
    The State ex rel. Attorney General v. Hoglan et al.
    
      Removal of public officer — For specified causes — Facts must be stated that are relied on for removal — Right of officer to be heard — Misconstruction of statute not evidence of incompetency — Proceeding in mandamus should be employed, tolven ■ — Civil service commissioners — Removal of by mayor.
    
    1. When a public officer may be removed for specified causes, such facts must be stated as in judgment of law, constitute the cause relied on, and an opportunity afforded the ' officer to , be heard, before he can be legally removed. . ,
    2. The misconstruction of a statute, about which there may be ' an honest difference of opinion, is not such evidence of iii-competency, or misconduct, in the officer as to warrant his removal on either of these grounds.
    3. The proper remedy in such case is a proceeding in mandamus to compel him to act in accordance with the required construction or to show cause why he does not.
    (Decided May 14, 1901.)
    In Quo Warranto.
    
      J. M. Sheds, Attorney General; Gilbert H. Stewart; E. B. Kinkead; Geo. B. Okey; E. B. Dillon’ and Henry Gamble, for plaintiff.
    ‘ •The act of April 14, 1900, entitled, “An act to regulate and improve the civil service in certain depart-meats within cities of the first grade of the second class,” 94 O. L., 603; Bates Rev. Stat., Sec. 1545-165a; provides :
    “Section 1. * * * The mayor may remove any commissioner for incompetence, neglect of duty, mal1, feasance in office, habitual drunkenness or gross immorality ; and any manifest failure on the part of any commissioner to enforce the provisions of this act, according to its true intent and purpose, shall be deemed incompetency.”
    No proposition of law is more firmly settled in this state than that the power of removal from office can not be exercised “arbitrarily, but only upon complaint, and after a hearing had, in which the officer is afforded an opportunity to refute the case made against him.” State ex rel. v. Sullivan, 58 Ohio St., 504.
    The court has been so recently over the ground that it seems a work of supererogation to do more than to' cite the cases, where, in State ex rel. v. Hawkins, 44 Ohio St., 98; State ex rel. v. Bryson, 44 Ohio St., 457; State ex rel. v. McLain, 58 Ohio St., 313, and State ex rel. v. Sullivan, 5S Ohio St., 504, the exhaustive opinions of Judges Minshall, Williams and Spear leave nothing to be added upon the subject.
    If mayor Hinkle had afforded the members of the civil service commission an opportunity to refute the charges made against them, if they embodied facts which, in judgment of law constituted such official misconduct as the civil service act prescribes as grounds for removal, and evidence had been adduced on the hearing tending to establish them, his action might have been final and conclusive.
    The members of the commission were charged and the mayor found that they were guilty of “gross offi-cial misconduct and incompetency and neglect of duty,” and that finding was made a matter of public official record.
    The mere faet that the character of the charges were not such as to reflect upon the integrity of the members can not be claimed to dispense with or create an exception to the rule requiring an opportunity to be afforded for a refutation of the accusation. The character of the charges can not affect the well established principle.
    The public record will always show that these officers were guilty. The record of a sentence convicting them of gross official misconduct, and incompetency and neglect of duty stares them in the face for all coming time.
    It will be seen by reference to Mayor Hinkle’s order' of removal that he found that it was known to hion that the charges and specifications were true and that “no investigation or hearing, and no exercise of judicial power,” were necessary.
    •• We feel that we might well stop at this point, and rest our case upon the single proposition that the action of the mayor was void because no opportunity was afforded the removed officers for a hearing, but believing that possibly the court might desire to look further into the case, we will present, briefly, our views on the other questions.
    It is provided in the civil service act—
    “Sec. 5. In case of any vacancy in the classified service of said city, notice shall be given the com-v mission by the appointing power of said vacancy, and thereupon the commission shall certify in writing to the appointing power, the. names, addresses and grades of the candidates, not exceeding three in number, for any such vacancy, whose names shall stand highest on the appropriate register, and it shall then he the duty of the appointing power to appoint on probation, to fill such vacancy, one of the said candidates whose name shall have been so certified.”
    The offense, in a nut shell, with which the members of the civil service commission were charged by the director of public safety was that in response to his requisition they transmitted to him but a single name, when they should have sent him more than one, and that that had been their practice with respect to Ms predecessor in office.
    It is obvious that the construction placed upon section 5 of the act by the members of the commission was done so conscientiously and with the deep conviction that it was the true one.
    The question then arises whether the charges were of a character that, in judgment of law, constituted incompetence, neglect of duty, malfeasance in office, habitual drunkenness, or gross immorality or manifest failure to enforce the provisions of the act according to its true intent and purpose, they being the grounds for removal provided for in section 1 of the act.
    A case directly in point is that of the State ex rel. v. Roll, 1 Dec. (Re.), 284; 7 W. L. J., 121, noted as well on account of the eminent men who were of counsel as of those whose election was involved in its hearing.
    But we insist that the construction placed upon section 5 by the commissioners was proper.
    While it is true that under section 5 of the act, the commission is required to certify “the names, addresses and grades of the candidates (using the plural), not exceeding three in number,” and which upon hasty reading would seem to be free from ambiguity, and to mean more than one name, yet when the object, purpose and policy of the statute are considered, it becomes apparent that the letter of the act must be subordinated to the intent.
    The spirit, the reason, the principle, of a law overshadows the letter of the lavr. Bishop, Written Laws, Sec. 92.
    The statute of frauds has been the subject of fierce litigation, of ingenious arguments and elaborate discussions. Every syllable of it, said a great judge, is worth a subsidy. But if it had been construed and enforced according to its strict letter, it would have promoted more frauds than it prevented.
    “In construing statutes, we should look to the real object and intention of the law makers, as gathered from an examination and comparison of the context of the whole act — its spirit and import.” People v. Canal Commissioners, 3 Scam., 153; United States v. Kirby, 7 Wall., 182; Sutherland on Statutory Construction, Sec. 218.
    Language must be restrained to the sense in which it was used by the legislature in adopting ,the law. Goodall v. Brewing Co., 56 Ohio St., 257.
    The great object in the construction of statutes is to ascertain the intent and carry it out. The court does not make the law, but decides it. Ludlow v. Johnston, 3 Ohio, 553; Pancoast v. Ruffin, 1 Ohio, 381; Beaver v. Blind Asylum, 19 Ohio St., 97.
    The intention may be collected from the cause of necessity of the act, and a thing within the letter is not within the statute unless within its intention. Burgett v. Burgett, 1 Ohio, 169.
    The object of a statute and the mischief against which it was designed to guard will be looked to. 2 Ohio Digest, p. 2115, par. 72; Henry v. Trustees, 48 Ohio St., 671; Tracy v. Card, 2 Ohio St., 431.
    
