
    The State, ex rel. Selected Properties, Inc., v. Gottfried et al.
    (No. 34216
    Decided June 8, 1955.)
    
      
      Mr. John J. Lasko, Mr. Milton D. Holmes and Mr. Keith Lawrence, for relator.
    
      Mr. Harold L. Bejcek, for respondents.
   Weygandt, C. J.

The relator and respondents have agreed and stipulated that if the questioned section of the zoning ordinance is unconstitutional and invalid, it is their mandatory duty as public officials to issue the requested variance permit and allow the construction of the gasoline station by the relator on its property.

Amended section 6 (f) of ordinance No. 1384 of the city of Parma reads as follows:

“Section 6. Within any retail business district, no building or premises shall be erected, used, arranged or designed to be used in whole or in part for other than one or more of-the following specified uses:

(C * & *

“(f) Variance permit. The following uses are permitted in a retail business district only in accordance with the provisions of a variance permit issued by the Board of Appeals after proper notice to directly affected property owners or their agents:

“ (1) Gasoline and oil filling station.”

It is agreed that the legislative branch of government may confer on an administrative officer or body certain discretion in order to carry out the policy of the law in specific cases, provided the legislative enactment defines the policy of the law and contains sufficient criteria and standards to guide the administrative officer or tribunal in the exercise of its limited discretion. If the legislative enactment fails to define the policy of the law or does not contain sufficient criteria or standards to guide the administrative officer or tribunal in the exercise of the discretion vested in it, such enactment is invalid.

The relator contends that not only does the questioned section of the ordinance not contain sufficient criteria and standards but it provides none at all.

A careful study of the entire section of the ordinance discloses that this view is correct. The sole provision is that the use of property for a gasoline and oil filling station in a retail business district is allowed only in accordance with the “provisions of a variance permit issued by the Board of Appeals after proper notice.” Clearly this language invests the Board of Appeals with absolute and uncontrolled discretion to determine which property owners may or may not employ their property for this valuable use. Thus the Board of Appeals may act on capricious rules of its own or it may act without any rules whatsoever. That this is in violation of the settled prohibition against the delegation of legislative power is cogently stated by Ranney, J., on page 88 of his opinion in the case of Cincinnati, Wilmington & Zanesville Rd. Co. v. Commissioners of Clinton County, 1 Ohio St., 77, as follows:

“The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first can not be done; to the latter no valid objection can be made.”

In 9 McQuillin on Municipal Corporations (3 Ed.), 484, Section 26.203, appears the following pertinent restatement of the fundamental principle here involved : ■

“Administrative power and discretion may be and usually are vested in designated departments, boards or officials or in the municipal legislative body itself to grant, deny or revoke building permits. However, the authority vested in them can not be a power of arbitrary decision in each case, uncontrolled by any general rule. In other words, the discretion must be made subject to a standard or rule to operate uniformly in all cases. An ordinance conferring upon officials unrestricted discretion in the granting or refusal of building permits is a denial both of equal protection and due process of law. Certainly, an ordinance conferring arbitrary and despotic power in this respect is void. Indeed, an ordinance can not commit to the municipal legislative body itself, any more than to administrative officials, uncontrolled discretion as to permits for the erection of buildings and structures. Nor does charter power to regulate the granting of permits authorize the delegation to an officer or committe of power to make restrictions and regulations.”

In paragraph two of the syllabus in the case of Northern Boiler Co. v. David, 157 Ohio St., 564, 106 N. E. (2d), 620, this court unanimously held:

‘ ‘ 2. An ordinance, which provides that ‘ except as to residential property no permit shall be granted by the director of public service to cut the curb * * * unless and until written notice * * * has been given to the member of council from such ward’ and ‘if # * * such member of council shall notify said director in writing of his objection to the issuance of such permit, such permit shall not be issued except pursuant to resolution of council, ’ constitutes a delegation of legislative power and is unconstitutional and void.”

And in paragraph three of the syllabus in the recent decision of this court in the case of Cassell v. Lexington Township Board of Zoning Appeals, ante, 340, it was held:

“The refusal by a zoning commission or a board of zoning appeals to issue a building permit because of the cost and nature of a proposed dwelling, inadequate lot size and depressing of property values, is arbitrary and unreasonable, where the zoning resolutions under which the commission or board purports to act do not specify any regulation as to such items.”

