State ex rel. Libbey-Owens-Ford Glass Co. v. Industrial Commission of Ohio

• Citation: 123 N.E.2d 23,162 Ohio St. 302
• Decision Date: 08 December 1954
• Docket Number: No. 33933,LIBBEY-OWENS-FORD,33933
• Parties: , 55 O.O. 176 The STATE ex rel.GLASS CO. v. INDUSTRIAL COMMISSION OF OHIO.
• Court: United States State Supreme Court of Ohio

Page 302

162 Ohio St. 302

123 N.E.2d 23, 55 O.O. 176

The STATE ex rel. LIBBEY-OWENS-FORD GLASS CO. v. INDUSTRIAL COMMISSION OF OHIO.

No. 33933.

Supreme Court of Ohio.

Dec. 8, 1954.

Syllabus by the Court.

1. Before a writ of mandamus will be granted by the Supreme Court under its constitutional powers as contained in Section 2 of Article IV of the Ohio Constitution, a clear legal right thereto must be shown, and the burden of establishing such right is upon the relator.

2. A writ of mandamus will ordinarily be refused by the Supreme Court under its constitutional powers unless the relator shows affirmatively that there is no plain and adequate remedy in the ordinary course of the law, including equitable remedies; that there has been a gross abuse of discretion on the part of an inferior tribunal, board or officer; and that the relief sought is not merely to determine a controversy of a strictly private nature.

This is an original action in mandamus instituted in this court, wherein the relator seeks a writ compelling the Industrial Commission to vacate, set aside and hold for naught certain orders of the commission granting to the guardian of the minor dependents of Charles D. Roscoe, deceased, a medical review of the claim of the guardian for death benefits for the dependents of said decedent whose death is alleged to have resulted from an occupational disease contracted in the course of and arising out of his employment.

The relator is a contributor to the Occupational Disease Fund established and maintained in accordance with the provisions of the Workmen's Compensation Act.

The decedent, Charles D. Roscoe, was an employee of the relator. Following his death, the application for death benefits was heard by the Toledo Board of Claims on June 16, 1953, as authorized by Section 1465-44a, General Code, Section 4123.14, Revised Code. The board denied the application for death benefits.

On June 26, 1953, under the provisions of the same section and rule 24 adopted by the commission thereunder, the claimant filed with the commission an application to review the decision of the Board of Claims. On September 29, 1953, the commission dismissed the application, and the order of the Board of Claims was affirmed.

On October 28, 1953, the claimant filed a motion, entitled 'motion to rehear,' setting forth additional evidence. On October 30, 1953, the relator filed a motion to dismiss the 'motion to rehear,' and on January 5, 1954, the commission denied claimant's 'motion to rehear' and approved and affirmed its order of September 29, 1953.

On January 28, 1954, the claimant filed an 'application for review of occupational disease claim' and therein requested a review of the claim by a Medical Board of Review under the provisions of Section 1465-68d, General Code, Section 4123.15, Revised Code, which fixes the time for a medical review 'within thirty days after receiving notice of said order.'

The commission on February 4, 1954, made the following order:

'The commission finds that the order of January 5, 1954, disallowing this claim was predicated upon the medical issues involved in said claim and the application for review of the occupational disease claim, filed on January 28, 1954, is now allowed.

'It is, therefore, the order of the commission that this claim be scheduled for hearing by a Medical Board of Review at an early date to determine the medical question involved, namely: Was the death of the decedent on June 15, 1952, due to the disease of dermatitis for which decedent was compensated in his lifetime, or a result of a disease which was occupational.'

The relator filed a motion to dismiss the 'application for review' on February 9, 1954, and in response to this motion the commission on March 5, 1954, made the following order:

'That the motion of the employer to dismiss the application for review of the occupational disease claim filed on 2-9-54 be denied for the reason that the commission finds a previous order of 2-4-54 ordering this claim to be referred to a Medical Board of Review to consider a report of their findings as to whether the death of the decedent was due to the disease of dermatitis for which the decedent was compensated in his lifetime is found to be supported by proof on file and is not contrary to law. It is now the order of the commission that the claim be referred to the legal section to schedule the hearing before the Medical Board of Review at an early date.'

DiSalle, Green & Haddad, Toledo, for relator.

C. William O'Neill, Atty. Gen., and Paul Tague, Jr., Columbus, for respondent.

LAMNECK, Judge.

