State ex rel. Federal Homes Properties, Inc. v. Singer

Per Curiam. As a preliminary observation, it "is at least doubtful whether the conditional writ as issued by the Court of Appeals is authorized or valid. The function of mandamus is to compel the performance of a present existing duty as to which there is a default. It is not granted to take effect prospectively, and it contemplates the performance of an act which is incumbent on the respondent when the application for a writ is made. 34 American Jurisprudence 868, Section 79; 35 Ohio Jurisprudence 2d 266, Section 21; State, ex rel. Stanley, v. Cook, Supt. of Banks, 146 Ohio St. 348, paragraph ten of the syllabus. Be that as it may, it is apparent here that the action in mandamus was pursued as a substitute for the appeal provided by Section 2506.01 et seq. of the Revised Code. In fact, this action was filed prior to any decision of the respondent on the [97] application, and relators did not limit their prayer to requiring the respondent to act npon the application for the permit. Furthermore, in this appeal, relators adhere to their position that the Court of Appeals properly ordered the issuance of the building permit. In any instance of a refusal, for whatever reason, of an administrative official to act timely upon an application for a permit, either mandamus in the Common Pleas Court or a mandatory injunction would appear to be an appropriate remedy to compel his decision. If the response of the official is to refuse the permit, the right to test the correctness of his decision is furnished by way of appeal to the Court of Common Pleas, after all administrative remedies of appeal, if any, are exhausted. Section 2506.01 et seq. of the Revised Code. Nothing of the sort was attempted by relators here. Moreover, there is nothing in the record before us to demonstrate affirmatively that resort to administrative remedies and, if unsuccessful, the appellate review as provided by statute would not have been adequate to accomplish relators’ purposes. In the absence of such a showing, a writ of mandamus as prayed for should not have been granted. State, ex rel. Central Service Station, Inc,, v. Masheter, Dir. of Hwys., 7 Ohio St. 2d 1, 218 N. E. 2d 177; State, ex rel. Sibarco Corp., v. City of Berea, 7 Ohio St. 2d 85, 218 N. E. 2d 428. The judgment is reversed and final judgment is entered in favor of the respondent. Judgment reversed. Taft, C. J., Zimmerman, Matthias, O’Neill, Schneider and Brown, JJ., concur.