Chapter XI
JUDICIAL REVIEW OF SUSPENSION AND REMOVAL

Removals are usually made by administrative superiors, but under
some civil service laws they may be made by the civil service commission
itself. The courts normally come into the removal process at the stage of
appeal, either immediately following administrative removal or after
administrative removal has been acted on by the civil service commis-
sion. The courts seem to extend to the field of civil service law the gen-
eral rule of administrative law that compels a complainant to exhaust his
administrative remedies before he comes into court. This rule is sub-
ject to some exceptions, but is of general application. 1

The subject of judicial review of removal is governed partly by statute
and partly by constitution, but in any case is inextricably bound up with
the common law system of remedies as it has been adapted to American
use and as these remedies have been modified by statute. It is not possible
here to deal in detail with the intricacies of remedial law in each Ameri-
can jurisdiction, although the applicable law in any case is the law of
some specific jurisdiction, such as a state or the national government.
Only the more general principles that seem fairly common to all Ameri-
can jurisdictions can be noted. But it must be remembered that the reme-
dies which are most commonly used in this field, as in the whole field
of the law of officers, fall in the extraordinary class, and that owing to
their technicalities, this branch of the law is both technical and local. 2
It contains less of the unifying elements than is true of the common law
generally.

When an officer or employee is threatened with discharge he may
have a choice of one or more of several possible remedies. He may act
to prevent the removal, may act to have it set aside if the order of re-
moval is given, may ask to be reinstated in his position, and/or may
demand damages for loss of wages if he has been ousted.

I. INJUNCTION

The remedy of injunction is of little significance as a method of judi-
cial control of removals. While there are some unusual situations in the

general law of public officers in which a court will grant an injunction
against a removal, the general rule is that the writ is unavailable to try
title, and title may be involved in the ordinary removal case. "Unless the
title to office, and his consequent right to remain in the discharge of his
duties are absolute and apparent on the mere statement of the case, it
seems well settled that a preliminary injunction ought not to issue in such
a case." 8 The right to an office is not a property right, and therefore the
usual rule that injunction does not protect other than property rights,
unless some extraordinary element requires it, comes into play to prevent
the use of that remedy. The facts that other remedies are adequate an4
reasonably speedy, being extraordinary remedies for the most part, and
that multiplicity of suits is seldom involved, mean that injunction is not
used in the ordinary case of removal from a civil service position or office.
The same general rule is followed in the federal courts so far as the na-
tional service is concerned. 4

II. PROHIBITION

The writ of prohibition is likewise of little significance in removals
from the civil service. The writ is used by the appellate courts to control
the inferior courts, and the body to be controlled must be judicial in a
pretty strict sense. The usual administrative body or officer given the
power to remove or to participate in removals is not regarded as suffi-
ciently judicial to be subject to the writ of prohibition. 5

III. CERTIORARI

Certiorari is a common law writ of very considerable importance as
an instrument for controlling administrative exercise of the removal
power, because removal is often accompanied by a hearing. The signifi-
cance of the hearing, so far as review is concerned, may be said to be
that it gives to the proceeding a sufficiently judicial cast to subject it to
review by a court through the use of the writ of certiorari. Normally cer-
tiorari will not lie to review the action of an officer who has the power
to remove at pleasure because this means the power to remove without a
hearing. 6

Certiorari is a common law writ and may be used by the courts having
common law powers, whether of not the statutes expressly mention it.
It is usable not only for controlling administrative action that is accom-

panied by a hearing, but also for reviewing the decision of a lower court
that has passed upon an administrative removal. 7

Statutes sometimes mention certiorari specifically as a remedy that
shall be available in removal cases, and sometimes the common law rules
governing its use and scope are modified by statutory provisions, al-
though this is not often true. 8 The writ at common law is a discretionary
writ, and one is not entitled to it as a matter of right. 9

The writ of certiorari lies to review the removal of a civil servant by a
civil service commission. 10 If the commission has the power to review by
hearing the action of a removing officer, then the writ should be directed
against the civil service commission rather than against the removing
officer. 11

