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Home -> Oliver P. Field -> Civil Service Law -> Chapter XI continued

Civil Service Law - Chapter XI continued

1. Chapter I

2. Chapter II

3. Chapter III

4. Chapter III continue

5. Chapter IV

6. Chapter IV continue

7. Chapter V

8. Chapter V continue

9. Chapter VI

10. Chapter VI continue

11. Chapter VII

12. Chapter VII continue

13. Chapter VIII

14. Chapter VIII continue

15. Chapter IX

16. Chapter IX continue

17. Chapter X

18. Chapter X continued

19. Chapter XI

20. Chapter XI continued

One of the allegations that must be made in the usual civil service case
in which mandamus is sought to reinstate following an illegal removal
is that the employee is in the classified service; 78 a mere allegation that
petitioner took and passed a competitive examination is insufficient to
comply with this requirement. 79 If an office is involved, it seems necessary
to show that the office was legally created, 80 but for employments it is
apparently sufficient for petitioner to allege that he was employed at the
described work in a named position. 81 But it has been held to be a de-
fense against mandamus that the charter did not authorize the position
though plaintiff had held it for a long time and was now demoted. 82

Mandamus is not excluded by the existence of other remedies. 83 All
that is generally required is that mandamus be appropriate, not that it
be the only remedy. In this respect it shows its legal rather than any
equitable character. It is a writ at law rather than in equity.

Not only is mandamus the proper remedy for obtaining reinstatement
to the position, but an action for back salary may be coupled with it. 84
It is not necessary to bring an action of debt or assumpsit to fix the sal-
ary claim first. 85 Mandamus to reinstate and a claim for salary may be
coupled, even though another person has been appointed in the ousted
person's place, because the wrong is the removal, not the subsequent ap-
pointment. 86 In a sense, an action for back salary is treated as a rein-
statement to the position during the period for which the salary claim is
allowed, in order to permit the salary award. 87 Actual entry upon the
duties is not required.

If salary claim is coupled with the petition for reinstatement, it is
necessary to allege in the petition for mandamus that money has been
appropriated and is available to pay the claim. 89 Whether the claim for
salary is proper when coupled with mandamus if the salary has been
paid to another depends not upon its connection with mandamus, but
upon the rules governing liabilities for salary. 90

The wrongfully removed person may be reinstated even though he
has entered upon a new position in the meantime, because the incompati-
bilities between the two positions, if there are any, will not develop until
he actually enters upon the performance of the duties attached to both
of them. 91

Not all orders of reinstatement preceding salary payments are by or-
der of a judicial body. An administrative order reinstating a person may
be sufficient to predicate salary payment. 92 Administrative reinstatement
must be accompanied by payment of back salary if the removal was
wrongful. 98

If an employee is suspended for a definite term, he cannot be reinstated
before the term expires. 94

Some exceptions must be noted to the rule stated above that salary
claims may be joined with a petition for mandamus. In Massachusetts,
for example, this may not be done. 95 This is also true in Ohio. 96 The
theory in these jurisdictions is that the right to the position or office must
be established first, that a claim for back salary cannot be settled until
the right to reinstatement has been established. This, of course, goes back
to the more fundamental question whether the courts should favor a
practice which gets all relevant claims before them for settlement in one
action or whether they should insist upon one thing at a time. But the
fact that a removed laborer sued in contract for past salary or for dam-
ages does not bar an action of mandamus for reinstatement for the fu-
ture. 97 Mandamus is proper when, in addition to an award of salary,
a record of suspension is to be erased from the books. An action for sal-
ary alone would leave the record untouched. 98

The writ must be against the city or against the officer having the duty

and power to pay, rather than against the officer having the power to fix
salaries if that power does not also carry with it the power to pay."

