Summary
In Stein, supra, the court denied the relator a writ of mandamus in that he failed to show that the statutory requirement that "[v]acancies in the labor class shall be filled by apointment from lists of applicants registered by the commission" had been fulfilled.
Summary of this case from State, ex Rel. Alford, v. WilloughbyOpinion
No. 27459
Decided January 31, 1940.
Civil service — Unskilled labor class of classified service — Section 486-8, General Code — Vacancies shall be filled from list of applicants registered by commission — Writ of mandamus issued only where clear legal right established.
IN MANDAMUS.
This proceeding in mandamus originated in this court and was submitted upon a demurrer to the amended petition.
Relator, Joseph Stein, alleges that on May 28, 1927, he "went to work" for the state highway department as an ordinary unskilled laborer, that in the spring of 1930 he was assigned to drive a truck for that depart ment and that since that time "he continuously operated as a truck driver" for the department, until February 7, 1939, when he received a notice from the division deputy director of the department advising relator that his services were being terminated two days later.
Relator pleads that since May 28, 1927, he had been carried on the registered payroll list of ordinary unskilled laborers in the department, which certified list had from time to time been furnished to the Civil Service Commission of Ohio, and that the contents of the list, including the relator's name, position and qualifications, were well known to the commission.
It is alleged that relator furnished to the Department of Highways satisfactory evidence of age, residence, physical condition, ability to labor, honesty, sobriety, industry, capacity and experience in the work of an ordinary unskilled laborer and truck driver in the department; that his appointment, work and experience were well known to the Civil Service Commission, and that because of his satisfactory qualifications and services over a period of more than eleven years, the Civil Service Commission gave him no special test other than the information furnished by the Department of Highways but accepted the registered payroll list "and at no time offered any criticism thereof or rejection thereto."
Relator pleads that his tenure, in his position in the unskilled labor class of the classified service under sub-paragraph 2, subdivision ( b) of Section 486-8, General Code, was during good behavior and efficient service.
It is alleged that without cause, justification or reason and without complying with the mandatory requirements of Section 486-17 a, General Code, the services and tenure of office of the relator were terminated.
Relator prays for a writ of mandamus reinstating him to his former position and for compensation from the date his services were discontinued.
Mr. Stanley Denlinger and Mr. William Creme, for relator.
Mr. Thomas J. Herbert, attorney general, Mr. John P. Walsh and Mr. David M. Spriggs, for respondents.
Both sides to this controversy rely upon Section 486-8, General Code, which reads in part:
"The civil service of the state of Ohio and the several counties, cities and city school districts thereof shall be divided into the unclassified service and the classified service.* * *
"(b) The classified service shall comprise all persons in the employ of the state, the several counties, cities and city school districts thereof, not specifically included in the unclassified service, to be designated as the competitive class and the unskilled labor class. * * *
"2. The unskilled labor class shall include ordinary unskilled laborers. Vacancies in the labor class shall be filled by appointment from lists of applicants registered by the commission. The commission shall in its rules require an applicant for registration in the labor class to furnish such evidence or take such tests as it may deem proper with respect to age, residence, physical condition, ability to labor, honesty, sobriety, industry, capacity and experience in the work or employment for which he applies. Laborers who fulfill the requirements shall be placed on the eligible list for the kind of labor or employment sought and preference shall be given in employment in accordance with the rating received from such evidence or in such tests. Upon the request of an appointing officer, stating the kind of labor needed, the pay and probable length of employment, and the number to be employed, the commission shall certify from the highest on the list, double the number to be employed, from which the appointing officer shall appoint the number actually needed for the particular work. In the event of more than one applicant receiving the same rating, priority in time of application shall determine the order in which their names shall be certified for appointment." (Italics ours.)
The relator maintains that he is a permanent appointee in the unskilled labor class of the classified service. He contends that construing the words "shall be" and "shall" as "may," in the second and third sentences of sub-paragraph 2 above quoted, the procedure is discretionary and not mandatory with the commission; and if the court holds those provisions to be mandatory, then relator contends further that his appointment was in substantial compliance with sub-paragraph 2. He then insists upon a strict adherence to the requirements of Section 486-17 a, General Code, relating to grounds and procedure for removal of an employee in the classified service.
Respondent contends that the amended petition does not allege a compliance with the provisions of sub-paragraph 2 which specifically require that vacancies in the labor class shall be filled from lists of applicants registered and that the commission in its rules shall require an applicant to furnish such evidence or take such tests as it may deem proper; and that since the amended petition does not plead that relator was appointed from a list furnished by the commission, or that he ever applied for registration, he cannot properly be considered as in the unskilled labor class of the classified service and is therefore not entitled to the protection afforded to persons within the classified service.
A careful examination of the amended petition does not disclose any averment which could be construed as alleging a compliance with the statutory registration requirement, and therefore we are of the opinion that the relator in this proceeding cannot rightfully claim the tenure secured to those persons in the classified service. State, ex rel. Baird, v. Schroy, Mayor, 135 Ohio St. 94, 19 N.E.2d 644; State, ex rel. Brewer, v. Smith, ante, 67, 23 N.E.2d 836.
A writ of mandamus will be issued only where the relator establishes a clear legal right thereto. 25 Ohio Jurisprudence, 997, Section 23.
The demurrer to the petition will be sustained and relator not desiring to plead further a writ of mandamus will be denied.
Demurrer sustained and writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.