State ex rel. Smith v. Industrial Commission

Decision Date18 February 1942
Docket Number28858.
Citation139 Ohio St. 303,39 N.E.2d 838
CourtOhio Supreme Court

Syllabus by the Court.

1. Original jurisdiction is conferred upon the Supreme Court by the state Constitution only in quo warranto, mandamus, habeas corpus, prohibition and procedendo. The court is without authority to entertain an action in injunction instituted therein.

2. A writ of mandamus compels action or commands the performance of a duty, while a decree of injunction ordinarily restains or forbids the performance of a specified act.

3. A proceeding wherein an order is sought directing the Industrial Commission of Ohio to 'cease disbursing' certain funds is essentially one in injunction and not mandamus, and is not within the original jurisdiction of the Supreme Court.

In mandamus.

This is an original action in mandamus in this court. It is brought by Edward L. Smith, relator, as 'a resident citizen and taxpayer of the state of Ohio.' He seeks the issuance of a writ in this court directing the respondents the Industrial Commission of Ohio, and Will T. Blake, James A. White and Clarence H. Knisley, as members of such commission, to 'cease disbursing from the state insurance fund any sums of money for workmen's compensation or other benefits on account of losses sustained hereafter under the workmen's compensation laws of Ohio by persons in the service of the state of Ohio * * *.'

The allegations of the petition essential to a consideration of the question presented may be stated in substance as follows:

The state of Ohio is one of the employers subject to the provisions of the workmen's compensation laws of Ohio and, as such, is a contributor to the public fund for the purpose of providing workmen's compensation benefits for persons in the service of the state. The contributions required to be made by the state have been determined by the respondents according to law and the respondents have requested that such contributions be paid but the state has failed and refused to appropriate through the General Assembly sufficient funds therefor, and the state has failed to pay to the respondents sufficient funds to cover the losses sustained by payment of workmen's compensation benefits to those persons in the service of the state who are entitled to the same. There has been an overpayment from the public funds to state employees and their dependents for compensation and other benefits in excess of the contributions received from the state amounting approximately to $1,500,000.

The public fund has not been solvent for several years and the respondents have instituted no proceedings in court to compel the payment of contributions by the state itself or its officials to the public fund, and the respondents have been and are paying workmen's compensation and other benefits from the state insurance fund to and on behalf of persons in the service of the state who have been injured or killed in the course of their employment, and unless restrained by this court such respondents will continue to make such payments.

Issue was made by demurrer of the respondents upon the grounds that (1) the court has no jurisdiction of the subject of the action; (2) relator has no legal capacity to sue; and (3) the petition does not state facts sufficient to constitute a cause of action.

Howard M. Metzenbaum and Sidney H. Moss, both of Cleveland, for relator.

Thomas J. Herbert, Atty. Gen., E. G. Schuessler, of Cincinnati, and Carry Davis, of Columbus, for respondents.


The first contention made by the respondents is that this action is essentially one for injunction, wherein this court does not have original jurisdiction.

In our opinion, the decision of this question is determinative of the case. The relator avers that 'unless restrained by this court, said defendants will continue to make such payments' and asks the court to command 'them to cease disbursing from the state insurance fund,' etc (Italics ours.)

Section 1465-59, General Code, provides that the moneys contributed by the employers named in Section 1465-60, subdivision 1, General Code, those being 'the state and each county, city, township, incorporated village and school district therein,' shall constitute and be called the public fund, and that the money contributed by such employers to this fund shall be collected, distributed and its solvency maintained without regard to or reliance upon the money in the so-called private fund, i. e., composed of contributions made by private employers.

The provisions of Section 1465-64, General Code, upon which, apparently, the application for the writ in this case is based, are as follows:

'It shall be the duty of the industrial commission of Ohio to communicate to the General Assembly on the first day of each regular session thereof, an estimate of the aggregate amount of money necessary to the contributed by the state during the two...

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