228 N.E.2d 631 (Ohio 1967), 40506, State ex rel. Pressley v. Industrial Commission

Docket Nº40506.
Citation228 N.E.2d 631, 11 Ohio St.2d 141
Opinion JudgeO'NEILL, J.
Party NameThe STATE ex rel. PRESSLEY, Appellee, v. INDUSTRIAL COMMISSION of Ohio, Appellant.
AttorneyRoemisch & Wright and Thomas R. Chase, Cleveland, for appellee., William B. Saxbe, Atty. Gen., Donald M. Colasurd, Columbus, Tony R. Kidd, Marysville, and William Culbert, Columbus, for appellant. Messrs. Roemisch & Wright and Mr. Thomas R. Chase, for appellee., Mr. William B. Saxbe, attorney ge...
Judge PanelZIMMERMAN, MATTHIAS and HERBERT, JJ., concur. TAFT, C. J., and SCHNEIDER and PAUL W. BROWN, JJ., dissent. HERBERT, Judge (concurring). TAFT, Chief Justice (dissenting). SCHNEIDER and PAUL W. BROWN, JJ., concur in the foregoing dissenting opinion.
Case DateJuly 19, 1967
CourtSupreme Court of Ohio

Page 631

228 N.E.2d 631 (Ohio 1967)

11 Ohio St.2d 141

The STATE ex rel. PRESSLEY, Appellee,

v.

INDUSTRIAL COMMISSION of Ohio, Appellant.

No. 40506.

Supreme Court of Ohio.

July 19, 1967

Page 632

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Page 633

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Page 634

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Page 635

Syllabus by the Court

1. Where a public officer or agency is under a clear legal duty to perform an official act, and where there is no plain and adequate remedy in the ordinary course of the law, an action in mandamus will lie originally in the Supreme Court or in the Court of Appeals.

2. When a petition in mandamus, which states a proper cause of action in mandamus, is filed in the Supreme Court or in the Court of Appeals, such courts are required to exercise their original jurisdiction in mandamus, which is conferred upon those courts by Sections 2 and 6, respectively, of Article IV of the Ohio Constitution. (State ex rel. City of Toledo v. Lynch, Aud., 87 Ohio St. 444, 101 N.E. 352, and State ex rel. Selected Properties, Inc. v. Gottfried, 163 Ohio St. 469, 127 N.E.2d 371, approved and followed.)

3. When a petition stating a proper cause of action in mandamus is filed originally in the Supreme Court or in the Court of Appeals, and it is determined that the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal, neither the Supreme Court nor the Court of Appeals has authority to exercise jurisdictional discretion but those courts are required to deny the writ. (State ex rel. Shively v. Nicholas, Judge, 151 Ohio St. 179, 84 N.E.2d 918, and State ex rel. Sibarco Corp. v. City of Berea, 7 Ohio St.2d 85, 218 N.E.2d 428, approved [11 Ohio St.2d 142] and followed.) (Note that paragraph two of the syllabus of State ex rel. Wesselman v. Board of Elections of Hamilton County, 170 Ohio St. 30, 162 N.E.2d 118, which is contra to this rule, was overruled in paragraph one of the syllabus in State ex rel. Sibarco Corp. v. City of Berea, supra.)

4. Where a petition filed in the Supreme Court or in the Court of Appeals is in the form of a proceeding in mandamus but the substance of the allegations makes it manifest that the real object of the relator is for an injunction, such a petition does not state a cause of action in mandamus and since neither of Supreme Court nor the Court of Appeals has original jurisdiction in injunction the action must be dismissed for want of jurisdiction. (State ex rel. Stine v. McCaw, 136 Ohio St. 41, 23 N.E.2d 631; State ex rel. v. Hahn, 50 Ohio St. 714, 35 N.E. 1052; State ex rel. Libbey-Owens-Ford Glass Co. v. Industrial Commission, 162 Ohio St. 302, 123 N.E.2d 23, approved and followed.)

