State, Ex Rel., v. Emmons

• Citation: 128 Ohio St. 216,190 N.E. 468
• Decision Date: 11 April 1934
• Docket Number: 24398
• Parties: The State, Ex Rel. King, v. Emmons Et Al., State Civil Service Commission.
• Court: United States State Supreme Court of Ohio

190 N.E. 468

128 Ohio St. 216

The State, Ex Rel. King, v. Emmons Et Al., State Civil Service Commission.

No. 24398

Supreme Court of Ohio

April 11, 1934

Civil service - Classified service - Merit and fitness - Preference to honorably discharged soldiers and sailors - Sections 486-10 and 486-13, General Code - Constitutional law.

The provisions of Sections 456-10 and 456-13, General Code, do not violate Article I, Section 1, nor Article XV, Section 10 of the Constitution of Ohio nor the Fourteenth Amendment to the Constitution of the United States.

An original action in mandamus was brought by the relator, John J. King, in the Court of Appeals of Franklin county. His petition alleges that he was a citizen and an elector of the state of Ohio, and had for eighteen (18) months been employed as an assistant custodian of the morgue in Hamilton county under appointment by the county coroner; that the state civil service commission had placed the position so held by him in the classified service and had called an examination to determine eligibility therefor, although, by reason of the fiduciary character of the duties, it belonged in the unclassified service; that said duties as set forth in the civil service bulletin were:

"To take charge of the Coroner's Office in his ab- sence; to handle routine reports of all cases; to make and keep records; to assist in the compilation of reports; to answer inquiries by telephone; to meet the public; to assist at hearings."

The requisite qualifications for the position as set forth in the same bulletin were:

"Education equivalent to that represented by graduation from a standard junior high school; two years experience in clerical work of a responsible nature, preferably with some relation to medical work; thorough knowledge of medical terms particularly of those relating to causes of death; ability to receive verbal messages and reports, and to transmit them accurately."

It is further alleged that the relator together with others took said examination, and that he received a mark of 80.5; that in the same examination Harry B. Feldman received 81.9, Mary Halpin 81.2, George Hexter 79.25, and James R. Niederlehner 78.8; that under the provisions of Sections 486-10 and 486-13, General Code, the said George Hexter received additional credit sufficient to make his final mark 95.1, and that by the same process one Clarence Riley had a final mark of 86.52, and John Ingersoll 85.5; that by reason of the operation of said Sections 486-10 and 486-13, General Code the relator was not included in the eligible list of persons to be certified; whereas, without the additional credit so given, he would have been third on such list.

The relator further alleges that when seventeen years of age, too young to enlist in the United States Army, he enlisted in the Canadian Army, served overseas in the war with the central powers, and received an honorable discharge. He received adjusted compensation from the state of Ohio, and belongs to the American Legion.

The relator claims that the allowance of additional credit under favor of Sections 486-10 and 486-13, Gen- eral Code, as aforesaid, is unfair, unreasonable, arbitrary and discriminatory, and constitutes a violation of Article I Section 1, and Article XV, Section 10, of the Constitution of Ohio, and of the Fourteenth Amendment to the Constitution of the United States.

He prays a writ of mandamus requiring the respondents to certify his name for appointment on the eligible list.

An alternative writ was allowed after which a demurrer to the petition was filed and sustained by the Court of Appeals. Application for a rehearing was overruled and the case was brought into this court on error.

Mr. Robert N. Gorman and Mr. Arthur C. Fricke, for plaintiff in error.

Mr. John W. Bricker, attorney general, and Mr. Isadore Topper, for defendants in error.

BEVIS J.

The demurrer admits all facts well pleaded and the petition alleges in terms that the position in question is "one in the unclassified service, as defined by Section 486-8 of the Ohio General Code." In view of the duties of the position as set forth in the petition, however, we think the allegation a legal conclusion not warranted by the facts pleaded, and, therefore, not admitted by the demurrer.

We also lay aside the allegation of service in the Canadian Army. Whether or not the legislature of Ohio may constitutionally prefer soldiers, sailors and others who served under the American colors, there is, in our opinion, no question of its right to omit from preferred classification those whose service was under the flag of another country. To construe the language of Sections 486-10 and 486-13, General Code, so as to include in the preferred groups those honorably discharged from the service of other nations, would violate both syntax and logic.

