Opinion
No. 27342
Decided January 11, 1939.
Mandamus — Payment of prevailing wages and penalty to laborer on public improvement — Section 17-3 et seq., General Code — Writ not issued when plain and adequate remedy at law available — Section 12287, General Code — Or to compel observance of law generally.
IN MANDAMUS.
Relator, in his petition filed in this court, alleges he is employed in the civil service, as a welder (a semiskilled laborer), in the Department of Public Works of the city of Cincinnati, in which department are employed approximately 300 persons, and he brings this action on behalf of himself and all others similarly situated.
After alleging the election and qualification of the respondent as auditor of that city, relator pleads that for nine years he was employed by that city in repairing machinery used in the repair, construction and reconstruction of roads, streets, alleys, sewers, ditches and other public improvements in that city, and that for his services during the last three years he was paid hourly rates below the prevailing wage in Hamilton county for that work as found by the labor unions and by the Department of Industrial Relations of Ohio, to his damage in the amount of $3,380.
The prayer of his petition is for a writ of mandamus requiring the respondent to pay relator and others similarly situated the prevailing wage fixed for Hamilton county, to pay the amount or amounts due as the difference between what they were paid and what they should have been paid and to pay the penalty provided by statute.
The cause was submitted to the court after argument upon the demurrer by the respondent to the petition.
Mrs. Agnes B. Dickerson, for relator.
Mr. John D. Ellis, city solicitor, and Mr. Ed. F. Alexander, for respondent.
Relator predicates this proceeding upon Section 17-3 et seq., General Code.
A right of action is given in the last paragraph of Section 17-5, General Code, which reads:
"Where a public authority constructs a public improvement with its own forces it shall be the duty of such authority to pay a rate or rates of wages which shall not be less than the rate or rates of wages so fixed as herein provided. Any mechanic or laborer paid less than such rate or rates by any public authority shall have a right of action against such public authority for the difference between the fixed rate of wages and the amount paid to him, and in addition thereto a penalty equal in amount to such difference."
Section 12287, General Code, provides that the writ of mandamus "must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law." That section precludes the issuance of a writ in the present proceeding.
The relator insists that the writ should issue to prevent a multiplicity of actions. However, this court has held in Cullen, as Vice Mayor, v. State, ex rel. City of Toledo, 105 Ohio St. 545, 138 N.E. 58, and State, ex rel. Gaston, v. Brindle, Supt., 128 Ohio St. 260, 191 N.E. 99, that mandamus will not issue to compel the observance of law generally.
The demurrer to the petition will be sustained and the relator not desiring to plead further, a writ of mandamus will be denied.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.