State ex rel. White v. City of Cleveland

• Decision Date: 16 December 1936
• Docket Number: 26046.
• Parties: STATE ex rel. WHITE v. CITY OF CLEVELAND et al.
• Court: Ohio Supreme Court

5 N.E.2d 331

132 Ohio St. 111

STATE ex rel. WHITE v. CITY OF CLEVELAND et al.

No. 26046.

Supreme Court of Ohio.

December 16, 1936

Appeal from Court of Appeals, Cuyahoga County.

Syllabus by the Court .

1. A writ of mandamus will not be issued except to command the performance of a specific duty enjoined by law; nor will it be issued where there is a plain and adequate remedy in the ordinary course of law.

2. Section 486-17a, General Code, protects the tenure of an officer or employee in the classified service from removal from office or employment. The section does not enjoin upon the director of public safety any specific duty in respect to the deprivation or restoration of an employee's wages.

3. Where an employee has not been removed from his position but has been suspended from the pay roll, a writ of mandamus will not be employed to replace him on the pay roll or to restore his wages during the period of his suspension.

This action in mandamus originated in the Court of Appeals^[1] and was instituted by the relator in behalf of her ward, Clayton E. White. The relator's petition alleges that Clayton E. White was employed as patrolman in the city of Cleveland, Ohio, and that he served as such from October 29, 1923, until December 31, 1931. The petition does not allege that White was ever removed from his position as patrolman. It alleges that on December 31, 1931 while on duty, he was stricken ill, and that on the 2d day of December, 1932, he was removed to the United States Government Hospital at Chillicothe, Ohio, and is still confined and under treatment therein.

On December 12, 1932, the director of public safety addressed to the patrolman the following letter: ‘ This is to advise you that on and after January 16th, 1933, you will no longer be carried on the payroll of the City of Cleveland.’ Since January 16, 1933, he has received no remuneration from the city. The petition alleges that no charges of any kind have been preferred against the patrolman and that he has not been suspended or dismissed from the department, but that he was illegally suspended from the pay roll of the department contrary to the provisions of Section 486-17a, General Code. The petition asks for a writ of mandamus ordering that the patrolman's alleged wrongful suspension be set aside that his back wages be restored and that he be restored to membership in the police department, with all his former rights as such patrolman. To the foregoing petition defendants filed a general demurrer which a majority of the appellate court sustained, and dismissed the petition. Whereupon error was prosecuted to this court.

James H. Murray and A. F. Gallagher, both of Cleveland, for appellant.

Alfred Clum, Director of Law, and Charles W. White, both of Cleveland, for appellees.

JONES Judge.

For more than eight years White served on the city police force. On December 31, 1931, he was stricken with illness, which incapacitated him from performing his duties as patrolman. In the meantime the department carried him on the pay roll for a period of a little more than a year after he became incapacitated, and then removed him from the pay roll. It appears that, when this petition was filed, the patrolman had not only been continuously incapacitated for duty for more than four years, but that he was then an incompetent.

The petition of relator does not state that White was illegally removed from his position, but that he was wrongfully suspended from the pay roll and thereby deprived of his wages as a patrolman. Section 12283, General Code, provides that a writ of mandamus may issue ‘ commanding the performance of an act which the law specially enjoins.’ Section 486-17a, General Code, protects the tenure of officers and employees in the classified service and pertains to their removal from employment or office. But no specific duty is thereby enjoined respecting the deprivation or restoration of emoluments pertaining to the office or employment. Mandamus could not, therefore, be employed for the purpose of restoration of the patrolman's wages.

Section 12287, General Code, specifically provides that a writ of mandamus ‘ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law.’ This court has frequently adhered to that principle, and the...