dissenting. I disagree with the basic premise for denial of the writ of mandamus, namely, that appellant allowed an unreasonable time to elapse from the date of his discharge, January 30,1976, to September 21, 1977, the date of filing the first mandamus action, and is therefore guilty of laches which bars mandamus relief. The writ of mandamus should be granted.
Ohio courts have consistently held that when an appointing authority fails to follow the mandatory provisions of R. C. 124.34 the removal is invalid and the employee is entitled to a writ of mandamus ordering his reinstatement. State, ex rel. Bay, v. Witter (1924), 110 Ohio St. 216; State, ex rel. Brittain, v. Bd. of Agriculture (1917), 95 Ohio St. 276; State, ex rel. Proctor, v. Bd. of Education (1978), 60 Ohio App. 2d 396; State, ex rel. Bechstein, v. Bd. of Education (1978), 57 Ohio App. 2d 214.
The Court of Appeals for Clark County, in Moore v. Clark County Sheriff (November 3, 1978), No. CA-1269, unre*78ported, recognized this principle in an earlier appeal and correctly concluded “that the order of removal was void and of no effect” and “that the proper remedy was mandamus.”
In the case sub judice this court in the majority opinion recognizes that mandamus relief was the appropriate remedy for relator, by stating as follows: “In the absence of a removal order, however, the Court of Appeals held that Moore had no right of appeal to the State Personnel Board of Review and that his proper remedy was mandamus.”
Since relator is entitled to relief the issue is whether he should be barred by the doctrine of laches. Delay in asserting a right does not of itself constitute laches, and in order to successfully invoke the equitable doctrine of laches it must be shown that the person for whose benefit the doctrine will operate has been materially prejudiced by the delay of the person asserting his claim. Smith v. Smith (1959), 168 Ohio St. 447, paragraph three of the syllabus; 20 Ohio Jurisprudence 2d, Equity, Sections 81 and 84.
The delay of appellant Moore was excusable. The sheriff furthermore was not materially prejudiced by the delay. Before leaving the sheriffs office on the date of his removal, Moore telephoned a local attorney who advised him that deputies were not covered by civil service. The following week Moore sought a second opinion from another attorney who also gave the same advice to Moore.
An additional reason for delay in commencing the initial mandamus action in September 1977, was that Moore unsuccessfully sought the nomination for sheriff in the spring primary of 1976. The successful candidate for sheriff assured Moore that he would rectify Moore’s situation when he took office in January 1977, but the new sheriff failed to do so. In February 1977, Moore read in the newspaper that 15 Clark County deputies had filed a lawsuit because the sheriff had laid them off contrary to the civil service laws. These new accounts indicated to Moore that deputies were in fact covered by civil service. This information caused Moore to find a lawyer experienced in civil service law to represent him.
In August 1977, Moore tried to settle his claim without filing legal action. When this failed he commenced his first mandamus action. Accordingly, between January 30, 1976, *79and September 21,1977, the period during which the sheriff claims the doctrine of laches ripened, Moore was extremely diligent to regain his position as deputy sheriff. These circumstances caused the delay to be excusable.
The Court of Appeals cited State, ex rel. Sheets, v. Portsmouth (1944), 143 Ohio St. 302, for the proposition that faulty advice given by counsel “is insufficient defense to the assertion of laches.”
This is misplaced reliance on Sheets, supra. Faulty advice of counsel was not controlling in Sheets. The controlling fact was the absence of a “valid subsisting cause of action.” This court in Sheets even noted that faulty advice of counsel, as a reason for overcoming the defense of laches, “would have appeal” in a case involving “a valid subsisting cause of action.” The valid subsisting cause of action which was absent in Sheets is clearly present in the case sub judice. Therefore the faulty advice of counsel which contributed to Moore’s delay is sufficient to overcome the defense of laches. Instead of Sheets serving as precedent for denying the writ of mandamus, it stands as a precedent for granting the writ where the relator’s delay in seeking relief involved the circumstances described herein.