The practice of certiorari demands that a record of the proceedings
be certified to the reviewing court, and from this it follows that a record
must be kept and be available. The petitioner himself must obtain the
record if no other statutory provision is made for getting it. 32 It may even
be necessary for him to have his own stenographer present to take down
the evidence. The commission record must show sufficient facts to enable
the court to review the action. It is not enough that the record merely
state "whereupon the commission heard the evidence offered, and having
considered all the evidence adduced herein, we find therefrom that said
F is guilty as charged in the within and foregoing charges." 13 In the
event that the record supplied by the commission is inadequate, the court
will quash the proceedings instead of penalizing the petitioner who seeks
to review the action of the commission. 14

When the power to remove may be exercised at pleasure or when
charges are merely required to be written, certiorari is not the proper
method of review. 15 Some courts grant certiorari where no formal hear-
ing is required, but where instead a filing of formal charges is necessary
and where the employee is given the right to file a formal explanation. 16
The tendency is to refuse certiorari to review the ordinary action of re-

moval when it includes only the giving of notice and an opportunity on
the part of the employee to give an explanation. 17

The requirement that the removing officer report the removal and the
cause therefor does not subject the action to review by certiorari, since
it is not sufficient to make the action j udicial. It is regarded by the courts
as the exercise of an administrative power. 18 A statute provided that "no
officer or employee in the classified civil service of any city . . . shall be
removed or discharged except for cause, upon written charges and after
an opportunity to be heard in his own defense. . . ." "In the course of an
investigation of charges each member of the commission, and of any
board so appointed by it, and any officer so appointed shall have the
power to administer oaths and shall have power to secure by its subpoena
both the attendance and testimony of witnesses, and the production of
books and papers relevant to such investigation . . ." This section was
held to require a sufficiently formal procedure to justify the issuance of
the writ of certiorari. 19

But some courts take the position that they must look into the sub-
stance, not merely the form, of the requirement of a hearing. If the hear-
ing that was both required and given was not for purposes of trial, but
merely for purposes of giving an opportunity for explanation, then the
writ should not be granted. 20 And, of course, the statute may extend the
use of the writ to actions which do not involve hearings. 21 Statutes some-
times provide for the use of the writ in cases involving jurisdiction of
the commission, and if such a statute is later amended to cover "all cases"
of veterans' preference, the court takes the amendment to mean that a
veteran is entitled to the writ even though the question to be reviewed
is not that of jurisdiction. 22

Certiorari, of course, does not reinstate an employee in the position
from which he has been removed. 23 In the usual course of events the
removing officer reinstates when his action has been reversed on certio-
rari, but technically only mandamus can compel reinstatement.

Jurisdiction to review by certiorari cannot be conferred on a court by
agreement of the parties. "Respondents waive appeal or writ of error"
will not save the case for certiorari if certiorari is not the proper remedy
to review the particular action.
The courts differ as to the extent to which certiorari can be used to
review the evidence as well as the formal record. The reasons for the
varying answers to this question are not only to be found in the statutory
modifications of the writ and in the different views as to the common
law scope of the writ, but are also to be found in the existence or non-
existence of other remedies, such as appeal and writ of error. In viewing
the whole remedial system, it will be found that the purpose to be served
by this writ in some jurisdictions is narrow; in others it must be more
broadly interpreted if justice is to be done.

The cases taken alone establish very little on principle, and the refusal
of one court to go into the evidence does not necessarily mean that it is
taking a position less friendly to the petitioner than another court which
is willing to review the evidence in another case.

In the first place certiorari calls for a record, so that the question of
jurisdiction is often raised on the basis of the record itself. Since no gen-
eral presumption exists, as has been noted repeatedly, in favor of the
jurisdiction of civil service commissions, jurisdiction must appear from
the record. On certiorari it is permissible to inquire sufficiently into the
evidence to see whether jurisdiction exists. Presumably this is always a
question of law, though a determination of some facts may be necessary
to settle the legal question. 25 Sometimes this view is expressed in slightly
different form, in the statement that the court will look into the evidence
to see whether any substantial grounds could reasonably be said to exist
for the commission to act upon. 26 An early intimation that certiorari
could be used only when property rights were involved has apparently
been long disregarded, so that the rules on review of removals have not
been colored by the existence or nonexistence of property rights. 27 Under
this view that certiorari should be restricted largely to the question of
commission jurisdiction, it follows that the court will not probe into the
details of the evidence. This naturally results in a tendency, so far as
policy is concerned, for the courts to leave undisturbed the commission
action on removal unless something arbitrary or clearly illegal appears
in, or is to be inferred from, the record. 28 Notice, whether of time or place
of hearing, is a jurisdictional fact. 29

