
    The State, ex rel. Spellacy, v. Jaster, Jr., Dir. of Highways, et al.
    (No. 25272
    Decided May 27, 1936.)
    
      Mr. Henry Galen, for relator.
    
      Mr. John W. Bricher, attorney general, Mr. Isadore Topper and Mr. Bramcis H. Kearns, for respondents.
   This is an original action in mandamus filed in this court on February 28, 1935. The relator in his amended petition alleged that in the month of January, 1933, after competitive examination for the position of Superintendent of Maintenance, he was duly appointed to the position in Cuyahoga county, by the then Director of Highways; that on November 10, 1933, he was discharged in bad faith by a representative of the director, and that subsequent to his appeal to the Civil Service Commission from such discharge, under date of December 8, 1933, he was ordered' back to work on December 11, 1933; that on December 20, 1933, he received an order of removal from which he again appealed to the commission on February 20, 1934, which order the commission on February 24,1934, modified to a suspension of .thirty days, and that on February 28, 1934, the Director of Highways notified relator that the position had been abolished, whereupon he again appealed to the commission on October 5, 1934, which ruled on October 17, 1934, that the commission had no jurisdiction of the appeal. Relator further alleged that the position had not been abolished as three men, under false classifications, were employed to perform the duties. Relator prayed that a writ of mandamus issue compelling the respondents, the Director of Highways, the Treasurer of State, and the Auditor of State, to restore relator to his position, and to restore him to the payroll as of February 28, 1934, or in the alternative to show cause.

Respondents include in their joint answer the- defense of laches, in that the relator did not make seasonable and proper effort to be restored to his position by recourse to the courts, and they also moved for judgment on the pleadings.

On consideration whereof it is ordered and adjudged that the writ of mandamus be, and the same hereby is, denied upon the authority of State, ex rel. Smith, v. Witter, Dir. of Dept. of Indus. Relations, 114 Ohio St., 357, 151 N. E., 192.

Writ denied.

Weygandt, C. J., Williams, Jones, Matthia's, Day and Zimmerman, JJ., concur.

Stephenson, J., not participating.  