As a general rule, where the granting of a permit is a ministerial duty involving the exercise of no judgment or discretion, mandamus will lie to compel the issuance thereof, if there is no other adequate remedy in the ordinary course of law. And where a denial of a permit is based on a ground which infringes the applicant's constitutional rights, mandamus may lie to compel the authorities to grant it. 35 Ohio Jurisprudence (2d), 362, Section 93.
But mandamus cannot be restorted to in a civil proceeding to subserve the purpose of an appeal, provided such review is adequate to the circumstances of the particular case. And where a party has had a remedy by appeal, whether he exercised that remedy or not, he cannot ordinarily have the extraordinary remedy of mandamus to secure the same rights which he could have secured by such appeal. 35 Ohio Jurisprudence (2d), 282, 284, Section 35. Section 2731.05, Revised Code, expressly provides that "the writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of law."
In the instant case, the relators attack the ordinance as a whole as well as the specific provisions of the ordinance as it affects their property.
In 1 Metzenbaum, Law of Zoning (2 Ed.), at page 708, the author makes a distinction between a court proceeding alleging that a zoning ordinance is unconstitutional in its entirety and a proceeding aimed merely against a specific provision or provisions of a zoning ordinance as they apply to the complainant's particular property and states that when a zoning ordinance is attacked in its entirety it is not necessary to have employed the available administrative remedies, but when it is attacked as to unconstitutionality or unreasonableness of aspecific provision as it affects complainant's particular property, such complainant is required to employ the available administrative remedies before the court will entertain such action. Apparently the Supreme Court of Ohio makes no such distinction. In State, ex rel. Lieux, v. Village of Westlake,154 Ohio St. 412 (approved and followed in State, ex rel.Ronald, Inc., v. City of Willoughby, *Page 343 170 Ohio St. 39), the court holds that in Ohio "An applicant for a building permit, whose application is refused because of the provisions of a zoning ordinance, cannot secure a writ of mandamus, compelling the issuance of such permit on the grounds that the ordinance as a whole is unconstitutional, without first exhausting administrative remedies provided by such ordinance if such administrative remedies might enable such applicant to secure the permit." (Italics supplied.)
In State, ex rel. Gund Co., v. Village of Solon, 171 Ohio St. 318, the Supreme Court sustained a demurrer to the petition seeking the issuance of a building permit for the erection of a gasoline filling station on the ground that Chapter 2506 of the Revised Code provides a remedy by judicial review of final orders of administrative boards of municipalities and thereby the relator had an adequate remedy at law by way of appeal to test the claimed invalidity of the zoning ordinance. See, also,State, ex rel. Fredrix, v. Village of Beechwood, 171 Ohio St. 343, also holding that relator had an adequate remedy at law by way of appeal pursuant to Chapter 2506, Revised Code (citingState, ex rel. Lorain County Savings Trust Co., v. Board ofCommrs. of Lorain County, 171 Ohio St. 306; State, ex rel. GundCo., v. Village of Solon, supra; State, ex rel. Grant, Exr., v.Kiefaber et al., Montgomery County Planning Comm, supra) andState, ex rel. Cotleur, v. Board of Edn. of Cleveland Hts.School Dist., 171 Ohio St. 335, holding that relator had an adequate remedy by way of injunction citing State, ex rel.Grant, Exr., v. Kiefaber et al., Montgomery County PlanningComm., supra. See, also, State, ex rel. Ricketts, v. Balsly,Bldg. Inspr., 171 Ohio St. 553, holding that relator had an adequate remedy by way of injunction or by appealing from the decision of the county building inspector to the Board of Zoning Appeals (Section 303.15, Revised Code) and from such board to the Court of Common Pleas (Chapter 2506, Revised Code), which latter remedy he, in fact, had pursued, citing State, ex rel.Grant, Exr., v. Kiefaber et al., Montgomery County PlanningComm., supra; State, ex rel. Toledo-Maumee Raceways, Inc., v.Ohio State Racing Commission, 172 Ohio St. 109, holding that relator had an adequate remedy by way of appeal under Chapter 119, Revised Code; State, ex rel. Coury, v. Ohio Bell TelephoneCo., 172 Ohio St. 309, holding that relator had an adequate remedy by way *Page 344 of appeal to Public Utilities Commission and an appeal from an adverse order of the commission.