      The ascertainment of the true intention is the cardinal rule, or rather the end and object, of all construction. Endlich on Interpretation of Statutes, Sec. 295.
    It is impossible to resist the conviction that, in enacting the Columbus civil service law, the highest efficiency in the classified service of the city was not only the chief, but the sole object of its enactment.
    An attempt had been made in what is familiarly known as the “Charter Law,” of the city of Columbus (Bates’ Stat., Sec. 1545-136) to establish the merit system in the police and fire departments of the city, but in its practical enforcement it had wholly failed in the purpose for which it was enacted. The main reason for its failure was, that its execution was left in the hands of the appointing power.
    The evils, then, which confronted the general assembly upon the introduction of the civil service bill, were:
    1. The inefficiency resulting from partisan control of muncipal affairs.
    2. The failure of the .attempt in the charter law, to correct those e'vils.
    In the light of these evils, it is,fair to assume that it was the intent of the legislature, in enacting the civil service law, to eradicate, root and branch, the possibility, in the remotest degree, of partisan politics controlling in municipal offices.
    If an adherence to the strict letter of the act destroys the design and purpose of its enactment, then, as we have shown, the letter must give way and be subordinated to the intent.
    Any construction of the act other than the one placed upon it by the civil service commission is absolutely destructive of its obvious spirit and intent.
    
