Fenton v. Enaharo

Per Curiam. The issue presented by the within appeal is whether the court of appeals correctly concluded that “* * * the Columbus Charter is silent on the subject of layoff, so that appointing authorities in the city of Columbus may lay off employees under appropriate circumstances but that, by virture of Sections 1 and 232 of the Columbus City Charter, appropriate provisions of the Revised Code are applicable to such layoffs, including R.C. 124.03(A) and 124.40(A).” Section 3, Article XVIII of the Ohio Constitution empowers municipalities to enact requirements for employees which differ from those set forth within the Ohio Revised Code. See, e.g., State, ex rel. Kohl, v. Dunipace (1978), 56 Ohio St. 2d 120, 121, 10 O.O. 3d 309, 382 N.E. 2d 1358, 1359. Specifically, that section, commonly referred to as the “home-rule” amendment, provides as follows: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” This court has consistently “interpreted the above language to limit the authority of municipalities to adopt and enforce ‘police, sanitary and other similar regulations’ which ‘are not in conflict with general laws,’ but not to limit municipalities with respect to other ‘powers of local self-government.’ ” State, ex rel. Kohl, v. Dunipace, supra, at 121, 10 O.O. 3d at 309, 382 N.E. 2d at 1359. See, also, State, ex rel. Canada, v. Phillips [71] (1958), 168 Ohio St. 191, 5 O.O. 2d 481, 151 N.E. 2d 722. Thus, the phrase “not in conflict with general laws” operates to modify “local police, sanitary and other similar regulations,” and not the “powers of local self-government.” As a result, municipalities enjoy the power “to enact local legislation, as distinguished from matters of state-wide concern, without regard to general laws on the subject, except to the extent this power is limited by the Constitution itself.” Dunipace, supra, at 121, 10 O.O. 3d at 309, 382 N.E. 2d at 1359. Application of the foregoing principles can be illustrated by an examination of the decision in State, ex rel. Bindas, v. Andrish (1956), 165 Ohio St. 441, 60 O.O. 92, 136 N.E. 2d 43. Therein, a vacancy occurred on the Youngstown City Council resulting in the respondent’s election by city council to fill the position. A quo warranto action was instituted in this court by the relator who claimed that the vacancy should have been filled in conjunction with the requirements contained within R.C. 731.02. At the time of the institution of the original action, the Youngstown City Charter provided: “Section 1. * * * “It shall have all powers * * * granted to municipalities by the Constitution or laws * * *; and all such powers * * * shall be exercised and enforced in the manner prescribed by this charter, or when not prescribed herein, in such manner as shall be provided by ordinance or resolution of the council. In the absence of such provisions as to any power, such power shall be exercised in the manner * * * prescribed by the general laws of the state, applicable to municipalities. “Section 2. The enumeration of particular powers by this charter shall not be held or deemed to be exclusive, but in addition to the powers enumerated herein, implied thereby or appropriate to the exercise thereof, the city shall have, and may exercise all other powers, which, under the Constitution and laws of Ohio, it would be competent for this charter specifically to enumerate. ti* * * “Section 5. * * * A councilman shall be an elector of the ward from which he is elected and of not less thart, 25 years of age. “Section 19. Except as otherwise provided in this charter, the powers, duties and procedure of the council shall be as provided by the General Code.” (Emphasis added.) In contradistinction to Section 5 of the city charter, R.C. 731.02 provided as follows: “Members of the legislative authority at large shall have resided in their respective cities, and members from wards shall have resided in their respective wards, for at least one year next preceding their election. Each member of the legislative authority shall be an elector of the city, shall not hold any other public office or employment, except that of notary public or [72] member of the state militia, and shall not be interested in any contract with the city. * * *” (Emphasis added.) Although respondent was a resident and elector of his ward, and was over twenty-five years of age, he was employed as a teacher in a public school system. In his original action relator argued, inter alia, that respondent was not qualified to fill a vacancy on city council, pursuant to R.C. 731.02, because of his public employment as a school teacher. In rejecting relator’s argument, as well as the application of R.C. 731.02, it was stated at 444-445, 60 O.O. at 93-94, 136 N.E. 2d at 45: “It may be that a state statute can be applied where a charter is silent with regard to the procedure to be followed in a particular instance, as the Youngstown charter is with respect to what shall be done when a vacancy occurs in its council. See State, ex rel. Flask, Jr., v. Collins, 148 Ohio St., 45, 73 N.E. (2d), 195; Dubyak, Jr., v. Kovach, Mayor, 164 Ohio St., 247, 129 N.E. (2d), 809; State, ex rel. Sun Oil Co., v. City of Euclid, 164 Ohio St., 265, 130 N.E. (2d), 336. However, the Youngstown charter makes specific provision for the qualifications of its councilmen. There is therefore no necessity to resort to state statutes in considering what those qualifications should be. Cf. State, ex rel. Bruestle, City Solr., v. Rich, Mayor, 159 Ohio St., 13, 31, 32, 33, 110 N.E. (2d), 778. Furthermore, by specifying that its councilmen shall have certain specific qualifications, the people of Youngstown in their charter have inferentially expressed an intention that those are to be the only qualifications required of them. Ex-pressio unius est exchcsio alterius.” The