
    UNAUTHORIZED DELEGATION OF POWER BY THE STATE CIVIL SERVICE COMMISSION.
    Common Pleas Court of Wayne County.
    Berton E. Carmichael v. Charles E. Thorne.
    Decider!, December 30, 1920.
    
      Civil Service—Department Chief Appointed hy Delegated Authority-Invalidity of Such Transfer of Authority—Mandatory Injunction Against the Commission.
    
    When under the civil service law a vacancy has occurred in the classified service where peculiar and exceptional qualifications of a scientific, managerial, professional or educational character are re quired, and the commission finds that for special reasons competition is impracticable and the position can best be filled by the selection of some distinguished person of high and recognized attainments in the line involved, the commission is without power to delegate authority to make such appointment, but must themselves perform the duty of making a suitable selection.
   Critelifield, J.

On October 8, 1920, the plaintiff, Bertin E. Carmichael, filed his petition against the defendant, Citarles E. Thorne, and sets out in rather great detail, various facts, alleging that the defendant is the duly appointed and acting director of the Ohio Agricultural Experiment Station, and has the appointing of the chiefs of departments, assistants and other employees, with the approval of the board of control of said station, and that the chiefs of said departments, including the plaintiff, are in the classified service under the civil service laws of the state of Ohio. That for the last fifteen years, the plaintiff has held the position of chief of the Department of Animal Husbandry.

The plaintiff further says that on or about March 1, 1918, defendant unlawfully, wrongfully and unjustly entered upon a scheme to deprive plaintiff of his said office and drive him from said station, and to disgrace and discredit him in the agricultural world, so as to make it impossible for him to obtain any employment of like character, or employment of any kind, in any other experiment station in the United States,

The plaintiff then charges the defendant with having entered into'a cheme to abolish the department of Animal Husbandry, over which the plaintiff was chief, and by that fact deprive the plaintiff of any office at said station.. That he entered into said scheme and procured the Board of Control to pass a resolution abolishing said department, of Animal Husbandry and another department, the. department of Nutrition, and combine the v^ork of the two departments into one known as the department of Animal Industry. Then he recites the filing of the suit by the plaintiff in which a temporary injunction was obtained in this court, restraining said defendant and the board of control from proceeding to combine said departments, which said suit was finally terminated on the first day of xlugust, 1920, by virtue of an agreement entered into in July of 1919.

The plaintiff says that on the first day of August, 1920, said department of Animal Husbandry was in the classified, competitive Civil Service of the state of Ohio, ahd that by virtue of said civil service law as found in Section 486 in Volume 106, page 406 and in the various subdivisions of 486, he, the plaintiff, was entitled to be certified as one of three eligibles for appointment as chief of the new department, but that the defendant and said civil service commission did not ask for certification from the civil service board of said three eligibles, but proceeded to order the plaintiff to vacate his office and remove from said station, and proceeded to arbitrarily appoint one E. B. Forbes as the chief of said new^ department, the plaintiff claiming that he having occupied a similar position in one of the abolished departments, was eligible for appointment to said new department, and that under the law, his name should have been certified to Director Thorne for said appointment. He saj^s that all acts of the defendant were gross frauds upon his rights and he asks that a temporary injunction be granted, which was granted at the time, and upon final hearing that a permanent injunction be granted, and that a mandatory order issue to the defendant, requiring him to request said civil service commission to certify eligible candidates for said position as chief of said new department of Animal Industry.

This petition largely consists of a recitation :of historical matter, with the addition of new acts of Director Thorne since October 1, 1920, 'by which the plaintiff was not certified by said civil service' commission to Director Thorne for appointment to said position, and that this was done fraudulently and against the rights of the plaintiff.

Now the defendant, Charles E. Thorne, through t-lie attorney general’s office, files an answer in which he admits various allegations of formal matters. Admits that the consolidation of said two departments was made as claimed; admits that said plaintiff was ordered to vacate said office and vacate the residence on said farm; admits said law suit which terminated on August 1, 1920, and says that by reason of said settlement in said law suit, said Carmichael automatically was relieved from all duty and all rights at said station.