In a state like New York, however, the scope of certiorari is broadened
considerably, for example, in the case of veterans, to permit a review of
the merits of the removal. 80 While many courts state their position some-
what more broadly than others and* say that they will look at the evi-
dence, the decisions themselves generally display a tendency to uphold
the civil service commissions unless very arbitrary action is obvious from
an examination of the evidence. The mere fact that the commission ad-
mitted some improper evidence is not sufficient to justify a reversal if
other proper and substantial evidence upon which the decision could be
based had also been admitted. 81 This is the attitude whether the commis-
sion upholds or reverses an action of removal by the administrative
superior. 82 A statutory recital that the commission action is to be final
does not cut off certiorari, but it does tend to restrict the court to seeing
whether the action was arbitrary. 88

On the whole, the tendency seems clearly to favor the court's exam-
ining not only the formal record but the evidence as well, but to restrict
the court in its reversals, so that civil service commission actions will not
be reversed upon anything less than either excess of jurisdiction or arbi-
trary action within jurisdiction. 34

The insufficiency of the allegations, if not raised at the hearing, cannot
be raised on certiorari to review the action which was taken as a result
of the hearing. 35

Certiorari, of course, does not bring with it an award for back pay any
more than it restores to office.

IV. APPEAL

The appeal would seem to be the simplest method of judicial review
of administrative action removing an employee from a position, but even
this simple statutory device is not without its technical difficulties. In the
first place, the fact that the appeal is from the commission to a specified
court, such as a trial court, does not mean that one of the appellate courts
may not review the trial court decision on certiorari. 87 The separation of
powers does not prevent granting the court power to "review" the re-
moval action, according to one opinion. 88 However, not all courts agree

with this position; some take the view that the court may not accept the
appeal because to do so would give it executive rather than judicial
power.

The statutory review has not been interpreted as giving the court any
general supervisory or reviewing power over the removal actions of civil
service commissions. 40 The statement is made in some of the opinions
that questions of law may be reviewed on appeal. 41 The Massachusetts
court has said that "review" does not grant a retrial, but means that the
court should uphold the commission unless the action was taken "with-
out proper cause." Whatever be the mode of its statement, in substance
this rule seems to be about the same as that which is applied in most
certiorari cases. 42 "It was entirely consistent for the judge of the munici-
pal court to feel that he would decide the case differently on its merits,
if it had been within his jurisdiction to do so, and yet to find that the
decision of the superintendent and board of trustees of the hospital did
not appear to have been made without proper cause," or in bad faith. 48

The attitude of the courts is illustrated nicely by the Ohio cases. One
case enunciates the rule of review as giving to the courts very broad
power to go over the whole evidence, and apparently even to receive ad-
ditional evidence, while other opinions interpret the power of review
much more narrowly. The difference in statement is probably much
greater than the difference in actual rule or decision. 44

In some states review of removals is not confined to those cases in
which request for review is made by the ousted party, the law providing
that citizens, apparently acting in a representative capacity on behalf of
the public, are permitted to request the review. 45

It is usual to provide in appeal sections that petitions must be filed
within a fixed period; and, of course, if the appeal is not filed in the time
specified, the order of removal becomes valid and final. 46 Lawyers should
note the decision which holds that the appeal must be perfected within
the period specified by statute and that it is not permissible for the coun-
sel to postpone or delay his work because other proceedings, such as a

criminal trial on some of the same counts, are pending. The rule is, that
to be safe, counsel must go ahead with the appeal and not await the out-
come of other proceedings. 47

Some courts, such as that of Massachusetts, draw a distinction be-
tween appeal and review to determine the scope of judicial re-examina-
tion of the evidence in the case. If the case comes by appeal, the court
may consider all the evidence as though it were acting on the case orig-
inally; whereas if it comes on review, the court merely looks to see
whether there is any substantial evidence to justify the findings. 48 This
but illustrates the observation made earlier, that the remedies in this
branch of the law are as technically complicated as in others.

