Opinion
No. 37510
Decided March 13, 1963.
Civil service — Removal from position in classified service — City fireman — Restoration to position — Mandamus — Not available where adequate remedy by appeal.
APPEAL from the Court of Appeals for Lucas County.
This action in mandamus was instituted in the Court of Appeals by relator, Rupert F. Stelzer, seeking reinstatement to his position as fireman.
On May 1, 1961, relator was appointed a member of the Division of Fire in the Department of Public Safety of the City of Toledo, pursuant to a certification by the civil service commission after having taken a competitive examination therefor and having passed the required medical examination.
On October 19, 1961, relator received a letter dated October 18, signed by the director of public safety and the chief of the fire department, notifying him of his dismissal, effective October 29, as a probationary appointee, for the reason that, due to his physical condition, he was unable to perform his duties effectively. Relator did not appeal from that decision.
The minutes of the civil service commission of the meeting of October 24, 1961, set forth the resignation of relator from his position as fireman.
Counsel for the parties have stipulated that relator did not resign from his position as fireman; that the chief of the division of fire has not suspended relator nor has the procedure set forth in Section 737.12, Revised Code, or Section 143 of the Charter of the City of Toledo, relative to suspension of police and fire personnel, been followed; that relator, at all times continously from October 29, has been ready and willing to execute all the duties assigned to him as fireman but has not been permitted to work; and that the only issue involved is whether proper procedure for the discharge of relator was followed.
The prayer of the petition is for a writ requiring respondents to restore relator to his position as fireman.
The Court of Appeals, having heard the case on the pleadings and stipulation, declined to issue the writ and dismissed the petition.
An appeal as of right brings the cause to this court for review.
Mr. Jas. Slater Gibson, for appellant.
Mr. Louis R. Young, director of law, and Mr. James W. Proctor, for appellees.
Relator is afforded an adequate remedy in the ordinary course of the law by way of appeal.
Section 144 of the Charter of the City of Toledo provides:
"Any person in the division of police or fire under the exclusive control of the chief thereof, who is suspended, reduced in rank, or dismissed from the department by the director of public safety, may appeal from the decision of such officer to the civil service commission within ten days from and after the date of such suspension, reduction or dismissal."
Section 143.27, Revised Code, provides in part:
"* * * In the case of * * * removal of * * * any member of the police or fire department of a city, an appeal on questions of law and fact may be had from the decision of the municipal civil service commission to the Court of Common Pleas * * *."
A writ of mandamus may be denied where there is a plain and adequate remedy in the ordinary course of the law. State, ex rel. Harris, Chief of Police, v. Haynes, Mayor, 157 Ohio St. 214; State, ex rel. Oliver, v. State Civil Service Commission, 168 Ohio St. 445; State, ex rel. Farmer, v. McCormick, Dir., 171 Ohio St. 530; State, ex rel. Moran, v. Welling, Dir., 172 Ohio St. 516.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.