explaining that the maxim is inapplicable when its use would defeat legislative intentSummary of this case from Schussheim v. Schussheim
Decided August 3, 1938.
Municipal corporations — Civil service — Adoption of administrative rules by commisssion — Section 486-19, General Code — Reduction of employees in inverse order of appointment — Rule not in conflict with statute — Section 486-17b, General Code — Seniority rights to policemen and firemen — Expressio unius est exclusio alterius, inapplicable — Mandamus to compel reinstatement — Unpaid compensation considered in action at law.
APPEAL from the Court of Appeals of Stark county.
The City Council of Canton passed an ordinance in August, 1932 [ sic; agreed statement of facts], creating nine pumpmen positions in the waterworks department of that city. On June 27, 1932, appellant and another who had passed a competitive civil service examination were appointed to two of these positions. More than a half year later, namely, on February 3, 1933, seven others were appointed from an eligible list furnished by the civil service commission to fill the remaining positions.
On February 26, 1934, the City Council of Canton passed an ordinance, effective March 1, 1934, reducing the number of these positions from nine to seven. On February 27, 1934, appellant was notified, in writing, by Service Director Frank L. DeCorps, appellee herein, that he was being laid off for the purpose of economy. There was then in force and effect the following worded resolution, adopted by the Canton Civil Service Commission in 1921:
"Whenever from lack of work or funds, or other cause, it becomes necessary in any department or subdivision thereof to temporarily reduce the working force in any position, such reduction shall be made in the inverse order of the appointment of the employees in such position, and the employees last appointed being first laid off; and in determining the order in which such employees shall be laid off, the order in which such employees were certified by the commission shall control."
Since the lay-off of appellant, the number of pumpmen has continued at seven, during which time but one vacancy was filled, and that by the other pumpman who was examined with appellant.
Appellant instituted this action in mandamus in the Court of Common Pleas to compel his reinstatement, and to recover the emoluments of that position for the period during which he has been deprived thereof. The writ prayed for was denied and the judgment was affirmed by the Court of Appeals. The cause is here on the allowance of a motion to certify.
Mr. D.O. Curtis and Mr. H. Clifton Graybill, for appellant. Mr. Paul G. Weber, city solicitor, and Mr. O. Lee Thomas, for appellees.
The question submitted is whether the civil service commission of a municipality has the power to make a regulation which would require the appointing authority to lay off employees in the inverse order of appointment.
That portion of Section 486-19, General Code, which is here pertinent, reads:
"Such municipal commission shall prescribe, amend and enforce rules not inconsistent with the provisions of this act for the classification of positions in the civil service of such city and city school district; for examinations and registrations therefor; and for appointments, promotions, removals, transfers, lay-offs, suspensions, reductions and reinstatements therein; and for standardizing positions and maintaining efficiency therein. Said municipal commission shall have and exercise all other powers and perform all other duties with respect to the civil service of such city and city school district, as herein prescribed and conferred upon the state Civil Service Commission with respect to the civil service of the state; and all authority granted to the state commission with respect to the service under its jurisdiction shall, except as otherwise provided in this act, be held to grant the same authority to the municipal commission with respect to the service under its jurisdiction."
Municipal civil service commissions are thereby vested with broad and comprehensive rule-making powers, limited only by the requirement that the rules and regulations adopted be not inconsistent with the provisions of the Civil Service Act. To be thus inconsistent, they must contravene or be in derogation of some express provision of the Civil Service Act. Though the authority conferred is broad, it does not, nor can it, include a delegation of legislative power. The civil service commission, being confined exclusively to matters of administration, may enforce but may not declare public policy.
Has the commission here violated any of these principles?
By the enactment of the Civil Service Act, the General Assembly fixed the establishment of a merit system as the ultimate aim in view, and laid down certain principles upon which the institution of civil service is to be built. It is not conceivably possible for the Legislature to prescribe the entire host of details incident to administration. Of necessity, many of these must be left to the administrative bodies charged with putting the policy into practical effect. "In the nature of things there must be many things on which the wisdom of legislation must depend, which can only properly be determined in the course of the administration of the legislative will as expressed in law." Green v. State Civil Service Commission, 90 Ohio St. 252, 256, 107 N.E. 531.
The resolution of the civil service commission here questioned does not, in our opinion, declare policy. It deals merely with a matter of administrative detail, by means of which it seeks to enforce the policy declared by the Legislature. It is but an administrative means for the accomplishment of the legislative end. In the adoption of the rule, the civil service commission exercised a valid administrative function, not amendatory of, but subordinate to, the will of the Legislature as expressed in the act.
