Opinion
No. 35822
Decided January 28, 1959.
Civil service — Removal from position in classified service — Restoration to position — Mandamus — Not available where adequate remedy by appeal.
IN MANDAMUS.
By this action in mandamus, instituted in this court, relator seeks restoration to his position of employment counselor with the Bureau of Unemployment Compensation.
In his petition he alleges that he was employed by the Bureau of Unemployment Compensation under the civil service laws; that he continued to serve in the classified service until he was suspended by the administrator of the bureau "for 30 days, without pay, for disciplinary reasons" and thereafter discharged for "insubordination"; that he sought a clarification of the charges set out in the removal order, asserting that it was neither fair nor proper to dismiss him without such clarification; that thereafter relator filed a notice of appeal with the respondent commission, asserting that the order of removal and allegations of disobedience were vague, invalid and void; that he was afforded no opportunity to answer charges, to produce witnesses or to have a hearing prior to dismissal; that he was not guilty of disobedience; that the reason for his attempted discharge was personal hostility; and that his removal was an arbitrary unreasonable abuse of discretion.
The State Civil Service Commission, on appeal, affirmed the administrator's order of removal.
Relator alleges that he "has no appeal therefrom and no adequate remedy at law except only by order of this court in this action," and prays for a judgment of restoration to his position and recovery of his salary, damages and costs.
Respondents demurred to the petition on the grounds that it does not allege facts sufficient to state a cause of action, and that there is a defect in parties respondent.
The cause is submitted on the petition and the demurrer thereto.
Messrs. Klein Klein, for relator.
Mr. William Saxbe, attorney general, and Mr. Hugh A. Sherer, for respondents.
Section 2731.05, Revised Code, provides that "the writ of mandamus must not be issued where there is a plain and adequate remedy in the ordinary course of the law." Such a remedy, by way of appeal, is afforded relator herein by the Administrative Procedure Act. The respondent Civil Service Commission is an "agency" as defined by Section 119.01, Revised Code, and its orders are appealable to the Court of Common Pleas under authority of Section 119.12, Revised Code, providing in part that "any party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the Court of Common Pleas of Franklin County." Relator did not prosecute such an appeal.
It is contended that an appeal from the affirmance of the order of dismissal is precluded by Section 143.27, Revised Code, a part of the Civil Service Act, which provides that "the commission's decision is final," but that "in the case of * * * any member of the police or fire department of a city an appeal * * * may be had from the decision of the municipal civil service commission to the Court of Common Pleas of the county in which such city is situated." The Administrative Procedure Act, Chapter 119, Revised Code, providing for appeal from an order of an agency to the Court of Common Pleas was enacted subsequent to the Civil Service Act and would govern if there were an inconsistency.
For the reason above stated, the demurrer to the petition is sustained and a writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.