Opinion
No. 29139
Decided July 1, 1942.
Workmen's compensation — Village marshal or chief of police — Salary certified to Industrial Commission — Section 1465-65, General Code — Commission refused to charge sum and render statement to county auditor — Right to participate not dependent upon contribution by village to fund — Sections 1465-67 and 1465-68, General Code — Writ of mandamus denied — Relator not beneficially interested in relief sought — Section 12287, General Code.
IN MANDAMUS.
This is an original action in mandamus in this court to require the respondents to charge and send a statement to the Auditor of Hamilton county for the proper contribution to the public insurance fund to be paid by the village of Glendale in that county, based on the salary of the relator as village marshal of that village for the year 1941.
The record consists of the relator's petition and a demurrer of the respondents to the petition on the grounds that (1) the relator has not legal capacity to sue, and (2) that the petition does not state facts which show a cause of action. The parties have agreed that the court's ruling on the demurrer shall be dispositive of the case, and the judgment may be entered accordingly.
The petition, after reciting the capacity of relator and respondents, alleges that on March 13, 1942, the clerk of the village of Glendale made a supplemental report to the Auditor of Hamilton county under Section 1465-65, General Code, certifying the salary of the village marshal in 1941 as $2,220 on which to base the proper contribution of the village to the public insurance fund.
Thereupon the county auditor certified the marshal's salary to the commission in a supplemental report made pursuant to the above-mentioned statute, and requested that the total amount of money expended for the pay roll of the employees of the village be increased accordingly, and that a statement based on the increased amount for the proper contribution to the public insurance fund be rendered by the Industrial Commission to the county auditor.
The petition further alleges that the Industrial Commission, without sufficient cause, refused to charge such sum and to render a statement to the county auditor as requested, although the village of Glendale and county of Hamilton have been and now are ready to pay such contribution; and that such refusal on the part of the Industrial Commission deprives the relator, as such chief of police, from participation in the benefits of the workmen's compensation fund.
Mr. Larz R. Hammel, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. Aubrey A. Wendt, for respondents.
The Attorney General, on behalf of the respondents, in support of their demurrer to relator's petition claims that it must affirmatively appear that the relator is a party beneficially interested in the relief sought (Section 12287, General Code); and that, while the village is an employer under the Workmen's Compensation Act, the relator, as chief of police of the village of Glendale, is not an employee but an officer of the village, and in case of injury or death in performing the duties of his office, neither he nor his dependents are entitled to participate in the workmen's compensation fund. Section 1465-61, General Code.
The Attorney General further claims that relator's right to participate in the workmen's compensation fund is not in any way dependent upon the contribution by the village to such fund. This court is in accord with this claim.
Section 1465-68, General Code, provides, in part, that "every employee mentioned in Section 1465-61, who is injured, and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, provided the same was not purposely self-inflicted, on and after January 1, 1914, shall be entitled to receive, either directly from his employer as provided in Section 1465-69, or from the state insurance fund, such compensation for loss sustained on account of such injury or death, and such medical, nurse and hospital services and medicines, and such amount of funeral expenses in case of death as provided by Sections 1465-79 to 1465-87 inclusive."
The right to compensation is not made contingent or dependent upon a contribution or the correctness of a contribution to the public insurance fund by the employer. If the village of Glendale has been deficient in its report to the commission, or in its contribution to the fund, the commission, under authority of Section 1465-65, General Code, may take such delinquency or deficiency into consideration in computing current or future contributions, and Section 1465-67, General Code, furnishes authority to the commission to take all appropriate action under the circumstances. The determination to exercise, or the mode of exercising such discretion is a matter of no concern to the relator since his right to compensation, if any, is not dependent thereon.
The court finds it unnecessary to determine whether the relator is an officer of the village of Glendale. If he is such officer, he is not covered by the Workmen's Compensation Act. If he is not such officer, his status is not affected by any failure of the village to make contribution to the insurance fund.
Since it does not appear that the relator is beneficially interested in the action sought to be required of the respondents, the demurrer to the petition is sustained and a writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART, ZIMMERMAN and BETTMAN, JJ., concur.