# State ex rel. Durek v. Masheter

> Ohio Supreme Court · February 8, 1967 · 9 Ohio St. 2d 76

URL: https://www.frixlaw.com/law-library/cases/6753757

## Case

- **Full name:** The State, ex rel. Durek, d. b. a. Economy Market and Carry Out v. Masheter, Director of Highways
- **Court:** Ohio Supreme Court
- **Decided:** February 8, 1967
- **Citations:** 9 Ohio St. 2d 76; 38 Ohio Op. 2d 202; 223 N.E.2d 601; 1967 Ohio LEXIS 417
- **Precedential status:** Published
- **Opinion:** Concurrence by Herbert
- **Judges:** Brown, Herbert, Matthias, Neill, Schneider, Taft, Zimmerman
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6753757

## Opinion text

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:
“Whatever remedy relator might have should have been asserted in the Court of Common Pleas of Franklin County by an appropriate form of action — mandatory injunction or statutory mandamus.”
The court fails to recognize that those suggested remedies are 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 the opinion, Judge Zimmerman said: “The authorities are agreed that injunction is an extraordinary *78 remedy equitable in nature, and that its issuance may not be demanded as a 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 availability of mandamus or of mandatory injunction in the Common Pleas Court does not prevent 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 of mandamus in the Common Pleas Court affected the authority of the Courts of Appeals or of the Supreme Court to hear actions in mandamus, those courts have 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6753757. Public record. Not legal advice.