State Ex Rel. Hout v. Beightler , 135 Ohio St. 444 ( 1939 )

Relator was employed in a division of the state highway department in October, 1931. He took an examination in January, 1934, for the position of laborer in charge, became sixth on an eligible list for such position, was assigned to perform the duties in April, 1934, was appointed from the eligible list and continuously performed the duties of the position.

He received a written communication from the Director of Highways, advising that, effective March 28, 1939, for a period of thirty days, relator was suspended from his position for discipline. No reasons were given relator for such suspension.

Relator filed in this court a petition for a writ of mandamus commanding the respondent to rescind the order of suspension and reinstate or restore relator to his office and employment. The cause was submitted on a demurrer filed by the respondent.

Counsel for relator concede that the issue involved in this proceeding is the same as that decided in State, ex rel.Robinson, v. Allman, Dir. of Pub. Welfare, 134 Ohio St. 502,17 N.E.2d 921, but state in their brief that the present proceeding is brought in the nature of a rehearing.

A majority of this court adheres to the pronouncement made in that case. The demurrer is therefore sustained and, relator not desiring to plead further, a writ of mandamus is denied.

Writ denied.

DAY, MYERS, MATTHIAS and HART, JJ., concur.

WEYGANDT, C.J., ZIMMERMAN and WILLIAMS, JJ., dissent.