
    The State, ex rel. Ethell, Appellee, v. Hendricks, Appellant.
    (No. 34422
    Decided May 9, 1956.)
    
      
      Mr. Robert W. Drake and Mr. Thomas A. Orndorff, for appellee.
    
      Mr. John G. Firmin, city solicitor, for appellant.
   Matthias, J.

The determinative question in this cause is: May a civil service commission of a city lawfully adopt a rule which provides that promotional examinations shall consist of both written and oral parts, or do the statutes relating to such promotional examinations require that they be entirely in writing?

Section 143.24, Revised Code, supra, requires a civil service commission to provide in its'rules for (1) “keeping a'record of efficiency for each employee in the classified service” and (2) making promotions “in the classified service on the basis of merit.”

In stating that, “in promotional examinations, efficiency and seniority in service shall form a part of the maximum mark attainable in such examination,” the statute clearly contemplates that the “merit” which shall constitute the basis for a promotion shall be ascertained “as far as practicable” from the combined effect of (1) promotional examinations, (2) efficiency, i. e., conduct and capacity in office, and (3) seniority in service.

This section then provides that “the method of examination for promotion, the manner of giving notice thereof, and the rules governing the same shall be in general the same as provided for original examinations, except as otherwise provided” in the applicable statutes.

Section 143.16, Eevised Code, sets forth the method and rules governing original examinations. It provides, among other things, that “such (original) examination * * * shall be written, or written and oral, as the commission determines,” but that “applicants taking promotional examinations, which shall be in writing, shall receive credit for seniority.”

Prior to 1941, there was apparently no statutory provision requiring that a civil service examination be in writing. 106 Ohio Laws, 400, 406; 108 Ohio Laws (pt. 2), 1198; 111 Ohio Laws, 389; 114 Ohio Laws, 169. In that year, the portion of Section 486-10, General Code, which corresponds to what are now the last two sentences of the first paragraph of the statute, was amended to read in part: “Such examination * * * shall be in writing * * *.” In the same act there was added to Section 486-10, General Code, what is now the first sentence of the second paragraph of the statute, except that the words, “which shall be in writing,” were not included therein. 119 Ohio Laws, 743.

Subsequently, in 1943, the words in the first paragraph of Section 486-10, General Code, which read, “shall be in writing,” were replaced by the words, “shall be written, or written and oral, as the commission may determine,” and, at the same time, there were inserted in the first sentence of the second paragraph of the section, after the words, “promotion examinations,” the words, “which shall be in writing.” 120 Ohio Laws, 103. Since the words so inserted after “promotion examinations” were the same words of limitation as had been removed from the previous paragraph of the statute, as a limitation with respect to examinations generally, the General Assembly quite clearly expressed an intention that at least the part of the promotional examination, which involved asking questions of a candidate and the giving of his answers thereto, was to be “in writing. ’ ’

It is, then, apparent that the statutes above referred to contemplate the following, with respect to promotions in the classified service:

I. Records shall be kept by each civil service commission regarding the efficiency, i. e., conduct and capacity in office of each employee.

II. Promotions shall be made on the basis of “merit.”

III. The “merit” upon which a promotion shall be based shall be determined as far as practicable from promotional examinations which shall include in the maximum mark attainable therein:

1. The grade on an examination composed of questions and answers, which shall be entirely in writing.

2. Credit for seniority in service according to the predetermined formula set out in Section 143.16, Revised Code.

3. Credit for efficiency, i. e., conduct and capacity in office.

As there are many varying methods of setting up examinations and weighting the questions asked, the examination in question must be viewed from the standpoint of the civil service commission which gave it, and it is apparent that it was considered as a single examination having multiple parts, written, oral and predetermined credit for seniority. Viewed in such a manner, it follows necessarily that if one part of such an examination is unlawful then the whole examination must fail, and it is not possible to consider merely the written portion thereof and decide from that who is entitled to the promotion for which the examination was given.

Respondent contends that relator, by failing to object to the examination prior to taking it, has waived any right he may have to attack it in the present action in quo warranto.

In considering such contention, it is necessary to note the position of the court, the relator and the respondent in the present action.

