One case suggests that persons thrown out of their positions by pur-
ported abolition may not recover their salaries for a period longer than
until the end of the budget year, but the real reason is not made clear. 70

In the abolition of positions there may be a rule that persons shall be
laid off in the inverse order of their appointment or employment, but the
statute governs, and any exceptions it makes to this rule will apply. 80

The provision is not uncommon that when positions are abolished
those thereby thrown out of employment shall be placed upon a special
list from which they are to be appointed to vacancies for which they are
qualified. They may also be entitled to transfers to vacant positions of a
similar nature in the same or in other departments of the service. The
preference in such transfers, or in the ranking on any such special list,
may be given to ex-soldiers and sailors by veterans' preference laws.
Sometimes this situation gives rise to a race between the veteran (or any
other person) whose position has been abolished and an administrative
superior who is apparently glad to be rid of him, the veteran finding that
the position to which he would be eligible to transfer has been abolished.
If, however, the veteran is entitled to the transfer, and the position is in
existence at the time that the first position is abolished, he is entitled to
mandamus to compel his appointment to the other position. That the
second position was abolished before he could actually enter upon it, and
validly abolished, does not prevent his being appointed in order to receive
the salary for the time that he was kept out of the position. But he cannot
have the position re-created by judicial decree for any other purpose than
obtaining compensation until the date of its valid abolition. 81 No vacancy
need be created in order to make a position to which the petitioner can be
transferred, and this is true even of veterans as against nonveterans. 82
The person who claims that he should be transferred to a position in some
other department must allege in mandamus proceedings that there is a
position in the other department, that it is vacant, and that he is qualified
to fill it and entitled to have it. 83 Mandamus is the proper remedy for fail-
ure to appoint from the special list to fill a vacancy for which the list is
suitable. 84

The preference given to a person on the special list cannot be defeated

ing the position after its abolition, because if it is in effect the
same position, the removed person is entitled to it. 85 In some instances
layoff rather than abolition of position is really involved; if so, a veteran
may have greater rights than in the abolition of an office. 86 If a veteran
has transfer rights, he must claim them in time; he may not let the matter
go for a year and then suddenly assert his right to transfer. 87 Similarly, a
two and one-half year delay in the assertion of a claim, when unexplained,
constitutes laches. 88

It may happen, of course, that a person whose position has been abol-
ished, and whose name has been placed on a special list from which
names are to be drawn when filling vacancies in similar positions, may
not be appointed to such a vacant position. The appointing officer may
decide to leave the position unfilled. As in the case of an original appoint-
ment, this is a decision which he may make for himself and of which the
applicant on the special list may not complain successfully. 89

Mandamus is the remedy for reinstatement in most cases where the
validity of an abolition of office or position is questioned. 90 Ordinarily it
is preferable to seek an alternative rather than a peremptory writ of man-
damus in cases involving reinstatement to positions which it is claimed
have been abolished. 91 It likewise is important that the application
specify the exact form of relief asked, for if this is not done the court
may find it impossible to take jurisdiction. 92

The particular remedies available in any of the various forms of re-
moval or separation from service vary from state to state and must be
studied from both the common law and the statutory points of view. For
example, one case holds that certiorari is not the correct method for test-
ing the validity of an order abolishing a position. It was suggested in the
opinion that the proper remedy would be quo warranto to oust the person
who supposedly is performing the duties of petitioner's position. 93 This
seems doubtful doctrine, because while quo warranto lies to oust a person
from office, technically it does not reinstate another one in that office. Nor
does it lie except on the theory that the position is there; therefore, the
existence of the position is the question to be determined. As far as cer-
tiorari is concerned, normally it should be regarded as inapplicable, since

an order abolishing an office is a legislative or administrative order and
not a judicial order. 94

III. LAYOFF

The lines that distinguish layoff from removal, abolition of position,
and suspension are not very clear. Nevertheless, there is a difference be-
tween removing an employee from a position which continues in exist-
ence after the layoff and laying him off because of lack of work or lack of
funds. In layoff the work of the position may have been completed so that
the position is abolished; or it may be that the position cannot be con-
tinued because of lack of funds, even though the work is not yet accom-
plished. There is no necessary implication of incompetency in a layoff,
while in a removal there normally is. Both a reduction in the number of
positions and the abolition of positions may bring about a separation from
service. However, in the one case there may be an opportunity later to
return to the position; in the other there is no such opportunity because
of the elimination of the position itself. The civil service laws occasionally
distinguish between some of these different types of separation from
service, but they seldom differentiate clearly between all of them. It is
quite common, however, to find layoffs made from a class of holders of
the same type of position, while abolition more often relates to a particu-
lar position than to a class of positions.