The rule is well summarized in the following statement in 37 American Jurisprudence, 778, Section 160:

“In accordance with settled principles that no American legislative body can constitutionally and validly delegate to administrative officers an exercise of discretionary power which is arbitrary, it is established that any municipal ordinance which vests an arbitrary discretion in public administrative officials with reference to the rights, property, or business of individuals, without prescribing a uniform rule of action, making the enjoyment of such rights depend upon arbitrary choice of the officers without reference to all persons of the class to which the ordinance is intended to be applicable, and without furnishing any definite standard for the control of the officers, is unconstitutional, void, and beyond the powers of a municipality. With specific reference to property, the courts have often stated that if an ordinance upon its face restricts the right of dominion, which the owner might otherwise exercise without question, not according to any uniform rule, but so as to make the absolute enjoyment of Ms own property depend upon the arbitrary will of the municipal authorities, it is invalid, because it fails to furnish a uniform rule of action and leaves the right of property subject to the will of such authorities, who may exercise it so as to give exclusive profits or privileges to particular persons.”

Inasmuch as the questioned section of the ordinance fails to provide standards or criteria for the guidance of the Board of Appeals and the protection of the citizens of Parma, it therefore fails to meet the test of constitutionality and must be held invalid.

In its original brief the relator merely mentions the case of L. & M. Investment Co. v. Cutler, 125 Ohio St., 12, 180 N. E., 379, 86 A. L. R., 707. In their briefs the respondents make no reference to it.

Their reason for considering that decision as unimportant here is not far to seek. In the first place that case was in this court on review while the instant case is an original action here. Twice in the opinion in the Cutler case it is emphasized that the court was without the advantage of a bill of exceptions and hence was uninformed as to the evidence. Second, while some of the language in that zoning ordinance was the same as here, the provisions directly involved were different. Here counsel have stipulated that the controlling provision is section 6 (f) of the ordinance. Its only terms are that gasoline and oil filling stations “are permitted in a retail business district only in accordance with the provisions of a variance permit issued by the Board of Appeals after proper notice to directly affected property owners or their agents.” In the Cutler case the ordinance provided a specific standard to the effect that the building, which was in a residence zone, should not be within 30 feet of the lot line. The Board of Appeals granted a permit and carefully stated several sound reasons therefor. Then the plaintiff sought an injunction to prevent use of the permit. The trial court allowed the injunction but the Court of Appeals and this court held that that zoning ordinance provided sufficient criteria to escape invalidity.

Furthermore, the provisions involved in the instant case are unconstitutional not only in their terms but in their application by the respondents, as shown by the numerous instances in which competitors of the relator have been granted permits while the relator met with a denial. The extent of this arbitrary action is shown by the fact that one applicant was given permits for the construction of two gasoline stations in the neighborhood, and it is stipulated that'the nearby churches and schools are a distance of 335 feet to 2,244 feet from the relator’s property.

Since the parties have agreed and stipulated that if the questioned section of the ordinance is invalid there is a clear mandatory duty to issue the requested permit and since the validity of an ordinance of their municipality is of public and general interest to the citizens of Parma, the controversy presents a typical situation for use of the remedy of a writ of mandamus, which, under the common law as restated by Section 2731.01, Revised Code, commands the performance of an act specially enjoined by law as a duty resulting from an office, trust or station. Injunction would not serve the purpose here. In contrast it is a remedy in equity, while mandamus is a remedy at law; and it is, of course, fundamental that equity may not be employed when there is an adequate remedy at law. The primary function of an injunction is to restrain motion and to enforce inaction, while the purpose of mandamus is to set in motion and to compel action. An injunction ordinarily is employed to prevent future injury, while the purpose of mandamus is to redress past grievances. Clearly the latter is called for here.

Writ allowed.

Matthias, Hart and Zimmerman, JJ., concur.

Stewart, Bell and Taft, JJ., dissent.

Stewart, J.,

dissenting. I concur in paragraphs one and three of the syllabus but dissent from paragraph two of the syllabus and from the judgment for the reason that in my opinion the holding in this case is in direct conflict with the holding of this court in the case of L. & M. Investment Co. v. Cutler, 125 Ohio St., 12, 180 N. E., 379, 86 A. L. R., 707.

Bell, J., concurs in paragraphs one and three of the syllabus but dissents from paragraph two of the syllabus and from the judgment.

Taft, J.,

dissenting. In my opinion, this case clearly represents an instance where the Supreme Court, in the exercise of its discretion, should refuse to allow the extraordinary remedy of mandamus.

In State, ex rel. Shively, v. Nicholas, Judge, 151 Ohio St., 179, 181, 84 N. E. (2d), 918, it was said by Chief Justice Weygandt:

“It is * * * elementary that to entitle a relator to a writ of mandamus, the record must disclose affirmatively that there is no plain and adequate remedy in the ordinary course of the law, and in the absence of such showing the writ will be denied.” (Emphasis added.)

See also numerous other decisions of this court to the same effect cited in State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, 162 Ohio St., 302, 310, 311, 123 N. E. (2d), 23.

Section 2727.01 et seq., Revised Code, provides for what the Code classifies as a “special remedy” called “injunction,” and confers jurisdiction upon the Common Pleas Court with respect to that remedy. By Section 2727.01, Revised Code, it is provided in part:

“An injunction is a command to do or refrain from doing a particular act. It may be the final judgment in an action * * *.” (Emphasis added.)