It has been held that a subsequent charter may cut off rights to claims
that have accrued but have not been reduced to judgment as a result of
an illegal removal under the prior charter. 100

In case the employee is reinstated, he must report for work after he
learns of the reinstatement and may not wait until he is called. 101 Vol-
untary retirement may prevent the use of mandamus for reinstatement. 102

At times it is required to reinstate an employee to a comparable posi-
tion. When this is the requirement, the courts watch rather closely the
exact rates of compensation and the nature of the duties attached to the
positions from which the employee was removed and to which he is be-
ing reinstated. This situation may arise, for example, when a reorgani-
zation has taken place during the period that the employee was out of
his position. 103

An illegal removal may be cured by a legal exercise of the power to
remove, and if the cure is effected before the petition for mandamus is
filed, the writ will not issue. 104

The rules governing res adjudicata are no different in cases involving
removals than in other situations. 105

The rule to be followed by the courts in determining the extent to
which they will review the evidence in mandamus cases is stated in vari-
ous ways. On the whole, the courts tend to say in mandamus cases that
they will not review the evidence in detail. They will look to see whether
there is any substantial evidence, but they will not canvass the weight
of the evidence. In general, what these statements mean is that the court
will look through the record, and if it feels that on the whole the removal
can be said to be justified, it will uphold the removal, even though some
irregularities may be present which might cause a reversal had the review
been of a judicial trial in a lower court.

An officer or employee may bring an action for damages or salary
without asking to be reinstated to the office or position. The fact that he
waits until after he procures reinstatement by court order is not fatal
in those states in which he could join both claims in the same action. 107
He may, for example, be first illegally, then legally, discharged, and the
suit may be for salary for the period during which he was wrongfully
ousted. 108 The Supreme Court of the United States has even held that in
the national government a suspension in violation of an executive order
of the president would constitute a ground for suit before the court of
claims. 109 However, the court of claims seems to take the position in
some opinions that recovery is restricted to those instances in which the
removing officer exceeded his authority; when he has the power to re-
move, though the cause or method of removal may be doubtful, the court
will not review the administrative action. 110 Under this view a distinc-
tion is drawn between the power to remove and the procedure to be
followed in a removal. The government may be held liable for removals
made in excess of the power to remove, but not for violations of the pro-
cedure, even though it be statutory, governing removals. 111

The action for removal in the case of an officer is presumably in tort
rather than on contract, because under the federal constitution an office
has been held to be a status, not a contract, 112 and violations of rights
arising out of status normally fall in the class of torts. Employments are
usually based upon contract, and therefore the removal from a position
would be a breach of contract. With respect both to damages and to
the statutes of limitations this distinction might become important, sub-
ject of course to the qualifications that must be introduced because of the
doctrine of laches. Upon this subject something more will be said in the
next section.

One of the problems about which there is difference of opinion is that
presented by an action for salary brought by a person who has been
ousted from his position when another person has been appointed to his
position and paid the salary. Shall the injured former and rightful holder
be paid the salary by the city even though the city or other governmental
unit has paid it to the one who performed the duties of the position ?

Some courts say no, some courts yes. 113 In New York it has been held
unconstitutional as a gift for the legislature to authorize a city to pay back
salary to an illegally ousted officer when the salary has been paid to an-
other. 114 In general, the courts who refuse to permit recovery under these
circumstances take the view that the city is obligated to pay only for the
services received by it, and that having paid the one who rendered them,
the obligation of the city is discharged. It is unfair, say these courts, to
compel the city to pay twice. The burden of establishing title should not
be upon the city. The other courts take the view that the person to whom
the position rightfully belongs is entitled to the salary, and that it is part
of the obligation of the city to see that the salary is paid to the rightful
holder. In case of doubt or contest, it should withhold payment until the
question has been determined by the proper authorities, and ordinarily
the proper authorities are the courts. These two views may be put in
terms of de facto officers' law at times, but the basic differences are as
just indicated. The liability of the innocent, though illegal, holder of the
office or position to the person who was ousted from legal title to the
position is of little importance, because of the unreliability in a field such
as this of any remedy that rests upon a purely personal basis.

In the case of an office it would be logical to say that a government
should always be on notice that it must pay the salary to the holder of
the legal title, because the salary is attached to the office and is not based
upon the performance of any particular service. But with respect to em-
ployments generally, the rule might be somewhat more lenient, although
here the question is which is the lesser of two evils. 115 Perhaps the rule
that compels the speediest settlement of any dispute as to positions is the
one to be preferred, because such a rule will tend in the long run and
in the generality of cases to work out most equitably.