The removal provisions of a civil service law do not apply to a person
who has been laid off because of the completion of the work that he was
appointed to do. 95 For example, the notice and hearing provisions that
apply in case of discharge do not govern in a layoff situation, 96 unless the
statute expressly says that they shall apply to both.

The removal provisions of a civil service law do not apply to abolition
of positions made in good faith and for purposes of economy or for some
other legally sufficient reason. That the abolition may be unwise does not
convert it into a removal. 97 The fact that the work was carried on is not
in and of itself fatal to the validity of the abolition of a position or of the
reduction in force. 98 Provisions as to causes and procedure in discharge
are usually inapplicable to a "good faith" reduction made for economy. 99

The power to reorganize a department carries with it the power to
lay off some members and retain others. "The authority of city officials


to reduce the number of employees even though it affects those appointed
under civil service, when such action becomes necessary because of the
condition of the finances of the city, cannot be questioned." 10 But, of
course, a reorganization that is general and undertaken by action of the
legislative body is less likely to invite judicial scrutiny than one that is
partial and results from administrative action.

A layoff may take the form of a suspension; if it does, the question
arises whether the statutory rules governing suspensions apply. A Mas-
sachusetts statute provided that notice and hearing must be given in
cases of suspension if the worker requested them. An employee was sus-
pended three days each week. It was held that inasmuch as there was
work to do which others apparently performed and which petitioner
claimed that he should have been permitted to carry on, due notice should
have been given in accordance with the statute, and that oral notice on
the afternoon of the day preceding suspension was insufficient. The court
suggested that it might be possible to use a form of notice in which the
regularly recurring layoffs could be covered, if they were legal. 101

\JI)ivil service commissions are sometimes given the power to review
orders of removal made by department heads, and in some jurisdictions
this practice is also followed in laypffs. However, a contrary practice is
often followed, and the law may recite as did a California city charter:
"provided, that the order of any appointing board or officer suspending
any person because of lack of funds in such department shall be final, and
not be subject to review by said board of civil service commissioners."
Under this provision the court held that while the civil service commis-
sion could not review such an order, the court could do so in order to see
whether the lack of funds constituted the reason for the suspension or
whether other reasons lay back of itTj 02 It is not permissible under a pro-
vision of this kind to notify a permanent employee that "you will there-
after be terminated on October 9th, according to the rule . . . which
covers reduction of force for lack of work and lack of funds." The em-
ployee may be notified of suspension, but not of termination.

A city cannot defend against a suit for full salary brought by an
employee upon whom pressure had been exerted to take a "voluntary
cut" but who would not do so. The employee may be discharged or his
position may be abolished in good faith, but he cannot be "laid off his
salary," as it were, by this method. 103 But, of course, a voluntary waiver
of salary in order to avoid layoff is valid.
Under the Colorado constitutional provision requiring written charges
in cases of removal or discipline, it is permissible for the legislature to
authorize the governor to lay off employees for fixed periods for reasons
of economy. 105

The power to "create" offices and positions and to "employ" persons
carries with it the power to reduce the force for purposes of economy. 106

Under a statute which provides that a layoff shall be the equivalent of
a suspension, it is nevertheless permissible to lay off men when there is
an honest delay in work, despite the fact that the work is to be done later
and the money is available for it. Some laws provide, as in a New York
charter, that "the person . . . legally holding the office . . . shall be
deemed suspended without pay ..." whenever a position is made un-
necessary. 107 Suspension may in fact be for lack of work and not for
disciplinary purposes; when this is the case, no action for salary lies for
the period during which the employee was out of work. 108

The statutes or charters must be scrutinized with care in cases of layoff,
because both the power to lay off and the procedure of layoff may be
prescribed in the statute. An Ohio law provided that "in all cases of
reduction, lay-off or suspension of an employee or subordinate, whether
appointed for a definite term or not, the appointing authority shall fur-
nish such employee or subordinate with a copy of the order of lay off . . .
and his reasons for the same, and give such employee or subordinate a
reasonable time in which to make and file an explanation." The court
held that this statute did not expressly give the power to lay off for lack
of work or lack of funds, and that therefore the power did not exist; the
procedure specified not having been followed in the layoff in question,
that layoff was to be regarded as an illegal action. 109