Notwithstanding the foregoing decisions holding that mandamus may not subserve the remedy of appeal, the Supreme Court has recognized that it has power to allow a writ of mandamus even though the relator has or had an adequate remedy in the ordinary course of law, and has also held that a Court of Appeals that allows a writ of mandamus to a relator does not thereby abuse its discretion merely because such relator also has an adequate remedy at law. State, ex rel. Wesselman. v. Board of Electionsof Hamilton County, 170 Ohio St. 30, 33. In State, ex rel.Grant, Exr., v. Kiefaber et al., Montgomery County PlanningComm., supra, the court states further that the Court of Appeals has the same discretionary power with respect to the allowance of a writ of mandamus in such a case originating in that court as does the Supreme Court and that where a Court of Appeals, in the exercise of its discretion, allows a writ of mandamus to a relator who has or had an adequate remedy in the ordinary course of law, the Supreme Court has been reluctant to and has declined to interfere with such exercise of discretion by the Court of Appeals, citing the Wesselman case and State, ex rel. KilleenRealty Co., v. City of East Cleveland, 169 Ohio St. 375.
This dissenting member agrees with the majority that the same principles are to be applied to review by the Court of Appeals of a judgment of the Common Pleas Court allowing a writ of mandamus in the exercise of its discretion notwithstanding the relator has or had an adequate remedy in the ordinary course of the law. However, it is somewhat difficult to reconcile the decisions in the Kiefaber, Wesselman and Killeen cases with previous decisions holding that a petition in mandamus fails to state a cause of action where there is available an adequate remedy at law.
Upon the instant appeal, there is no evidence to support the statement in the opinion of the trial court that prior appeal by the relators would have been futile.
In the Killeen case, the Supreme Court holds as follows:
"2. Where the doing of an act which is a prerequisite to the performance of an assigned function of a municipal authority would be onerous and expensive and the doing of which act *Page 345 would be a vain thing, and where the failure to do such act is not the ground for refusal by the municipal authority to perform its assigned function, failure to do that act will not constitute a bar to an action in mandamus to compel the performance of such function upon the subsequent doing of such act.
"3. Where a municipality's zoning ordinances authorize the granting of a variance in hardship cases, where it is shown that a proposed use of the land in question is in harmony with the needs and nature of the community, and where no economically feasible use of such land may be made under the existing zone designation, it is an abuse of discretion on the part of the municipality's officials possessing the discretionary power to do so to refuse to grant a variance.
"4. Where an isolated parcel of land is similarly zoned as are parcels with which it is contiguous on one side but it extends into and is surrounded on the three other sides by an area of land zoned for less restricted uses, where no feasible economic use of the former land can be made under the present zoning, and where a reduction to the next less restricted use is in harmony with the needs and nature of the neighborhood, the refusal by municipal authorities to extend the less restricted use to such property constitutes a taking of it without due process, resulting in its confiscation."
In the Killeen case, the relators, after extensive negotiations and discussion with the respondents, made formal application for rezoning which was denied and therefore had presumably exhausted their only adequate remedy in the ordinary course of law. Respondents contended that the relators "could and should" have brought an action for declaratory judgment to obtain a determination of the validity of the zoning of their property. Without passing upon the propriety of the suggested declaratory judgment action, the Supreme Court found that the jurisdictional prerequisites to a mandamus suit in the Court of Appeals existed, citing numerous authorities. In determining whether there had been such an exhaustion of administrative remedies as to make mandamus available as an avenue for relief, the Supreme Court pointed out that the Court of Appeals found the record to be "abundantly clear" that to have made a formal filing of complete plans and specifications would have been "to perform a useless act." The Supreme Court referred *Page 346 also to the fact that it was obvious from the record that the preparation of such plans and specifications would have been an onerous and expensive undertaking, and that the refusal of the respondents to grant the permit in question was never bottomed upon the absence of such plans and specifications. The court, therefore, concluded upon the facts thus presented that where the doing of an act which is a prerequisite to the performance of an assigned function of a municipal authority would be onerous and expensive, where it is clear that the doing of the act would be a vain thing, and where the failure to do such act is not the ground for refusal by the municipal authority to perform its assigned function, failure to do that act will not, as a matter of law, constitute a bar to an action in mandamus to compel performance of such function. The Killeen case is also to be distinguished upon the facts. In the Killeen case, the parcel was isolated and entirely surrounded on three sides by an area zoned for less restricted uses. In the instant case, the parcel is surrounded on two sides by commercially and residentially zoned lots.