Section 2733.01, Revised Code, provides in part:

“A civil action in quo warranto may be brought in the name of the state:

“(A) Against a person who * * # unlawfully holds * * * a public office * * *.”

Sections 2733.04 and 2733.05, Revised Code, deal with the bringing of such action by the Attorney General or a prosecuting attorney, and Section 2733.06 provides that “a person claiming to be entitled to a public office unlawfully held and exercised by another may bring an action therefor by himself or an attorney at law, upon giving security for costs.”

The record in the instant case shows that it was instituted on behalf of relator, in the name of the state, by two attorneys at law. Thus, the present action was brought under favor of Section 2733.06, supra.

Section 2733.08, Revised Code, states in part:

“When an action in quo warranto is brought against a person for usurping an office, the petition shall set forth the name of the person claiming to be entitled to the office, with an averment of his right thereto. Judgment may be rendered upon the right of the defendant, and also on the right of the person averred to be so entitled, or only upon the right of the defendant, as justice requires.” (Emphasis added.)

In the case of State v. HeinmiUer, 38 Ohio St., 101, an action in quo warranto brought by the Attorney General, in the opinion at page 110 it is said:

“It is also claimed on behalf of defendant, that the petition in this case is defective in not setting forth the name of the person who claims to be entitled to the office, as required by Section 6766 of the Revised Statutes. This section applies only to proceedings prosecuted by the person who claims the office as provided in Section 6764, and such showing is certainly necessary where a judgment of induction as well as ouster is sought.” (Emphasis added.)

An examination of the history of Sections 6766 and 6764, Revised Statutes, shows the provisions of each, respectively, to be identical in force and effect to the provisions of Sections 2733.08 and 2733.06, Revised Code. This court has, then, found that Section 2733.08, Revised Code (Section 6766, Revised Statutes), applies to proceedings prosecuted by the person who claims the office as provided in Section 2733.06, Revised Code (Section 6764, Revised Statutes).

The question for decision is whether that part of Section 2733.08, which states, “judgment may be rendered upon the right of the defendant, and also on the right of the person averred to be so entitled, or only upon the right of the defendant, as justice requires,” empowers the court, in an action properly before it as hereinbefore set out, to issue an order of ouster without first finding that a relator in an action brought in the name of the state and according to the terms of Section 2733.06 is entitled to the office in question.

A summary of the history of the action in quo warranto is found in State, ex rel. Lindley, v. Maccabees, 109 Ohio St., 454, 456 et seq., 142 N. E., 888. See, also, Newman v. United States, ex rel. Frizzell, 238 U. S., 537, 543 and 544, 59 L. Ed., 1446, 35 S. Ct., 881.

Suffice it to say here that, although Section 2733.06, Revised Code, empowers an individual claiming in good faith to be entitled to a public office, held by another, to bring the action of quo warranto upon his own initiative, it is apparent from the statutes that such action must be brought in the name of the state.

That is, the mere power, granted by statute, to initiate the action neither reduces the controversy to the status of a private quarrel nor divests the state of its historical interest in the persons who hold public offices therein.

Also, this court has held that in such an individually initiated action the relator, to be successful, must prove not only that he is entitled to the office in question but also that a person who is presently occupying such office is not entitled thereto. See State, ex rel. Heer, v. Butterfield, 92 Ohio St., 428, 111 N. E., 279, where this court said, in the first paragraph of the syllabus:

“In order that a private relator may be entitled to maintain an action in quo warranto under Section 12307, General Code [Section 2733.06, Revised Code, Section 6764, Revised Statutes], to recover a public office, he must show not only that he is entitled to the office, but also that it is unlawfully held and exercised by the defendant in the action.” (Emphasis added.)

Thus, the statutes have been construed to contemplate two elements which must be proved by a relator in such an action, in order for Mm to be completely successful — (1) the respondent is unlawfully occupying the position and (2) the relator is entitled thereto.

In stating, however, that “judgment may be rendered upon the right of the defendant, and also on the right of the person averred to be so entitled, or only upon the right of the defendant, as justice requires,” it is apparent that Section 2733.08 recognizes that a relator’s proof may fail in regard to one element and yet succeed with respect to the other, and provides that in such instance the court, as representative of the state, shall step in and render whatever decision is required by justice.

