
    Beerman, Appellant, v. City of Kettering, Appellee.
    (No. 119247
    Decided January 11, 1965.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Bieser, Greer & Landis and Mr. Rowan A. Greer, Jr., for appellant.
    
      Messrs. Goldman, Cole <& Putnih and Mr. Jerome Goldman, for appellees.
   CRAMER, J.

The city of Kettering, one of the appel-lees herein and hereinafter referred to as appellee, seeks, by motion to dismiss the within appeal on the grounds that

(1) Appellants are estopped from seeking the relief sought in the appeal by the judgment of the Court of Appeals of Montgomery Connty, Ohio, in case No. 2653, decided August 9, 1963, and
(2) That the order appealed from is not an appealable order.

Arthur Beerman, appellant herein, has appealed to this court under Sections 2506.01 through 2506.04, Revised Code, from the order and decision of the City Council of the city of Kettering, Ohio, made on or about the 9th day of May 1961, which order and decision affirmed the action of the Board of Zoning Appeals of the city of Kettering made in case No. 706 before said Board of Zoning Appeals. Appellant, before the Board of Zoning Appeals, sought a variance and exception to the zoning ordinance of the city of Kettering on appeal from the action of the building inspector of the city of Kettering who refused to grant a zoning certificate which would permit the construction of a retail shopping facility upon appellant’s land situated in the vicinity of the northwest corner of Far Hills Avenue and David Road in Kettering, Ohio, and which would permit the use of said property as such retail shopping facility.

At the time appellant filed this appeal in this court he brought a mandamus action in the Court of Appeals of' Montgomery County, Ohio, in which action he sought a writ requiring appellee herein to grant a zoning certificate to him and to compel the issuance of building permits for the construction of a retail shopping facility, in an area designated as “Residential 1” and “Residential 3” by the Kettering zoning ordinances. The writ was denied by the Court of Appeals.

The appellee claims that the judgment of the Court of Appeals in the mandamus action estops appellant from pursuing this appeal; that he is bound in this action by the finding of the Court of Appeals and that the law relating to estoppel by judgment applies here to bar appellant in this action.

In support of this contention appellee calls our attention to the opinion of the Court of Appeals and we are referred particularly to the syllabus in the mandamus action which case is reported in 120 Ohio App. 309 and is found in the November 16, 1964, issue of the Ohio Bar. Appellant, however, refers us to the judgment of the Court of Appeals as revealed in this judgment entry, asserting the well-recognized principle, that the court speaks only through its journal.

The opinion of the Court of Appeals while interesting and enlightening merely contains the reasoning of the court upon which its later judgment is based. We must, therefore, look to the judgment entry to determine whether appellant is estopped by the judgment of that court.

It appears from such entry that the Appellate Court specifically found

‘ ‘ * * * that the relator has available an adequate remedy by way of appeal to the Common Pleas Court of Montgomery County under Chapter 2506 of the Revised Code. ’ ’

Though this judgment entry also recites that

“The court further finds that the evidence fails to meet the special requirement in mandamus that the relator must establish a clear legal right to that extraordinary remedy,”
still, it is our opinion that the denial of the writ of mandamus was based primarily, if not exclusively on jurisdictional grounds. The court having effectively denied appellant’s claim for relief on such jurisdictional grounds the further statement in the judgment entry as to the evidence, while not to be considered, as suggested by appellent, as surplusage constitutes, in our view, an observation somewhat in the nature of an afterthought.

We are inclined to agree with appellant in his contention that the Appellate Court by its judgment entry specifically recognized that the appellant herein by this appeal has that adequate remedy which precluded the Court of Appeals from granting the relief appellant sought in the mandamus action.

It is further our opinion that there is merit to appellant’s claim as set forth in his memorandum.

“The refusal of the Court of Appeals to grant the writ of mandamus only determines that the appellant did not meet the high and onerous burden of proof required in a mandamus action but does not settle the issue of whether or not appellant meets the lower and lesser burden of proof required under Chapter 2506.”

