
    City of Toledo v. Osborn.
    
      Municipal corporations — Purposes of civil service law and regulations — Proceedings ousting employee in classified service, a nullity — Removal under notice without reasons void and hearing invalid — Section 486-17a, General Code— Mandamus lies to restore employe to position and emoluments — Wrongfully discharged employee cannot sue city for damages.
    
    
      1. Purpose of civil service law is to create merit system for determination of fitness and efficiency of those within classified service and prevent discharge without just grounds.
    2. Under Section 486-17a, General Code, removal of civil service employee under notice of removal containing no reasons therefor is void.
    3. Hearing by civil service commission respecting discharge of civil service employee without valid order for removal from which appeal could be taken, and where no appeal was taken within ten-day limitation provided in Section 486-17a, General Code, is void, and proceeding ousting employee from position was nullity.
    4. Employee within classified service who is wrongfully deprived of employment by reason of void and illegal ouster from which there is no appeal under Section 486-17a, General Code, may be restored to employment by mandamus.
    5. Payment of salary of employee in classified service, which is fixed and determined, may be compelled by mandamus to compel issuance of warrant.
    6. Discharge of civil service employee contrary to provisions of Section 486-17a, General Code, being void, employee retains his position as though not discharged, and hence has no cause of action for damages against city for wrongful discharge.
    (Decided November 22, 1926.)
    Error: Court of Appeals for Lucas county.
    
      
      Mr. Frank M. Dotson, director of law, and Mr. Charles T. Lawton, for plaintiff in error.
    
      Messrs. Knisely & Orthwein, for defendant in error.
   Williams, J.

Plaintiff, Elmer Osborn, brought an action in the court of common pleas of Lucas county against the defendant, the city of Toledo, seeking to recover the sum of $665.37 by reason of his wrongful discharge as assistant operator at the high pressure pumping station on Water street in the city of Toledo.

Upon trial of the case in the court below the evidence and allegations and admissions of the pleadings disclosed the following state of facts: The plaintiff was, on January 3, 1917, employed by the commissioner of water, with the approval of the director of public service, at a salary of $166.40 per month, fixed by an ordinance of the city, and was paid that amount regularly up to April 1, 1924. Shortly prior thereto he was given written notice of his discharge to take effect on that date, but no reasons whatever were specified therein; and no other notice of discharge was ever served upon him. He remained away from his said position on and after said date, although ready and willing to perform the duties thereof. Under the law of Ohio and the charter provisions of the city the position was within the classified service. Plaintiff had been for a long time prior to April 1, 1924, filling said position under and subject to the rules and regulations of the civil service system, and the position has never been abolished, but still exists; nor has the incumbent of the position been laid off or temporarily suspended. The amount of compensation accruing to the plaintiff, if entitled to it, from April 1, 1924, to the time of the commencement of the action, would be $1,605.36, to apply on which he earned $952.43 in other employment, leaving a balance of $662.93. On April 28, 1924, plaintiff applied for a hearing before the civil service commission, and on May 13, 1924, charges were heard by the commission, which found that plaintiff was asleep while on duty, was so disagreeable with his associates that they objected to working with him, and that he neglected and refused to perform the duties assigned to him.

At the conclusion of all the evidence both plaintiff and defendant moved the court for a directed verdict, and the court, upon consideration, overruled the motion of the defendant and sustained the motion of the plaintiff. Thereupon judgment was entered in favor of the plaintiff in the sum of $662.93 and costs. This proceeding in error is brought by the plaintiff in error, who was defendant below, by which it seeks a reversal of that judgment and entry of a final judgment in favor of plaintiff in error.

The purpose of the civil service laws and regulations is to create a merit system for the determination of the fitness and efficiency of those within the classified service, and to prevent discharge therefrom without just grounds, or for purely political reasons.

The rights of a party holding such a position are regulated by Section 486-Í7a, General Code. It provides, among other things, that the tenure of an employee or subordinate in the classified service shall be during good behavior and efficient service, and then specifies the grounds upon which he may be removed. It also provides that in cases of removal “the appointing authority shall furnish such employee or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employee or subordinate a reasonable time in which to make and file an explanation.” Under that section .an appeal may be taken to the civil service commission by the employee or subordinate within ten days from the date of the removal, and the action of the commission shall be final.