The presence of bad faith in layoffs has been said to be a question of
fact, not of law, so that under a statute which provided that the decisions
of the municipal court were to be final, the appellate court said that they
were final upon questions of bad faith, these being questions of fact. 110
This gives the lower courts a rather important role in such cases. Lack of
funds and lack of work constitute good grounds for layoffs. 111 The courts

will not review the propriety, but rather the legality, of the action in
reducing numbers. 112

Honesty of the administrative action in reducing numbers is the more
difficult to demonstrate when others are immediately chosen to fill the
places of those laid off. 113 However, when an appointing officer is ordered
to reduce his force by one hundred men and there are one hundred and
seventy-nine vacancies in the force to be filled, it has been held proper
for him to appoint the whole number and later lay off one hundred. 114
It is for the court to inquire whether there is arbitrary, unwarranted, and
illegal action; 115 but when the action is within the strict terms of the
appointing and removal power, it will not interfere. A mere allegation
that dismissal was made from improper motives, under the pretext of
lack of funds, is not sufficient. The allegation must be supported by facts
that show this. 110

There is no evidence of bad faith inherent in the laying off of men in
larger numbers than the reduced appropriations require, and the presence
of a budget balance at the close of the fiscal period is not fatal. 117 The
color of good faith is lent to layoffs which are made under a provision
forbidding the employing officer to contract for services in excess of the
sum appropriated. 318

When a city council has the power to reduce numbers and a mayor
has the power to appoint special police, the increased cost of special po-
licemen appointed to do the work that was formerly carried on by men
laid off the force does not show bad faith in reducing the force. 119 In
general layoff cannot be justified if the work is carried on in such a way
as to indicate that the aim was rather to be rid of the person than to
reduce the force. 120

Adding men as others are laid off is likely to cause the court to inquire
into the real reasons for the layoffs. 121 That the places are filled by de-
motion does not save the situation. When regulated by law, layoffs must
be in accordance with the provisions contained in the statute. 122 For
example, if written statements of layoff are required, it is necessary that
they be given.

A provision for hearing in removal does not carry with it the right to
a hearing in layoff. 123 But a civil service commission which passes upon
removals and layoffs may be fairly certain that in cases of doubt the court
will support its order of reinstatement in a layoff which the commission
thought not bona fide. 124

Veterans' preference laws sometimes apply to layoffs. When they do,
it is not uncommon to find that the veteran is given some type of priority
in his right to be retained in the service. But a provision in a veterans'
preference law forbidding removal through reduction does not mean that
reduction of the force for purposes of efficiency and economy is pro-
hibited. 125 Here, as in other cases, veterans' preference is narrowly con-
strued, on the general principle of law that special privileges are to be
strictly interpreted. This results in the refusal of the courts to give veter-
ans preference in layoff unless the statute expressly applies it to them; 126
to this rule, however, there are some dissents.

Veterans may be laid off for lack of funds even though the statute
specifically provides that "it shall not be lawful ... to abolish any posi-
tion or office held by any sailor, soldier, or marine, ... or to change the
title of any such office or position, or to reduce the emoluments thereof
for the purpose of terminating the service of any such employee." 127
A New York statute provided that "no person holding a position by ap-
pointment or employment . . . who is an honorably discharged soldier,
. . . shall be removed from such position or employment, except for in-
competency or misconduct shown after a hearing upon due notice." This
was said to mean that when it became necessary to lay off some em-
ployees, a veteran could not be removed merely by showing that he was
the least efficient; he must be shown incompetent. 128 When the statute
recites, as a federal statute did, that veterans shall be retained if equally
competent, the court will allow the administrative officer wide discretion
in determining the quality of fitness. 129 And if the protection is by execu-
tive order, the veteran may find that the action laying him off is likewise
executive, so that he receives no benefit of the apparent protection. 180 Nor
will the comptroller general be able to aid him in his claim for salary, for

that office will treat his claim as in the nature of a claim for damages, 131
and on such a claim that officer will not pass.

One of the most troublesome questions in the law governing reduction
in force is the order in which the men are to be laid off. Various bases
may be used. If efficiency alone were the criterion, those should be laid
off first who have proved to be least competent in the performance of the
duties that they have been rightfully called upon to perform. But effi-
ciency is not the only consideration in a large personnel system; and this
being admitted, the door is open for competing claims of various types.
The older employees will insist that their claims to retention do not
exclude the recognition of competency, but indeed are based upon it, be-
cause seniority is one of the best tests of familiarity with the duties to be
performed, and repetition and experience are among the most important
factors in the acquisition of skill. The veterans will insist that they should
be retained because their claims are based upon factors that affect loyalty
to the service, and that while loyalty alone is not sufficient, it is likely to
be combined with competency in the case of persons who are already in
the service and have had the benefit of experience. The administrator
may feel not only that efficiency is important, but that factors of per-
sonality and cooperativeness are of the highest importance; and may well
feel that the "trouble-maker" should be laid off before anyone else. The
layoff situation is full of the frictions that always inhere in selecting
people for separation from gainful employment, and particularly from
gainful employment to which they feel they have both a political and a
moral right. Statutes, of course, govern the selection of those who are to
be laid off whenever they expressly cover the subject, but some statutes
authorize layoffs without specifying any rule to be followed in the order
of layoff. When no provision is made as to the basis for layoff, efficiency
may be used as the basis. 132

