
    Eidt, Dir. of Safety and Service, et al., v. The State, ex rel. Birkline. Eidt, Dir. of Safety and Service, et al., v. The State, ex rel. Kray.
    (Decided May 8, 1931.)
    
      
      Mr. Harry M. Redington, for plaintiffs in error.
    
      Mr. R. H. Rice and Mr. Leonard Smith, for defendants in error.
   Washburn, J.

The parties will be referred to as they were in the court below.

In the common pleas court, F. Birkline, as relator, filed a petition against the city of Elyria and the director of safety and service thereof, in which he alleged that he became a regular member of the police department of the city of Elyria, Ohio, on the 3d day of March, 1903, and remained such until he was dismissed therefrom by the director of public safety and public service on January 5,1931, on the ground that his efficiency record had for some time been below a passing grade; that said efficiency record was not based on any facts of actual or claimed inefficiency, but was prepared by such director contrary to the established custom of the department; that said order of dismissal was made without said relator having been suspended by the chief of police and without any charges having been filed against said relator by the chief of police; that the notice of dismissal was insufficient in law; and that said director was without power or authority in law to dismiss relator and that his action was void.

The relator further alleged that he appealed said order of dismissal to the civil service commission of the city of Elyria, and that upon the hearing of such appeal said commission refused to inquire into the merits of such dismissal or consider evidence as to the truth or falsity or correctness or incorrectness of relator’s efficiency rating, but “arbitrarily and illegally sustained tbe action of such director, without permitting relator to introduce any evidence.”

Said relator prayed that “a writ of mandamus issue to the defendants herein commanding them to set aside said unlawful discharge or dismissal of this relator, and commanding them to restore him to membership in the said police department as a patrolman, and to all of his former rights as such member, and commanding them to pay to him his regular salary as a member of such department, and to restore him to any and all other rights of every kind and description which he has lost by reason of such unlawful dismissal.”

The defendants answered admitting that at the times mentioned in said petition the defendant, John N. Eidt, was, and still is, the duly appointed, qualified and acting director of public safety and service of the city of Elyria; that said city is a municipal corporation; that the said Fauldine Birkline entered the police department of said city on or about March 3, 1903, and continued to be a member thereof until February 1, 1931; that on or about January 5, 1931, the defendant, John N. Eidt, as such director of safety, served upon the relator a written notice of dismissal, dated January 3,1931, and containing' the language set forth in said petition; that at the time said notice of dismissal was issued and served, no charge, preferred by the chief of police of said city, was pending against the relator, and that the relator was not under any suspension by reason of any order of said chief of police; and that prior to January 3, 1931, no hearing was had by said director of safety relative to the dismissal of the relator from said police department because no longer able to render efficient service therein. They further admitted that on January 12, 1931, the relator filed with the civil service commission of the city of Elyria a written appeal from the said order of dismissal; that on January 30, 1931, said appeal was heard by said civil service commission; and that the said order of dismissal was by said commission on said date affirmed.

Except as hereinbefore admitted, the defendants denied each and every statement, allegation and averment in said petition contained.

As a further defense, which was treated by the attorneys and the trial court as. a second defense, the defendants plead adoption under authority of Section 486-19, General Code, of rules and regulations by the civil service commission of Elyria, including the establishment of efficiency records of those in the classified service, which rules provided, under Section-486-18, General Code, that any case “of failure” of a classified employee “to maintain a satisfactory efficiency record,” which shall involve a rating of not less than 70, “shall be sufficient ground for the dismissal” of such employee, and that in the dismissal of the relator the defendants complied with the rules and regulations of the commission and the laws of Ohio, except Sections 4379 and 4380, General Code, setting forth in detail just what was done. ■

The relator demurred to such second defense, on the ground that it failed to state facts sufficient to constitute a defense to the action. The common pleas court sustained said demurrer, and the defendants not desiring to amend or further plead, the court rendered judgment in favor of the relator and directed the defendants to forthwith restore the relator to his position as patrolman and to all his rights as a member of the police department.

That judgment is before this court for review.

