5 N.E.2d 331 | Ohio | 1936
For more than eight years White served *113 on the city police force. On December 31, 1931, he was stricken with illness, which incapacitated him from performing his duties as patrolman. In the meantime the department carried him on the payroll for a period of a little more than a year after he became incapacitated, and then removed him from the payroll. It appears that when this petition was filed, the patrolman had not only been continuously incapacitated for duty for more than four years, but that he was then an incompetent.
The petition of, relator does not state that White was illegally removed from his position, but that he was wrongfully suspended from the payroll and thereby deprived of his wages as a patrolman. Section 12283, General Code, provides that a writ of mandamus may issue "commanding the performance of an act which the law specially enjoins." Section 486-17a, General Code, protects the tenure of officers and employees in the classified service and pertains to their removal from employment or office. But no specific duty is thereby enjoined respecting the deprivation or restoration of emoluments pertaining to the office or employment. Mandamus could not, therefore, be employed for the purpose of restoration of the patrolman's wages.
Section 12287, General Code, specifically provides that a writ of mandamus "must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law." This court has frequently adhered to that principle, and the Court of Appeals, in the instant case, refused the writ on that ground. Whether the relator has an adequate remedy at law we are not called upon to decide.
In support of their position, counsel for relator cite the cases, City of Cleveland v. Luttner et al.,
The petition alleges that, by reason of his suspension from the payroll, "he has lost his rights to, and participation in, a certain insurance fund provided by said Department of Police for its members". This feature of the case is not before this court for two reasons: (a) The action is not predicated upon any insurable or pensionable status that the relator might have. It is based entirely upon his right to recover a stipulated wage by reason of the wrongful action of the director of public safety. (b) The petition does not set forth any provisions of the city charter or *115
rules adopted pursuant thereto respecting any insurable interest which the relator's ward might have had; and it is elemental that, while municipal courts could take judicial notice of municipal law, a court of general jurisdiction cannot do so. They must be pleaded. 31 Ohio Jurisprudence, 549; 17 Ohio Jurisprudence, 51. The rules applicable to the pleading of municipal ordinances are applicable to municipal charters as well, and it was so stated by Robinson, J., in MarylandCasualty Co. v. McDiarmid,
The petition on its face discloses neither legal nor equitable grounds for the awarding of a writ of mandamus. When the ward was separated from the payroll on January 16, 1933, if charges had been filed against the patrolman, the latter, from that time until the present, could have had no defense against the action of the director of public safety; for it is conceded that during the whole of that period he has been incapacitated for duty. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, MATTHIAS and ZIMMERMAN, JJ., concur.