Monaghan v. Richley

Decision Date15 December 1972
Docket NumberNo. 72-454,72-454
Citation32 Ohio St.2d 190,61 O.O.2d 425,291 N.E.2d 462
Parties, 61 O.O.2d 425 MONAGHAN, Appellee, v. RICHLEY et al., Appellants.
CourtOhio Supreme Court

Syllabus by the Court

An action in mandamus is maintainable by a reinstated public employee to recover compensation due him for the period of time during which he was wrongfully excluded from his employment, provided the amount recoverable is established with certainty.

Relator-appellee, George T. Monaghan, herein referred to as relator, filed a complaint in mandamus against J. Phillip Richley, Director of Highways, Joseph T. Ferguson, Auditor of State, and Gertrude W. Donahey, Treasurer of State, herein referred to as respondents, in the Court of Appeals. Relator alleges that he 'botained employment with the Ohio Department of Highways in August of 1967'; that he was 'laid off, effective April 7, 1971'; that 'on July 23, 1971 the State Personnel Board of Review issued an order disaffirming the order of layoff and reinstating relator to his position as of the effective date of the day off'; and that he returned to work 'for the Department of Highways on August 2, 1971.'

Relator alleges further that during the period of the layoff he 'diligently sought employment so as to mitigate the amount of back salary that might ultimately be owing to relator in the event his layoff was disaffirmed.'

The prayer of the complaint is for a writ of mandamus directing respondents to compensate relator 'for the period of time he was illegally deprived of his state employment in the amount of one thousand nine hundred sixteen and 96/100 dollars ($1,916.96), and directing respondents to credit relator with all of his accumulated sick leave in the amount of 3.65 days and credit him with his vacation leave in the amount of 2.40 days * * *.'

In support of relator's allegation that he had sought to mitigate financial loss due to the layoff, he filed a deposition in which he stated that he applied for employment to the Bureau of Employment Services, to several trucking companies and to Campus Martius Museum, but that he succeeded in making only $5.50 during the period of the layoff.

The Court of Appeals allowed the writ of mandamus, and ordered respondents 'to pay relator the amount due for lost wages and to record the appropriate credit to his benefit for the accumulated sick leave credit.' The prayer for vacation benefits was denied.

The cause is now before this court upon an appeal as a matter of right.

Lucas, Prendergast, Albright, Gibson, Brown & Newman, John A. Brown and Timothy J. Jcker, Columbus, for appellee.

William J. Brown, Atty. Gen., Richard A. Szilagyi and John T. Conroy, Columbus, for appellants.

C. WILLIAM O'NEILL, Chief Justice.

The issue presented in this appeal is whether relator is entitled to a writ of mandamus directing respondents to compensate him for the period of time during which he was wrongfully excluded from his employment.

Respondents urge that relator's action is barred by the doctrine of sovereign immunity (Section 16, Article I of the Ohio Constitution), and that mandamus does not lie for the recovery of back pay.

Whether mandamus lies for the recovery of back pay by a public employee is an issue which has been before this court on prior occasions in varying factual situations. In some cases, recovery was sought against local governmental units, e. g., Williams v. State ex rel. Gribben (1933), 127 Ohio St. 398, 188 N.E. 654; State ex rel. White v. Cleveland (1936), 132 Ohio St. 111, 5 N.E.2d 331; State ex rel. Curtis v. DeCorps (1938), 134 Ohio St. 295, 16 N.E.2d 459; State ex rel. Cox v. Hooper (1940), 137 Ohio St. 222, 28 N.E.2d 598; State ex rel. Ford v. Toledo (1940), 137 Ohio St. 385, 30 N.E.2d 553; State ex rel. Giovanello v. Lowellville (1942), 139 Ohio St. 219, 39 N.E.2d 527; State ex rel. Gordon v. Barthalow (1948), 150 Ohio St. 499, 83 N.E.2d 393; State ex rel. Harris v. Haynes (1952), 157 Ohio St. 214, 105 N.E.2d 53; State ex rel. Barborak v. Hunston (1962), 173 Ohio St. 295, 181 N.E.2d 894. In other cases, as in the instant case, recovery was sought against the state, e. g., State ex rel. Bay v. Witter (1924), 110 Ohio St. 216, 143 N.E. 556; State ex rel. Conway v. Taylor (1939), 136 Ohio St. 174, 24 N.E.2d 591; State ex rel. Greenlun v. Beightler (1940), 137 Ohio St. 377, 30 N.E.2d 554; State ex rel. Wilcox v. Woldman (1952), 157 Ohio St. 264, 105 N.E.2d 44.

