
    MUNICIPAL CORPORATIONS — OFFICE AND OFFICERS.
    [Cuyahoga (8th) Circuit Court,
    November 9, 1910.]
    Marvin, Winch • and Henry, JJ.
    
      Andrew B. Lea v. State ex rel. Baker.
    Director of Public Service Reauired to Certify Vacancy to Civil Service Commission before Merit System in Full Operation,
    An action lies to compel a director of public service to certify a vacancy to the civil service commission, notwithstanding at the time of the occurrence of the vacancy the civil service commission had not prepared rules and regulations adapted to carry out the purpose of the civil service act with reference to examinations and promotions.
    [Syllabus by the court.]
    Error to common pleas court.
    
      Mathews & Orgill, for plaintiff in error.
    
      Newton D. Baker, city solicitor, for defendant in error.
    
      
       Affirmed, no. op., Lea v. State, 83 O. S. 518
    
   HENRY, J.

The parties to this proceeding in error stand here in the relation opposite to that in which they stood in the court of common pleas. The action there was brought by the city solicitor to compel the director of public service of the city of Cleveland to certify a vacancy in the position of inspector of street lighting to the civil service commission, to the end that said commission might certify back to him the names of three qualified persons, from among whom to choose in filling said vacancy, pursuant to the provisions of “An act to amend and supplement certain sections of the municipal code of 1902,” etc. (99 O. L. 562.)

Among the new provisions of law in this act are those of Secs. 157 to 165 inclusive of the municipal code (Secs. 4479-4488, Gen. Code) extending the merit system of appointment to all but certain excepted positions in the municipal service. These sections became effective January 2, 1910.

Section 129 of the municipal code (Sec. 4247 Gen. Code) was amended by the same act (99 O. L. 562), and this part of the act became effective August 1, 1909. It provides among other things that “the directors and officers provided for in this act shall have the exclusive right, subject to the limitation herein prescribed, to appoint all officers, clerks and employes in their several respective departments or offices, and shall likewise, subject to the limitations herein prescribed, have sole power to remove or suspend any such officers, clerks or employes.”

The present inspector of street lighting was appointed January 29, 1910, after the civil service commission was appointed, but before it had prepared rules and regulations adapted to carry out the purposes of said act as provided by Sec. 159 thereof (Sec. 4480 Gen. Code).

The theory of the petition below is that he was appointed pursuant to Sec. 165 of said act (Sec. 4488 Gen. Code) which reads as follows:

“To prevent stoppage of public business or to meet extraordinary exigencies, as provided in this act, the mayor may make temporary appointments. ’ ’

The contention of the defendant below is that the present inspector of public lighting was appointed pursuant to the general appointive power vested by Sec. 129 in “the directors and officers” of the city for “their several respective departments.” He argues that the fact that rules and regulations bad not yet been prepared by the civil service commission to put the merit system into actual operation can not be deemed to have suspended the general appointive power of heads of departments and to have restricted the exercise of the appointive power to the making of emergency appointments by the mayor.

It seems clear, however, that no such dilemma was created by the circumstances which then obtained. It was not necessary that the civil service commission should complete preparation of rules and regulations and other preliminaries to the full operation of the merit system, in order to respond to a notification that the occurrence of a vacancy required the certification of three persons eligible to fill it. The provisions of See. 160 of the act (Sec. 4481 Gen. Code) are plain and imperative :

“Appointments shall be made in the following manner: The appointing board or officer shall notify the commission of any vacancy to be filled. The commission shall thereupon certify to such board or officer the three candidates graded highest in the respective lists as shown by the result of such examination. Such board or officer shall thereupon appoint one of the three so certified.”

If delay ensued in following out of this procedure, so as to threaten “the stoppage of public business,’'’ the mayor might “make temporary appointments” until the commission could act.

But it does not appear on this record that any effort was made to have the commission act. When the vacancy occurred it was filled without certifying the- fact of vacancy to the commission at all. The commission might well have been able to expedite their action if occasion had arisen calling upon them to act.

The action below was decided on the pleadings, a demurrer to tbe answer having been sustained and judgment rendered. We discern ,no error in this record, and the judgment is affirmed.

Marvin and Winch, JJ., concur.  