In the instant case it is apparent that the removal of the plaintiff from his position was void, as the notice of removal, containing as it did no reasons whatever therefor, was not in compliance with the provisions of the section referred to. .The pretended hearing on the part of the civil service commission was also illegal for two reasons: In the first place there was no valid order from which an appeal could be taken, and in the second place no appeal was taken within the ten-day limitation provided by statute. All proceedings, therefore, taken by the appointing officer and the civil service commission toward the ousting of the plaintiff from his position were an absolute nullity. State ex rel. Brittain v. Board of Agriculture, 95 Ohio St., 276, 116 N. E., 459; State ex rel. Bay v. Witter, 110 Ohio St., 216, 221, 143 N. E., 556.

It remains for us to consider what 'the remedy of the plaintiff was for exclusion from his position and refusal to continue to pay his salary. After examining the authorities cited by .counsel and such others as have been discovered by us after a thorough search of the authorities generally, we have come to the conclusion that in view of the fact that decisions of other jurisdictions are based upon the statutes peculiar to those jurisdictions they afford at most only a blind guide in the present inquiry.

It is well settled in Ohio that one within the classified service who is wrongfully deprived of his employment or position by reason of an absolutely void and illegal ouster, from which there is no appeal, may be restored to his employment or position and the emoluments thereof in an action by way of mandamus. State ex rel. Moyer v. Baldwin, 77 Ohio St., 532, 83 N. E., 907, 19 L. R. A. (N. S.), 49, 12 Ann. Cas., 10; City of Cleveland v. Luttner, 92 Ohio St., 493, 111 N. E., 280, Ann. Cas., 1917D, 1134; Hornberger, Dir. of Pub. Service, v. State ex rel. Fischer, 95 Ohio St., 148, 116 N. E., 28; State ex rel. Brittain v. Board of Agriculture, supra; Curtis, Safety Director, v. State ex rel. Morgan, 108 Ohio St., 292, 140 N. E., 522; State ex rel. Bay v. Witter, supra.

As the salary of the plaintiff was fixed and determined, the proper action to compel the payment of it to him would be by way of mandamus to compel the issuance of a warrant. Counsel, however, contend in his behalf that the action was one by way of damages for the wrongful discharge, and this contention is in accordance with the statement of counsel at the commencement of the trial that his purpose was to rely on his claim for damages. It must be borne in mind that while the discharge was void and illegal by reason of a failure to comply with the statute, the claim was made by the defendant that the discharge was in fact made for insubordination and inefficiency, which are-grounds provided for in Section 486-17a. If the plaintiff were permitted to pursue a remedy by way of damages, the defendant could hardly defend upon the ground that plaintiff was rightfully discharged, for the reason that such a course would result in determining the question whether plaintiff was entitled to the position in a collateral ■ proceeding. That question could only properly be tried in the way provided in Section 486-17a; that is to say, by the filing of a proper notice of removal, and an appeal therefrom, in which the decision of the commission would be final. When the General Assembly took away from a municipal corporation the power to discharge those within the classified service, except in a prescribed way, it took away the right of either party to have the question of rightful or wrongful discharge determined in a proceeding collateral to that provided by statute. That question would necessarily be involved in an action for damages, because if legal grounds for the discharge existed it could hardly be claimed that the discharged employee or subordinate would be entitled to damages. Furthermore, as the act of discharge was contrary to the provisions of that section, and therefore a nullity, it follows that the plaintiff was as much assistant operator for the high-pressure pumping station after the attempt to discharge was made as before, and no cause of action for damages against the city of Toledo could arise out of the void act of its commissioner of water in dismissing the plaintiff. The wrongful act committed was in keeping him out of his position and depriving him of the emoluments thereof, for which the remedy was one by way of mandamus. He could not remain out of the office voluntarily, without pursuing his action for reinstatement, and recover damages.

For the reasons given, the court below erred in overruling the motion of the defendant for a directed verdict and in sustaining that of the plaintiff. The judgment of the court below is therefore reversed, and this court, having power to render the judgment which the court below should have rendered, finds that judgment should be rendered here in favor of the plaintiff in error.

Judgment reversed and final judgment for plaintiff in error.

Culbert and Richards, JJ., concur.  