152 N.E.2d 307 | Ohio Ct. App. | 1957
In the petition, the plaintiff alleges that on or about December 19, 1955, J. Mark Radel and Cecelia R. Radel purchased 33.25 acres of land situate in Miami Township, Clermont County, Ohio, upon which a dump had been operated for many years, and that, shortly thereafter, the plaintiff leased the land and continued to operate the dump for about six months when it converted the dump into a modern land-fill garbage disposal plant which it operated according to law and the rules and regulation of the Board of Health of Clermont County, Ohio. This was followed by allegations that the land fill was free of vermin and insects, that all garbage dumped there was covered by earth in accordance with the approved method of land-fill garbage disposal plants, and that its operation was conducted under the supervision of the Sanitarian of the Clermont County Board of Health. These allegations were followed by the allegation that on August 27, 1956, the plaintiff filed an application with the board of health for a permit to operate a sanitary disposal plant for garbage by the land-fill method. On August 29, 1956, this application was denied, and on or about September 5, 1956, it was notified that it must close its plant within 24 hours.
The plaintiff alleged that the action of the board of health was arbitrary and contrary to its former ruling and would work irreparable damage on it.
The plaintiff named as defendants the Clermont County Board of Health, all its members, its secretary and chief health commissioner and its sanitarian, all in their official capacities; and as against them prayed "that a writ of mandamus be issued * * * requiring them to issue a permit to the plaintiff to operate a garbage disposal plant by means of the sanitary land fill method." The plaintiff also prayed for a temporary and permanent injunction against any interference by the defendants with it in the operation of "said sanitary land fill garbage disposal plant."
By answer, the defendants, the Clermont County Board of *161 Health and its members, admitted that plaintiff became a lessee of the premises as alleged, that the plaintiff applied to it for a permit, and that the application was denied as alleged. They specifically denied that the plaintiff had operated a modern land-fill disposal plant on the premises as alleged, denied that vermin and insects had been eliminated, that the garbage dumped there had been covered as required by the approved method for operating a land-fill garbage disposal plant and that this had been done under the supervision of their sanitarian. These specific denials were followed by a general denial which added nothing to the issues.
Defendants filed a cross-petition in which they sought an abatement of the dump as a public nuisance and an injunction against its operation.
The health commissioner and the sanitarian filed answers joining issue with the plaintiff on the allegations of the petition against them, and the plaintiff traversed the allegations of the defendants' cross-petition.
Many witnesses (23 by count), including the health commissioner and the sanitarian, testified. A reading of the bill of exceptions is sufficient to disclose that the evidence was conflicting.
It appears that the plaintiff operated this garbage and waste disposal plant without a permit for about six months, and that it endeavored to satisfy the board of health that it was being operated in a sanitary manner, so that the board would therefore issue a permit for its continuance. During that six month's period, employees of the board of health visited the premises. What was said by them is somewhat in dispute, but at the trial they testified that the disposal plant as operated by the plaintiff was not sanitary. It seems that the principal objection was that the plaintiff did not properly cover the garbage with soil, leaving some uncovered, and some so thinly covered that parts would be exposed.
It is clear from the testimony of the health commissioner and the sanitarian that the plaintiff's disposal plant was not operated to their satisfaction. They did not supervise its operation. The refusal to issue a permit manifestly was based on their conclusions.
As the result of this trial, the court entered a judgment *162 "that the writ of mandamus and the permanent injunction prayed for in the petition in this case are hereby denied." The temporary restraining order that had been previously granted was dissolved and the defendants' cross-petition for an injunction dismissed.
Perhaps it would be helpful to consider the nature of this action. It will be observed from the caption of the petition that Radel Concrete Products, Inc., is described as plaintiff and not as relator, and that the state of Ohio does not appear in the caption. However, as already observed, the primary relief sought is a writ of mandamus, which could only be granted on the petition of the state of Ohio. In examining the papers, we find that the primary relief sought as shown by the endorsement on the summons was that of mandamus.
It is, therefore, manifest that the record contains contradictory indicia as to whether this is a civil action for a mandatory injunction, or a special proceeding for the extraordinary writ of mandamus. In this situation, the inherent relief possible under the pleadings and evidence should control; neither the caption nor the prayer being a part of the petition for the purpose of determining the cause of action. The caption could be amended to show that the action was by the state on relation of Radel, Inc.
It will be observed that the action is against the defendants in their official capacity. The board of health, according to the allegations of the petition, arbitrarily refuses to issue a permit to the plaintiff and has ordered it to cease the operation which it had thus refused to authorize. This is all that is charged against the members of the board of health. The other defendants are officers or employees of the board of health and the things alleged against them are acts of investigation concerning health conditions and no trespass or other invasion of the plaintiff's rights are charged against them. All that is charged against them is that they are executing the orders of the board of health, and that was and is their duty, unless the duties were nondelegable, which clearly cannot be successfully maintained.
The most relief which the allegations would justify would be the issuance of a writ of mandamus requiring the board of health to issue to the plaintiff a permit to operate this disposal *163 plant, as now operated, and not interfere with it so long as that method of disposal is maintained. But that would be official action, which the plaintiff is seeking to control.
The law has confided the execution of the health laws to the board of health and expressly authorizes it to appoint a health commissioner and other assistants, as it might deem necessary or expedient. Section
We find that is the situation shown by this record. The plaintiff applied for a permit to the board of health to continue to operate the garbage disposal plant. It refused to issue the permit. There can be no question that reasonable minds could differ as to whether the proof showed that the plaintiff was operating the land-fill garbage disposal plant as required. Merely calling it a land-fill garbage disposal plant is not significant. The method of operation is the decisive factor. Of course the collection and disposal of garbage is a lawful business, but garbage is a potential and imminent nuisance, and its total destruction may be ordered.
The evidence was conflicting as to the existence of vermin and odors. It was more in conflict as to whether the garbage was being covered by enough soil, and whether any garbage remained exposed or so close to the surface that exposure was easy. In this situation, we cannot say that the board of health abused its discretion. This requires us to deny the writ of mandamus. *164 In an action for injunction only the same reason would require a denial of relief.
There was introduced in evidence a copy of the regulations adopted by the Clermont County General Health District, and it is asserted that provisions similar to some of these regulations were held to be involved in Weber v. Board of Health of ButlerCounty,
As already pointed out, the gist of the plaintiff's complaint is that the board of health refuses to grant it a permit. There is no allegation or proof that the board has attempted to delegate the power to issue a permit to any subordinate, or that that subordinate has refused to issue a permit in the name of the board or interfered with the board in its duty to issue permits. Weber v. Board of Health (
If the defendant health commissioner should assume to exercise the power that is contested, then will be the time for judicial intervention. The time is not now, nor in this case.
Even assuming the invalidity of the provisions conferring power upon the health commissioner, that would have no effect upon the other provisions of the rule relating to the issuance of permits. The regulations contain a severability provision, expressly providing that the invalidity of any provision shall not affect the validity of the remainder.
For these reasons, the judgment is affirmed.
Judgment affirmed.
HILDEBRANT, P. J., and MATTHEWS, J., concur.
LONG, J., not participating. *166