
    The State, ex rel. Myers, v. Halencamp, Dir. of Public Service, et al.
    (Decided March 3, 1933.)
    
      Mr. William M. Gracey and Mr. L. R. Pugh, for plaintiff in error.
    
      Mr. John L. Davies, Mr. E. W. McCormick and Mr. Charles R. Petree, for defendants in error.
   Kunkle, J.

This is a proceeding in error seeking to reverse the judgment of the lower court wherein the plaintiff in error was plaintiff and the defendants in error were defendants.

It is an action in mandamus in which the relator, Smith L. Myers, being the plaintiff in error, seeks to be restored to his former position of grade B clerk in the department of public service, division of street cleaning and sprinkling and refuse collection and disposal, from which he was discharged in February, 1932, by William P. Halencamp, the director of public service. Relator also seeks to recover his compensation or salary from the date of such discharge.

In brief, it appears from the record that the superintendent of the division in question filed charges against relator with the department of public service.

The charges so filed alleged that “said Smith L. Myers has been moody, showed lack of initiative and willingness to receive instructions from the assistant superintendent under whom he worked. He does not try to fit in the organization, therefore he is detrimental to the work of the department.”

The record shows that a hearing was had upon these charges, and the relator was dismissed from the service.

The record shows in detail the nature of the hearing had before the director of public service. Testimony was introduced at this hearing by the superior officer of relator and others, showing the attitude of' the relator. Relator upon the advice of his counsel refused to answer questions or make any statement, because the director declined to permit his counsel to cross-examine witnesses.

The relator was advised by the director that he had the privilege of asking any questions he desired, and. stated to relator that “this is an investigation being conducted by the Director of Public Service in the Department; that you are an employee of the Department and you may cross-examine the witnesses or ask any questions that you desire.” The director .did, however, decline to allow the counsel for relator to cross-examine the witnesses.

We have read the record in this case with considerable care to ascertain just what transpired. We shall not attempt to quote in detail from the testimony taken either before the director of public service or in the court of common pleas.

Counsel have favored the court with very voluminous briefs in which, not only the testimony, but various authorities, are discussed in detail. We have considered these with care.

Some of the authorities cited are not pertinent in our opinion. The relator is not a public officer, and therefore does not fall within the reasoning of some of the authorities and the provisions of the Constitution cited.

The hearing provided by the charter and the rules of the department does not contemplate a judicial procedure, such as is discussed in the briefs of counsel for the relator.

While the hearing had before the director of public service may in a sense be termed a quasi judicial proceeding, it is neither a court trial nor a judicial proceeding in the sense that such terms are used in various authorities cited.

We are not required, in view of the state of the record, to determine to what extent the hearing contemplated by the charter is like unto a legal procedure. Neither is it incumbent upon us to determine whether or not the right of cross-examination by counsel should have been accorded the plaintiff in error.

Plaintiff in error did not avail himself of the rights which were offered him. He refused to make a statement giving his version of the charges, and also refused to question the witnesses produced against him. He offered nothing in his own defense when an opportunity was presented. Had lie favored the director with his version of his conduct, the director might have accepted such version and acquitted him of the charges.

In view of the state of the record, therefore, we would not he warranted in holding that the refusal of cross-examination by counsel constituted prejudicial error.

Assuming, however, for the purpose of this case, that plaintiff in error was entitled to cross-examine the witnesses through his attorney, we would not, in our opinion, by reason of such refusal, under the state of the record, be warranted in holding that he was clearly entitled to a writ of mandamus restoring him to his former position with back pay.

This is not a proceeding on appeal, nor is it one in error where the court could reverse the case and remand the same for a rehearing in which a different procedure should be followed. It is a proceeding in mandamus where a writ can only be allowed when it is shown the relator is clearly entitled thereto.

This court has had the subject of mandamus before it upon many occasions, and has frequently announced the rule that a writ of mandamus will not issue unless .the relator has shown a clear right thereto; that, where an official or board refuses to perform a duty or exercise a discretion vested in it by law, mandamus may be invoked to require the performance of such -duty or the exercise of such discretion. The relator, however, must first establish a clear right to such writ before he is entitled thereto.

We are in harmony with the judgment rendered in the common pleas court by Judge Scarlett, and, in view of his extended discussion of the issues involved, we do not deem it necessary to again restate the same.

The judgment of the lower court will be affirmed.

Judgment affirmed.

Hornbeck, P. J., and Barnes, J., concur.  