Of course, if the city pays the salary to the person appointed to the
vacancy caused by the wrongful ouster after receiving notice that the
former employee has been awarded the salary, the city cannot defend
against payment to the party entitled by decision to the money. 116

A situation in New York illustrates the difficulties and the remedies
sometimes used in this branch of law. Petitioner was illegally discharged

from the classified service and was ordered reinstated. During the period
that he was out of his position, the salary had been paid to another. The
court denied payment of the salary to the ousted person, saying: "Where
the position has not been filled, is left vacant, and the city has paid no one
for the work, it may very well be that the incumbent, illegally removed,
should get his compensation. . . . Where, however, the city has put an-
other person to do the petitioner's work and paid him for it, the peti-
tioner the removed employee is not entitled to his back pay; the
nature of the procedure, whether by mandamus or action, is entirely im-
material; the right does not exist whatever the procedure may be." 117
Subsequent to this decision a statute was enacted which provided that
"any officer or employee who shall have been, or hereafter might be, re-
moved from any position held by him by appointment or employment
in the state or in any city thereof, and who shall have been restored to
such position or employment by order of the court, shall be entitled to
receive from the state or city the same compensation therefor from the
date of such removal, less the amount of compensation received from any
other employment or occupation during the period he was out of office,
which he would have been entitled by law to receive in such position or
employment." The court held that this law operated retroactively so as
to enable a person whose removal had taken place prior to the enactment
of the statute, but whose litigation was pending in the courts on appeal
at the time of the enactment, to receive the benefit of its provisions. 118

The fact that other policemen are appointed to the force does not
necessarily mean that another person has been appointed to fill an ousted
policeman's place. 119 The problem that is presented by an office such as
a police office is somewhat different from that presented by a single office
with a single holder. But when, as with police and fire departments, there
is a class of offices, the law may authorize a maximum number of offices
for that class. In one case in which an officer was discharged and the force
was later brought up to the maximum by new appointments, the court
held that the removed officer could recover salary for the period of wrong-
ful removal up to the date when the maximum was reached. But for the
period following that date, no recovery could be had until an action had
determined his right to one of the offices. 120

A city cannot defend against an action for salary on the ground that
officers of the city improperly put the position from which the plaintiff
was removed in the classified service. 121 Nor will a general demurrer do
as an answer to a complaint alleging illegal removal. Facts must be
pleaded which show the cause of the (1isckirjc. 122

Salary may be recovered, without deduction for money earned at
other work, when the action is based not on contract but on the official
status of the removed person. 123

The government is not bound by promises made by the superior offi-
cer that the ousted person will be taken back, particularly if the superior
is an employee himself and not an officer. Logically, the fact that the
superior is an officer should make no difference, the real question being
whether he had the power to make such promises. 124

The nature of the compensation is sometimes a factor to which the
courts attach weight. If the compensation is by the day, it looks like
wages. If the work is that of a laborer, it tends to make the hiring seem
contractual, with the result that recovery cannot be had for salary so
long as services were not performed. 125 But wages do not necessarily
import employment upon the basis of work done. 126 Suit for recovery
of salary in the case of day laborers must probably be grounded in tort
rather than in contract. 127 This does not mean that a laborer may not
obtain mandamus to be reinstated in his position as a laborer, but means
that his right to recovery of salary depends upon his performance of the

It seems that in the absence of statute an illegally removed employee
is not under obligation to accept temporary employment, 129 nor is the
acceptance of temporary employment fatal to recovery. 130

The ousted employee may either expressly or impliedly waive his
claim to back salary. For example, the fact that he worked in his reduced
status for two years without complaint has been held to imply a waiver
of any claim that he might have had as a result of the illegal change in
status. 131