      If the commission are required to certify more than one name to the appointing power, there is a possibility that the evils of partisan control will continue to exist.
    But it is claimed that the construction placed upon the act by the commission takes away from the heads of the city departments the appointing power conferred upon them by the Charter law (Bates’ Rev. Stat., Sec. 1545-111). That is not strictly true. It takes from them the power of selection only. They still have the power to appoint, and to appoint only on probation. We contend that it was the very object and purpose of the civil service act to take from the heads of departments the power of selection. That act was passed seven years after the “Charter Law.” It is the later enactment, and in so far as it is conflicting with it, it repeals it by implication. State v. Halliday, 63 Ohio St., 165.
    
      Luke Gr. Byrne; Franklin Rubrecht and Roy L. Wildermuth, for defendants.
    On April 14,1900, the act “to regulate and improve the. civil service in certain departments within cities of the first grade of the second class” was enacted. This act is found in 94 Ohio Local Laws, 603.
    Sec. 1 provides “That in cities of the first grade of the second class (Columbus) the mayor shall, within thirty days after the passage of this act, appoint four persons to constitute a civil service commission. * * * * They shall serve, one until the expiration of four years, one until the expiration of three years, one until the expiration of two years, and one until the expiration of one year, from the first day of September, 1900, and until their respective successors are appointed and qualified; and in the year 1901 and in every year thereafter, the mayor of such cities shall appoint, in the month of August, one person to serve as such commissioner for four years from the first day of September and until his successor is appointed and qualified.” * * * The mayor may remove any commissioner for incompetency, neglect of duty, malfeasance in office, habitual drunkenness, or gross immorality; and any manifest failure on the part of any commissioner to enforce the provisions of this act, according to its true intent and purpose, shall be deemed incompetency, and when the removal of any commissioner is made, the mayor shall file a written statement of the cause, or causes, for such removal with the clerk of said commission and the same shall be recorded in the records hereinafter provided.”
    Sec. 3 of this act [Bates’ Rev. Stat., Sec. 1545-165c] provides that “The said commission shall have power to and shall forthwith make rules to carry out the purposes of this act, and for regulating examinations and appointments to fill any and all vacancies in the classified service of such city, in accordance with its provisions.”
    Sec. 9 of this act [Bates’ Rev. Stat., Sec. 1545-165Í] provides that “Any person who shall wilfully violate any of the provisions of this act, or any rule promulgated in accordance with the provisions thereof, shall be guilty of a misdemeanor, and shall, on conviction thereof, be punished by a fine of not less than fifty dollars, * * * or by imprisonment for a term not exceeding six months, or by both such fine and imprisonment, in the discretion of the court.”
    Sec. 10. provides that “all acts and parts of acts, so far as inconsistent hereivith, are hereby repealed.” It is a proposition, which we think will not be seriously disputed, that the two enactments, the charter law, and the civil service commission law must he construed together. The civil service law is not more than it pretends to be in its title, “A bill to regulate; and improve the civil service in certain departments within the city.”
    By it, the legislature did not intend to curtail or abridge the appointing powers of the mayor, as conferred upon him under the charter law. (Paragraphs 99,103,112,114 and 117 of Columbus Charter Law, section 1545-89, et seq., Rev. Stat.) It did enlarge his appointing powers to constitute a civil service commission, which are not provided for in the charter law. In most instances the power to appoint an officer implies the right to remove him, where the law is silent in this regard. But in the case before us neither law is silent upon the mayor’s power to remove any appointee of his own. Under the charter law “he may remove at his discretion any director or other officer, or employee appointed by him,” and in the civil service law, this po wer 'is not attempted to be denied him. It is true, that in the civil service law certain grounds are set out upon which the mayor may remove a commissioner, to-wit: incompetency, neglect of duty, malfeasance in office, habitual drunkenness or gross immorality, yet these grounds are only cumulative, and must be read in the light of the powers of removal conferred upon the mayor by tlie< charter law, as a matter in his sole discretion. No provision is made for a trial or hearing, and the order to file a written statement of the cause or causes for such removal with the clerk is not a condition precedent to the removal by the mayor. The words used are “when the removal is made the charges shall be filed,” etc.
    
