
    The State, ex rel. Barborak et al., Appellees, v. Hunston et al., Board of County Commissioners, Appellants.
    (No. 37160
    Decided April 18, 1962.)
    
      
      Mr. Guy J. Mauro, Mr. Paul Tobin and Mr. Lawrence W. Stacey, for appellees.
    
      Mr. G. William BroJcaw, prosecuting attorney, and Mr. Howard M. Cole, for appellants.
   Per Curiam.

The principal issue in this cause is whether relators attained the status of provisional civil service employees with the rights incident to such status. The board attacks relators’ position on several fronts.

The board’s first contention is that the Court of Appeals erred in finding that the test administered to relators was in fact a noncompetitive examination. The board argues that the provisional appointments were based on a questionnaire and not on a noncompetitive examination as required by Section 143.23, Revised Code.

Relators were required to submit a form, designated “Form 45, Revised,” provided by the Department of State Personnel, which form is labelled as Noncompetitive Examination for Provisional Appointment. This form contains questions such as position sought, location of place of employment, citizenship, residence, habits and moral character, health and physical record, references, and experience and education. The board maintains that this is not the type of examination contemplated by Section 10, Article XY of the Ohio Constitution. Such section reads:

. “Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.”

Pursuant to this constitutional provision, the General Assembly enacted Section 143.23, Eevised Code, which provides for noncompetitive examinations for temporary appointments. The relevant portions of Section 143.23, Eevised Code, read, until amended in November 1959, as follows:

“Positions in the classified service may be filled without competition as follows:
“(A) Whenever there are urgent reasons for filling a vacancy in any position in the classified service and the commission is unable to certify to the appointing officer, upon requisition by the latter, a list of persons eligible for appointment after a competitive examination, the appointing officer may nominate a person to the commission for noncompetitive examination, and if such nominee is certified by the commission as qualified after such noncompetitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination; but such provisional appointment shall continue in force only until a regular appointment can be made from eligible lists prepared by the commission, and such eligible lists shall be prepared within 90 days * * *.”

The same provisions exist now in Section 143.23, Eevised Code, as amended, effective November 2, 1959, except that instead of the commission it is now the Director of State Personnel who supplies the list of eligibles.

It is necessary to set out Section 143.23, Eevised Code, as it existed both before and after amendment in 1959, as some of the relators were employed under the older section and some under the amended section. In addition to the amendment of Section 143.23, Eevised Code, a new section, Section 143.013, Eevised Code, was added to the Code on November 2, 1959.

Section 143.013, Eevised Code, reads in part:

“All powers * * * not specifically vested in and assigned to * * * the State Personnel Board of Eeview are hereby vested in * * * and shall be performed by the Director of State Personnel, which powers * * * shall include * * * the following powers * * *:
a # * *
“(B) To prepare, conduct and grade all noncompetitive examinations for positions in the classified state service.”

Thus, Section 143.013 specifically empowers the director to prepare noncompetitive examinations.

Prior to the enactment of Section 143.013, Revised Code, the authority for the commission to prepare such examinations could be found in Sections 143.13 and 143.16, Revised Code.

Section 143.13, Revised Code, read in part:

‘ ‘ The commission shall put into effect rules:
(( :X: ;X-
“(B) For appointment, promotions, transfers, layoffs, suspensions, reductions, reinstatements, and removals therein and examinations and registrations therefor.” (Emphasis added.)

Section 143.16, Revised Code, prior to November 2, 1959, read in part:

‘ ‘ * * * The State Civil Service Commission shall have control of all examinations * *

From a reading of the statutes regarding noncompetitive examining, both before and after November 1959, it is apparent that the authority to create noncompetitive examinations was vested in the commission and now is vested in the Director of State Personnel. Since such administrators have the authority to create such examinations and since they have used their discretion in so creating these examinations, this court will not now substitute its judgment for that of the administrators.

Now, is “Form 45, Revised,” a valid noncompetitive examination?

