IN PROHIBITION.

Relator filed an action in this court seeking a writ of prohibition against respondents, the mayor, the service director and the superintendent of the waterworks of the city of Canton to prevent fluoridation of the water supply pursuant to R. C. 6111.13.

Respondents demur to the amended petition, alleging that relator has an adequate remedy in the ordinary course of law and that the petition does not state facts which show a cause of action.

DISPOSITION: Writ denied.

HEADNOTES: Prohibition -- Writ not available, when -- Respondent not about to exercise judicial or quasi-judicial power -- Fluoridation of city water supply.

COUNSEL: Mr. Paul M. Perkins, for relator.

Mr. Martin H. Hunker, city solicitor, and Mr. Roy H. Batista, for respondents.

JUDGES: O'NEILL, C. J., LEACH, SCHNEIDER, HERBERT, DUNCAN and CORRIGAN, JJ., concur. LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.

OPINIONBY: PER CURIAM

OPINION:  [*11]   [**836]  It has long been the law of this state that the conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial  [***2]  power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy. State, ex rel. Caley, v. Tax Comm., 129 Ohio St. 83, at 87.

Relator, in his amended petition, admits that the city of Canton supplies water to more than 20,000 persons and that R. C. 6111.13 requires the city to fluoridate its water by January 1, 1971.

 [*12]  R. C. 6111.13 requires respondents to perform a purely ministerial or administrative duty. Respondents are unable to exercise any discretion, except to vary, within narrow statutory limits, the amount of fluorides to be added to the water supply (to be determined by the amount naturally in the water), and the date (prior to January 1, 1971), for implementing fluoridation. Since R. C. 6111.13 allows no exercise of judicial or quasi-judicial discretion by respondents, they are not "about to exercise judicial or quasi-judicial power." Furthermore, a writ of prohibition will not issue where there is an adequate remedy at law. State, ex rel. Stefanick, v. Municipal Court, 21 Ohio St. 2d 102, at 104. The demurrer is sustained  [***3]  and the writ is denied.

Writ denied.

APPEAL from the Court of Appeals for Stark County.

The city of Canton owns and operates a public waterworks and water supply system. The city does not add fluorides to the water supply and the level of natural fluorides in the water is less than eight-tenths milligrams of fluoride per liter, the level of fluoridation required by R. C. 6111.13. On July 1, 1974, the then Ohio Director of Environmental Protection issued an order directing the city to begin fluoridating its water within 30 days.

The city appealed to the Environmental Board of Review, which upheld the order. An appeal was taken to the Court of Appeals, which reversed the orders of the Board and the Director, holding that R. C. 6111.13 was not reasonably related to the police power of the state.

The cause is now before this court pursuant to an allowance of a motion to certify the record.

DISPOSITION: Judgment reversed.

HEADNOTES: Environmental protection -- Director's order to fluoridate municipally-owned water supply -- R. C. 6111.13 -- Constitutionality -- Valid exercise of state's police power -- Does not interfere with ownership or operation of utility -- Local option provision, valid.

SYLLABUS: 1. Prevention and control  [***2]  of dental caries, a common disease of mankind, is a proper subject, in relation to public health, for legislation enacted pursuant to the police power vested in the state, as well as in municipalities, by the general laws and the Constitution of the state of Ohio. (Kraus v. Cleveland, 163 Ohio St. 559, approved and expanded.)

2. Police and similar regulations adopted under the powers of local self-government established by the Constitution of Ohio must yield to general laws of statewide scope and application, and statutory enactments representing the general exercise of police power by the state prevail over police and similar regulations of a municipality adopted in the exercise of its powers of local self-government. (State, ex rel. Klapp, v. Dayton P. & L. Co., 10 Ohio St. 2d 14, paragraph one of the syllabus approved and followed.)

3. Legislation enacted by the state pursuant to the police power, in relation to the public health, is valid as applied to the municipal operation of a public utility under Section 4 of Article XVIII of the Ohio Constitution, where such legislation does not interfere with the ownership or operation of the utility.

4. The General  [***3]  Assembly has discretion to enact legislation subject to local option elections by those directly affected, and a local option provision does not violate the requirement of Section 26, Article II of the Ohio Constitution, that all laws of a general nature shall have a uniform operation throughout the state.

COUNSEL: Mr. Harry E. Klide, city solicitor, and Mr. William J. Hamann, for appellee.

Mr. William J. Brown, attorney general, and Mr. Christopher R. Schraff, for appellant.

JUDGES: STERN, J. O'NEILL, C. J., HERBERT, W. BROWN and P. BROWN, JJ., concur. CORRIGAN and CELEBREZZE, JJ., dissent.

