Opinion
No. 72-704
Decided April 25, 1973.
Mandamus — Not available to control discretion of administrative board — Solid waste disposal facility — License to operate — R.C. 3734.01 et seq. — Mandamus will not lie to compel issuance.
A writ of mandamus will not issue to compel a district board of health to issue a license to operate a solid waste disposal site or facility pursuant to R.C. Chapter 3734.
APPEAL from the Court of Appeals for Wood County.
Appellant, Benton's Village Sanitation Service, Inc. (hereinafter referred to as Benton), is the prospective operator of a sanitary landfill facility in Wood County, pursuant to R.C. Chapter 3734. On February 4, 1972, Benton applied to appellee Wood County District Board of Health, for a license to operate a solid waste disposal facility as required by R.C. 3734.05(A). Benton also submitted its final site plans, etc., to the state Department of Health, as required by R.C. 3734.05(C). On May 17, 1972, the state Department of Health approved Benton's plans. Appellees, Glenn S. Usher, Wood County District Health Commissioner, and the Wood County District Board of Health took no action upon Benton's application for the license.
On June 6, 1972, Benton filed a petition in the Court of Appeals for Wood County for a writ of mandamus, compelling appellees to issue the license.
Upon the hearing of that action, by agreement of the parties, it was "established" that "respondents refused to act on relator's application for the license required by Ohio Revised Code Section 3734.05(A) to operate the solid waste disposal facility [that] the state of Ohio Department of Health approved for relator to construct and operate on Wales Road in the village of Northwood, Wood County, Ohio and [respondents refused to] either issue the license or issue a written order denying the license." It was also agreed that the Wood County commissioners had established a county garbage and refuse disposal district pursuant to R.C. Chapter 343 and had adopted regulations, inter alia, authorizing the commissioners to cancel all licenses issued by appellees to operate solid waste disposal facilities in Wood County, and requiring that all solid wastes generated within and coming from outside and into the Wood County Garbage and Refuse Disposal District be disposed of only at the county landfill site.
There was apparently a dispute between the village of Northwood, where Benton proposed to operate its landfill site, and the county commissioners as to whether Northwood was included within the district established by the county commissioners. Appellees contended that this dispute must be resolved before they could act upon relator's application for the license.
The majority of the Court of Appeals denied the writ of mandamus on the ground that Benton "* * * has a plain and adequate remedy in the ordinary course of the law."
The cause is now before this court upon appeal from the judgment of the Court of Appeals.
Messrs. Harkins Reckless, Mr. Walter W. Reckless, Messrs. Cobourn, Smith, Rohrbacher Gibson and Mr. Fred A. Smith, for appellant.
Mr. Daniel T. Spitler, prosecuting attorney, and Mr. Robert W. Maurer, for appellees.
It is axiomatic that "the writ of mandamus must not be issued where there is a plain and adequate remedy in the ordinary course of the law." R.C. 2731.05. The majority of the Court of Appeals held that such an adequate remedy at law is available to appellant by way of appeal under R.C. Chapter 2506.
R.C. 2506.01 provides that "every final order, adjudication, or decision" of an administrative body is appealable to the Common Pleas Court. However, this statute also provides that "a `final order, adjudication, or decision' does not include * * * any order which does not constitute a determination of the rights, duties, privileges, benefits, or legal relationships of a specified person * * *."
Obviously, a refusal to act does not determine any rights, duties, privileges, benefits, or legal relationships of the appellant; and, therefore, appeal under R.C. Chapter 2506 is not available. That is not to say that appellant is entitled to the relief it demands, i.e., "that an alternative writ of mandamus issue immediately ordering Usher and all other respondents to forthwith issue Benton a license * * *."
Mandamus will lie to compel an administrative officer or board to exercise discretion, but it will not lie to control discretion. See, e.g., State, ex rel. Masters, v. Beamer (1923), 109 Ohio St. 133, 141 N.E. 851; State, ex rel. Middltown, v. City Comm. (1942), 140 Ohio St. 368, 44 N.E.2d 459; State, ex rel. Scott, v. Masterson (1962), 173 Ohio St. 402, 183 N.E.2d 376. Thus, for "refusal to act" appellant would be entitled to a writ of mandamus compelling the appellees to consider appellant's application for a license and to either grant the license or enter upon their records an order denying the license. Should the appellees deny the license, appellant would then have an adequate remedy at law by way of appeal under R.C. Chapter 2506. Such right to appeal is specifically provided by R.C. 3734.09 from any "denial of a license," and is the exclusive remedy to which appellant would be entitled. See, State, ex rel. Ingerson, v. Berry (1863), 14 Ohio St. 315; State, ex rel. Coury, v. Ohio Bell Telephone Co. (1961), 172 Ohio St. 309, 175 N.E.2d 511.
Appellant's brief discloses that the Court of Appeals has granted, in a later action, a writ of mandamus compelling the appellees to exercise their discretion. Apparently, the appellees have entered upon their records an order denying the license and appellant has filed an appeal in the Common Pleas Court of Wood County pursuant to R.C. 3734.09 and R.C. Chapter 2506.
This court will not, however, grant the writ of mandamus to control the discretion of an administrative body. For this reason, the judgment of the Court of Appeals denying the writ is affirmed.
Judgment affirmed.
HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and GRAY, JJ., concur.
GRAY, J., of the Fourth Appellate District, sitting for P. BROWN, J.