In the case of Gano v. State, ex rel. Robinson, 10 Ohio St., 238, an action in quo warranto brought by an individual claiming that a respondent was exercising the powers and functions of an office to which the relator had been appointed, and that the respondent was figuratively usurping an office to which the relator was claiming to be entitled, this court said, at page 241:

“Again: It is claimed that the District Court erred in rendering a judgment of ouster against the respondent, without passing upon the right of the relator to the office of chief of police. But we think the third section of the act of March 17, 1838, ‘relating to informations in the nature of quo warranto,’ etc. (1 Curw., 435), taken in connection with the first section of the amendatory act of March 18, 1839 (1 Curw., 562), clearly authorize such a judgment.”

An examination of the history of this legislation shows that “the third section of the act of March 17, 1838 # * * (1 Curw., 435), taken in connecton with the first section of the amendatory act of March 18, 1839 (1 Curw., 562),” is identical in force and effect to the provisions of Sections 2733.08 and 2733.06, Revised Code.

This court said, in the second paragraph of the syllabus of the Gano case:

“In an information in the nature of a quo warranto, filed by a claimant of an office against one who is alleged to have usurped the same, the court may, in a proper case, render a judgment of ouster against the defendant to the information. without passing upon the rights of the claimant who files the information.”

Applying the foregoing to the instant case, we find that the certification of respondent was unlawful, since it was based upon the result of a promotional examination which was not authorized by law, and that respondent is not entitled to the position of chief of police of Findlay, Ohio.

Since it would be the very antithesis of reason to order the relator installed in the position from which respondent is ousted, for the reason that he received a higher grade in part of an examination which we have found to be unlawful in toto, and upon which unlawfulness we base the ouster of respondent, it is apparent that a new examination must be given in order that the position here in question may be lawfully filled.

Relator had reasonable grounds to believe himself entitled to the position here in question, and, in our judgment, he began the action as expeditiously as could reasonably be expected, and in good faith. Since, however, the very facts which cause us to affirm that part of the judgment of the Court of Appeals which orders the ouster of respondent also preclude us from ordering relator certified and appointed, we do not reach that point at which it is necessary or advisable to consider whether relator is for any other reason not entitled to the office he seeks.

Accordingly, the judgment of the Court of Appeals is affirmed, so far as it orders the ouster of respondent, and reversed, so far as it orders relator certified and appointed chief of police of Findlay, Ohio.

Judgment affirmed in part and reversed in part.

Weygandt, C. J., Hart, Zimmerman and Stewart, JJ., concur.

Bell and Taft, JJ., concur in paragraphs one and two of the syllabus but dissent from the judgment.

Taft, J.,

dissenting. I agree with respondent’s contention that relator by his conduct waived his right to object to the method of examination.

It is conceded that there is no justification on this record for finding any fraud or bad faith on the part of either the civil service commission or respondent.

The agreed statement of facts reads in part:

“5. That prior to said examination the civil service commission of the city * * * posted on the bulletin board of the police department a notice of examination which stated that 75 per cent of said examination would be written and 25 per cent of the examination would be oral and interview; that the plaintiff-relator saw said notice and made no objection to the oral part of said examination at any time prior to examination, made no objection during the written and oral examination, and made no objections after said written and oral examinations until after the civil service commission announced the grades resulting from said examinations. ’ ’

It is apparent that relator’s conduct, as so described, was inconsistent with any contention that the Findlay civil service commission had no authority to use “the method of examination” which it used and which had been so described in the notice of examination.

If the relator had objected to that method of examination, the commission might have agreed with his present contention that the commission was not authorized to use that method. However, with full knowledge of all the facts, which he now contends made the use of that method illegal, relator not only did not warn the commission against doing what he now claims it had no legal authority to do but his conduct, in taking the examination without objection, amounted to a recognition of the legal authority of the commission to do what it did. As a result, the commission went ahead with the examination in accordance with its notice. Further, respondent, who might have joined with relator in questioning the authority of the commission to use the method which it used in conducting the examination if relator had questioned that authority, reasonably assumed that no question would be raised with regard thereto and expended his time and effort in taking the examination.

