Opinion
No. 37696
Decided March 20, 1963.
Mandamus — Remedy not available, when — Not substitute for appeal — Municipal civil service commission — Order of dismissal of classified employee — Right of appeal to Common Pleas Court.
APPEAL from the Court of Appeals for Franklin County.
The relator, Clarence Fagain, while employed by the city of Columbus as a truck driver for the Department of Public Service and having a permanent status under the classified civil service, was injured in April 1960 while driving a truck for the city. He applied for workmen's compensation, was allowed and paid his medical bills incurred as a result of the accident, and on May 10, 1961, was awarded compensation for his injuries.
On May 25, 1961, relator was served notice of his suspension from his position by the respondent, Director of the Department of Public Service. The notice contained a "charge" that relator was "physically unfit to perform the duties of truck driver in the Division of Sanitation."
After a hearing, on June 6, 1961, relator was found to be in the condition as "charged" and was given notice of his discharge as a permanent employee in the classified service.
Relator appealed from the action of the service director to the Municipal Civil Service Commission which affirmed the action of the director on June 28, 1961. No appeal was taken from the decision of the commission.
On January 24, 1962, relator instituted the present action in mandamus in the Court of Appeals, praying that a writ be issued directing respondents to restore him to his position in the classified service of the city.
Respondents demurred to the petition "for the reason that it does not state facts which show a cause of action."
The Court of Appeals sustained the demurrer and rendered final judgment for the respondents.
An appeal as of right brings the cause to this court for review.
Messrs. Barkan Barkan and Mr. Frank J. Neff, for appellant.
Mr. Russell Leach, city attorney, Mr. Alba L. Whiteside, Mr. William B. Shimp and Mr. Frank A. Reda, for appellees.
The question presented is whether the decision of the Municipal Civil Service Commission of June 28, 1961, was appealable under Chapter 2506, Revised Code, titled "Appeals from Orders of Administrative Officers and Agencies." If the decision was appealable, relator had an adequate remedy in the ordinary course of the law.
Section 2506.01, Revised Code, provides:
"Every final order, adjudication, or decision of any * * * commission, department or other division of any political subdivision * * * may be reviewed by the Common Pleas Court * * *."
The respondent Municipal Civil Service Commission is a "commission," and its decision of June 28, 1961, affirming the action of the director was a final decision within the meaning of those terms as used in the above-quoted section. State, ex rel. Steyer, v. Szabo, 174 Ohio St. 109.
Therefore, pursuant to the provisions of Chapter 2506, Revised Code, relator had an adequate remedy in the regular course of the law by appeal to the Common Pleas Court from the final decision of the commission, and mandamus may not be used as a substitute for appeal. In re Removal of Taylor, Chief of Police, 172 Ohio St. 394; State, ex rel. Steyer, v. Szabo, supra; State, ex rel. Oliver, v. State Civil Service Commission, 168 Ohio St. 445.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.