Legislative recognition of claims is not unknown, and these statutes
may be retroactive, as has been noted earlier. However, such laws do not
apply to claims which had been decided adversely to plaintiff prior to the
enactment of the statute recognizing the claims. 132 Apparently it is con-

stitutional for the legislature to recognize the wrong done by paying the
expenses to which a person is put in asserting his legal right to a position
from which he has been illegally ousted. 183

A waiver of back salary may be made with the understanding that it
will not be used against the employee. For example, the civil service com-
mission may have failed to hold its hearing within the specified period,
and the waiver may be for the purpose of sanctioning the postponed
hearing. If this is the understanding with the employee, the waiver
cannot be used against him later when he asks for back salary on the
ground that the suspension or removal was illegal. 134


The person who has been removed from office may feel so strongly
that he has been treated unjustly, as well as illegally, that he will wish
to sue the officer making the removal. Is the superior officer liable for
damages if he has made a removal that is judged illegal by the courts?

The superior is privileged absolutely in making communications con-
nected with the removal of an inferior officer or employee. 135 It is im-
portant that letters, communications, ratings, and appraisals be privileged
in order that the superior may carry on his work unrestricted by fear of
lawsuits for things honestly done in the course of his duties. This work
may include the exercise of the power to remove subordinates or the
participation at one stage or another in giving information upon which
an officer superior both to himself and to the subordinate may act. It is
difficult to see why the privilege needs to be absolute, although appar-
ently the courts phrase it as an absolute privilege, having in mind the
analogy of legislative and judicial privilege in the field of libel and slan-
der. 136 The privilege should be qualified, not absolute, and if the question
was to be raised in a case in which the distinction made a difference, the
courts might so hold. A qualified privilege throws a very real burden on
the plaintiff, and at the same time is all that is necessary to protect the
superior. Room should be left for the rare case of malice or dishonest
and careless action on the part of the superior; he should at least be held
liable for injuries resulting from malice.

One case involved a statute which extended the privilege to publica-
tions "in any legislative or judicial proceeding, or in any other official
proceeding, authorized by law." The removal procedure came under the
last clause in the sentence, thought the court, and therefore a letter writ-
ten by a subordinate about his immediate superior to their common
superior came within the privilege. 187

There is an analogy that can be made use of in working out a prin-
ciple of liability for removing officers the principle that judicial officers
of lower courts may be liable for excess of jurisdiction. This principle has
been extended to administrative boards in certain cases. In one case the
removing members of a common body were held liable for excess of
jurisdiction because they did not act within the statute. 138 The problem
of jurisdiction seems not to be involved in a case in which an officer acts
in a manner not authorized by law, the principles of official liability for
acts in excess of authority being sufficient to establish the liability. But the
courts tend to think of removal as having some judicial characteristics,
partly because of the procedural elements arising^ from the requirement
of cause and hearing, and partly because it involves the exercise of dis-
cretion somewhat resembling that reposed in a judge. The liability for
an illegal removal seems fixed upon the removing officer, however, by
the above decision, whatever the correct rationale of the principle may be.

There seems to be some authority that if the removing officer is liable,
it is not necessary for the employee to establish his title or right to the
position by mandamus before bringing his action for damages. 139


The doctrine that a person must assert his rights seasonably or be
barred from asserting them later is firmly fixed in the law of removal
applying both to the field of public officers generally and to civil service
law in particular. It applies whether the action be for c!.!r.!.!^i^. for sal-
ary, for mandamus, for certiorari, or for any other form of remedy. Ap-
parently it is a doctrine that cuts across all remedies. In some of the
special remedies, such as certiorari and mandamus, laches may be espe-
cially important because it is discretionary on the part of the court. 140 In
one case in the national government the statement was made that "when
a public official is unlawfully removed from office, whether from dis-
regard of the law by his superior or from mistake as to the facts of his
case, obvious considerations of public policy make it of first importance
that he should promptly take the action requisite to effectively assert his
rights, to the end that if his contention be justified the government serv-

ice may be disturbed as little as possible and that two salaries shall not be
paid for a single service." 141

It seems clear that the statutes of limitations and laches do not co-
incide, but that laches operates so as to bar the action long before the
statutes of limitations applicable to tort and contract would do so. 142
Laches operates even though there is no statute of limitations on manda-
mus. 143

