
    City of Toledo et al. v. Klaiber.
    (Decided June 19, 1933.)
    
      Mr. Gerald P. Openlander, for plaintiffs in error.
    
      Mr. Harry 8. Commager and Mr. N. J. Walinski, for defendant in error.
   By the Court.

On December 28, 1932, Harvey Klaiber, as relator, filed his petition in the court of common pleas praying for a writ of mandamus to restore him to membership in the police department of the city of Toledo, “from which he had been dismissed on September 10, 1932.” He was appointed a patrolman on December 29, 1915, and by a series of promotions was advanced to a lieutenancy on May 1, 1929, which position he held at the time of his discharge. The court of common pleas allowed the writ as prayed for, and plaintiffs in error now ask this court to reverse the judgment so rendered.

On July 5, 1932, certain charges in writing were preferred against Mm as to carelessness and inattention in performing his duties in relation to $301, which had been placed in a safe, the door of which was left unlocked by Klaiber, which money when looked for was missing, and on September 9, 1932, further written charges were preferred against him “for conduct unbecoming an officer,” charging particularly that he did not testify truthfully as to a certain pseudo journal entry purporting to relate to divorce proceedings filed and pending in the court of common pleas; the journal entry being in fact intended only for the purposes of a proposed mock trial.

The evidence in the instant case shows that Klaiber appeared before the safety director, and testimony was taken on the charges thus preferred against him, the hearings thereon continuing intermittently from July 7, 1932, to and including September 9, 1932. At the conclusion thereof, on September 10, 1932, Klaiber was dismissed from the department. From this order of dismissal Klaiber filed his appeal with the civil service commission. After hearing the evidence there adduced, the commission affirmed the action of the director of public safety. An appeal was attempted to be taken to the court of common pleas, but was abandoned, the action so taken having been dismissed. Klaiber claims, among other things, that the charges were never given to him personally, but the evidence clearly shows that at the very beginmng of the hearings, and during their continuance, he had full knowledge thereof, and that at the trial before the civil service commission they were read to him.

We cannot say that there was uo evidence justifying the finding of the director of public safety and the consequent order of dismissal. The proceedings had were authorized by the charter of the city of Toledo and by the rules and regulations adopted pursuant thereto. As we view it, an action in mandamus will not lie to vacate the order thus made. Judgment of the court of common pleas is therefore reversed, and the cause is remanded to that court, with directions to dismiss the petition at the costs of the relator.

Judgment reversed and cause remanded.

Richards, Williams and Lloyd, JJ., concur.  