The trial court reached the conclusion it did because it was admitted that the procedure adopted in the dismissal of the relator was in accordance with the Civil Service Law, Sections 486-la to 486-31, General Code, instead of Sections 4379 and 4380, General Code, which last two sections were not specifically mentioned in the repealing section of the Civil Service Act.

Said last two sections provide that the chief of police “shall have exclusive right to suspend” the employees in his department, and upon such suspension the chief shall certify such fact, together with the cause for such suspension, to the director of public safety, who shall inquire into such suspension and render judgment thereon. That procedure was not followed in this'case.

The procedure followed was that provided in the Civil Service Act, which provides that suspensions and removals shall be made by the “appointing authority” (which in this case is the director of safety), and that such “appointing authority shall furnish such employee * * * with a copy of the order of removal and his reasons for the same, and give such * * * employee * * - * a reasonable time in which to make and file an explanation,” and then provides that such order with the explanation, if any, shall be filed with the civil service commission, and if such employee appeals to the commission it shall hear such appeal and may affirm, disaffirm, or modify the judgment of the appointing authority.

The Civil Service Act was passed long after the enactment of Sections 4379 and 4380, and, while said sections are not specifically mentioned in the list of sections repealed by the civil service act, it is provided therein, Section 486-2, General Code, that “no person shall be * * * removed, * * * suspended, * * * or reduced as an # * * employe in the civil service” of the cities of the state “in any manner or by any means other than those prescribed in this act.”

And it is also expressly provided in that act, Section 486-19, General Code, that ‘ ‘ The procedure applicable to * * * suspensions and removals, as provided for in Section 486-17 and 486-17a of the General Code, shall govern the civil service of municipalities.”

Eepeals of statutes by implication are not favored, and a later statute is not to be construed as repealing an earlier statute if the two statutes can be reconciled by any reasonable interpretation; but if the later statute is in direct conflict with the former statute, or the language used in the later statute plainly indicates an intention to substitute it for the former statute, the former statute will be held to be repealed by implication.

“1. An act of the legislature that fails to repeal in terms an existing statute on the same subject-matter must be held to repeal the former statute by implication if the later act is in direct conflict with the former, or if the subsequent act revises the whole subject-matter of the former act and is evidently intended as a substitute for it.” Goff v. Gates, 87 Ohio St., 142, 100 N. E., 329.

The language of tbe Civil Service Act clearly shows an intention to revise the whole subject-matter of civil service and to include therein all law relating thereto, and to require the procedure therein provided to be thereafter followed in all cases.

We are clearly of the opinion that, in so far as the provisions of Sections 4379 and 4380, General Code, conflict with the provisions of the Civil Service Act, they are inoperative because they have been superseded by the later express and specific provisions of the Civil Service Act.

But if we are mistaken as to such conclusion, the matter is put at rest by the repealing section of the Civil Service Act (103 Ohio Laws, at page 713), and also by the amendment thereof (106 Ohio Laws, at page 419), where we find that, in addition to repealing certain specified sections, there is a provision repealing ‘ ‘ all other acts or parts of acts inconsistent with the provisions of this act.”

“When a lawmaking body declares in plain language that a new law shall supersede other laws then in force and inconsistent therewith, it in effect repeals such other laws — not by implication, but by express enactment.” State, ex rel., v. Board of Commissioners, 29 Ohio App., 364, 163 N. E., 585.

While the answer admitted that the procedure set forth in Sections 4379 and 4380, General Code, was not followed, it also alleged that the procedure provided in the Civil Service Law was followed, and as we hold that the latter was the proper procedure to follow we conclude that the trial court erred in sustaining the demurrer of the relator, and for that reason the judgment is reversed and the cause remanded for trial upon the issues made by the pleadings.

In the case of Kray, relator, against the city of Elyria, and the safety and service director thereof, it was stipulated in the common pleas court that the judgment should be the same as in the Birldine case, and that case has been submitted to this court under the same stipulation; accordingly, an entry may be made in the case of John N. Eidt, etc., v. State of Ohio, ex rel. Kray (No. 567), reversing the judgment and remanding the cause for trial upon the issues made by the pleadings.

Judgment reversed and cause remanded.

Pardee, P. J., and Funk, J., concur.  