dissenting. I concur in paragraphs one, three, four,1 seven, eight and ten of the syllabus and in paragraph two thereof except for the reference therein to State, ex rel. Selected Properties, Inc., v. Gottfried, 163 Ohio St. 469; but I dissent from the judgment and from paragraphs five and six of the syllabus so far as they indicate that mandatory injunction cannot be an adequate remedy in the ordinary course of the law that will support denial of a writ of mandamus, and from paragraph nine thereof so far as it approves use of mandamus for enforcement of a private right of the relator where such enforcement is of no interest to the public.
In support of its statements that a writ of mandamus cannot be denied on the ground that relator has an adequate remedy by way of mandatory injunction, the majority opinion contends that such a conclusion is required by the last sentence added to Section 2 of Article IV of the Ohio Constitution in 1912 and reading: “No law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the Supreme Court.”2
A similar contention with respect to the original jurisdiction of this court was considered and rejected in State, ex rel. Lindley, v. Maccabees (1924), 109 Ohio St. 454, 142 N. E. 888. *166There, paragraph two of the syllabus states, with respect to the original jurisdiction in quo warranto conferred on this court, that that constitutional section as so amended “safeguards the remedy only where the law empowers its exercise.”
In the opinion by Jones, J., it is stated at page 460:
“ # * * In the adoption of this provision it was undoubtedly the purpose of the constitutional clause to make ineffective the rule of this court theretofore adhered to, which required its leave before its original jurisdiction could be invoked. That this purpose was attained and its former requirement for leave to file a petition in a case of original jurisdiction rendered ineffective is conclusively shown by the syllabus, and by Chief Justice Shauck’s opinion, in State, ex rel. City of Toledo, v. Lynch, 87 Ohio St. 444, 101 N. E. 352. ”3
Such a contention (this time with respect to mandamus) was again considered and rejected in State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission (1954), 162 Ohio St. 302, 123 N. E. 2d 23. There, it is stated in the majority opinion, at page 305:
“Section 2, Article IV of the Ohio Constitution, provides in part as follows:
“ ‘It [the Supreme Court] shall have original jurisdiction in * * * mandamus * * * and such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law. * * # No law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the Supreme Court. ’
“No statutory law has been called to our attention which confers revisory jurisdiction directly on the Supreme Court over decisions of the Industrial Commission in administering the compensatory provisions of the Workmen’s Compensation Act.
“This court ruled in State, ex rel. City of Toledo, v. Lynch, Aud., 87 Ohio St. 444, 101 N. E. 352, that the provision of Section 2, Article TV of the Constitution, that ‘no law shall be passed *167or rule made whereby any person shall be prevented from invoking the original jurisdiction of the Supreme Court,’ originally effective January 1, 1913, is mandatory and that this court may not adopt or adhere to a rule which requires permission to invoke the exercise of its original jurisdiction.
“It is contended that this court in State, ex rel. Allied Wheel Products, Inc., v. Industrial Commission, supra [161 Ohio St. 555], and in State, ex rel. D. L. Auld Co., v. Morse et al., Industrial Commission, supra [161 Ohio St. 561], did adopt a rule which impairs the right of a litigant to invoke the original jurisdiction of the Supreme Court in mandamus proceedings. There is nothing in the Allied Wheel or the Auld case which prevents anyone from filing a petition in mandamus in the Supreme Court and having a hearing thereon, but the court in the exercise of its discretion may deny the extraordinary writ of mandamus. ’ ’
On page 308 in the majority opinion, 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.”4 (Emphasis added.)
When jurisdiction in mandamus was first conferred upon the Supreme Court by the Constitution of 1851, the jurisdiction *168thereby conferred and the restrictions upon its exercise were indicated by the Report of the Commissioners on Practice and Pleadings and by the Code of Civil Procedure which they prepared and which the General Assembly adopted in 1853. On page 224 of that report, it is stated that they found it necessary to prepare a chapter on mandamus “but the proceedings under this chapter will be about the same as before. ’ ’ Included in this chapter is Section 570 which reads in part:
‘ ‘ This writ may not be issued in any case, where there is a plain and adequate remedy in the ordinary course of the law. ’ 5
Substantially, the same provisions have been in our statutes since that time and are now found in Section 2731.05, Revised Code, which reads:
“The writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law. ’ ’
In an article on mandamus prepared by the late Judge Hart of this court and fully supported by the citation of decisions of this court, it is stated in 35 Ohio Jurisprudence 2d 278, Section 31:
‘ ‘ The established rule in Ohio is that, as used in the statute precluding mandamus when there is a plain and adequate remedy in the ordinary course of law, the term ‘in the ordinary course of the law’ includes equitable as well as legal remedies; and where there is an adequate equitable remedy, mandamus will not lie. The reason for this holding is that since the abolition of forms of action under the Code of Civil Procedure, there is *169but one form of action, known as a ‘civil action,’ and this includes all suck judicial proceedings as were previously known either as actions at law or suits in equity; and therefore, any Code action, whether the substantive right or liability is legal or equitable in nature, is a civil action at law and is therefore a remedy in the ordinary course of the law. Accordingly, there can be no remedy by mandamus if injunction will afford adequate relief.”
Section 2727.01, Revised Code, reads:
“An injunction is a command to do or refrain from doing a particular act.”
