State Ex Rel. Kunick v. Urner

18 N.E.2d 607, 135 Ohio St. 9, 135 Ohio St. (N.S.) 9, 13 Ohio Op. 234, 1939 Ohio LEXIS 394

• Court: Ohio Supreme Court
• Decided: January 11, 1939
• Docket: 27342
• Status: Published

Opinion

By the Court.

Relator predicates this proceeding upon Section 17-3 et seq., General Code.

A right of action is given in the last paragraph of Section 17-5, General Code, which reads:

“Where a public authority constructs a public improvement with its own forces it shall be the duty of such authority to pay a rate or rates of wages which shall not be less than the rate or rates of wages so fixed as herein provided. Any mechanic or laborer paid less1 than such rate or rates by any 'public authority shall have a right of action against such public authority for the difference between the fixed rate of wages and the amount paid to him, and in addition thereto a penalty equal in amount to such difference.”

Section 12287, General Code, provides that the 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.” That section precludes the issuance of a writ in the present proceeding.

The relator insists that the writ should issue to prevent a multiplicity of actions. However, this court has held in Cullen, as Vice Mayor, v. State, ex rel. City of Toledo, 105 Ohio St., 545, 138 N. E., 58, and State, ex rel. Gaston, v. Brindle, Supt., 128 Ohio St., 260, 191 N. E., 99, that mandamus will not issue to compel the observance of law generally.

The demurrer to the petition will be sustained and the relator not desiring to plead further, a writ of mandamus will be denied.

Writ denied.

Weygandt, C. J., Day, Zimmerman, Williams, Myers, Matthias and Hart, JJ., concur.