State Ex Rel v. Campell
| Decision Date | 01 July 1916 |
| Docket Number | 15267 |
| Citation | 94 Ohio St. 403,115 N.E. 29 |
| Parties | State, Ex Rel. Mcnamara, v. Campbell Et Al. |
| Court | Ohio Supreme Court |
Constitutional law - Date amendments effective - Not postponed by joint resolution of legislature, when - Section 1, Article XVI Constitution, controls - Eligibility of women to office Amended Section 4, Article Ky, Constitution - Effective when adopted by electors - Term of office - Section 20, Article 11, Constitution - Includes appointive officers - Chief matron of girls industrial school - Section 2101-1, General Code (103 O. L., 881) - Appointed by board of administration - Section 1842, General Code (102 O. L., 214) - Entitled to complete term - Civil service laws inapplicable, when - Approval of salary voucher by commission.
1. A provision in a joint resolution of the general assembly of Ohio, submitting to the electors of the state a proposed amendment to the constitution, that the same shall not go into effect until a time later than that fixed by Section 1 of Article XVI of the Constitution, is inoperative and void unless the proposition to postpone the taking effect of such proposed amendment beyond the time named in the constitution is also submitted to the electors of the state and adopted by a majority of those voting on the proposition.
2. The amendment to Section 4, Article XIV of the Constitution making women eligible to appointment as members of boards or officers of departments or institutions affecting or caring for women and children, became a part of the constitution when a majority of the electors of the state voting thereon adopted it, and war in full force and effect on the 23d day of December, 1913.
3. The term "officers," as used in Section 20, Article II of the Constitution, includes both appointive and elective officers.
4. Where a valid and lawful appointment was made by the Ohio board of administration, under the provisions of Section 2101-1, General Code (103 O. L., 881), and Section 1842 General code (102 O. L., 214), before the civil service laws of the state went into operation, the person appointed is entitled to hold such office for and during the legal term thereof unless such office is abolished.
5. The civil service laws of the state have no application to such officer, and she is entitled to he paid the salary attached to that office upon the approval of the Ohio board of administration, whether approved or not by the civil service commission of Ohio.
IN MANDAMUS.
On the 9th day of May, 1916, the relatrix, Margaret E. McNamara filed a petition in this court, invoking its original jurisdiction in mandamus, and asked that a writ issue commanding the defendants Z. B. Campbell and Samuel D. Webb, as members of the state civil service commission of Ohio, to certify the payroll of the girls industrial school for the month of April, 1916, including therein the salary of relatrix as chief matron of that institution, and commanding the defendant A. V. Donahey, as auditor of state, to issue his warrant in her favor upon the treasurer of state for the amount of her salary for that month.
It is averred in the petition that the relatrix was appointed chief matron of the girls industrial school on the 23d day of December, 1913; that on said day she qualified as such officer; that she has ever since continued to hold said position and discharge the duties thereof; that up until the 1st day of April, 1916, she has received the salary fixed by the Ohio board of administration for that service; that she is, and was at above-named times, a citizen of the state of Ohio; and that the girls industrial school is an institution established by the state involving the interests and care of women and children.
It is further averred that on the 15th day of March, 1916, the state civil service commission of Ohio certified the name of the relatrix, together with the names of three candidates, for the position of chief matron, but that the Ohio board of administration made no appointment from such list or otherwise; that she continued in her office and performed the duties thereof for the month of April, 1916, and prepared and certified as managing officer of the girls industrial school the payroll for April, 1916, including her own salary of $100 for that month, which payroll was approved by the board of administration on the 3d day of May, 1916; that all of said payroll was approved by the state civil service commission of Ohio except the item of her salary; and that the auditor of state on the 4th day of May, 1916, issued his warrant upon the treasurer of state for the amount certified to be due the officers and employees of the girls industrial school on said payroll except the sum of $100 due the relatrix, for which amount the auditor of state refused and still refuses to issue a warrant.
The defendant A. V. Donahey, as auditor of state, filed a general demurrer to this petition. The defendants Z. B. Campbell and Samuel D. Webb, as members of the state civil service commission of Ohio, filed an answer, in the first defense of which they admit that they are the duly qualified and acting members of the state civil service commission, that their codefendant, A. V. Donahey, is the duly elected and acting auditor of state, and that the payroll described in the petition was approved by them with the exception of the item named. They admit that the auditor of state refuses to issue a warrant covering this item, and deny each and every other allegation of the petition.
For a second defense they aver that the relatrix was appointed chief matron of the girls' industrial school on the 1st day of August, 1913; that thereafter she took a noncompetitive examination and passed the same with an average grade of 83.3 per cent.; that she continued in that position until the 31st day of August, 1915, when said appointment, as aforesaid made, became null and void by operation of law, and her tenure in said position under said appointment thereupon terminated and ended and the position of chief matron then and thereby became and was vacant; that on the 3d day of September, 1915, the Ohio board of administration reported her name to them, the state civil service commission, as a person holding a position in the classified service of the state, who had not passed a regular competitive examination and who had not been in the service of the state for seven years prior to the 1st day of January, 1915; that thereupon they certified to the Ohio board of administration that they were unable to furnish an eligible list from which a permanent appointment could be made, and authorized that board to fill the position by a provisional appointment until an eligible list could be furnished; and that thereupon said board on the 9th day of September, 1915, reported that it had determined to retain relatrix in the position of chief matron as the provisional appointee.
They aver that on the 4th day of March, 1916, they certified to the Ohio board of administration a list of the names of three persons who had passed a competitive examination and who were eligible for a permanent appointment to the position of chief matron, together with the name of relatrix; that on the 18th day of March, 1916, no action on said certificate having been reported, they certified to the board of administration another eligible list of names of three persons, two of whom had been certified on the prior list, together with that of relatrix, this list last certified being made necessary by the appointment to another position in the service of the state of a person whose name had been certified on the previous list; and that the Ohio board of administration never reported to them any action taken by it on the list so certified. The defendants further aver that in pursuance of law and by virtue of the power delegated to and vested in them they have adopted and promulgated Section 5 of Rule VI, which provides, among other things, that within 15 days from the date of the receipt of any certification the appointing officer shall make a report thereon to the civil service commission, and that a provisional appointment shall not be allowed to continue for more than 15 days after certification has been made from which to make a permanent appointment.
The defendants further aver that on the 27th day of April, 1916 they addressed a communication directing the attention of the board of administration to the fact that the certification aforesaid had been made and that no report thereon as re- quire by the rules of the Ohio state civil service commission had ever been received from said board, and that the payroll for the position of chief matron of said institution would no longer be approved by them until a permanent appointment to said position was made from the eligible list so as aforesaid certified to the board as required by law; that no reply was made by said board to said communication; and that on the 1st day of May, 1916, they addressed a further communication calling attention of said board to Section 5 of Rule VI promulgated by them and requesting a report to be made, but that no answer had been made by said...
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