State ex rel. Lorain County Sav. & Trust Co. v. Board of County Com'rs of Lorain County

• Decision Date: 16 November 1960
• Docket Number: No. 36365,36365
• Citation: 171 Ohio St. 306,170 N.E.2d 733
• Court: Ohio Supreme Court
• Parties: , 13 O.O.2d 408 STATE ex rel. LORAIN COUNTY SAVINGS & TRUST CO. et al., Appellants, v. BOARD OF COUNTY COMMISSIONERS OF LORAIN COUNTY, Appellee.

Page 306

171 Ohio St. 306

170 N.E.2d 733, 13 O.O.2d 408

STATE ex rel. LORAIN COUNTY SAVINGS & TRUST CO. et al., Appellants, v. BOARD OF COUNTY COMMISSIONERS OF LORAIN COUNTY, Appellee.

No. 36365.

Supreme Court of Ohio.

Nov. 16, 1960.

Fauver & Fauver, Elyria, for appellants.

Paul J. Mikus, Pros. Atty., and Andrew J. Warhola, Lorain, for appellee.

PER CURIAM.

Was the Court of Appeals in error in holding that the petition is subject to demurrer?

Section 2731.05, Revised Code, provides that 'the writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law.' This principle was recognized in State ex rel. Libbey-Owens-Ford Glass Co. v. Industrial Commission, 162 Ohio St. 302, at page 308, 123 N.E.2d 23, at page 27, where it is stated:

'A careful review of the decisions of this court indicates that the following principles are to be applied in considering whether the Supreme Court in the exercise of its discretion should grant the extraordinary writ of mandamus under its constitutional powers.

'1. The relator must be the party beneficially interested.

'2. Before the writ may issue, it must appear affirmatively that there is no plain and adequate remedy in the ordinary course of the law, including equitable remedies.

'3. The extraordinary writ of mandamus may not be used as a substitute for a mandatory injunction.

'4. It may not be used where the purpose of the relator is primarily the enforcement or protection of purely private rights.'

The relators in the instant action are parties beneficially interested. However, they have an adequate ordinary remedy by way of injunction. State ex rel. Adams v. Rockwell et al., 167 Ohio St. 15, 145 N.E.2d 665.

Relators contend that the principles announced in the Libbey-Owens-Ford case, supra, are not applicable to the Court of Appeals or to the exercise of discretion by that court in mandamus actions originating therein. In State ex rel. Wesselman v. Board of Elections of Hamilton County, 170 Ohio St. 30, 162 N.E.2d 118, paragraph two of the syllabus reads:

'A Court of Appeals that allows a writ of mandamus to a relator does not thereby abuse its discretion merely because such relator also has an adequate remedy in the ordinary course of the law.'

That decision not only recognizes that the Court of Appeals has the same discretionary power with respect to allowance of a writ of mandamus as this court does in such cases but also illustrates the reluctance...