This statute is broad enough to include not only a preventive but a mandatory order in a final judgment. This court has recognized the right to relief by such a mandatory final order. International Union of Steam & Operating Engineers v. Owens, 119 Ohio St., 94, 162 N. E., 386; State, ex rel., v. Carpenter, 51 Ohio St., 83, 37 N. E., 261, 46 Am. St. Rep., 556; Fraternal Mystic Circle v. State, ex rel. Fritter, 61 Ohio St., 628, 632, 48 N. E., 940. This court has held that it may, in the exercise of its discretion, refuse to issue the extraordinary writ of mandamus where there is an adequate equitable remedy by way of injunction. State, ex rel., v. Hahn, 50 Ohio St., 714, 35 N. E., 1052. State, ex rel. Irish, v. Oviatt et al., Commrs., 83 Ohio St., 460, 94 N. E., 1117; State, ex rel. Juhlman, v. Conners, 122 Ohio St., 355, 171 N. E., 589 (unanimous per curiam opinion at page 358: “The writ of mandamus is an extraordinary writ, and will not be issued as a substitute for an existing, adequate, and available remedy in equity or in law.”); State, ex rel. Stine, v. McCaw, 136 Ohio St., 41, 23 N. E. (2d), 631 (paragraph two of syllabus: “Since the Supreme Court does not have original jurisdiction in injunction, mandatory injunctive relief will not be granted by that court through an action in mandamus.”); State, ex rel. Stanley, v. Cook, Supt., 146 Ohio St., 348, 66 N. E. (2d), 207 (paragraph four of syllabus). See State, ex rel. Moyer, v. Baldwin, 77 Ohio St., 532, 546, 83 N. E., 907, 19 L. R. A. (N. S.), 49, pointing out that, under our Constitution, an equitable remedy is a remedy “in the ordinary course of the law.” Cf. 34 American Jurisprudence, 844, Section 51. In such an instance, the Supreme Court may likewise refuse to issue the extraordinary writ of prohibition. State, ex rel. Harrison, a Taxpayer, v. Perry, Coroner, 113 Ohio St., 641, 150 N. E., 78; State, ex rel. MacDiarmid, v. Eastman, Judge, 118 Ohio St., 121, 160 N. E., 626.

Section 2731.05, Revised Code, provides:

“The writ of mandamus must not be issued when there is a plain and adequate remedy [not merely “at law” but] in the ordinary course of the law.” (Emphasis added.)

Of course, this statute cannot limit the jurisdiction of this court in mandamus, because that jurisdiction is conferred upon the court by the Constitution. The jurisdiction in mandamus so conferred upon this court is the common-law jurisdiction as it was exercised in this state in 1851 when first conferred upon the court by the Constitution. State, ex rel. Moyer, v. Baldwin, supra; State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, supra, 306, 307. Therefore, it is probably more accurate to state that the Supreme Court may allow but that it will, in the exercise of its discretion, ordinarily deny a writ of mandamus where there is a plain and adequate remedy in the ordinary course of the law, as there is in the instant case, by reason of Section 2727.01, Revised Code. But see comments by Shauck, J., in Fraternal Mystic Circle v. State, ex rel. Fritter, supra, 633, indicating that the exercise by the Supreme Court of jurisdiction in mandamus, where there is an adequate remedy in the ordinary course of the law, would be a usurpation by the Supreme Court of jurisdiction not conferred upon it.'

In cases, where the adequate remedy in the ordinary course of the law is by way of appeal, lawyers can probably now advise their clients not to seek relief by way of mandamus or even by way of prohibition in the Supreme Court. As to mandamus, see State, ex rel. Shively, v. Nicholas, Judge, supra (paragraph two of syllabus and dissenting opinion, page 184), and, as to prohibition, see State, ex rel. Rhodes, Aud., v. Solether, Judge, 162 Ohio St., 559, 124 N. E. (2d), 411.

On the other hand, where that adequate remedy is other than by appeal, this court has indicated a tendency to “wobble” in recent decisions. Thus, after the unanimous decisions in State, ex rel. Allied Wheel Products, Inc., v. Industrial Commission, 161 Ohio St., 555, 120 N. E. (2d), 421, and State, ex rel. D. L. Auld Co., Inc., v. Morse, et al., Industrial Commission, 161 Ohio St., 561, 120 N. E. (2d), 424, about a year ago, two of the judges who concurred therein dissented in State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, supra, and the majority opinion in that case does not base the denial of the writ solely on the availability of an adequate remedy in the ordinary course of the law, although the words of paragraph two of the syllabus require such a conclusion. Also, the instant case evades the existence of an adequate remedy in the ordinary course of the law (not merely a remedy at law that might not include an equitable though statutory remedy), which was urged as a reason for denying the extraordinary remedy of mandamus.

