State ex rel. Osborn v. Jackson

O’Neill, C. J. The relator, in support of his request that a writ of mandamus be allowed, contends that under the provisions of R. C. Chapter 124, the Civil Service Act, and R. C. Chapter 119, the Administrative Procedure Act, the Court of Common Pleas of Franklin County has no jurisdiction to hear an appeal filed by the Director of the Department of Transportation from an adverse decision-of the State Personnel Board of Review disaffirming the director’s layoff of relator and ordering relator restored to his job. The relator also contends that since the director has no statutory right of appeal to the Court of Common Pleas, the director is under a clear legal duty to comply with the board’s order to restore relator to his job and relator has no plain and adequate remedy in the ordinary course of the law. The director asserts that, since he has attempted to appeal the decision of the board to the Court of Common Pleas, and that court has determined its own jurisdiction and accepted and ruled upon that attempted appeal, mandamus will not lie because the relator has a plain — 44 — and adequate remedy in the ordinary course of the law by way of appeal to the Court of Appeals. The director makes two other contentions: The first is that the jurisdiction of the State Personnel Board of Review to hear appeals relative to layoffs is restricted to cases in which it is alleged that the layoffs are politically motivated or the result of personal discrimination; the second is that under R. C. Chapter 119 the state has a right to appeal to the Court of Common Pleas from an adverse decision of the State Personnel Board of Review relative to layoffs. "With regard to both of these latter contentions, the director urges that they need not be decided by this court in this mandamus action, but should be left for consideration on appeal to the Court of Appeals in the case pending (decision not journalized at the time of oral argument of the instant case before this court) in the Court of Common Pleas on appeal by the director from the board’s order. This court agrees with the contentions of the relator. The judgment of the Court of Appeals is reversed and the writ of mandamus is allowed. I. The first question presented is: Does the relator have a right of appeal to the State Personnel Board of Review (board) from a layoff order of the director, laying off the relator from his job for the alleged reason of lack of work? The answer to that question is: The relator has a right of appeal to the board. That right is set forth in plain language in R. C. 124.03 (formerly R. C. 143.012). The pertinent language in R. C. 124.03 is: “The State Personnel Board of Review shall exercise the following powers and perform the following duties of the Department of Administrative Services: “(A) Hear appeals, as provided by law, of employees in the classified state service from final decisions of appointing authorities * * * relative to * * # layoff * * *: the board may affirm, disaffirm, or modify the decisions of — 45 — the appointing authorities * * *' and its decision is final; The controlling rule of law is stated in [State, ex rel.] Kendrick v. Masheter (1964), 176 Ohio St. 232, 199 N. E. 2d 13, in paragraph one of the syllabus, as follows: “The State Personnel Board of Eeview has jurisdiction under Section 143.012, Eevised Code [now E. C. 124.-03], to hear, in accordance with the applicable procedural requirements of Chapter 119, Eevised Code, appeals by employees in the classified state service from final decisions of appointing authorities relative to layoff.” Bespondent contends that the jurisdiction of the board to hear an appeal of the relator relative to a layoff is restricted to cases where layoffs are alleged to be politically motivated or the result of personal discrimination. The Court of Appeals raises that same issue in its opinion but does not decide it. Both the respondent and the appellate court rely upon the case of Curtis v. State, ex rel. Morgan (1923), 108 Ohio St. 292, 140 N. E. 522. Bespondent’s contention is without merit. The Curtis case, although it may have been good law when decided in 1923, is not relevant to the instant case because the statute upon which the court relied in Curtis no longer exists. Gr. C. 486-17, upon which the court so heavily relied in Curtis, was recodified, in substantially the same language, as E, C. 143.26, which séetion was repealed in 1961. There is no language in E. C. 124.03 which requires a classified