OPINIONBY: STERN

OPINION:  [*63]   [**768]  The issue raised in this case is, generally, whether the state may require a municipality to fluoridate a municipally-owned-and-operated water supply, and, specifically, whether R. C. 6111.13, which requires fluoridation, is a valid exercise of the state police power. n1
 
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n1 R. C. 6111.13, as amended by the General Assembly in 1972 (134 Ohio Laws 766), provides in pertinent part:

"If the natural fluoride content of supplied water of a public water supply and water-works system is less than eight-tenths milligrams per liter of water, fluoride shall be added to such water to maintain a fluoride content of not less than eight-tenths milligrams per liter of water nor more than one and three-tenths milligrams per liter of water beginning:

"(A) On or before January 1, 1971, for a public water supply and water-works system supplying water to twenty thousand or more persons:

"(B) On or before January 1, 1972, for a public water supply and water-works system supplying water to five thousand or more persons, but less than twenty thousand persons. A municipal corporation may request the environmental protection agency for reimbursement of the actual cost of acquiring and installing equipment, excluding chemicals added to the water supply, necessary for compliance with division (A) or (B) of this section. The director of environmental protection, upon determination of the necessity of this cost for this purpose, shall order the reimbursement for such costs, from funds available to the agency."

Between 1969 and 1973, R. C. 6111.13 also provided:

"Within one hundred twenty days after November 17, 1969, a petition may be filed with the board of elections of a county containing a political subdivision served by a public water supply to which fluoride must be added under this section and where fluoride was not regularly added to such water supply prior to the filing of such petition, requesting that the issue of adding fluoride to this water supply be placed on the ballot at a special election in the political subdivisions of the county or adjoining counties served by the water supply, to be held on a date specified in the petition, not less than ninety nor more than one hundred twenty days after the date of filing the petition.

"The petition shall meet the requirements of Section 3501.38 of the Revised Code and, in addition, shall designate the political subdivisions in the county and adjoining counties served by the water supply and shall be signed by not less than ten per cent of the number of electors served by the water supply of each political subdivision who voted for Governor at the last preceding gubernatorial election. The board of elections shall place the issue on the ballot at the special election to be held in the political subdivisions served by the water supply.

"If a water supply extends into more than one county, the board of elections of the county where the petitions are filed shall, within ten days after such filing, send notice of such filing to all other boards of elections of counties served by the water supply and shall furnish all ballots for the special election.

"In political subdivisions where only a part of the electors are served by the water supply, only those electors shall be allowed to vote on the issue who sign forms provided by the board of elections stating that they are served by the water supply. The question of adding fluoride to the water supply shall be determined, at this election, by a majority vote of those voting on the issue."

The latter provisions were repealed in 1973 (135 Ohio Laws 1109), by which time the 120-day period for filing of petitions had expired.
 
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 [*64]   [**769]  The purpose of fluoridation is well-known. Fluorides help prevent and control the incidence of dental caries. Fluoridation has become a familiar public health measure  [*65]  in the past two decades, and it is beyond questioning a proper subject for legislation pursuant to the police power. Kraus v. Cleveland (1955), 163 Ohio St. 559, 127 N. E. 2d 609; Alkire v. Cashman (S. D. Ohio E. D. 1972), 350 F. Supp. 360; Dowell v. Tulsa (Okla. 1954), 273 P. 2d 859; Paduano v. New York (1966), 17 N. Y. 2d 875, 218 N. E. 2d 339; Annotation, 43 A. L. R. 2d 453.

In Kraus, supra, we held that a municipality could fluoridate its municipally-owned water supply, as a proper exercise of the police power. Here, the city of Canton does not wish to fluoridate its water, and the issue is whether the state may order the city to do so.

The city contends that fluoridation is a matter of local self-government and of the operation of a municipal public utility, matters which are reserved for municipal control under the home-rule provision of the Ohio Constitution.

Section 3 of Article XVIII of the Ohio Constitution provides:

"Municipalities  [***5]  shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

This section, adopted in 1912, preserved the supremacy of the state in matters of "police, sanitary and other similar regulations," while granting municipalities sovereignty in matters of local self-government, limited only by other constitutional provisions. Municipalities may enact police and similar regulations under their powers of local self-government, but such regulations "must yield to general laws of statewide scope and application, and statutory enactments representing the general exercise of police power by the state prevail over police and similar regulations in the exercise by a municipality of the powers of local self-government." State, ex rel. Klapp. v. Dayton P. & L. Co. (1967, 10 Ohio St. 2d 14, 225 N. E. 2d 230 (paragraph one of the syllabus); West  [**770]  Jefferson v. Robinson (1965), 1 Ohio St. 2d 113, 205 N. E. 2d 382; Cincinnati v. Hoffman (1972), 31 Ohio St. 2d 163, 179, 285 N. E. 2d 714 (Brown, J., dissenting);  [***6]   [*66]  Leavers v. Canton (1964), 1 Ohio St. 2d 33, 37, 203 N. E. 2d 354.