Most litigants and their lawyers would probably prefer to have their cases heard in the first instance by the Supreme Court. Decisions, like that in the instant case, encourage them to try to get such a hearing. However, because of the doubt as to how this court will exercise its discretion in a particular case, decisions of this kind can only increase the difficulties which lawyers have in properly advising their clients.

As observed by William, J., in State, ex rel., v. Carpenter, supra, 89:

“Mandamus is not well adapted to the trial of questions of fact, or the determination of controversies of a strictly private nature.”

The instant case is a good example of the unnecessary dangers involved in the issuance of the extraordinary writ of mandamus in an original action in this court where the relator has an adequate remedy in the ordinary course of the law, whether that remedy is a legal, statutory or equitable remedy. Since the case has not been previously considered by a Common Pleas Court or a Court of Appeals, this court does not have the benefit of the views which might have been expressed by those courts in deciding the case. Also, counsel have not had as much incentive or opportunity to study and brief the questions of law involved as they would have had if there had been a trial in the Common Pleas Court and a hearing in the Court of Appeals. As a result, and perhaps because this case involves merely the issuance of a permit for a gasoline station on a single lot in a relatively small city, the only Ohio case relied upon by respondents in support of the validity of the questioned provisions of the Parma ordinance was State, ex rel. Standard Oil Co., v. Combs, Dir., 129 Ohio St., 251, 194 N. E., 875. That case may possibly be distinguishable. However, the syllabus and decision of this court in L. & M. Investment Co. v. Cutler, 125 Ohio St., 12, 180 N. E., 379, 86 A. L. R., 707, which was casually cited by relator but not described or discussed and which was not even mentioned or cited in respondents’ brief, would apparently require a different conclusion from that reached by this court in the instant case. See also 58 American Jurisprudence, 1057, Section 216. Quite probably, either the Common Pleas Court or the Court of Appeals, by exercising reasonable diligence in the consideration of the questions raised in the instant case, would have referred to the title “Zoning Laws” in Ohio Jurisprudence, and would have found and considered the significance of that decision of this court and would also have considered the A. L. R. annotations on the problem to which that decision leads. Thus, by exercising its discretion to deny the extraordinary remedy of mandamus on the ground that relator has an adequate remedy in the ordinary course of the law, this court in the instant case would have minimized and reduced the danger of its inadvertently rendering a decision which is in effect, at least on the facts disclosed by the record, inconsistent with one of its prior decisions.

In addition to the portion of the zoning .ordinance quoted in the majority opinion and providing that a gasoline and oil filling station is “ permitted in a retail business district only in accordance with the provisions of a variance permit issued by the Board of Appeals,” the record discloses that the comprehensive zoning ordinance of Parma contains the following provisions:

“Section 24 # * *

“(b) Where'there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this ordinance, the Board of Appeals shall have the power in a specific case to vary the application of any such provision in harmony with the general purpose and intent of the ordinance so that the public health, safety, morals and general welfare may be secured and substantial justice done.

Variation in specific cases of practical difficulty or unnecessary hardship, in addition to other proper variations, shall include the following:

“Use

< C * * *

“4. Permit in any district, such modification of the requirements of this ordinance as said board may deem necessary to secure an appropriate development of a lot where adjacent to such lot there are buildings or uses that do not conform to the regulations of this ordinance.

i 6 *¡ «c #

‘ ‘ General

“Purpose-Interpretation

“Section 25. In interpreting and applying the provisions of this ordinance they shall be held to be the minimum requirements for the promotion of the. public health, safety, morals or general welfare.” (Emphasis added.)

The minutes of the meeting of the Board of Appeals, at which relator’s application was considered, summarize objections raised by those who had been notified of the meeting and contain the following with respect to the action of the board relative to that application:

“1. The appeal * * * to erect a gas station * * *. Mr. Biskup [board member] feels because of public health and safety, as well as hazards to children because of the U. B. Church, where classes meet — State Road School and St. Francis DeSales School, the permit should not be granted.

‘ ‘ Mr. Biskup made a motion, seconded by Mr. Matty, that it is necessary, in the interest of public health and safety to uphold the building commissioner and the permit be refused because of the existing schools and churches in the immediate area effected by traffic.

“Yeas — Mr. Biskup — Mr. Matty — Mr. Rau.

“Noes — None—motion carried.”

In my opinion, paragraph two of the syllabus and the decision in L. & M. Investment Co. v. Cutler, supra, clearly require a conclusion contrary to that reached in the instant case. The criteria and standards, provided in the Parma ordinance for the guidance of the Board of Appeals with respect to variances, are even more specific and definite than those approved by this court in the L. & M. case.  