
    No. 94
    OSBORN v. TOLEDO (City)
    No. 20232.
    Supreme Court
    On motion to certify.
    Dock. Dec. 27, 1926,
    4 Abs. 27.
    27. ACTIONS — Where person is employed under Civil Service and is subséquently discharged, may he recover damages for the alleged illegal discharge?
    Attorneys — W. C. Knisley & Frank M. Sala for Osborn; Frank M. Dotson &.Chas. T. Law-ton for City; all of Toledo.
   Elmer Osborn had qualified for the position of assistant operator, at the High Pressure Pumping Station of the City of Toledo, under the Civil Service Act, and by ordinance was to receive $166.40. On March 29, 1924, he received a letter from the Commissioner of Water who made the appointments, to the effect that his services would no longer be required, the same to be effective Apr. 1st, 1924, stating therein no reasons for the discharge; that Osborn applied to the Civil Service Commission of the City of Toledo, for reinstatement only, and at the hearing, they attempted to and did hear charges of inefficiency and misconduct, all being heard contrary to law and they refused to reinstate him.

He then instituted a direct suit against the City of Toledo, Ohio for his alleged illegal discharge claiming as damages the difference between what-he would have earned had he not been illegally discharged and what he actually did earn. At the trial the City of Toledo, interposed an objection to the introduction of any evidence on the part of Osborn, for the reason that the petition did not state a cause of action against them and the Court overruled the same, and at the close of the plaintiff’s evidence, the plaintiff moved for a directed verdict and the City also moved for a directed verdict; the Lucas Common Pleas on passing on the same, granted a directed verdict to the plaintiff in thte amount of $655.93 and overruled the motion of the City, all being done on authority of Luttner v. Cleveland, 92 OS. 493.

On appeal the Court of Appeals found all of the facts as above alleged, found that Osborn had been illegally discharged from his position, found that the Civil Service Commission had no jurisdiction to hear any charges other than those set forth in the order of removal, and that in the present case there were no reasons set forth, but in further passing on the same, found that the plaintiff had no legal right to bring a direct action against the City oi Toledo, in the first instance, without having first maintained a mandamus proceeding and thereby been restored to his position.

The questions raised in the present inquiry are as follows:

1. Where the person is illegally discharged and is merely an employee of the City and not an officer is there a contract between him and the municipal body he serves, and does his illegal discharge under this contract give him his recognized right at common law to bring an action for his damages?

2. Does the fact that he has two. remedies, viz, mandamus to restore him to his position or employment, and an action for his damages by reason of his illegal removal, prevent him from electing which remedy he will pursue, if he elects not to be restored to-his position, but to pursue his remedy of damages ?

3. Does the extraordinary remedy of mandamus, take away from a wronged party his common law remedy or remedies where they exist ?

4. Is Luttner v. Cleveland, 92 OS. 492, directly disregarded by the Court of Appeals in so deciding as they did, when the Supreme Court has said that there is a contract between an officer and the Municipal corporation he serves, for which he has his remedy of damages in the ease of illegal discharge, this being a case of a public employee only?  