Matters involving local self-government and those involving the police power often overlap. Even if a matter is of local concern, the local regulation may have significant extraterritorial effects, in which case it properly becomes a matter of statewide concern for the General Assembly. Cleveland Electric Illuminating Co. v. Painesville (1968), 15 Ohio St. 2d 125, 239 N. E. 2d 75; Beachwood v. Bd. of Elections (1958), 167 Ohio St. 369, 371, 148 N. E. 2d 921. Similarly, a matter which relates to exercise of the police power by a municipality, e. g., the appointment of officers to the police force, may essentially be an exercise of local self-government not subject to state authority. State, ex rel. Canada, v. Phillips (1958), 168 Ohio St. 191, 151 N. E. 2d 722.

The power of local self-government and that of the general police power are constitutional grants of authority equivalent in dignity. A city may not regulate activities outside its borders, and the state may not restrict the exercise of the powers of self-government within a city. The city may exercise the police  [***7]  power within its borders, but the general laws of the state are supreme in the exercise of the police power, regardless of whether the matter is one which might also properly be a subject of municipal legislation. Where there is a direct conflict, the state regulation prevails.

The city contends further that the power to fluoridate is a "power of local self-government." That argument is necessarily rejected by the decision of this court in Kraus v. Cleveland, supra. See, also, Beachwood v. Bd. of Elections, supra. The decision to fluoridate is intrinsically one involving public health. Whether it is decided by an exercise of local self-government is irrelevant, for its validity must depend upon whether it bears a substantial relationship to the public health. In Kraus, the court held that fluoridation is a proper subject for exercise of the police power when enacted by a municipality, and was not "in contravention of the general laws in relation to adulteration  [*67]  or the practice of medicine." Fluoridation is equally a proper subject for the exercise of the state police power, and a municipal ordinance in contravention of a general state law requiring  [***8]  fluoridation is invalid. The public health is a matter of state as well as local concern (State, ex rel. Mowrer, v. Underwood [1940], 137 Ohio St. 1, 27 N. E. 2d 773; State, ex rel. Cuyahoga Heights, v. Zangerle [1921], 103 Ohio St. 566, 134 N. E. 686), and that concern extends to those ills which affect us individually, as well as those which we transmit to one another.

As this court stated in Kraus, supra, at page 562:

"* * * An examination shows that laws relating to child labor, minimum wages for women and minors and maximum hours for women and minors have all been upheld on the basis of the police power in relation to public health. Regulations relating to control of venereal disease, blood tests for marriage licenses, sterilization, pasteurization of milk, chlorination of water and vaccination have all been held valid as based on police power exercised in regard to public health.

"Clearly neither an overriding public necessity or emergency nor infectious or contagious diseases are the criteria which authorize the exercise of the police power in relation to public health."

The city of Canton also contends that the fluoridation legislation interferes  [***9]  with the power to own or operate public utilities,  [**771]  granted by Section 4 of Article XVIII. That section reads:

"Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. * * *"

Those rights and privileges are derived directly from the people through the Constitution, and the General Assembly may not impose restrictions upon the power to operate a public utility granted to a municipality under Article XVIII of the Ohio Constitution. State, ex rel. McCann, v.  [*68]  Defiance (1958), 167 Ohio St. 313, 148 N. E. 2d 221; Swank v. Shiloh (1957), 166 Ohio St. 415, 143 N. E. 2d 586; Euclid v. Camp Wise Assn. (1921), 102 Ohio St. 207, 131 N. E. 349. It may, however, enact legislation under its general police power to protect the public health and safety. State, ex rel. McCann, v. Defiance, supra; Akron v. Pub. Util. Comm. (1948), 149 Ohio St. 347, 78 N. E. 2d 890; Bucyrus v. Dept. of Health (1929), 120 Ohio  [***10]  St. 426, 166 N. E. 370.

The ownership and operation of a municipal waterworks is not limited by a state requirement that fluorides be added to the water in the interest of the public health, to any greater degree than by other health and safety requirements affecting the purity of the water or the safety of plant operations. The state, in fact, supplies the equipment necessary to add the fluorides. An exercise of the police power necessarily occasions some interference with other rights, but that exercise is valid if it bears a real and substantial relationship to the public health, safety, morals or general welfare, and if it is not unreasonable or arbitrary. Piqua v. Zimmerlin (1880), 35 Ohio St. 507, 511. Fluoridation is plainly a matter involving the public health; there is no indication that it unreasonably restricts, limits, or otherwise interferes with the operation of a municipal utility.

The effect of fluoridating a water supply is a local one, limited to the area served by the system. n2
 
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n2 In the case of a municipal water supply, the area served is not limited by municipal boundaries, for the municipality may sell any amount of its surplus water to other communities. Section 6, Article XVIII of the Ohio Constitution.
 