Webster’s Third New International Dictionary defines examination as “the act or process of examining” and as “an exercise * * # designed to * * * test qualifications.” Then fob low more specific applications regarding tests as examinations. The New Century Dictionary defines examination as an “inspection; inquiry; investigation; formal interrogation; a testing of pupils, candidates, etc.” Thus in its broad sense an examination need not necessarily be a test. An examination is an evaluation of qualifications, and it need not be a test in the sense that scoring is a necessary concomitant. In fact, upon a careful reading of Section 143.23, Revised Code, it is apparent that the noncompetitive examination has a limited purpose, and that is to provide a quick means of filling a vacancy until a competitive examination can be given. Section 143.23, Revised Code, contemplates that a test will be administered later to compile a list of eligibles, and it is not our concern here that such competitive tests have not been given. See State, ex rel. Conway, v. Taylor, Dir., 136 Ohio St., 174, 177, 24 N. E. (2d), 591, where it is stated that, “there seems to be no reason to construe this requirement as other than the thing it appears to be, namely, a direction to the Civil Service Commission to prepare an eligible list within 90 days.” Therefore, “Form 45, Revised,” is a valid noncompetitive examination.

The board’s next contention is that there are no statutes creating the positions held by relators. Section 143.08, Revised Code, divides civil service into two classes, unclassified and classified. Certain positions therein are specified as being unclassified. Subdivision (B) of Section 143.08, Revised Code, states:

“The classified service shall comprise all persons in the employ of the state and the several counties * * * not specifically included in the unclassified service * *

Hence, any position not exempted in Section 143.08, Revised Code, qualifies as being in the classified service.

The board’s next contention is that relators took examinations for jobs which are different from the jobs which they performed.. Section 143.25, Revised Code, provides for transfers, with the consent of the commission (now the Director of State Personnel), to similar positions in other offices or departments having the same pay and similar duties. Only if further tests or greater qualifications are required is a transfer prohibited without the taking of the necessary steps. It appears that the work done by the relators is similar in nature and can be done without need of further qualifications.

As to relator Camilla Smith, it is argued that her appoint- , ment was improper because she was given the noncompetitive examination after her employment commenced.

As to three of the relators, the effective date of employment and the date of appointment followed the date of the examination. As to Camilla Smith, the effective date of employment preceded the date of the examination. However, the date of her appointment followed the date of the examination, and it is the appointment itself which controls and not the effective date of employment. The case of State, ex rel. Lynch, v. Taylor, Dir., 136 Ohio St., 417, 26 N. E. (2d), 207, is cited by the board as being dispositive of the facts as to Camilla Smith. But in that case it does not appear that there was an appointment after the date of the examination. Here there was such an appointment, and Camilla Smith’s employment was procedurally proper.

Since the relators were given valid noncompetitive examinations and were appointed to their positions thereunder, they achieved the status of provisional civil service employees with the rights attendant thereto.

In the case of State, ex rel. Slovensky, v. Taylor, Dir., 135 Ohio St., 601, 602, 21 N. E. (2d), 990, it is said that such a provisional appointee is “entitled to retain his position during good behavior and efficient service, until the establishment of an eligible list, or until his services are terminated by arriving at the mandatory retirement age, or until the abolishment of the position, or a lay-off.” It follows that relators could not be dismissed summarily without cause, and that such dismissals were void. See, also, State, ex rel. Conway, v. Taylor, Dir., supra.

The board contends that the relators’ proper remedy was to follow the administrative procedure set forth in Chapter 119, Revised Code. As stated by Griffith, J., of the Court of Appeals in the instant case, the case of State, ex rel. Brittain, v. Board of Agriculture, 95 Ohio St., 276, 116 N. E., 459, answers this objection. The syllabus in that case states:

“1. The State Civil Service Commission in the hearing of an appeal from an order of removal of an employee, under the provisions of Section 486-17a, General Code (106 O. L., 412), is limited to a consideration and determination of the existence of the statutory ground or grounds upon which the order of removal was based by the appointing authority.
“2. The provisions of that section do not confer upon the commission authority to hear an appeal from an order of removal made by an appointing authority where the employee has not been furnished its reasons for the removal.
“3. The provision of Section 486-1 Za, General Code, that in all cases of removal the appointing authority shall furnish the employee its reasons for the order of removal, is mandatory and the failure of the appointing authority to comply with this provision is fatal to such order and the same is a nullity.”