It may be the court will find that for six months a good excuse existed
for failure to bring an action, but that for the second six months no ade-
quate excuse existed, and that to wait the year constituted too long a de-
lay. 144 Each case depends upon its own peculiar facts; six months may be
too long to wait in one situation, while two years may not be too long
in another. 145 The fact that plaintiff took some steps may not be effective.
He must take sufficient steps to really constitute assertion of his claim. 146
An employee is not entitled to trust a casual assurance on the part of
his superior that if the taxes come in, he will put the employee back to
work. 147

But it has been held that if petitioner relied upon a request to wait for
the decision on a pending case, he was not guilty of laches through wait-
ing until the decision was handed down. 148 It is permissible to litigate on
one theory, lose, and then try on another theory. 149

The shorter the period of delay, the easier it is to justify the delay. 150
Of course, laches does not operate if the person is unaware that another

has been put to work when he was entitled to be put to work instead.
He is not required to protest until by reasonable diligence he could have
learned that there was something about which he should protest. 151

Laches should not be confused with acquiescence. A person may by
his action or inaction impliedly consent to what has been done, and as
a result may be barred from subsequently asserting his former rights. 152
That a person who has been removed from a position moves out of
the city has been held to constitute an important factor in determining
whether he has acquiesced in his removal. 153

Turning in a uniform in compliance with rules requiring this upon
separation from the force is not conclusive that an ousted policeman
acquiesced in his removal. 154

The fact that the civil servant is a minor may affect the situation to
be considered by the court. If the father kept up inquiries, if the minor
was ill part of the time, if he was not notified that he was discharged,
but was told instead that he was being laid off because of the need for
reducing the force, it has been held proper for the minor to sue twelve
days after coming of age. 155

The rule that if one waits too long to sue on his claim for illegal re-
moval he will be barred by laches operates against the administrator of
the removed officer's estate as well as against the removed person. 156

It is not necessary that the ousted employee report for work every day.
It may be that the situation is such that it would be an idle gesture for
him to do so, and the law requires him to do only those things that are
necessary to show honest intention to resume his work whenever his su-
periors are ready to permit him to do so. 157


(The most troublesome question in civil service administration is
whether the commission or the courts should pass upon the legality of
administrative removals. If the commission is to perform this task, it
will be brought into the conflicts that arise between employee and ad-
ministrator within the operating departments of the government. To
perform some of its tasks most efficiently, the commission should not be
involved in the internal disputes of a department. If the commission is

to be kept free of such complications, it cannot act as the judge in a case
between the head of a department and an employee within the depart-

cThe practice is general, nevertheless, of having the civil service com-
mission pass upon removals. A few jurisdictions permit direct access to
the courts. In favor of proceeding directly to a judicial body is the finality
of the action taken by the court. There is less delay if the employee pro-
ceeds immediately to court action than if he goes first to a commission
and then appeals to a court. Against immediate judicial review of the
administrative action is the cost of such a review. It may be that the dis-
pute will not be appealed from the decision of the commission, and if it
is not appealed, the cost to the employee will be less than if it had been
taken to court originally.^)

(pome choice must be made, and it is the belief of this writer that it is
preferable to relieve the civil service commission of such work. If judicial
review of removal is to be provided for, the case may as well enter the
court in the first instance. The decision of the trial court should be final
except with respect to questions of law. The procedure whereby the dis-
pute is brought into court should be by statutory certiorari. The statute
should provide that the determination of the removing officer be review-
able upon the evidence as well as upon the jurisdiction and procedure of
that officer. This imports a hearing, and while there is some dispute as to
the desirability of a hearing in all cases of removal, it seems fairly clear
that a hearing should be required in the dismissal of all employees and
officers who should be within the branch of the civil service regarded as
the career division.

All the citations in the following table of cases were verified after the volume was in proof.
Such minor inconsistencies as spelling in the name of the defendant and differences of one
year within the same volume were not amended in the footnotes; the table of cases is to be
followed in these few instances.

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