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:
"* * *
" (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
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
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 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 his 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.
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
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.
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.
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
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
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
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
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
"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:
"* * *
"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.
"* * *.
"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
"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.
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.