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(148 N.E.) school. No authority has been cited upon | fected rights involved in cause pending in court this proposition, but the defendant in error of common pleas, Commission was without jucontends that, since the right of mandamus risdiction. was granted in the Masters Case, necessarily no action for money exists herein.

Error to Public Utilities Commission. This specific question was reserved for de Separate proceedings by property owners cision in the Masters Case. However, the before the Public Utilities Commission to replaintiff in error here is in quite a different | quire the Federal Gas & Fuel Company to position from the plaintiff in the Masters Case. make service connection and furnish service In the Masters Case the parent was endeav- to residence properties. Commission's order oring to make a school board perform its required respondent to establish service conduty. In this case the plaintiff in error has nections, and latter brings error. Order reproceeded to perform the duty enjoined by versed.--[By Editorial Staff.) statute upon the school boards. He therefore, through no fault of his own, has been and apply for similar relief. The complain

These three cases involve similar facts placed in a position where it would be futile to resort to mandamus. Under these circum- ants in the case before the Public Utilities stances the defendants in error cannot be Commission are all owners adjacent to and · heard to say that, because mandamus would along property in which carrying lines of have lain if the father had not transported the Federal Gas & Fuel Company, the plainhis children, an action for money will not

titf in error, are located. now lie.

In cases 18987 and 18989 a single com[4] The defendants in error seem to con

plainant asks the Public Utilities Commissider that an action for money is an extraor- sion to order a single defendant, the Federal dinary action which does not lie if an ac

Gas & Fuel Company, to make service contion for mandamus could be brought under nections with and furnish service to his the circumstances of the Masters Case. In newly constructed residence. other words, because mandamus is an ex

In case No. 18988 some 30 plaintiffs, 'jointraordinary writ, the defendants in error ap- ing four gas companies as defendants, ask parently maintain that an action for money relief similar to that prayed for in cases is an extraordinary remedy-surely a novel 18987 and 18989. contention. Defendants in error, however,

The complainant in cases 18987 and 18989 lose sight of the fact that, when the parent prayed the Public Utilities Commission to has actually transported his children, he order the Federal Gas & Fuel Company to can, of course, bring no action for mandamus invest additional capital into making new to compel the school board to do the thing service connections with the residences of which he has done after their default. The the complainants. The answer in each case fact that, at a little different stage in the alleged that the company ceased to be a puhproceedings, mandamus would lie is no an

lic utility in Columbus upon November 10, swer to the argument of the plaintiff here 1924; that it had during all of the period that, when he has expended money, time, and in question no franchise contract with the effort in performing a duty enjoined by stat- city of Columbus; that since November 10, ute upon the boards, he is entitled to re- 1924, the gas company has been compelled ceive a money reimbursement.

by an injunction issued by the court of comThe demurrer will be overruled, and the

mon pleas of Franklin county, Ohio, to conjudgment of the lower courts reversed.

tinue to furnish gas to consumers then on Judgment reversed.

its lines in Columbus, Ohio, and that the

case is still pending in the court of common MARSHALL, C. J., and MATTHIAS, DAY, pleas of Franklin county. These facts alKINKADE, and ROBINSON, JJ., concur. leged in the answer were admitted at the

JONES, J., dissents from proposition 4 hearing. In each case the answer alleged of the syllabus and from the judgment. that the proceeding before the Commission

would directly affect the rights involved in

the court of common pleas of Franklin counFEDERAL GAS & FUEL CO. v. PUBLIC statement of the complaint, and that the

ty, that, therefore, the Commission had no UTILITIES COMMISSION OF OHIO. (Nos. 18987-18989.)

statute under which the power of the Com.

mission was authorized to be invoked was (Supreme Court of Ohio. May 19, 1925.) unconstitutional as being a derogation of ju(Syllabus by Editorial Staff.)

dicial power.

