State ex rel. Boda v. Brown

• Decision Date: 23 April 1952
• Docket Number: No. 32726,32726
• Citation: 47 O.O. 262,157 Ohio St. 368,105 N.E.2d 643
• Parties: , 47 O.O. 262 STATE ex rel. BODA v. BROWN.
• Court: Ohio Supreme Court

Page 368

157 Ohio St. 368

105 N.E.2d 643, 47 O.O. 262

STATE ex rel. BODA v. BROWN.

No. 32726.

Supreme Court of Ohio.

April 23, 1952.

The facts are stated in the opinion.

Victor Jacobs and Roy G. Fitzgerald, Dayton, for relator.

C. William O'Neill, Atty. Gen., and Joseph S. Gill, Columbus, for respondent.

PER CURIAM.

This is an action in prohibition brought originally in this court by William K. Boda against Ted W. Brown, Secretary of State of Ohio, to prohibit the latter 'from declaring a vacancy of the position of member of the Board of Elections of Montgomery County, Ohio, to which * * * relator was appointed' and 'from appointing anyone else to the position * * * for the term for which * * * relator was appointed.'

The cause is submitted for final decision on the petition, the answer and a stipulation of facts.

It appears that relator was born May 2, 1875. On January 15, 1935, when he was 59 years of age, he became an employee of the Tax Commission of Ohio and also a member of the State Employees Retirement System pursuant to the provisions of Sections 486-32 and 486-33, General Code, 115 Ohio Laws, 614, Sections 1 and 2, as then in effect, and contributed to the Employees' Savings Fund created by Section 486-51, General Code, 115 Ohio Laws, 614, 620, Section 20.

On June 30, 1937, when relator was 62 years of age, he left the employ of the Tax Commission and thereafter, on March 8, 1938, made application for a refund of his accumulated contribution to such savings fund, pursuant to the provisions of Section 486-65, General Code, 115 Ohio Laws, 614 625, Section 34.

On March 13, 1939, when relator was 63 years of age, he was employed by the auditor of Montgomery county. On or about April 5, 1939, he requested exemption from membership in the Public Employees Retirement System. This request was made pursuant to the provisions of Section 486-33 and 486-33a, General Code, 117 Ohio Laws, 57, 59, 840, 843, which were in part as follows:

Section 486-33. '* * * Membership in the state employes retirement system shall be compulsory and shall consist of all state employes, either as original members or as new members * * *.'

Section 486-33a. 'The state employes' retirement system created by section 486-33, General Code, shall hereafter be known as the public employes' retirement system * * *. Beginning July 1, 1938, in addition to the present membership of said retirement system, there shall be included therein all county * * * employes as defined herein and such county * * * employes, except as otherwise provided herein, shall have all the rights and privileges and be charged with all the duties and liabilities provided for in the laws relating to said retirement system as are applicable to state employes. Provided, however, that * * * any new member over the age of fifty years may be exempted from membership by filing written application for exemption with the retirement board within three months after being regularly appointed * * *.'

Except as to the above proviso, these two sections are now substantially combined in present Section 486-33, General Code.

Section 486-32, General Code, 117 Ohio Laws, 840, 842, as then in effect, defined a 'new member' in part as follows:

'(23) * * * As applied to county * * * employes 'new member' of the public employes retirement system shall mean a county * * * employe who shall have become a county * * * employe and a member of the retirement system at a date subsequent to June 30, 1938.'

The requested exemption was granted April 7, 1939.

On February 28, 1950, the relator left the employ of the auditor of Montgomery county. On March 1, 1950, relator, being at that time 74 years of age, began a term as a member of the Board of Elections of Montgomery County pursuant to an appointment previously made by the then Secretary of State, under Section 4785-8, General Code.

On March 1, 1950, neither Section 486-33, 120 Ohio Laws, 40, Section 486-33a, 122 Ohio Laws, 192, 195, nor any other section of the General Code provided for an application for exemption from membership in the Public Employees Retirement System on the part of a new employee.

About July 1, 1951, respondent informed the relator and the Republican Executive Committee of Montgomery County that he considered the position theretofore held by relator as a member of the board of elections to be vacant. At the time respondent took such action, Section 486-59, General Code, read and now reads in part as follows:

'On June 30 following the date upon which he becomes a member the retirement board shall retire any employe who was over seventy years of age at the time he became a member and shall retire all other members, except elective officers, on the June 30 following the date upon which the age of seventy is attained. Provided, that until June 30, 1952, any member having reached the age of sixty-nine years or more may, upon written application approved by the head of his department, board, authority or institution, and upon certification by a physician licensed to practice in the state of Ohio that the member is physically and mentally competent to perform the duties of the particular position which he occupies, be continued in service for a period of one year or any part thereof, such application, if approved, to expire on the June 30 following the date upon which it was filed unless renewed from year to year on or before the expiration date. * * *'

It does not appear that relator ever made application to the respondent to be continued in service as a member of the Board of Elections of Montgomery County.

Under Sections 4785-6 and 4785-7, General Code, the Secretary of State is 'the chief election officer of the state' with the duty 'to appoint, in the manner provided by law, all members of boards of elections'.

Relator contends that as a member of a board of elections he is a public officer, State ex rel. Milburn v. Pethtel, Aud., 153 Ohio St. 1, 90 N.E.2d 686, and is not amenable to the provisions of the Public Employees Retirement Act. However, according to the provisions of Section 486-32...