text:
    The State, ex rel. Thomas, v. The Tuscarawas County Liquor Licensing Board et al.

      Liquor licenses — Renewals —Failure to appeal from order— Granting application but suspending certificate — Pending change of location — Appeal from refusal to reconsider action — County board sustained by state board — Mandamus—Sections 1261-46, 1261-53 and 1261-54, General Code (103 O. L., 229, 233)-

    (No. 15262
    —Decided July 1, 1916.)
    In Mandamus.

      Messrs. Shauck & Weinland and Messrs. Wilkin & Fernsell, for relator.

      Mr. Edward C. Turner, attorney general; Mr. A. O. Dickey and Mr. E. E. Lindsay, prosecuting attorney, for defendants.
   By the Court.

This is a proceeding in mandamus submitted to the court upon the pleadings and an agreed statement of facts.. The relator, Fred G. Thomas, was engaged in the saloon business at 530 West Front street in the city of New Philadelphia for more than two years prior to the 14th day of September, 1915, pursuant to a license theretofore duly granted and renewed by the Tuscarawas County Liquor Licensing Board, and continued in said business until the fourth Monday of November, 1915. On the 14th day of September, 1915, he filed with the Tuscarawas County Liquor Licensing Board an application for renewal of his saloon license for the year beginning the fourth Monday of November, 1915, the business, according to his application, to be carried on at the same location, 530 West Front street, New Philadelphia. On October 25, 1915, the county board announced a list of applicants successful in obtaining license certificates for the license year of 1915-1916. The name of relator did not appear in this list nor did it appear in an additional list announced on October 28, 1915. On November 2, 1915, there was a hearing before the county board on the application of relator, at which hearing he was present. According to the minutes of the board his application for a saloon license was granted, and he was then notified that his application would be granted but that the license certificate would be suspended until such time as he would move his saloon from its present location to a location within the business district of New Philadelphia. On November 22, 1915, a notification to the same effect was sent relator. On December 10, 1915, he with his attorney appeared before the county board and requested a hearing upon the suspension of his license certificate. On February 11, 1916, he filed an application with the board to reconsider the question of issuing him a saloon license to carry on business at the former location, 530 West Front street, New Philadelphia. Upon the hearing of this application the county board determined that it would not entertain the application and ordered the same dismissed. Thereupon, at the request of relator, a certified copy of the renewal application, dated September 14, 1915, a copy of all minutes of the proceedings in his case and a copy of his application for a reconsideration were transmitted to the state liquor licensing board. On February 25, 1916, a hearing was had before the state board in the matter of the appeal of the relator, who was represented by counsel, and the state board took the matter under consideration, and on March 21, 1916, the decision of the state board sustaining the action of the county board was received by the latter. The relator., in his petition asks that a writ of mandamus issue commanding the defendants to issue to him a certificate of renewal of license in accordance with his application filed September 14, 1915.

The relator in his application applied to the county liquor licensing board for a renewal of a saloon license and represented that the premises where the business of selling intoxicating liquors was to be carried on was 530 West Front street, New Philadelphia. When the county board on November 2, 1915, granted the application of re-, lator, but suspended his license certificate until he moved his saloon from 530 West Front street to a location within the business district of New Philadelphia, that in effect was a rejection of his application for a renewal license at his then location. Section 31 of the license law (Section 1261-46, General Code; 103 O. L., 229) provides that all decisions as to the rejection of applicants who shall have applied prior to the beginning of the license year shall be final on the fourth Monday in November following, at which time the licenses allowed shall be issued. Section 38 (Section 1261-53, General Code) provides that an appeal may be taken to the state board from all final decisions of the county board, with certain exceptions which are unimportant here. The provisions of Section 39 require the county board, within five days after personal notice of its final action to the applicant, to cause to be prepared a complete and true record of the proceedings, providing the applicant shall have requested the same within one day after the receipt of such notice. In the case under consideration the applicant, on November 22, 1915, being the fourth Monday in November, when the decision as to the rejection of the application became final, was notified of the final action of the board. He did not comply with the requirements of Section 39 and did not exercise his right to a plain and adequate remedy at law by way of appeal to the state board from the final decision of the county board. He cannot now resort to a proceeding in mandamus. After having failed to follow the requirements of the statute relating to an appeal, he made application to the county board for a rehear-, ing of his case. We find nothing in the liquor license law authorizing the county board to entertain an application for a rehearing after its decision has become final. .But assuming for the purposes of this case that such a proceeding is proper, when the application of the relator to reconsider the matter was denied by the county board, and the same was dismissed, and he then submitted his case to the state board on appeal, he was bound by its order. State, ex rel. Krauss, v. Lucas County Liquor Licensing Board, 93 Ohio St., 373.

Counsel for the relator question the right of the county liquor licensing board to refuse a license certificate upon the sole ground that the saloon is located in a residence district wherein the sale of intoxicating liquors has not been prohibited by law or by any petition, vote or other proceeding of the electors. But in view of our holding that the relator failed to avail himself of the remedy prescribed by law, it becomes unnecessary to pass upon this question.

Writ denied.

Nichols, C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., not participating.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Stange v. The City of Cleveland.

      Constitutional law — Eight-hour day on public contracts — Conflict of laws — Section 3, Article XVIII, Constitution, 1912 — Section 17-1, General Code (103 O. L., 854) ■ — Section 196, Charter of Cleveland — City ordinance of Cleveland — Criminal law.

    (No. 15114 —
    Decided July 1, 1916.)
    Error to the Court of Appeals of Cuyahoga county.
    The facts are stated in the opinion.

      Messrs.. Squire, Sanders & Dempsey and Mr. W. C. Boyle, for plaintiff in error.

      Mr. W. S. FitzGerald, director of law, and Mr. John N. Stockwell, for defendant in error.
   By the Court.

Plaintiff in error, Otto Stange, was convicted and sentenced in the municipal court of Cleveland for the violation of an ordinance of the city of Cleveland providing for the enforcement of the eight-hour day on public work.

In the municipal court a demurrer was filed to the affidavit upon which the plaintiff in error was prosecuted. The demurrer was overruled. After the judgment in the municipal court was entered it was affirmed, in proceedings in error, by the court of common pleas and the court of appeals of Cuyahoga county. We are asked to reverse the judgments below.

The ordinance provided that except in cases of extraordinary emergency not to exceed eight hours should constitute a day’s work, and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the city of Cleveland, whether done by contract or otherwise, and “it shall be unlawful for any person, corporation or association who shall employ or direct and control the services of such workmen to require or permit any of them to labor more than eight (8) hours in any calendar day or more than forty-eight (48) hours in any week except in cases of extraordinary emergency.”

It is contended that the ordinance is in conflict with Section 3 of Article XVIII of the Constitution, and that it is in conflict with the Constitution of the United States in that it deprives the citizen of liberty and property without due process of law and denies him the equal protection of the law.

The ordinance was passed October 13, 1914, and was effective 40 days thereafter under the charter of the city. The work done by the plaintiff in error was done pursuant to a contract with the city in the construction of a large filtration plant. The contract was made on the 30th of April, 1914.

On April 28, 1913, the general assembly passed an act of which the ordinance was substantially a copy. Section 3, however, of the statute provided “This act shall be in force and applicable to all contracts let on and after July 1, 1915.” (103 O. L., 854.)

It will be observed that the contract was lei April 30, 1914, the ordinance passed some six months later, October 13, 1914, and that at the ‘ time of making the contract the statute had already been passed but was applicable only to contracts let on and after July 1, 1915.

It is insisted that the ordinance is in conflict with the general law. Section 3, Article XVIII, of the Constitution, enables municipalities to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. The ordinance and the statute in question were passed in the exercise of the police power. The ordinance is a local police regulation applying only to the municipality in which it was passed, but if this local regulation conflicts with the general law it is invalid. Does the fact that the statute by its terms provides that it shall be in force and applicable to all contracts let on and after July 1, 1915, preclude the city from adopting the ordinance in question?