Appellees argue that the Legislature, by enacting Section 486-17 b, General Code, "having made lay-off in the police and fire departments in the inverse order, has indicated that it did not intend that same should apply to the other classifications. The application of the principle `expressio unius est exclusio alterius' should of itself be decisive of the question."
The maxim is of utility only as an aid in ascertaining legislative intent, but when its employment operates to defeat such intent it will be held to be inapplicable.
"The rule should not be carried beyond the reason for its existence. It is to be applied only as an aid in arriving at the legislative intention, and not to defeat the apparent intention." 37 Ohio Jurisprudence, 557, Section 296. See also 25 Ruling Case Law, 981, 982, Section 229.
In Springer v. Government of Philippine Islands, 277 U.S. 189, 72 L.Ed., 845, 48 S.Ct., 480, the court said: "The general rule that the expression of one thing is the exclusion of others is subject to exceptions. Like other canons of statutory construction it is only an aid in the ascertainment of the meaning of the law and must yield whenever a contrary intention on the part of the lawmaker is apparent. Where a statute contains a grant of power enumerating certain things which may be done and also a general grant of power which standing alone would include those things and more, the general grant may be given full effect if the context shows that the enumeration was not intended to be exclusive. See for example, Ford v. United States, 273 U.S. 593, 611 [ 71 L.Ed., 793, 801, 47 S.Ct., 531]; Portland v. New England Telephone Telegraph Co., 103 Me. 240, 249 [68 A. 1040]; Grubbe v. Grubbe, 26 Or. 363, 370 [38 P. 182]; Swick v. Coleman, 218 Ill. 33, 40 [75 N.E. 807]; Lexington, ex rel. Menefee, v. Commercial Bank, 130 Mo. App., 687, 692 [108 S.W. 1095]; McFarland v. Missouri, K. T. Ry. Co., 94 Mo. App., 336, 342 [68 S W., 105]."
In Ford v. United States, 273 U.S. 593, 611, 71 L.Ed., 793, 801, 47 S.Ct., 531, the court said: "This maxim properly applies only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment." Again, "The maxim of interpretation relied on is often helpful, but its wise application varies with the circumstances."
The fact that Section 476-17 b, General Code, grants seniority rights to members of the police and fire departments is not indicative of an intention on the part of the Legislature to withdraw from the jurisdiction of municipal civil service commissions the element of seniority in service as a subject of regulation. The provisions of Section 486-17 b, General Code, do not in any way amend, modify or restrict those of Section 486-19, General Code. The broad and comprehensive powers with which municipal civil service commissions are vested include the authority to prescribe the requirement that seniority in service shall be considered in laying off employees in classified civil service.
We find the resolution here challenged to be consistent with the provisions of the Civil Service Act and therefore valid and enforceable, and hold that appellant is entitled to a writ compelling his reinstatement as prayed for.
Appellant's prayer that he be awarded the emoluments of his position during the period of his exclusion therefrom cannot be considered here. "Whatever view may be entertained by this court with reference to the right of the relator to recover in an action at law compensation or salary, or any portion thereof, for the period of exclusion from office, * * * such question can be considered only in an action at law." Williams, Dir., v. State, ex rel. Gribben, 127 Ohio St. 398, at page 401, 188 N.E. 654. See also State, ex rel. White, v. City of Cleveland, 132 Ohio St. 111, 5 N.E.2d 331.
The judgment will be reversed and a writ requiring reinstatement of appellant to his former position will be allowed; but the claim for compensation will be dismissed without prejudice.
DAY, ZIMMERMAN, WILLIAMS and GORMAN, JJ., concur.
WEYGANDT, C.J., and MATTHIAS, J., dissent.
In my opinion the decision of the Court of Appeals affirming the judgment of the Court of Common Pleas is sustained by sound reason and should be affirmed.
The authority of the municipal civil service commission to make and enforce rules is conferred by statute. Section 487-17 b, General Code, prescribes a specific limitation upon the appointing power in the respect in question here. Upon the principle applied in Davis et al., Civil Service Comm., v. State, ex rel. Kennedy, Dir. of Public Service, 127 Ohio St. 261, 187 N.E. 867, the municipal commission is unauthorized to extend those statutory provisions and make the same applicable to positions other than those enumerated therein.
WEYGANDT, C.J., concurs in the foregoing dissenting opinion.