State ex rel. Fioretos v. Industrial Commission

Day, J.

There are two reasons why the writ of mandamus prayed for in this proceeding should be denied:

First, there is an issue of fact tendered by the pleadings, which raises the question whether or not the persons signing the alleged power of attorney of the relator are in fact all the dependents of Peter Pappas, alias Panagiotis Astropiris. There is no testimony or evidence offered in support of the affirmative of these issues of fact, and, the burden being upon the plaintiff to show his right to a writ of mandamus, and having failed to so do, it follows that upon that ground the writ should be denied. Even though this objection should be overcome, and the evidence produced, as claimed by the relator, there is a further reason why the writ should be denied.

It is provided by Section 1465-108, General Code, as follows:

“When the dependents of killed employes reside in a foreign country, the consul general, consul, vice-consul, or consular agent, duly accredited to the consular district within which such killed employe lived at the time of his decease by the country wherein such dependents of the killed employe reside, shall furnish the necessary information regarding such dependents of killed employes so that the state liability board of awards may transmit to such dependents the funds provided for in the compensation act of the state of Ohio, or any amendments thereto.”

Now this record discloses that the commission has continued this cause upon its records, awaiting action upon the part of the Greek consul in this state in furnishing the necessary information regarding the dependents of the killed employee, so that the Industrial Commission, as successor of the state liability board of awards, may transmit to such dependents the funds provided for in the Compensation Act of the state of Ohio.

It thus appears that the plain letter of the statute forbids the commission to act in the premises until the information to be furnished by the Greek consul is forthcoming. The record disclosing that the Greek consul has not yet furnished such information, it follows that the commission cannot make the award prayed for.

It is elementary that a writ of mandamus can only be issued when a clear right thereto has been shown by the relator, and, this record disclosing that no such right has been shown by the evidence, and failing to disclose that the relator is entitled thereto by law, it follows that the same must be denied.

Writ denied.

Marshall, O. J., Jones, Matthias, Allen, Kinkade and Robinson, JJ., concur.