Opinion
No. 36115
Decided November 18, 1959.
Mandamus — Writ will issue, when — Will not issue to control exercise of discretion — Civil service — Retention of employee over 70 years of age — Discretionary with appointing authority.
IN MANDAMUS.
This proceeding in mandamus originated in this court. In his amended petition relator alleges that he is 74 years of age and physically and mentally qualified and able to perform all the duties required of him as examiner in the legal department of the Bureau of Workmen's Compensation; and that, notwithstanding he has fully complied with the provisions of Section 145.32, Revised Code, and his immediate supervisor has approved his continuance in such employment, the respondent Governor by his agents caused the respondent Administrator of the Bureau of Workmen's Compensation, without granting relator his day in court, to wrongfully and unlawfully notify relator that he would be retired from his employment effective June 30, 1959.
The prayer of the amended petition is for a writ requiring the Governor to order the administrator to return relator to his former employment and that the administrators and directors of all boards, bureaus, departments and commissions be instructed to comply with and enforce the provisions of Section 145.32, Revised Code, uniformly and without favor, or that all administrators and directors of all state boards, bureaus, departments or commissions be enjoined from discharging some employees and permitting others to continue in their positions.
Respondents have demurred to the amended petition for the reason that relator by his petition has failed to state a cause of action for a writ of mandamus.
The case has been submitted on the petition and the demurrer thereto.
Mr. Edward L. Ramsey, in propria persona. Mr. Mark McElroy, attorney general, and Mr. John A. Hoskins, for respondents.
Before a writ of mandamus will issue there must be a duty specially enjoined by law on the respondent. The provisions of Section 145.32, Revised Code, relative to retirement, clearly and unequivocally repose in the appointing authority a discretion to retain or not to retain an employee who has attained the age of 70 years. Mandamus will not lie to control the exercise of discretion. State, ex rel. Wilson, v. Young, Admr., ante, 74, and cases therein cited.
Demurrer sustained and writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.