In case No. 18988 the complaint charged Public Service Commissions will Public

Utilities Commission held without jurisdiction that the four named defendant companies of complaint affecting rights involved in

are in effect and in law one public utility cause pending in common pleas court.

and that the real defendant is the holding Where complaint filed with Public Utilities company, the Ohio Fuel Supply Company, of Commission, and order prayed for directly af

which the other defendant companies are

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OmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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arms or agencies, and that the Ohio Fuel, pleas of Franklin county, the Commission
Supply Company is guilty of unlawful dis- has no jurisdiction of the complaint. The
crimination in refusing to make the connec- order must therefore be reversed upon the
tions requested. Each of the four defend authority of the case of Incorporated Village
ants filed a separate answer in the case, but of New Bremen v. Public Utilities Commis-
in the answer of the Federal Gas & Fuel sion, 103 Ohio St. 23, 132 N. E. 162.
Company it was a verred that an action was Order reversed.
pending in the court of common pleas of
Franklin county, in which rights were in JONES, MATTHIAS, DAY, ALLEN, and
volved that would be directly affected by ROBINSON, JJ., concur.
the complaint and order prayed for before KINKADE, J., not participating.
the Public Utilities Commission. The Com-
mission, upon hearing, granted the prayer
of certain complainants; its order being in
part as follows:

STATE ex rel. LAMB V, SWISHER et al.

(No. 19069.) "Said the Federal Gas & Fuel Company be, and hereby it is notified, directed and required, (Supreme Court of Ohio. May 26, 1925. Rewithin ten days from the date of the service of

hearing Denied Sept. 29, 1925.) this order, to establish, or cause to be established, the service connections necessary to

(Syllabus by the Court.) inaugurate the furnishing of natural gas serv- Mandamus Cm77(4) – States em 53 - Rein. ice and to thereupon inaugurate the furnishing

statement of employé after absence without of its said services, at the premises for which

leave held discretionary with civil service application has been made to it by the following named parties, and each of them, to-wit: all

commission with consent of appointing offi

cer; writ to compel reinstatement of civil in the City of Columbus, Ohio.

service employé, absent without leave, de"And it appearing further that it would re

nied, unless discretion abused. quire extensions of the distributing lines of this defendant company in order to provide

Reinstatement of an employé in the classiservice connections for the other premises de- fied service under rule X, section 10, Rules and scribed in the complaint herein and, since this Regulations of State Civil Service Commission, Commission has only reviewing jurisdiction in and section 486—16, General Code, relating to the matter of extensions and there is no evi- absence from duty without leave for more than dence that the City of Columbus has initiated 10 consecutive days and failure to report withany legislation which would require the com

in 10 days after revocation of leave of absence, pany to extend its distributing lines, the Com- is a matter in the sound discretion of the Civil mission is without jurisdiction at this time to Service Commission, with the consent of the order such extension to be made."

appointing officer, and, unless some affirmative

abuse thereof appears, a writ of mandamus to It appears from the record that the peti- compel such reinstatement will be denied. tion filed in the court of common pleas is in

Original action in mandamus by the State language in great part identical with the lan- of Ohio, on the relation of Grace M. Lamb, guage of the complaint filed before the Pub-agaist Rollin Swisher and another, as the lic Utilities Commission, charging that the State Civil Service Commission of Ohio. four named defendant companies are in ef- Writ denied.—[By Editorial Staff.] fect and law one public utility, and that the Columbus Gas & Fuel Company is but an

Arthur L. Rowe, of Coalton, and Joseph arm of a public utility which comprises all McGhee, of Columbus, for relator. of the four gas companies named as defend

C. C. Crabbe, Atty. Gen., and Arthur H. ants.

Wicks, of Columbus, for respondents. The case comes into this court upon peti

DAY, J. This is an action in mandamus tion in error.

brought by Grace M. Lamb against Rollin Freeman T. Eagleson, of Columbus, for Swisher and William S. Bundy, as the state plaintiff in error.

civil service commission of Ohio. C. C. Crabbe, Atty. Gen., and John W.

The facts in the case briefly are that said Bricker, of Columbus, for Public Utilities Grace M. Lamb was appointed on June 13, Commission.

1922, to a position as stenographer in the Charles B. Cranston and Charles A. Leach, classified service of the state, and was proboth of Columbus, for complainants in No. moted on January 3, 1923, to the position of 18988.

stenographer, grade II-B; the same being in J. M. Lewis, of Columbus, for complain the classified service of the state. She coll. ants in Nos. 18987 and 18989.

tinued in said position until on or about the

16th day of June, 1924, when, because of ill PER CURIAM. Inasmuch as the record health, she was compelled to be absent from shows that the complaint filed with the Pub- her position. She continued upon the pay lic Utilities Commission and the order roll at $90 per month from said June 16, prayed for directly affect rights involved in 1924, to January 31, 1925, and received her the cause pending in the court of common ) salary down to the latter date.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(148 N.E.) On January 31, 1925, the civil service com- able to return to her work, leaving the impresmission granted a formal leave of absence to sion with us each time that she was well on the the relator for one year, but, upon February road to recovery, but as yet it has not been 28, 1925, said civil service commission can- | possible for her to return to duty.

