Opinion
No. 28442
Decided April 30, 1941.
Prohibition — Writ issued only where no ordinary remedy available and adequate — Unemployment compensation — Writ not available to determine whether contributions levied against employer or lessor.
1. Resort to the extraordinary writ of prohibition may be had only when no ordinary and usual remedy is available and adequate. (Paragraph 1 of the syllabus in the case of Silliman v. Court of Common Pleas, 126 Ohio St. 338, approved and followed.)
2. The remedy of a writ of prohibition is not available to one claiming that contributions levied against him by the Administrator of the Bureau of Unemployment Compensation of Ohio are invalid on the ground that the individuals held to be employees are in fact lessees.
IN PROHIBITION.
This action is for a writ of prohibition and is addressed to the original jurisdiction of this court.
The plaintiff conducts a beauty parlor in the city of Zanesville, Ohio.
The defendant is the Administrator of the Bureau of Unemployment Compensation for the state of Ohio.
In his petition the plaintiff alleges in substance that in conducting his beauty parlor he does not employ as many as three individuals; that, nevertheless, the defendant administrator on June 7, 1940, made a finding under which the plaintiff was held to be an employer of three or more individuals within the purview of Section 1345-1 ( b), General Code, a part of the Unemployment Compensation Act of Ohio; that the defendant administrator has levied contributions based upon the remuneration of the individuals held to be employees of the plaintiff; that these individuals are not employees in fact but are lessees of space and equipment in the plaintiff's establishment; that therefore the defendant administrator has no jurisdiction to levy any contribution based upon the remuneration of these individuals; that the plaintiff appealed from the holding of the defendant administrator to the Unemployment Compensation Board of Review; that the appeal was dismissed by the board of review on the ground that it has no appellate jurisdiction in such a controversy; that at various times the defendant administrator has demanded payment of the contributions levied by him against the plaintiff; and that the plaintiff may be irreparably injured if the levy is allowed to stand. In the prayer of his petition the plain tiff asks that the defendant administrator be prohibited from further action with reference to any contribution based upon the remuneration of the plaintiff's lessees.
To the plaintiff's petition the defendant filed a demurrer upon the ground that the allegations do not show a cause of action.
Messrs. Pugh, Knapp Miller, for plaintiff.
Mr. Thomas J. Herbert, attorney general, and Mr. John M. Woy, for defendant.
The sole question raised by the defendant at this time is whether the plaintiff's petition contains facts sufficient to constitute a cause of action for the issuance of a writ of prohibition.
The plaintiff states that he has invoked this extraordinary remedy because he is in doubt whether he can otherwise contest the validity of the contribution levied by the defendant under favor of Section 1346-4, General Code, which in part provides that "Except as herein provided, any decision made by the administrator or a deputy of the administrator by the board of review or one of its referees shall be final." But conceding without determining the finality of such an order so far as a review by the Unemployment Compensation Board of Review is concerned, if still is necessary to consider the effect of the further procedures provided by Sections 1345-27 and 1345-28, General Code. The first authorizes a criminal and the second a civil action against an employer who fails or refuses to pay any contribution levied against him. However, this plaintiff urges that these procedures would not enable him to interpose his defense, and that even if such a defense were permitted, the remedy would prove inadequate. With these views this court finds itself unable to agree. In the first place it is possible that no court action ever will be filed against this plaintiff, thus leaving him unharmed. Secondly, if an action should be instituted against him he could assert his defense that the individuals in question are not employees. This is illustrated by the language of Section 1345-28, General Code, that "If upon final hearing of said cause it is found and determined that the defendant is subject to the provisions of this act, the court shall render judgment * * *." Thus the question whether this plaintiff is an employer of three or more individuals can be effectively adjudicated in a court of law. Pittsburg Coal Co. v. Industrial Commission, 108 Ohio St. 185, 140 N.E. 684.
The plaintiff places considerable reliance upon the case of Bowman v. Atkinson, Admr. of Unemployment Comp. Comm., 136 Ohio St. 495, 26 N.E.2d 798. However, a study of that case shows that the question of remedy was not raised, considered or decided, and that the Attorney General agreed in open court that the writ should issue.
In the instant case the demurrer must be sustained and the petition dismissed at the plaintiff's costs.
Demurrer sustained.
TURNER, WILLIAMS, HART, ZIMMERMAN and BETTMAN, JJ., concur.
MATTHIAS, J., not participating.