Opinion
No. 30202
Decided April 18, 1945.
Mandamus — Writ not to issue where law remedy adequate — Section 12287, General Code — Restoration to former position as chief of police — Appeal prosecuted after mayor demoted police chief to patrolman — Pleading — Petition not filed on relation of state — Section 12286, General Code.
APPEAL from the Court of Appeals of Cuyahoga county.
Appellant filed a petition in the Court of Appeals alleging that he was appointed chief of the division of police of the city of Garfield Heights on June 1, 1932, by the then director of public safety, and that he served in that capacity until September 15, 1942, when he was "removed illegally from that position to the rank of ordinary patrolman" by the mayor of Garfield Heights, and praying for a peremptory writ of mandamus restoring him to his former position as chief of the division of police. A demurrer by the director of public safety was sustained, the petition was dismissed and an appeal was perfected to this court as of right.
Mr. A.F. Gallagher, for appellant.
Mr. Robert L. Ross, for appellee.
The mandamus action was not instituted in conformity with the provision of Section 12286, General Code, that "the application for the writ must be by petition, in the name of the state on the relation of the person applying * * *."
Appellant pleaded the legal conclusion that he had no adequate remedy at law, which allegation was not admitted by the demurrer.
Section 12287, General Code, provides that "the writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law."
From the briefs of counsel it appears that after the mayor demoted appellant to a patrolman, appeal was taken to the civil service commission which affirmed the action of the mayor; that an appeal was then taken to the Common Pleas Court which also affirmed; and that subsequently a motion to certify the record was overruled by this court.
The appellant had an adequate remedy at law. He availed himself of that remedy and was not entitled to relitigate the same questions by means of an action for the extraordinary writ of mandamus.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.