
    Court of Common Pleas of Montgomery County.
    Adams v. Peters, Commissioner of Health.
    Decided December 27, 1929.
    
      John B. Harshman, for plaintiff.
    
      L. E. Speer, for defendant.
   Snediker, J.

In this case the plaintiff seeks a writ of mandamus to compel the health officer of the city of Dayton to give his approval and permit to the plaintiff to sell products manufactured by him on the streets, sidewalks and public places of the city. The plaintiff is a manufacturer and vendor of popcorn and candies in a small way. His place of business has been inspected and approved by the health department of the city of Dayton. In order to enlarge his sales and increase his remuneration, he made an application for a permit to vend his goods on the streets and in the public places of the city, and the permit was refused him because, in the opinion of the health department, such a sale would be inimical to the public health and welfare in that it would be impossible for the officers of the health department to so scrutinize and control such sales as to safeguard the health of the people, and because by the process of handling there might be a spread of some contagious and communicable disease, and the health officer, both in his answer to the petition of the plaintiff and in his testimony, says that it is the policy of his department to refuse all such permits for the reasons stated.

Under Section 884 of the general ordinances of the city of Dayton, it is the duty of the health officer to “carry out and enforce all existing laws having for their object the preservation of life and prevention of disease, and the abatement and removal of nuisances.” One of the regulations passed by the city commission relating to the sale of food products is found at No. 17 of Section 728 of the ordinances, and reads as follows:

“No person shall sell or keep for sale any ice cream, candy, or prepare any food cooked or uncooked, or any drinks intended for immediate consumption from any street, alley, sidewalk, or other public place, or from an open window without approval thereof from the health officer.”

By this last quoted provision of the ordinances, if an application is made to the health department for any one of the purposes specified, it becomes the duty of the health officer to exercise his discretion as to whether or not it shall be allowed. In other words, it becomes his duty to prescribe the conditions under which any of the business here spoken of shall be conducted. If he does exercise his discretion, it is not the privilege of the court to interfere therewith by mandamus, but if he does not and declines, then the court may require that he shall do so.

A case very much like the one at bar is found in the 13th Barbour (N. Y.), at p. 206. In that case the mayor of Albany, whose duty it was to issue licenses for the operation of vehicles upon the streets of that city, refused to exercise his discretion and declared that as to all cart-men no such license would be issued. The court in passing upon that case said:

“It would not be pretended that because the ordinance is permissive in its terms, declaring that ‘the mayor may license,’ etc., that officer would be authorized to withhold all licenses, on the ground that, in his opinion, it would be better that no license should be granted to cartmen. The ordinance, though permissive in form, is peremptory in its effect. The exercise of the power conferred, is an official duty, and the mayor would not be at liberty to withhold it.”

The decision of the Supreme Court of New York in the case o.f Hull v. Supervisors of the County of Oneida, 19 Johnson, p. 259, is to the same effect.

It is manifest from a careful reading of the provisions of our ordinance that the sale of foodstuffs upon the streets is contemplated, subject to the approval of the health officer. Under these conditions it is not within his province to declare against a permit for that purpose without distinction as to conditions, circumstances, or measures of protection which may be used in such sale or exposure for sale. As is said in Wood on Mandamus, at page 20, the writ will lie if “the officer refuses to grant the license upon the ground that he has concluded to grant no licenses.”

Our opinion is, therefore, that the health officer in the fuli performance of his duty ought to make such rules as are necessary in the premises, and that when these are complied with by an applicant he is entitled to the license which he seeks. To make no rules, but on the contrary to arbitrarily refuse to consider an application of that character, or prescribe the method by which the license may be obtained, is a failure to perform the duties required of him by regulation 17.

A writ of mandamus should issue, requiring the health department of the city of Dayton to make such rules as in their discretion are essential for the purpose, and that when and if this plaintiff has complied therewith a license shall be issued to him for his business.  