Opinion
No. 38693
Decided February 24, 1965.
Prohibition — Remedy not available, when — Threatened suspension or revocation of right by administrative board — Adequate remedy by appeal — Section 2506.01 et seq., Revised Code.
Sections 2506.01 to 2506.04, inclusive, Revised Code, afford an adequate remedy at law by way of appeal from a final order, adjudication or decision of an administrative board, so that the writ of prohibition will not issue at the instance of a party who alleges irregularities in the proceedings of such a board and anticipates that such a board will deprive him of procedural and substantive rights.
APPEAL from the Court of Appeals for Montgomery County.
This action in prohibition was instituted in the Court of Appeals. The relator, Fred de Weaver III, alleges that he is a licensed master plumber; that respondents constitute the Board of Examiners of Plumbers of the city of Dayton; that the respondents have notified relator to appear before them for a hearing to determine whether his master plumbers license should be suspended or revoked because of an alleged violation of a city ordinance in the installation of plumbing; that the proposed action of the respondents is under authority of an ordinance which purports to grant to the respondent board the power on its own behalf to subpoena witnesses and compel their attendance and to control the production of records and documents without granting to relator the corollary right to enforce production of evidence; and that the authority of the board is final without provision for appeal.
The relator alleges further that the ordinance is unconstitutional and that the proposed action would subject him to great and irreparable damage in that it will deprive him of his right to engage in his occupation as a plumber and plumbing contractor for which he has no adequate remedy in law or equity.
As a second cause of action the relator attacks the validity of the summons.
The prayer of the petition is for a writ restraining respondents from ordering a suspension or revocation of the master plumbers license of relator.
The respondents filed a general demurrer to the petition.
The Court of Appeals heard the cause on the petition and demurrer thereto, sustained the demurrer for the reason that relator had an adequate remedy of appeal and dismissed the petition.
An appeal as of right brings the cause to this court for review.
Mr. Emanuel Nadlin, for appellant.
Mr. Herbert S. Beane, city attorney, and Mr. Joseph P. Duffy, for appellees.
The remedy of prohibition is not available where there is an adequate remedy in the ordinary course of the law. The relator has an adequate remedy by way of appeal to the Court of Common Pleas under authority of Sections 2506.01 to 2506.04, inclusive, Revised Code.
The purpose of those sections is to grant relief from the specific mischief which relator fears, namely, that the respondent board will refuse, after request, to afford relator the opportunity to use its power of subpoena to produce evidence on his behalf. See Section 2506.03 (D), Revised Code.
As to relator's contention that he will be irreparably damaged if the respondent board revokes his license to engage in his occupation as a plumber, no serious constitutional problem is presented. His position is no less than if the board had temporarily suspended his license in advance of and pending the hearing. Where a licensing system is designed to provide control over licensees for the protection of the public health or safety and the licensing agency is informed that a licensed mechanic or artisan is seriously endangering the public, summary administrative suspension of the license without notice or hearing, pending a later hearing and subject to subsequent judicial review, is neither unusual nor inappropriate, nor violative of constitutional standards. State v. Stehlek, 262 Wis. 642, 56 N.W.2d 514; R.A. Holman Co., Inc., v. Securities and Exchange Comm. (C.C.A., D.C.), 299 F.2d 127.
In this case, if after hearing, the board should revoke the license, as respondent fears, and if he pursues his appeal to the Court of Common Pleas, he will have the opportunity to avail himself of the benefit of Section 2505.17 of the Revised Code by applying to that court for a stay of the order of revocation pending the determination of the appeal.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.