
    The State, ex rel. Clements, v. Babb, Chief of Div. of Aid for the Aged, et al.
    (No. 4011
    Decided April 29, 1947.)
    
      Mr. Frank J. Richter and Mr. Jerome Goldman, for relator.
    
      Mr. Hugh S. Jenkins, attorney general, and Mr. James A. Bope, for respondents.
   By the Court.

This matter is before this court on the demurrer of the respondents claiming a misjoinder of parties respondent. The action is one in mandamus, originating in this court, in which there appear as parties respondent: (1) The Chief of the Division of Aid for the Aged in the Department of Public Welfare; and (2) The two members of the State Civil Service Commission of Ohio.

The petition seeks the reinstatement of Owen F. Clements who was removed at the end of a 90-day probationary period under the civil service law. The position of the relator is that the respondent civil service commissioners, in addition to Karl R. Babb, Chief of the Division of Aid for the Aged, Department of Public Welfare, are necessary parties in order to give the relator cqmplete relief. It is the contention of the respondents -that these civil service commissioners are not necessary parties and that there is, therefore, a misjoinder of parties respondent.

Section 11255, General Code, provides the general rule under code pleading as to who may be joined as defendants. That section provides:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein. ’ ’

Under the old age pension law of Ohio the power of appointment over the employees of the division of aid is vested in the chief of the division by Section 1359-11, General Code. The respondents contend that since it is the duty of only the chief of the division to appoint and reinstate, it is upon him only that the power and duty of reinstatement, if found proper by this court, is incumbent, and such person is, therefore, the only proper party defendant. We are not concerned, however, in this case, with the manner of an appointment, but we are concerned only with. a removal after a probationary appointment has been made. The manner in which that may be done is provided for by Section 486-13, General Code, as follows:

“* # * All original and promotional appointments shall be for a próbationary period of not to exceed three months to be fixed by the rales of the commission, and no appointment or promotion shall be deemed finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the appointing officer shall transmit to the commission a record of the employee’s service, and if such service is unsatisfactory, the employee may, with the approval of the commission, be removed * *

Now, the Supreme Court of Ohio has decided upon several occasions that in a mandamus action it is proper to join all parties necessary to give the relator complete relief..

In the case of State, ex rel. Price, Atty. Genl., v. Huwe, 103 Ohio St., 546, 134 N. E., 456, the relator sought a writ of mandamus to enforce payment of a claim against the county. In the amended petition the county auditor and county treasurer were joined with the county commissioners as defendants 'and a demurrer was filed alleging misjoinder. The court overruled the demurrer and found that to obtain complete relief the joinder was proper.

Again, in State, ex rel. Turner, v. Village of Bremen, 115 Ohio St., 510, 154 N. E., 526, the court held that in a petition in mandamus seeking to enforce payment of a judgment against a village there is a defect of parties where relator does not join as defendants all officials necessary to bring about complete relief; and that the relator may join all officers haying control of the legal machinery to effect that purpose although they act by separate and successive stages.

In the instant case in order to remove an employee under Section 4§6-13, General Code, two steps are necessary: (1) The appointing officer shall transmit to the commission a record of the employee’s service; (2) the act of removal must be approved by the civil service commission.

Another case holding to similar effect is Riegel v. State, ex rel. Weaver, Pros. Atty., 20 Ohio App., 1, 151 N. E., 784, where the court says in the third paragraph of the syllabus:

“* * * A peremptory writ of mandamus may be allowed against all officials and official boards necessary to give full, adequate, and complete relief, and all such officials and boards may properly be joined as parties to the proceeding.”

Likewise, in State, ex rel. Belknap, v. Board of Elections, 3 Ohio App., 190, the court held that where a board of elections refused to act by reason of a direction of a secretary of state, even though the secretary of state did not have a right to direct a board of elections in regard to the subject matter, nevertheless the secretary of state was properly joinable as a party defendant in a proceeding in mandamus -to require the board of elections to issue a certificate of election, as the relator would have the right to join the secretary of state as k party respondent to obtain ultimate and complete relief.

The respondents have cited several Ohio cases, but we find on examination that the facts are not similar to those of the case at bar.

We, therefore, hold that, since action by the civil service commission as required by Section 486-13, General Code, is a necessary condition precedent to a probationary removal, and as all parties necessary to obtain complete relief are properly joinable in a mandamus action, the demurrer should be overruled.'

Demurrer overruled.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.  