Plaintiff in error contends that the statute was in effect a declaration of public policy and made lawful a working-day of over eight hours on all contracts made prior to July 1, 1915. We cannot agree with this contention. The legislature has no power to declare a public policy in conflict with the constitution.

Section 37, Article II, of the Constitution, provides that “Except in cases of extraordinary emergencies, not to exceed eight hours shall constitute a day’s work, and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the state, or any political sub-division thereof, whether done by contract, or otherwise.”

This provision was not self-executing within the definition that a self-executing provision is one which supplies the rule or means by which the right given may be enforced or protected or by which a duty enjoined may be performed. But nevertheless, after the adoption of that provision in the constitution, the legislature was without power to affirmatively make lawful a working-day of more than eight hours.

Therefore the effect of the provision was the same as though the state had enacted no law as to such contracts until July 1, 1915, and the city was free to make such a local police regulation touching the subject as it saw fit. If, after the statute became effective, the ordinance should conflict in anywise with it, the ordinance of course must yield.

It is also claimed that the enforcement of the ordinance deprives defendant of liberty and property without due process of law and denies to him the equal protection of the law. The contract itself contained the following provision: “The contractor agrees that he will comply with the provisions of the labor laws of the City of Cleveland and the State of Ohio, particularly as outlined in Section 196 of the City Charter.” Section 196 of the city charter contains the same provisions as to eight-hour day on public work as are included in ■the statute and the ordinance above referred to. Therefore, if the things charged in the affidavit are true the defendant violated not only the ordinance but the constitutional provision referred to, the charter of the city and the express terms of his contract.

The parties when they made the contract must be held to have contemplated the express provision of the constitution, as well as the power of the state and the municipalities to enact reasonable police regulations in the interest of the public health and welfare. Holden v. Hardy, 169 U. S., 366, and The Steele, Hopkins & Meredith Co. v. Miller, 92 Ohio St., 115, 125.

Moreover in this case 'by the terms of the contract itself the parties thereto specifically bound themselves to observe the regulations covered by the ordinance complained of. Plaintiff in error does not present a situation which avoids the enforcement of the ordinance.

The judgments will be affirmed.

Judgments affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    The State, ex rel. The Davies Manufacturing Co., v. Donahey, Auditor of State.

      Automobile license-tags — Appropriation therefor and method of drawing money — Relate to current expenses — Not subject to referendum — Under Section ic, Article II, Constitution, 1912 — Open, competitive bids required — Section 6 of act of May 27> 1915 (iq6 O. L., 826).

    1. Section 6 of the appropriation act passed May 27, .1915 (106 O. L., 826), so far as the same applies to contracts made by the state for automobile license-tags and vouchers for payment thereunder, relates to the current expenses of the state government; and such section, including the condition therein provided that such vouchers must “show that competitive bids were secured,” went into immediate effect and was not subject to a referendum under Section lc, Article II of the Ohio Constitution.
    2. A license-tag contract, made subsequent to July 1, 1915, was controlled by said Section 6, which required that reasonable efforts be' made to secure open, competitive bids for the furnishing of such tags to the state.
    (No. 15198
    —Decided July 1, 1916.)

      In Mandamus.

      Messrs. McGhee, Davis & Boulger, for relator.

      Mr. Edward C. Turner, attorney general, and Mr. Charles Follett, for defendant.
   By the Court.

This is an action in mandamus brought by the relator against the auditor of state praying for a writ commanding him to. issue his warrant upon the state treasurer in favor of the relator for the sum of $4,649.73, claimed to be due for automobile tags furnished in pursuance of a contract entered into between the relator and the secretary of state. This contract was entered into on September 16, 1915. On August 16, 1915, a written proposal was made by the relator to furnish automobile tags to the state, according to the specifications prepared by the secretary of state, for the sum of 19^ cents per pair, and on the 15th day of September, 1915, the relator executed a bond to the state guaranteeing the faithful performance of such proposal. The bond in question referred to the proposal as a “bid” made by the relator for the furnishing of such tags.

It appears that the contract in question was sublet by the relator to the New York Metal Ceiling Company who agreed to furnish the tags to the relator for the sum of 15 cents per pair. Acting in pursuance of the contract relator furnished automobile tags to the state to the value of $21,-661.66, and on the 4th day of March, 1916, the secretary of state issued his voucher in favor of the relator for that sum. Respondent refusing tó pay the same but acknowledging that the sum of $17,011.93 representing the subcontract price of 15 cents was just and reasonable, an amicable arrangement was entered into between him and the secretary of state by virtue of which in order to secure future delivery of the automobile tags required by the state he agreed, pending the determination of the validity of the original contract, to issue his warrant for the sum of $17,011.93 and for like vouchers thereafter presented for tags delivered to the state at a price of 15 cents. The writ is therefore asked for the excess of $4,649.73, representing the difference in price between the two contracts entered into by the relator as aforesaid.

Section 6 of the appropriation act (106 Ohio Laws, 826) provides:

“The monies appropriated in section's 2 and 3 of this act shall be drawn upon a requisition or voucher presented to the auditor, approved by the head of the department * * *. Such requisitions or vouchers shall set forth in itemized form and specify the classification of the service rendered, material furnished, or expenses incurred, and date of purchase or time of service, and show that competitive bids were secured, unless otherwise 'provided by law * * * and it shall be the duty of the auditor of state to see that these provisions are complied with.1”

The appropriation act took effect July 1, 1915, but was filed in the office of the secretary of- state on June 5, 1915.

The contention is made that the contract of the secretary of state made in September, 1915, is not subject to Section 6 of the appropriation act, for the reason that the procuring of competitive bids under its provisions was an “item in such law appropriating money,” which subjected it to a referendum under the referendum provisions of the Ohio constitution; that it did not go into immediate effect but remained inchoate until the expiration of 90 days after the same was filed in the office of the secretary of state, and therefore did not apply to the contract made prior thereto.

While it is true that, such referendum provisions require that any item in such law appropriating money may be submitted to the electors of the state for their approval, this requirement does not comprehend its application to the condition requiring competitive bids in an appropriation relating to the current expenses of the state government and state institutions.

Section Id of Article II of the Ohio Constitution specifically provides that appropriations for such current expenses shall go into immediate effect. The'appropriation in question was an appropriation for the current expenses of the state government, and the limitation with reference to competitive bidding was simply a condition under which an appropriation should be drawn. The referendum provision applying to items for the appropriation of money does not apply to appropriations for current expenses.

In the present case there was no such competitive bidding as contemplated by law. While it is true that there are no positive statutory requirements relating to the preparation of specifications and the employment of specific methods by the state to secure competitive bidding, still reasonable efforts to secure such competitive bidding must be made by the secretary of state in order to comply with the provisions of the appropriation act referred to, and if the same is not done the state auditor has power to refuse to honor vouchers for the payment of money under the provisions of Section 6 of the act. The competition required must be open to everyone, as it was evidently the policy of the statute to re^ quire that current requirements should be obtained at the lowest and best price for the same quality of work and materials.

In the present case the secretary of state frankly stated that he acted under the belief that Section 6 of the act did not require competitive bidding, and it may be conceded that there was some legal doubt as to the potency of Section 6 to justify such belief. While there was a limited competition in the procurement of the tag contract, we are convinced that open, competitive bidding was not resorted to, but that it was unduly restricted. It should have been more general and pronounced and a wider opportunity therefor presented. And since it was the duty of the auditor of state, under the section of the law noted, to scrutinize vouchers of this character, it is the opinion of the court that under the facts stated there were sufficient grounds to justify him in his refusal to honor the voucher in question.

For the reasons stated the writ is denied.

Writ denied.

Nichols* C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur.

Wanamaker, J., not participating.


author: Donahue, J.

text:
    The State, ex rel. Chapman, v. Lesser, Director of Public Safety.

      Civil service■ — Municipal — Removals — Sufficiency of charges — Judgment of commission final, when — Rescission of order and reinstatement of officer — After another appointed from eligible list — Validity of appointment from incomplete eligible list — Reinstatement of removed officer — Section 486-16, General Code (103 O. L., 706), inapplicable, when.

