
    SCHROEDER Dir of Pub Serv et v STATE ex THOMAS & 5 others (6 cases)
    Ohio Appeals, 6th Dist, Lucas Co
    Nos. 2154-5-6-7-8-9.
    Decided January 2, 1929
    Mr. George W. Ritter, Director of Law, and Mr. Martin S. Dodd, Assistant Director of Law, Toledo, for plaintiff.
    Mr. W. S. Thurstin, Jr., Toledo, for defendants.
   LLOYD, J.

The only question presented for decision to this court is whether or not the court of common pleas is correct in holding that relators having been appointed under subdivision “g” of Section 172 of the charter and Rule 58 of the Commission to positions within the competitive class of the classified service and for which, by competitive examination, eligible lists should be established, from which appointments thereto might be made, were protected against arbitrary discharge before the creation of such eligible list.

It was stated in argument, and the record discloses the fact so to be, that for many years it has been customary in Toledo to appoint employes without an eligible list and, if deemed expedient, summarily to discharge them. In following this heretofore unchallenged custom the motive of plaintiff in error is not in question, since it might perhaps be assumed that what had theretofore been done was rightly done and might properly be emulated. But customary violation of an express, lawful charter or statutory provision can not make such violation lawful.

It would seem that the common sense construction to be given to subdivision “g” of Section 172 of the charter and of Rule 58 of the Commission would be that employes appointed thereunder, unless lawfully removed for cause after due notice and hearing, as Drovided by the charter, are secure in their positions until such eligible list is .established and their successors appointed therefrom.

This being our conclusion as to the construction' that should be placed upon these provisions, it is clear to us that the judgments of the court of common pleas should be affirmed.

Richards and Williams, JJ., concur.  