State ex rel. McNamara v. Campbell

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 — 409 — 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 — 410 — 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 — 411 — 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 con — 412 — stitution 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. — 413 — 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 — 414 — 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.