    1. A charge that an officer collected money belonging to a city and failed, neglected and refused to pay the same into the city treasury, charges gross neglect of duty on the part of the officer and is a reasonable and just cause for his removal from office.
    2. Where the jurisdiction of a municipal civil service commission is properly invoked by the temporary suspension of an officer by the mayor and the filing, by the mayor with the commission, of any of the charges named in the statute, which charges if true would authorize a dismissal from service, the judgment of the civil service commission is final.
    3. Where the charges filed by the mayor are sustained upon hearing by the civil service commission, and that commission orders that the suspension be made permanent, and later directs that a civil service examination be held to determine the fitness of applicants for that position, and in pursuance of such order a civil service examination is held and a list of persons eligible to the appointment is submitted to the mayor, who thereupon permanently appoints a person named in the eligible list, the jurisdiction of the civil service commission is exhausted and it has no power thereafter, upon motion of the deposed officer or otherwise, to open up and rescind its former order and reinstate him in the office already filled in pursuance of civil service requirements.
    4. The appointing authority may demand that the civil service commission certify a list containing at least three names, before making an appointment, but where a list is submitted containing less than three names and the appointing authority accepts the list and makes the appointment, such appointment is valid.
    5. The second paragraph of Section 486-16, General Code, has no application to an officer separated from the service by an order of the civil service commission upon charges of delinquency or misconduct on his part filed by the mayor, where such civil service commission has found -and declared that any one or more of such charges are true, and upon such finding orders that his suspension be made permanent.
    (No. 15146 —
    Decided July 1, 1916.)
    In Mandamus.
    This cause was submitted to this court upon the pleadings and an agreed statement of facts, from which the following appears:
    On October 14, 1912, Frederick W. Bertsch was appointed chief of the fire department of the city of Jackson, Ohio, and continued to perform the duties of that office up until the 15th day of June, 1915, at which date the mayor of Jackson suspended him from office and filed with the civil service commission of that city his reason for so doing.

      On the 21st day of June, 1915, the civil service commission heard the charges against Bertsch and ordered that the suspension be made permanent; and on the 10th day of July, 1915, notified Bertsch in writing of the order so made.
    On the 9th day of August, 1915, there was entered on the minutes of the civil service commission the following finding with reference to the charges filed against Bertsch:
    “We find:
    “Under charge No. 1. Failure to pay over to the city money collected from the Superior Colliery Co. for the use of fire engine at Superior No. 9 Mine last August (1914). By the admission of counsel for the defense, allowed to be written into the records it was proven that F. W. Bertsch rendered a statement to the Superior Colliery Co. for services rendered at the fire at Superior No. 9 at the time the city equipment was there.
    “F. W. Bertsch admitted that on said occasion he used the fire engine and Fire Hose of the City of Jackson for 3 days at said mine. Mr. Bertsch further testified that he received the sum of $200 from the Superior Colliery Co. for said services and that no part of said sum of $200 was turned into the treasury of the City of Jackson, nor paid to any proper authority of said city.
    “Safety Director Harry McGuire testified that F. W. Bertsch took the City Fire Equipment and went to No. 9 mine by his orders.
    “Wm. Nail, Driver of the City Fire Department testified that he was ordered by Fire Chief Bertsch to go with the equipment — Fire Engine and Reel to said No. 9 Mine in Aug. 1914, and assisted in using the same for 3 days.
    “Mr. Nail further testified that ‘he was supposed to be working for the City of Jackson at that time’, and that Mr. Bertsch gave him $65.00 in January, 1915, and when asked why he received the money, answered, ‘It was given to me; that’s all I know.’
    “Mr. Nail further testified that he was paid in full for every day in Aug. 1914, by the City of Jackson.
    “We find from the evidence that Mr. Bertsch as Fire Chief and Mr. Nail as Fireman were both paid their regular salaries in full for the month of August, 1914, including the time they were out of the city at the No. 9 Mine and it seems clear they were in the service of and acting in their official capacity for the City of Jackson, or they would not have charged for nor accepted pay from the City of Jackson for the days they were out of the City and engaged at the No. Nine (9) Mine.
    “We cannot conclude that Mr. Bertsch was acting in his individual capacity. He left the city under directions of the Director of Public Safety, who has charge of the Fire Dept. He was Chief of the Dept., at the time and continued to act as Chief on his return. He ordered one of his subordinates to accompany and assist him, acting throughout as Chief of the Fire Dept, and we cannot concede that Mr. Bertsch can lay aside his official capacity and resume it at' will.
    “We assume that when the Chief of the Fire Dept., leaves the Engine house with the fire fighting equipment, he is in charge as Chief until his return or until he turns it over to his successor.
    “We further find from the evidence that the call for aid was not made by a sister City in a position to reciprocate should circumstances require a return of the favor, but the call came from an employe of a private corporation.
    “The fire was not in the City of Wellston, but in a coal mine eight or nine miles beyond that City and 18 or 20 miles from Jackson.
    “No lives were in danger and we are not sure that Dept, should have responded by taking the engine and reel and a fireman whose duties required his "presence daily at the engine house, away from the City.
    “No substitute was provided for an Assistant Chief or for fireman Nail, and the fire Dept, was short two men during the three days they were absent, weakening the fire fighting force, and putting in jeopardy the lives and property of the citizens of this City. There is at least one well-known instance in which the Fire Dept, of this city refused to cross the corporation line in response to a call for aid,- and a valuable dwelling was burned to the ground.
    “But since by the order of the Director of Public Safety, the Fire Dept, did respond to the call of an employe of the Coal Company as aforesaid, we conclude that a part if not all the money received by Mr. Bertsch as a recompense for the use of Engine, Reel, and Services rendered, rightfully belongs to the City of Jackson, and should have been paid into the City Treasury in the regular way according to law.
    “In conclusion, therefore, we decide that the Suspension of F. W. Bertsch should be made permanent.
    “Upon the second charge, Failure to attend fires, we find such failure was not of frequent occurrence, and the charge is not sustained by the evidence.
    “Upon the third charge, ‘Failure to provide proper Assistant’ we pass over for the reason it has not been clearly shown what constitutes a proper assistant, Chief, under the Statutes. In this particular instance, we believe that since the Chief and fireman left the City by order of the Director of Public Safety, he, the Director of Public Safety, should have provided a proper assistant Chief and a substitute Fireman to take the place of the places thus made vacant, by his order.
    “No such provision was made, and the fire Dept, was short two men during their absent [absence].
    “The Fourth charge — Failure to get permission to leave the City, from the proper authority, — is not sustained by the evidence.
    “The Fifth charge — ‘Neglect of Duty’ is not specific, and is in a measure included in the first charge.
    “The Sixth charge — Incompetence, is not sustained by the evidence.
    “The Seventh Charge — Other good and sufficient reasons — is not sustained by the evidence.”
    On August 3, 1915, Bertsch filed with the civil service commission of the city of Jackson a motion asking it to reconsider its former action, and to reverse and set aside its finding.
    No notice was sent to Bertsch as to any action taken by the civil service commission upon his motion to reconsider his case, but on the 20th day of September, 1915, that commission ordered a civil service examination to be held for chief of the fire department. Notice of this examination was published, and on the 20th day of November, 1915, the examination was held. Edward Chapman took this examination and received a grade of 90.7, and on the 18th day of December, 1915, the mayor appointed Edward Chapman as fire chief of the city of Jackson and notified the civil service commission in writing that he had made such appointment.
    On the 15th day of June, 1915, there being no eligible list for the position of chief of the fire department, the mayor appointed Edward Chapman to that position without a noncompetitive examination, and Chapman thereupon entered upon the duties of chief of the fire department of the city of Jackson, and from that date up to the 25th day of January, 1916, continued to perform such duties, receiving the salary of the chief of the fire department, all of the pay-rolls upon which his name appeared as chief of the fire department being approved by the civil service commission except the pay-rolls for June and July, 1915, no payrolls being approved by the commission until subsequent to August 12, 1915, and the salary as chief of the fire department being paid to Edward Chapman from June 15th before approval of said payroll by said commission.
    On the 17th day of January, 1916, Fred W. Bertsch presented a second application to the municipal civil service commission of the city of Jackson to reverse and set aside its finding, and asking for reinstatement, which application reads as follows:
    “To the Civil Service Commission of the City
    of Jackson,
    “Jackson, Ohio.