It may be noted that, prior to adoption of the General Code in 1910, Section 5571, Revised Statutes, had defined an injunction as “a command to refrain from a particular act.” At that time, the distinction apparently made in the syllabus and the majority opinion between a preventive and a mandatory injunction (regarding the former but not the latter as an adequate remedy in the ordinary course of the law) would have had some statutory basis.
In the following cases this court denied a writ of mandamus because the relator had an adequate remedy by way of mandatory injunction: State, ex rel. Stine, v. McCaw (1939), 136 Ohio St. 41, 23 N. E. 2d 631 (paragraph two of the syllabus) ;5 State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, supra (162 Ohio St. 302), at 308 and 309 in majority opinion, and paragraph two of the syllabus; State, ex rel. Adams, v. Rockwell et al., Bd. of Edn. (1957), 167 Ohio St. 15, 145 N. E. 2d 665; State, ex rel. Central Service Station, Inc., v. Masheter, Dir. (1966), 7 Ohio St. 2d 1, 218 N. E. 2d 177.
In the following cases this court either affirmed or reversed the Court of Appeals for the reason that a writ of mandamus had or should have been denied because the relator had an adequate remedy by way of mandatory injunction: State, ex rel. Irish, v. Oviatt et al., Commrs. (1910), 83 Ohio St. 460, 94 N. E. 1117; State, ex rel. Roger J. Au & Son, Inc., v. Studebaker et al., *170Commrs. (1963), 175 Ohio St. 222, 193 N. E. 2d 84; State, ex rel Durek, v. Masheter, Dir. (1967), 9 Ohio St. 2d 76, 223 N. E. 2d 601; State, ex rel. Danford, v. Karl, Mayor (1967), 9 Ohio St. 2d 79, 223 N. E. 2d 602; State, ex rel. Federal Homes Properties, Inc., v. Singer, Bldg. Commr. (1967), 9 Ohio St. 2d 95, 223 N. E. 2d 824.
The foregoing decisions do not require the conclusion that this court can never issue a writ of mandamus. For example, there will undoubtedly he cases where (to use the words of the syllabus in State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, supra (162 Ohio St. 302), the “controversy” is not “of a strictly private nature,” and where the time required to obtain a decision of this court will he a proper factor in determining that the public, whom the relator in such a case would represent, does not have an adequate legal or equitable remedy. See for example State, ex rel. Nimon, v. Springdale (1966), 6 Ohio St. 2d 1, 215 N. E. 2d 592, and State, ex rel. Foreman, v. Brown, Secy, of State (1967), 10 Ohio St. 2d 139, 226 N. E. 2d 116. Obviously, the instant case is not such a case.
Undoubtedly, this court has previously allowed writs of mandamus in cases such as the instant case where no one contended that mandamus was not a proper remedy. Section 2505.-21, Revised Code, expressly authorizes this court to disregard an error not “specifically pointed out in the record and separately argued by brief.” In such an instance, the decision of the court so far as it might recognize mandamus as a proper remedy where there was an adequate remedy by way of mandatory injunction would represent no precedent on the question. See State, ex rel. Gordon, City Atty., v. Rhodes, Mayor (1952), 158 Ohio St. 129, 107 N. E. 2d 206 (paragraph one of syllabus).
SchneideR and Bbowu, JJ., concur in the foregoing dissenting opinion,
I assume that the last word “jurisdiction” in paragraph 4 is not used in its ordinary sense. The court obviously has jurisdiction but should not exercise it in the instance specified. In other words (to borrow some of the words used by the majority opinion in the instant case in summarily disposing of the per curiam opinions in State, ex rel. Adams, v. Rockwell, supra [167 Ohio St. 15], and State, ex rel. Roger J. Au & Son, Inc., v. Studebaker, supra [175 Ohio St. 222]) paragraph 4 of the syllabus of the instant case “does not state the rule as accurately and clearly as it could be stated.”
It may be noted that there is no such provision with respect to the original jurisdiction of the Court of Appeals, which is what is involved in the instant case.
The Lynch case involved an application for leave to file an original petition in mandamus in the Supreme Court. The holding of the case was that the application should be denied “since the relator may file his petition without leave.” (See 87 Ohio St. at 450.)
This necessarily follows from the nature of the writ of mandamus. As stated in Moses, The Law of Mandamus 16, which was published in 1866 a few years after jurisdiction in mandamus was first given to the Supreme Court:
“* * * And according to the theory of the common law, the King is the fountain of justice, and where the laws did not afford a remedy, and enable the individual to obtain his right, by the regular forms of judicial proceedings, the prerogative powers of the sovereign were brought in aid of the ordinary judicial powers of the court, and the mandamus was issued in his name to enforce the execution of the law.”
See also 8 Blackstone’s Commentaries 110.
Thus, in effect, mandamus could be called a “last resort” remedy.
Obviously, as the General Assembly has provided additional remedies for the enforcement of legal rights, the necessity for resort to the prerogative writ of mandamus has diminished.
Paragraph 2 of the syllabus of State, ex rel. Stine, v. McCaw, reads:
“Since the Supreme Court does not have original jurisdiction in injunction, mandatory injunctive relief will not be granted by that court through an action in mandamus.” (Emphasis added.)