The board in its brief contends that the remedy of mandamus is not available as a means to recover pay for the time an employee is wrongfully excluded from his position. A long line of cases support this contention. This court’s attitude in such cases is perhaps best stated, as follows, in the case of Williams, Dir., v. State, ex rel. Gribben, 127 Ohio St., 398, 401, 188 N.E., 654:

“Mandamus will not lie to enforce the payment of a claim unliquidated and indefinite in amount. Whatever view may be entertained by this court with reference to the right of the relator to recover in an action at law compensation or salary * * * for the period of exclusion from office * * * we now hold that such question can be considered only in an action at law.”

For the reasons expressed herein we hold:

The former State Civil Service Commission had and the present Director of State Personnel now has authority to create a noncompetitive examination for temporary appointments under Section 143.23, Revised Code, and “Form 45, Revised,” used by the commission and the director, constitutes a valid noncompetitive examination.

A civil service employee of a county who is appointed after taking a noncompetitive examination and after being certified by the Director of State Personnel attains the status of provisional civil service appointee, and such appointee may not be removed except for cause or until a competitive examination for his position is held.

It follows that that part of the judgment of the Court of Appeals restoring relators to their former positions must be affirmed, and that that part ordering the board to submit a payroll to the Department of State Personnel must be reversed.

Judgment affirmed in part and reversed in part.

Weygandt, C. J., Zimmerman, Matthias and Bell, JJ., concur.

Tart and O’Neill, JJ., concur in the judgment so far as it reverses but dissent therefrom' so far as it affirms.

Herbert, J., not participating.

O ’Neill, J.,

concurring in part and dissenting in part. The principal and controlling issue in this cause is whether the document designated as Form 45, Revised, is a noncompetitive examination under the law of Ohio.

The majority opinion holds that “ ‘Form 45, Revised,’ is a valid noncompetitive examination.” No authority is cited, statutory or ease law, to support this holding. It is contrary to the statutory law of Ohio.

The majority opinion relies upon two dictionary definitions taken from Webster’s Third New International Dictionary and the New Century Dictionary.

The writer is of the considered opinion that Form 45, Revised, does not meet the requirements of either of those quoted dictionary definitions.

However, fortunately, it is not necessary to rely upon nonlegal dictionary definitions which are general in nature or upon rationalized conclusions deduced from them.

This question can be resolved upon the clear, unequivocal and exact language of the statute.

First, it should be pointed out that the majority opinion states, and I quote:

“Thus in its broad sense an examination need not necessarily be a test. An examination is an evaluation of qualifications, and it need not be a best in the sense that scoring is a necessary concomitant. ’ ’

That the statute clearly contemplates that a noncompetitive examination be administered and scored is undeniable. We need only to read the provisions of Section 143.013, Revised Code, referred to in the majority opinion, which are:

“All powers, duties and functions of the Department of State Personnel not specifically vested in and assigned to, or to be performed by, the State Personnel Board of Review are hereby vested in and assigned to, and shall be performed by the Director of State Personnel, which powers, duties and functions shall include, but shall .not be limited to the following powers, duties and functions:
“ (A) To prepare, conduct, and grade all competitive examinations for positions in the classified state service;
“(B) To prepare, conduct and grade all noncompetitive examinations for positions in the classified state service * * (Emphasis added.)

It is to he noted here that the majority opinion holds that the positions referred to in this cause are in the classified service, and it is to be noted further that the above section of the Revised Code requires preparation, conducting and grading of noncompetitive examinations for positions in the classified service.