      By the terms of the act itself the filing of said charges is to be made simultaneously with the removal, or subsequently thereto, and not before the removal is made, and for the sole purpose of preserving a record thereof. This is the only impprtance which should be attached to-this provision of tire civil service law.
    The court will observe that a director or the head of any of the four departments, may remove or suspend any officer or employe of such department “by written order giving his reasons therefor.” No such condition in either law is prescribed for the mayor.
    The civil service commission is not and was not intended to affect or control the appointments by the mayor. The civil service commission is created to affect appointments coming through the heads of departments only. It was not intended by the civil service law to take away the appointing powers of the directors. It was to provide a means whereby the fitness of applicants for positions might be ascertained before their appointment by the director. It is the duty of the commission to examine applicants for positions or appointments, to be filled and made only by the several directors, as to their qualifications. The commission is an auxiliary only, to the four heads of departments. In his discretion the mayor may remove either head of the department at any time, and it would seem a. preposterous proposition to claim that he could not remove, under the same poAver, an auxiliary to the directors Avhich is likeAvise appointed by him. That power to remove was conferred upon him by the charter law. The legislature recognized it AArhen it passed the civil service Iuav, and it did not in express terms, or by implication, attempt to take that poAver aAvay from him. The mantle of importance which the members of the old board have flung about themselves, must have been obtained from some source, wholly outside of the law creating it. The mayor is now, as he was before, the recognized, responsible head of our municipal government. Under the charter law he lias a right to ' remove his appointees at Ms discretion. Under the civil service law he may remove for incompetency, neglect of duty, drunkenness, etc., and it is still left to his discretion, for terms are not imposed by this law. Had the legislature intended to have taken away this discretion, it would have been an easy matter to have done so. They could have provided for notices, hearings, trials, tribunals, and evidence, but they did not.
    We hardly believe that the decision in State v. Sullivan, 58 Ohio St., 504, under the Cincinnati statute, will be seriously urged as applicable to a removal under the Columbus statute.
    The members of the commission were defying the law; they adopted rule 5 in defiance of the civil service law7; they assumed to be greater in authority than the legislature itself; they refused in writing to comply with the law and authorized their secretary to communicate that refusal to the mayor, which he did. They knew7 that the legislature had defined such conduct to be “incompetency,” and they knew7 that even under the civil service law the mayor might remove them for incompetency. The mayor did not have to go to some court for a definition of “incompetency,” for the legislature had taken the pains to define it, in the act creating the commission, in these words: “And any manifest failure on the part of any commissioner to enforce the provisions of this act, according to its true intent and purpose, shall be deemed incompetency.” Under such circumstances it became the duty of the mayor to remove immediately, and if he should have failed to have so done, he himself would have been guilty of a neglect of his own duty as mayor, and would have forfeited his right to be called the person at the head of this municipal government. Wilcox v. People, 90 Ills., 186; State v. Fire Comm’rs, 26 Ohio St., 24; United States v. Corson, 114 U. S., 619; McElrath v. United States, 102 U. S., 426; Mimmack v. United States, 97 U. S., 426; Steubenville v. Culp, 38 Ohio St., 18.
   By the Court :

