Opinion
No. 74-863
Decided February 5, 1975.
Public utilities — Waterworks — Application for certificate rejected — Connection fees in rate schedule — Mandamus not available, when — Appeal from order pending.
IN MANDAMUS.
Relator filed an application with the Public Utilities Commission for a certificate of public convenience and necessity for a waterworks and sewage disposal system for a recreational development under construction in Ashland County. In its application, relator set forth certain fees as anticipated rates to be charged by it.
Respondent commission found that a public convenience and necessity existed and ordered that relator's application for certification be granted. In its entry, the commission permitted relator's proposed available-for-use charges but ordered that an "investigation be commenced into the reasonableness of the proposed" charges. However, the commission ordered that "no connection fees be charged * * * for tapping into the system."
Relator then sought a rehearing, and, at the same time, submitted a rate schedule for filing. That schedule included connection fees. The commission rejected the proposed rate schedule and denied relator's application for rehearing.
Relator then instituted the present mandamus action in this court, requesting that the commission be ordered to permit the filing of relator's proposed rate schedules.
The cause is before this court on the complaint of relator, the answer of respondent and relator's motion for judgment on the pleadings.
Messrs. Jones, Day, Cockley Reavis and Mr. Lanty L. Smith, for relator.
Mr. William J. Brown, attorney general, and Mr. Keith F. Henley, for respondent.
In this mandamus action, relator and the commission argue the applicability of R.C. 4909.18 to the commission's treatment of relator's submission of a rate schedule.
The day after relator filed this mandamus action, it filed an appeal in this court from the respondent's order denying relator's proposed rate schedule. This court has held many times that mandamus is not available to a relator who has an adequate remedy at law available by appeal. See, e.g., State, ex rel. Foreman, v. Court of Appeals (1970), 24 Ohio St.2d 93.
Relator says, however, that "time is of the essence, both to protect relator and the public interest." Implicit in relator's contention is the argument that the delay involved in an appeal is costly to it. Thus, argues relator, it does not have a plain and adequate remedy available in the ordinary course of the law.
However, in State, ex rel. Kronenberger-Fodor Co., v. Parma (1973), 34 Ohio St.2d 222, this court held 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."
Relator has an appeal pending in this court from the commission's order rejecting its proposed rate schedule.
Accordingly, the writ of mandamus is denied.
Writ denied.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.