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The local interest in the decision regarding fluoridation is clear, while the interest of the state is not as direct as in the areas of infectious diseases or of pollution. Cf. Bucyrus v. Dept. of Health, supra. However, the mandate of Section 3 of Article XVIII of the Ohio Constitution is that municipal exercise of the police power is valid only inosfar as it does not conflict with general state laws, regardless of whether the matter might also be decided locally.

 [*69]  In fact, the General Assembly did permit the users of local water supplies to decide whether to fluoridate their water. R. C. 6111.13 contained provisions which authorized a special election to be called within 120 days of the effective date of the legislation, November 17, 1969, by the users of any water supply system which did not then add fluorides. The question of fluoridation would be decided by a majority vote. Thirty-eight such elections were held, and in thirty-six the vote was against fluoridation. No special election was held in the area supplied by the city of Canton waterworks, although fluoridation had previously been rejected in two general elections.

The city contends that the local  [***12]  option provision of R. C. 6111.13 prevented that section from being valid as a general law, because its effect was to require some water suppliers to fluoridate, while allowing others, whose users held a referendum, to avoid that requirement.

 [**772]  The referendum provisions of R. C. 6111.13 are somewhat unusual, in that they require that the referendum be held, if at all, within 120 days, and require that the voters be only those using the water supply, regardless of the political subdivision in which they might reside. Essentially, however, the provisions are for a local option, and no claim is raised that those provisions are unreasonable.

The principle of local options is well-established. It is a legislative deferral to differing local needs and attitudes, a principle which is also embodied in the home-rule provisions. Local option laws are upheld by the great weight of authority (Locke's Appeal [1873], 72 Pa. 491, 13 Am. Rep. 716; 16 Am. Jur. 2d 508; 16 C. J. S. 680; 79 L. Ed. 562), and their enactment lies within the discretion of the General Assembly. As stated in Stone v. Charlestown (1873), 114 Mass. 214, 221:

"* * * In doing so, the Legislature  [***13]  does not, in any sense, delegate its constitutional authority, but, in the exercise of that authority, determines that if the inhabitants of that part of the state to be immediately affected by the proposed change assent to it, public policy requires it to be  [*70]  made, and that, without such assent, the other considerations offered in support of it are not sufficient to justify its adoption by the Legislature. The question whether the act shall take effect at once, or only upon such acceptance by the inhabitants, is within the discretion of the Legislature to determine."

A local-option law is also not objectionable as not having a uniform operation throughout the state, as required by Section 26 of Article II of the Ohio Constitution. As the court stated in Gordon v. State (1889), 46 Ohio St. 607, 628, upholding a local option liquor law:

"* * * The provisions of the act are bounded only by the limits of the state, and uniformity in its operation is not destroyed, because the electors in one or more townships may not see fit to avail themselves of its provisions. The act makes no discrimination between localities to the exclusion of any township. Every township  [***14]  in the state comes within the purview of the law, and may have the advantage of its provisions by complying with its terms. The operation of the statute is the same in all parts of the state, under the same circumstances and conditions." See, also, Cincinnati W. & Z. R. Co. v. Commrs. of Clinton County (1852), 1 Ohio St. 77.

The fluoridation local option was similarly applied uniformly throughout the state, and made no discrimination between one locality and another. The users of all affected water supply systems were equally permitted to petition for a local option election.

For the reasons stated above, we disagree with the holding of the Court of Appeals that the inclusion by the General Assembly of local option provisions rendered the entire statute void because they were not reasonably related to the police power. It is, of course, true that the beneficial effects of fluoridation upon the public health are unrelated to the votes of a majority in any community. Medical research has proven fluoridation effective in reducing dental caries, and communities with fluoridated water will generally have better dental hygiene than those without fluoridation,  [*71]  irrespective  [***15]  of a majority vote. Yet many persons strongly oppose fluoridation for religious and other reasons. Plainly, the General Assembly made a political compromise -- it ordered fluoridation, but permitted users of particular water supplies to choose, by local option, to avoid that order under specified conditions. As in Stone v. Charlestown, supra, the Ohio General Assembly determined that "if the inhabitants of that part of the state to be immediately affected by the proposed change assent to it, public policy requires it to be made, and that, without such assent, the other considerations offered in support of it are not sufficient to justify its adoption by the * * * [General Assembly]."

 [**773]  The decision as to whether the benefits to the public health of fluoridation are sufficient to require it for all, notwithstanding the concerted opposition of many individuals, is within the discretion of the General Assembly. So, too, is the decision that those immediately affected by a local fluoridation program should have an option to decide that same question for themselves.

For the foregoing reasons, the judgment of the Court of Appeals is reversed, and the orders of the  [***16]  Environmental Board of Review and the Director of Environmental Protection are affirmed.

Judgment reversed.

IN MANDAMUS.

On November 19, 1975, this court affirmed a July 1, 1974, order of the Director of Environmental Protection, directing the city of Canton, respondent herein, to begin fluoridating its water within 30 days.

