
    The State, ex rel. Farrell, v. City of Cleveland et al.
    (Decided July 10, 1933.)
    
      Mr. W. 8. FitzGerald, for relator.
    
      Mr. W. George Kerr and Mr. William C. Dixon, for respondents.
   McGill, J.

The relator, James Farrell, seeks a writ of mandamus to compel the director of public utilities and the city of Cleveland to restore relator to his former position as miscellaneous investigator in the utilities department, and to compel the city of Cleveland to pay relator his compensation from April 15, 1932, at which time relator was laid off. An alternative writ was granted, and the issues were joined upon the filing of a joint answer on behalf of the director of public utilities and the city of Cleveland.

The evidence before this court consists of an agreed statement of facts. From this agreed statement of facts it appears that relator was in the employ of the city as a miscellaneous investigator from April 15, 1928, to April 15, 1932. His duties and tasks as set forth in the civil service commission classification were as follows:

“Duties: Under general supervision; to investigate and inspect matters assigned by the head of the Department to which he may be appointed and to perform other related work.

“Typical Tasks: Investigating complaints received by the Street, Water, Light, Civil Service, Trade Waste and other departments. Making written reports and recommendations and the keeping of simple records.”

On April 1, 1932, the director of public utilities notified the civil service commission that the relator would be laid off on April 15, 1932.

The agreed statement of facts further discloses that from February 29, 1932, to July 18, 1932, a total of thirteen miscellaneous investigators who had been assigned to various departments were likewise laid off. On May 15, 1932, one Lanzaro, then classified as a skilled laborer, was assigned to the collection of delinquent accounts and claims in the utilities department under the supervision of an assistant director of law.

The agreed statement of facts further sets forth that on July 20, 1932, the board of control, pursuant to a reorganization of economy and efficiency, created the positions of chief divisional claim adjuster, and first and second assistant divisional claim adjusters. On July 21, 1932, Lanzaro was temporarily appointed to the newly created position of second assistant divisional claim adjuster, and in connection .with other duties attended to the collection of delinquent accounts until December 14, 1932, at which time he was laid off from said position. The duties and tasks of the second assistant divisional claim adjuster were as follows:

“Duties: — Under general supervision to have charge of those investigations of a quasi-legal nature involving the adjustment, settlement and compromising of claims, accounts, demands, disputes and debts of the city which are a direct duty of the Law Department and the Director of Law.

“Typical Tasks: — To investigate court house records and determine the ownership of property and liability for.water bills; to check foreclosure actions and file claims of water department against property owners and to keep files relating to such claims; to follow bankruptcy proceedings and to file claims of the water department when necessary; to investigate ownership of property when buildings are removed or torn down and water bills are unpaid; to determine whether parties causing damage to property of the utilities department are insured and to collect and compromise such claims from the insurance companies ; to perform such related duties as may be assigned by the Chief Divisional Claim Adjuster.”

Again reverting to the agreed statement of facts, it appears that several miscellaneous investigators were laid off prior to April 15, 1932. In the same department to which relator was assigned one other miscellaneous investigator was laid off on February 29, 1932, and this relator was not laid off until April 15, 1932. Rule 9, paragraph 5, of the Rules of the Civil Service Commission, as set forth in the agreed statement of facts, provides in substance that, where a number of persons appointed from the same eligible list are temporarily laid off, the commission, upon the refilling of a position, shall certify for reinstatement or reappointment the persons in the order in which they have been laid off. In other words, where a number of persons from the same eligible list were laid off, the first one laid off would be the first one to be reinstated. If all of the miscellaneous investigators without regard to the departments to which they had been assigned were eligible to reinstatement in the order in which they were laid off, then, from the agreed statement of facts, it clearly appears that ten of the thirteen were laid off prior to April 15, 1932, and prior to the lay off of this relator. If only those assigned to the department of public utilities are considered, the record discloses that one other miscellaneous investigator was laid off prior to April 15, 1932.

Under rule 9, paragraph 5, of the civil service commission, above mentioned, priority would be given for certification by the commission to the miscellaneous investigator or investigators who were laid off before April 15, 1932..

In view of these admitted facts, it is not established that the relator, Farrell, is entitled to be restored as against the ten or the one laid off prior to April 15, 1932; nor does the agreed statement of facts anywhere disclose that the duties and typical tasks of the other miscellaneous investigators, even in the same department, were different from the duties and typical tasks of this relator..

As to the reorganization of July 20, 1932, in which the positions of chief and assistant divisional claim adjusters were created, it is conceded in relator’s brief that the board’s action was not tainted with subterfuge, and that no bad faith is to be imputed to the board of control in creating these positions and effecting this reorganization.

In the case of Dykstra, City Manager, v. State, ex rel. Albert, 42 Ohio App., 141, 181 N. E., 488, it was held that the action of the city council in abolishing one civil service office and combining its duties with that of another office is not a mere subterfuge which would entitle the previous occupant of the office to the new office.

A comparison of the duties and tasks of the relator, as miscellaneous investigator, with the duties and tasks of the second assistant divisional claim adjuster, supra, shows that there was not merely a change of name, but in fact a change of duties to a marked degree. From the record we do not think it can be fairly said that the reorganization effected only a change in name, and not a change in duties.

In the case of Curtis v. State, ex rel. Morgan, 108 Ohio St., 292, at page 304, 140 N. E., 522, it is said by Marshall, C. J.: “Whatever language may have been employed by the Legislature in the enactment of the civil service statutes, that language must be construed in the light of the underlying principles of the Civil Service Commission, as hereinbefore declared, and we cannot agree that the Legislature intended to empower the Commission to interfere with the administration of the city government in such a way that the working forces in the classified service could not be reduced in the interest of public economy and to prevent deficiencies in the public funds.”

It may be that Lanzaro was appointed to the position formerly held by this relator. If so, that fact does not appear in the agreed statement of facts. There is nothing in the agreed statement of facts to show that Lanzaro succeeded relator rather than one of the other miscellaneous investigators, or the one laid off February 29, 1932, who was' assigned to the same department as the relator. No other competent evidence having been offered, the court can consider as evidence only this agreed statement of facts, and the evidence does not establish that this relator would be entitled to the position occupied by Lanzaro even if it be assumed that Lanzaro did later perform the same duties as previously performed by relator.

It is well established that a writ of mandamus, being an extraordinary remedy, can only be granted where a clear right thereto is shown.

It is said by Day, J., in the case of State, ex rel. Lamb, v. Swisher, 112 Ohio St., 707, at page 715, 148 N. E., 686 (1925): “The burden is upon the relator to show a clear right to the extraordinary remedy of mandamus, which she seeks. It is not sufficient for her to show a flaw in the title of others to official position under civil service regime.”

Prior to July 21,1932, during the period of approximately two months in' which Lanzaro was assisting in the collection of delinquent accounts, it is doubtful whether Lanzaro was performing the same duties theretofore performed by relator. But even during that period the relator has not shown a right to the position as against one or more of the miscellaneous investigators who were laid off prior to April 15,1932. If Lanzaro was illegally employed during that period, the most that can be said would be that the relator has shown a flaw in the title of Lanzaro, but has not established a clear right to the position.

Under the facts as disclosed by the agreed statement of facts, and under the law, this court is compelled to deny the writ.

Writ denied.

Lieghley, P. J., concurs.

Levine, J., not participating.  