One of the more common provisions on layoffs is that the order of
appointment shall be followed, the persons last appointed being the first
to be laid off. One law provided that "the good of the public service shall
at all times be considered and the board shall have power to waive this
provision. Where individual rights conflict with public rights it is under-
stood that the former must give way." It was held that when layoffs were
made under this provision "for the good of the service," it was to be sup-
posed that sound discretion had been exercised for the public good, and
the court would not interfere. 133

The administrator may recognize seniority in retention of civil serv-
ants even under the rule that layoffs are to be made in accordance with
efficiency. "While the civil service rules provide that the officer in laying
off employees must lay off those whom he deems least efficient, it is not
a matter of injustice, requiring correction by the courts, if, in making the
selection among those equally efficient, he retain those longest in the
particular service." 134 A statutory rule providing layoff in the inverse
order of appointment is not contrary to a constitutional provision giving
veterans preference in appointment. 135 Some courts take the position that,
unless expressly negatived by statute, seniority may be considered in addi-
tion to a good record in making layoffs. 136 On the other hand, if the
statute does not require that the seniority rule be followed, the court will
not impose it upon the administrator. 137 Sometimes the history of legis-
lation is such that a legislative intent to abolish a prior requirement of the
seniority rule is fairly clear. "The commissioner, notwithstanding the
provisions of any other general or special law, saving . . . provisions of
section 22 of the civil service law, may transfer officers or employees from
their positions to other positions in the department, or abolish or consoli-
date such positions and may remove any officer or employee in the de-
partment" was taken to imply that a former statute prescribing the in-
verse order rule had been repealed. 138

The rule that layoffs shall be in the inverse order of appointment has
sometimes caused difficulty when several people have been appointed at
the same time to positions in the same department, for example, a fire
department. An appointing officer signs ten appointments or certifies ten
employments at the same time, without respect to any particular order.
Three years go by and he is compelled to lay off three men, including
some of the ten so appointed. The question is : Which one did he appoint
last? The law presumes in such cases that the person with the highest
standing on the eligible list from which certification was made was ap-
pointed first, and so on down through the list. 139

The inverse order rule usually applies to classes or grades, so that it
becomes important to determine what constitutes a grade for this pur-
pose. A statute provided for a reduction in the force of various bureaus
when work or funds ran out, and provided that the order of layoff should
be in the inverse order of certification. The bureau in question had one
superintendent and twenty subordinates, and the superintendent was laid

off on the ground that he was the only one in his class. The court held
that the entire bureau consisted of one service, and that the layoffs must
be made accordingly. 140 When abolition of position is really a reduction
in force within a class, and the inverse order rule applies, the whole class,
as defined by the rules of classification, is to be considered, rather than the
one holder of that particular position; and he may have seniority rights
within the class. 141 Some employees are really unclassified by depart-
ments, being city wide employees; their class includes all those doing the
kind of work that is involved. 142

When seniority is "in the service" and the inverse order rule is to be
used in the labor divisions, that rule does not apply to all branches of
labor as a class, but applies within each division. Thus it might happen
that mechanics and stone masons would not be treated as within one
class. 143 Some courts say that duties rather than salary are to be considered
in ' , :'.'. , the class to which seniority rights shall apply in cases of
layoff. 144 The similarity of duties may not be determinative when taken
alone, however, and in any case the classification and rating by the com-
mission, if honestly made in the absence of fraud, will be likely to con-
trol. 145 If chauffeurs and teamsters are placed in the same class, the courts
will look to see whether in a particular case the apparent classes are only
convenient administrative categories; if they are, the courts will permit
seniority rights to range throughout the general class of which there may
be several subdivisions. 146 Some courts, however, follow the stricter inter-
pretation of class and grade, and permit seniority to operate only within
the formal salary divisions, even though the duties may be relatively
similar. 147

