
    Kramer v. The State, ex rel. Moore.
    (Decided February 28, 1933.)
    
      Mr. W. Bernard Rodgers, for plaintiff in error.
    
      Mr. Franklin L. Maier, for defendant in error.
   Sherick, P. J.

This was an action in mandamus originally commenced by the relator, Wilbert D. Moore, in the court of common pleas, against the respondents, Claude R. Kramer, as service-safety director of the city of Massillon, and the auditor and treasurer, as the city’s fiscal officers. The relator seeks the issuance of a writ compelling the payment to him of the emoluments of his office for a period of thirty days, during which time it is claimed he was illegally suspended as a sergeant of police.

The respondents having demurred to the petition, and their demurrer having been overruled, and not desiring to plead further, the respondent Kramer prosecutes error to this court, claiming that the judgment was contrary to law, that a clear right to the relief sought was not shown, and that the issuance of the peremptory writ was erroneous.

The petition in substance recites that on September 1, 1932, the plaintiff in error suspended the relator; the order of suspension reading as follows:

“You are hereby suspended for a period of thirty days (30) from your position of Sergeant of Police, Massillon Police Department, for the purpose of discipline. Said suspension effective September 1,1932.”

On September 3, the relator requested of the director the reason for his suspension, in order that he might file an explanation thereof, stating that he knew of no adequate reason therefor, and that he had faithfully discharged his assigned duties. Thereafter the relator perfected an appeal to the civil service commission of the city of Massillon, which it refused or failed to assign for hearing.

Thereupon Moore commenced a prior action in mandamus against the members of the civil service commission of the city and the plaintiff in error herein, wherein the court found that the relator was entitled to an appeal from the order of suspension, “by virtue of the provisions of Section 486-7, sub-sections 1 and 6, General Code of Ohio, Rule XI of the Rules and Regulations of the Civil Service Commission of the State of Ohio, and Section 486-19, General Code of Ohio.” That court further found that the law required, in case of suspension for disciplinary purposes, that an assignment of such specifications of facts be filed by the director in order that the suspended officer might make explanation thereof as required by law. It ordered the commission to proceed to hear and determine the relator’s appeal. To this order a motion for a new trial was filed find overruled. No exception was taken to this action or error prosecuted therefrom.

The director persisted in his refusal to. file any specifications of facts for the relator’s suspension; and the commission, upon due notice, proceeded to and did hear and determine the appeal. It ordered that the relator be reinstated as of September 1, and that he be paid his salary, now sought by this proceeding; and it further directed the director to do all things necessary to that end. Upon demand of the relator, the director has refused to comply with the commission’s order.

The respondent Kramer, in this the second action in mandamus, which is now before this court, asserts the claim that Section 486-17, General Code, makes no provision for any such appeal in a suspension of a subordinate for disciplinary purposes, and that the appeal and the commission’s finding and order were a nullity. He bases his position upon authority of Curtis, Safety Director, v. State, ex rel. Morgan, 108 Ohio St., 292, 140 N. E., 522. This case is no doubt sound in reason and principle in a matter of suspension in the interest of necessitated economy; and if it were necessary for this court in this case to follow the reasoning of that case, we would frankly admit our hesitancy to do so. If the Civil Service Act or the rules promulgated by the commission provide no redress for suspension of a subordinate for disciplinary purpose, without reason or cause or appeal therefrom, then an arbitrary and reprehensible interference with the right of one in classified civil service to enjoy his office is impaired. Continued and repeated suspensions of like kind might deprive him of practically all but his title, and his record might be so marred without his fault, and without means of redress, as to eventually make it possible for his removal from office upon his record alone.

It is well at this point to remark that the relator refutes the respondent’s contention, and we advance the thought that the question and issue that the respondent would now make is res judicata; second, that the Civil Service Act, interpreted and construed together with the Rules of the Commission, does provide for an appeal in this case, as the trial court so found; and, third, that if the law and rules do not so provide, then the act in the respect designated is unconstitutional.

