Opinion
No. 28202
Decided December 11, 1940.
Mandamus — Director of highways not proper party, when — State civil service employee wrongfully excluded from position — Writ issued to reinstate employee but not to recover salary — Director not required to issue warrant.
APPEAL from the Court of Appeals of Franklin county.
The relator instituted an action in mandamus in the Common Pleas Court of Franklin county to require the Director of Highways of the state of Ohio, as respondent, to reinstate him to his position as supervisor of highway route marking in Division 3 of the Department of Highways to which he had been appointed under civil service, and to require the respondent to issue the necessary warrants for the payment of his salary at the rate of $170 per month for the period during which he was wrongfully separated from his position.
The court found that the position of relator had been wrongfully abolished on January 7, 1939. It ordered the respondent to restore him to the payroll of the department as of that date, and to execute and issue the necessary warrants to pay relator's salary to the date of his reinstatement. No one had been appointed to fill the position which had been held by relator, and the salary had not been paid to any other person.
Respondent appealed from the judgment of the Common Pleas Court, insofar as it directed and commanded him to issue the warrants for back salary, and the Court of Appeals reversed the judgment to that extent. Thereupon, relator filed a motion in this court to require the Court of Appeals to certify its record, which motion was allowed, bringing the case to this court for final review.
Mr. J.L. Mason and Messrs. McFadyen, Swisher Warden, for appellant.
Mr. Thomas J. Herbert, attorney general, Mr. John P. Walsh and Mr. Herbert K. Ames, for appellee.
The sole question made by the record in this case is whether an employee of the state highway department appointed under civil service may invoke the remedy of mandamus to require the state highway director to issue a warrant for the payment of the salary of such employee for a period of time during which he was wrongfully excluded from his position of employment.
The only respondent in this case is the director of highways. Under the law, he is not charged with the duty of issuing warrants for salaries of officers or employees in his department. There is, therefore, no proper respondent in this case against whom a writ of mandamus for the issuance of a salary warrant could be properly directed.
The disposition of the case on this issue makes it unnecessary to consider other questions made by the record.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.