On the 19th day of April, 1901, Henry Gumble, Eugene M. Kerr, Edward' B. Dillon and William Fisher, constituted the civil service commission of the city of Columbus, Ohio, having been previously appointed and qualified as such under an act of the legislature passed April 14,1900 (94 Laws, 603), entitled an act to regulate and improve the civil service of cities of the grade and class of Columbus; and on that day the entire board was removed from office by the mayor of the city, John N. Hinkle, without notice or opportunity to be heard, by an order entered upon his records specifying as the ground of his order that they were incompetent for the duties of the office; and thereupon he appointed the defendants to constitute such board, who assumed to qualify and enter upon the duties of the board; and claim to hold the office and are interfering with the former members in the discharge of their duties. The prayer is that they may be required to show by what authority they do so, and that they may be ousted therefrom and enjoined from interfering with the members of the board in the discharge of their duties. The gist of the answer is that the board had misconstrued the statute under which it had been created, and assumed when requested by the proper department to furnish but one candidate from the list of eligibles for appointment. The contention arises upon, the proper construction of section 5 of the act, which is as follows:

“Sec. 5. In case of any vacancy in the classified service of said city, notice shall be given the commission by the appointing power of said vacancy, and thereupon the commission shall certify in writing to the appointing power, the names, addresses and grades of the candidates, not exceeding three in number, for any such vacancy, whose names shall stand highest on the appropriate register, and it shall then be the duty of the appointing power to appoint on probation, to fill such vacancy, one of the said candidates whose name shall have been so certified.”

By a construction placed upon this section, in a rule adopted to that effect, the removed board claimed that it complied with the statute by furnishing the name of one such person, when requested to furnish names for the purpose of appointment. The construction placed on it by the mayor is that it requires' the board to furnish the names of three such persons, or at least two and for the refusal of the' board to adopt his construction he made the order of removal, on the ground of incompetency.

The court is of the opinion that the commission erred in the construction it placed on the statute. The fair construction is that they should certify to the proper, department when requested at least two names, on the other hand we think the mayor is in error in his claim that it should certify three names. But such error of judgment is not of itself evidence of. such incompetency in the.board as would authorize its removal from office. Such errors frequently arise in the performance of their duties by public officers;, and it has not hitherto been regarded as an evidence of such ineora'petency as to require that they should be removed. We do not say that such a flagrant case might not occur as would require the exercise of such authority. Here, however, the construction of a statute is involved about which there is room' for an honest difference of opinion; and the proper remedy would have been a proceeding in mandamus, requiring them to certify , the number of names claimed by the mayor. This would have offered them an opportunity to be heard and to have obtained-a judicial construction of the statute. To remove an incumbent from office for an error of judgment in the construction of a statute that is open to doubt, and without an opportunity to be heard, seems rather too drastic-a remedy to be consistent with the liberal principles of our system of government.

Power is conferred on the mayor to remove any commissioner for incompetence, neglect of duty, malfeasance in office, habitual drunkenness, or gross immorality; and any manifest failure on the part of any commissioner to enforce the provisions of the act. The power is one that cannot be arbitrarily exercised. It requires charges to be made, supported by such a statement of facts as in judgment of law constitute the charge made; and an opportunity to the party to be heard. Whilst the court cannot pass on the truth of the facts alleged, or interfer with the discretion of the mayor in this regard, it may and will, when appealed to, pass on the sufficiency of the facts on \srhich the charges are made. State v. Hawkins, 44 Ohio St., 98; State v. Bryson, 44 Ohio St., 457; State v. McLain, 58 Ohio St., 313; State v. Sullivan, 58 id., 513.

We cannot accept the claim of the defendants, that the power to remove the board of commissioners, or any of its members, in the mode adopted by the mayor, is conferred on him by what is termed the charter law. Whatever powers of removal are conferred by that act, they do not apply to the removal of the members of the civil service commission. It was created and the mode of removal provided for, by a subsequent act, which provides the grounds upon which a removal may be had. The proyisions of this act govern the case, and are in no way varied by the provisions of the charter law. To remove any of its members without properly formulated charges and without an opportunity to be heard, would hardly be consistent with the principle of civil service. ■ Men of the requisite character and ability would hardly accept the position under such circumstances.

Judgment of ouster; and induction of former hoard.  