Opinion
No. 29007
Decided May 19, 1943.
Civil service — Position in classified service may be abolished, when — Mandamus — Facts and conditions considered as of time writ to be issued — Writ refused where relief ineffective — Laches by delay in taking action to compel reinstatement to position.
1. The power to create a position in the classified civil service includes the power to abolish such position. The employing officer may abolish any position in such service if such act is done in good faith solely for purposes of economy and more efficient public service. ( State, ex rel. Stine, v. McCaw, Chief, 137 Ohio St. 13, approved and followed.)
2. In exercising the extraordinary power of mandamus a court should take into consideration the facts and conditions existing at the time it determines whether to issue a peremptory writ; if it should affirmatively appear that no wrong could possibly be remedied or no right could possibly be enforced or promoted, the writ will be refused. ( State, ex rel. Apple, v. Pence, 137 Ohio St. 569, approved and followed.)
3. A person dismissed from a position in the classified civil service, who, with full knowledge of claimed rights and no valid excuse for delay, takes no action to compel reinstatement until eleven months thereafter, is guilty of laches which precludes relief by writ of mandamus. ( State, ex rel. Smith, v. Witter, Dir., 114 Ohio St. 357, approved and followed.)
IN MANDAMUS.
This is an action for a writ of mandamus originating in this court. It is alleged in the petition that the relatrix on February 15, 1941, and for some time prior thereto, was employed as chief clerk in the Department of Public Works of the state of Ohio of which respondent is director; that on the aforementioned date she received a letter which reads as follows (omitting caption):
"This is to notify you that on and after February 151, 1941, your services as chief clerk in the Department of Public Works will no longer be required.
"Department of Public Works, "Frank L. Raschig, Director";
that she immediately notified the state Civil Service Commission, protesting her dismissal as being in violation of law; that she requested respondent to reinstate her and respondent refused; that he appointed Charles J. Miller as chief clerk in place of relatrix, effective February 15, 1941, at the same salary she had been receiving, to wit, $2,400 per annum; and that the respondent claimed such appointment as a personal exemption, and placed such position in the unclassified civil service of the state of Ohio, all contrary to law. The relatrix prays that a writ of mandamus issue directing the respondent to restore the relatrix to her position as of the date of February 15, 1941, and that the respondent be commanded to notify the state Civil Service Commission to restore her name upon the roster of such commission as chief clerk in the Department of Public Works.
To this petition the respondent filed an answer in which he admits the receipt by the relatrix of the letter set forth in her petition; that relatrix requested him to reinstate her and he refused and still refuses so to do; and that he appointed one Charles J. Miller to the position of chief clerk in the Department of Public Works, effective February 15, 1941, at an annual salary of $2,400. Respondent denies that the relatrix was appointed to a permanent position in the classified civil service, and denies that on February 15, 1941, relatrix held the position of chief clerk in the Department of Public Works in the classified civil service of the state of Ohio. Respondent alleges that when the relatrix was employed in the position of chief clerk in the Departrment of Public Works, her employment therein was not in the classified civil service: that her appointment or promotion to such position was not made in accordance with the law relating to promotion in the classified civil service; and that she is therefore not entitled to be restored to the position. Further answering respondent denies each and every allegation contained in the petition not therein admitted to be true.
By way of second defense the respondent says that the writ of mandamus prayed for should not be issued for the following additional reasons: That if the relatrix did hold a position in the classified civil service she did not make every reasonable and proper effort to be restored thereto; that if she was improperly or unlawfully removed from her position under circumstances which did justify her restoration, such condition existed on February 15, 1941, and since she did not seek recourse in court until January 14, 1942, she was guilty of laches which barred her right to the relief sought.
The respondent filed a supplemental answer in which he sets forth that on October 15, 1942, the position formerly held by the relatrix was abolished in good faith and for the sole purposes of economy and the more efficient operation of the Department of Public Works; that the duties of the position formerly occupied by the relatrix had been combined with the duties of other employees; and that an economy and more efficient operation of the Department of Public Works have resulted from the abolishment and consolidation of such position.