It is true that to entitle a relator to relief by way of mandamus he must show a clear right thereto and, in this instance, that the city officials of Kettering were guilty of a clear abuse of discretion in denying appellant the zoning certificate and the requested building permits. It is equally true that under Chapter 2506, Revised Code, it is sufficient for the court to find that the appealed from order or decision was

“unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record.”

The authorities cited and relied upon by appellee which set forth the principle of what we have come to label as “estoppel by judgment” do, of course, lay down the rule that

“The final adjudication of a material issue by a court of competent jurisdiction binds the parties in any subsequent proceeding between or among them, irrespective of a difference in forms or causes of action.”

However, here we can find no similarity or identity of an issue common to both this and the mandamus action which was actually determined by the Court of Appeals. In other words, that Court’s determination that the evidence before it failed to meet the special requirements in mandamus cannot serve to estop this court from determining whether the order and decision of the Council of the city of Kettering, on the whole record including evidence additional to that before the council and even the Court of Appeals, was “unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence.”

Appellant, both in oral argument and in his memorandum, advances other and additional reasons why he is not estopped by the judgment of the Court of Appeals. All are not without merit. However, in our opinion, no further discussion need be engaged in respecting this claim of appellee since we are convinced that the Court of Appeals did not adjudicate a material issue in the cause before it which binds the parties in the present cause and appellant is not estopped from pursuing this appeal.

We wish to make this observation: The ends of justice would not be served if appellant would be denied the relief he seeks in this appeal by reason of the judgment in the Court of Appeals which specifically found that that court denied the relief he sought therein because he had an adequate remedy in this very appeal.

As hereinbefore stated, the second ground of appel-lee’s motion to dismiss is that the order appellant has appealed from is not an appealable order in that Chapter 2506, Revised Code, does not apply to actions of a legislative body. It is argued by appellee that since the order appealed from was made by the Council of the city of Kettering and since the council is the legislative body of the city of Kettering and since this court has no appellate jurisdiction over the actions of a legislative branch of government, this appeal must be dismissed because it is not taken from an appealable order.

There is no doubt that under the Charter of the city of Kettering (Section 3-1) the legislative power of that municipality is vested in the Council of Kettering.

Courts, of course, have no appellate jurisdiction over legislative enactments of a legislative branch of any government. The question here is whether Council in reviewing the action of the Board of Zoning Appeals denying appellant’s application for a variance, acted in a legislative or administrative capacity or exercised a quasi-judicial function.

Under Section 7-5 of the Charter of the city of Kettering a right to appeal is given to one from the decision of the Board of Zoning Appeals to the Council and Council is to hold public hearing on such appeal.

It is the contention of appellee that since the application for the variarnce sought by the appellant was in reality a request for rezoning, the action of Council — here appealed from — constituted legislative action thus making Council’s order nonappealable.

Counsel have cited in their memoranda a number of authorities which they claim sustain their respective positions in regard to this question. We do not wish to extend this opinion by referring to and quoting from such authorities. It is our opinion, after reading and considering the cited cases that the Council of Kettering in affirming the decision of the Board of Zoning Appeals denying appellant’s application, was not acting in a legislative capacity but rather was performing a quasi-judicial or administrative function and the nature of appellant’s application— for a variance — was not such as to convert what would otherwise be such a function of Council into a legislative one.

It is interesting to note that the last paragraph of Section 2506.01, Revised Code, states that a final order does not include any order from which an appeal is granted by rule, ordinances, or statute to a higher administrative authority and a right to a hearing on such appeal is provided. Therefore, it would seem that the decision by the Board of Zoning here was not a final order from which an appeal could be taken to this court, thus making it mandatory for the appellant to take his appeal to council before appealing to this court. This, it seems to us, further fortifies the position we take that council in its review of the Board of Zoning Appeals decision was acting a quasi-judicial capacity as distinguished from a legislative one.

We, therefore, conclude that appellees’ motion to dismiss is not well taken on either ground asserted and the motion will, therefore, be overruled.  