State Ex Rel. Bar Realty Corp. v. Locher

(283 N.E.2d 164, 30 Ohio 2d 190) (Ohio May 24, 1972)

Citizen-taxpayers may not obtain a writ of mandamus to compel city officials to enforce the city's pollution control ordinances against industries alleged to be polluting a river where the city officials, in their answer, deny that the industries in question are acting in violation of the law. The ordinances grant discretion to the city officials and in the absence of a showing that they have abused that discretion, the court will not order them to act.

Counsel for Plaintiffs
William B. Webber
National City Bank Building
Cleveland, Ohio 44114

Roemisch & Wright
National City Bank Building
Cleveland, Ohio 44114

Counsel for Defendants
Richard R. Hollington Director of Law
Thomas A. Smith
Department of Law
City of Cleveland
Cleveland, Ohio 44101

O'NEILL, C.J., SCHNEIDER, HERBERT, STERN, LEACH and BROWN, JJ., concur.

[2 ELR 20375]

Syllabus [By the Court]

A writ of mandamus may not be issued to compel a city's commissioner of water pollution control to enforce the city's water pollution control ordinances where the commissioner, in the exercise of authority conferred upon him to regulate and control water pollution under those ordinances, has determined that no violations thereof exist and no abuse of discretion is shown as to that determination.

APPEAL from the Court of Appeals for Cuyahoga County.

On May 26, 1965, relators-appellees, as citizens and taxpayers of the city of Cleveland, instituted an action in mandamus in the Court of Common Pleas of Cuyahoga County against the Mayor, the Director of Public Safety, the Commissione of Health and the Chief of Police of the city of Cleveland to compel the enforcement of the city's pollution control ordinances against certain industries which were alleged in the petition to be polluting the Cuyahoga River and its tributaries.

In the petition, relators prayed for an alternative writ "to issue commanding the defendant-respondents * * * to proceed to adequately investigate the nature, character and extent of the pollution conditions and activities of the persons and firms described * * * [in the petition] and thereupon to undertake and prosecute against those found to be in violation of the ordinances of the city of Cleveland such legal proceedings as may be in accord and consistent with such ordinances and, to order such nuisances to be abated, and to do all other things necessary and proper to effectively abate such nuisances, and upon final hearing that a peremptory writ issue accordingly, and for such other and further relief as in equity and the nature of the case may be proper."

The trial court granted the alternative writ. Subsequently, an answer was filed and interrogatories were filed and answered. In February 1969, relators filed a supplemental petition, substituting new parties and setting forth new pollution control ordinances enacted after the filing of the petition. The prayer was for a supplemental alternative writ and for a peremptory writ.

The supplemental alternative writ was issued by the trial court, answer was filed and the cause came on for trial in January 1970.

The trial court ordered issuance of the peremptory writ, "commanding new party defendant-respondent Walter E. Gerdel, Commissioner, Division of Water Pollution Control of the city of Cleveland (or any other person qualified and acting in such office) and new party defendant-respondent Edward J. Martin, Consultant, Division of Water Pollution Control of the city of Cleveland (or any other person qualified and acting in such office) to manage and supervise the elimination, control or regulation of any matter relating to the pollution of watercourses, rivers, streams or lakes bounding upon or within the city of Cleveland."

The trial court further ordered "that the respondents above named proceed forthwith to investigate the nature, [2 ELR 20376] character and extent of the activities of such persons and firms as may be in contravention of the duly enacted ordinances of the city of Cleveland relating to water pollution, including but not limited to such persons and firms as are described in the petition of plaintiffs-relators; and thereupon, to undertake and to prosecute against those found to be in violation of the ordinances of the city of Cleveland, such legal proceedings as may be in accord and consistent with such ordinances, and to order such nuisances as may be found to be abated, and to do all other things necessary and proper to effectively abate such nuisances, and that said respondents perform such acts immediately upon being served with the peremptory writ of mandamus."

The Court of Appeals affirmed the judgment and the cause is before this court pursuant to the allowance of a motion to certify the record.