In applying the inverse order rule of layoff, the date of the original
appointment means just that, and not a period of temporary appointment
served by the employee before being appointed to the permanent posi-
tion. 148 This is true of provisional appointment as well. 149 A distinction
is to be drawn here between temporary appointment and probationary
appointment: if probationary appointment ripens into permanent ap-
pointment, the date of original appointment is that of the initial appoint-
ment to the position at the beginning of the probationary period. 150
If there has been a separation from service without fault, followed by a
reinstatement to the former position within the time permitted by the
rules, the time of original appointment, so often mentioned in the laws
on the order of layoffs, is the date of the first appointment rather than the
date of the reinstatement. 151 But if the period of separation exceeds the
rule, then the new appointment is the original one. 152 Of course, the ap-
pointment of one who has been removed for cause is an appointment not
a reinstatement. 153

Seniority is sometimes in a particularly described service. When that is
the case in the "city service," for example, the transit commission service
is included, although for some purposes the transit commission may be a
state agency. The usual tests that are applied in the law of officers and the
law of state-municipal relations are applicable in cases of this type. 154

It has been held that a transferee is entitled to seniority from the date
that he entered the service when the transfer is from a higher to a lower
position, the appointment and transfer having occurred on the same day
and his name having been on the list from which appointments were
made to the position to which he was transferred. 155 But seniority rights
cannot extend to two positions. 156 Eligibility rights and seniority rights
are not synonymous.

Continuous service, for purposes of seniority, means service in the
same kind of work, not necessarily in the last particular position the em-
ployee has held. 157 If the seniority is in a classified position, continuity
may be broken by service in an exempt position. 158 When a person who
has been out of the classified service for several years re-enters it, the date
of his original appointment, for purposes of seniority, is the date of re-
entry. 159 It has been held that resignation from a classified position in the
civil service of the city to accept a political position in that city takes an
employee out of the city service, because that phrase means the city civil
service.
A few laws provide that in reduction of the force those having the

longest service may "displace" other employees whenever the necessity
for suspension arises. In one case a person whose position had been abol-
ished was assigned to a position in a group in which two other incum-
bents had shorter periods of service than he. Instead of one of the
incumbents being displaced, the number of employees was increased by
one. After a day or two of service in the new position, the recent ap-
pointee was suspended. The court held that he was entitled to seniority,
the whole transaction having obviously been for the purpose of evading
the law. 161

Statutes granting wide discretion to the superior in layoffs (e. g., the
Economy Act of 1933 as interpreted by the courts) sometimes negative in
effect the rule of efficiency. In applying the married woman rule under
that law, the superior could lay off a wife even though she had a higher
efficiency rating than single persons retained. 162

The use of efficiency or performance ratings in determining the rela-
tive status of an employee in cases of promotion and layoff may give rise
to some difficult situations. One method sometimes used in laying a basis
for the discharge of an employee is gradually to reduce his efficiency
rating until it appears that he is incompetent to retain his position. This
may be done either by degrees or suddenly. If no protest is made and if
there is no procedure for making complaints upon ratings and no appel-
late board of any kind to hear such complaints, the employee may be very
badly treated. It has been held in questions of layoff that if there is noth-
ing to show that the ratings were clearly arbitrary, the court will not
interefere to aid the employee. 163

If an employee is properly laid off for lack of funds, he should be put
back to work when funds later become available, even after the lapse of a
few months. 164 It is quite common to provide that persons who have been
laid off because of lack of work or lack of funds should be placed upon a
special list, or in a preferred position upon the eligible lists, with a view
to giving them preference in certification for appointment to vacancies
in similar kinds of positions in the service. 165 Some laws require a request
to be placed upon a re-employment list. 166 Where a definite term is in-
volved, the holder of the position cannot obtain benefit of the special
preference attendant upon layoff if the term expires at the time of the
layoff. A letter to an employee saying that he had been removed is not
necessarily controlling if his name is placed upon the list and he is sub-
sequently treated as if he had been laid off. 168 A provision that persons
laid off should have preferred rights to positions open in the same class
does not extend to persons in confidential positions. 169

The employee cannot obtain mandamus to reinstate unless he first
establishes his right to the place. 170 The burden of showing that a position
exists rests on the claimant. 171 If he claims that he was laid off a position
in the classified service to which he had been certified, he must show that
he was certified. 172 If the employee was wrongfully laid off, he is entitled
to reinstatement, 173 and to back salary if no one else has been appointed to
his place in the meantime. No presumption exists that juniors illegally
retained fill the positions of seniors wrongfully laid off. 174 Sometimes the
courts are influenced by the presence of mistaken good faith in layoff
cases, 175 but good faith will not save a clearly illegal layoff.