This action was started by John Gannon in the Cuyahoga Court of Appeals, in which he prayed that a writ of mandamus be issued to Frank R. Lander, Surveyor of Cuyahoga county, to restore him to his position as Superintendent of Road Repair in said county, from which position he had been suspended by Lander. The report of a Master, before whom testimony was heard, was filed after which Gannon’s petition was dismissed by 'the Court of Appeals.

It seems that Gannon held his position from 1913 until Feb. 15, 1923, the date of his discharge by Lander. One, McCreary, was appointed to the position and was followed by R. R. White who has continued to occupy said position until the present time. The Surveyor of Cuyahoga county is an elective officer, and as such under 486-8 GC. in his appointments from the unclassified service, he is limited to two deputies and one personnel stenographer. In a former trial in the Court of Appeals in this case the court held that Gannon was entitled to his position and that he be restored to it.

The case is in the Supreme Court and it is contended by Gannon that White continued to occupy the position even after the order. This was shown by extensive testimony of White himself.

It is claimed that Lander when informing the Civil Service Commission of the layoff of Gannon referred to it as a seasonal layoff. It is further claimed that this letter was deceptive, that it contained a misstatement of facts and an omission in that it did not inform the Commission of the fact that White had been appointed to the position of Supt. of Road Repair; that the position to which Gan-non was restored by the Court of Appeals was and is occupied by White; and that it was not a seasonal position as shown by the testimony of White.

' It is contended that after this suit was started, Lander attempted to have White certified into the position by the Civil Service Commission. It is argued that it was beyond the power of the Commission to certify White into the position of Gannon.