On October 13, 1976, the Director filed the within action, praying that a writ of mandamus be issued directing respondents to comply with his order.

On December 9, 1976, relator filed a motion for judgment on the pleadings and, on February 3, 1977, respondents filed a motion to dismiss relator's motion.

Relator alleges that respondents have failed to comply with his order directing them to install and place in operation all devices necessary and appropriate to maintain the fluoride content of water within 30 days of the order. Respondents reply that the municipality has begun contracting for the fluoridation of its water, but offer no assertion that the municipality actually is in compliance with the order.

DISPOSITION: Writ denied.

HEADNOTES: Mandamus -- To compel enforcement of fluoridation order -- Writ denied -- Adequate remedy available -- Levy of fine by common pleas court.

COUNSEL: Mr. William J. Brown, attorney general, and Mr. Bruce E. Cryder, for  [***2]  relator.

Mr. Harry E. Klide, city solicitor, and Mr. William J. Hamann, for respondents.

JUDGES: O'NEILL, C. J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ. concur.

OPINIONBY: PER CURIAM

OPINION:  [*82]   [**1162]  In Canton v. Whitman (1975), 44 Ohio St. 2d 62, 337 N. E. 2d 766, certiorari denied 425 U.S. 956 (1976), the city of Canton, respondent herein, had refused to fluoridate its water, and the issue was whether the state might order it to do so. Therein, this court upheld the July 1, 1974, order of the then-Director of Environmental Protection, directing the municipality to begin fluoridating its water within 30 days.

Relator contends that a peremptory writ of mandamus should issue today because his right to command the execution of the act as requested in his application for the writ is plain, and no legitimate excuse can be given for nonperformance. He asserts further that if a peremptory writ of mandamus does not issue in the first instance, such extraordinary circumstances obtain in the instant cause that an alternative writ of mandamus should issue. Relator identifies these extraordinary circumstances as: (1) The indisputable nature  [***3]  of the facts, (2) the plain legal duty imposed by statute and administrative order upon the respondents, (3) the fact that the order already has been appealed through the United States Supreme Court, and (4) the fact that the public health is involved.

This court has held that before a writ of mandamus will be granted by the Supreme Court, under its constitutional powers as contained in Section 2 of Article IV of the  [*83]  Constitution of Ohio, n1 a clear legal right thereto must be demonstrated. The burden of establishing such right is upon the relator and the writ ordinarily will be refused unless the relator shows affirmatively that he has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Libbey-Owens-Ford Glass Co., v. Indus. Comm. (1954), 162 Ohio St. 302, 123 N. E. 2d 23 (paragraphs one and two of the syllabus). See State, ex rel. Schafer, v. Citizens National Bank (1959), 168 Ohio St. 535, 536, 156 N. E. 2d 747; State, ex rel. Lorain County Savings & Trust Co., v. Bd. of County Commrs. (1960), 171 Ohio St. 306, 308, 170 N. E. 2d 733; State, ex rel. Grant, v. Kiefaber (1960), 171 Ohio St. 326, 327, 170 N. E.  [***4]  2d 848; State, ex rel. Tempero, v. Colopy (1962), 173 Ohio St. 122, 123, 180 N. E. 2d 273; State, ex rel. Roger J. Au & Son, Inc., v. Studebaker (1963), 175 Ohio St. 222, 193 N. E. 2d 84; Edwards v. Court of Common Pleas (1963), 175 Ohio St. 251, 252, 193 N. E. 2d 393; State, ex rel. Vitoratos, v. Whiddon (1965), 3 Ohio St. 2d 52, 209 N. E. 2d 171; State, ex rel. Smith, v. Hoffman (1965), 3 Ohio St. 2d 95, 209 N. E. 2d 214; State, ex rel. Central Service Station, v. Masheter (1966), 7 Ohio St. 2d 1, 218 N. E. 2d 177; State, ex rel. Sibarco Corp., v. Berea (1966), 7 Ohio St. 2d 85, 218 N. E. 2d 428 (paragraph one of the syllabus); State, ex rel. Kay, v. Cleveland (1971), 27 Ohio St. 2d 37, 39, 271 N. E. 2d 784.
 
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n1 R. C. 2731.05 provides:

"The writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law."

"This court and the Courts of Appeals have original jurisdiction in mandamus by virtue of Sections 2 and 6, respectively, of Article IV of the Ohio Constitution. Section 2731.05, Revised Code, cannot limit this court and the Courts of Appeals in issuing a writ of mandamus under their constitutional jurisdiction." State, ex rel. Sibarco Corp., v. Hicks (1964), 177 Ohio St. 81, 82, 202 N. E. 2d 615.
 
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Relator himself notes his potential remedy available through R. C. 6111.30, n2 authorizing common pleas courts  [*84]  to levy $ 10,000  [**1163]  fines upon officers of municipal corporations who refuse to comply with orders issued pursuant to R. C. 6111.13 n3 to fluordidate. However, he denies that R. C. 6111.30 provides an effective means of obtaining the enforcement of his order in the instant cause. We are not persuaded by his argument.
 