state employee in an . appeal from a layoff order to allege political prejudice or personal discrimination as a reason for the layoff in order for the board to have jurisdiction to hear the appeal. In language that is unmistakably clear, E. C. 124.03 (A) provides that the State Personnel Board of Eeview shall hear the appeal of a classified state employee who is laid off. The statute does not make the authority to hear an appeal of a layoff order dependent upon the reason for the layoff. In light of the repeal of E. C. 143.26, a limitation can not be implied. — 46 — If the General Assembly" had intended • to . limit the board’s power to hear layoff appeals to layoffs on accbrmt ■of political or religious affiliation, it could'have done so. It did not. Instead, it repealed the former language of limitation.; . '. " ' ' ■ - ’ "■ / ■’ Thé term “layoff” has . a ■ simple, plain meaning. Through enactment of R. C.' 124.03(A) of the Civil Service Act; the General Assembly- conferred power upon the State Personnel-'Board of Review-to hear layoff'appeals of classified state employees, and gave- the board power to affirm, disaffirm or modify decisións as to.- layoff. ' II.i ‘.The second question which this court'must determine is-: Does the director-have a right of'appeal to' the"' Court of Common Pleas of ■ Eranklin-County ■ from an-order of the board disaffirming'the director ’s layoff of the - relator for- alleged lack of' work? The answer to that question-isThe director does not have such-'a right of appeal.- R. C. 119.01 and ’119:12; Corn v. Bd. of Liquor Control (1953), 160 Ohio St. 9, 113 N. E. 2d 360 (two cases). . ■ • If- the director has' -a: right of - appeal-from an order of the board to the-'-Court" of Common Pleas, that' right must-be conferred by authority'of” the.Ohio Constitution, or by authority of.-a statute. Lindblom v. Bd. of Tax Appeals (1949), 151 Ohio St. 250, 85 N. E. 2d 376. The second paragraph of-the-syllabus reads as follows;1 ^ <• “There is no right of appeal from:a decisión'bf a-statutory board * *■ *‘except- as provided by statute.” ' -That -r'ulevofi law was laid, down by this court in a unanimous decision in Corn, supra, where Stewart, J., said; at page 11: ' ‘‘ :■'> ' “It is the géneral law of the land and is settled as the law bf this :state that, although one has an inherent and inalienable -right to a fair' and - impartial hearing or trial with reference to any infringement of his natural, statutory, or constitutional rights, the right of appeal from the result of such trial is not an inherent or inalienable right — 47 — but must be conferred by constitution or statute. City of Middletown v. City Commission of Middletown, 138 Ohio St., 596, 37 N. E. (2d), 609; Lindblom v. Board of Tax Appeals, 151 Ohio St., 250, 85 N. E. (2d), 376.” There is no provision of the Ohio Constitution which confers a right of appeal to the Court of Common Pleas upon the director from an adverse decision of the board. The director does not claim such a constitutional right of appeal and the Court of Appeals, in its opinion, does not cite any provision of the Constitution or any case law which purports to confer such a right. E. C. 124.03, which is the pertinent section of the Civil Service Act, does not confer a right of appeal upon the director to the Court of Common Pleas from an order of the board disaffirming the director’s layoff order. In fact, the director does not contend that E. C. 124.03, or any other section of the Civil Service Act, confers such a right of appeal upon him. Therefore, if the director has a right of appeal, such a right must be found to be conferred upon the director by the Administrative Procedure Act. The pertinent sections of that Act are E. C. 119.01 and 119.12. In 1945, the General Assembly amended G. C. 154-73 (now E. C. 119.12) to read as follows: “Any party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the Common Pleas Court of Franklin County.” That language has remained as a part of E. C. 119.12 from 1945 to the present time. At the same time, in 1945, the General Assembly amended the definitions in G. C. 154-62 (now E. C. 119.01). The definitions of “agency,” “person,” “party,” “appeal” and “adjudication” were‘carefully designed, drafted and enacted into law. The General Assembly defined, with great care, who has a right of appeal to the Court of Common Pleas from any order of a state review agency issued pursuant to an adjudication. The General Assembly deliberately and specifically did not grant a right. — 48 — of