    “Gentlemen : — The undersigned, F. W. Bertsch, respectfully requests you to reconsider the action of the Civil Service Board, as constituted when said action was taken, in permanently suspending him as Chief of the Fire Department of the City of Jackson, Ohio, and to reverse, rescind and set aside the finding then made, and for his reinstatement as Chief of said Fire Department, for the reasons following, to-wit: —
    “First: Said Commission was without jurisdiction in the premises.
    “Second: Charge No. 1, upon which said finding was based, was not sustained by the evidence adduced at the hearing.
    “Third: Said Charge No. 1 does not set forth a violation, either in letter or in spirit, of either the State or municipal Civil Service laws or rules, or of the General Code of Ohio.
    “Fourth: The action of the Commission was illegal, and was itself a violation of the Civil Service laws and rules of the City of Jackson, and of the State of Ohio.
    “Respectfully yours,
    “F. W. Bertsch,
    “By Charles H. Jones,

      “Attorney.”

    And the civil service commission on the 24th day of Jánuary, 1916, made and entered the following order:
    “Jackson, Ohio, January 24, 1916.

    “The Civil Service Commission of the City of Jackson, Ohio, met at the office of the Director of Public Service, pursuant to the adjournment of January 20th. Members present: Keltemback, Sullivan and Stevenson.
    “The commission took up for further consideration the application of F. W. Bertsch for reinstatement as chief of the fire department of the City of Jackson, Ohio, said Bertsch being present in person and by counsel.
    “After hearing the argument of counsel, and upon consideration of the evidence introduced at the hearing of the charges against said Bertsch, and upon consideration of the investigation and report in the matter, made and filed by the State Civil Service Commission of Ohio, and the recommendation of said commission, this Commission is of the opinion, and so finds, that the Civil Service Commission of the City, at the time of the hearing of the charges preferred against said Bertsch, had no jurisdiction to hear the same, and that the charge on which said Commission made his suspension permanent was not sustained by the evidence adduced; that said charge, even if proven, did not constitute a violation of the civil service rules or laws of the City of Jackson, or of the State of Ohio, and that the action of said commission in ordering F. W. Bertsch permanently suspended was wholly illegal, void and unauthorized, and said action is therefore reversed, rescinded and set aside.
    “The Commission further finds and declares that the appointment of Edward Chapman as Chief of the fire department, following the action of said Commission, was illegal and unauthorized.
    “The Commission therefore orders that said F. W. Bertsch be, and he is hereby, reinstated as Chief of the Fire Department of the City of Jackson, Ohio, and restored to all things he has lost by reason of the aforesaid action of the Commission, his reinstatement to take effect as of the date of his suspension, to-wit: June 15th, 1915.
    “It is further ordered that the Secretary notify the Director of Public Safety, and Edward Chapman of this action of the Commission.”
    The commission issued this order to Arthur Lesser, director of public safety, directing him to reinstate F. W. Bertsch as chief of the city fire department as of date June 15, 1915.
    Thereupon Bertsch took possession and entered into control of the property and paraphernalia of the fire department and assumed to act as its chief, and the relator also attended fires and claimed to be the chief. Bertsch never took a competitive examination under civil service for the position of fire chief, but did on June 19, 1913, qualify by taking a noncompetitive examination. .Bertsch from June 15, 1915, until January 25, 1916, did not interfere in any way with the relator while in the performance of the duties connected with chief of the fire department, and did not perform any of the duties of such chief, nor did he institute any proceedings in court to obtain reinstatement in said position or to compel the removal of Chapman.
    The relator prays for a peremptory writ commanding the director of public safety to place the relator’s name on the official record of the department of public safety as chief of the fire department of the city of Jackson, Ohio, commanding him to place his name on the pay-roll of said department, to certify such pay-roll to the proper disbursing officer for payment to the relator of his official salary as chief of the fire department of the said city of Jackson, Ohio, and to issue orders requiring the members of that department to recognize the relator as chief and accept from him official orders issued in his official capacity; and for such other and further relief as may be proper.

      Messrs. McGhee, Davis & Boulger, for relator.

      Mr. Benner Jones and Messrs. Willis■ & Jones, for defendant.
   Donahue, J.

The first question presented by the record in this case is as to the validity of the order of the civil service commission of the city of Jackson, Ohio, permanently suspending Frederick W. Bertsch from the office of chief of the fire department of that city.

On the 15th day of June, 1915, the mayor of Jackson suspended Mr. Bertsch from office and forthwith certified that fact, together with the causes for such suspension, to the civil service commission, and that commission within five days from the date of the receipt of the charges proceeded to hear the same and rendered a final judgment thereon, ordering that the suspension of Bertsch be made permanent.

There is no complaint made as to the regularity of the proceedings, but it is claimed that the charge on which Bertsch was permanently suspended is not included within the terms of the statute authorizing the mayor to suspend the chief of the fire department, and that the civil service commission has no authority to make the suspension permanent upon any charge except such charge as would authorize the mayor to suspend.

Charge No. 1, which was sustained by the civil service commission upon the evidence, is a charge of gross neglect of duty, whether so designated or not. The commission in its finding upon the fifth charge, “neglect of duty,” found that “in a measure, the first charge included the fifth;” but even if the commission had found that the first charge did not include gross neglect of duty the fact would still remain that that charge comes within the meaning of the term as used in the statute, and therefore authorized the permanent suspension of the chief of the fire department.

The civil service commission also found “the seventh charge — other good and sufficient reasons — is not sustained by the evidence,” but it is very clear that if charge No. 1 does not come within the meaning of the term “gross neglect of duty,” as used in the statute, it does come within the term “any other reasonable and just cause.”

The mere failure of the civil service commission to recognize that fact does not invalidate its judgment. The commission having found the facts in reference to the charges filed against Mr. Bertsch, it is the province of the court to determine whether the facts so found constitute any legal ground for the removal of the officer. The conclusion necessarily follows that the suspension by the mayor was legal, for the reasons stated in the charges; that the judgment of the civil service commission sustaining these charges and ordering that the suspension be made permanent was a valid and final judgment; and that there then became and was a vacancy in the office of chief of the fire department of the city of Jackson.

If it be conceded that the civil service commission has authority upon motion to rescind and set aside any final judgment made by it, it is evident that in this case it refused to do so, although perhaps no formal order was made to that effect.

The motion of Bertsch to reconsider and reverse and set aside its findings was filed with the commission on the 3d day of August, 1915, and on the 20th day of September, 1915, the commission ordered a civil service examination to be held for chief of the fire department. This was a declaration by the commission that it refused to rescind its orders, and that there was then a vacancy in the position of chief of the fire department, to be filled according to law.

This examination was held, and the relator took this examination, receiving a grade of 90.7. His name was certified to the mayor, who on the 18th day of December, 1915, appointed him as fire chief of the city of Jackson, and notified the civil service commission in writing that he had made such appointment.

This exhausted the jurisdiction of the mayor and the civil service commission, and closed the transaction so far as they were concerned.

It is undoubtedly the duty of the civil service commission to certify a list containing the names of at least three persons eligible to appointment, where that number of persons have taken the examination and received the minimum grade fixed by the commission, and it is perhaps true that the appointing authority may demand that three names shall be certified to it upon an eligible list before it is required to make an appointment, even if further examinations are necessary to be held in order to secure such a list, yet it is not necessary to the validity of an appointment to require such a list to be certified.

The appointment of Chapman was a legal and valid appointment, and there was no vacancy in that office when the second notice of Bertsch was filed with the civil service commission.

