
    The State, ex rel. Swartley, v. Kalina, City Treas. et al.
    (Decided July 10, 1933.)
    
      Messrs. Cline & Patterson, for relator.
    
      Mr. W. Geo. Kerr and Mr. Wm. C. Dixon, for respondents.
   Lieghley, P. J.

Relator, J. Marvin Swartley, served as an electrical inspector in the division of buildings of the city of Cleveland, having been appointed to said position from an eligible list certified by the civil service commission, at a salary of $2,700 per annum. On April 1,1929, relator and others were temporarily laid off. At the time of the lay-off, relator was first on the eligible lay-off list, and was first in order for reappointment.

August 5, 1929, a vacancy occurred for the appointment of one electrical inspector. The petition alleges that, under Rule 9, Section 5, in force at that time, the relator was entitled to this appointment, and, as this case is considered on demurrer to the petition, the facts 'well pleaded in the petition must be accepted as true.

It is further alleged that relator was not appointed, but that another lower on the list received the appointment to this vacancy. It is claimed that relator protested the appointment of another, lower on the layoff list, and tendered his own services and demanded appointment.

On August 16, 1930, relator was reappointed upon certification of the civil service commission, was replaced in the position formerly held by him, and assigned to the work formerly done by him.

November 1, 1932, relator filed his petition in this court praying that a writ of mandamus issue to the commissioner of accounts of the city of Cleveland to place his name upon the pay roll for the period extending from August 5, 1929, to August 16, 1930, and that a writ issue to the treasurer of the city of Cleveland requiring him to issue his voucher for the salary for said period, less the amount, if any, that relator may have earned during that time. To this petition the defendants interposed a demurrer, on the ground that it appears on the face of the petition that it does not state facts which show a cause of action.

From the allegations of the petition it is to be observed that a group of electrical inspectors were laid off on April 1,1929, and that none of these performed services from that date until August 5, 1929. No claim or complaint is made about this period. However, a vacancy then occurred, and another served by appointment during the period from August 5,1929, to August 16, 1930, and relator complains that this man was wrongfully appointed, and that relator was wrongfully deprived of the emoluments of the office.

It should be noted that during this period of over a year the relator did nothing more than orally protest, offer his services, and demand his appointment in place of the one who received the appointment. He did not take any effective action in manner and form, as he now takes. He stood by content to limit his protest to oral assertion and demand, and permitted another to occupy the position and receive for over a year the compensation for a job which he claimed to be his. Normally it would be expected that one who asserted that a position rightfully his had been filled wrongfully by the appointment of another would promptly take effective action in the form of mandamus at or about the time the alleged wrongful deprivation was committed. On the contrary, relator, for over a year, passively permitted the city to pay out, and another to receive, money that he claims belonged to him. And, not only that, he waits more than two years longer before instituting this action. In the meantime he accepted an appointment in August, 1930, in the same classification, as an electrical inspector, and thereafter held that position for months.

The conclusion is inevitable that, if relator really considered in August, 1929, that he had been wronged in the manner now complained of, he has stood idly by from that date until November, 1932, during all of which time an effective remedy was available to him, if he had any rights in the premises, and has permitted another to occupy a position that he now claims he was entitled to, and to draw from the city of Cleveland the compensation which he now says belongs to him.

Under these circumstances we do not feel that the relator has established a clear right to a writ of mandamus. Under the law of Ohio, as stated by the Supreme Court in the case of State, ex rel. Lamb, v. Swisher, 112 Ohio St., 707, at page 715, 148 N. E., 686, 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.”

As stated, the relator brought no effective action in mandamus until November, 1932, for a position beginning August 5,1929, and extending to August 16,1930, to which he claims he had the legal right. As stated, for a period of over a year he stood idly by and permitted another to hold the job and collect the compensation, without doing anything other than to orally protest and demand. This other appointee, it is claimed, was appointed to his position, and continued right ahead in this same employment. It is alleged that on August 16, 1930, the relator was appointed to his old position and salary. The fate of the other employee on August 16,1930, is not disclosed.

It seems to us that the principle announced by Mc-Quillin, quoted below, is applicable to the present situation. The failure of relator to assert his rights, and his failure to take steps to obtain a judgment showing that he was legally entitled to this appointment and position for the length of time his present petition discloses, amounts to an acquiescence in the appointment and service of the other, and he has thereby deprived himself of the right at this time to recover the salary for said period of time. The conduct of relator and his failure to contest his right to the office denote a passive acquiescence in what occurred.

“The officer wrongfully suspended or discharged may by words or conduct acquiesce in such action, and thus deprive himself of the right to recover the salary or compensation of the office, this on the ground of the doctrine of waiver and estoppel which is applicable in cases of this character when warranted by the surrounding circumstances.” 2 McQuillin on Municipal Corporations (2d Ed.), page 241.

For the foregoing reasons, the demurrer is sustained, and the writ is refused.

Writ refused.

McGill, J., concurs.

Levine, J., not participating.  