
    Dykstra, City Manager, et al. v. The State, ex rel. Albert.
    (Decided February 15, 1932.)
    
      Mr. John D. Ellis, city solicitor, Mr. Edward F. 
      
      Alexander and Mr. John J. O’Donnell, for plaintiffs in error.
    
      Mr. Carl T. Marhley, for defendant in error.
   Hamilton, J.

This case is here on error to the court of common pleas of Hamilton county, Ohio.

On April 7, 1928, the relator, Frank J. Albert, filed his petition against the city manager and the board of civil service commissioners of the city of Cincinnati, praying for a writ of mandamus against the defendants commanding the defendants to reinstate him to the duties and position of steward at the city workhouse in the city of Cincinnati, Ohio.

The substance of the petition is that the relator, Frank J. Albert, was on October 1, 1927, the duly appointed, qualified, and acting steward at the Cincinnati Workhouse; that he performed the duties in a competent and trustworthy manner, and that no charges of any kind or nature were filed against him; that he was appointed and held said position under an ordinance passed March 30, 1927, and effective April 1, 1927; that the ordinance set forth his duties and fixed his salary at $1,600 per annum and maintenance, including lodging and meals. He states that he was actively and continuously engaged in the performance of the duties of said position from the date of his appointment until January 1, 1928. He further states that on November 30, 1927, council of the city of Cincinnati passed an ordinance effective immediately, which repealed said ordinance and abolished the position of steward, and then re-established the same position, with a change of name only, in that the name of “steward” was changed to that of “chef;” that later council of the city of Cincinnati passed another ordinance, effective January 1, 1928, concerning said position in regard to salary, wherein the salary set forth in the second mentioned ordinance was raised to $1,740 per annum. Relator states that on January 1, 1928, he was informed that his services were no longer required, and that defendants as a subterfuge gave as a reason that the position and duties of steward had been vacated and discontinued. Relator further states that said position and duties now exist, and that a certain John Oberdahn now holds said position and performs said duties.

The relator further states that he has complied with all rules and regulations set forth by the civil service commission of the city of Cincinnati, and with the laws of the state of Ohio. He further states that he made application to the civil service commission for reinstatement, and that upon hearing he was reinstated; that he presented himself for duty, and was informed by the superintendent of the workhouse that he had received no orders to reinstate him, and later refused to reinstate him.

The answer of the defendants, plaintiffs in error here, admits in substance the allegations of the petition, but, by way of further answer, defendants state that on further consideration of the facts the civil service commissioners of the city of Cincinnati rescinded the order set forth in the petition and held the same null and void, and refused to reinstate the relator, which action was taken on February 1, 1928.

The answer denies that there is such a position as steward at the workhouse in the city of Cincinnati, and denies that the relator had been deprived of any position legally held by him or to which he is entitled to be reinstated.

The case came on for trial and was tried to the court on May 25, 1928. On October 15, 1931, the trial court found in favor of the relator, and entered a judgment granting a peremptory writ requiring the defendants to reinstate “said relator to the position and duties heretofore occupied and performed by him, together with all the emoluments thereof.”

From that judgment defendants below prosecute error to this court.

There are several specifications of error, which, combined, present the question: Was the trial court correct in granting the writ of mandamus reinstating the relator to the position to which he had formerly been appointed, and held, under the facts and the law relating to the classified service?

It is stipulated in the record that the relator was duly and regularly appointed after passing an examination, and that he occupied the position until December 31,1927; that on January 1,1928, his services were discontinued; that on December 31, 1927, an ordinance was passed that changed the position that he then occupied, and that his services were dispensed with from and after January 1, 1928; that subsequently the civil service commission made an order reinstating him to that position; and that subsequent thereto it revoked that order.

The controlling facts are in substance as.follows:

In April, 1927, council of the city of Cincinnati passed an ordinance creating the position of steward of the workhouse of the city of Cincinnati. Relator, Frank J. Albert, in 1927, passed the examination for the position, and was appointed and began Ms duties as such steward October 21, 1927. In November the city of Cincinnati passed an ordinance in which the position of steward was omitted, and the position of chef was created. On December 31, 1927, council passed an emergency ordinance, which became effective January 1,1928, being No. 686-1927, entitled: “An Ordinance to standardize the salaries of positions in the City Service by repealing Sections 222 to 251-2, inclusive, of the Code of Ordinances as adopted by Ordinance 660-1927, passed November 30, 1927, and ordaining in place of said repealed sections,” etc.

The ordinance repealed all the former ordinances referred to.

The ordinance further provided: “Each department shall, with the approval of the City Manager or other executive head, appoint such officers and employees as shall be necessary for the conduct of the work of the department, provided that the total set up of salaries of such department shall not be in excess of the total amount appropriated to such department for salaries and wages.”

Upon the talcing effect of this ordinance on January 1, 1928, the relator was informed he was no longer needed.

The ordinance created the position of “chef” and abolished the position of “steward.” Thereupon the superintendent of the workhouse appointed one John Oberdahn, a guard and overseer of supplies, to the added duties of “chef.”

The relator thereupon appealed to the civil service commission for reinstatement, claiming the position of chef was the same as the former position of steward, and the change was in name only, and that this was merely a subterfuge to oust the relator from his position.

It was sought at the trial to introduce evidence as to the duties of a chef and those of a steward. The court refused to receive this evidence. It is a matter of common knowledge that the duties of a steward and those of a chef are distinct and different.

A “chef” is defined by lexicographers as a male head cook.

A “steward” is defined as a person intrusted with the management of affairs not his own; one who manages or disburses for another or others; one in general charge overseeing the servants, etc.