appeal to a board, a department, \or a director of .a department from an order of a state administrative review agency issued- under the Administrative Procedure Act, except in certain instances which are specifically set forth in the statute and are not applicable here. The effect of those 1945 amendments and their validity were at issue and determined by this court in the Corn case, supra (1953). Stewart, J:, succinctly analyzed the pertinent sections of the Administrative Procedure Act and summarized the law, at page 20 in that opinion, as follows: “Since the board, the department, and the director are agencies as defined by the Administrative Procedure Act, since, agencies are not included 'in the definition, in such act, of either 'person’ or ‘party/ since the right of appeal is given by Section 154-73, General Code [R. C. 119.12], only to a party adversely affected by an order of an agency, and since there is an absence of specific legislation conferring the right of appeal upon an agency, we are. inexorably driven to the conclusion that the board, the department or the director does not have that right. If those agencies ought, to have the right, the General Assembly, of course,, has the authority to confer it. Whether that should be done is a legislative and not a judicial problem.” (Emphasis added.)* The Court of Appeals, when faced with the language in the Administrative Procedure Act, R. C. 119.01 and 119.12, and the decisions in Corn and Lindblom, supra, made an effort, in its opinion, tó circumvent the statute and the decision in Corn by asserting that in the Corn case the appeal was by the board, the department and the director, — 49 — whereas, here, it was an appeal to the Court of Common Pleas by- the State of Ohio, ex rel. Richard D. Jackson, and not by Richard D. Jackson as the appointing authority. ■ s It is: the:appellee’s contention that the state of Ohio is a 11 party adversely affected” by- the May 14,' 1975, order of the State-Personnel Board of Review, and, as such, the state may properly appeal the order to the Court of Common Plea's under the Administrative Procedure Act, and specifically under R. C. 119.12. R. C. 119.12, in relevant part, provides as follows: : • “Any party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the Court o.f Common Pleas of Franklin County * # # (Emphasis added.) ..’■■■ ' : The. word, party is defined by statute. A party is “[t]he pers'on whose interests are the subject .of an adjudication by an agency.” R.C, 119.01(G). The Administrative Procedure Act defines person as “a person, firrn, corporation, association, or partnership,” R. C. 119.01(F). To be a.'party one must first be a person. The’Administrative Procedure Act’s definition of the word p’erí son does nót,include the state, Nor does it include any state agency. Nor- does it include the director of . any agency. Nor is the state on the relation of any department, director or agency &' person. . ' • If the -General Assembly had intended to give: the director of a state department or the state on relation of the director- a right-of appeal, it could- have done so. It did not. In fact, the General Assembly gave both the .employee and the director a right of appeal in those instances' where it so intended and did not give the right of appeal where it so intended.. In R. C. 124.34, the pertinent language reads as follows: ' . . “In cases of removal or reduction in pay for disciplinary reasons,' either the appointing authority 'or the officer or employee may appeal from the decision of the State Personnel Board of Review # * * to the Court of Common — 50 — Pleas of the county in which the employee resides in accordance with the procedure provided by Section 119.12 of the Revised Code.” According to R. C. 119.01 and 119.12, an employee has a right of appeal to the Court of Common Pleas from an adverse decision of the State Personnel Board, of Review relative to a layoff order, but neither the state nor. the director of a department has a right of appeal to the Court of Common Pleas from an adverse decision of the board relative tó a layoff order. It is crystal clear that under R. C. 119.01 and 119.12, the state of Ohio is not a party adversely affected by the May 14,1975, order of the State Personnel Board of Review. If the rationalization for which the respondent contends were to prevail, it would make a meaningless mockery of the definitions carefully and deliberately drafted and enacted by the General Assembly in R. C: 119.01, as applied to the