The Michigan court has held that a statute providing for an "appeal"
from an administrative decision to remove should be interpreted to read
"appeal in the nature of certiorari." If it were not read in this manner,
the statute would be unconstitutional as compelling a court to accept juris-
diction in the case of a nonjudicial function. However, if the hearing is
reviewed as in certiorari, the court is given a discretionary power which
it may exercise in accordance with the general rules governing certio-
rari. 49

V. MANDAMUS

Mandamus to reinstate the ousted employee to the position from
which he claims to have been illegally separated is probably the most
commonly used remedy in civil service removal cases which reach the
courts. It has been said that mandamus is a remedy for a wrong done,
and that it does not lie to place a petitioner's name on a list which is to
be sent in later on. 50 But this is not to be taken to mean that a person's
position on the eligible list is in all cases without protection, even that
of mandamus. 51 Mandamus is a proper remedy to correct violations of
the rules governing layoffs. 52 It rather than quo warranto is the appro-
priate remedy, although in rare cases the latter can be used in its modi-
fied statutory forms. 68

In the national government mandamus is not granted as an original
writ in the federal courts, being confined to ancillary proceedings. But
in the District of Columbia the writ is issued. It does not lie to control
the president nor the exercise of discretion on the part of officers gen-
erally, and to the extent that removals are left to the discretion of an
officer, mandamus cannot control their exercise of it. 55

The writ should be directed to the officer or body having the power to
reinstate. The law in question must be examined with care to determine
whether that power rests with the civil service commission or with some
administrative officer. 56 The use of the peremptory and alternative writs
is governed by the same rules here as in mandamus generally. Usually,
other things being equal, it is safer from a procedural point of view to
make use of the alternative writ. 57

Mandamus is preferred by the courts in many removal cases because
of its speedy and effective character, 58 and of course it is a discretionary
writ. 59 If on all the facts the case seems dubious, the court may refuse
the writ. 60 Thus a court refused mandamus to a removed person who
had used another defense in earlier proceedings. 61

Mandamus is often said to be the proper writ to determine whether
the petitioner was ousted from his position or office illegally. 62 Statutes
sometimes affect the use of mandamus. If a statute says that an employee
may be reinstated within one year after separation without fault, that
means that mandamus to reinstate will not be issued to reinstate an em-
ployee who has been removed with fault. 63

Mandamus does not lie to reinstate a person who has been discharged
while on probation, because, not being in the permanent service, he might
again be removed, and no purpose would be served by compelling re-
instatement. 64 Nor will mandamus lie to reinstate one who has a chance
to be employed only whenever there is work available. 65

The scope of the writ of quo warranto may affect mandamus because


the former is the writ whereby to try title to office. But inasmuch as most
mandamus cases in civil service law refer to employments rather than
offices, and therefore do not encounter this rule, and inasmuch as the
courts sometimes permit title to be tried by mandamus under various cir-
cumstances, the problem is not so great as it might seem at first thought.
Quo warranto must be studied in each particular jurisdiction, however,
and care must be taken to determine whether the position is an office or
employment. 66 Mandamus is sometimes refused when another person
is holding the office by color of authority, on the ground that in that case
quo warranto is the proper remedy. 67

Mandamus, of course, is a common law writ and does not depend
upon specific mention in a statute for its existence and use in a common
law jurisdiction. 68 Some authority exists for interpreting statutes so as
not to deny the use of mandamus, even though by ordinary rules of in-
terpretation that might follow. 69 The courts are relatively lenient in per-
mitting correction of the pleadings so as to make the record one in which
mandamus may properly be requested. 70

The existence of good cause is not a sufficient defense against a peti-
tion for mandamus if the removal was not in accordance with the re-
quired procedures. 71

The duty that is to be enforced by mandamus must be a clear and pres-
ent duty, and for that reason it must appear that the conditions upon
which reinstatement can be predicated do exist. 72 This necessitates show-
ing that the position was in the protected class. 73

Demand upon the officer having the obligation to act is often said to
be requisite to any petition for mandamus, but there is a correlative
principle that one need not make a demand which obviously would be
futile and a waste of time. Therefore, there may be cases in which no
prior demand is necessary. 74

We have noted the rule that the order must be against the one having
the power to act. 75 A further rule, with respect to parties, is that it is not

necessary to join the person as a defendant who holds the office from
which petitioner claims to have been ousted illegally, 76 but it is necessary
to make successors to the office of the removing officer parties defendant.
The order is binding against successors if they are made proper parties.