Relator is in the position of one, who has been told that a certain rule will be applied in a game, has not objected to that rule because he could not anticipate whether its application would help or hinder his play, has played the game and lost because of the application of the rule, and then for the first time after losing claims that the rule was wrong and so the game should be played over again.

As stated in 19 American Jurisprudence, 650, Section 50:

“Generally speaking, a party will not be permitted to occupy inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts and another will be prejudiced by his action. ’ ’

However, relator contends that the action of the commission in conducting an examination which was partly oral violated laws which are declaratory of public policy and were enacted in the public interest; and that a person cannot waive his rights or privileges if such a waiver would constitute a violation of public policy. There would of course be a violation of public policy involved in an action of the commission refusing to have a promotional examination “in writing,” at least so far as' such examination consisted of -inquiries of and answers by the candidates for promotion. However, it is difficult to comprehend how a waiver by relator of his right to insist upon having that part of such an examination in writing would represent any more serious an interference with public policy than would his voluntary decision not to take the examination at all. He could certainly refuse to take the examination. ' -

Paragraph one of the syllabus in Tone v. Columbus, 39 Ohio St., 281, 48 Am. Rep., 438, reads:

“The principles of estoppel apply as well where proceedings of a [municipal] corporation are questioned on the ground of the unconstitutionality of the statute under which they are had, as where they are attacked upon other grounds, unless such proceedings, or what is sought to be accomplished by them, are per se illegal or malum prohibitum. Want of power in the corporation may be waived, or an estoppel may arise from failure to assert it at the proper time.”

See also Board of Commrs. of Darke County v. Board of Commrs. of Mercer County, 93 Ohio St., 37, 112 N. E., 147.

This court has previously consistently recognized that a certification to the appointing officer such as was made to and acted upon by the mayor of Findlay in the instant case, although incorrect or not in compliance with the civil service laws, may be effective.

Thus, in Kluth v. Andrus, Dir., 157 Ohio St., 279, 105 N. E. (2d), 579, this court gave effect to a certification by a city civil service commission although it was based on a “promotional * * * examination” which “did not fully comply with the civil service laws” (paragraph one of the syllabus) by reason of its “inclusion of weight for the so-called performance record” which was in that case conceded (157 Ohio St., at 282) to be “contrary to the civil service laws of Ohio.” Also, in State, ex rel. Byrd, v. Sherwood, Dir., 140 Ohio St., 173, 42 N. E. (2d), 889, effect was given to “an incorrect certification of an eligible list” (paragraph two of syllabus) which was incorrect and claimed to be “void for the reason that it did not contain the names of persons as candidates in the order of their respective rank as required by Section 486-12, General Code” (140 Ohio St., at 182).

In Board of Trustees v. State, ex rel. Laird, 128 Ohio St., 560, 192 N. E., 877, the board of trustees of a state institution contended that certain sections of the General Code “provide that the board shall designate the superintendent * * * and that the superintendent shall appoint the matron” so “that it was wrong for the Civil Service Commission to conduct a joint examination for superintendent and matron and * * * such a combined examination is illegal” (128 Ohio St., 563, 564). With regard to that contention, paragraph one of the syllabus of the case reads:

“A petition for writ of mandamus, to compel the board of trustees of a children’s home to appoint a superintendent from a certified list furnished by the Civil Service Commission of Ohio, is not insufficient in law merely because it shows that the examination preliminary to the preparation of such list was a combined examination of applicants for the positions of superintendent and matron. Objection by a board of trustees, to such combined examination, is not timely if made first by demurrer to such petition. ’ ’

As stated in the opinion at page 564:

“If anyone for good cause wished to object, he should have done so prior to the examination.”