"Miss Lamb has not been discharged or disceled and revoked the relator's leave of ab

missed from the service. We have merely sence and so notified her. Said notification found it necessary to terminate her leave, and, was in words as follows:

as our letter to her stated, at the time she is

able to return to work, in case there is no va"We regret to notify you that the condition cancy in this office, we will be glad to endeavor of the work of the position of stenographer, to place her at a similar salary in one of the grade II, in the examination division, has other various state departments.” reached the point requiring the permanent assignment of the incumbent, and it has therefore

At the close of said correspondence, the become necessary that your sick leave be ter civil service commission, at a meeting of minated by this commission as of February 28, March 12th, placed the following upon their 1925.

"We regret extremely the necessity of this records: action, but feel that you will readily understand

"In accordance with section 10 of rule X of the difficult position of this commission in ad- the Rules and Regulations of this Commission, justing the work of this office over so long a Grace Lamb, having been absent from duty period as has been necessary on account of without leave from her position of stenograyour sickness. Miss Foster has been satisfac-pher, grade II in this department, for 10 contorily filling your position, and, inasmuch as we secutive days from the expiration of her leave did not wish to lose her services since becom- of absence as of February 28, 1925, the coming so familiar with the duties of this position, mission directs that her separation from the it became necessary, in order to retain her in service be entered upon the official roster as this office, to grant her this permanent promo- an automatic resignation effective this date."

"However, we will only be too glad, of course,
at such time as you desire to return to work, 230, notified the respondents that she was

Subsequent thereto, the relator, on March
to effect your reinstatement and subsequent
transfer to the same or similar position

ready and willing to return to her position, other department of the state service, in case but respondents on said day refused to recthere is no vacancy in this office at that time.” ognize the relator as entitled to the position

that she formerly held, and still refuse to On March 6 following, the relator, through permit her to perform the work and duties her attorney, wrote the civil service commis- of said position, although the relator claims sion as follows:

to be now ready and willing and offers to “Miss Grace Lamb of Middleport, Ohio, has

perform said duties. forwarded me letter signed by Mr. Forsythe,

It is the claim of the relator that under secretary of your commission, under date of section 486—14, General Code, the filling of February 28, 1925, notifying her that her sick the position of the relator could legally be an leave was terminated by the commission of that emergency appointment only and a temporary date. Miss Lamb, as you know, has been ill, one, made necessary by reason of the sickand will soon be able to go back to work. Will ness and disability of the relator; that the she be restored to her former position, or shall respondents, the state civil service commisshe consider your letter of February 28th, as a sion, had no authority or right during the notice of discharge from which she must apo sickness of relator to "permanently” disqualpeal? I trust you can arrange to restore Miss Lamb to her position. Awaiting your reply, ify her from said position and deny her the etc."

right to fill the same. This claim is chiefly

based upon the letter of February, 28th Under date of March 10, the commission wherein is used the expression: sent the following letter in reply to the let "Miss Foster has been satisfactorily filling ter written by the attorney for the relator: your position, and, inasmuch as we did not wish

"The condition of the duties of the position to lose her services since becoming so familiar of stenographer, grade II, in this office, occu

with the duties of this position, it became necpied by Miss Grace Lamb prior to her illness, essary, in order to retain her in this office, to compelled this commission to revoke and cancel grant her this permanent promotion." her sick leave, which had extended over a long period of time, effective as of February 28,

The relator, therefore, claims that the 1925.

"permanent promotion" of Miss Foster to "This commission feels that we have been the position formerly occupied by the relatunusually fair with Miss Lamb, and have given or is in violation of that portion of section due consideration to her unfortunate illness. 486–14, General Code, which provides: However, the conditions of the work in this office will not permit this situation to extend in "In of an emergency an appointment may definitely, and, while we appreciate that her ill be made without regard to the rules of this act, dess is unavoidable, it was our opinion, in the but in no case to continue longer than thirty best interests of all concerned, that her leave days, and in no case shall successive appointbe terminated, and she was so notified.

ments be made; provided, however, that in"On frequent occasions in the past Miss terim or temporary appointments, 'made necesLamb has sent word to us that she will soon besary by reason of sickness or disability of regu

