94 Ohio St. 403 | Ohio | 1916
Lead Opinion
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
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
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
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.
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
Writ allowed.
Dissenting Opinion
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 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