Opinion
No. 30678
Decided February 26, 1947.
Mandamus — Writ not issued unless abuse of discretion clearly shown, when — Superintendent of county home removed by board of county commissioners — Order of removal affirmed on appeal to State Civil Service Commission — Dishonesty and malfeasance by presenting false and fraudulent expense vouchers.
IN MANDAMUS.
The relator presented to the Board of County Commissioners of Hamilton county a request to permit the attendance of himself and three employees of the county home at an Ohio Welfare Conference at Columbus, the expense of each of the four persons to be: Railway fare, round trip, to Columbus, $5.34; hotel, $3.50 per night, $7; maintenance, $3 per day, $9; registration fee $2; or a total of $23.34. The board notified relator that he and the three employees would be entitled to attend the conference "at a total approximate cost of $93.36."
One of the employees used her automobile to bring another employee to the county home, after which the relator and the two employees riding in relator's automobile, picked up the third employee, and the four persons were then transported to and from Columbus in relator's automobile. After the return to Cincinnati there were presented three filled-in traveling expense vouchers each signed by one of the employees respectively. The traveling expense voucher which relator certified, signed and presented included $5.34 for a round trip railroad fare and two items of 80 cents each "for taxi and baggage transfer." The traveling expense vouchers filled out and presented for the three employees, each listed $5.34 for railroad fare and two items for carfare and taxi service. The aggregate amount of the four vouchers was $96.32.
The Board of County Commissioners of Hamilton county served an order of removal on relator discharging him from his position as superintendent of the county home, for the reason that he had been "guilty of dishonesty and malfeasance in office." The order of removal charged that the items for railroad fares, taxi and baggage transfer, carfares and taxi services were false and fraudulent; that relator had induced and directed the three employees to submit false and fraudulent vouchers; and that his action in inducing and ordering the subordinate employees to "submit false and fraudulent expense vouchers constitutes malfeasance in office as well as dishonesty on his part in submitting an expense account calling for payment from the county treasurer for expenses which he did not in truth and in fact incur."
The relator filed with the board of county commissioners an explanation and then perfected his appeal to the State Civil Service Commission from the order of removal.
The board of county commissioners transmitted to the State Civil Service Commission the aforementioned order of removal together with Neal's explanation.
In the hearing before the State Civil Service Commission on Neal's appeal witnesses were examined, and the commission affirmed the order of removal filed by the county commissioners against him.
Relator filed in this court a petition in mandamus to show cause why the State Civil Service Commission should not sustain his appeal and order him restored to his office with salary for the time excluded and costs, or for judgment of restoration to his position, with salary, costs, damages and other relief.
The answer of the respondent in this court pleaded, inter alia, that the action of the commission in sustaining the order of removal was neither unreasonable, arbitrary nor an abuse of discretion, and prayed that the petition in mandamus be dismissed.
The cause was heard upon those pleadings and an agreed statement of facts, which incorporated as an exhibit a transcript of the proceedings and evidence before the State Civil Service Commission.
Messrs. Paxton Seasongood, for relator.
Mr. Hugh S. Jenkins, attorney general, Mr. E.G. Schuessler and Mr. Daronne R. Tate, for respondent.
The basis of relator's prayer for a writ of mandamus is that there is no evidence to sustain the respondent's decision.
Section 486-17 a, General Code, provides, in part:
"The tenure of every officer, employee or subordinate in the classified service of the state, the counties, cities and city school districts thereof, holding a position under the provisions of this act, shall be during good behavior and efficient service; but any such officer, employee or subordinate may be removed for incompetency, inefficiency, dishonesty, * * * or any other acts of misfeasance, malfeasance or nonfeasance in office." (Italics supplied.)
To warrant the issuance of the writ prayed for, it must clearly appear that respondent abused its discretion in determining from the evidence presented that relator was guilty of dishonesty and malfeasance as stated in the order of removal, and that respondent clearly abused its discretion in affirming that order.
It is important to bear in mind that such abuse of discretion must be clearly shown. State, ex rel. Wilms, v. Blake et al., Industrial Commission, 144 Ohio St. 619, 622, 60 N.E.2d 308, 310.
The question is not what this court would have done had it been functioning in the place of the respondent, but whether upon the facts before the respondent it acted arbitrarily, capriciously or without justification.
In the case of World Exchange Bank v. Commercial Casualty Ins. Co., 255 N.Y. 1, 5, 173 N.E. 902, 903, the judge writing the opinion said:
"Dishonesty, unlike embezzlement or larceny, is not a term of art. Even so, the measure of its meaning is not a standard of perfection, but an infirmity of purpose so opprobrious or furtive as to be fairly characterized as dishonest in the common speech of men."
Black's Law Dictionary (3 Ed.) defines "dishonesty" as a "disposition to lie, cheat or defraud; untrustworthiness; lack of integrity."
In the opinion in the case of Bell v. Josselyn, 69 Mass. (3 Gray), 309, 311, 63 Am. Dec., 741, 742, the terms "nonfeasance," "misfeasance" and "malfeasance" are simply and succintly defined in the following language:
"Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all."
In the instant case, the evidence plainly shows that the presented vouchers included items of expense which had not been incurred. Those vouchers were both misleading and false and presented an untrue history of events as they actually occurred.
On each voucher submitted, above the appended signature, was the statement:
"I hereby certify that the expenses listed above have been incurred by me in the service of the county and include only such expenses as were necessary in performing that service, and to the best of my knowledge and belief are correct as stated."
To say on the basis of the disclosures outlined that relator had done nothing warranting his removal is hardly plausible.
Relator's contention that he did nothing wrong because the expenditures actually made by him were in excess of the amounts stated in the vouchers, is beside the point.
In our opinion the respondent was confronted with facts sufficiently strong against the relator to justify its decision. That being so, it necessarily follows that relator has not clearly shown an abuse of discretion on the part of the respondent in making the determination complained of, and he must therefore fail.
The writ is denied.
Writ denied.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN and BELL, JJ, concur.
SOHNGEN, J., not participating.