
    Curtis et al. v. The State, ex rel. Lengel.
    (Decided February 11, 1929.)
    Mr. James E. Kinnison, Mr. Russell H. Mach, and Mr. H. C. Pontius, for plaintiffs in error.
    
      Messrs. AmermanS Mills and Mr. W. B. Rodgers, for defendant in error.
   Williams, J.

This proceeding in error is brought to reverse the judgment rendered in a proceeding in mandamus begun in the common pleas court by the state of Ohio, on relation of S. A. Lengel, against Stanford M. Swartz, as mayor of the city of Canton, and other named defendants as members of the civil service commission of the city of Canton. The purpose of the action below was to reinstate the relator in the office of chief of police of the city of Canton, from which, he had been removed, and to require the issuance of a warrant or warrants, covering his compensation as such police chief since his removal.

The court below found for the relator, granted the prayer of the amended petition, and entered judgment accordingly.

C. C. Curtis, the present mayor, was substituted as a party in the court below in place of Stanford M. Swartz.

The agreed statement of facts incorporated in the bill of exceptions states that the relator was duly appointed chief of police of the city of Canton in 1922, and served until the time he was removed by the mayor on August 23, 1926. The written charges upon which the mayor removed him are set forth in full, and specifically charged him with acts of incompetency, inefficiency, and neglect of duty, and, among the acts so charged, were failure to enforce the laws, knowingly permitting law violators to loiter about police headquarters, and failure to make or require to be made a proper investigation of the facts surrounding the murder of Donald E. Mellett The agreed statement of facts further shows thai the mayor, on August 23, 1926, furnished the relator with a copy of the order of removal, and on the same day filed it with the said civil service commission, and that on August 25,1926, relator took an appeal to said commission in due form. Upon trial by that commission, he was found “guilty of the charges set out in the complaint and the removal of the said S. A. Lengel by the Mayor was affirmed.” September 14, 1926, notice of appeal from the decision of the civil service commission to the common pleas court was filed by thé relator. Later this appeal was dismissed. It also appears from the additional agreed statement of facts that relator was indicted for first degree murder on June 9, 1927; that on July 11, 1927, trial was begun upon this charge and he was found guilty, with a recommendation of mercy; that the judgment of conviction was later reversed and set aside; and that upon retrial he was acquitted of the charge on February 4, 1928.

The petition in the mandamus case was filed on September 3, 1926. Judgment was entered in that cause on November 3,1928.

The sole question is whether or not the court below erred in issuing the peremptory writ of mandamus upon the ground that the relator was removed from his office as chief of police by the mayor without being given a reasonable time in which to make and file an explanation under Section 486-17a, General Code. That section contains the following provision:

“In all cases of removal the appointing authority shall furnish such employe or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employe or subordinate a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employe or subordinate shall be filed with the commission. Any such employe or subordinate so removed may appeal from the decision or order of such appointing authority to the state or municipal commission, as the case may be, within ten days from and after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission’s decision shall be final; provided, however, that in the case of the removal of a chief of police or chief of the fire department of a municipality an appeal may be had from the decision of the municipal commission to the court of common pleas of the county in which such municipality is situated to determine the sufficiency of the cause of removal.. Such appeal shall be taken within ten days from the finding of the commission.”

This court held, in the case of City of Toledo v. Osborn, 23 Ohio App., 62, 155 N. E., 250, that one within the classified service, who is deprived of his position by an absolutely void and illegal ouster, may be restored to his position and the emoluments thereof in an action in mandamus. That decision is based upon adjudications of the Supreme Court of Ohio. Of course, where there are no grounds of removal specified in the order of removal, nor any charges made against the party ousted, the removal is absolutely void and illegal, for it is fundamental that there can be no legal ouster without charges or grounds of removal.

The contention of the relator is that he was not given a reasonable time in which to make and file an explanation with the mayor, and he relies upon the case of State, ex rel. Bay, v. Witter, 110 Ohio St., 216, 143 N. E., 556.

In the instant case the notice of removal contained no reference whatever to an explanation. While the court in State, ex rel., v. Witter, supra, held that, in order to suspend an employe in the classified service, the appointing power must give the employe reasonable time in which to make and file an explanation, the court did not have before it in that case the question whether failing so to do would render the proceedings in all cases an absolute nullity. We have before us in the instant case a different question from that before the Supreme Court, and that is, Did the relator, by failing to file an explanation with the mayor, and by filing an appeal to the civil service commission within two days after his removal, and submitting to trial therein, waive whatever right he may have had to file such explanation? The right to file an explanation was given to relator by statute, and his failure to file such explanation with the mayor was his own default. He submitted himself to the jurisdiction of the commission and permitted the appeal to the common pleas court to be dismissed .without pursuing such remedies as he had, and we must assume, for the purposes of this case, that the trial before the commission was a fair one. The relator has had his hearing before the commission and waived his right to make explanation before the mayor and is bound by the order of removal.

The judgment of the court below will therefore be reversed and final judgment entered in favor of the plaintiff in error, dismissing the petition of relator and denying the writ of mandamus.

Judgment reversed and judgment for plaintiff in error.

LloXd and Richards, JJ., concur.

Judges "Williams, Lloyd and Richards, of the Sixth Appellate District, sitting in place of Judges Shields, Houck and Lemert, of the Fifth Appellate District.  