
    The State, ex rel. Smith, v. Witter, Dir. of Dept. of Industrial Relations of Ohio, et al.
    
      Mandamus—Writ denied where relator unreasonably delays instituting action, when.
    
    A court, in the exercise of its discretion, may refuse to issue a writ of mandamus, in favor of a relator who has allowed an unreasonable time to elapse before bringing his action, especially where such delay may be prejudicial to the rights of the respondent.
    Mandamus, 38 C. J. §§ 16, 533.
    (No. 19233
    Decided March 23, 1926.)
    In Mandamus.
    This is an action in mandamus, filed in this court, praying for a writ directing Witter, as director of the Department of Industrial Relations, to issue to the relator warrants for his salary and compensation as supervisor of factory and building inspection from the 3d day of March, 1923, to the present time, and that the state auditor and treasurer be ordered to honor and pay said warrants for salary and compensation in the amount of $3,487.50, and further praying for the sum of $9.99, incurred by relator as expenses. He also asks this court to issue a writ compelling the director to recognize the relator as such supervisor, and that his name be placed upon the rolls of the department.
    The petition was filed on June 30, 1925. The ease was heard by this court upon the pleadings and the agreed statement of facts. It is developed thereby that the relator was provisionally appointed supervisor on January 3, 1922, and that, having later passed the civil service examination, he was regularly appointed to the position on December 1, 1922. On March 1, 1923, the respondent director of the Department of Industrial Relations notified the relator that his services were not satisfactory, assigning a number of reasons therefor. ■ On the same day he also notified the relator that his services with the department would cease on March 3, 1923. A copy of the letter of dismissal was mailed to the civil service commission on March 1, 1923, and received by the commission, as shown by the record, on the 10th of that month. Between March 3 and March 6 the relator incurred said expense of $9.99. The civil service commission took under consideration the charges made against the relator, and notified the latter, as well as the director, that, in its opinion, the removal was illegal, and that the relator was entitled to the tenure of his office. From April 5 until midsummer of 1923 correspondence between the commission and the director ensued in respect to the validity of such removal. During the entire period the director refused to reinstate the relator, who did not bring this action in'mandamus for restoration until June 30, 1925.
    
      Mr. Stanley S. Stewart, for relator.
    
      Mr. C. C. Grabbe, attorney general, and Mr. Arthur H. Wicks, for defendants.
   Jones, J.

The relator knew that he was removed by the director on March 3, 1923; he also knew that the civil service commission, during the period of the controversy between it and the director, insisted that the relator was entitled to his official tenure until discharged according to the provisions of the civil service law. The director and the relator both were definitely advised of that fact on April 5, 1923. Although the dispute between the director and the commission continued until the midsummer of that year, the relator could have brought his action for restoration, under the facts developed, as early as April, 1923. He delayed bringing, his action' therefor until more than two years thereafter. His petition was not filed until June 30,1925. Taking advantage of his own laches, the relator now seeks, not only restoration, but his compensation, meanwhile accruing, amounting to $3,487.50 at the time of filing his petition.

In cases of this character, the issuance of the extraordinary writ of mandamus rests in the sound discretion of the court. In the exercise of such discretion it may refuse to issue the writ in favor of the relator who has inexcusably allowed an unreasonable time to elapse before bringing his action, especially where such delay may be prejudicial to the rights of the respondent. This principle is fully sustained by text and authority. 18 Ruling Case Law, p. 335; 38 Corpus Juris, 833; Chinn v. Trustees, 32 Ohio St., 236.

A respondent often might be seriously prejudiced, if, after restoration, a relator should be permitted to use the judgment of the court as a basis for his recovery of continued compensation over a long period of time, a plight which could be avoided by seasonably bringing his action.

The item of expense amounting to $9.99, incurred by tbe relator previous to March 6, 1923, under the agreed statement of facts, is a valid item due the relator and should be paid; but the respondent is not here contesting the payment of that expense.

Under the circumstances presented by this record we are of opinion that relator’s delay in bringing this action was an unreasonable one, and we would not be justified in issuing the writ asked for.

Writ denied.

Marshall, C. J., Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  