In the same case an applicable statute provided that, on being notified that a position in the classified service was to be filled, “the commission shall * * * certify to the appointing officer thereof the names * * * of the three candidates standing highest on the eligible list.” See 106 Ohio Laws, 408, and 103 Ohio Laws, 704. Paragraph two of the syllabus of the case reads:

“Such petition is not insufficient in law merely because it shows that one of the persons named on such certified list died after preparation of the list. Having failed to request of the Civil Service Commission a complete list of three names, the board of trustees-may not object to a list of two names by demurrer to such petition. ’ ’

With respect to that paragraph of the syllabus, it is stated in the opinion at page 564:

“* * * one of the three persons named in the certified list, had died. The board of trustees contends that it was illegal for the court to order it to make an appointment from a list containing only the two remaining names. There is no doubt that the board of trustees had a right to request a certified list of three names. If the board failed to make such request, however, it cannot complain, and an appointment made from a certified list of less than three would not be illegal. * * # If a request of the board of trustees for a full certified list had been denied, and such fact had been set up by answer, a writ of mandamus could not have issued to compel an appointment from a list of two names * * *.”

This court unanimously affirmed a judgment of the Court of Appeals which had allowed a writ of mandamus to compel the appointment.

In State, ex rel. Shapman, v. Lesser, Dir., 94 Ohio St., 387, 115 N. E., 33, where substantially the same statute requiring certification “of the three candidates standing highest on the eligible list” was involved, paragraph four of the syllabus reads:

‘ ‘ The appointing authority may demand that the civil service commission certify a list containing at least three names, before making an appointment, but where a list is submitted containing less than three names and the appointing authority accepts the list and makes the appointment, such appointment is valid. ’ ’

In view of such decisions, it should be obvious that the method of examination adopted by the civil service commission in the instant case did not represent the doing of anything “per se illegal or malum prohibitum.” At most, in using the method of examination which it used, the commission acted with what was referred to in paragraph one of the syllabus of Tone v. Columbus, supra, as a “want of power.”

In my opinion, therefore, relator could waive or be estopped to assert his right to have the examination wholly “in writing.” I believe that this conclusion also finds support in our decisions in Moore v. Thompson, 161 Ohio St., 339, 119 N. E. (2d), 283 (election for judge not set aside where ballot failed to indicate term as required by statute and where printed proofs of official ballots not posted as required by statute, because defeated candidate by conduct had indicated knowledge before election of form of ballot and had not questioned it until after election); Mehling v. Moorehead, 133 Ohio St., 395, 14 N. E. (2d), 15 (“all formal objections which can be made should be made seasonably before an election”); and State, ex rel. Whetsel, v. Murphy, 122 Ohio St., 620, 174 N. E., 252 (election not set aside on account of improper descriptive matter on ballot because “election has already been held, and no objection was made to the descriptive matter, although it appears that by the exercise of due diligence an effective objection could have been made in time to have prevented the descriptive matter being placed upon the ballot”). See also State v. Tudor, 154 Ohio St., 249, 257, 95 N. E. (2d), 385; Rhoades v. City of Cleveland, 157 Ohio St., 107, 115, 116, 105 N. E. (2d), 2.

Actually, in a case of this kind, there is much force to an argument that it would be a violation of public policy if the relator should be allowed to prevail. Thus, in People, ex rel. Lewis, v. Waite (1873), 70 Ill., 25, it is said in the opinion of the court by Mr. Justice Scott:

“It is insisted * * * the election was void, for the reason it was not held at the place designated in the notices required by law to be posted prior to holding the election.

“ * * * relator participated in the election he now seeks to have declared void, by voting thereat, and was himself an opposition candidate to respondent. Relator knew then, as well as now, what irregularities had intervened in the conduct of the election, and he ought not to be permitted to disturb the public welfare by having an election declared void, in which he participated with full knowledge of all irregularities that existed. A sound public policy forbids it. The only informality charged is, the election was held at an improper place. This fact was known to relator. He uttered no complaint at the time, but submitted his claims to the office to the voters of the town voting at that place, and claimed the right to and did have his own vote recorded. These facts make it inequitable that he should have the remedy sought * #

It may be observed that the parts of the case of Gano v. State, ex rel. Robinson, 10 Ohio St., 238, relied upon in the majority opinion appear to be inconsistent with the subsequent decisions of this court in State, ex rel. Smith, v. Nazor, 135 Ohio St., 364, 368, 21 N. E. (2d), 124, and State, ex rel. Joecken, v. Lynch, 123 Ohio St., 676, 177 N. E., 765.

Bell, J., concurs in the foregoing dissenting opinion.  