In this case, the claimant followed the four procedural steps set up under rule 24, adopted by the commission, governing the hearing of claims in occupational disease cases, viz.:

(1) An applicaton was filed with the Toledo Board of Claims for death benefits resulting from an alleged occupational disease.

(2) On denial of the application an 'application for reconsideration' was filed with the Industrial Commission within 30 days after notice of the decision of the Board of Claims.

(3) On dismissal of the 'application for reconsideration,' a motion for 'rehearing' before the commission was filed within 30 days after notice of the dismissal of the 'application for reconsideration.'

(4) On denial of the motion for 'rehearing,' an 'application for review' by a 'Medical Board of Review' was filed with the commission within 30 days after receiving notice of dismissal of the motion for 'rehearing.'

The relator contends that the commission's actions constituted a gross abuse of discretion in that it did not have authority to entertain the 'motion to rehear,' filed on October 28, 1953, and disapproved on January 5, 1954; and that it did not have jurisdiction to entertain the 'application for review' filed on January 28, 1954, and allowed on February 4, 1954.

To this claim of the relator, the respondent contends that the purpose of the relator is the alleged enforcement or protection of purely private rights, and that this court in exercising its constitutional jurisdiction and discretion in mandamus actions should deny the writ on the authority of State ex rel. Allied Wheel Products, Inc., v. Industrial Commission, 161 Ohio St. 555, 120 N.E.2d 421, and State ex rel. D. L. Auld Co., Inc., v. Morse, 161 Ohio St. 561, 120 N.E.2d 424.

The respondent contends also that its action in the premises is lawful and in accord with the statutes and its rules.

Section 2, Article IV of the Ohio Constitution, provides in part as follows:

'It [the Supreme Court] shall have original jurisdiction in * * * mandamus * * * and such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law. * * * No law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the supreme court.'

No statutory law has been called to our attention which confers revisory jurisdiction directly on the Supreme Court over decisions of the Industrial Commission in administering the compensatory provisions of the Workmen's Compensation Act.

This court ruled in State ex rel. City of Toledo v. Lynch, 87 Ohio St. 444, 101 N.E. 352, that the provision of Section 2, Article IV of the Constitution, that 'No law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the supreme court,' originally effective January 1, 1913, is mandatory and that this court may not adopt or adhere to a rule which requires permission to invoke the exercise of its original jurisdiction.

It is contended that this court in State ex rel. Allied Wheel Products, Inc., v. Industrial Commission, supra, and in State ex rel. D. L. Auld Co., Inc., v. Morse, supra, did adopt a rule which impairs the right of a litigant to invoke the original jurisdiction of the Supreme Court in mandamus proceedings. There is nothing in the Allied Wheel or the Auld case which prevents anyone from filing a petition in mandamus in the Supreme Court and having a hearing thereon, but the court in the exercise of its discretion may deny the extraordinary writ of mandamus.

Constitutional jurisdiction in mandamus was originally conferred on the Supreme Court by the adoption of original Section 2 of Article IV of the Constitution of 1851. This jurisdiction is the commonlaw jurisdiction that was exercised in Ohio at the time of the adoption of the constitutional provision in 1851. See State ex rel. Moyer v. Baldwin, 77 Ohio St. 532, at pages 537 and 538, 83 N.E. 907, 19 L.R.A.,N.S., 49. This jurisdiction can not be enlarged or abridged by statutory enactment. It is, therefore, necessary to learn when the writ would have issued prior to adoption of the Constitution of 1851.

Under the common law, mandamus is defined as a writ which issues from a court of superior jurisdiction 'to compel public officers and private individuals in matters relating to the public, to perform their public duties. * * * It is a writ to compel action by, not to give remedy against, the individual officer, for injury resulting from an imperfect or improper action.' See Universal Church v. Trustees of Section Twenty-Nine, 6 Ohio 445, 27 Am.Dec. 267.

This definition is not as comprehensive as the definition of mandamus set forth in Section 2731.01, Revised Code, Section 12283, General Code.

In State ex rel. Boss v. Carpenter, 51 Ohio St. 83, at page 89, 37 N.E. 261, at page 262, 46 Am.St.Rep. 556, Judge Williams made the following comment:

'Mandamus is not well adapted to the trial of questions of fact or the determination of controversies of a strictly private nature. Its office is rather to command and enforce the performance of those duties in which the public has some concern, and where the right is clear, and does not depend upon complication of disputed facts which must be settled from the conflicting testimony of witnesses.' (Italics supplied.)

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