CORRIGAN, J. Several propositions of law are enumerated by respondents-appellants as grounds for reversal of the judgment. Included among them are contentions that mandamus will not lie to compel a public officer to enforce a police regulation in relation to a specific person and that the ordinances in question conflict with statutes under which the state, through its Water Pollution Control Board, has granted permission to certain industries to discharge industrial wastes into the tributaries of Lake Erie.

In its opinion, the trial court agreed with the first of the above-noted contentions of respondents, citing this court's holding in State, ex red. MacDonald, v. Cook (1968), 15 Ohio St. 2d 85, to that effect. The trial court then proceeded to grant the peremptory writ commanding respondents, the Commissioner and the Consultant of the Division of Water Pollution Control, generally to perform their duties of enforcement under the city's pollution control ordinances.

State, ex rel. Foster, v. Miller (1940), 136 Ohio St. 295, involved an action in mandamus brought by a taxpayer to compel the Tax Commissioner to require certain vendors who were allegedly deficient in their payments to the state under the Sales Tax Act to pay the deficiencies and to require the Tax Commission to discharge its duties under the Sales Tax Act.

Paragraphs two and three of the syllabus in that case read:

"2. A writ of mandamus will not issue to compel the observance of law generally, but will be confined to commanding the performance of specific acts specially enjoined by law to be performed.

"3. In an action in mandamus, a court will not substitute its discretion for that of an administrative officer or commission in the exercise of his or its authority, and in the absence of allegation and proof that an officer or commission charged with the duty of collecting sales taxes has refused arbitrarily to collect the amount due on a specific taxable sale or sales, the writ of mandamus will not lie."

In the course of the opinion in that case it was stated, at page 304:

"* * * The Tax Commission is given general powers of enforcement of this act and the power to promulgate and enforce rules and regulations adopted by it. It is given the power to assess and penalize delinquent taxpayers. Obviously, if it has the authority and power to find that a taxpayer is delinquent, it may likewise find that he is not delinquent. In such a finding, it is exercising a discretion expressly conferred upon it by statute, and its exercise of this discretion cannot be controlled by mandamus. While a court will apply the spur of mandamus to compel performance of a clear, legal duty, it will not, after the discretion has been exercised, interfere therewith, unless an abuse thereof is clearly shown."

Section 1.2528 of the Ordinances of the City of Cleveland provides, in part:

"It shall be the duty of the Commissioner of the Division of Water Pollution Control * * * to manage and supervise the elimination, control or regulation of any matter relating to the pollution of watercourses, rivers, streams or lakes bounding upon or within the city of Cleveland."

The foregoing ordinance, by conferring upon the commissioner the duty to regulate and control water pollution, necessarily vests in that officer in the exercise of that power authority to find either that violations of the ordinances do or do not exist.

Respondents in their answer either deny that the industries in question discharge wastes into the streams or aver that wastes are being deposited by them pursuant to permission granted by the state's Water Pollution Control Board. Respondents state further that the conduct of the companies is not an actionable violation of the ordinances of the city.

Under the reasoning expressed in State, ex rel. Foster, v. Miller, supra (136 Ohio St. 295), it is obvious that if the commissioner has the authority to find a violation of the water pollution control ordinances, he may also make a finding that there is no violation. In making such a finding, the commissioner is exercising a discretion conferred upon him, and the exercise of that discretion "cannot be controlled by mandamus."

As for abuse of discretion, we are of the opinion that none has been shown. The record shows that respondents, in discharging their duties under the ordinances, have been taking into consideration the supervision and control over pollution being exercised by the state's Water Pollution Control Board. In light of the apparent necessity for cooperation between state and local governments in this area of great public concern, we do not believe that respondents, in enforcing their water pollution control ordinances in a manner consistent with the state's enforcement procedures under R. C. Chapter 6111, have committed an abuse of discretion.

For the foregoing reasons, we conclude that a writ of mandamus may not be issued to compel a city's commissioner of water pollution control to enforce the city's water pollution control ordinances where the commissioner, in the exercise of authority conferred upon him to regulate and control water pollution under those ordinances, has determined that no violations thereof exist and no abuse of discretion is shown as to that determination.

The judgment of the Court of Appeals is, therefore, reversed and final judgment is rendered for respondents-appellants.

Judgment reversed.