Opinion
No. 27626
Decided November 15, 1939.
Mandamus — Misjoinder of causes and parties — Complaint and relief against different respondents not identical — Supreme Court — No original jurisdiction to grant mandatory injunctive relief.
1. When, in a mandamus action, the complaint made and relief sought against certain respondents are not identical with the complaint made and relief sought against other respondents, there is a misjoinder of causes of action and of parties respondent.
2. Since the Supreme Court does not have original jurisdiction in injunction, mandatory injunctive relief will not be granted by that court through an action in mandamus.
IN MANDAMUS.
In this action the relatrix seeks, by a writ of mandamus, to require the respondents, Thomas W. McCaw, as Chief of the Division of Aid for the Aged, and Charles L. Sherwood, as Director of Public Welfare, to restore her to her former position of supervisor grade 3-B, in that division, which is within the classified service of the state of Ohio and from which she had been discharged; to restore her to her salary in such position; and to require the respondents, Carl W. Smith and Ralph W. Emmons, as members of the state Civil Service Commission, to discontinue the incumbency of one Elinor Hixenbaugh, a provisional appointee who, it is claimed, is performing the duties formerly assigned to and performed by the relatrix; and to require respondents to disapprove payment of the salary of such provisional employee performing the duties of the position in question.
The issues to be determined by this court are presented by an amended petition filed by the relatrix and a demurrer thereto filed by the respondents McCaw and Sherwood on the grounds of misjoinder of parties respondent and misjoinder of causes of action; and a demurrer to the amended petition by the respondents Smith and Emmons on the grounds, among others, that there is a misjoinder of parties respondent; that separate causes of action against several respondents are improperly joined; and that the amended petition does not state facts which show a cause of action against these last named respondents.
The amended petition alleges that the relatrix has been an incumbent of a classified position in the Division of Aid for the Aged since July, 1934; that as a result of a competitive examination held in April, 1935, she was placed on the female list of eligibles to permanent employment in the department above named, and that after several promotions she was, on April 29, 1938, appointed to the position above named; that the duties of the position are essential and necessary to the proper administration of the department under the law; that she was discharged effective March 1, 1939, by respondents McCaw and Sherwood from her position on the alleged ground that her position was abolished and no longer necessary or essential, whereas, in fact, such position in the classified service is essential and necessary to the government of Ohio and the Division of Aid for the Aged, and is being filled by others, particularly by one Elinor Hixenbaugh, by provisional appointment; and that the discharge of relatrix from the position was solely for political reasons or affiliations in that her original appointment, incumbency and tenure of position occurred in and extended through the tenure of an appointing authority preceding that of respondents.
Relatrix further alleges that she has protested her discharge to the respondents Smith and Emmons but without success, and that they have permitted Elinor Hixenbaugh, as a provisional employee under the title supervisor of case work, to assume and perform the duties and functions performed by the relatrix prior to the latter's discharge.
The prayer of the amended petition of relatrix is as heretofore indicated.
Mr. M. Ray Allison, for relatrix.
Mr. Thomas J. Herbert, attorney general, Mr. John P. Walsh and Mr. David M. Spriggs, for respondents.
It was conceded on oral argument that the amended petition of relatrix states facts which, if proven, would entitle her to relief as against the respondents McCaw and Sherwood.
It is apparent, however, from the amended petition that the complaint made and relief sought against the respondents McCaw and Sherwood are not identical with the complaint made and relief sought against the respondents Smith and Emmons, and that there is, therefore, a misjoinder of causes of action and of parties respondent. O'Brien et al., Receivers, v. Fitzgerald, 143 N.Y. 377, 38 N.E. 371.
The relatrix seeks to have Elinor Hixenbaugh, who is not a party to this action, ousted from her position through a court order requiring the respondents Smith and Emmons to discontinue her incumbency and to disapprove the payment of her salary. In so doing the relatrix seeks, in effect, an injunctive remedy to restrain and enjoin these respondents from recognizing the so-called incumbent. No specific official position is here involved, and the relatrix can be interested only in her own restoration to her former position.
This court has no original jurisdiction in injunction and the amended petition shows no cause of action in mandamus against the respondents Smith and Emmons. State, ex rel. Penn Mutl. L. Ins. Co., v. Hahn, 50 Ohio St. 714, 35 N.E. 1052.
The demurrer of the respondents Smith and Emmons to the amended petition is sustained on the ground that it does not state a cause of action against them, and the demurrer of the respondents McCaw and Sherwood is sustained on the ground that there is a misjoinder of parties respondent.
Leave will be granted to relatrix to plead further.
Demurrers sustained.
WEYGANDT, C.J., DAY, ZIMMERMAN and MATTHIAS, JJ., concur.
WILLIAMS, J., concurs in the judgment.
MYERS, J., not participating.