Opinion
No. 74-932
Decided December 17, 1975.
Mandamus — To compel payment of pay increase to classified state employee — Not available, when — Federal injunction.
IN MANDAMUS.
Relator, William H. Lee, filed a complaint in mandamus in this court seeking to compel respondents, the Auditor of State, Treasurer of State and the Director of Administrative Services, to pay him for the period from December 26, 1971, through March 10, 1972, the difference between the hourly rate of $2.52, which he received for that period, and $2.90 per hour.
An agreed statement of facts filed by the parties to the action provides the information essential to a determination of the cause. It reads in part:
"1. Relator, William H. Lee, is a classified employee of the state of Ohio, and is and was at the time in question classified as Storkeeper II.
"2. On January 15, 1972, the 109th General Assembly passed Senate Bill No. 147 and the bill was signed by the Governor on January 20, 1972. Senate Bill No. 147 changed the rates of pay for employees in the classified state service to be effective at the beginning of the pay period, including January 1, 1972.
"3. Relator, William Lee, during the period from December 26, 1971 through March 10, 1972, was paid at the rate of $2.52 per hour. The rate of pay for his job contained in Senate Bill No. 147, applicable for this period of time, was $2.90 per hour.
"* * *
"7. The Ohio Supreme Court issued a mandate in case No. 72-102 directing the Auditor of State, the Treasurer of State, and the Director of the Department of State Personnel, to pay the increases provided in Senate Bill No. 147. The federal Temporary Emergency Court of Appeals enjoined the state of Ohio on October 25, 1973, `restraining the state of Ohio and its officers from paying salary and wage increases provided for in the pay bill to the extent they exceed the amount authorized by the Pay Board.'
"8. The Economic Stabilization Act authorizing the wage and price freeze expired on May 1, 1974 [ sic].
"9. The Supreme Court of the United States issued its opinion on May 25 [ sic], 1975, affirming the decision of the Temporary Emergency Court of Appeals."
Relator prays that this court "* * * order that respondents pay to him the full amount of salary owed to him as specified in Senate Bill No. 147, retroactive to the beginning of the pay period, which included January 1, 1972, and for such other and further relief to which he may be entitled by law."
Messrs. Lucas, Prendergast, Albright, Gibson, Brown Newman, and Mr. John A. Brown, for relator.
Mr. William J. Brown, attorney general, and Mr. Thomas V. Martin, for respondents.
In State, ex rel. Fry, v. Ferguson (1973), 34 Ohio St.2d 252, 298 N.E.2d 129, the court allowed writs of mandamus compelling respondents therein, including the Auditor and Treasurer of State, to pay classified state employees at the rates of pay provided in S.B. No. 147. It was the court's view, at page 256, in that case "that the federal law regulating the pay of state employees does not supersede the state statute."
After the decision in Fry, supra, the United States, in October 1973, obtained in the Temporary Emergency Court of Appeals an injunction restraining the state of Ohio from violating the Economic Stablization Act of 1970, as amended, and from paying the salary increases provided for in the pay bill. United States v. Ohio (1973), 487 F.2d 936. The judgment of the Temporary Emergency Court of Appeals was affirmed in May 1975, Fry v. United States (1975), ___ U.S. ___ , 44 L. Ed. 2d 363, which was after the Economic Stabilization Act had expired on April 30, 1974.
Relator cites United States v. California (1974), 504 F.2d 750. In that case the United States sought to enjoin the state of California from implementing a state employee pay increase which the Supreme Court of California had directed state officials to pay on April 19, 1974, the decision becoming final on May 19, 1974. The action was filed by the United States on May 8, 1974, which was after expiration of the Economic Stabilization Act.
Section 218 of the Economic Stabilization Act (Section 1904 note, Title 12, U.S. Code) provided that the authority to enforce orders and regulations under the act expired on April 30, 1974, but that such expiration should not "affect any action or pending proceedings * * * not finally determined on such date, nor any action or proceeding based upon any act committed prior to May 1, 1974." Finding "neither of the exceptions to Section 218 * * * applicable," (504 F.2d at page 757) the Temporary Emergency Court of Appeals dismissed the government's complaint for lack of jurisdiction.
It is relator's position that the injunction issued by the Temporary Emergency Court of Appeals relative to Ohio's pay increases is no longer effective for the reasons stated in the California case. There is, however, a crucial distinction between the California case and the instant case. The decision of the California court authorizing payment came after expiration of the Economic Stabilization Act, whereas here the government's injunction was obtained while the act was in force. This order was affirmed by the Supreme Court of the United States.
"In order for relator to be entitled to a writ of mandamus he must show two things: (1) A clear legal right to the relief prayed for ( State, ex rel. Board of Edn., v. Griffin, 161 Ohio St. 537), and (2) a clear legal duty on the respondent to perform the act ( State, ex rel. Clink, v. Smith, 16 Ohio St.2d 1)." State, ex rel. Long, v. Bettman (1970), 24 Ohio St.2d 16, 17, 262 N.E.2d 859. See State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631.
Relator here has established neither a clear legal right to the relief prayed for, nor a clear legal duty on the part of respondent to perform the act.
Therefore, the writ is denied.
Writ denied.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.