
    The State, ex rel. Lentz et al., Civil Service Commission, v. Edwards et al.
    
      Office and officers—Civil service—Home rule charter provisions supersede state law, when—Constitutional law—Section 10, Ar- • ■' tide XV, and Article XVIII, Constitution of 1912—Section 486-1 ■ et seq., General Code. '•
    
    (No. 14499
    Decided June 23, 1914.)
    In Quo Warranto.
    . This was a proceeding in quo warranto brought in this court. The petition of the relators avers that they áre the duly appointed, qualified and acting civil service commissioners of the city of Dayton, appointed under authority of Section 4478, General Code; with authority to hold said offices until their successors are appointed and qualified; that they áre authorized to exercise the powers and duties óf the civil service commission of the city of Dayton as enumerated in Chapter 12, Subdivision 2, Division 5, Title 12, Part First of the General Code, ahd .in the act entitled “An act to- regulate the civil., service of the state of Ohio,” . etc., passed April 28; 1913.-, (103 O. L., 698 et seq.); that notwithstanding theforegoing facts the respondents, Edwards, Oswald and Smith, have usurped and unlawfully hold and exercise said offices, and as such usurping officers assume to do and perform all and singular, the . duties pertaining to the office of the commissioners of the civil service of the city of Dayton and to exclude relators from the emoluments thereof, to the exclusion and against the rights of relators, and to, the great injury of the citizens of the state of Ohio and the city of Dayton; that respondents are illegally usurping said offices and duties under appointment as such civil service commissioners by the commissioners elected under a local charter adopted for the city of Dayton; that said charter was adopted by the electors of said city on the 12th'day of August, 1913, under Article XVIII of the Constitution, of Ohio; that a copy of said charter was duly certified to the secretary of state as required by law; that for the purpose Of ■ establishing departments, divisions and offices and distributing' the functions thereof and all purposes other than nominating'and electing officers to act as commissioners under said charter the terms of said charter took effect oh'the 1st day of January; 1914; that said charter was prepared and ’adopted under authority of Sections 3,7,8 and 9 of Article XVIII of the Constitution of the state of Ohio as distinguished from the other methods of organization of government of municipal "corporactions contained in said Article XVIII; that by the Itéfms of ’said charter' the legislative functioris of said municipality were delegated to a commission of five citizens elected, at large by the people of said city; that the terms of said charter providé further tor the appointment by the commission bf a city' manager, who shall be the administrative head of the city, who shall have all the appointing power under said charter of all directors and departments and all subordinate officers and employes,, classified arid unclassified, by the civil service system adopted under said charter. The petition sets forth th'é pro1-' visions of the charter for civib service.' Sectiori 93 thereof provides that the commission shall appoint three electors of the city as a civil service board to take office January 1, 1914; that the cornrii.issibn of said city appointed respondents as a civil service board bf commissiori with powers and dutiés superseding the powers and duties of the relators, under the state laws as alleged; relators further say that-the respondents and the coirimission rrianagef refused to recognize the relatofs or their authority as1 conferred upon thern as aforesaid, claiming that the provisions of ’ the charter aforesaid, as adopted, superseded and annulled the provisions of the general law on the subject of civil ser,vice. The prayer of the petition, is that the respondents, ■ Edwards, Oswald and Smith, be required to answer by what’, warrant and authority they claim tb have, exercise' and enjoy the office of civil service commissioners of the city of Dáyton; that, they be adjudged not entitled thereto; that judgment of ouster be pronounced against them and that relators may be adjudged to be the only persons entitled to said offices and authority.
    
      To this petition the respondents have filed a general demurrer.
    
      Mr. Albert J. Dwyer and Mr. Frank S. Breene, for relators.
    
      Mr. Lee Warren James, city attorney, and Mr. W. S. McConnaughey, for respondents.'
   By the Court.

The civil service of the state and of its subdivisions is embraced within the executive branch of the ¡government.

• By Section 3 of Article XVIII of the Constitution, as amended in September, 1912, municipalities are given authority to exercise all powers of local-self-government and to adopt and enforce within their limits such' local police, sanitary and other-similar regulations as are not in conflict with general laws.' By Section 7 of that Article a municipality' is given authority to frame and adopt or amend á charter for its government and may; sub-' ject to the provisions of Section 3, exercise thereunder “all powers of local self-government.”

In State, ex rel. Toledo, v. Lynch, 88 Ohio St., 71, it was held that the provisions of the above-' mentioned article of the constitution continue in force the general laws for the government of dities' and villages until changed in one of three modes':-1.' By the enactment of general laws for their amendment. 2. By additional laws to be ratified' by the electors of the municipality to be - affected thereby. 3. By the adoption of a charter by thé* electors' of a municipality in the mode pointed out in the article.

In Fitzgerald v. City of Cleveland, 88 Ohio St., 338, it was decided that under the article referred tó a municipality was authorized to prescribe the form of government and define the powers and duties of the different departments, provided they did not exceed the powers granted in that article nor disregard the limitations of other provisions of the constitution.

It is provided by Section 10 of Article XV of the Constitution that appointments and promotions'in the civil service of the state and the several counties and cities, shall be made according to merit and' fitness, to be ascertained as far as practicable by competitive examinations, and that laws shall be passed providing for the enforcement of that provision.

It would not be contended that the civil service of a city is not a matter of municipal concern nor that the power of regulating that service is not one of the powers of local self-government. Those powers are referred to by Shauck, J., in State, ex rel. Toledo, v. Lynch, supra, as follows:. “They are such powers of government as, in view of their nature and the field of their operation’, are local and municipal in character.” And in Fitzgerald v. City of Cleveland, supra, it is said they “are clearly such as involve the exercise of the functions of government, and they are local in the sense that they relate to the municipal affairs of the particular municipality.”

The manner of regulating the civil service of a city is peculiarly a matter of municipal concern. One of the powers of local self-government is the power of legislating with reference to the local government within the limitations of the constitutional provisions above referred to. As long as the provisions made- in the chárter of any municipality with reference to its civil service comply with the requirement-of Section 10 of Article'XV, and do not conflict with any other provisions of the constitution, they are valid and under the cases referred to-discontinue the general law on the' subject as to that' municipality. That provisions adopted by a city might differ from the general laws within the limits defined was not; only expected blit the very purpose of the amendment was to permit such 'differ: erices ánd make them effective.

The averments of the petition show 'that the charter for the city Of Dayton was framed arid adopted under and in accordance with the terms. of Article XVIII and duly certified to the secretary of state. By the sections of the charter, which are set ■ forth in the petition, it is further shown that the' city of Dayton fully' complied with the letter and the'spirit of Section 10 of Article XV by providirig for appointments and promotions in the civil service of the city according to merit and fitness to be ascertained by competitive examinations.

The principles declared in the case of Fitzgerald v. City of Cleveland; supra, apply here and control the decision of this case. A further discussion of them is unnecessary. -

The demurrer will he sustained and the petition dismissed.

Nicitols, C: J., Johnson, Wanamaker and Wilkin, JJ., concur. :  