State ex rel. Conway v. Taylor

• Citation: 24 N.E.2d 591,136 Ohio St. 174
• Decision Date: 20 December 1939
• Docket Number: 27745.,27741
• Parties: STATE ex rel. CONWAY, Director of Liquor Control, v. TAYLOR. STATE ex rel. HAMILTON v. SHERWOOD, Director of Public Welfare, et al.
• Court: United States State Supreme Court of Ohio

24 N.E.2d 591

136 Ohio St. 174

STATE ex rel. CONWAY, Director of Liquor Control, v. TAYLOR.

STATE ex rel. HAMILTON v. SHERWOOD, Director of Public Welfare, et al.

Nos. 27741, 27745.

Supreme Court of Ohio

December 20, 1939

These are actions invoking the original jurisdiction of this court. Each relator asks a writ of mandamus restoring him to a position to which he was provisionally appointed in the civil service of this state.

The operative facts in the two cases are similar with the immaterial exception that the one relator served as an inspector in the Department of Liquor Control for a period of three and one-half years while the other was an investigator in the Division of Aid for the Aged for approximately one and one-half years. In substance in each petition it is alleged that the relator was provisionally appointed to his position after a non-competitive examination and approval by the Civil Service Commission of the state of Ohio; that he served until notified that his services were terminated; that his position is within the classified service; that at no time during his employment has there been an eligible list for his position and that he has not been informed of any reason for his summary discharge.

In each case a demurrer has been filed on the ground that the petition fails to state facts sufficient to constitute a cause of action.

Benesch Marsteller, Friedlander & Morris, of Cleveland, for relator in cause No. 27741.

Thomas H. Monger, of Jackson, for relator in cause No. 27745.

Thomas J. Herbert, Atty. Gen., E. G. Schuessler, of Cincinnati, John P. Walsh, of Canton, and Howard Bernstein, of Cleveland, for respondents.

PER CURIAM.

The first question is whether, in the absence of an eligible list, a civil service employee provisionally appointed after a non-competitive examination and upon approval by the Civil Service Commission of Ohio under favor of Section 486-14 General Code, may be summarily discharged from his position without the notice and hearing provided by Section 486-17a General Code.

This is the precise question presented and decided in the cases of State ex tel. Slovensky v. Taylor, Dir., 135 Ohio St. 601, 21 N.E.2d 990, and State ex rel. Lagedrost v Beightler, Dir., 135 Ohio St. 624, 21 N.E.2d 992. In the former case this court held that:

'One receiving a provisional appointment under Section 486-14, General Code, in the absence of an eligible list, becomes an appointee in the classified service within the contemplation of Section 486-8(b), General Code, entitled to retain his position during good behavior and efficient service, until the establishment of an eligible list, or until his services are terminated by arriving at the mandatory retirement age, or until the abolishment of the position, or a lay-off.

'Being in the classified service, he may not be summarily dismissed; his removal is governed by Section 486-17a, General Code.'

The respondent ask this court to overrule this pronouncement. They base their contention on the theory that under the civil service statutes of this state a civil service employee provisionally appointed after a non-competitive examination and upon approval of the Civil Service Commission is not in the classified service.

A careful and dispassionate study of these statutes discloses that this question is clearly answered by the provisions of Section 486-14, General Code (106 Ohio Laws, 400, 409), which then read in part as follows:

'Positions in the classified service may be filled without competition as follows:

'1. Whenever there are urgent reasons for filling a vacancy in any position in the classified service and the commission is unable to certify to the appointing officer, upon reguisition by the latter, a list of persons eligible for appointment after a competitive examination, the appointing officer may nominate a person to the commission for non-competitive examination, and if such nominee shall be certified by the commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination; but such provisional appointment shall continue in force only until regular appointment can be made from eligible lists prepared by the commission, and such eligible lists shall be prepared within ninety days thereafter. In case of an emergency an appointment may be made without regard to the rules of this act, but in no case to continue longer than thirty days, and in no case shall successive appointments be made: provided, however, that interim or temporary appointments, made necessary by reason of sickness or disability of regular officers, employees or subordinates shall continue only during such period of sickness or disability, subject to rules to be provided for by the commission.'

The very first sentence states that 'Positions in the classified service may be filled without competition as follows.' Then comes a provision for provisional appointments upon a non-competitive examination. With the statute thus plainly stating that the classified service may be filled by a provisional appointment upon a non-competitive examination, this court cannot reasonably be expected to indulge in sheer judicial legislation and hold that the classified service may not be so filled.

In the same sentence appears the statement that such a person 'may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination.' In the face of this language it hardly will do to hold that such a person may not be appointed to fill a vacancy until a competitive examination is held.

Furthermore this sentence provides also that 'such provisional appointment shall continue in force only until regular appointment can be made from eligible lists prepared by the commission.' Again this wording manifestly precludes a holding that such appointment shall not continue in force until an eligible list is prepared. But the respondents rely upon the provision that 'such eligible lists shall be prepared within ninety days thereafter.' They contend that a provisional appointee is thereby prohibited from serving longer than ninety days. However, there seems to be no reason to construe this requirement as other than the thing it appears to be, namely, a direction to the Civil Service Commission to prepare an eligible list within ninety days. The theory of the respondents seems to be that, if the Civil Service Commission fails to discharge its duty in this respect, the appointee is thereby penalized by the loss of his position. This view of the matter would make it possible for the Civil Service Commission to oust an appointee by the simple device of refusing him an opportunity to take a competitive examination, and is a non sequitur.

This court finds no reason for departing from the pronouncement in the above cited cases. These statutes may be amended by the Legislature but not by this court.

The second question here presented relates to the prayer of each relator for an order including not only a restoration to his position but also an adjudication of the question of salary. That a writ of mandamus is not...