State ex rel. Durek v. Masheter
223 N.E.2d 601
Ohio
1967
Check Treatment

Lead Opinion

Per Curiam.

In our opinion, the Court of Appeals properly denied the writ but not necessarily for the reasons stated, i.e., that no property of relator was “taken” within the meaning ‍​​​​​‌​​‌‌‌​​‌​​​​​​​​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌‌​‌​​​‍of Section 19, Article I of the Constitutiоn of Ohio.

*77Under the recent decisions of this court in State, ex rel. Central Service Station, Inc., v. Masheter, Dir. of Hwys., 7 Ohio St. 2d 1, 218 N. E. 2d 177, and State, ex rel. Sibarco Corp., v. City of Berea, 7 Ohio St. 2d 85, 218 N. E. 2d 428, a writ of mandamus must not be issued where there is a plain and adequate remedy in the ordinary course of the law. Whаtever remedy relator might have should hаve been asserted in the Court of Commоn Pleas of Franklin County by an appropriate form of action — mandatory injunction or statutory mandamus.

The judgment of the Cоurt of Appeals ‍​​​​​‌​​‌‌‌​​‌​​​​​​​​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌‌​‌​​​‍in denying the writ is affirmed.

Judgment affirmed.

Taft, C. J., Zimmerman, Matthias, O ’Neill, Schneider and Brown, JJ., concur.



Concurrence Opinion

Herbert, J.,

concurs in the judgment of the court but ‍​​​​​‌​​‌‌‌​​‌​​​​​​​​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌‌​‌​​​‍does not adopt the reasoning in the per curiam decision.

I agree with the principle of law set out in the language of the court as follows:

“* * * a writ of mandamus must not be issued where there is a plain ‍​​​​​‌​​‌‌‌​​‌​​​​​​​​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌‌​‌​​​‍and adequate remedy in the ordinary course of the law.” J

However, the per curiam decision misapplies the above principle when it states:

“Whatevеr remedy relator might have should have bеen asserted in the Court of Common Pleas of Franklin County by an appropriatе form of action — mandatory injunction or statutory mandamus.”

The court fails to reсognize that those suggested ‍​​​​​‌​​‌‌‌​​‌​​​​​​​​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌‌​‌​​​‍remedies аre not available “in the ordinary course of the law.” They are extraordinary remedies.

The syllabus of Perkins v. Village of Quaker City, 165 Ohio St. 120, establishes that an “injunction is an extraordinary remedy * * *.” (Emphasis added.)

At page 125 in thе opinion, Judge Zimmerman said: “The authorities are agreed that injunction is an extrаordinary *78remedy equitable in nature, and that its issuance may not be demanded as а matter of strict right.”

Mandamus, likewise, is an extraordinary remedy. E.g., State, ex rel. Sibarco Corp., v. City of Berea, 7 Ohio St. 2d 85.

Therefore the avаilability of mandamus or of mandatory injunction in the Common Pleas Court does not prеvent the Court of Appeals from hearing the merits of an action in mandamus. The discerning reader of the court’s decision here will realize that if the availability оf mandamus in the Common Pleas Court affeсted the authority of the Courts of Appеals or of the Supreme Court to hear actions in mandamus, those courts havе lost part of their constitutional grant (Sections 2 and 6, Article IV) of jurisdiction.

The proposition, suggested by the majority, that the availability of mandamus in a lower court destroys its availability in a higher court is refuted in principle by the Ohio Constitution which grants original jurisdiction in mandamus to both the Courts of Appeals and the Supreme Court.