Now it is necessary to turn to Section 143.16, Revised Code, “Examinations * * which provides as follows:

"All applica/nts places classified service shall he subject to examination [note that this includes all examinations, competitive and noncompetitive] which shall be public, and open to all citizens of the United States * * (Emphasis added.)

The court need not take a negative approach and consider whether Form 45, Revised, is a noncompetitive examination.

Thus, we can come directly to the important question, “What is Form 45, Revised?,” and find the answer in the statute.

It is unnecessary to argue about definitions or to reason with regard to differing opinions as to what it is, for the statute specifically sets forth exactly what Form 45, Revised, is, not in similar language to that used in Form 45, Revised, hut in the identical language used in Form 45, Revised.

Form 45, Revised, contains seven sections, which are: (1) Position; (2) Citizenship, including age; (3) Residence; (4) Habits and moral character; (5) Health and physical record; (6) Experience; and (7) Educational training. The sex of the applicant is required to be disclosed in the applicant’s signature.

Section 143.16, supra, on examinations, provides as follows:

“All applicants for positions and places in the classified service shall be subject to examination which shall be public, and open to all citizens of the United States, within certain limitations to he determined hy the Director of State Personnel, as to citizenship, residence, age, sex, experience, education, health, habit, and moral character * * *.” (Emphasis added.)

The statute provides that these categories are limitations which must be met, in the opinion of the Director of State Personnel, before an applicant is entitled to take an examination, competitive or noncompetitive.

The nature of Form 45, Revised, under the law, is made even more clear by Section 143.18, Revised Code, entitled “Application; examination fee.” This section, as amended, effective November 2, 1959, without substantial change from its former wording, provides:

“The Director of State Personnel shall require persons applying for admission to any examination, provided for by Sections 143.01 to 143.48, inclusive, of the Revised Code [note that this includes competitive and noncompetitive examinations and includes examinations for temporary and exceptional appointments referred to in Section 143.23, Revised Code], or by the rules of the director prescribed under such sections, to file with the director within a reasonable time prior to the proposed examination a formal application in which the applicant shall state under oath or affirmation'.
“(A) Full name, residence, and post-office address;
“(B) Age and place and date of birth;
“(C) Health and physical capacity for the public service sought;
“(D) Business, employments, and residences for five previous years;
“(E) Such other information as may reasonably be required, touching the applicant’s merit and fitness for the public service sought * * *.
ÉÍ # # #
“* * * The director may require in connection with such application such certificate of persons having knowledge of the applicant as the good of the service demands. The director may refuse to examine an applicant, or, after an examination, refuse to certify the applicant as eligible, who is found to lack any of the established preliminary requirements for the examination, who is physically so disabled as to be rendered unfit for the performance of the duties of the position which he seeks, who is addicted to the habitual use of intoxicating liquors or drugs to excess, who has been convicted of a felony, who has been guilty of infamous or notoriously disgraceful conduct, who has been dismissed from either branch of the civil service for delinquency or misconduct, or who has made false ■ statements of any material fact, or practiced, or attempted to practice, any deception or fraud in his application or in his examination, in establishing his eligibility, or securing his appointment.” (Emphasis added.)

It should be noted here that Form 45, Revised, conforms exactly to the provisions of this section as to what an application for examination, competitive or noncompetitive, provided for in Sections 143.01 to 143.48, inclusive, of the Revised Code, shall contain.

It is to be noted further that in conformance with this section, Form 45, Revised, contains, in addition to what was previously mentioned, a section, “References,” and, at the end, an oath, with the admonition that this form will not be accepted if the oath is omitted.

It is to be noted further that all the questions in the sections of this form conform exactly to the language of this statute on applications. For example:

“7(a) Have you ever been officially charged with a felony?
“(b) Have you ever been convicted of a felony?
¿Í* # #
“8(a) Are you now or have you ever been addicted to the use of intoxicating liquors?
“(b) Are you now or have you ever been addicted to the use of habit forming drugs?”

