State ex rel. Waldman v. Burke

• Decision Date: 09 November 1949
• Docket Number: 31870.
• Citation: 152 Ohio St. 213,88 N.E.2d 578
• Parties: STATE ex rel. WALDMAN v. BURKE, Mayor, et al.
• Court: Ohio Supreme Court

88 N.E.2d 578

152 Ohio St. 213

STATE ex rel. WALDMAN v. BURKE, Mayor, et al.

No. 31870.

Supreme Court of Ohio

November 9, 1949

This case is in this court on appeal from a judgment of the Court of Appeals for Cuyahoga county in an action in mandamus originating in that court.

The parties will be designated herein as they appeared in that court.

The relator sought restoration to the position of smoke inspector in the classified service of the city of Cleveland from which position he claimed to have been improperly and illegally removed. Issue was made by an amended petition, answer and reply.

The Court of Appeals upon consideration of the evidence adduced before a master commissioner, appointed by the court, found that 'the relator is not entitled to a peremptory writ for want of a clear right thereto and for want of any duty enjoined by law upon the respondents, or any of them, to do the thing sought to be coerced.'

Upon application the court's finding of facts and conclusions of law were separately stated.

Webber & Webber, Elyria, for appellant.

Lee C. Howley, Director of Law, and Charles W. White, Cleveland for appellees.

PER CURIAM.

Our only question is whether the conclusion of law announced was warranted by the facts disclosed. From the facts found the Court of Appeals concluded that the relator was not discharged from his position but rather that he removed himself therefrom by conduct which constituted a constructive resignation.

The Court of Appeals specifically found as follows:

'Relator was a regularly appointed smoke inspector in the classified service of the city of Cleveland. On August 1, 1946, he was granted a leave for six months on account of illness. Prior to the expiration of such leave, to wit, on January 23, 1947 he made a written request of the commissioner of buildings and smoke for a sixmonth extension of his leave. The request was accompanied by a signed statement from his physician recommending his 'further rest.' In a written communication dated January 27, 1947, the commissioner denied relator's request for an extension of his leave and admonished him that if he should not appear for duty on February 1, 1947, when his original leave should expire, his failure would then be taken to be 'as a termination' of his services with the city. Relator failed to report for duty at the expiration of his leave. When he had not reported by February 4, 1947, the commissioner advised the civil service commission in writing of the circumstances and that he considered relator's failure to report as a 'resignation' from the service.

The civil service commission, as of February 17, 1947, advised relator in writing that it had been informed of his failure to return to work at the expiration of his leave and that his failure in that regard was construed as a resignation whereby his name was 'removed from the roster.'

'Within a year thereafter and as permitted by Section 128k of the Charter of Cleveland and Rule VIII, Section 4, of the rules of the Civil Service Commission, relator made written request of the commission to be...