State ex rel. Wilcox v. Woldman

• Decision Date: 26 March 1952
• Docket Number: No. 32691,32691
• Parties: , 47 O.O. 164 STATE ex rel. WILCOX v. WOLDMAN.
• Court: Ohio Supreme Court

Page 264

157 Ohio St. 264

105 N.E.2d 44, 47 O.O. 164

STATE ex rel. WILCOX v. WOLDMAN.

No. 32691.

Supreme Court of Ohio.

March 26, 1952.

Syllabus by the Court.

1. A public employee, even though he holds his position under civil service, who is wrongfully excluded from his position and sues to recover compensation for the period of exclusion, is subject to have his claim reduced by the amount he earned or in the exercise of due diligence could have earned in appropriate employment during the period of exclusion.

2. A state employee in the classified civil service who is removed from his position by the authority who appointed him and on appeal to the state Civil Service Commission is reinstated to his position as of a date certain may not maintain an action in mandamus against such appointing authority to require him to prepare and issue a pay roll report covering back salary, where, on the record on which the cause is submitted for decision, the amount of compensation to which such reinstated employee may be justly entitled is doubtful.

This is an action in mandamus brought originally in this court by Mabel Wilcox against Albert A. Woldman, Director of the Department of Industrial Relations of the state of Ohio. In her petition relatrix asks a writ against the respondent requiring him in his official capacity 'to prepare and issue a pay roll report to the finance department of the state of Ohio for the relatrix's benefit so that she may receive her pay or salary from the 15th day of July 1950 to the 15th day of May 1951 in pursuance to and in compliance with the order of the Civil Service Commission of the state of Ohio.'

A demurrer to the petition was overruled and the cause is now submitted for disposition upon the petition, the answer and both relator's and respondent's motions for judgment on the pleadings.

An examination of the pleadings discloses that relatrix held a classified civil service position with the state of Ohio as an investigator of women and minors in the Department of Industrial Relations; that she was removed from such position by order of the respondent; that she duly perfected an appeal to the State Civil Service Commission; and that on April 27, 1951, after hearing, such commission entered the following order:

'Upon careful consideration of the evidence adduced at the hearing of the appeal of Mrs. Mabel Wilcox from the order of the Director of the Department of Industrial Relations removing her from the position of investigator, grade IV, rate D, division of women and minors, the state Civil Service Commission modified the order of removal to a suspension without pay from the effective date of removal, January 15, 1950, to July 15, 1950, and at the expiration of such suspension it was directed that she be reinstated to her former position and salary with full rights and benefits thereof.'

Under such order, relatrix was reinstated to her former position on May 15, 1951, but received no pay from July 15, 1950, to May 15, 1951. The respondent admits 'that he has refused to prepare a pay roll report for the relatrix for the period from the 15th day of July 1950 until the 15th day of May 1951.'

Contained in the answer and not challenged by motion or reply are the following statements:

'Respondent alleges that the period for which relator claims the right to receive salary, namely, from July 15, 1950, until May 15, 1951, was a period of high employment in the city of Akron, Ohio, where relator resided during said period.

'Respondent further alleges that during said period of time from July 15, 1950, until May 15, 1951, relator, although able to secure other employment, failed to seek any employment whatsoever during such period of time; that by so failing to seek employment relator made no attempt to mitigate damages; that relator's claim for back salary is uncertain and indefinite and thereby unliquidated; and that by reason of her failure to attempt to mitigate damages relator does not have a valid claim against the state of Ohio for back salary for the period from July 15, 1950, until May 15, 1951.'

Nelson Hovey, Akron, for relatrix.

C. William O'Neill, Atty. Gen., and Louis E. Evans, Columbus, for respondent.

ZIMMERMAN, Judge.

This court is presented with the question of whether in this original action in mandamus relatrix, on the pleadings, should be awarded a writ directing the respondent to prepare and issue a pay roll report to the Department of Finance of the state of Ohio for relatrix's benefit, to the end that she may obtain her salary as a state civil service employee from July 15, 1950, the date on which she was reinstated to her former position by order of the Civil Service Commission, to May 15, 1951, the date on which she was restored to her position by respondent.

There can be no doubt as to the authority of the state Civil Service Commission to modify the order removing relatrix from her position. Under Section 486-17a, General Code, employees in the classified civil service of the state, who are removed from their positions by the authority which appointed them, have a right of appeal to the Civil Service Commission of Ohio, which commission, after hearing, 'may affirm, disaffirm or modify the decision of the appointing authority, and the commission's decision shall be final' as concerns an employee occupying the status of relatrix herein.

However, the state Civil Service Commission, being an administrative board created by statute and exercising only quasi-judicial powers, was restricted on the appeal of relatrix to an affirmance, disaffirmance or modification of the action of respondent in removing her from her position.

Although courts in other jurisdictions have taken a different view, this court has consistently held that the extraordinary writ of mandamus is not available to a public employee as a means, directly or indirectly, to recover pay or salary during the time he was wrongfully excluded from his position. Williams, Dir. v. State ex rel. Gribben, 127 Ohio St. 398, 188 N.E. 654; State ex rel. White v. City of Cleveland, 132 Ohio St. 111, 5 N.E.2d 331; State ex rel. Curtis v. DeCorps, Dir., 134 Ohio St. 295, 16 N.E.2d 459; State ex rel. Conway v. Taylor, Dir., 136 Ohio St. 174, 24 N.E.2d 591; State ex rel. Greenlun v. Beightler, Dir., 64 Ohio App. 295, 28 N.E.2d 935, affirmed 137 Ohio St. 377, 30 N.E.2d 554; State ex rel. Ford v. City of Toledo, 137 Ohio St. 385, 30 N.E.2d 553.

In the Williams case cited first above, it is expressly stated in the next to the last paragraph of the per curiam opinion:

'Mandamus will not lie to enforce the payment of a claim unliquidated and indefinite in amount. Whatever view may be entertained by this court with reference to the right of the relator to recover in an action at law compensation or salary, or any portion thereof, for the period of exclusion from office, upon a reexamination of the doctrine announced in the case of the City of Cleveland v. Luttner, 92 Ohio St. 493, 111 N.E. 280, Ann.Cas.1917D, 1134, we now hold that such question can be considered only in an action at law.' [127 Ohio St. 398, 188 N.E. 656]

Relatrix, according to the allegations of her petition and the admissions of the answer, was removed from her position in the classified civil service on January 15, 1950, and was restored thereto as of May 15, 1951, pursuant to the order of the Civil Service Commission. Consequently, she was actually out of her position for a period of one year and four months.

Conceding, for the purposes of discussion, that, by reason of the order of the state Civil Service Commission in her favor and because she has no adequate remedy at law, relatrix might have recourse to the remedy of mandamus as a means leading to the recovery of back salary, respondent in his answer asserts the affirmative defense of mitigation of damages. That part of the answer dealing therewith has hereinbefore been quoted in the statement of facts. Relatrix has not seen fit to file a motion or a reply thereto and these uncontroverted allegations of the answer tend at least to make doubtful the amount which should be included in any pay roll report to which relatrix might be entitled.

The subject of mitigation of damages frequently arises in those cases where an employee performing services under a contract of hire is wrongfully discharged and sues his employer for damages for breach of the contract. In such an instance, the measure of recovery is the amount of compensation the employee would have received had he been permitted to complete the contract of hire less...