State ex rel. Stevens v. Industrial Commission of Ohio

• Decision Date: 04 November 1955
• Parties: , 73 Ohio Law Abs. 217, 2 O.O.2d 22 STATE of Ohio ex rel. Harry G. STEVENS, etc., Relator, v. INDUSTRIAL COMMISSION OF OHIO et al., Respondents.
• Court: Ohio Court of Appeals

Page 47

102 Ohio App. 47

136 N.E.2d 660, 73 Ohio Law Abs. 217, 2 O.O.2d 22

STATE of Ohio ex rel. Harry G. STEVENS, etc., Relator, v. INDUSTRIAL COMMISSION OF OHIO et al., Respondents.

Court of Appeals of Ohio, Franklin County.

Nov. 4, 1955.

R. Brooke Alloway and James F. DeLeone, Columbus, for relator.

C. William O'Neill, Atty. Gen., Paul Tague, Jr., Asst. Atty. Gen., for respondents.

FESS, Judge.

Relator brings his action in mandamus against the Industrial Commission on behalf of himself and some sixteen hundred other claimants similarly situated. Relator alleges in part that his claim for additional compensation was dismissed on August 13, 1954; that an application for rehearing was granted on February 21, 1955, and that on April 22, 1955, a hearing was held and a portion of the evidence submitted on behalf of relator was reduced to writing.

Relator further alleges that the procedural sections of the Workmen's Compensation Act were amended effective October 5, 1955, and that pursuant thereto the respondent has disbanded its rehearing section, has ceased to hold hearings pursuant to former R.C. § 4123.51, and has failed and refused to set relator's claim for further hearing and to permit him to offer further testimony on behalf of his claim under the provisions of such section, and has caused his claim to be considered as pending on appeal before respondent under R.C. § 4123.516.

Relator further says that his cause of action accrued under R.C. § 4123.51 and was commenced prior to October 5, 1955, and that by respondent's failure to provide facilities, set the claim for further hearing and refusal to permit relator to complete the testimony in behalf of his claim under said section, substantial rights accruing to relator have been impaired, and relator has been deprived of his property without due process of law in violation of the Constitutions of the United States and of Ohio; that relator has no adequate remedy at law and the action of the respondent constitutes a gross abuse of discretion and error of law.

Relator prays that a peremptory writ of mandamus issue requiring respondents to hear and determine relator's claim under former R.C. § 4123.51, and commanding them to cease and desist hearing relator's claim under R.C. §§ 4123.512 to 4123.519, inclusive, or if said writ be refused, an alternative writ of mandamus issue commanding respondents so to do or to show cause why they should not so do, and for such other and further relief as may be just and proper.

Relator also makes application (supported by affidavit) for himself and the class he represents for an order ancillary to the permanent relief sought in his petition, commanding respondents to cease and desist holding hearings in relator's case and all others of his class, pursuant to R.C. §§ 4123.512 to 4123.519, until the constitutionality of the statutes is finally determined.

Two questions arise upon the application for an alternative writ and ancillary injunctive relief.

1. Although the interests of the class whom...