State ex rel. Stine v. McCaw

• Decision Date: 15 November 1939
• Docket Number: 27626.
• Parties: STATE et rel. STINE v. McCAW et al.
• Court: Ohio Supreme Court

23 N.E.2d 631

136 Ohio St. 41

STATE et rel. STINE v. McCAW et al.

No. 27626.

Supreme Court of Ohio

November 15, 1939

Syllabus by the Court.

1. When, in a mandamus action, the complaint made and relief sought against certain respondents are not identical with the complaint made and relief sought against other respondents there is a misjoinder of causes of action and of parties respondent.

2. Since the Supreme Court does not have original jurisdiction in injunction, mandatory injunctive relief will not be granted by that court through an action in mandamus.

In this action the relatrix seeks, by a writ of mandamus, to require the respondents, Thomas W. McCaw, as Chief of the Division of Aid for the Aged, and Charles L. Sherwood, as Director of Public Welfare, to restore her to her former position of supervisor grade 3-B, in that division, which is within the classified service of the state of Ohio and from which she had been discharged; to restore her to her salary in such position; and to require the respondents, Carl W Smith and Ralph W. Emmons, as members of the state Civil Service Commission, to discontinue the incumbency of one Elinor Hixenbaugh, a provisional appointee who, it is claimed, is performing the duties formerly assigned to and performed by the relatrix; and to require respondents to disapprove payment of the salary of such provisional employee performing the duties of the position in question.

The issues to be determined by this court are presented by an amended petition filed by the relatrix and a demurrer thereto filed by the respondents McCaw and Sherwood on the grounds of misjoinder of parties respondent and misjoinder of causes of action; and a demurrer to the amended petition by the respondents Smith and Emmons on the grounds, among others that there is a misjoinder of parties respondent; that separate causes of action against several respondents are improperly joined; and that the amended petition does not state facts which show a cause of action against these last named respondents.

The amended petition alleges that the relatrix has been an incumbent of a classified position in the Division of Aid for the Aged since July, 1934; that as a result of a competitive examination held in April, 1935, she was placed on the female list of eligibles to permanent employment in the department above named, and that after several promotions she was, on April 29, 1938, appointed to the position above named; that the duties of the position are essential and necessary to the proper administration of the department under the law; that she was discharged effective March 1, 1939, by respondents McCaw and Sherwood from her position on the alleged ground that her position was abolished and no longer necessary or essential, whereas, in fact, such position in the classified service is essential and necessary to the government of Ohio and the Division of Aid for the Aged, and is being...