Opinion
No. 36137
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.
Relator alleges in his petition in mandamus, filed originally in this court, that he now is and has been since January 16, 1928, an employee of the Bureau of Workmen's Compensation and the Industrial Commission and has attained the age of 71 years; that in accordance with the provisions of Section 145.32, Revised Code, and on or about May 15, 1959, he requested the respondent, Young, Administrator of the Bureau of Workmen's Compensation, that he, the relator, be permitted to remain on the job in his regular position and attached to his request a medical report of a physician who found him physically fit and capable of performing his duties; that relator received from respondent a communication that the uniform state-wide policy established by the Governor will require retirement on June 30, 1959, of all employees who have attained or will attain the age of 70 by the end of the current year; and that respondent threatens to remove relator from his position as of June 30, 1959, and in so doing will violate the provisions of Section 145.32, Revised Code, by taking action in a manner not authorized by such section.
The prayer is for a writ of mandamus requiring respondent to refrain from removing relator from his position and from the payroll and to retain relator in his present position until such time as he may lawfully be retired.
Respondent has filed a demurrer to the petition for the reason that it does not state facts constituting a cause of action.
The case has been submitted on the petition and the demurrer thereto.
Mr. Merrill D. Brothers, for relator.
Mr. Mark McElroy, attorney general, and Mr. William G. Carpenter, for respondent.
Before a writ of mandamus will issue there must be a duty specially enjoined by law on the respondent. Section 2731.01, Revised Code; State, ex rel. Selected Properties, Inc., v. Gottfried, 163 Ohio St. 469, 127 N.E.2d 371; State, ex rel. Hepperla, v. Glander, Tax Commr., 160 Ohio St. 59, 113 N.E.2d 357; State, ex rel. Cook, v. Civil Service Comm., 152 Ohio St. 71, 87 N.E.2d 252.
The provisions of Section 145.32, Revised Code, relative to voluntary and compulsory retirement, clearly and unequivocally repose in the respondent 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. Hawke, v. Davis, Governor, 102 Ohio St. 216, 131 N.E. 348; State, ex rel. Armstrong, v. Davey, Governor, 130 Ohio St. 160, 198 N.E. 180; State, ex rel. Kay, v. Lausche, Governor, 161 Ohio St. 168, 118 N.E.2d 414; State, ex rel. DeVille Photography, Inc., v. McCarroll, Judge, 168 Ohio St. 337, 154 N.E.2d 640.
Demurrer sustained and writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.