right of appeal provided in R. C. 119.12, and the holding of this court in Lindblom and Corn, supra. III. The third question to.be.determined by this court is: Where the jurisdiction of a Court of Common Pleas to hear an appeal by a state department director from a decision, of a state review board is .questioned on the valid ground that,no.constitutional or statutory right of appeal has been conferred upon the appellant, should the Court of Common Pleas be afforded the opportunity to determine its own. jurisdiction, and,, in the event that the court holds that it has jurisdiction, should a request for amextraordinary writ of mandámus be denied on the ground that the relator, has a plain and adequate remedy in the ; ordinary com-se of the law by way of appeal? The answer to that question is. that a .superior..court will afford an inferior court the opportunity to decide its own. jurisdiction before granting an extraordinary writ (State, ex rel. Mansfield Telephone Co., v. Mayer [1966], 5 Ohio St. 2d 222, 215 N. E. 2d 375), but where the court, in deciding.its own jurisdiction attempts to confer jurisdiction upon itself where in fact no jurisdiction whatsover — 51 — exists, such.amdmproper assumption 'of -jurisdiction ia a usurpation .of ■ judicial power and any order made by a Court of Common Elgas pursuant to such a usurpation, of - judicial power ¡is :void- and of no foree-or effect. Where/-asin the -instant cause, the trial'-court’s action is a usurpation of judicial power and any order it makes is, therefore; void,- a superior'court will not deny an extraordinary: writ upon-, the ground that the.relator-has. a, plain.and "adequate remedy in the.-tordinary course of the law by. way of ■ appeal; State, ex rel. Northern Ohio Telephone Co. v. Winter, (1970), 23 Ohio St. 2d. 6, 260 N. E. 2d 827; State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St. 2d 326, 285 N. E. 2d 23; and Cincinnati v. Whitman (1975), 44 Ohio St. 2d 58, 337 N. E. 2d 773. • ■' In WMterc,:supra, Justice .Duncan, stated,-at pages miné ándtenA. A ‘‘Wet-bold;that ■ the action- -of. -the-- Court■■ of. Common Pleas is unauthorized by-law and amounts-: to a usurpation of judicial.power. *.*■*. -.=. ■ , I1 i ; - ; f. ?. = * tThe order, -of- the Court .of .Common1 Pleas; insofar as it enjoined the discontinuance,of service by-1 relator, in effect suspended the commission’s order, and was-not-Unthorized hy.-law;-/.. •- -• ■ ■ A .;*! -A ‘‘Eesponidentuelies upon the,, case of State ex rel. Mansfield Telephone Co., v. Mayer 5 Ohio St. 2d 222, arguing that ;a ,Courtiof 'Common Pleas -must..have-the. opportunity to-decide its own-jurisdiction, subject-to the--right of appeal.,! However, in .the Mansfield- o.as.e it-was.-held that a-.writ of -prohibition would not issue -before the. Court óf Common Pleas was given an-opportunity .to decide-i-ts" own jurisdiction;: The instant cáse, .differs- from -the) ‘Mansfield case in that, iin .this case, the. .Court of CommonrPleas, had such.an opportunity, and decided, the jurisdictional .(pies'tion.”:-, , In Qusw&iler, supra, Justice Schneider stated‘at page 329: ." . ■ . - • “If an inferior court is without jurisdiction whatso — 52 — ever to act, the ayailablity or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by the inferior court.” Winter, supra, and Gusweiler, supra, were prohibition cases. In Whitman, supra, where the Director of Environmental Protection ordered the city of Cincinnati to add fluoride to its water, this court affirmed that order even though the Court of Common Pleas of Hamilton County, in a declaratory judgment action, enjoined the city from carrying out the order of the director and that judgment was not appealed. This court based its order upon the reasoning that since there was a defect of parties in the declaratory judgment action, the trial court was without jurisdiction and its action was a usurpation of judicial power and its order was void. The same principle applies in the instant cause. The Court of Common 'Pleas is without jurisdiction to act because the director has no right of appeal to that court. The court’s assumption of jurisdiction where none exists is a usurpation of judicial power and its orders are void. IV. The final question for determination is: Should a writ of mandamus issue? The answer to that question is that, based-upon all the facts and circumstances of this case and the justice to be done, this court, in the exercise of sound legal and judicial discretion, should allow a writ of mandamus. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141, 228 N. E. 2d 631, paragraphs one, seven and nine of the syllabus. The State Personnel Board of Review issued a final older to the Director of the Department of Transportation, disaffirming the order of the director laying off the relator and S44 other employees of that department for lack of work. The director refused lo comply with that order.' The director has no right to appeal that order to the Court of Common Pleas of Franklin County, therefore, the — 53 — director, as a public officer, is under a clear legal duty to perform the official act of complying with the order of the board and restoring the relator and the other employees to their jobs. The relator has no plain and adequate remedy in the ordinary course of the law. An action in mandamus will lie in this court, requiring the director to comply with the board’s order, Pressley, supra. What are the facts and circumstances of this case and the justice to be done that, in the exercise of sound legal and judicial discretion, support a conclusion that the court should allow the writ? Three hundred and forty-five employees of the Department of Transportation have been without jobs for at least ten months. The reason they have been without jobs is that the director of the department attempted to appeal a board order to the Court of Common Pleas where, according to law, there' is no right of appeal, and the court assumed jurisdiction of that appeal where, under the law, that court had no jurisdiction. If the case pending in the Court of Common Pleas is permitted to continue on appeal to the Court of Appeals and to this court, then another ten months of delay will ensue. When that case, reaches this court the controlling question of law will be the precise question that is before this court in the instant cause, i. e., does the: director of a state department have a right to appeal to the Court of Common Pleas an adverse decision of the State. Personnel Board of Review toith regard to a layoff order. That question is controlled by statutes (which cannot be changed to effect this case) and case law well known to the General Assembly and left unchanged by it for more than 20 years. In the meantime, the employees and their families will suffer the readjustment and the hardships of unemployment and the taxpayers in the end will be required to pay large sums in back pay for which no service will have been rendered to the' state. Monaghan v. Richley (1972), 32 Ohio St. 2d 190, 291 N. E. 2d 462. Por éxample,'if the involved 345 employees’ average — 54 — salary'is.-$500 per month, which is probably a conservative'estimate,. then the present ten mouths’ delay will cost the taxpayers-possibly $1,725,000 in back pay (less whatever the employees have earned by- diligent, effort -to find employment.)', for which no .service will.have been rendered to.the state. T.o deny the .writ and cause the case to- continue on appeal will double that cost-.to the .taxpayer .to a possible'$3;450,000 for no.service rendered to the state. For this-court to pursue such a course makes no sense either as a.practical matter-.or in law. According to law, an action in :mandamus .will lie in this court; requiring-the director to comply with the board’s order..Based upon all-the facts and circumstances-in-this case and. the-'justice;-to be-- done, in. the exercise of sound legal and judicial discretion ■ a writ should-issue. Pressley, supra, paragraph seven of the syllabus. The. judgment of the Court of Appeals -is reversed and the judgment .-which ,■ the. Court of Appeals-.should have granted is entered'allowing the. writ-and'requiring the .director .to; -restore the relator and the. 344 other classified- state-.employees .named in-, the May 14, 1975, order-, of the board;-to. their .jobs; with, the; Department -of "Transportation’; . ■■■ '. be--i - - - ■ :• ■■*- - Judgment reversed -and-writ, odloived'-.: .•.•."'■'TIeruekt, SíEnsy-Celerrezze .and-.W.--Brown, JJ., concur. r • Corrigan and P-.-Beown, JJ,, dissent, ■■ Footnotes [*] In apparent response to the holding in the Corn case, the General Assembly amended R. C. 119.12 in Amended Senate Bill No. 342 (125 Ohio Laws 488), effective October 21, 1953, to provide for an appeal by “the party or the agency” from the judgment of the Court of Common Pleas to the Court of Appeals, but the General Assembly did not grant the right of appeal to the director of a state department from an adverse decision of a state reviewing agency to the Court of Common Pleas.