Opinion
No. 36941
Decided March 29, 1961.
Mandamus — To require racing commission to issue permit to relator — Writ not available as substitute for appeal — Or to control discretion of commission.
IN MANDAMUS.
The relator, Toledo-Maumee Raceways, Inc., engaged in the business of conducting horse-racing meetings at Maumee Downs Race Track in Lucas County, brought this action in mandamus in this court against the State Racing Commission and the members thereof for a writ requiring the commission to rescind its action in granting the application of Raceway Park, Inc., for a permit to conduct a running horse-racing meeting at Raceway Park in Lucas County from April 1, 1961, to May 22, 1961, and to rescind the commission's action in denying the application of relator for a permit to conduct a running horse-racing meeting at Maumee Downs during the same period of time, and to issue a permit to relator for that time or, in the alternative, to convene and proceed to set and allocate dates for the 1961 racing season in Lucas County so that both relator and Raceway Park, Inc., will be afforded "substantially equal opportunity for the beneficial enjoyment of their opportunities."
It is apparent from the petition that, pursuant to the Administrative Procedure Act, Chapter 119, Revised Code, relator requested a hearing before the commission, and that a hearing was had and an order was issued denying the application.
The respondents filed a demurrer to the petition, on the ground that it does not state facts which show a cause of action for a writ of mandamus.
Mr. William James Jacobs, Mr. Robert J. Devine and Mr. James H. Tigges, for relator.
Mr. Mark McElroy, attorney general, and Mr. John A. Hoskins, for respondents.
Relator's petition fails to state a cause of action for mandamus. The petition discloses on its face that relator has an adequate remedy by way of appeal from the order of the commission, as authorized by the Administrative Procedure Act, Chapter 119, Revised Code. Furthermore, by this proceeding relator is attempting to control the discretion of the commission in issuing racing permits.
A writ of mandamus may not be employed as a substitute for appeal and will not issue to control the discretion of the State Racing Commission or to direct in what particular way it shall proceed or decide a particular matter.
The demurrer to the petition is sustained and the writ is denied on authority of State, ex rel. De Ville Photography, Inc., v. McCarroll, Judge, 167 Ohio St. 210, and State, ex rel. De Ville Photography, Inc., v. McCarroll, Judge, 168 Ohio St. 337.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and O'NEILL, JJ., concur.
HERBERT, J., not participating.