Opinion, per NEWMAN, J. is whether the class of business sought to be restrained is such as may in good faith be deemed a nuisance within the limit of restraint. We are therefore constrained to hold that it has not been made to appear that the action of council in the enactment of the ordinance had no real or substantial relation to the public health or comfort and that it acted unreasonably or arbitrarily. The ordinance in question was enacted after the permit was issued to the relator. The further claim. is made that the relator having expended considerable money in the purchase of land and material, and having entered into certain contracts for the erection of the building, and the building being in course of construction, acquired certain vested rights which could not be affected by the ordinance that the ordinance could not be retroactive. It - is not necessary to devote much time to this proposition, for it seems to be well settled that a permit such as was issued in this case has none of the elements of a contract, and may be changed or entirely revoked, even though based on a valuable consideration, if it becomes necessary to do so in the exercise of a legislative power on subjects affecting the public health or public morals. Cooley on Constitutional Limitations, 283; Beer Co. v. Massachusetts, 97 U. S., 25; Fertilizing Co. v. Hyde Park, Id., 659; Butchers' Union SlaughterHouse & Live-Stock Landing Co. v. Crescent City Live-Stock Landing & Slaughter-House Co., 111 U. S., 746; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S., 650; Moore v. Indianapolis, 120 Ind., 483, and Dobbins v. Los Angeles, 139 Opinion, per NEWMAN, J. Cal., 179. In the Dobbins case, which is similar to the one under consideration here, it was held: "The fact that the plaintiff had lawfully commenced its work by purchasing land for a site within the limits. allowed by the original ordinance, and had expended money in laying a foundation, and had entered into contracts for the erection of its works, and had secured a building permit from the fire commissioners in pursuance of fire and building ordinances, cannot estop the city from the further exercise of its police power to change the limits so as to make the erection and maintenance of such gas-works unlawful where begun and existing within the changed limits." This is a proceeding in mandamus and it has been repeatedly held that the right of the relator to a writ must be clear and there must be shown a plain dereliction of duty on the part of the officer. We think the relator has failed to establish its right to the writ and the same must be refused. Writ refused. JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur. Opinion Per Curiam. THE BOARD OF COUNTY COMMISSIONERS OF WYANDOT COUNTY V. BOUCHER. Negligence-County commissioners — Public highways - Failure to erect guardrails — Perpendicular wash banks - Sections 7563 and 7565, General Code. (No. 15725-Decided June 11, 1918.) ERROR to the Court of Appeals of Wyandot county. Mr. F. J. Stalter and Mr. D. C. Parker, for plaintiff in error. Mr. Benjamin Meck; Mr. Chester A. Meck and Mr. J. S. Hare, for defendant in error. BY THE COURT. This case originated in the common pleas court of Wyandot county where defendant in error brought an action against the plaintiff in error to recover damages on account of personal injuries. It was alleged in the petition, in substance, that there was a public highway in Wyandot county running east from Upper Sandusky, which highway had adjacent thereto in an unprotected condition a perpendicular wash bank more than eight feet high having an immediate connection with the highway, and that plaintiff in error had carelessly and negligently failed and omitted to protect by suitable guardrails or otherwise this perpendicular wash bank. The claim was made by defendant in error that while riding in his automobile over and upon this public highway, along where the wash bank was adjacent thereto Opinion Per Curiam. and had immediate connection therewith, his automobile skidded toward said wash bank, and, for the want of suitable guardrails or other protection, the automobile ran down said bank, turned over, and he received certain injuries for which he asked damages. The case was submitted to a jury upon the pleadings and the evidence and resulted in a verdict for plaintiff in error. A motion for a new trial was overruled and judgment was rendered on the verdict. Error was prosecuted to the court of appeals and the judgment of the common pleas court was reversed for errors in the admission of evidence and in the charge of the court, and the cause was remanded for a new trial. Upon application of plaintiff in error the court of appeals was directed to certify its record to this court. The right of defendant in error to recover in this action, if at all, is by force of the provisions of Sections 7563 and 7565, General Code. Section 7563 provides, among other things, that the board of county commissioners shall protect, by suitable guardrails, all perpendicular wash banks more than eight feet in height, where such banks have an immediate connection with a public highway, or are adjacent thereto, in an unprotected condition; and under the provisions of Section 7565 the county is made liable for all accidents or damages as a result of the failure to comply with the provisions of Section 7563. Section 7563, being in derogation of the common law, is not to be extended beyond the plain meaning of its terms. The Board of Opinion Per Curiam. County Commissioners of Franklin County v. Darst, 96 Ohio St., 163. Section 7563 does not require the county commissioners to protect by suitable guardrails all wash banks more than eight feet in height — those to be protected are perpendicular wash banks. Assuming for the purposes of this case that the bank in question is a wash bank, it appears from the evidence that its slope was made a foot and onehalf to the foot and its declivity was of an angle of approximately forty-five degrees, which is certainly not a perpendicular bank within the plain meaning of that term as used in the section under consideration. We are constrained to hold, therefore, that the statute upon which defendant in error relies for a recovery has no application here and that the judgment of the court of common pleas was correct. Judgment of the court of appeals reversed and that of the court of common pleas affirmed. NICHOLS, C. J., NEWMAN, JONES, MATTHIAS and JOHNSON, JJ., concur. |