While it is of no legal importance, yet it is apparent that Bertsch did not rely upon his motion filed August 3, 1915, but on the 7th day of January, 1916, filed a new and separate motion with the then civil service commission of the city, asking that the final judgment against him be rescinded, because the commission was without jurisdiction, because its finding was not sustained by the evidence, because charge No. 1 did not constitute a violation of the state or municipal civil service laws or rules, or of the General Code of Ohio, and because the action of the commission was illegal.

It was this motion that was heard by the civil service commission on the 24th day of January, 1916, and an order made reinstating him as chief of the fire department, notwithstanding the city of Jackson then had a chief of the fire department duly and legally appointed under civil service rules.

Certainly the civil service laws of this state do not justify such “fast and loose” proceedings on the part of the civil service commission. If this commission had sustained the first motion of Bertsch, before a permanent appointment had been made by the mayor of the city under its authority and direction, this court would probably not interfere notwithstanding the statute provides that the commission’s judgment upon the charges filed by the mayor on suspending an officer shall be final; but certainly its jurisdiction is exhausted when it overrules this motion, proceeds to hold an examination and certifies to the mayor a list of persons eligible to be appointed, which list the mayor accepts, although it contains but one name, and makes an appointment therefrom.

If, after that has been done, the same or a subsequent civil service commission can rescind the original order permanently suspending the officer, and reinstate him, then by the same course of reasoning it can a few months later rescind its order rescinding the original order, and so on indefinitely, to the hurt and final destruction of the public service. Nor can this proceeding be justified under the provisions of the civil service laws, Section 486-16, General Code (103 O. L., 706), for that section expressly provides that the person must be separated from the service without delinquency or misconduct on his part, and that he may be reinstated within one year from the date of such separation to a vacancy in the same or similar office or position in the same department.

The chief of the fire department was separated from the service on account of delinquency and misconduct on his part as found by the civil service commission on the hearing of the charges filed against him by the mayor, and its judgment in that respect is final. At the time the civil service commission attempted to reinstate him in office there was no vacancy in the same and therefore he could not be reinstated, for the rights of the relator had then intervened. The relator having been lawfully appointed is entitled to hold that office until he is lawfully removed.

Writ allowed.

Nichols, C. J., Johnson, Wanamaker, New-' man and Matthias, JJ., concur.

Jones, J., not participating.


author: Newman, J. Matthias, J.,

text:
    The State, ex rel. McNamara, v. Campbell et al.

      JConstitutional law — Date amendments effective — Not postponed by joint resolution of legislature, when — Section i, Article XVI, Constitution, controls — Eligibility of women to office — 'Amended Section 4, Article XV, Constitution — Effective when adopted by electors — Term of office — Section 20, Article II, 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 was 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 be 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.
    (No. 15267
    —Decided July 1, 1916.)
    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 pay-roll 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 pay-roll was approved by the board of administration on the 3d day of May, 1916; that all of said pay-roll 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 employes of the girls’ industrial school on said pay-roll 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 á 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 pay-roll 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 required by the rules of the Ohio state civil service commission had ever been received from said board, and that the pay-roll 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 board to said last-named communication.
    The relatrix filed a general demurrer to this answer, and this cause is submitted to the court upon that demurrer and upon the demurrer filed by the auditor of state to the petition.

      Mr. George B. Okey and Mr. John A. Shauck, for relatrix.

      Mr. Edward C. Turner, attorney general, and Mr. William H. Middleton, for defendants.
   Newman, J.

The demurrer of the relatrix to the separate answer of the defendants Z. B. Campbell and Samuel D. Webb, as members of the state civil service commission of Ohio, and the demurrer of the defendant A. V. Dqnahey, auditor of state, to the petition, search the whole record of this case. The first question presented is whether the petition contains facts sufficient to constitute a cause of action. According to the allegations of the petition the relatrix on the 23d day of December, 1913, was appointed chief matron of the girls’ industrial school by the Ohio board of administration and her salary was fixed at the sum of $1,200 per year, which was approved by the governor. On the same day she qualified, entered upon her duties as chief matron, and has ever since continued to hold and occupy said position and discharge the duties thereof. The board of administration has not made an appointment of a successor to the relatrix, either from a certified list or otherwise. She performed her duties during the month of April, 1916, and as managing officer prepared and certified on the 30th day of April, 1916, the payroll of the institution, which was approved by the board of administration. The state civil service commission approved this pay-roll except as to the item of her salary. The auditor of state issued his warrant for the amounts certified to be due the officers and employes of the institution upon this pay-roll, except the sum of $100 due relatrix. It is also averred in the petition that at the date of her appointment by the board of administration she was 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.

Section 2101-1, General Code (103 O. L., 881), passed April 28, 1913, reads: “The Ohio board of administration shall appoint a chief matron who shall perform such duties as may be assigned to her by the Ohio board of administration relative to said institution.” The' general assembly in the enactment of Section 1842, General Code, fixed the term of the chief officer of this institution at four years, unless removed for want of moral character, incompefency, neglect of duty or malfeasance, after opportunity to be heard, and provided for her salary. Section 2102 et seq., General Code, prescribes the duties of the chief matron. It is conceded, however, by counsel for the defendants that the position is an office and the occupant is an officer.

Section 20, Article II of the Constitution of Ohio, is as follows: “The general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.”

. It is the contention of counsel for the defendants that this constitutional provision was mainly intended to provide authority for fixing the terms of elective officers. Both appointive and elective officers are recognized by the constitution, but the section we have quoted makes no distinction between the two classes and it must follow that it includes both.

But it is urged that the relatrix could not avail herself of the protection of the constitutional amendment submitted to and adopted by a majority of the electors at the November election, 1913, making women eligible to appointment to the position in question, because that amendment did not become a part of the constitution until the 1st day of January, 1914. Section 1 of Article XVI of the Constitution authorizes the general assembly to propose amendments to the constitution. It contains this language: “If the majority of the electors voting- on the same shall adopt such amendments the same shall become a part of the constitution.” It is true that in the resolution of the general assembly (103 O. L., 992), under which the amendment under consideration was submitted to the electors, it was provided that if a majority of the electors voting on the amendment should adopt the same it should become a part of the constitution on and after the 1st day of January, 1914. There is nothing in the constitution which authorizes such a postponement on the part of the general assembly. The constitution is positive in its terms and provides that the amendment shall become a part of the constitution when a majority of the electors voting on the same shall adopt it. The time when an amendment is to become effective can be submitted to the electors, as in the case of the amendments of 1912 wherein it was expressly provided when they should go into effect, but in the case under consideration all that was submitted to the people was: “Article XV, Section 4. Eligibility of women to appointment as members of boards of, or positions in, department and institutions affecting, or caring for, women and children.” In some of the states the time when an amendment shall go into effect is postponed by the constitution to a'date later than its adoption, as in the state of New York where it is provided that an amendment shall become a part of the constitution from and after the 1st day of January next after its approval. There is nothing in the constitution of this state postponing the operation of an amendment and it cannot be postponed unless the proposition to postpone is submitted to the electors and is adopted by a majority of thosé voting thereon. So it is clear to us that the relatrix was eligible to appointment to the office on the 23 d day of December, 1913.

It is the contention of counsel for the defendants that relatrix is confronted by the provisions of the first civil service act (103 O. L., 698), which went into effect on the 1st day of January, 1914. It is not insisted, however, nor can it be successfully claimed, that this act abolished the office of chief matron’ of the girls’ industrial school. Section 2 of this civil service act provides that on and after January 1, 1914, appointments to and promotions in the civil service of the state and the counties, cities and city school districts thereof shall be made only according to merit and fitness to be ascertained as far as practicable by examination. At the time this law became effective the relatrix had been appointed and was the legal incumbent of an office which had been fixed by statute for a term of four years, and we are of the opinion that the civil service law could not disturb her in her office or affect this particular office until the end of the term for which she was appointed, unless the office should be abolished. For the reasons we have given the petition is good on demurrer.

