Opinion
No. 27775
Decided November 29, 1939.
Workmen's compensation — Mandamus to amend order of Industrial Commission — Appeal from commission to Supreme Court — Section 871-38, General Code, inapplicable — Principles governing issuance of writ of mandamus — Jurisdiction of Industrial Commission.
IN MANDAMUS.
This proceeding was instituted in this court by the filing of a "petition in mandamus to amend an order of defendant." It is alleged that the Industrial Commission granted relator compensation in amounts and for periods pleaded, and that the relator "especially complains as to the fact that the allowance made * * * was wholly unreasonable, unlawful and was based neither on the condition of the health * * * or upon * * * yearly weekly earnings" of the relator. The prayer is that this court review the commission's findings and further "that the former order of the commission be vacated and set aside as being unreasonable, and the commission be ordered to correct and amend its former order on the ground that the compensation granted was inadequate and unreasonable compensation, or show cause why such order should not issue."
The Industrial Commission filed a demurrer upon the grounds that the allegations of the petition show the court does not have jurisdiction of the subject of the action and the petition in mandamus does not contain facts sufficient to constitute a cause of action.
Mr. Samuel T. Kelly, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondent.
Counsel for relator in his brief states that this action is based upon Section 871-38, General Code.
The demurrer will be sustained and a writ of mandamus denied.
Section 871-38, General Code, is inapplicable. Bowes v. Industrial Commission, 123 Ohio St. 155, 174 N.E. 357; State, ex rel. Nichols, v. Gregory et al., Industrial Commission, 130 Ohio St. 165, 198 N.E. 182; U.S. Wall Paper Co. v. Industrial Commission, 132 Ohio St. 372, 7 N.E.2d 798.
Mandamus is not a substitute for appeal. State, ex rel. Barner, v. Marsh, 120 Ohio St. 222, 165 N.E. 843.
The writ will issue to control discretion only where there is an abuse thereof ( State, ex rel. Gilder, v. Industrial Commission, 100 Ohio St. 500, 127 N.E. 595; State, ex rel. Stahl, v. Industrial Commission, 135 Ohio St. 168, 20 N.E.2d 347); where there is a duty specially enjoined by law (Section 12283, General Code); and where there is no adequate remedy at law (Section 12287, General Code).
The Industrial Commission has exclusive authority to determine all questions within its jurisdiction. State, ex rel. Depalo, v. Industrial Commission, 128 Ohio St. 410, 191 N.E. 691; Section 1465-90, General Code. The last named section provides an adequate remedy at law in the event compensation is denied upon a ground enumerated therein.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.