A rehearing was granted herein in order to consider whether the judgment of the lower court is erroneous insofar as it orders relator's "reinstatement" as a civil service employee from the time of his discharge instead of from the date of finality of the judgment. Notwithstanding this, the majority decree that the rehearing will not be *Page 1044 entertained for the reason that the question (for which the rehearing was granted) was not raised or argued on the original hearing. Yet, in the body of the opinion, it is found
(a) That the judgment of the lower court "reinstating" relator in classified service from the date of his discharge from unclassified service is in accord with the jurisprudence of this court, and
(b) That the doctrine of estoppel urged by the city "has no foundation in law."
I am not in accord with any of the grounds upon which the refusal to consider the rehearing is pitched.
Initially, I find it difficult to discern why the court decrees that it will not pass on the question for which the rehearing was granted. It is true that it has been said in a number of cases that the court will decline to consider, for the first time on rehearing, points which are not raised in the district court or upon original hearing. But this rule has been breached when the court was inclined to do so, see Harper v. Sid Simmons Drilling Co., 164 La. 767, 114 So. 647, and is, admittedly, not followed in cases "where the refusal of the rehearing would work manifest injustice."1 If there ever was a case of palpable inequity, this is it — for here, as a consequence of the order of the court below, the City of New Orleans is being forced to pay relator $170 per month from September 9th 1946 until the date of the finality of this decree; *Page 1045 not for any service he has performed; not because he was wrongfully discharged from civil service but because he was discharged from a position in the unclassified service which this court has finally determined to be in classified service. Indeed, the City is being penalized because relator was discharged from an employment which was taken out of civil service by reason of relator's request in order that he could retain a $200 per month salary instead of the $170 limit for Clerk II under the civil service law.
The majority hold that, under the jurisprudence,2 the lower court was correct in ordering relator's "reinstatement" as of the date of his discharge. However, it takes no more than a casual examination of the cited authorities to demonstrate their total inapplicability to the facts presented here. In those cases (Sonnenberg and the like), the employees were admittedly holding positions in civil service and were discharged without cause under various pretexts. In such circumstances, it is only just and meet to restore the employees to their positions with full pay as of the date of their unlawful discharge. This is in keeping with the basic purpose of civil service.
But, in the case at bar, the relator was not in classified service at the time of his *Page 1046 discharge; he did not claim to be in such service; in fact, he avoided any such classification. Accordingly, the Mayor had the right to assume that relator could be summarily discharged with or without assigning cause. Relator's rapid change of face in appealing to the Civil Service Commission was not actually a claim for "reinstatement" but, rather, for a determination that his position was within the classified service despite his successful endeavors to evade classification thereunder.
The uncontroverted evidence in the case reveals that, after termination of his work at a defense plant in 1945, relator was re-employed as a clerk in the Permit Department of the City at $200 per month salary. At that time, employees in the Permit Department were not classified in civil service under a ruling of the City Attorney's office made in 1943. However, in April 1946, just prior to the induction of the present city administration into office, the heads of various city departments, including the Director of Permits, applied to the City Civil Service Commission for a ruling to determine their status, i. e., whether their particular department and personnel were under the classified service. On April 29th 1946, the Commission ruled that all of the various city departments, including the Permit Department, were in classified service *Page 1047 and relator was classified as Clerk II under the Civil Service Act with a reduction in salary from $200 to $170 per month forasmuch as the maximum salary for a Clerk II could not exceed the latter figure. Thereafter, in the early part of May, when the present Mayor took office, relator called upon him and requested that he be declassified so that he would not be forced to take a reduction in salary. The Mayor told relator that it would be all right with him, if relator could obtain a ruling from the City Attorney that employees of the Permit Department were not within the classified service. The desired opinion was obtained and relator was thereafter placed in unclassified service with no reduction in pay. His salary remained at $200 per month until his discharge on September 9th 1946. As soon as that occurred, he immediately reversed his stand claiming that his job was in the classified service, appealed to the Civil Service Commission and then to the courts.
