
    Martinez v. City of Cleveland.
    (Decided February 11, 1929.)
    
      Mr. Gilbert Morgan, for plaintiff in error.
    
      Mr. Francis B. Douglass, for defendant in error.
   Mauck, J.

By affidavit in the municipal court of Cleveland, Joseph Martinez was charged with making a false representation regarding himself to the civil service commission of the city by representing that he lived in said city, when, in fact, he lived in Lakewood; and it was further charged that the representation was unlawfully and corruptly made for the purpose of deceiving the civil service commission as to his eligibility for a municipal position. The accused demurred to this affidavit, and the demurrer was overruled. The parties agreed substantially that the affidavit was true, and upon that agreement the accused was found guilty and sentenced to pay a fine. Error is prosecuted to this judgment of conviction, the sole claim here being that the facts charged in the affidavit constitute no penal offense.

The parties agree that the charter of the city of Cleveland provides that any person who “violates any of the civil service provisions of this charter, or any of the rules of the commission made in pursuance thereof, shall be guilty of a misdemeanor; ’ ’ and it is further agreed that the charter undertakes to provide for the punishment by fine of any one who willfully deceives any person in respect to his right to be examined for admission to the civil service of the city of Cleveland.

By another section of the charter the civil service commission, therein provided for, is empowered to adopt such rules not inconsistent with the charter as may be necessary and proper for the enforcement of the merit system. It is further agreed that among other rules adopted by the commission is one that requires an employee of the city to be a resident of the city. It is therefore apparent that, when it is admitted that plaintiff in error did for the purpose of obtaining a position falsely represent that he was a resident of the city of Cleveland, he was liable for the penalty in case it is found that the provisions of the charter referred to are operative and that the rule made by the commission is a valid one.

It is contended that there was no authority to include in the city charter any such purely legislative proceeding as the imposition of a penalty, and, further, that the charter could not delegate to the civil service commission the power to make a regulation that the city employee must be a resident of the city. An attempt has been made to draw an analogy between the Constitution of the state and the law-making power of the state on the one hand, and the city charter and the legislative branch of the municipal government on the other. We are content with that analogy. The instances are perhaps not numerous where a constitution enters into legislative details, but instances are available. The Constitution of Kentucky, for instance, by its Section 217, prescribes definite penalties for the violation of the railroad regulations of that instrument, and those provisions have been enforced by the courts of that state without questioning their validity.

In 12 Corpus Juris, 731, and the cases there cited, will be found other illustrations of self-executing constitutional provisions, including some where definite penalties are imposed. If the framers of the charter of the city of Cleveland and the people who adopted their work felt that the civil service ought to be protected against the possible failure of council to legislate, we know of no law that prevents their incorporating in the fundamental law of the city the provisions now under review.

The regulation of the civil service in the municipality is clearly within the scope of local self-government, and it was competent for the local authorities to make such regulations regarding such service as they saw fit, although the regulation may not have been specifically authorized by the Constitution or laws of the state. State, ex rel. Lentz, v. Edwards, 90 Ohio St., 305, 309, 107 N. E., 768. Nor is the suggestion sound that it was not competent to delegate to the civil service commission the power to make regulations having the force and effect of law. In Green v. State Civil Service Commission, 90 Ohio St., 252, 107 N. E., 531, it was held that the state Constitution could delegate to the state civil service commission the power to make such regulations, in respect to the civil service administered by that commission, and by a parity of reasoning a city charter can delegate like powers to a municipal civil service commission.

The regulation in question was a valid one, and penalties for its violation were fixed by competent authority.

Judgment affirmed.

Middleton, P. J., and Roberts, J., concur.

Middleton, P. J., and Mauck, J., of the Fourth Appellate District, and Roberts, J., of the Seventh Appellate District, sitting in place of Judges Vickery, Levine and Sullivan, of the Eighth Appellate District.  