To the answer relatrix filed a reply and to the supplemental answer she has filed a supplemental reply. In her reply she sets forth that the respondent was appointed director of public works on January 2, 1941, and did not within 30 days after taking office designate the position held by relatrix for exemption from the competitive classified civil service; that she made every attempt to secure other employment after dismissal; and that respondent represented that, after her separation from the service, relatrix would be taken care of in the state employment.
By way of supplemental reply relatrix denies each and every allegation in the supplemental answer of the respondent.
A stipulation signed by counsel for both parties has been filed. The stipulation was filed subject to objection as to the relevancy and competency of the facts stipulated, which objections were therein made by the respondent. It is stipulated that the evidence would disclose, that on September 7, 1920, relatrix was appointed as a provisional employee of the state of Ohio as a bookkeeper at an annual salary of $840; that at various times she was advanced from the position of bookkeeper to the position of stenographer and later to the position of clerk and finally to the position of chief clerk grade 1-A at a salary of $2,400 per annum; that on February 15, 1941, relatrix was placed in the unclassified civil service and her name restored to the eligible list for clerk grade 1-A (chief clerk) upon authority of a letter written by respondent dated January 27, 1941; that on December 21, 1939, respondent was appointed director of the Department of Public Works and assumed his office on January 2, 1940; that he was again appointed on January 2, 1941, and on January 2, 1942; that each of such appointments was for a one-year period; that on January 20, 1941, respondent requested that the positions, in Department of Public Works, of executive secretary and chief clerk be exempted from civil service and that the positions of superintendent of Wyandotte building and superintendent of State House be placed under civil service, that prior to that time the two latter mentioned positions had been exempted; that the state Civil Service Commission changed its records in accordance with the request; that under the date of February 14, 1941, relatrix protested her alleged dismissal; that the letter of dismissal was dated February 14, 1941; that on January 28, 1941, the respondent notified the state Civil Service Commission of the appointment of Charles J. Miller to succeed relatrix as of February 15, 1941; that the letter of the director of education dated December 15, 1941, cancelling the appointment of the relatrix, stated there was no further need for such clerk; and that the appointment of the relatrix to such position should be cancelled at once.
In addition to the stipulation of facts the depositions of M.E. Sensenbrenner, Della M. Stoer, Leonard J. Stern and John E. Daly have been filed.
The depositions of M.E. Sensenbrenner and Della M. Stoer were taken on behalf of the relatrix.
It is disclosed by the deposition of M.E. Sensenbrenner that on January 20, 1941, the respondent wrote a letter to the state Civil Service Commission which was received by the commission on January 22, 1941. Omitting the caption the letter reads as follows:
"As I understand it, the director of public works is entitled to the exemption of three (3) assistants from civil service appointments.
"At present the building manager, the superintendent of the Wyandotte building and the superintendent of the State House in the Department of Public Works are the positions for which exemptions were made. I understand that the exemptions must be requested within thirty (30) days of the date of appointment of the director, which in my case was January 2nd, 1941.
"At present the positions of executive secretary and chief clerk in this department are under civil service. I would respectfully request exemptions from civil service for these two positions. At the same time I would request that the positions of superintendent of the Wyandotte building and superintendent of the State House be placed under civil service and that I be furnished with an eligible list for these two positions if there is one in existence.
"Respectfully, "Department of Public Works "Frank L. Raschig, "(Signed) Frank L. Raschig "Director"
On January 27, 1941, the state Civil Service Commission replied to such letter in the following words and figures, omitting caption:
"Designations by the director of public works of the following positions as personal exemptions, to which the director is entitled, in accordance with the provisions of Section 486-8-8 of the civil service laws of Ohio, were ordered entered accordingly:
"Building manager, Ohio departments building "Executive secretary "Chief clerk
"The following positions in the Department of Public Works, having been changed by the appointing authority from the classified to unclassified service under provisions of Section II, Rule III, which resulted in the separation of such classified employees from the service, the commission directed that the incumbents of the positions be placed at the head of the eligible lists for these positions, to be certified therefrom for a period of one year, in accordance with Section 8, Rule III of the rules and regulations of the commission.