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lar officers, employés or subordinates shall con-, salary in another department, she denies the tinue only during such period of sickness or right of the commission to "shift her from disability, subject to rules to be provided for by job to job,” although at the same salary, the commission."

and she asks that the respondents be required In reply to the contention made under this by mandamus to permit her to perform and section the respondents claim that the so-exercise the duties and functions of her called permanent promotion of February 28th former position, and that the necessary orwas in fact, and in truth, a temporary pro- ders, vouchers, or warrant be issued to her motion only, and a fulfillment of the provi- for her compensation from and after March sions of section 486—14. In support there- 23, 1925. of, the minutes of the commission under date

The respondents deny the right of the reof February 27, 1925, are offered in evi-lator to the relief prayed for, upon the dence. The same are as follows:

ground that, under sections 9 and 10, of rule “In view of the fact that the duties of the published by the commission under section

X of the state civil service commission, position are of such condition as to require adjustment, the commission, after careful con- | 486—16, General Code, ample authority is sideration, directed that the indefinite leave granted the respondents, and it became their of absence granted Grace Lamb, stenographer, duty under the circumstances to proceed in grade II, rate C, this department, be canceled the manner in which they did. Said sections as of February 28, 1925, and approved the are as follows: temporary promotion of Helen Foster, stenog. rapher, grade III, rate A, to this position; ice commission, the appointing officer may grant

"Sec. 9. With the consent of the civil serv. effective this date, without examination; it leave of absence to a classified employé for a appearing that she is entitled to same by reason of length of service and satisfactory per-expiration of such leave of absence, such officer

period of not to exceed one year, and upon the formance of duties."

employé shall be reinstated. All such leaves The commission further claimed that the of absence granted by appointing officers shall appointment of Helen Foster was not made be referred to the commission promptly for a permanent promotion until March 12, 1925. approval, in order that the civil service status In support thereof it offers in evidence the of such absentees may be protected.

"Sec. 10. Absence from duty without leave following excerpt from the records of the for any time will be considered good cause for commission under date of March 12, 1925. dismissal. Absence from duty without leave

• The commission further approved for ten consecutive days shall be deemed a resthe permanent promotion of Helen Foster from ignation from the service by the absentee, and the position of stenographer, grade III, rate upon report of such absence by the appointing A, to that of stenographer, grade II, rate C, power, the absentee shall be removed from the vice Grace Lamb, resigned and the temporary service of the state and the fact of removal shall appointment of Agnes Bain from certification be entered on the official roster; provided, howNo. 9522, made under date of March 6, 1925, ever, that if at any time within thirty days the was made permanent, both effective this date.” person so absenting himself shall make satis

factory explanation to the civil service commisIt is therefore argued on behalf of the sion of the cause of absence, he may be reinrespondents that, while the letter of Febru- stated to his position with the consent of the ary 28th to the relator may have used the appointing officer. Failure to report after a expression “permanent promotion,” relating leave has expired or has been disapproved or re

voked and canceled by the commission, shall be to Miss Foster, yet in truth and in fact such

cause for discharge; provided, however, that if promotion was temporary in character and

an officer or employé so discharged shall show not made permanent until March 12th; that to the satisfaction of the commission that such the records of said commission are para- | failure to report was excusable, the commission mount in the premises and import verity. may then order his reinstatement, with the con

The fact of the illness of the relator is sent of the appointing officer." conceded, and an affidavit of a physician is furnished by the relator, which is accepted Respondents claim that full legal author. as true by the respondents; said affidavit ity exists for granting the leave of absence reciting that the physician “treated Miss on January 31st to the relator, and that un. Grace Lamb since August, 1924, for myocar- der the trust imposed upon said commission dial insufficiency to the 2d day of May, 1925; it became necessary to terminate said leave that previous to April 1, 1925, she was unable of absence effective February 28th; that to do any work of any kind." The relator, thereafter 10 days were allowed the relator however, on March 23, 1925, according to the within which to report for duty, and, having averments of her petition, "notified the re- failed to do so, by rule X, supra, her absence spondents that she was ready and willing to from duty without leave would be "deemed a return to her position in the state civil serv- resignation from service by the absentee," ice commission, and able to assume the du- and such fact on March 12th, being more ties incident thereto," and the relator fur-than 10 days after the termination of the ther claims that, even though the commis- leave of absence, proper record was made sion had been ready and willing to give to thereof in the minutes of the commission. the relator a similar position at a similar This being within the letter and spirit of

