concurring in part and dissenting in part. I am in agreement that the broad statement to be found in State, ex rel. Gibbons, v. Cleveland (1984), 9 Ohio St. 3d 216, that “no legal right to back pay can be established before an appointment has occurred, regardless of the reasons for the failure to appoint,” should be clarified or differentiated from the type of case presented herein. In Gibbons, I joined the court in stating the general rule that civil service employees have no legal right to the salary and benefits incidental to a rank or position prior to their appointment to the position sought, citing State, ex rel. Lynch, v. Taylor (1940), 136 Ohio St. 417 [16 O.O. 577]; State, ex rel. Baker, v. Wichert (1953), 159 Ohio St. 50 [50 O.O. 26]; State, ex rel. Brown, v. East Cleveland (1979), 58 Ohio St. 2d 232 [12 O.O.3d 235]; State, ex rel. Pennington, v. Ross (1980), 63 Ohio St. 2d 58 [17 O.O.3d 36]. These cases involved original actions in mam damns. However, the same law would generally be applicable if the actions had been ones seeking damages rather than mandamus. In either form of action, the mere failure of performing or carrying out of a duty owed, whether or not established by statute, should not reasonably give rise to an obligation for back wages or seniority benefits.
Compensation generally is not payable to an employee unless and until his right to such compensation is established by appointment, and then only after the effective date of such appointment. This we stated in Gibbons. What was not provided for in Gibbons was the allowance of a claim by the employee when there is a finding of a refusal to appoint based upon bad faith of the city, or a showing of a conscious, intentional violation of the civil service laws. The judgment in this case fills that void by providing that where the denial of a proper appointment has been occasioned by reasons of maliciousness or bad faith, as alleged, the employee may seek wages and benefits payable and due from the date the appointment should have been made. This action provides not only the proper compensation to the employee, but tends to mete out a sanction to the employer. Whether or not the duty is established by statute or otherwise then becomes irrelevant.
The allowance of the damages as sought herein “rests not on the *292ground of the abstract or theoretical justice, but on the ground of public policy — a policy which seeks to promote the public safety; to punish, through the medium of a civil proceeding, a fraudulent, malicious, insulting, or wilful wrongdoer, and to hold him up as a warning example to others, to deter them from offending in like manner.” (Emphasis added.) Atlantic & Great Western Ry. Co. v. Dunn (1869), 19 Ohio St. 162, 170. See, also, e.g., Western Union Telegraph Co. v. Smith (1901), 64 Ohio St. 106, 116; Tracy v. Athens & Pomeroy Coal & Land Co. (1926), 115 Ohio St. 298, 302-303; Saberton v. Greenwald (1946), 146 Ohio St. 414, 428 [32 O.O. 454].
However, the failure of the majority to include the element of bad faith or willful violation of law on the part of the city in the syllabus implies its unwillingness to differentiate Gibbons from the present case because of the bad faith found in the present case. This results in mistaken reliance on the mere fact that the city was ultimately found to have violated a statute. To this, I cannot agree. Such undue emphasis, if intended by the majority, would fully overrule Gibbons, since little if any vitality would remain therein. Although a colorable good faith attempt to comply with the statute may have been originally made by a city, it is possible that its actions will later be found violative of state law. Also, such failure to make a particular appointment could be the result of mistake, accident, or negligence, any of which may have been due to good faith action or honest inaction.
The record before the trial court was sufficient to allege and show bad faith upon the part of the employment authorities in disregarding the request to fill an existing vacancy for captain, and in delaying the promotional examination for such office until other officers were eligible to take such examination.
Accordingly, the trial court could have, absent the interpretation given our holding in Gibbons, found that the appellants were entitled to the relief that they sought. For these reasons, I concur only in the judgment of the majority, but must dissent as to its incomplete syllabus.