
    The State, ex rel. Votaw, v. Matia, Dir. of Parks and Public Property.
    (Decided May 31, 1932.)
    
      Mr. Jos. L. Stern, for relator.
    
      Mr. W. Geo. Kerr and Mr. John A. Smith, for respondent.
   Levine, P. J.

The relator, Garfield A. Votaw, until recently occupied the position of commissioner of markets, weights and measures of the city of Cleveland. With the change in the charter and the personnel of the city government, the relator was relieved of his duties by the present director of parks.

The relator instituted mandamus proceedings in this court seeking a mandate from the court commanding the said director to reinstate him in his former position.

The defendant director, Felix T. Matia, filed an answer which contained several defenses. The substance of the first defense is that the relator belongs in the unclassified service and that therefore he may be appointed or dismissed at will as not being entitled to the protective measures afforded to those who are in the classified service.

In order to determine this question, a study of the provisions of the state law relating to civil service, and of the provisions of the charter of the city of Cleveland relating to the same, becomes necessary.

Long prior to the enactment of the present city charter by the people of Cleveland the Legislature of Ohio passed what is known as Section 486-8, General Code of Ohio. Therein are contained twelve specifications as to what persons or classes of persons are to be embraced in the “unclassified service.” Specification three specifically includes “all heads of departments appointed by the mayor.”

In State, ex rel. Franke, v. Minshall, which case arose in Cuyahoga county, and is reported in 10 Ohio App. at page 86, this court held that the office of sealer of weights and measures is by virtue of Section 486-8, General Code, placed in the unclassified service and is not subject to civil service examination. It is true that the decision in above case was rendered prior to the adoption of the present charter by the people of Cleveland, and it is likewise true that where there appears to be a conflict between a state law and a provision of the municipal charter, in a matter relating to civil service, the charter provision controls. We take it as conceded, under the decision of State, ex rel. Franke, v. Minshall, supra, that if Section 486-8 were not in any way modified, changed or contradicted by the later charter provisions, the relator would be deemed to be in the unclassified service.

Does the present charter of the city of Cleveland contain a provision or provisions changing, modifying or contradicting Section 486-8, specification 11, General Code of Ohio?

We shall quote from the present charter of the city of Cleveland, Section 126, which provides in part as follows:

“The civil service of the city is hereby divided into the unclassified and the classified service.

“1. The unclassified service shall include: * * *

“(f) Such heads of divisions and such immediate executive assistants as the civil service commission shall from time to time, by rule, determine.”

It is noteworthy that the charter does not provide that heads of departments appointed by the mayor shall, unlike the classification of the General Code, be placed in the “classified service.” It leaves it instead to the discretion of the civil service commission to either permit the provision of the General Code to continue to operate, or to nullify said provision by enacting a rule to the contrary. It is our opinion that, while the express language of a charter adopted by the people of Cleveland may abrogate or nullify a state law pertaining to the civil service, such result cannot be accomplished by a provision of the charter delegating authority to the civil service commission to nullify the same by the adoption of a rule.

We reiterate the holding of this court in the case of State, ex rel. Ryan, v. Kerr, Dir. of Law, 42 Ohio App., 19, 181 N. E., 546, decided May 23, 1932, that where the charter contains no express language contradicting an existing state law relating to the civil service this court must attribute an intention to the framers of the charter to harmonize the provisions of the charter with those of the state law. By reference we adopt the reasoning of this court, in so far as the same is applicable, in the case of State, ex rel. Ryan, v. Kerr, supra.

The writ of mandamus will be denied and the petition of the relator is ordered dismissed.

Writ denied.

Weygandt, J., concurs.

Vickery, J., not participating.  