State ex rel. Francis v. Sours

• Citation: 143 Ohio St. 120,53 N.E.2d 1021
• Decision Date: 29 March 1944
• Docket Number: 29852.
• Parties: STATE ex rel. FRANCIS v. SOURS, Director of Department of Highways.
• Court: United States State Supreme Court of Ohio

53 N.E.2d 1021

143 Ohio St. 120

STATE ex rel. FRANCIS v. SOURS, Director of Department of Highways.

No. 29852.

Supreme Court of Ohio

March 29, 1944

Syllabus by the Court.

The provision of section one of the General Appropriation Act of the 95th General Assembly (House Bill No. 227), relative to salary and wage adjustments, that 'upon the request of the heads of the various * * * departments * * * all employees receiving more than $1,800 per annum may be given a temporary increase,' does not invest a department head with discretion to grant such increase to one or more employees in his department and refuse to grant such increase to others within the same class.

This action had its origin in this court. The relator seeks by a writ of mandamus to compel the respondent to grant him a temporary increase in salary for the years 1934 and 1944.

Stripped of immaterial and irrelevant matter, the petition avers substantially these facts: That relator is a rodman in Division III, Lorain county, of the Department of Highways of which the respondent is director; that relator was appointed after certification by the Civil Service Commission; that on June 11, 1943, and thereafter, he occupied the position of rodman grade one, rate C, at a salary of $180 per month; that on the last mentioned date the General Assembly passed House Bill No. 227 which was approved by the Governor on June 24, 1943, and filed in the office of the Secretary of State on the same day; that the act provides for salary and wage adjustments for state employees for the years 1943 and 1944, permitting a 10% increase in salaries and wages to all employees earnings less than $2,000 annually; that the act further provides, upon request of the head of any department with the approval of the controlling board, all employees receiving more than $1,800 per annum may be given a temporary increase for the years 1943 and 1944 of not to exceed $180 per annum; that thereafter the tespondent did increase the salaries of all employees upon the construction pay roll of the Department of Highways, Division III, except the relator, granting to those who earned under $2,000 an increase of 10% and to those who earned over $2,000 an increase of $15 per month, retroactive as of January 1 1943; that relator demanded and respondent refused to grant him any increase; that the refusal of respondent to grant such salary increase to relator is a result of discrimination against relator for political reasons and because of relator's political affiliations; and that relator has no adequate remedy at law.

To relator's petition respondent has filed a general demurrer upon the ground 'that relator has not stated facts which show a cause of action.'

The case was submitted upon the petition and the demurrer.

Levin & Levin, of Lorain, for relator.

Thomas J. Herbert, Atty. Gen., and Daronne R. Tate, of Cincinnati for respondent.

BELL, Judge.

The parties agreed in open court that the ruling on the demurrer should be dispositive of this case.

The single question presented is whether relator has alleged facts sufficient to constitute a cause of action. The answer to this question must be determined from a consideration and interpretation of certain language used in the General Appropriation Act of the 95th General Assembly, known and designated as House Bill No. 227, relative to salary and wage adjustments.

The language with which we are concerned is as follows:

'Salary and Wage Adjustment

'Salary and Wage Adjustment

'1943 1944 Biennium

'Salary and Wage

Adjustment.... $2,817,500 $2,817,500 $5,635,000

'The foregoing appropriation shall be distributed to the various offices, departments, boards and commissions to which appropriations are herein made for salaries and wages, whether contained in appropriations for 'personal service' or appropriations for 'maintenance.' Such distribution shall be made on order of the controlling board and the amounts distributed shall be used only to augment the items within 'personal service' and 'maintenance' to the end that said items will be sufficient for the year 1943 and for the year 1944 to permit an increase of 10% in all salaries and wages of less than $2,000 annually. Upon such distribution by order of the controlling board, the salaries and wages of all employees, within such offices, departments, boards and commissions, which are now less than $2,000 annually, shall be increased 10% unless such increase of 10% would result in a salary or wage in excess of $2,000 annually, in which event such salary or wage shall be increased only to the sum of $2,000 annually.

'Provided, however, upon request of the heads of the various offices, departments, boards and commissions, and with the approval of the controlling board, all employees receiving more that $1,800 per annum may be given a temporary increase for the years 1943 and 1944 of not to exceed $180 per annum. The controlling board may authorize all or a portion of such temporary increase applying to employees receiving $3,000 per annum or less, to be paid from the foregoing salary and wage adjustment appropriation to the extent appropriations for 'personal service' and 'maintenance' are not sufficient for such purpose. The increase herein authorized shall not apply to the members of boards serving part time on a per diem basis.'

By this provision state employees who earn not to exceed $3,000 per annum are divided into two groups or classes: First, all employees who earn less than $2,000 per annum, are granted a mandatory 10% increase in salary or wages; second, all employees who earn more than $1,800 per annum are granted an increase in compensation of 10%, subject to the condition that the head of the department requests and the controlling board...