5. Where a petition stating a proper cause of action in mandamus is filed originally in the Supreme Court, and it is determined that there is no plain and adequate remedy in the ordinary course of the law by way of an appeal, the Supreme Court has no authority to exercise jurisdictional discretion and the refusal to exercise jurisdiction on the ground that either of the extraordinary remedies of statutory mandatory injunction (Section 2727.01 et seq., Revised Code) or statutory mandamus (Section 2731.01 et seq., Revised Code) is available in the Common Pleas Court, is constitutionally impermissible under the last sentence of Section 2 of Article IV of the Ohio Constitution. (State ex rel. City of Toledo v. Lynch, Aud., 87 Ohio St. 444, 101 N.E. 352; State ex rel. Libbey-Owens-Ford Glass Co. v. Industrial Commission, 162 Ohio St. 302, 123 N.E.2d 23; State ex rel. Killeen Realty Co. v. City of East Cleveland, 169 Ohio St. 375, 160 N.E.2d 1; State ex rel. Riley Construction Co. v. East Liverpool City School Dist. Bd. of Edn., 10 Ohio St.2d 25, 225 N.E.2d 246; Perkins v. Village of Quaker City, 165 Ohio St. 120, 133 N.E.2d 595, approved and followed.)

Page 636

6. 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 [11 Ohio St.2d 143] 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. Village of Quaker City, 165 Ohio St. 120, 133 N.E.2d 595; State ex rel. Selected Properties, Inc. v. Gottfried, 163 Ohio St. 469, 127 N.E.2d 371; State ex rel. Killeen Realty Co. v. City of East Cleveland, 169 Ohio St. 375, 160 N.E.2d 1; State ex rel. Riley Construction Co. v. East Liverpool City School Dist. Bd. of Edn., 10 Ohio St.2d 25, 225 N.E.2d 246, approved and followed.)

7. The Supreme Court or the Court of Appeals, after determination that there is no plain and adequate remedy in the ordinary course of the law in considering the allowance or denial of the writ of mandamus on the merits, will exercise sound, legal and judicial discretion based upon all the facts and circumstances in the individual case and the justice to be done.

8. Mandamus will not lie to enforce a private right against a private person.

9. Mandamus will lie to permit a private individual to compel a public officer to perform an official act, where such officer is under clear legal duty to do so, and where the relator has an interest, such as that of a taxpayer, or he is being denied a private right or benefit by reason of such public officer's failure to take action to perform that act which he is under a clear legal duty to perform.

10. 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? (d) Whether, on the question of the allowance or denial of the writ on the merits, the Court of Appeals abused its discretion. [11 Ohio St.2d 144]

Relator filed with the Bureau of Workmen's Compensation an application for workmen's compensation benefits, alleging that on May 11, 1962, while employed by Bensan Plastics, Inc., she was operating a drill press and punctured and injured her left thumb. The application was approved and benefits were paid accordingly.

Thereafter, on October 11, 1963, relator filed with the Industrial Commission an application for an additional award, alleging that the thumb injury resulted from the employer's violation of specific safety requirements contained in Bulletin No. 203, Specific Requirements and General Safety Standards of the Industrial Commission of Ohio For Workshops and Factories, Chapter 2, Section 14, which in pertinent part reads:

'A. All stationary machinery shall be securely fastened to floors on foundations.

'b. Portable machinery mounted upon trucks, or bases, shall be securely fastened thereto, and such truck or base shall be so locked or blocked as to prevent movement or shift while such machine is in operation.'

The application was denied by the Industrial Commission by order dated February 10, 1965, and a motion for rehearing was denied by the commission by order dated June 25, 1965.

On August 12, 1965, relator filed an action in Mandamus in the Court of Appeals

Page 637

for Franklin County to compel the Industrial Commission to grant the application. The Court of Appeals issued a peremptory writ of mandamus, commanding the Industrial Commission to grant relator's application.

The cause is before this court upon appeal as a matter of right.

Roemisch & Wright and Thomas R. Chase, Cleveland, for appellee.

William B. Saxbe, Atty. Gen., Donald M. Colasurd, Columbus, Tony R. Kidd, Marysville, and William Culbert, Columbus, for appellant. [11 Ohio St.2d 145]

O'NEILL, Judge.

The first question which must be determined is: May this court assert or adhere to a rule which prevents it and the Court of Appeals from exercising constitutional original jurisdiction in mandamus on the ground that the remedy of statutory mandatory injunction (Section 2727.01 et seq., Revised Code) is available in the Common Pleas Court to provide the relief sought?

The issue has been raised that the availability of statutory mandatory injunction is sufficient ground for this court to hold that it is error for this court and the Court of Appeals to exercise jurisdiction in an original mandamus action.

It is settled that the availability of statutory mandamus under Section 2731.01 et seq., Revised Code (formerly Section 12283 et seq., General Code; Section 6741 et seq., Revised Statutes, as amended in 1880), is not ground for this court to adopt or adhere to a rule that an action in mandamus will not lie originally in this court except with the permission of the court.

