In order to determine this question, a study of the state law relating to civil sеrvice and of the provisions of the charter of the City of Clevеland relating to the same subject becomes necessary.
Lоng prior to the enactment of the present City charter by the people of Cleveland the legislature of Ohio passed whаt is known as §486-8 GC. Therein are contained twelve specifications as to what persons or classes of persons are to be embraced in the “unclassified service.” Specification seven reads:
“* * * and all heads of departments appointed by thе mayor.”
In State ex Franke v Minshall et, which case arose in Cuyahоga County and is reported in 10 Oh Ap Rep page 86, this court held that the office of Sealer of Weights and Measures is by virtue of §486-8 GC plaсed in the unclassified service and is not subject to Civil Service examination. It is true that the decision in Franke v Min-shall, supra, was rendered prior to the adoption of the present charter by the people of Cleveland, and it is likewise true that where there aрpears to be a conflict between a State law and а provision of the municipal charter in a matter relating to сivil service, that the charter provision controls. We take it аs conceded, under the decision of Franke v Minshall, supra, that if §486-8 GC were not in any way modified, changed or contradicted by the latеr charter provisions, that the relator would be deemed in the unсlassified service.
Does the present charter of the City of Cleveland contain a provision or provisions changing, modifying or contradicting §486-8 specification 11, GC?
We shall quote from the present charter of the City of Cleveland, §126, which provides in part as follоws:
“The civil service of the city is hereby divided into the unclassified and thе classified service.
1. The unclassified service shall include:
(f) Such heads of divisions and such immediate exеcutive assistants as tbe civil service commission shall from time to timе, by rule, determine.”
*415 It is noteworthy that the charter does not providе that heads of departments appointed by the mayor shall, unlikе the classification of the General Code, be placеd in the “classified service.” It leaves it instead to the discretion of the Civil Service Commission of either permitting the provision of the General Code to continue to operate, or to nullify said provision by enacting a rule to the contrary. It is our opinion that whilе the express language of a charter adopted by the people of Cleveland may abrogate or nullify a state law pertaining- to the Civil Service, that such result cannot be accomplished by a provision of the charter delegating authority to the Civil Service Commission to nullify the same by the adoption of a rule.
We reiterate the holding of this court in the case of State of Ohio ex Norman A. Ryan et v W. George Kerr, decided May 23, 1932, (
The writ of mandamus will be denied and the petition of the relator is ordered dismissed.