The answer admits that relatrix was appointed on the 1st day of August, 1913. It is to be presumed that in the enactment of Section 2101-1, General Code, which authorized her appointment as chief matron, there was a valid and constitutional exercise of legislative power. The statute was valid until there was a judicial determination to the contrary. No objection was ever made to her continuing in the position, upon the ground that the statute under which she was appointed was unconstitutional. If this statute was subject to challenge on the ground of unconstitutionality she nevertheless continued in office without objection, and when the constitutional objection was removed by the adoption of the amendment we have been considering her appointment was certainly validated.

It is alleged in the answer that she took a noncompetitive examination and that she continued in the position of chief matron until the 31st day of August, 1915, when said appointment became null and void by operation of law, and that after-wards she was authorized by the board of administration to hold the position as a provisional employe. We think these facts are immaterial and irrelevant in view of our holding that the provisions of the civil service law did not apply to the case of relatrix. Her tenure of office is referable to her appointment in 1913.

In view of the fact, therefore, that relatrix was duly and legally appointed to this office for a term of four years at a fixed salary, before the civil service laws of the state became effective, she is entitled, without the approval of the civil service commission of the state, to that salary during the term of office and until a successor is lawfully appointed and qualified. We do not see upon what theory the civil service commission has anything to do with this office until the end of the term of relatrix, or unless the same becomes vacant. For this reason the members of the civil service commission are not proper parties to this proceeding and cannot be required to approve the item of her salary, but it is the duty of the auditor of state to issue a warrant in her favor upon the treasurer d'f state for her salary when approved by the Ohio board of administration. The members of the state civil service commission are therefore dismissed from this proceeding and a peremptory writ in mandamus is allowed against the auditor of state.

Writ allowed.

Nichols, C. J., Johnson and Donahue, JJ., concur.

Wanamaker, J., concurs in the judgment.

Matthias, J.,

dissenting. I cannot concur in the judgment in this case. While assenting to the general rule stated in the several propositions of the syllabus, the facts of this case are such, in my opinion, as to exempt it from the operation of the rule stated in the fourth and fifth propositions thereof.

The majority regard the averments of the answer as immaterial in view of the conclusion that the civil service law cannot apply to the case of the relatrix. .Assuming the correctness of the conclusion of the majority as to the sufficiency of the petition, I cannot agree that the averments of the answer may be disregarded. The substance of the answer is quite fully set out in the statement of facts preceding the majority opinion and need not be here repeated.

The first civil service law which in any mknner affected the position here in question became operative August 10, 1913, ten days subsequent to the appointment of the relatrix. Some time thereafter, the date not being stated in the answer, ■ she took a noncompetitive examination under the provisions of Section 486-10, General Code (103 O. L., 703), which she successfully passed, receiving an average grade of 83.3, knd continued in her position as a civil service appointee. The pleading does not disclose whether the noncompetitive examination, as a result of which th'e relatrix entered the classified service, was taken before or after the adoption of the amendment to the constitution, which it is now held validated her appointment as chief matron, but it is quite clear that she continually and consistently treated her tenure of office as being under the civil service and that she sought and secured all the rights and benefits of the laws, rules and regulations governing the classified service.

On September 9, 1915, the Ohio board of administration announced its conclusion to retain the relatrix in the position of chief matron as a provisional appointee, pending the certification of an eligible list from which a permanent appointment could be made, and on March 4, 1916, when the names of persons who were eligible for permanent appointment to said position were certified, the name of the relatrix, under the provisions of the statute, the benefits of which she had sought and secured, was certified along with the list of three persons who had passed a competitive examination. From the time the relatrix voluntarily entered the classified service, vouchers for her pay had been submitted to, and had received the approval of, the state civil service commission, the authority of that board being at no time questioned until the bringing of this suit. The relatrix voluntarily placed herself in the classified service, thereby seeking and receiving its benefits, and she should not be permitted to shift her position and again claim tenure under an appointment for a fixed term.

Jones, J., concurs in the dissenting opinion.


text:
    Settle et al., Partners, v. The Public Utilities Commission of Ohio.

      Public utilities — Railroads — Lumber rates — Commission’s orders conclusive, when — Scope of review by courts — Order not unlawful or unreasonable, when.

    (No. 15145
    —Decided July 1, 1916.)
    Error to the Public Utilities Commission.

      Mr. Harry C. Barnes, for plaintiffs in error.

      Mr. Freeman T. Eagleson; Mr. Edward Barton and Mr. William A. Eggers, for defendant in error.
   By the Court.

On February 1, 1915, plaintiffs in error, W. H. Settle and George W. Clephane, partners doing business as W. H. Settle & Co., filed a complaint with the public utilities commission of Ohio against The Baltimore & Ohio Southwestern Railroad Company, in which they attacked the rate charged by the railroad company for the transportation of lumber from Oakley station, Cincinnati, Ohio, to Madisonville station, Cincinnati, Ohio. The matter was heard upon the complaint, the answer of the railroad company and the evidence. The rate for the transportation of lumber from Oakley to Madisonville, charged by the railroad company prior to November 16, 1914, was one cent per one hundred pounds. On November 16, 1914, the rate was increased to 3.7 cents per one hundred pounds. On January 14, 1915, it was reduced to 3.2 cents per one hundred pounds, which last-named rate was in effect at the time of the filing of the complaint. The distance from Oakley to Madisonville is 2.4 miles, and the commission found that the charge for transporting lumber less than 10 miles should not exceed 2.5 cents per one hundred pounds and this was found to be a reasonable rate. It was ordered that the railroad company be directed and required to cease and desist from charging, and collecting said rate of 3.2 cents per one hundred pounds for the transportation of lumber between Oakley and Madisonville and to substitute therefor a rate not to exceed 2.5 cents per one hundred pounds and that a tariff be published and filed in accordance therewith. This order was made on the 7th day of April, 1915, and the railroad company in compliance therewith established a rate on lumber in carloads from Oakley to Madisonville of 2.5 cents per one hundred pounds, effective May 20, 1915. Thereafter, on the 21st day of May, 1915, plaintiffs in error filed another complaint with the public utilities commission against this railroad company, in which it was claimed that the rate of 2.5 cents per one hundred pounds and all other rates and charges maintained and charged by the company for the transportation of lumber in carloads from Oakley to Madisonville since November 16, 1914, were and had been unjust and unreasonable and discriminatory, and subjected plaintiffs in error, the locality of Madisonville, and the traffic in question, to an undue and unreasonable prejudice and disadvantage. The prayer of the complaint was that the commission make an order commanding the railroad company to place Madisonville within the Cincinnati switching-limits and to cease and desist from the alleged violation of the laws of the state of Ohio. An answer to this complaint was filed by the railroad company, in which it was set up among other things that the decision of the commission of April 17, 1915, was res adjudicata. The matter came on for consideration upon the pleadings, the evidence and exhibits, including the record of the proceedings instituted on February 1, 1915, and was argued by counsel; and the order of the commission, dated October 29, 1915, was that the case be dismissed. An application for a rehearing was filed and was denied. A petition in error was filed in this court for the purpose of having the order of the public utilities commission reversed, vacated or modified.

The order of the commission of October 29, 1915, dismissing the second case, was in effect a holding that the rate complained of was not unreasonable, unjust or discriminatory, and, further, that no showing was made that Madisonville should be placed within the Cincinnati switching-limits. As was held in The Hocking Valley Railway Co. v. The Public Utilities Commission of Ohio, 92 Ohio St., 362, this court will not substitute its judgment for that of an administrative board, created pursuant to an act of the legislature, as to matters within its province, and before this court will interfere with the order of the public utilities commission it must appear from a consideration of the record that the action of the commission was unlawful or unreasonable. We have examined the record in this case and the proceedings had before the commission and we are constrained to hold that the order of dismissal made by the public utilities commission was neither unlawful nor unreasonable.

Order sustained.

Nichols, C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur.

