State ex rel. Nichols v. Gregory

• Decision Date: 30 October 1935
• Docket Number: 25556.
• Parties: STATE ex rel. NICHOLS v. GREGORY et al.
• Court: Ohio Supreme Court

198 N.E. 182

130 Ohio St. 165

STATE ex rel. NICHOLS v. GREGORY et al.

No. 25556.

Supreme Court of Ohio.

October 30, 1935

Error to Court of Appeals, Franklin County.

Action in mandamus by the State, on the relation of Robert H Nichols, against one Gregory and others, as Commissioners of the State Industrial Commission. To review a judgment quashing the alternative writ and dismissing the action relator brings error.-[Editorial Statement.]

Reversed and remanded, with instructions.

This is an action in mandamus instituted by the relator, Robert H Nichols, in the Court of Appeals of Franklin county. Having originated in that court, the relator filed his petition in error in this court as a matter of constitutional right.

In his petition the relator prayed for a writ of mandamus commanding the respondents, as commissioners of the Industrial Commission of Ohio, to consider his application of October 28, 1932, as an application for rehearing, and that the respondents be directed to grant it as such. The petition alleges, inter alia, that the relator suffered an injury on February 23, 1931, while he was employed by an employer who had contributed to the Workmen's Compensation Fund; that the Industrial Commission, recognizing its jurisdiction, paid medical expenses of the relator; that his employer kept the relator in an employment which required less exertion and energy until February 1, 1932; that as the result of his injury his physical condition became worse, compelling him to entirely cease his employment; that relator made application for compensation, which was denied on October 11, 1932 pursuant to the following order made by the commission: ‘ That the commission find from proof on file, claimant was not disabled for more than seven days as a result of his injury.’ The petition further alleges that within 30 days after issuance of such order the relator filed an application which is entitled, ‘ Application for Modification of Award.’ The petition also recites that such application was unadvisedly drawn by a layman who had no knowledge of technical procedure, and that same was in fact an application for rehearing, and should be so considered.

The respondents filed a motion in the Court of Appeals asking that court to quash the alternative writ theretofore issued and to dismiss the cause for the reason that that court had no jurisdiction ‘ to issue said alternative writ of mandamus and has no jurisdiction of the subject matter of this action.’

The Court of Appeals sustained the motion of the respondents, quashed the alternative writ, and dismissed the action at the cost of the relator; whereupon the relator prosecuted error to this court as of right.

Court of Appeals held to have jurisdiction in mandamus to compel Industrial Commission to grant rehearing in compensation case. Const. art. 4, §§ 2, 6.

Syllabus by the Court .

1. A suit against members of the State Industrial Commission, seeking to compel them to perform a statutory duty, is not a suit against the state within the purview of article I, section 16, of the Ohio Constitution.

2. The provisions of section 871-40, General Code (103 Ohio Laws, 108), that no court of this state, except the Supreme Court to the extent specified in that act, shall have jurisdiction to review or otherwise interfere with orders of the Industrial Commission, apply, not to orders made in cases arising under the Workmen's Compensation Law, but to orders made by the commission under sections 871-1 to 871-45, General Code, comprising the act known as the Safety Code.

3. Courts of Appeals have jurisdiction in mandamus to compel the Industrial Commission to grant rehearings in cases arising under the Workmen's Compensation Law.

Carrington T. Marshall, of Columbus, for plaintiff in error.

John W. Bricker, Atty. Gen., and R. R. Zurmehly, of Columbus, for defendants in error.

JONES Judge.

The Court of Appeals dismissed the action for the reason that under its construction of section 871-40, General Code, the Supreme Court and no other could issue writs of mandamus reviewing, annulling, or otherwise interfering with orders made by the Industrial Commission in compensation cases. Its opinion recited the fact that it had considered this question previously in three unreported cases wherein it had held that the Court of Appeals had no jurisdiction in mandamus to review such orders. It bases its decision, in part, upon the provisions of article I, section 16, of the Ohio Constitution, which reads: ‘ Suits may be brought against the state, in such courts and in such manner, as may be provided by law.’ In the instant case, counsel for the Industrial Commission contend that this mandamus action is in fact a suit against the state.

A suit against the state is quite different from one against state officers seeking to enforce a plaintiff's constitutional or statutory rights. A suit against members of the State Industrial Commission, seeking to compel them to perform a statutory duty, is not a suit against the state. Rolston v. Missouri Fund Commissioners (Rolston v. Crittenden), 120 U.S. 390, 7 S.Ct. 599, 30 L.Ed. 721; Work, Secy. of Interior, v. United States ex rel. McAlester-Edwards Co., 262 U.S. 200, 43 S.Ct. 580, 67 L.Ed. 949; 25 Ruling Case Law, 414, § 50; 59 Corpus Juris, 312, § 466. While this precise question has not been decided by the Ohio Supreme Court in any reported case, this court has had before it many cases in mandamus wherein rehearings have been sought and either allowed or denied by this court. Furthermore, it may be truly said that this is in no sense an action against the state, since the final recovery, should there by any, will not involve state funds, but must be satisfied from funds contributed by employers.

The chief legal question presented arises from the construction of section 871-40, General Code (103 Ohio Laws, 108), which reads as follows: ‘ No court of this state except the supreme court to the extent specified by this act, shall have jurisdiction to review, vacate, set aside, reverse, revise, correct, amend or annul any order of the Industrial Commission of Ohio, or to suspend or delay the execution or operation thereof or to enjoin, restrain...