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n2 R. C. 6111.30 provides, in relevant part:

"If a legislative authority, a department, or an officer of a municipal corporation, or a person in charge of a public institution, or other person fails for a period of thirty days, after notice given him or them by the director of environmental protection of his findings and order, to perform any act required of it by Sections 6111.12 to 6111.30 of the Revised Code, relating to public water supply, the members of such legislative authority or department, or such officer or person shall be personally liable for such default, and shall forfeit ten thousand dollars to be paid into the state treasury to the credit of the general revenue fund. Such findings and order of the director, unless complied with within the time provided in this section, shall be prima-facie evidence in any court of law of the existence of a public nuisance detrimental to health or comfort, or of the pollution of the source of a public water supply."  [***6] 

n3 R. C. 6111.13 provides, in relevant part:

"The environmental protection agency shall investigate the public water supplies throughout the state as frequently as is deemed necessary by the agency, and whenever requested to do so by the local health officials, and may adopt and enforce orders and regulations governing the construction, operation, and maintenance of such public water supply and water-works systems, and may require the submission of records of construction, operation, and maintenance, including plans and descriptions of existing works."
 
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In the recent case of Cincinnati, ex rel. Crotty, v. Cincinnati (1977), 50 Ohio St. 2d 27, 361 N. E. 2d 1340, this court assessed a controversy wherein Cincinnati taxpayers and water users filed a complaint in the Court of Common Pleas alleging that the contemplated addition of fluoride into the municipal drinking water would be contrary to those taxpayers' and water users' constitutional rights. As was noted in that case, under R. C. 6111.12 the correct procedure for claims that a public water supply is impure is by complaint to the  [***7]  Environmental Protection Agency. Under R. C. 3745.04, an appeal from an order vacating an action of the Director of Environmental Protection might be brought before the Environmental Board of Review, and the Board has exclusive original jurisdiction  [*85]  over any matter which correctly might be brought before it. Crotty, at page 30, held that the statutory scheme for review of actions by the Director of Environmental Protection is exclusive, and that a common pleas court lacks jurisdiction over such a complaint.

It is entirely consistent with Crotty for us to hold that the state, before its writ of mandamus will be granted, must establish its clear legal right thereto, showing affirmatively that it lacks a plain and adequate remedy in the ordinary course of the law. On facts such as obtain in the instant cause, mandamus may not be used as a substitute for what appears to be an adequate remedy available to relator.

In light of all of the foregoing, the writ prayed for is denied.

Writ denied.

On July 1, 1974, as a result of proceedings before the Ohio Environmental Protection Agency, the Director of Environmental Protection ("director") issued an order requiring the city of Canton to install and operate all devices necessary and appropriate to maintain the fluoride content of the city water system as mandated by statute. That order was upheld by this court in Canton v.. Whitman (1975), 44 Ohio St. 2d 62, certiorari denied, 425 U.S. 956.

Subsequently, the director filed a mandamus action in this court to force compliance with that order. In State, ex rel. Williams, v.. Canton (1977), 51 Ohio St. 2d 81, this court held that the forfeiture provision of R. C. 6111.30 n1 provided an adequate remedy in the ordinary course of the law. Therefore, the writ of mandamus was denied.

n1 The pertinent part of R. C. 6111.30 reads, as follows:

"If a legislative authority, a department, or an officer of a municipal corporation, or a person in charge of a public institution, or other person fails for a period of thirty days, after notice given him or them by the director of environmental protection of his findings and order, to perform any act required of it by sections 6111.12 to 6111.30 of the Revised Code, relating to public water supply, the members of such legislative authority or department, or such officer or person shall be personally liable for such default, and shall forfeit ten thousand dollars to be paid into the state treasury to the credit of the general revenue fund. Such findings and order of the director, unless complied with within the time provided in this section, shall be prima facie evidence in any court of law of the existence of a public nuisance detrimental to health or comfort, or of the pollution of the source of a public water supply."

R. C. 6111.30 has been repealed. (Am. Sub. S. B. No. 445, effective December 14, 1978.)  [***2] 

The Attorney General, appellant herein, filed this action in the Court of Appeals for Stark County, seeking a writ of mandamus directing the appellees, the city of Canton, its mayor and city council, to comply with the director's July 1, 1974, order. The Court of Appeals denied the writ, finding that R. C. 6109.32, n2 which authorizes the Attorney General to bring an action for an injunction, is an adequate remedy in the ordinary course of the law.

n2 The pertinent part of R. C. 6109.32 reads:

"The attorney general, upon written request by the director, shall bring an action for injunction or other appropriate action against any person violating or threatening to violate such section."

The cause is now before this court upon an appeal as of right.

DISPOSITION: Judgment reversed and writ allowed.

