
    The State, ex rel. Hoskins et al., v. The Ohio Board of Administration et al.
    
      Civil service — Competitive promotional examinations — Superintendent of state school for blind — Physical qualifications of applicants — Determined by civil service commission, when — Section 486-11, General Code — Rules of commission — Section 486-7, General Code (103 O. L., 700) — Eligibility for promotion.
    
    (No. 14933
    Decided July 2, 1915.)
    In Mandam:us.
    On the 11th day of June, 1915, the state of Ohio on the relation of Samuel A. Hoskins, Charles H. Bryson and Charles I. Brown, as members of and constituting the state civil service commission of Ohio, filed in this court a petition against the Ohio board of administration and A. F. Sheperd, T. E. Davey, Starr Cadwallader and D. S. Creamer, as members of and constituting said board, in which petition relators prayed for a peremptory writ of mandamus, commanding the defendant, the Ohio board of administration, and each of the defendants personally, to appoint J. Frank Lumb to the position of superintendent of the state school for the blind.
    The petition, among other things, averred that on or about the 1st day of September, 1914, a vacancy occurred in said position of superintendent of the state school for the blind, by the resignation of the then incumbent of that position; that the state board of administration, by its president, forthwith notified the said civil service commission of that fact, and made requisition upon the relators as members of the state civil service commission of Ohio for a.list of persons eligible for appointment after a competitive examination; that thereupon the relators caused to be held a competitive promotional examination at the city of Columbus, on the 18th day of November, 1914.- Two persons applied for admission to this examination and were examined, and marks were given to those taking the examination upon the partial basis of efficiency and seniority in service. In this examination J. Frank Lumb received the highest grade, and that fact was certified to the defendant board of administration. The board refused, and does still refuse, to appoint him to this position.
    The respondents, for answer to the petition of relators, admit the allegations of plaintiffs’ petition substantially as pleaded, but deny that it is practicable or legal to hold a competitive promotional examination for that position.
    For a second defense they aver that J. Frank Lumb has been totally blind since he was eleven years old, and that therefore he is not physically capable of discharging the duties of this position.
    For a third defense respondents aver that J. Frank Lumb was not eligible to take a promotional examination for this position, for the reason that the position in which he was then employed, at the time of the examination, was not in the same line and character of work as the position to be filled.
    For a fourth defense respondents say that it is not practicable to determine the merit and fitness of applicants for the position of superintendent- of the state school for the blind by competitive examination.
    To this answer the relators filed a general demurrer to each and every defense contained therein.
    
      Mr. Charles Follett and Mr. Clarence D. Laylin, for relators.
    
      Mr. John G. Price and Mr. Freeman T. Eagle-son, for respondents.
   By the Court.

The state board of administration, having requested the state civil service commission of Ohio to furnish it a list of names of persons eligible for appointment to the position of superintendent of the state school for the blind, cannot, in this case, be heard to claim that it is not practicable to determine the merit and fitness of applicants for that position by competitive examination.

The question of whether an applicant is so disabled physically as to be rendered unfit for the performance of the duties of the position he seeks, is a question to be determined by the civil service commission of Ohio (Section 486-11, General Code). As a matter of course, the board of administration would have the right to take into consideration the physical condition of the applicants in making its selection from the certified list.

Section 486-7, General Code, provides that the rules of the state civil service commission “shall have the force and effect of law.”

Section 2 of Rule VIII, adopted by the state civil service commission, provides that “No person shall be eligible for promotion from a position in any grade to fill a vacancy in the next higher grade unless the position in which he is employed at the time of the examination is in the same line ■ and character of work as the position to be filled.”

The demurrer to the first and third defenses admits, for the purposes of the demurrer, the truth of all the allegations contained therein that are well pleaded. Under the averments of the first defense it would appear that the state civil service commission was not authorized to hold a competitive promotional examination for the position of superintendent of the state school for the blind, and under the averments of the third defense it appears, from the facts pleaded therein, that J. Frank Lumb was not, at the time of this examination, employed in a position in the state school for the blind in the same line and character of work as the position to be filled, and, therefore, this demurrer is sustained as to the second and fourth and overruled as to the first and third defenses. The relators not desiring to plead further, the petition is dismissed.

Petition dismissed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.  