ON APPLICATION FOR REHEARING
Decided July 11th, 1938
BY THE COURT:The above entitled cause is now being determined on plaintiff’s application for rehearing. The application sets forth twelve separate specifications. The accompanying memoranda contain fifty pages of typewritten matter, and bear evidence of much thought and laborious effort. In the main there is a re-argum'ent of the proposition presented through the original hearing supplemented by citations from courts of last resort and excerpts therefrom.
• Considerable space and argument are given to the question of laches which was injected into the case for the first time through the opinion of this Court.
In our original opinion we called attention to what we considered the scope and effect of the appeal to the Civil Service Commission of the city of Columbus from the order of removal made by the Safety Director of the city. Counsel for relator very persuasively urges the impropriety of the Service Director considering questions outside of the scope of the complaint in ordering relator’s removal from service. The record discloses that the inquiry before the Service ' Director was ' confined to matters germane to the complaint up to the point that the relator was found guilty of the charges.' Thereafter the cause was continued for three days, and it then appears that the director was in a measure influenced by other matters not germane to the coiriplaint in announcing the maximum penalty' of discharge.
, Relator took an appeal to the Civil Serv-i'ce Comfnissidn.' The matter was there heard on the transcript oi evidence before the Service Director plus additional evidence taken before the commission. In our original opinion we stated that this was a qualified de novo nearing. We used the term ‘qualified de novo hearing’ for the reason that the rule controlling the hearing before the commission prescribed that the appeal should be heard on the transcribed evidence taken in ¿tie original hearing together with such other evidence as the commission permitted to be taken.
Counsel for relator now very earnestly urge that the hearing before the Civil Service Commission was in no sense a de novo hearing for the additional reason that the commission have no power except to affirm, disaffirm or modify the judgment of the Safety Director. We concede that this is a correct statement of the law. To our minds this is a distinction without a difference. The law says that the commission shall affirm, disaffirm or modify the judgment. Their power in entering judgment is as broad as could possibly be given. The power to take and the taking of additional testimony is our reason for stating that the hearing before the commission was a qualified de novo hearing.
The additional testimony may strengthen the complaint or may completely and satisfactorily answer the charges. Again, the word ‘appeal’ as used in the law prescribing the method of carrying the cause to the Civil Service Commission in the absence of anything in the law to the contrary would be construed as having the usual meaning at the time the law was enacted. Counsel for relator contends that the review before the Civil Service Commission is no more than a ' proceeding in error.
The right and power to take additional testimony refutes this claim, nor can we find any language in the law supporting this contention. But whether a qualified de novo hearing or an error proceeding we still think the determination of the Civil Service Commission was a final order. If an error proceeding the purpose of the review would be to correct errors. Reviewing courts very frequently determine that the reviewing court was in error relative to some phase of the case, but that such errors were not prejudicial, and- affirm the judgment. By, whatever name the review is designated the power was given to the commission to ‘affirm, disaffirm or modify the judgment’.
*532*531We know of no direct authority through which the commission would be authorized *532to remand for a new trial. Where a court or other entity having quasi judicial powers have jurisdiction to hear and determine a matter every presumption favors the correctness of their determination unless it affirmatively appears otherwise.
Applying this principle to the hearing before the Civil Service Commission it is presumed that they acted Within the law and considered no elements other than those properly to be considered. Since the matter was before the Civil Service Commission on appeal their order,is the final judgment.
Counsel for relator now contends that the matter was not appealable and therefore the commission had no jurisdiction to hear and determine. This places the plaintiff in the anomalous position of questioning his own appeal.
This may be done where there is no jurisdiction of the subject matter. It has been repeatedly held in this state that the question of jurisdiction may be raised at any time, either by the parties or sui sponte by the Court.
The parties may not agree or consent to jurisdiction of subject matter. We have no difficulty in determining against plaintiff’s contention on this complaint.
In the interest of not making this opinion unduly lengthy we will refrain from commenting on the numerous decisions and excerpts therefrom presented through plaintiff’s memorandum. Suffice it to say that we have examined these cases and have no quarrel with the enunciations there made under the questions then under consideration. A careful reading of our original opinion should at .once suggest the reasons why we think the decided cases are not applicable. In the instant case we have the pertinent- legislation of a charter city tor getber with the authorized rules and regulations. When analyzing decided cases we must have in mind the pertinent legislation together -with the manner in which the question is now raised.
Counsel for plaintiff devotes many pages of his memoranda questioning our observation relative to laches. The statement is made and authorities cited supporting the claim that the defense of laches must be
pleaded.
Generally this is true but it does not apply to actions in mandamus. Mandamus is an .extraordinary remedy . and may be granted or withheld within the sound discretion of the court. The case of State ex Smith v Witter, Director, etc., 114 Oh St, 357, is much stronger in its facts than is the instant case. This is the case cited in our Qriginal opinion and supporting the theory of laches. The case was filed originally in the Supreme Court and asked for a mandatory writ against the Director of the Department qf Industrial Relations of Qhio to restore the relator to his position upon the rolls of the department and to issuing of warrants f.or salaries, etc. In this reported case the statement of facts discloses that in a hearing before the Civil Service Commission the order of dismissal had been' disaffirmed. We have taken the time to examine the original papers in this case which we found available in the office of the reporter of the Supreme Court. Laches was not pleaded in the answer of the defendant nor was it presented through the briefs of counsel for the defendant. The pleadings disclose the dates of removal and other dates of the various steps that were taken, but the Supreme Court, notwithstanding the question was not raised denied the writ on the ground of laches.
Many other questions have been presented through the application for rehearing and the accompanying memoranda, but we do not think that any useful purpose can be served in extending this opinion to any greater length.
We have examined all questions and have examined cited' authorities. It is our determination that the application for rehearing will be denied.
BARNES, PJ, HORNBECK & GEIGER, JJ, concur.