It is therefore apparent that there is a wide distinction between the duties of a chef and those of a steward. Whether or not there was a limitation of one and expansion of the other to make them of equal performance is not before us. All that we have are the two terms presented by tbe ordinance, and, in tbe absence of any evidence as to the duties, we are compelled to use tbe usual and ordinary meaning of tbe words in relation to tbe duties involved.

We cannot find, therefore, that the position is tbe same and tbe change is one of name only. Tbe record supports tbe claim of tbe plaintiffs in error that tbe change was not a subterfuge. It is shown clearly in the evidence that it was an idea of economy on tbe part of tbe city manager. Tbe work of tbe guards is shown to have been very light. Tbe duties of chef were likewise shown to be light. Tbe city manager thereupon, under authority of tbe ordinance, provided such officers and employees as were necessary for tbe conduct of tbe work of tbe department, and this was done without incurring salaries and wages in excess of tbe amount appropriated.

It is suggested that, tbe position having been created by ordinance, it could only be abolished by ordinance. We refer to that portion of tbe ordinance above quoted, authorizing tbe city manager or other executive head to appoint such officers and employees as shall be necessary for tbe conduct of tbe work in tbe department, provided that tbe salaries and wages do not exceed tbe amount appropriated therefor. Tbe order of the city manager, acting within tbe scope of tbe ordinance, is tbe action of council by ordinance.

Attention is called to another part of the ordinance, subsection 4, which provides: “This ordinance shall not be construed as changing any of tbe functions or conditions of employment of any person in tbe City Service or as abolishing any position at tbe present time occupied.”

It is claimed this action of council protects tbe relator in bis position.

Tbe answer to this is that tbe ordinance does not make tbe change. Tbe ordinance empowers tbe city manager to create tbe organization by way of officers and employees. Haying organized the department by consolidating the position of chef and guard, in the interest of economy, the fact that such consolidation dispenses with the service of steward does not do violence to the terms of the ordinance.

It is further in the evidence, and undisputed, that council has made no appropriation for the position of steward of the workhouse. This in effect would be equivalent to abolishing the position. In any event, it makes the question political and economic, and involves no duty or responsibility on the part of the civil service commission.

In the case of Curtis, Safety Director, v. State, ex rel. Morgan, 108 Ohio St., 292, at page 298, 140 N. E., 522, 524, Chief Justice Marshall observes in the opinion: “If the legislative branch fails or refuses to make sufficient appropriations, thereby making it impossible for the safety department to meet pay rolls, in such case the problem concerns only the public welfare, and is a political and economic one, and the Civil Service Commission has no duty or responsibility.”

Section 486-16 of the General Code of Ohio, under the Civil Service Act, provides that “whenever any permanent office or position in the classified service is abolished or made unnecessary, the person holding such office or position shall be placed by the commission at the head of an appropriate eligible list * * *.”

In the case above under consideration the position was in effect abolished or made unnecessary. The relator, holding the position at the time, was placed at the head of an eligible list, and, while not pertinent to the decision in the case here under consideration, it may be stated that the relator was given a position in the unclassified service of the city as city bailiff, and has ever since held such position.

In the case of Curtis, Safety Director, v. State, ex rel. Morgan, supra, in the opinion, the Chief Justice makes further pertinent observations. He states, at page 302 of 108 Ohio State, 140 N. E., 522: “The laws and rules pertaining to the civil service must be so construed as to harmonize their provisions with other state laws relating to the powers and duties of city councils and service and safety departments of cities in the creation and abolition of offices and places of employment and in the appointment and discharge of officers and employes. Proper recognition must be given to the principle that in our multiple form of government certain mutual cheeks and balances are provided, while at the same time leaving to each department a well-defined independence in its proper sphere.”

Further along, at pages 303 and 304 of 108 Ohio State, 140 N. E., 526, it is stated :

“It is, of course, important to properly and impartially administer the civil service rules and requirements, and to recognize the powers and duties of the Commission in the exercise of its proper prerogatives, but it is no less important that the safety department of our municipalities be equally free and untrammeled in the exercise of its proper prerogatives.
“Whatever language may have been employed by the Legislature in the enactment of the civil service statutes, that language must be construed in the light of the underlying principles of the Civil Service Commission, as hereinbefore declared, and we cannot agree that the Legislature intended to empower the Commission to interfere with the administration of the city government in such a way that the working forces in the classified service could not be reduced in the interest of public economy and to prevent deficiencies in the public funds.”

Many cases are also cited in the above opinion, and it seems that the rule applicable here may be summed up in the statement that the right to have an opportunity to make an application for reinstatement implies that the cause of removal was for some dereliction or neglect of duty, or incapacity to perform duties, or some delinquency affecting the employee’s general character or his fitness for the office, and that the provision of the statutes has no application to a case where the incumbent was dismissed for want of funds, or in order to reduce expenses.

By way of summation, we are of opinion that the position of steward at the Cincinnati workhouse, held by the relator, was abolished by the ordinance of the city; that the creation of the position of chef was not a mere change in name; that the combining of the duties of chef and guard was in the interest of economy, and not a subterfuge; that, as a result thereof, the relator is entitled to be, and was, placed at the head of an eligible list. If there could be any question about this, it is admitted that there is no appropriation for the position by the city council, and there is no power to compel the city council to make such an appropriation.

Our conclusion is that the court of common pleas erred in granting the peremptory writ; that on the undisputed facts the judgment should have been in favor of the defendants. This court will therefore enter the judgment that the court below ought to have rendered.

The judgment of the court of common pleas of Hamilton county is reversed, and judgment denying the writ, at the cost of the relator, will be entered here.

tJudgment reversed and writ denied.

Boss, P. J., and Cushing, J., concur.  