HEADNOTES: Mandamus -- Writ allowed, when -- Fluoridation of municipal water supply -- Order of Environmental Protection Agency to fluoridate water -- No plain and adequate remedy available to enforce.

COUNSEL: Mr. William J. Brown, attorney general, Ms. Margaret A. Malone and Ms. Joan M. Cummings, for appellant.

Mr. Harry E. Klide, law director, and Mr. William J. Hamann,  [***3]  for appellees.

JUDGES: W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and STILLMAN, JJ., concur. CELEBREZZE, C. J., dissents. STILLMAN, J., of the Eighth Appellate District, sitting for DOWD, J.

OPINIONBY: PER CURIAM

OPINION:  [*183]   [**413]  The standard of review applied by this court in mandamus actions is set forth in State, ex rel. Pressley, v.. Indus. Comm. (1967), 11 Ohio St. 2d 141, at paragraph ten of the syllabus, as follows:

"The Court of Appeals is governed by the same rules that govern the Supreme Court with regard to its original jurisdiction in mandamus actions. On appeal as a matter of right from a judgment of a Court of Appeals in such an action, the Supreme Court will review the judgment of the Court of Appeals, as if the action had been filed originally in this court, to determine the following questions: (a) Is the respondent under a clear legal duty to perform an official act? (b) Is there a plain and adequate remedy in the ordinary course of the law? (c) Is the action, although labeled a proceeding in mandamus, in effect an action seeking an injunction? * * *."

Here, there is no question that the appellees are under a clear legal duty to fluoridate  [***4]  Canton's water system pursuant to R. C. 6109.20 n3 and this court's determination in Canton v.. Whitman, supra. Further, appellant herein seeks to compel appellees to perform their legal duty, rather than restrain them from doing an act in contravention of that duty. See State, ex rel. Pressley, v.. Indus. Comm., supra, at pages  [*184]  150-51. Hence, this action does not in effect seek an injunction.
 
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n3 At the time Canton was ordered to fluoridate its water system, R. C. 6109.20 was numbered R. C. 6111.13.
 
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Therefore, the only question on appeal is whether appellant has a plain and adequate  [**414]  remedy in the ordinary course of the law. The Court of Appeals ruled that appellant has such a remedy. We disagree. n4
 
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n4 The appellant argues that a writ of mandamus should be issued under R. C. 6109.16 even if there is a plain and adequate remedy in the ordinary course of the law. Since we hold that appellant has no such remedy, we need not decide that question.
 
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The Court of Appeals' determination that R. C. 6109.32 provides such a remedy is contrary to previous decisions of this court. R. C. 6109.32 authorizes the Attorney General to enforce orders of the director by an injunction. To enforce the order directing appellees to fluoridate Canton's water system would require a mandatory injunction. However, a mandatory injunction is an extraordinary remedy; hence, it is not a plain and adequate remedy in the ordinary course of the law. In State, ex rel. Pressley, v.. Indus. Comm., supra, at paragraph six of the syllabus, this court stated:

"The extraordinary remedies of statutory mandamus and statutory mandatory injunction are not plain and adequate remedies in the ordinary course of the law and the availability of these extraordinary remedies in the Common Pleas Court is not a ground upon which the Supreme Court can adopt or adhere to a rule that it is error for the Supreme Court or the Court of Appeals to exercise jurisdiction in a mandamus action filed originally therein. (Perkins v.. Quaker City, 165 Ohio St., 120; State, ex rel. Selected Properties, Inc., v.. Gottfried, 163 Ohio St. 469; State, ex rel.  [***6]  Killeen Realty Co., v.. East Cleveland, 169 Ohio St. 375; State, ex rel. Riley Construction Co., v.. East Liverpool City School Dist. Bd. of Edn., 10 Ohio St. 2d 25, approved and followed.)"

Finally, this court must decide whether R. C. 6109.33, n5 which provides for civil penalties for violations of any order of  [*185]  the director is a plain and adequate remedy in the ordinary course of the law. Notwithstanding our decision in State, ex rel. Williams, v.. Canton, supra, that R. C. 6111.30, n6 an analogous section, was an adequate remedy, we find that R. C. 6109.33 does not provide such a remedy.
 
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n5 R. C. 6109.33 reads:

"Any person who violates section 6109.31 of the Revised Code shall pay a civil penalty of not more than ten thousand dollars for each violation, to be paid into the state treasury to the credit of the general revenue fund. The attorney general, upon written request by the director of environmental protection, shall bring an action for such penalty against any person who violates such section. Such action is a civil action, governed by the Rules of Civil Procedure and other rules of practice and procedure applicable to civil actions."  [***7] 

n6 See fn. 1, supra.
 