Wanamaker, J., not participating.


text:
    Cline v. Martin et al.

      Schools — County districts distinct — From political subdivisions— Although territorial limits coextensive — Members of board not county officers — Section i, Article X, Constitution — Section 4729, General Code (104 O. L., 136), constitutional — Section 26, Article II, and Section 3, Article VI, Constitution.

    1. A county school district as defined by Section 4684, General Code (104 O. L., 133), is distinct from a county political subdivision of the state and is not necessarily coextensive with the territorial limits of a county, but may contain within its limits territory of another county and exclude territory in the same county in which the larger part of its territory is situated.
    2. The fact that in some instances the territorial limits of a county and a county school district may be the same, does not destroy the separate identity of the latter.
    3. The members of a hoard of education of a county school district are not county officers within the meaning of Section 1 of Article X of the Constitution of Ohio.
    4. Section 4729, General Code (104 O. L., 136), is not in violation of Section 1 of Article X or Section 26 of Article II of the Constitution of Ohio, but is a valid constitutional act of the general assembly under the authority conferred upon it by Section 3 of Article VI of the Constitution of Ohio.
    (No. 15162
    —Decided July 1, 1916.)

      Error to the Court of Appeals of Holmes county.
    On the 3d day of December, 1914, the county board of education of Holmes county adopted a resolution annexing to the Nashville village school district, for school purposes, adjoining territory, comprising four subdistricts.
    Thereafter the defendants in error, other than William F. Crow, were appointed by the county commissioners of Holmes county as members of the board of education of the Nashville village school district, and as such board of education, on the 6th day of January, 1915, passed a resolution authorizing the submission to the electors of the proposition to issue bonds in the sum of $18,000, for the purpose of constructing a school building within such district.
    On the 17th day of February, 1915, the plaintiff in error filed his petition in the common pleas court of Holmes county against the defendants in error to enjoin-them from issuing and selling said bonds, from erecting a school building, and from compelling the pupils residing in the territory constituting the four subdistricts to attend the Nashville village school.
    The plaintiff in his petition avers that he is an elector and taxpayer residing in Knox township, Holmes county, Ohio, in the territory described in the resolution adopted by the county board of education of Holmes county, Ohio, and that he brings the action on behalf of himself and other taxpayers similarly situated.

      The petition further recites the adoption of the resolution by the county board of education on the 3d day of December, 1914, and avers that said county board of education is wholly without authority to change school district lines, or to transfer territory from one school district to another, except as is specially conferred by Section 4736, General Code, which authority is conferred for the sole and express purpose of arranging the schools according to topography and population in order that they may be most easily accessible to pupils; that no such purpose was expressed or intended in the resolution adopted; and that the sole purpose of defendants in obtaining the adoption of said resolution was to defeat the judgment and decree of the court of appeals, wherein it was held that the attempted effort of the defendants to establish a special school district embracing substantially the same territory was illegal and void.
    The petition recites the discontinuance of the schools in the four subdistricts, in which the enumeration of pupils was 25, 39, 26, and 40, respectively, or a total of 130 pupils, who were thereby required and compelled to attend the school in the village of Nashville, and further recites that said defendants have provided four wagons to haul said pupils to the Nashville school, to the great inconvenience and detriment of the good health and welfare of said pupils, and at an expense of $180 per month to this plaintiff and other taxpayers in said territory.
    Plaintiff further avers that the county board of education was wholly without authority to pass said resolution, and that if it had any authority to make any such changes its action was a gross abuse of discretion and conferred no right or authority upon defendants, the board of education of the so-called Nashville village school district, to compel the attendance of said pupils at Nashville village school; no right or authority to issue and sell bonds; no right or authority to levy taxes to pay the principal and interest on said bonds; no right or authority to levy taxes upon plaintiff and other taxpayers in said territory to maintain said Nashville village school and transport said pupils thereto, nor to do any of the things they are now doing while acting as a pretended board of education for the said so-called Nashville village district.
    On the 16th day of October, 1915, the plaintiff filed an amendment to this petition, which avers among other things that the village of Nashville was never organized at any time in its history as a village school district, but was controlled by the township school authorities; that it was not a village school district at 'the time said county board of education attempted to organize the so-called Nashville village school district; and that the members of said county board of education were never elected by the electors of Holmes county, but claim they were elected by certain presidents of boards of education, under the pretended provisions of Section 4729, General Code, which section is in contravention of Sections 1 and 2 of Article X, Section 2 of Article XVII and Section 1 of Article I of the Constitution of Ohio, and therefore null and void.

      The answer of the defendants admits that the plaintiff is an elector and taxpayer residing in. Knox township, Holmes county, Ohio; that William F. Crow is the clerk of the board of education of the Nashville village school district, and the other named defendants are members of the board of education; admits the resolution of the county board of education of Holmes county adopted on the 3d day of December, 1914; admits the providing of wagons for transporting pupils to the school in the village of Nashville; admits that the board has taken some steps to issue bonds in the sum of $18,000, and denies each and every other allegation in the petition.
    Upon the issue so joined, the common pleas court found for the defendants, and dismissed the plaintiff’s petition. Appeal was taken to the court of appeals, which court entered a similar judgment in favor of the defendants, and this proceeding in ¿rror is prosecuted in this court to reverse the judgment of the court of appeals.

      Mr. Carl Schuler; Mr. W. F. Garver and Messrs. Weygandt & Ross, for plaintiff in error.

      Mr. C. H. Workman; Mr. George W. Sharp and Mr. C. J. Fisher, for defendants in error.
   Donahue, J.

The most important question presented by the record in this case is the question of the constitutionality of Section 4729, General Code, as amended 104 Ohio Laws, 136.

It is contended that members of a county board of education are county officers, and come within the provision of Section 1 of Article X of the Constitution, which requires the general assembly to provide, by law, for the election of such county and township officers as may be necessary.

While the statute designates them as county boards of education, yet their authority extends only over the territory included within the limits of a county school district. Section 4684, General Code, provides that each county, exclusive of the territory embraced in any city school district and the territory in any village school district exempted from the supervision of the county board of education by the provisions of Sections 4688 and 4688-1, and territory detached for school purposes, and including the territory attached to it for school purposes, shall constitute a county school district; and that in each case where any village or rural school district is situated in more than one county such district shall become a part of the county school district in which the greatest part of the territory of such village or rural district is situated.

This court in the case of The State, ex rel. Pogue, Pros. Atty., v. Groom, 91 Ohio St., 1, said, at page 9:

“The character of a public office is determined by the nature of the public service to be performed in connection with the territorial limits of the authority to act in an official capacity.”

A consideration both of the nature of the public service to be performed by a county board of education, and the territorial limits of its authority to act in an official capacity, leads to the inevitable conclusion that members of this board are not county officers within the meaning of Section 1 of Article X of the Constitution:

1. The nature of their service is not such as the county performs in the discharge of its usual political or governmental functions. The Constitution of Ohio, as amended September 3, 1912, (Section 3, Article VI), authorizes the general assembly to provide by law for the organization, administration and control of the public school system of the state supported by public funds. This does not require that the school system of the state shall be organized, administered or controlled along the lines or within the territorial limits of the political subdivisions of the state. These may be used as a convenience in the establishment of school districts throughout the state, or they may be totally disregarded, but whether the lines of the political subdivisions are, or are not, coextensive with the school district, the administration and control of schools is not vested in the officers of that political subdivision but in a board of education for each school district.

Such boards are agencies of the state for the organization, administration and control of the public school system of the state, separate and apart from the usual political and governmental functions of other subdivisions of the state. The fact that certain officers of other subdivisions may be delegated some duties or authority in relation thereto does not change the status or destroy the separate identity of the school district.

This court in the case of Mills v. City Board of Elections et al., 54 Ohio St., 631, affirmed the judgtnent of the circuit court of Franklin county (9 C. G, 134) holding that “the act of April 24, 1894, conferring upon women the right to vote and be voted for at any election held for the purpose of choosing any school director, member of the board of education or school council under the general or special laws of the state is valid, it being within the power to provide for the establishment and maintenance of common schools which the constitution confers upon the general assembly, and not within the limitation contained in section one of article five.”