Columbus City Charter, insofar as is pertinent to the instant appeal, is virtually identical to the charter provisions at issue in State, ex rel. Bindas, v. Andrich. For instance, Section 1 provides that the city of Columbus “shall have all powers * * * granted to municipalities by the constitution or laws * * *; and all such powers * * * shall be exercised and enforced in the manner prescribed by this charter, or when not prescribed herein, in such manner as shall be provided by ordinance or resolution of the council. In the absence of such provision as to any power, such power shall be exercised in the manner * * * prescribed by the general laws of the state applicable to municipalities.” Section 232 of the charter provides that “[a]ll general laws of the state applicable to municipal corporations * * * which are not in conflict with the provisions of this charter * * * shall be applicable to this city * * In similar fashion to the relator in State, ex rel. Bindas, v. Andrich, supra, appellees argue that Sections 1 and 232 of the Columbus City Charter evidence an intention that R.C. 124.03(A) and 124.40(A)1 are ap [73] plicable to their appeal before the Columbus Civil Service Commission. Appellees buttress this argument by comparing R.C. 124.03(A) and 124.40(A) with Section 149-1 of the city charter. R.C. 124.40(A) empowers municipal civil service commissions to “* * * exercise all other powers and perform all other duties with respect to the civil service of such city * * * as prescribed in this chapter and conferred upon the * * * state personnel board of review. * * *” R.C. 124.03(A) confers upon the State Personnel Board of Review the power to “[h]ear appeals, as provided by law, of employees in the classified state service from final decisions of appointing authorities or the director of administrative services relative to reduction in pay or position, job abolishments, layoff, suspension, discharge, assignment or reassignment to a new or different position classification * * *.” Since Section 149-1 of the Columbus City Charter only confers jurisdiction on the civil service commission to hear appeals from employees who have been “suspended, reduced in rank or compensation or discharged,”2 appellees argue that R.C. 124.03(A) operates to confer jurisdiction on the commission to entertain appeals concerning layoffs. Appellees’ position would possess merit, but for the fact that it is only “[i]n the absence of such provision” pertaining to the jurisdiction of the civil service commission that application of the procedure prescribed within R.C. 124.03(A) is justified. However, the charter sets forth the jurisdiction of the civil service commission and, as such, there is no occasion to apply any jurisdictional provisions under the Revised Code as a result of the “absence of” provisions. Likewise, Section 232 of the charter does not support appellees’ position because R.C. 124.03(A) and Section 149-1 are conflicting, the former section providing for jurisdiction when an employee suffers a layoff while the latter section does not. Accordingly, since the Columbus City Charter is not silent with [74] respect to the jurisdictional prerequisites for the civil service commission, and because R.C. 124.03(A) conflicts with Section 149-1 of the charter, we conclude that the civil service commission did not have jurisdiction over appellees’ appeals. Accord State, ex rel. Dean, v. Huddle (1975), 45 Ohio App. 2d 163, 74 O.O. 2d 218, 341 N.E. 2d 860, reversed in part (1975), 45 Ohio St. 2d 234, 74 O.O. 2d 378, 344 N.E. 2d 138.3 For the foregoing reasons, the judgment of the court of appeals is hereby reversed. Judgment reversed. Moyer, C.J., Locher, Holmes and Wright, JJ., concur. Sweeney, Douglas and H. Brown, JJ., dissent. Footnotes [1] R.C. 124.03 provides, in pertinent part: “The state personnel board of review shall exercise the following powers and perform the following duties: “(A) Hear appeals, as provided by law, of employees in the classified state service from [73] final decisions of appointing authorities or the director of administrative services, relative to reduction in pay or position, job abolishments, layoff, suspension, discharge, assignment or reassignment to a new or different position classification, or refusal of the director of administrative services, or anybody authorized to perform his functions, to reassign an. employee to another classification or to reclassify his position pursuant to a job audit under division (E) of section 124.14 of the Revised Code. * * *” R.C. 124.40(A) provides in part: “* * * mUnicipal cjvil service commission shall exercise all other powers and perform all other duties with respect to the civil service of such city, city school district, and city health district, as prescribed in this chapter and conferred upon the director of administrative services and the state personnel board of review with respect to the civil service of the state; and all authority granted to the director and the board with respect to the service* under their jurisdiction shall, except as otherwise provided by this chapter, be held to grant the same authority to the municipal civil service commission with respect to the service under its jurisdiction. * * *” [2] As was recognized in State, ex rel. Dean, v. Huddle (1975), 45 Ohio App. 2d 163, 168, 74 O.O. 2d 218, 221, 341 N.E. 2d 860, 865, a layoff is not the functional equivalent of a suspension, reduction in rank or discharge. [3] Our holding does not leave employees situated similarly to appellees without recourse, since an action in mandamus would be available to contest the procedure utilized to effectuate layoffs. See State, ex rel. Dean, v. Huddle, supra, at 169, 74 O.O. 2d at 221, 341 N.E. 2d at 865; State, ex rel. Dean, v. Huddle (1975), 45 Ohio St. 2d 234, 74 O.O. 2d 378, 344 N.E. 2d 138.