(148 N.E.) the law, we are of opinion that the commis- / road property, even though the defect in roadsion was acting within its rights. It there- bed or rolling stock, which produces the injury, fore becomes immaterial whether the so-called existed when the property was taken over by "permanent promotion" of Miss Foster to re

the government. lator's former position was good in law or 2. Municipal corporations Com 776_Piers supgot, or what the tenure of office of said Miss porting overhead railroad bridge, ordered by Foster might be. The burden is upon the city council, held not nuisance. relator to show a clear right to the extraor Section 8874, General Code, authorizes a dinary remedy of mandamus, which she city to place piers in the street to support an seeks. It is not sufficient for her to show overhead railroad bridge when effecting a sep. a flaw in the title of others to official posi- aration of the grade of the street and the grade tion under civil service régime.

of the steam railroad tracks which cross the

street. Piers so placed in the street by order The question is, Does the law entitle the of the city council do not constitute a nuisance. relator to the relief that she seeks; in other words, has the civil service commission 3. Municipal corporations Cm821(8)-Charge exercised its legal rights regarding the po

that question whether piers of overhead rail. sition of the relator, automatically vacated

road bridge constituted nuisance was for

jury held erroneous. by reason of violation of section 10, rule 10 of the commission, which it published under lic travel upon any street necessitates such sep,

Where the safety and convenience of pub. section 486—16, General Code?

aration of grades, the railroad company and The record clearly shows that for more the city, acting in good faith and upon the adthan 10 days after February 28, 1923, the vice of competent civil engineers, may deterdate of the termination of the leave of ab- mine the character of the bridge or structure sence, the relator was absent from her work, to carry the elevated railroad tracks. And and by the affidavit of the physician, offer- when the structure, completed according to the ed by her in evidence, it would seem that plans and specifications agreed upon and adoptprevious to April 1, 1925, she was unable to ed by the city and the railroad company, leaves do any work of any kind. Be that as it may, the street, it is error for a trial court, in an

ample clear space for all public travel upon we think her absence from work after the action brought by one who has suffered an intermination of the leave of absence on Feb-jury on the street thus spanned by an overruary 28th for more than the period pre-head bridge, to charge the jury that the quesscribed by rule 10, section 10, of the rules tion whether the piers in the street constiof the commission, deprives relator of the tute a nuisance is one for the jury to decide. right to a writ of mandamus in this case, and that no clear right thereto has been

Error to Court of Appeals, Cuyahoga shown.

County. In the opinion of the court the civil serv Action by Grace L. Meacham against the ice commission of Ohio has violated no stat- City of Elyria and others. Judgment for utory requirements nor rules of the commis- plaintiff against defendant named was afsion, in that regard, but has acted within the firmed by the Court of Appeals, but reversed scope of said provisions. The court is there as to other defendants and entered, and defore unanimously of the opinion that the writ fendant named brings error. Reversed.prayed for must be denied.

[By Editorial Staff.] Writ denied.

D. W. Myers, City Sol., and Fauver & MARSHALL, C. J., and JONES, MAT- Cheney, all of Elyria, for plaintiff in error.

Payer, Winch, Minshall & Karch, of CleveTHIAS, ALLEN, KINKADE, and ROBIN

land, for defendant in error Meacham. SON, JJ., concur.

West, Lamb & Westenhaver and C. C. Han. dy, all of Cleveland, for defendant in error New York Cent. R. Co.

B. W. Baird, of Elyria, in pro. per.
(No. 18445.)

KINKADE, J. This is an action to recov. (Supreme Court of Ohio. June 2, 1925. Re er damages for injuries received in a colli. hearing Denied Sept. 29, 1925.)

sion by two automobiles, both touring cars

-one a Buick and the other a Ford. The (Syllabus by the Court.)

accident occurred October 28, 1919, about 7 1. Railroads Om512, New, vol. 6A Key-No. o'clock in the evening, on the north side of

Series Company not responsible for injury East Bridge street, in the city of Elyria, during federal control.

Ohio, and near to the east side of the overA railroad company, while its property is head railroad bridge across that street. in the exclusive possession, controi, and management of the federal government, is not

There were two persons in each car in addi

Grace L. Meacham, the responsible for an injury suffered by a third tion to the driver. person arising out of negligence in the main plaintiff in the trial court, was riding in the tenance, management, or operation of the rail Buick car, and that car was being driven

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 148 N.E.-44

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