Summary
In State ex rel. Willis v. Sheboy (1983), 6 Ohio St.3d 167, 6 OBR 225, 451 N.E.2d 1200, syllabus, the court held: "Where a constitutional process of appeal has been legislatively provided, the sole fact that pursuing such process would encompass more delay and inconvenience than seeking a writ of mandamus is insufficient to prevent the process from constituting a plain and adequate remedy in the ordinary course of the law."
Summary of this case from State ex rel. Connole v. Cleveland Board of EducationOpinion
No. 82-1059
Decided August 10, 1983.
Mandamus — Appellate procedure — Appeal is a plain and adequate remedy although it would encompass more delay and inconvenience than mandamus — Function of mandamus is to compel performance of present existing duty — Municipal corporations — Mandamus will not lie to compel building permits applied for in future.
O.Jur 2d Mandamus §§ 15, 26, 35.
1. Where a constitutional process of appeal has been legislatively provided, the sole fact that pursuing such process would encompass more delay and inconvenience than seeking a writ of mandamus is insufficient to prevent the process from constituting a plain and adequate remedy in the ordinary course of the law. ( State, ex rel. Kronenberger-Fodor Co., v. Parma, 34 Ohio St.2d 222 [63 O.O.2d 362], syllabus approved and followed.)
2. The function of mandamus is to compel the performance of a present existing duty as to which there is a default. It is not granted to take effect prospectively, and it contemplates the performance of an act which is incumbent on the respondent when the application for a writ is made.
APPEAL from the Court of Appeals for Cuyahoga County.
This action in mandamus originated in the Court of Appeals for Cuyahoga County with Winston E. Willis as relator and Charles Sheboy, Commissioner of Building and Housing for the city of Cleveland and Al Cultrona, Assistant Administrator of Building and Housing for the city of Cleveland, as respondents.
Relator asserted in his complaint that he had applied for numerous building, sign and use permits from the city of Cleveland, having complied with all regulations for the issuance of such permits including submission of plans and drawings, but that said plans and drawings were summarily rejected and all permits denied.
Relator further asserted that on March 17, 1982, respondents had posted on a bulletin board of the Department of Building and Housing a notice to all employees that read, "Do not issue any permits for the above addresses," the addresses being 5517-25 Euclid Avenue, 5901-07 Euclid Avenue, 5911-27 Euclid Avenue, 6001-13 Euclid Avenue and 1985 East 59th Street.
Relator further asserted that the denial of permits by respondents constituted a denial of rights secured to relator by the Constitution of the United States and an abuse of discretion on the part of respondents in that such denials did not arise out of a legitimate exercise of discretion, but rather as the result of a conspiracy between the city of Cleveland and the state Fire Marshall.
Relator sought a peremptory writ of mandamus requiring respondents to issue to relator "the necessary occupancy permits applied for" and to "issue any and all further legally applied for building, sign and occupancy permits or in the alternative to show cause why such permits should not be granted."
Respondents filed a motion to dismiss the action for the reason that relator had failed to state a claim against them upon which relief could be granted. The court of appeals granted respondents' motion to dismiss for the reason that relator had an adequate remedy at law.
The cause is now before this court upon an appeal as of right.
Mr. Winston E. Willis, pro se. Mr. James E. Young, director of law, and Mr. Theodore J. Esborn, for respondents.
R.C. 2731.05 provides that "[t]he writ of mandamus must not be issued when there is plain and adequate remedy in the ordinary course of the law."
Section 76-6(d) of the Charter of the city of Cleveland vests jurisdiction in the Board of Building Standards and Building Appeals to hear and decide appeals from decisions of the Commissioner of Building and Housing, and Section 3103.18(e) of the Ordinances of the city of Cleveland provides the procedure for such appeals.
In State, ex rel. Kronenberger-Fodor Co., v. Parma (1973), 34 Ohio St.2d 222 [63 O.O.2d 362], a case involving zoning regulations, the syllabus provides that "* * * where a constitutional process of appeal has been legislatively provided, the sole fact that pursuing such process would encompass more delay and inconvenience than seeking a writ of mandamus is insufficient to prevent the process from constituting a plain and adequate remedy in the ordinary course of the law." See, also, State, ex rel. Cinnamon Lake Utility, v. Pub. Util Comm. (1975), 41 Ohio St.2d 79, 80 [70 O.O.2d 165.]
Although relator-appellant asserted in his complaint filed in the court of appeals that there was currently pending in the Cleveland Municipal Court a complaint for injunction to close down the businesses operated on the premises for failure to secure permits and that he had no adequate remedy at law, and further asserts in argument in his brief filed herein, that no final order has been issued in the matter from which an appeal can be taken, he does assert in his complaint that the permits were in fact denied. We conclude that relator had a plain and adequate remedy in the ordinary course of the law by way of appeal from the denial of permits previously sought.
Relator also sought a writ of mandamus for the issuance of further legally applied for permits in the future.
"* * * The function of mandamus is to compel the performance of a present existing duty as to which there is a default. It is not granted to take effect prospectively, and it contemplates the performance of an act which is incumbent on the respondent when the application for a writ is made. * * *" State, ex rel. Federal Homes Properties, Inc., v. Singer (1967), 9 Ohio St.2d 95, 96 [38 O.O.2d 227].
Thus, mandamus will not lie to compel the issuance of permits to be applied for in the future.
The judgment of the court of appeals is affirmed.
Judgment affirmed
CELEBREZZE, C.J., W. BROWN, SWEENEY, WEBER, HOLMES and C. BROWN, JJ., concur.
WEBER, J., of the Second Appellate District, sitting for LOCHER, J.
MILLER, J., of the Third Appellate District, sitting for J.P. CELEBREZZE, J.