
    The State, ex rel. Fesler, v. Green et al.
    (Decided April 27, 1931.)
    
      Messrs. Spring & Sayre, for plaintiff.
    
      Mr. Lawrence G. Gollister, Mr. E. Paul Westenhaver, Mr. Francis B. Douglass, Mr. Bay T. Miller and Mr. Harold II. Burton, for defendants.
   Sherick, P. J.

This action comes into this court on appeal, and the same was brought by Mayo Fesler, as a taxpayer, on behalf of the county of Cuyahoga, after the refusal of the prosecuting attorney to bring the suit. The prayer of the petition is for a permanent injunction restraining the defendants, Green, Jones and Davis, who constitute the civil service commission of the city of Cleveland, and who act in the capacity of agents of the state civil service commission within the county, from certifying to the county auditor the pay roll of the board of county commissioners, containing the names of some fourteen employees, appointees of the board, as exempt from the classified civil service of the state of Ohio, and to further restrain the auditor from certifying the pay roll to the county treasurer, and the treasurer from paying the same. The fourteen employees whose appointment and right to receive compensation are questioned consist of nine assistant clerks or stenographers, two blind relief clerks, one jail physician, one humane officer and one temporary deputy.

During the trial of this case in the court below, the humane officer and the deputy were by agreement withdrawn from consideration.

The question presented turns upon the construction. to be placed upon the wording of that part of the Civil Service Act of the state of Ohio, known as Section 486-8, General Code. That section, or the portion thereof pertinent, reads as follows: “8. Three secretaries, assistants or clerks and one personal stenographer for each of the elective state officers; and two secretaries, assistants or clerks and one personal stenographer for other elective officers and each of the principal appointive executive officers, boards or commissions, except civil service commissions, authorized by law to appoint such secretary, assistant or clerk and stenographer.”

It is further provided in this same section that the classified service shall comprise all persons in the employ of the several counties not specifically included in the unclassified service. Therefrom it is clear that the employees listed on the county commissioners ’ pay roll as exempted from classified service are included in the classified service unless specifically included in the unclassified service designated under Section 486-8.

Returning now to a consideration of the statute in question, we are certain that county commissioners are not elective state officers, but as individuals we well recognize that the members of a board of county commissioners are elective officers. Now the statute to this point, we consider, embraces fully the situation which develops in the county offices in the smaller counties of the state, and we appreciate the fact that this number of employees specified by the statute would not be sufficient in a county the size of Cuyahoga, but we feel in an interpretation of the remaining portion of the statute to be construed that such should receive a construction that will not nullify any other plain provision of the statutes, and, considering the proposition as advanced by the commission that the members of the county board of commissioners are each individually entitled to- the apointment of a stenographer, and two secretaries or clerks, we are unable to appreciate and understand that the Legislature had any such intention.

It will be noted that in the last portion of the statute quoted the word “boards” or “commissions” is used except when it comes to civil service commissions, and then the statute recites, after the interposition of a comma, “authorized by law to appoint such secretary, assistant or clerk and stenographer.”

Now we know of no provision of the law that permits a county commissioner in his individual capacity to make an appointment, and, upon turning to Section 2409 of the General Code, we find that it is provided that, if such hoard finds it necessary for the clerk to devote his entire time to the discharge of the duties of such position, it may appoint a clerk in place of the county auditor, and such necessary assistants to such clerk as the board deems necessary. Such clerks shall perform the duties required by law by the board.

Now it seems plain from this statute that it is the board’s power to appoint its clerks and assistants, and not the duty and power of the individual members of the board, and we must keep in mind further the fact that county commissioners have no power other than such as may be given them by express provision of law.

Section 486-8, if strictly construed, might lead to the conclusion that the board of commissioners had no such power of appointment, but we do not believe that the statute considered with other related statutes warrants this court in so determining. It is therefore our conclusion that the board of county commissioners had no right to include a greater number than three as being in the unclassified service ; that is to say, that the contention of defendants that the board has power to so certify nine is untrue, and not warranted by the statute, from which it follows that in that respect the injunction will be made perpetual.

Considering now the further question as to the two blind relief clerks so certified in this list of fourteen of which complaint was originally made, we are of the opinion that these two clerks are in the unclassified service and exempt from examination, by virtue of Section 2968, General Code. That section of the statute contains the following language: “The board of county commissioners may in their discretion appoint such clerks as they deem necessary for the purpose of investigating the qualifications, disability and needs of any person who has theretofore been placed on the blind list, or who has made an application to be placed on such list. Said-clerks shall be known as ‘blind relief clerks’ and shall serve for such length of time only as said county commissioners prescribe and may be discharged by said commissioners at any time. ’ ’

It therefore is significant that the appointment of these two clerks was for a temporary period, and to end at a specified time, and we deem it essential to a consideration of this section, and it is significant, that the commissioners are not only given the power of appointment, but are given likewise the power to discharge, and this to our notion precludes the thought that these two clerks could be in the classified service, and in respect thereto that portion of the plaintiff’s petition for injunctive relief will be denied.

And coming to the question of the classification of the jail physician, it appears, and is conceded, that the board of commissioners certified the name of this employee as jail physician to the state civil service commission as being a deputy in the unclassified service under Section 486-8, (a) 9, General Code, and from Plaintiff’s Exhibit A, attached to the record in this case, it appears that the commission entered the jail physician’s appointment as a deputy in the unclassified service, with the specific reservation that the approval might be revoked. It therefore appears that this appointment was purely temporary, and it is the view of this court that the civil service commission had power and authority under the statutes to make this provisional appointment. The matter of competitive examination for the rendering of professional services rather seems unwarranted, and we believe that the commission recognized this fact, and, holding as we do that the appointment is temporary, the same order will be made as to the jail physician as hereinbefore made concerning the blind relief clerks. An entry may be drawn in accordance with the findings herein announced.

Decree accordingly.

Lemert and Montgomery, JJ., concur.

Judges of the Fifth Appellate District sitting by designation in the Eighth Appellate District.  