"Executive secretary — occupied by Don C. Booth "Clerk, grade I, rate C (chief clerk) occupied by "Della M. Stoer
"We have also entered on our records establishment of the positions of superintendent of the Wyandotte building and superintendent of the State House Grounds in the classified service. Inasmuch as we do not have eligible lists for either of these positions, you are authorized to submit provisional appointment in accordance with Section 486-14-1 of the General Code. Forms No. 41 are enclosed for your convenience in making your provisional appointments for the position of superintendent of the Wyandotte building and superintendent of the State House Grounds. Kindly complete and return as soon as possible.
"Very truly yours, "The State Civil Service Commission "By: "M.E. Sensenbrenner "Chief Clerk"
The testimony of Miss Stoer related to her duties as the chief clerk in the Department of Public Works and she further testified as to the position which she held under the director of education subsequent to the 14th day of February 1941, and admitted that on the date of her dismissal she wrote a letter to the respondent in which she used substantially this language:
"It is my plan to institute appropriate proceedings in the Supreme Court of Ohio in order that I may be able to protect my rights under the classified service."
She also related her version of a purported interview with the respondent after her dismissal at which time she claims the respondent said to her that he was sorry, and that the administration was going to take care of her elsewhere.
The testimony of Leonard J. Stern, M.E. Sensenbrenner and John E. Daly was offered on behalf of the respondent.
Leonard J. Stern, then executive secretary in the Department of Public Works, testified that he began his employment on February 15, 1941, and that Charles J. Miller on that date became chief clerk. Mr. Stern testified as to the duties and the work performed by Miller and that Miller resigned from his position in the department on October 15, 1942, at which time the position of chief clerk was abolished. He further testified that he and another employee, one Mrs. Hempy, together with a part time stenographer who did general stenographic work in the department, had taken over the work which had formerly been performed by the chief clerk; that no appropriation was carried in the budget request of the department for the years 1943 and 1944 and that no money had been paid to anyone as chief clerk since October 15, 1942; that on November 18, 1942, the director notified the state Civil Service Commission that the position of chief clerk in the Department of Public Works had been abolished effective October 15, 1942, and would not be refilled; that on November 20, 1942, the state Civil Service Commission replied that their records had been changed to show that the position of chief clerk had been abolished as of the date specified; that certain payrolls were introduced in evidence which disclose that subsequent to October 15, 1942, no one was paid as chief clerk of the department; and that the budget request for 1943 and 1944 for the administrative division is reduced approximately $2,000 per year.
M.E. Sensenbrenner testified as to the receipt of the letter from the respondent, dated November 18, 1942, notifying the commission of the abolishment of the position of chief clerk and also as to the answer of the commission to the respondent.
John E. Daly testified that he was an investigator for the Department of Public Works and had occupied that position for 15 years; that he observed the type of work and the duties which relatrix performed; that he also observed the type of work which Mr. Miller performed; and that the work which the relatrix and Mr. Miller had previously performed was being done by five people in the department.
This is substantially the evidence offered by deposition.
Mr. Frank B. McClelland, for relatrix.
Mr. Thomas J. Herbert, attorney general, and Mr. Daronne R. Tate, for respondent.
There are two questions, the answers to which are determinative of this case.
First. Did respondent in good faith abolish the position of chief clerk in the Department of Public Works formerly held by relatrix, to which she seeks to be reinstated?
The record discloses that the respondent was re-appointed in January 1941, as director of the Department of Public Works and on the 20th day of January of that year he wrote the state Civil Service Commission requesting that the positions of chief clerk, held by the relatrix, executive secretary and building manager of the Ohio departments building, be exempted from civil service in accordance with the statute. On January 27, 1941, the state Civil Service Commission answered, saying that the three positions, as requested by respondent under authority of Section 486-8 (8), General Code, had been removed from the classified service and placed in the unclassified service in accordance with Section II, Rule III of the rules of the commission.
Thereafter on or about February 14, 1941, the respondent notified the relatrix that her services were no longer required. He later notified the state Civil Service Commission that he had appointed Charles J. Miller to the position previously held by the relatrix and Miller continued to hold such position until October 15, 1942, at which time he resigned. The respondent then abolished the position, notified the state Civil Service Commission and made no request in his budget for an appropriation to pay the salary of the chief clerk for the biennium of 1943-1944. After October 15, 1942, the respondent assigned the duties of the position of chief clerk to several other persons employed in his department and the expenses of the department were substantially reduced by reason of the fact that the position of chief clerk was abolished. There is no evidence that the position of chief clerk was abolished from any improper motive or ulterior purpose.
