
    The State, ex rel. Stevens, v. Industrial Commission of Ohio et al.
    (No. 5387
    Decided November 4, 1955.)
    
      
      Mr. R. Brooke Alloway and Mr. James F. DeLeone, for relator.
    
      Mr. C. William O’Neill, attorney general, and Mr. Paul Tague, Jr., for respondents.
   Fess, J.

Relator brings Ms action in mandamus against the Industrial Commission on behalf of himself and some 1,600 other claimants similarly situated. Relator alleges in part that his claim for additional compensation was dismissed on August 13,1954; that an application for rehearing was granted on February 21, 1955; and that, on April 22, 1955, á hearing was held and a portion of the evidence submitted on behalf of relator was reduced to writing.

Relator alleges further that the procedural sections of the Workmen’s Compensation Act were amended effective October 5, 1955, and that, pursuant thereto, the respondent has disbanded its rehearing section, has ceased to hold hearings pursuant to Section 4123.51, Revised Code, has failed and refused to^set relator’s claim for further hearing and permit him to offer further testimony on behalf of his claim under the provisions of such section and has caused his claim to be considered as pending on appeal before respondent under Section 4123.516, Revised Code.

Relator says further that his cause of action accrued under Section 4123.51 and was commenced prior to October 5, 1955; that by respondent’s failure to provide facilities and set the claim for further hearing and its refusal to permit relator to complete the testimony in behalf of his claim under such section, substantial rights accruing to relator have been impaired; that relator has been deprived of Ms property without due process of law in violation of the Constitutions of the United States and of Ohio; that relator has no adequate remedy at law; and that the action of the respondent constitutes a gross abuse of discretion and error of law.

Relator prays that a peremptory writ of mandamus issue requiring respondent to hear and determine relator’s claim under former Section 4123.51, Revised Code, and commanding it to cease and desist hearing relator’s claim under Sections 4123.512 to 4123.519, inclusive, Revised Code, or, if such writ be refused, an alternative writ of mandamus issue commanding respondent so to do or to show cause why it should not so do and for such other and further relief as may be just and proper.

Relator also makes application (supported by affidavit) for himself and the class he represents for an order ancillary to the permanent relief sought in his petition, commanding respondent to cease and desist holding hearings in relator’s case and all others of his class, pursuant to Sections 4123.512 to 4123.519, until the constitutionality of the statutes is finally determined.

Two questions arise upon the application for an alternative writ and ancillary injunctive relief.

1. Although the interests of the class which relator seeks to represent are analogous in so far as the procedure adopted by the commission is concerned, it is obvious that they have several and distinct interests arising under differing circumstances. In as much as the claims of many may be more speedily allowed under the new procedure, such claimants do not have a community of interest in the subject of the action or the relief sought. Davies v. Columbia Cas & Electric Corp., 151 Ohio St., 417, 86 N. E. (2d), 603; Colbert v. Coney Island, Inc., 97 Ohio App., 311, 121 N. E. (2d), 911. The relief sought for and on behalf of the class must, therefore, be denied. Cf. State, ex rel. Cerspacher, v. Coffinberry, 157 Ohio St., 32, 35, 104 N. E. (2d), 1.

2. A writ of mandamus compels action or commands the performance of a duty, while a decree of injunction ordinarily restrains or forbids the performance of an act. State, ex rel. Smith, v. Industrial Commission, 139 Ohio St., 303, 39 N. E. (2d), 838. And a proceeding in mandamus, wherein an order is sought directing the Industrial Commission to cease disbursing certain funds, is essentially one in injunction and not mandamus and is not within the jurisdiction of the Court of Appeals. Cf. State, ex rel. Smith, v. Industrial Commission, supra. It is conceivable that in a proper case ancillary injunctive relief may be had incident to the determination of issues arising under extraordinary remedies, in order to maintain matters in statu quo. Cf. State, ex rel. Ellis, Atty. Genl., v. Board of Deputy State Supervisors, 70 Ohio St., 341, 71 N. E., 717. In our opinion the only distinction between the instant case and the Smith case is that the amended petition herein incidentally seeks injunctive relief, but proceeds in the main upon mandamus, and a separate application for ancillary relief by way of injunction is made. Upon the amended petition and application, the primary relief sought is injunctive — to require the commission to cease and desist hearing claims under the mandate of the amended sections. That portion of the amended petition seeking injunctive relief is, therefore, denied, and the application for ancillary injunctive relief is overruled.

3. An order is, hereby, entered upon the amended petition requiring the respondent to proceed to hear relator’s claim pursuant to the provisions of Section 4123.51, Revised Code, or show cause why it has not done so.

Judgment accordingly.

Nichols and Griffith, JJ., concur.

Fess, J., of the Sixth Appellate District, and Nichols and Griffith, JJ., of the Seventh Appellate District, sitting by designation in the Second Appellate District.  