No such circumstances appear from the record in the instant appeal to afford a predicate to the conclusion of the Common Pleas Court that an appeal to the Board of Zoning Appeals would have been futile. Cf. State, ex rel. McMillan, v. Dickerson etal., Industrial Comm., 172 Ohio St. 288. Even though the trial court might assume that the decision on appeal to the Board of Zoning Appeals would be adverse, nevertheless, under Chapter 2506 of the Revised Code, an appeal from such decision to the Common Pleas Court was available. Furthermore, if the administrative remedy might enable the relators to secure the permit, mandamus should be refused. State, ex rel. Lieux, v.Village of Westlake, supra. Upon such an appeal, the validity of the limitations imposed by the provisions of the ordinance relating to variances, as well as the constitutionality of the ordinance in its application to relators' property, could be attacked.
Before the writ may issue, it must appear affirmatively that there is no plain and adequate remedy in the ordinary course of the law. State, ex rel. Libbey-Owens-Ford Glass Co., v.Industrial Commission, 162 Ohio St. 302; State, ex rel. Lorain *Page 347 County Savings Trust Co., v. Board of Commrs. of Lorain County,supra (171 Ohio St. 306).
In State, ex rel. Wesselman, v. Board of Elections ofHamilton County, supra (170 Ohio St. 30), respondents contended that the relator had an adequate remedy by way of injunction or declaratory judgment to secure the relief sought by way of mandamus and the court held that a Court of Appeals that allows a writ of mandamus does not thereby abuse its discretion merely because the relator also has an adequate remedy in the ordinary course of law. In its opinion, the court cites page 478 (dissenting opinion) in State, ex rel. Selected Properties,Inc., v. Gottfried, 163 Ohio St. 469. The Gottfried case, an original action in the Supreme Court in which three members of the court concurred in the opinion of the Chief Justice (not carried into the syllabus), held that injunction would not serve the purpose of the provisions of Section 2731.01, Revised Code, under the facts presented in such action since "injunction is ordinarily employed to prevent future injury, while the purpose of mandamus is to redress past grievances." Two members of the court concurred in paragraphs one and three of the syllabus but dissented from paragraph two of the syllabus and the judgment. Taft, J., dissented on the ground that the case clearly represented an instance where the Supreme Court, in the exercise of its discretion, should refuse to allow mandamus.
The Supreme Court has traditionally held that there can be no remedy by mandamus if injunction will afford adequate relief. 35 Ohio Jurisprudence (2d), 278, Section 31. State, ex rel.Schafer, v. Citizens National Bank of Ironton, 168 Ohio St. 535; State, ex rel. Lorain County Savings Trust Co., v.Board of County Commrs. of Lorain County, supra (171 Ohio St. 306) ; State, ex rel. Cotleur, v. Board of Edn. of Cleveland Hts.School Dist., 171 Ohio St. 335; State, ex rel. Ricketts, v.Balsly, Bldg. Inspr., supra (171 Ohio St. 553). The cases reported in volumes 170 and 171 of Ohio State Reports are subsequent to the Gottfried case, and to the extent that the language in the last paragraph of the opinion conflicts with the later decisions is to be regarded as overruled.
This dissenting member of the court therefore believes, from an analysis of the Killeen, Wesselman and Grant cases, *Page 348 that there was no intention on the part of the Supreme Court to modify the settled principle that mandamus is not available to subserve the purpose of an appeal absent a showing that an appeal is not an adequate remedy under the circumstances of the particular case. It is also to be noted that the Wesselman andKilleen cases relate to injunction or declaratory judgment as an adequate remedy in the ordinary course of the law and did not deal with the availability of appeal as an adequate alternative remedy.
The writer, therefore, concludes that in the instant case, wherein it is apparent that the relators have or had an adequate remedy in the ordinary course of the law by way of an appeal, the Common Pleas Court erred in granting the extraordinary writ of mandamus; that the judgment should also be reversed on that ground and final judgment entered for the respondent herein.
FESS, J., of the Sixth Appellate District, BROWN, J., of the Seventh Appellate District, and DUFFY, J., of the Tenth Appellate District, sitting by designation in the First Appellate District.