
    STATE ex BELL v EDMONDSON et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 2129.
    Decided July 14, 1932
    M. L. Bigger, Columbus, for Relator.
    Gilbert Bettman, Attorney General, Columbus, and Isadore Topper, Assistant Attorney General, Columbus, for Respondents.
   BY THE COURT

It is well settled that before a proceeding in mandamus can be maintained the officer or board against whom the same is directed must be guilty of failing to perform some duty which is especially enjoined by law upon such officer or commission.

We have carefully considered the exhaustive briefs which have been filed by counsel and upon such consideration are of opinion that the petition of relator states no cause of action as against the members of the Industrial Commission.

Under the provisions of §154-19, GC, we are of opinion that the respondent, T. A. Edmondson as the director of the department of Industrial Relations has the sole power of appointing and discharging employees such as relator.

Our consideration also leads us to the conclusion that the section of the Code in question is constitutional.

Being of opinion that the petition fails to state a cause of action in so far as the respondents, members of the Industrial Commission of Ohio are concerned it would follow that the demurrer should be sustained as to such members of the Industrial Commission of Ohio.

Counsel, if they so desire, may agree upon some one to take testimony in this case in so far as the issues raised by the petition and the amended answer of T. A. Edmond-son, director of the department of Industrial Relations is concerned. Failing to so agree the court, if requested will appoint some one to take the testimony upon the issues raised by such pleadings and report the same back to the court.

ALLREAD, PJ, HORNBECK and KUNKLE, JJ, concur.  