Decided February 8, 1967.
Mandamus — Writ not issued, when — Plain and adequate remedy at law — Mandatory injunction — Municipal employee in unclassified service — Claimed unlawfully discharged.
APPEAL from the Court of Appeals for Lucas County.
The relator was appointed chief of police of the city of Oregon in 1958, which position was, by ordinance, placed in the unclassified service. Later the civil service commission of the city was created and the position of chief of police was placed in the classified service. The ordinance was thereafter amended, placing the office in the unclassified service. Relator served continuously as chief of police from the time of his appointment in 1958 until February 1963, at which time, by recommendation of the mayor and approval of council, he was "relieved of his duties as chief of the Oregon police department."
The relator instituted this action in mandamus in the Court of Appeals against the mayor, the members of city council, and the director of public safety, seeking to be re-established as chief of police, or, in the alternative, as a member of the police department of the city, contending that he was illegally removed by the mayor, and that he is entitled to hold the position until removed under the provisions of the rules and regulations of the civil service commission.
The Court of Appeals denied the writ.
An appeal as of right brings the cause to this court for review.
Mr. Jas. Slater Gibson, for appellant.
Mr. Robert Dorrell and Messrs. Reams, Bretherton Neipp, for appellees.
Relator has a plain and adequate remedy by way of mandatory injunction which he could have sought in the Court of Common Pleas.
A writ of mandamus must not be issued where there is a plain and adequate remedy in the ordinary course of the law. State, ex rel. Central Service Station, Inc., v. Masheter, Dir. of Hwys., 7 Ohio St.2d 1; State, ex rel. Sibarco Corp., v. City of Berea, 7 Ohio St.2d 85.
The judgment of the Court of Appeals is affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER and BROWN, JJ., concur.
The question posed in this case is identical to that posed in State, ex rel. Durek, v. Masheter, Dir. of Hwys., 9 Ohio St.2d 76 : Does the availability of mandatory injunction or mandamus in the Court of Common Pleas preclude a Court of Appeals from hearing an original action in mandamus on the merits? The answer to that must be in the negative for the reasons stated in my concurring opinion in Durek.