Although the question of whether employees of the Permit Department are within classified service, in view of Section 10(a) (8) of Act No. 171 of 1940, has been the subject of considerable uncertainty3 that matter has been finally set at rest by our original opinion herein. And, by that decision, relator has been restored to his former position at a reduced salary. But I cannot perceive how this favorable *Page 1048 ruling affords any basis whatever for the conclusion that relator is entitled to be paid for services he did not render during the time that he was litigating the present case when the situation in which he found himself at the outset of the suit had been brought about through his own conduct.
But, say the majority, "the doctrine of estoppel urged on rehearing has no foundation in law." This resolution overlooks the well-established jurisprudence that a mandamus proceeding for reinstatement under a civil service law is an equitable cause in which relief will not be granted, as a matter of right, "but in the exercise of a sound judicial discretion and upon equitable principles." United States ex rel. Arant v. Lane,249 U.S. 367, 39 S.Ct. 293, 294, 63 L.Ed. 650 and Duncan Townsite Co. v. Lane, 245 U.S. 308, 38 S.Ct. 99, 62 L.Ed. 309. Accordingly, it is subject to all equitable defenses. United States ex rel. Arant v. Lane, supra; Nicholas v. United States,257 U.S. 71, 42 S.Ct. 7, 66 L.Ed. 133; State ex rel. McCabe v. Police Board, 107 La. 162, 31 So. 662; Ziemer v. City of New Orleans, 195 La. 1054, 197 So. 754 and authorities there cited.
In the case at bar, one of the defendants, Mayor Morrison, has specially pleaded in his answer that relator is "estopped by his actions and representations, and by the payments, prejudices and detriments induced thereby upon the City of New Orleans, to *Page 1049 maintain this suit; to deny his status or to invoke any rights or benefits under the Civil Service, which plea of estoppel respondent invokes and specially asserts as a bar to all relief herein prayed for by relator". The majority declare that this plea is not well founded because everyone knew the facts and were mistaken only as to the law.
I cannot subscribe to this view. The facts above set forth portray, in my opinion, a clear case for the application of estoppel resulting from relator's acceptance of benefits and acquiescence in the ruling of the City Attorney that his position was not within the classified service. See 31 C.J.S., Estoppel, § 107 et seq. See also Magee v. United States,282 U.S. 432, 51 S.Ct. 195, 75 L.Ed. 442. Under the same title the rule is stated thus, in 19 Am.Jur. Section 64:
"Estoppel is frequently based upon the acceptance and retention by one having knowledge or notice of the facts or benefits from a transaction, contract, instrument, regulation, or statute which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions, and it has been said that such cases are referable, when no fraud either actual or constructive is involved, to the principles of election or ratification rather than to those of equitable estoppel. The result produced, however, is clearly the same and the distinction is not usually made. Such estoppel operates *Page 1050 to prevent the party thus benefited from questioning the validity and effectiveness of the matter or transaction insofar as it imposes a liability or restriction upon him, or, in other words, it precludes one who accepts the benefits from repudiating the accompanying or resulting obligation."
I respectfully dissent.
1 See majority opinion on rehearing.
2 State ex rel. Sonnenberg v. Board of Com'rs, 149 La. 1095,90 So. 417; State ex rel. Hughes v. Board of Com'rs, 150 La. 1,90 So. 419; State ex rel. Exnicios v. Board of Com'rs,153 La. 705, 96 So. 539; State ex rel. Charles v. Board of Com'rs,159 La. 69, 105 So. 228; State ex rel. Caire v. Board of Com'rs,174 La. 516, 141 So. 46; State ex rel. Pepper v. Sewerage Water Board, 177 La. 740, 149 So. 441.
3 Two opinions of the City Attorney (1943 and 1946), diverse opinions of the City Civil Service Commission and dissenting opinion of Justice Hamiter on original hearing.