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In reaching this decision, we must analyze what constitutes an "adequate remedy." This question was addressed in State, ex rel. Paul Stutler, Inc., v.. Yacobucci (1958), 108 Ohio App. 41, affirmed, 169 Ohio St. 20, wherein the court, at page 46, stated that an "adequate remedy" means a remedy "'complete in its nature, beneficial and speedy.'" (Quoting from State, ex rel. Merydith Const. Co., v.. Dean [1916], 95 Ohio St. 108, 123.)

It is more than three years after this court's denial of mandamus relief in State, ex rel. Williams, v.. Canton, supra, and the appellees still refuse to obey the order to fluoridate the city's water system. The fact that an analogous forfeiture provision was for three years unable to secure compliance with the director's order leads us to the conclusion that a civil penalty will not afford the appellant either a complete or a speedy remedy.

Since appellant has no plain and adequate remedy in the ordinary course of the law, he is entitled to a writ of mandamus. Therefore, the judgment of the Court of Appeals  [***8]  is reversed, and the writ is allowed.

Judgment reversed and writ allowed.

DISSENTBY: CELEBREZZE

DISSENT:  [**415] 

CELEBREZZE, C. J., dissenting.

The writ of mandamus is an extraordinary remedy which is customarily granted with caution. The conditions which must exist to support the issuance of a writ of mandamus are, as recently stated in State,  [*186]  ex rel. Heller, v.. Miller (1980), 61 Ohio St. 2d 6, paragraph one of the syllabus, as follows:

"In order to grant a writ of mandamus, the court must find that relator has a clear legal right to the relief prayed for, that respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. (State, ex rel. Harris, v.. Rhodes, 54 Ohio St. 2d 41.)"

Since appellant has failed to demonstrate the lack of a plain and adequate remedy at law, I would, on the basis of this court's prior ruling in State, ex rel. Williams, v.. Canton (1977), 51 Ohio St. 2d 81, deny the writ.

In State, ex rel. Williams, v.. Canton, supra, this court held in a unanimous opinion that the director was not entitled to a writ of mandamus directing Canton to fluoridate  [***9]  its water supply, where he had a remedy by way of seeking the statutory fine against the offending municipal officials pursuant to R. C. 6111.30.

Similarly, I submit that appellant has a plain and adequate remedy at law through the analogous forfeiture provisions of R. C. 6109.33, which permit the imposition of significant civil monetary penalties against any person who violates an order of the director. Thus, in my view, R. C. 6109.33 furnishes appellant with an effective means of enforcing the orders of the director.

However, the majority assumes that the foregoing civil penalty concept is not an "adequate" remedy. I fail to see how the majority can so readily conclude that a civil penalty is not an effective remedy when the record before us is totally devoid of evidence of any legal proceeding in which a civil penalty was attempted to be imposed on any public official. I cannot conclude that a civil penalty is an inadequate remedy until there is some indication that it has been employed -- and found to be ineffective.

For all the foregoing reasons, there is no clear legal right for the issuance of this writ and I would accordingly deny it.

Mr. James R. Unger, prosecuting attorney, and Mr. Allan L. Krash, for respondents.

JUDGES: CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.

OPINIONBY: PER CURIAM

OPINION:  [*3]   [**807]  Almost nine years have elapsed since the city of Canton was first ordered to fluoridate its water supply "within thirty days." This court has reviewed and passed on this issue in one form or another on numerous occasions. It should  [***7]  be quite clear to all interested parties that the state law requiring fluoridation will be enforced in the city of Canton. That question was answered in 1975. It is also quite clear that a writ of mandamus will issue compelling said fluoridation. That question was answered in 1980. This court ordered the issuance of a writ of mandamus to compel the city of Canton to fluoridate its water supply and issued a mandate to respondents to carry that order into execution. To date, respondents have not complied with that mandate. The purpose of this action is to obtain compliance with that mandate and obtain execution of the writ this court allowed in State, ex rel. Brown, v.. Canton, supra.

 [*4]  Pursuant to R.C. 2731.16, this court is not limited in its power "* * * to carry its order and judgment into execution, or to punish any officer named therein for contempt or disobedience of its order or writs."

Although it would have been more appropriate for relator to have initiated contempt proceedings in the 1980 action wherein the city of Canton was a party, we find that the extraordinary history of delay attendant to this matter requires extraordinary steps to be taken.  [***8]  We hereby allow the issuance of a writ to compel respondents to comply with the mandate issued in State, ex rel. Brown, v.. Canton, supra.

We also find that the city of Canton and its officials are essential parties to the enforcement of this writ and compliance with our previous mandate. Accordingly, this court sua sponte joins the city and its officials, i.e., the mayor, city council, and all employees of the municipal water works, in this action. Given our prior holdings requiring fluoridation, we hereby issue a peremptory writ to compel the city and its officials to comply with the writ issued in State, ex rel. Brown, v.. Canton, supra, without delay.

Failure to follow the mandate issuing from this court will result in contempt proceedings against any non-complying party.

Judgment accordingly.

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