In Hansen v. City of Cleveland, 132 Ohio St. 625, 9 N.E.2d 619, the Supreme Court indicates its dissatisfaction with the language used in the Luttner case.Summary of this case from Hull, Exrx. v. City of Cleveland
Decided July 7, 1937.
Civil service — Municipal — Supervisor of cemeteries laid off and subsequently discharged, after mandamus for reinstatement denied — Complaint sustained by Civil Service Commission that laborer performing supervisor's duties — Supervisor cannot recover pay for service during lay-off and laborer's employment — Employee cannot recover compensation during legal lay-off or discharge — Or for failure to re-employ or restore to employment.
APPEAL from the Court of Appeals of Cuyahoga county.
This action originated in the Municipal Court of Cleveland, where the plaintiff, James P. Hansen, sought to recover from the city of Cleveland the sum of $691 upon a claim set up in his petition. Issue was made, and the case was submitted to the trial court upon an agreed statement of facts, the portion whereof, essential to a consideration of the legal questions presented, is as follows:
"The plaintiff, prior to November 18, 1933, was employed in the Division of Cemeteries, Department of Parks and Public Property, as Supervisor of Cemeteries, by virtue of appointment from an eligible list for the position. He was assigned to duty at Highland Park Cemetery. On November 18, 1933, he was laid off from his position and the Civil Service Commission was notified accordingly. At that time his salary was $1,658 per annum. He has not since been employed by or performed any services for the city of Cleveland, including the period for which he claims herein.
"On May 25, 1934, the plaintiff filed an action in mandamus in Court of Appeals to be restored to his position and the emoluments thereof. On February 8, 1935, the following entry was made by the court in the said action, being No. 14207 therein:
" 'Writ denied and petition dismissed. Judgment against plaintiff for costs. Exception.'
"No motion for a new trial was filed and no proceedings in error instituted to set aside or reverse said judgment. Thereafter, to wit, on or about March 7, 1935, the plaintiff was formally discharged from the position of Supervisor of Cemeteries. In the meantime one R.E. Wolfe was employed as a laborer at Highland Park Cemetery at an hourly rate of wage commencing January 3, 1934. The plaintiff subsequently complained that said Wolfe was performing the same duties he had been performing prior to his lay-off. This complaint was sustained by the Civil Service Commission on May 21, 1934, and Wolfe was forthwith relieved of his duties at Highland Park Cemetery. Long prior to the commencement of this action the said R.E. Wolfe had been fully compensated for his services between January 3 and May 22, 1934, being the same period for which plaintiff claims in this action. If the plaintiff is entitled to recover, the amount he would have earned had he been employed as Supervisor between January 3 and May 22, 1934, is $633.40 with no deductions.
"Rule VIII, Section 2 (a) and (b), of the Rules of the Civil Service Commission provided during all times here in question, as follows:
"(a) 'Whenever it becomes necessary, in the interests of the public service to reduce the working force in any division of the classified service, the appointing officer may, upon giving written notice thereof to the Commission, lay off the incumbent of any position in such service; provided, however that where there are two or more persons employed in any division performing like or similar duties, the one last appointed shall be the first laid off unless otherwise approved by the Commission. The name of any person so laid off shall be placed by the Commission at the head of the current eligible list for the position held by him at the time of his lay-off, in the order thereon to which he is entitled by his seniority in the service at the time of his lay-off; the person with the greatest seniority being first, etc. City employees so laid off shall be entitled to re-employment from such list only during its life. County and Board of Education employees shall be entitled to re-employment for a period of not to exceed one year from the date of their lay-off, G. C. 486-16. The names of city employees so laid off shall also be placed by the Commission upon a lay-off list as hereinafter provided.'
"(b) 'A "Lay-off List" shall be established by the Commission when necessary for all positions in the classified civil service. If the appointing officer shall at any time determine to fill a position that has been temporarily made vacant by lay-off, such position shall be filled by the appointment thereto from the lay-off list of the person who last held such position and was temporarily laid off therefrom. A person whose name has been placed on such lay-off list shall be eligible for re-employment for a period of two years from date of lay-off.' "
In the Municipal Court, judgment was rendered for the defendant, which judgment was reversed by the Court of Appeals, and final judgment rendered for the plaintiff in the sum of $633.40. Thereupon the record was ordered certified to this court for review.
Mr. William C. Dixon, for appellee.
Mr. Alfred Clum, director of law, Mr. Henry S. Brainard and Mr. Charles W. White, for appellant.
It is conceded that there was no violation of civil service rules in discontinuing the employment and service of the plaintiff, but that, on the contrary, his "lay-off" was in complete accord with those rules. His claim for recovery herein is based entirely upon the fact that another, subsequently employed at an hourly wage, was assigned and performed the same duties which had devolved upon plaintiff prior to his "lay-off," and such claim covers the period of the service performed by such other employee. It is not disclosed by the record how or by whom those duties were performed between the time of plaintiff's "lay-off" (November 18, 1933) and the date of Wolfe's employment (January 3, 1934). The plaintiff's claim, therefore, is not based upon illegal discharge from service, but entirely upon failure to promptly restore him to duty when such service was required.
The question of the plaintiff's right to restoration to the position in question was submitted to the Court of Appeals of Cuyahoga county in a mandamus action instituted therein May 25, 1934, in which he sought restoration to his position and, upon issue made, the court denied the writ and dismissed the plaintiff's petition. Hence, it was conclusively determined in that case that plaintiff was not entitled to be restored to the position. No authority, court decision or text has gone so far as to hold that where an employee was legally discharged or laid off he could recover compensation for a period during which he performed no service. None has gone so far as to hold that there may be a recovery for failure to re-employ or to restore to employment one who has been legally discharged or laid off. The decision in City of Cleveland v. Luttner, 92 Ohio St. 493, 111 N.E. 280, Ann. Cas. 1917 D., 1134, was based upon a finding that the plaintiffs had been illegally discharged. We have no inclination to further extend the doctrine there announced.
The judgment of the Court of Appeals is reversed and that of the Municipal Court of Cleveland affirmed.
WEYGANDT, C.J., MATTHIAS, DAY and WILLIAMS, JJ., concur.
JONES, J., concurs in the judgment on authority of City of Steubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep., 417.