From the decision announced in State ex rel. Werden v. Williams, Clerk (1875), 26 Ohio St. 170, until the pronouncement of the law in State ex rel. City of Toledo v. Lynch, Aud. (1913), 87 Ohio St. 444, 101 N.E. 352, this court adhered to a rule that mandamus must be filed in the District Court, and that an action in mandamus could not be filed originally in this court without the court's permission, for the reason that 'it can more speedily and conveniently be heard in the District Court.' State, ex rel. Werden v. Williams, Clerk, supra.

State, ex rel. City of Toledo v. Lynch,...

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  • 110 N.E.3d 87 (Ohio App. 8 Dist. 2018), 105400, State ex rel. Branch v. Pitts
    • United States
    • Ohio Court of Appeals of Ohio
    • March 23, 2018
    ...or injunctive relief. Section 2, Article IV, Ohio Constitution; State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967). [2] The complaint for a writ of quo warranto also names as respondents Brandon King, mayor of East Cleveland; Willa Hemm......
  • 341 N.E.2d 311 (Ohio App. 10 Dist. 1975), State ex rel. Ferguson v. Shoemaker
    • United States
    • Ohio Court of Appeals of Ohio
    • May 21, 1975
    ...remedy in the ordinary course of the law. See the first paragraph of the syllabus of State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631 which reads, as follows: [45 Ohio App.2d 91] "Where a public officer or agency is under a clear legal duty to perform ......
  • 390 N.E.2d 782 (Ohio 1979), 78-373, State ex rel. Alford v. Willoughby Civil Service Commission
    • United States
    • Ohio Supreme Court of Ohio
    • May 30, 1979
    ...and that the relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph one of the syllabus. A complaint in mandamus states a claim if it alleges the existence of the legal duty and ......
  • 417 N.E.2d 1375 (Ohio 1981), State ex rel. Byrd v. Board of Elections of Summit County
    • United States
    • Ohio Supreme Court of Ohio
    • March 18, 1981
    ...law. See State, ex rel. Long, v. Bettman (1970), 24 Ohio St.2d 16, 17, 262 N.E.2d 859; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631." Here, the appellant argued to the Court of Appeals, and to this court, that the board of elections had a mandatory......
  • Request a trial to view additional results
1011 cases
  • 110 N.E.3d 87 (Ohio App. 8 Dist. 2018), 105400, State ex rel. Branch v. Pitts
    • United States
    • Ohio Court of Appeals of Ohio
    • March 23, 2018
    ...or injunctive relief. Section 2, Article IV, Ohio Constitution; State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967). [2] The complaint for a writ of quo warranto also names as respondents Brandon King, mayor of East Cleveland; Willa Hemm......
  • 341 N.E.2d 311 (Ohio App. 10 Dist. 1975), State ex rel. Ferguson v. Shoemaker
    • United States
    • Ohio Court of Appeals of Ohio
    • May 21, 1975
    ...remedy in the ordinary course of the law. See the first paragraph of the syllabus of State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631 which reads, as follows: [45 Ohio App.2d 91] "Where a public officer or agency is under a clear legal duty to perform ......
  • 390 N.E.2d 782 (Ohio 1979), 78-373, State ex rel. Alford v. Willoughby Civil Service Commission
    • United States
    • Ohio Supreme Court of Ohio
    • May 30, 1979
    ...and that the relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph one of the syllabus. A complaint in mandamus states a claim if it alleges the existence of the legal duty and ......
  • 417 N.E.2d 1375 (Ohio 1981), State ex rel. Byrd v. Board of Elections of Summit County
    • United States
    • Ohio Supreme Court of Ohio
    • March 18, 1981
    ...law. See State, ex rel. Long, v. Bettman (1970), 24 Ohio St.2d 16, 17, 262 N.E.2d 859; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631." Here, the appellant argued to the Court of Appeals, and to this court, that the board of elections had a mandatory......
  • Request a trial to view additional results
1 books & journal articles
  • Abuse of power: disregarding traditional legal principles to invalidate tort reform.
    • United States
    • Defense Counsel Journal Vol. 67 Nbr. 4, October 2000
    • October 1, 2000
    ...State ex tel. Westchester Estates Inc. v. Bacon, 399 N.E.2d 81, 83 (Ohio 1980). (49.) State ex rel. Pressley v. Ind. Comm'n of Ohio, 228 N.E.2d 631 (Ohio 1967). See also State ex rel. Fenske v. McGovern, 464 N.E.2d 525 (Ohio (50.) 715 N.E.2d at 1116. (51.) Thompson, supra note 6, at 69. (52......