Recovery for back pay was permitted in a mandamus action in State ex rel. Bay v. Witter, supra (110 Ohio St. 216, 143 N.E. 556). A contrary result was reached, however, in Williams v. State ex rel. Gribben supra (127 Ohio St. 398, 188 N.E. 654). This court's holdings in such cases were summarized by Zimmerman, J., in State ex rel. Wilcox v. Woldman, supra (157 Ohio St. 264, 268, 105 N.E.2d 44, 46), as follows:

'Although courts in other jurisdictions have taken a different view, this court has consistently held that the extraordinary writ of mandamus is not available to a public employee as a means, directly or indirectly, to recover pay or salary during the time he was wrongfully excluded from his position. Williams, Dir. v. State ex rel. Gribben, 127 Ohio St. 398, 188 N.E. 654; State ex rel. White v. City of Cleveland, 132 Ohio St. 111, 5 N.E.2d 331; State ex rel. Curtis v. DeCorps, Dir., 134 Ohio St. 295, 16 N.E.2d 459; State ex rel. Conway v. Taylor, Dir. 136 Ohio St. 174, 24 N.E.2d 591; State ex rel. Greenlun v. Beightler, Dir., 64 Ohio App. 295, 28 N.E.2d 935, affirmed 137 Ohio St. 377, 30 N.E.2d 554; State ex rel. Ford v. City of Toledo, 137 Ohio St. 385, 30 N.E.2d 553.

'In the Williams case cited first above, it is expressly stated in the next to the last paragraph of the per curiam opinion:

"Mandamus will not lie to enforce the payment of a claim unliquidated and indefinite in amount. Whatever view may be entertained by this court with reference to the right of the relator to recover in an action at law compensation or salary, or any portion thereof, for the period of exclusion from office, upon a reexamination of the doctrine annonced in the case of the City of Cleveland v. Luttner, 92 Ohio St. 493, 111 N.E.2d 280, Ann.Cas., 1917D, 1134, we now hold that such question can be considered only in an action at law."

In allowing relator here to recover back pay, the Court of Appeals relied upon its previous holding in Hardin v. Johnson (1971), 30 Ohio App.2d 19, 281 N.E.2d 194. That case involved an action in mandamus for back pay brought by an employee of a state agency, the Public Utilities Commission. The court, after reviewing this court's holdings, drew a distinction between cases involving actions against the state and actions against local governmental units, stating, at page 24 in the opinion 281 N.E.2d at page 197:

'State employee cases would seem to present a different problem than that presented by local government units, although, one state employee case, State ex rel. Conway v. Taylor (1939), 136 Ohio St. 174, 24 N.E.2d 591, follows the rule from Williams and White, mentioning the customary 'unliquidated and indefinite' objection regarding wages claimed. Such position avoids consideration of the distinguishing characteristic of the subdivision cases. In such, an action at law will lie, whereas a suit against the state of Ohio is precluded by the sovereign immunity doctrine which still remains the law in this state.'

No such distinction was made in Wilcox v. Woldman, supra (157 Ohio St. 264, 105 N.E.2d 44), as the cases cited for the general rule denying recovery in mandamus included actions against the state and actions against local governmental units. However, in a dissent, at page 274, 105 N.E.2d at page 48, Stewart, J., was of the view that relatrix in that action had '* * * no adequate remedy in the ordinary course of the law for the...

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