' If the contention of plaintiff in error were sustained, it necessarily follows that the judgment of this court affirming the judgment of the circuit court in the case just cited would have to be overruled; for if the members of a county board of education are county officers within the meaning of Section 1 of Article X of the Constitution of- Ohio, then, by the same course of reasoning, the members of a board of education of a township school district, as they existed at that time, were township officers within the meaning of the same constitutional provision. Evidently this court reached a different conclusion in the above case, otherwise the judgment of the circuit court would not have been affirmed.

If there were any doubt about the correctness of the ruling of this court in the case of Mills v. City Board of Elections et al., supra, that doubt is entirely removed by the amendment to the constitution of September 3, 1912, which amendment supplements Sections 1 and 2 of Article VI. There is now no other possible construction of these sections than that given them by this court in the case of Mills v. City Board of Elections et al., supra, in so far as they affected the decision in that case.

That judgment of the circuit court was affirmed, without report, upon the authority of State, ex rel., v. City of Cincinnati, 19 Ohio, 178. In that case this court expressly recognized the distinction between a member of the board of education of a township school district and a township officer. In the opinion by Hitchcock, C. J., at page 197, it is said: “Now a school director, although in some respects a public officer, is not even a township officer. He is merely the officer of a school district— a political organization unknown to the constitution — a mere creature of legislative enactment.”

It would appear from these decisions that the question whether or not a member of a board of education is a township, county, or municipal officer is no longer an open one in this state.

2. The territorial limits of a county school district are not identical with those of the county. It is true, however, that in some instances they are identical, but that is merely accidental, and not because the statute creating a county school district requires that they shall be the same in any case. The fact, however, that they may not be the same in any one case, is sufficient to show that they are not identical. If a county school district in any one county may include territory in an adjacent county, attached for school purposes, and exclude from its limits territory within its own county, detached for school purposes, or constituting a city or village school district, then it follows that county school' districts are not necessarily coextensive with county lines; although it may happen in many cases that they are the same today, but different tomorrow.

It would therefore appear that not only the “nature of the public service to be performed” but also the “territorial limits of the authority to act in an official capacity” clearly distinguish members of county boards of education from county officers.

It is further insisted that this act offends against Section 26 of Article II of the Constitution. Undoubtedly this is a law of a general nature; but it is equally clear that it has a uniform operation throughout the state, for “it operates upon every person brought within the relation and circumstances provided for, and in every locality where the condition exists.” Assur v. Cincinnati et al., 88 Ohio St., 181, 186, and cases therein cited.

' The classification attempted in this statute is not only proper and reasonable, but absolutely necessary in order to carry out the provisions of Section 3 of Article VI of the Constitution in an intelligent and practical manner. It is based upon a substantial difference between conditions in a municipality and conditions in the rural districts. It comes clearly within the same principle as the classification of cities and villages according to the population of each.

Other questions of fact are presented by this record, but upon the evidence introduced in the trial of the case the court of appeals determined these facts adversely to the contention of the plaintiff in error. Yet, even if the finding and judgment of the court of appeals were against the weight of the evidence, that could not affect the disposition of this case. .

Section 4735, General Code, provides that the present existing township and special school districts shall constitute rural school districts until changed by the county board of education. Section 4736, General Code, authorizes the county board of education to create a new school district from one or more school districts or parts thereof.

Under the provisions of the latter section, the county board of education had the authority to create this new district from one or more school districts or parts thereof, even though Nashville was not then a village school district. If the county board of education were in fact mistaken as to Nashville being a village school district, then the new district it created is a rural district, and, under the provisions of Section 4736-1, General Code, the board of county commissioners is authorized to appoint the members of its board of education. If it is a village district, the appointment is valid.under the provisions of Section 4710, General Code. In either case this board of education has the authority to perform the acts complained of in the petition.

Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    The City of Cincinnati v. Puchta, Mayor, et al. Puchta, Mayor, et al. v. The City of Cincinnati.

      Municipal corporations — Bonds for park purposes — Election thereon— Sections 4064 and 4065, General Code — Publication of notice — Section 3946, General Code — Limitation of municipal indebtedness — Section 3952, General Code.

    (Nos. 15265 and 15266 —
    Decided July 1, 1916.)
    Error to the court of Appeals of Hamilton county.

      Mr. Charles A. Groom, city solicitor, for the city of Cincinnati.

      Mr. Saul Zielonka and Mr. John E. Bruce, for George Puchta, mayor, et al.
   By the Court.

Both cases involve this question: An election was held on the issue as to whether or not certain bonds should be issued for park purposes. Notice of such election was given to the qualified electors of the city of Cincinnati upon an advertisement for “four consecutive weeks in a newspaper printed in the municipality covering the period of 26 days prior to the day of election, to-wit, November 2, 1915.” Did such notice legally comply with Section 3946, General Code? That section reads as follows:

“Thirty days’ notice of the election shall be given in one or more newspapers printed in the municipality once a week for four consecutive weeks prior thereto, stating the amount of bonds to be issued, and the purpose for which they are to be issued, and the time and place of holding the election.’1

This notice was not published for thirty days, but was published once a week for four consecutive weeks.

We believe this publication to be in substantial compliance with the statute, especially when we come to consider the last part of Section 3946, to-wit:

“If no newspaper is printed therein, the notice shall be posted in a conspicuous place and published once a week for four consecutive weeks in a newspaper of general circulation in the township or municipal corporation.”

The chief purpose of this statute is evident, to-wit, four weekly publications. And these were made. We do not hold that in all cases such would be a sufficient compliance with the law, but in the absence of any allegation here that anybody was denied the right to vote, by reason of the statute not being literally complied with for the full thirty days, the regularity of the election proceedings is upheld.

A second proposition involved in one, or both, of these cases is the question of limitation upon the amount of bonds.

The city council failed to issue bonds upon its own initiative. Thereupon, pursuant to Section 4064, General Code, the board of park commissioners took such action as was required by that section. The city council having failed to enact the necessary legislation, the board of park commissioners filed their resolution, and the favorable action thereon, with the board of deputy state supervisors and inspectors of elections and the election was had thereon, a majority of the voters voting at such election declaring in favor of the issuing of the bonds.

Section 4065 provides:

“If a majority of the electors voting on such question vote in favor thereof, it shall become the duty of the council of the city to enact, within ninety days thereafter, all legislation necessary to carry into effect the will of the majority of the voters at such election.”

It is quite apparent that neither Section 4064 nor Section 4065, General Code, provides that the issue shall be within the 2} per cent, limitation, and the question, therefore, arises whether this issue is within the 5 per cent, limitation; or whether the 2|- per cent, limitation or the 5 per cent, limitation, provided in Section 3952, governs.

We believe this question has already been determined by this court in the case of Henderson v. City, 81 Ohio St., 27, 31, in favor of the 2 per cent, limitation:

“Section.6 of the park commission act contains no suggestion that it was intended to authorize, either the city council, or the park commission, or both acting together, to issue bonds in excess of four per cent, of the taxable value of the property of the city without authorization by two-thirds of the voters of the city. That section obviously was not intended to modify the preceding legislation in this regard in any respect. Its object was to provide for the contingency of a difference of views between the park commission and the municipal council respecting the proposed issue of bonds for park purposes within the limit of four per cent, of the taxable value of the property of the city. In other words, the favoring vote of a bare majority, as contemplated in the later legislation, was not intended as a substitute for the two-thirds vote required by the previous legislation, but was only to be substituted for the favorable action of the city council, when it refuses to act favorably upon the recommendation of the park commission.”

We do not believe this is obiter dictum. It is. germane to the question before the court. It is in accordance with sound reason and the evident purpose of the several statutes.

Judgments affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur in cause No. 15265.

Donai-iue, Wanamaker, Jones and Matthias, JJ., concur in cause No. 15266.