The remedy of mandamus is well recognized as the means to be employed by a classified civil service employee to determine his legal right to be restored to the office of which he claims to have been illegally dispossessed by his superior. And our courts have taken the position that a relator may question the constitutionality of an act that precludes him from the right which he claims in an action in mandamus. See State, ex rel. McKell, v. Robins, 71 Ohio St., 273, 73 N. E., 470, 69 L. R. A., 427, 2 Ann. Cas., 485. We therefore take the view that the court of common pleas had jurisdiction of the subject-matter of the questions presented in the first action in mandamus pleaded in the petition herein, irrespective of whether or not the law and rule of the civil service commission provide for such an appeal, or expressly withhold such a remedy. The plaintiff in error submitted his person to that court’s jurisdiction. It must therefore follow that that court had full power and authority to enter the judgment it did enter, irrespective of the question whether it was right or wrong in its conclusion as a matter of law.

The rule is stated in 18 Ruling Case Law, 357, as follows:

“A decision by a court of competent jurisdiction on an application for a mandamus, awarding or denying the writ, cannot thereafter be questioned collaterally by any of the parties, nor by anyone else who was represented in the proceeding. They may attack it directly by appeal or motion to set aside, or for a rehearing, but so long as it remains unreversed and not set aside, it binds everyone who was a party, or was represented in any subsequent collateral action or proceeding.”-

The case of Moore v. Robison, 6 Ohio St., 302, is an early recognition of this rule. The court in that case, at page 305, considering a judgment entered on a premature claim, remarks:

“But if rendered by a court having jurisdiction of the subject-matter of the action and the person of the defendant, it can not be treated as a nullity. Until vacated by appeal, or reversed by a court having the proper appellate jurisdiction, in a proceeding for that direct purpose, it binds the parties, and can not be collaterally questioned. ’

A later acknowledgment of this doctrine finds expression in Martin v. Roney, 41 Ohio St., 141. Our attention has been further directed to the case of Sweeney v. City of Butte, 64 Mont., 230, 208 P., 943. This was a situation of a wrongful discharge of a police officer restored to his office by a writ of mandamus. By a statute of the state of Montana this order of reinstatement, and right to the emoluments of the office during the time of suspension, had the effect of a claim against the city which must be prosecuted within a given time. In a suit on this claim, the court held that a judgment in mandamus, adjudging plaintiff entitled to the office and the emoluments of patrolman, cannot be attacked in an action to recover the emoluments, and, not having'appealed from the judgment (in mandamus), defendant is bound by it.

The converse of this situation is found in Kaill v. Bd. of Directors of St. Landry Parish (C. C. A.), 194 F., 73, and in Tucker v. Hubbert (C. C. A.), 196 F., 849. The first-named authority concisely states that “The validity of a judgment against a parish cannot be raised by answer in a mandamus proceeding to compel its payment.”

We cite and quote the last three cases noted as illustrative of the thought that a judgment in mandamus is of no less sanctity than any other kind of judgment; and that the rule applies in both situations. We see no reason why it should not have equal application when such a question is raised in a second action in mandamus. It cannot be said that the writ now asked for should be denied on the theory that the relator had an adequate legal remedy. The writ issued in the first action commanded the civil service commission of the city to proceed to perform a discretionary duty; and, it having performed that duty, the director now refuses to abide by the order of reinstatement, and to place the relator’s name upon the payroll and cause him to be paid. A judgment for the amount due the relator would not command the doing of these acts prerequisite to actual payment.

If the respondent director was aggrieved by the court’s judgment on the matter of the relator’s right of appeal, he should have prosecuted error therefrom, and having failed so to do he cannot now be heard to raise a question upon the merits previously litigated between the same parties to a final conclusion. And it having been judicially determined that a right of appeal existed, and the commission having found that the relator had been illegally suspended, and that he was entitled to the emoluments of his office for the time of his suspension, we conclude that a writ should issue as prayed for. The judgment is affirmed and the cause remanded.

Judgment affirmed and cause remanded.

Lemert and Montgomery, JJ,, concur.  