and does not have a clear right to the relief sought. The answer prays that the petition be dismissed.
Messrs. Herbert, Tuttle, Applegate Britt, for relator.
Mr. Ashley M. Van Duzer, Mr. Edwin N. Strand, Mr. Michael L. Shatten and Messrs. Porter, Stanley, Treffinger Platt, for respondent.
The relatrix is afforded an adequate remedy in the ordinary course of the law under Section 4905.26, Revised Code, by filing a complaint with the Public Utilities Commission and an appeal from an adverse order of the commission.
A writ of mandamus may be denied where there is a plain and adequate remedy in the ordinary course of the law. See Section 2731.05, Revised Code.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.