But though the relator be not entitled to preference by reason of his service in the Canadian Army, he is a citizen of Ohio, and, as such, challenges the constitutional right of others to a preference not accorded him.

The claim that Article I, Section 1 of the Constitution of Ohio, is violated, was not insisted upon either in the briefs or in the argument, and we do not think it necessary to advert further to this contention. Sanchez v. United States, 216 U.S. 167, 30 S. Ct., 361, 54 L.Ed. 432; Taylor v. Beckham, 178 U.S. 548, 20 S. Ct., 890, 44 L.Ed. 1187; ser v. Hawkins, 44 Ohio St. 98, 5 N.E. , 228; Green v. State Civil service Commission, 90 Ohio St. 252, 107 N.E. , 531; Dunn v. State, 122 Ohio St. 431, 172 N.E. , 148; Growl v. City of Cleveland, 125 Ohio St. 455, 181 N.E. , 897, 84 A.L.B., 708; Goodrich v. Mitchell, 68 Kan. 765, 75 P. 1034, 64 L.R.A. 945.

Nor do we consider the statutes and civil service regulations involved an infringement upon the Fourteenth Amendment to the federal Constitution. Shaw v. City Council of MarshalItown, 131 Iowa 128, 104 N.W. 1121, 10 L.B.A. (N.S.), 825; Heim v. McCall, 239 U.S. 175, 60 L.Ed. 206, 36 S. Ct., 78; Hays v. State of Missouri, 120 U.S. 68, 7 S. Ct., 350, 30 L.Ed. 578; Magour v. Illinois Trust Co., 170 U.S, 283, 18 S. Ct., 594, 42 L.Ed. 1037.

We come, therefore, to the vital question in the case:

Is the preference accorded under Sections 486-10 and 486-13, General Code, and cognate sections, a violation of Article XV, Section 10 of the Constitution of Ohio?

Section 486-10, General Code, provides:

"All applicants for positions and places in the classified service shall be subject to examination which shall be public, and open to all, within certain limitations, to be determined by the commission, as to citizenship, residence, age, sex, experience, health, habit and moral character; provided, however, that any soldier, sailor, marine, members of the army nurse corps or red cross nurse who has served in the army, navy or hospital service of the United States in the war of the rebellion, the war with Spain, including the Philippine insurrection and the Chinese relief expedition, or from April 21, 1898 to July 4, 1902, or the war with the central powers of Europe between the dates of April 6th; 1917, and November 11th, 1918, who has been honorably discharged therefrom and is a resident of Ohio, may file with the civil service commission a certificate of service and honorable discharge, whereupon he shall receive additional credit given in the regular examination in which he receives a passing grade of twenty per cent. of his total grade. Such examination shall be practical in character and shall relate directly to those matters which will fairly test relative capacity of the person examined to discharge the particular duties of the position for which appointment is sought, and shall, when appropriate, include tests of physical qualifications, health and manual skill."

Section 486-13, General Code, contains similar provisions.

Article XV, Section 10 of the Ohio Constitution, reads:

"Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.

Under this provision, before any appointment or promotion in the civil service may be made, the authorities must ascertain: (a) the degree of the candidate's merit, and (b) the degree of his fitness.

The accepted canons of construction require that meaning be given to both of these words, and resort to the dictionary shows that their meanings are not identical. According to Webster "merit" used as a noun means: "due reward or punishment; the quality of deserving well or ill; desert." The original significance of the Latin root was to get a share. As a verb the word, "merit", means: "to earn by service or performance; to have a right to claim as a reward." The word, "fitness", means: "adapted to an end, object or design; prepared; ready." Synonyms given are "prepared", "qualified", "competent."

These qualities are to be ascertained as far as practicable by competitive examination. The qualifying phrase takes cognizance of the limitations of competitive examinations in determining qualifications for certain types of positions. Personal secretaryships, for example, demand suitable dispositions and temperaments which competitive examinations fail to reveal. For further example, positions in which fiduciary...