State ex rel. Smith v. Barnell

2 Ohio Law. Abs. 133

Opinion

ALLEN, J.

Epitomized Opinion

First Publication of this Opinion

Smith was suspended from the position of city fireman in Zanesville by the fire chief on the charge of drunkenness, arrest, failure .to appear in court, and other immoral conduct. The Zanesville charter provides that within 5 days after the fact and cause of suspension is certified by the chief to the director of public safety, the latter shall proceed to inquire into the cause of such suspension and render judgment thereon. The inquiry in this case was not m(ade within the 5 day period. It was claimed that this provision was mandatory. The Court of Appeals held that the 5 day provision was unreasonable, unconstitutional, and void, on the authority of 105 OS. 535 and refused the peremptory writ of mandamus. The Supreme Court, in affirming the judgment, held:

1. 105 OS. 535 does not apply to the present proceeding. It applies to legisative restrictions upon judicial power, and not to restrictions upon quasi judicial and administrative power.

2. The acts of the director in inquiring into the acts of suspension and rendering judgment and not judicial, but are administrative and quasi judicial. Hiring is plainly administrative and the act of removal or suspension is simply the converse of the act of employment or appointment.

3. The 5 day limitation imposed by the charter is not mandatory but directory only.

Robinson, Jones, Matthias and Day., JJ., concur. Wanamaker, J., concurs in the judgment. Marshall, C. J., took no part in the consideration or decision of the case.