260 N.E.2d 835;
1970 Ohio LEXIS 365;
52 Ohio Op. 2d 32
July 8, 1970, Decided
PRIOR HISTORY:
[***1]
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.
APPELLANT
337 N.E.2d 766;
1975 Ohio LEXIS 583;
73 Ohio Op. 2d 285
November 19, 1975, Decided
PRIOR HISTORY:
[***1]
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
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
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.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***4]
[*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
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
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.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***11]
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.
364 N.E.2d 1161;
1977 Ohio LEXIS 441;
5 Ohio Op. 3d 50
July 13, 1977, Decided
PRIOR HISTORY:
[***1]
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.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
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.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***5]
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.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
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.”
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
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.
APPELLEES
Supreme Court of Ohio
414 N.E.2d 412;
1980 Ohio LEXIS 862;
18 Ohio Op. 3d 401
December 23, 1980, Decided
PRIOR HISTORY:
[***1]
APPEAL from the Court of Appeals for Stark County.
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.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n3 At the time Canton was ordered to fluoridate its water system, R. C. 6109.20
was numbered R. C. 6111.13.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
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
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
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.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***5]
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.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
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.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
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.
APPEALS ET AL.
448 N.E.2d 806;
1983 Ohio LEXIS 703;
5 Ohio B. Rep. 64
PRIOR HISTORY:
[***1]
IN MANDAMUS. On July 1, 1974, the then Ohio Director of Environmental
Protection (“director”) issued an order directing the city of Canton to begin fluoridating its water
within thirty days, to bring it into compliance with R.C. 6109.20 (then
numbered R.C. 6111.13), which requires a certain level of fluoridation of
supplied water of
a public water system. The city appealed, first to the Environmental Board of
Review (“board”), which upheld the order, and then to the court of appeals, which reversed the
orders of the board and the director and held that R.C. 6111.13 was not
reasonably related to the police power of the state. Upon further appeal, this
court in
Canton v.. Whitman (1975), 44 Ohio St. 2d 62 [73 O.O.2d 285], reversed the lower court and affirmed the orders of the board and the
director. The issue was framed succinctly by Justice Stern:
“* * * 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.”
Canton, supra, at 65. In upholding the enforceability of the statute, the court noted:
“* * * Plainly, the General Assembly made a political compromise — it ordered
fluoridation, but permitted
[***2] users of particular water supplies to choose, by local option, to avoid that
order under specified conditions. * * *
“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.”
Id. at 71. The city of Canton did not take
advantage of the local option law enacted by the General Assembly, such
referendum being required within one hundred twenty days of the passage of the
statute. Following a denial of certiorari by the United States Supreme Court of
our decision of
November 19, 1975 (425 U.S. 956 [1976]),
a mandamus action against the city of Canton was brought by the director to
enforce compliance with his order. In
State, ex rel. Williams, v.. Canton (1977), 51 Ohio St. 2d 81 [5 O.O.3d 50], this court held that the forfeiture provision of former R.C.
6111.30 provided an adequate remedy in the ordinary course of the law, and the
writ of mandamus
[***3] was denied. R.C. 6111.30 authorized the levying of $ 10,000 fines on
non-complying city officials, who could be held personally liable for the
default. This court rejected the director’s claim that the penalty was an
illusory means of obtaining the enforcement of his
order. Effective December 14, 1978, R.C. 6111.30 was repealed. Following our
decision in
State, ex rel. Williams, supra, the then Attorney General filed an action in the court of appeals seeking a
writ of mandamus directing the city to comply with the July 1, 1974 order. The
court of
appeals denied the writ, finding an adequate remedy in the ordinary course of
the law under R.C. 6109.32, which authorizes the Attorney General to
“bring an action for injunction or other appropriate action against any person
violating or threatening to violate” the fluoridation statute. On appeal, this court in
State, ex rel. Brown, v.. Canton (1980), 64 Ohio St. 2d 182 [18 O.O.3d 401], reversed, finding that neither R.C. 6109.32 nor 6109.33 provided a plain and
adequate remedy in the ordinary course of the law. In a
per curiam opinion, this court
noted:
“It is more than three years after this court’s denial of mandamus
[***4] 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 * * * [former R.C. 6111.30] 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.”
Id. at 185. Accordingly, this court allowed the writ to direct the city of
Canton to comply with the July 1, 1974 order. Our decision was announced on
December
23, 1980, and a mandate addressed to the court of appeals was issued commanding
that court
“to proceed without delay” to execute our judgment. Relator then filed a motion in the court of appeals
for issuance of a peremptory writ to require the city of Canton to fluoridate
its water supply. Following oral
argument on the motion, the court, on January 27, 1981, ordered the Attorney
General to prepare judgment entries
“in clear-cut language specifically” commanding named city officials to perform the acts necessary for compliance
with the mandate. These entries were duly submitted and oral argument on the
submissions followed. On May
14, 1981
[***5] the court of appeals rejected same
“for want of chemical specificity” and ordered new proposed entries from the Attorney General. These entries
were filed May 28, 1981 and included a chemical definition of
“fluoride.” On July 9, 1981, the court of appeals issued a judgment entry
rejecting the new proposed entries
“as being an unauthorized amendment of the mandate of the Supreme Court of Ohio
filed with us pursuant to
State, ex rel. v.. Canton, 64 Ohio St. 2d 182 [18 O.O.3d 401] [sic].” The court of appeals then overruled relator’s motion for a
peremptory writ of mandamus. Relator’s appeal to this court from this order
(case No. 81-1154) was dismissed on the ground that it was non-appealable.
Thereafter, relator’s motion for
“Clarification of Mandate” was denied. On July 21, 1982, the then Attorney General filed a complaint in
this court seeking a peremptory
writ of mandamus to compel respondents, the court of appeals, to comply with
the mandate of
State, ex rel. Brown,
v.. Canton, and an alternative writ directing the court of appeals to appear for a hearing
and show cause why they have not so complied. Respondents-judges answered,
stating they stand
“ready
[***6] to comply immediately with any
order the Supreme Court makes.” On December 22, 1982, relator’s motion for summary judgment was overruled.
DISPOSITION:
Judgment accordingly.
HEADNOTES:
Mandamus to compel fluoridation of water — Extraordinary history of delay in
obeying lawful order — Power of Supreme Court not limited by R.C. 2731.16 to
carry its order and judgment into execution, or to punish any officer named
therein for contempt or disobedience of its order or writs — Municipal
corporation and its officials sua
sponte joined as essential parties — Contempt — Mandate to be obeyed without
delay.
COUNSEL:
Mr. Anthony J. Celebrezze, Jr., attorney general,
Ms. Margaret A. Malone and
Ms. Joan M. Cummings, for relator.
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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