In determining this question it should be observed at the outset that the statutes relating to civil service have for their primary purpose economy and efficiency in the public service. The secondary purpose is permanent tenure in office for those employed in such service. The power to create a position in the classified civil service includes the power to abolish such position. Therefore any position in the classified civil service may be abolished by the employing officer if such act is done in good faith solely for purposes of economy and more efficient public service. In State, ex rel. Stine, v. McCaw, Chief of Div. of Aid for Aged, 137 Ohio St. 13, 27 N.E.2d 488, Matthias, J., states the law as follows:
"An order abolishing a civil service position is ineffective where a new appointee is named to perform the same duties; but where there is a substantial merger of two positions for the purpose of economy with no proof of ulterior motive or purpose on the part of the employing officer, or discrimination upon political, religious or other improper grounds, a writ of mandamus will not be granted to require reinstatement of an employee discharged as a result of such merger."
Under the facts shown by this record the conclusion is inescapable that the respondent could and did on October 15, 1942, abolish this position in good faith and for purposes of economy and efficiency in the public service.
While it is true that the relatrix filed her petition on January 14, 1942, it is our duty when called upon to exercise the extraordinary power of mandamus to take into consideration the facts and conditions existing at the time we determine whether to issue a peremptory writ; and if it should affirmatively appear that no wrong could possibly be remedied or no right could possibly be enforced or promoted, the writ should be refused.
In State, ex rel. Apple, v. Pence, 137 Ohio St. 569, 31 N.E.2d 841, Turner, J. states the rule thus:
"In exercising the extraordinary power of mandamus a court should take into consideration the facts and conditions existing at the time it determines whether to issue a peremptory writ." See also Trumbull County Board of Education v. State, ex rel. Van Wye, 122 Ohio St. 247, 171 N.E. 241, and State, ex rel. Haines, v. Board of Education of Greene County School District, 131 Ohio St. 609, 3 N.E.2d 527.
Second. Was the relatrix guilty of laches preventing the granting of relief for which she prays?
The record discloses that the relatrix was entirely familiar with her rights. On the day she received the letter from respondent terminating her employment she wrote the respondent that she proposed to institute proceedings in the Supreme Court to protect her rights under the classified service. The only excuse for her failure to proceed promptly is her version of a conversation with the respondent at about the time of her dismissal. Assuming her version of this conversation to be correct the record also discloses that in August 1941, she had a further conversation with the respondent at which time she asked him when the administration was going to take care of her, and the respondent replied, "Evidently they have changed their minds." After that conversation she waited five months longer before instituting this action. Had relatrix pursued her avowed intention of instituting proceedings on or about February 14, 1941, the two claims most strongly urged against her in this proceeding would have been forestalled, i. e., that the position which she formerly held and to which she seeks reinstatement has been abolished, and that she has been guilty of laches preventing the granting of the relief for which she prays.
Upon this question of laches no hard and fast rule can be laid down. Some courts have held that as much as three months delay in civil service cases amounts to laches which prevents relief. In this state some of the lower courts have held that six months constitutes laches. This court, in the case of State, ex rel. Smith, v. Witter, Dir., 114 Ohio St. 357, 151 N.E. 192, states the rule as follows:
"A court, in the exercise of its discretion, may refuse to issue a writ of mandamus, in favor of a relator who has allowed an unreasonable time to elapse before bringing his action, especially where such delay may be prejudicial to the rights of the respondent."
The rule announced is especially applicable to the instant case. The respondent, having abolished the position, assigned the duties to other persons in his department, and having made no budget request for money with which to pay a chief clerk, would be prejudiced by the allowance of the writ.
We believe that upon the facts shown by the record the relatrix is guilty of laches. There is no position of chief clerk in the Department of Public Works to which relatrix could be restored.
Several other questions are presented by the record but we deem it unnecessary to discuss them. In order to prevail the burden was upon relatrix to show a clear legal right to relief. The record makes plain at least two conclusive reasons why it is our duty to deny The writ.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, WILLIAMS and TURNER, JJ., concur.