If any clearer evidence is needed that Form 45, Revised, is, in fact, an application to take an examination, competitive or noncompetitive, as prescribed and required by Section 143.18, this is established by question 16, which reads as follows:

“If the examination requires the applicant to possess a professional license or certificate, give the name of the licensing board, and the registration or certificate number of license issued.......”

And question 17, reading as follows, clinches this:

“Have you enclosed with your application a: naturalization certificate......; age and schooling certificate......; any other like form......

On one page of Form 45, Bevised, it is entitled “Application for Noncompetitive Examination for Provisional Appointment.”

It is obvious that what has happened here is that the Director of State Personnel has prepared a form which conforms exactly to the statutory language setting forth what an application to take an examination shall contain.

There is no provision in Form 45, Bevised, which is not exactly.as provided for in Section 143.18, entitled “Application; examination fee,” which sets forth what an application for an examination, competitive or noncompetitive, shall contain.

The sections and the questions in Form 45, Bevised, are exactly in accordance with the provisions of Sections 143.16 and 143.18 of the Bevised Code, which set forth the preliminary requirements which are to be met before an applicant shall be entitled to take an examination, competitive or noncompetitive, and the questions which shall 'be answered in an application to take an examination, competitive or noncompetitive.

It is unique, indeed, to hold that an instrument which requires an oath to be signed, swearing that all answers therein are true, should be designated by this court as an examination. Clearly, such a document does not comply with the provisions of the statute, Section 143.013, Bevised Code, which provides that the Director of State Personnel shall prepare, conduct and grade all noncompetitive examinations for positions in the classified state service.

An examination is a testing by questions, either written or oral, or,by demonstrations of skill, of an applicant’s ability, knowledge and experience which qualify him to hold a certain position. The majority opinion holds that Form 45, Bevised, is a valid noncompetitive examination for all positions in the classified service, except those excluded in Sections 143.09 and 143.10, Bevised Code. In other words, a person filling out this questionnaire, according to the majority opinion, has taken a valid noncompetitive examination for every position from house parent, elevator operator, domestic worker I, laundry worker I, seamstress I, food service worker I, museum guide and pianist, in pay range 13 at $200 a month, to professional engineer IX at $1,020 a month, superintendent of tuberculosis hospital II at $1,150 a month and public health physician III at $1,200 a month.

These examples show how ridiculous a conclusion this is. Form 45, Revised, is an application to take an examination. It is in the identical language provided for and required by statute for such an application to take an examination, competitive or noncompetitive.

The serious danger which lies in the holding of the majority opinion is that it makes a farce of civil service. The merit system came into being because of the evils of the “spoils system” through which politicians and public officials filled important governmental positions on the basis of rewarding their political friends, rather than upon merit and qualification for the job. The people rebelled against the spoils system. If the majority opinion stands, any person in Ohio, answering the questions in Form 45, Revised, can be nominated to any position in the classified service, regardless of the skill required by the position or the amount of the salary which the law requires to be paid for the position.

Under a decision of this court, State, ex rel. Slovensky, v. Taylor, Dir., 135 Ohio St., 601, 21 N. E. (2d), 990, a person who receives a provisional appointment on the basis of a noncompetitive examination enjoys civil service tenure and can not be removed or replaced “during good behavior and efficient service, until the establishment of an eligible list, or until his services are terminated by arriving at a mandatory retirement age, or until the abolishment of the position, or a lay-off.”

The abuse which politically motivated officials can practice in this situation is evident. This is more susceptible to evil than the naked spoils system because it permits the practitioners of the spoils system to give to the beneficiaries under the spoils system the protective cloak of civil service tenure without the necessity of having their qualifications tested by an examination as required by law.

The merit system is frequently attacked by its critics as a system which gives protection to the unqualified and the inefficient. This decision of the court makes certain that the charge will be justified. This gives the form and name of civil service to the practice of the spoils system and, to the beneficiaries of the spoils system, the protection that only those who gain positions through merit and qualification deserve.

I concur in the judgment so far as it reverses but dissent therefrom so far as it affirms.

Taft, J., concurs in the foregoing opinion by O’Neill, J.  