Pie further says that after the beginning of this said suit, said new department of Animal Husbandry was placed in the unclassified civil service list by the said civil service commission, which removed said position from competitive examination, and he admits that he, with the consent of the board of control appointed one E. B. Forbes to said position as chief of said new department, but he says he did the same temporarily by virtue of one of the sections of said law, to wit, Section 48G-14, and he denies all frauds and all schemes and all the allegations of the petition which reflect upon the bona fideness of said transaction. He further says that after said new department was placed in said unclassified list, he did not request-the said Civil Service Commission to certify the names of eligibles to said appointment as the same would he ‘ a vain thing, as said positions were no longer under the civil service laws and regulations.”

Now from the pleadings in the ease and the evidence and the briefs filed in tbe claims of both plaintiff and defendant, tbe court finds that the plaintiff denies the right- of Director Thorne, who has the appointing power for all positions in said agricultural experiment station, which said appointments are subject to ratification or rejection by the Board of Control, to appoint said E. B. Forbes to the position of Chief of Animal Industry, and denies the right of the said Civil Service Commission to allow said Thorne the appointing power or the power to name the individual who shall occupy said position.

Plaintiff claims that under the civil service law as found in Section 486 in the Revised Statutes and as amended in'said volume 106 Ohio State Lawfc page 400, that the said Civil Service Commission was bound to name or send the names of one or more eligibles to said position, and that 'Director Thorne could then choose from that list of eligibles the person who was to become the chief of the new department of Animal Industry.

The defendant denies this, and says that all provisions of the Civil Service law, statutes and constitution of the state on the subject have been complied with in regular form.

The question narrows down to one point, and I have been unable to find any case in which this has been passed upon by any court. The Civil Service law has been reviewed by numerous courts, and our own Supreme Court at different times, but the one question involved in this ease so far as T. have been able to ascertain, has not been passed upon.

The provisions of the constitution of Ohio, Section 10, Article 15, says in substance, that all appointments and promotions in the Civil Service shall be made according to merit and fitness, which shall be determined by competitive examination, when the same is practicable. In the 90th O S. on page 258, the ease of Green v. Commissioners, the Supreme Court has passed upon the constitutionality of the statute in question, and of that rule and regulation of the Civil Service Commission in pursuance of said statute, and held'the same to be constitutional, that is, they have held that the Civil Service Commission could adopt rules and regulations to carry into effect the provisions of said statute, and that the divisions of all persons into the classified, and unclassified lists whs legal, and that the statute in question 4861-31 or those sections under controversy in that suit were legal, and especially passed upon 486-7 first and. 486-14 especially paragraph 2, which paragraph 2 is involved in the discussion of the case at bar. This section reads as follows:

“In case of a vacancy in a position in the classified service where peculiar and exceptional qualifications of a scientific, managerial, professional, or educational character are required, and upon satisfactory evidence that for spéeial reasons competition in such special case is impracticable and that the position can best ¡be filled 'by a selection of some designated person of high and recognized attainments in such qualities, the commission may suspend the provisions of the statute requiring competition in such ease, but no suspension shall be general in its application to such place, and all such cases of suspension shall be reported in the annual report of the commission with the reasons for the same.

It seems to be admitted that there is no other defect in this ease in the filling of the position of chief of Animal Industry, except the claim of the plaintiff that the State Civil Service Commission had not the power to delegate to the appointing power, in this case Director Thorne, the naming of the person for the position, a person of high and recognized attainments.

Said. Civil Service Commision has been proceeding on the theory of ail appointments to be made by them in the unclassified list as established by them (and it now appears to the court • that this position is in the unclassified list), of allowing the appointing power to fill the vacancy, to name the man, without any action on the part of the Civil Service Commission; that the ■ selection of some designated person of high and recognized attainments in the qualities necessary for said position, was left to the discretion of the appointing power; while the plaintiff claims that that power exists in the said Civil Service Commision and can not be delegated.

I have .tried to make myself clear on the issue in this case, and I have just stated it as near as I can. In the case at bar, after the said Civil Service Commission had placed the position of chief of the Department of Animal Indusrty in the unclassified list, and notified Director Thorne at the Station of that fact, they performed no other act. Prof. Thorne, the appointing power, proceeded to fill that position according to his own best judgment. This right of Director Thorne to so act, is disputed by the plaintiff. The action of the Civil Service Commission in turning this appointing power over to Director Thome is disputed by the plaintiff, and it is, denied that the State Civil Service Commission, notwithstanding having placed this office jn the unclassified list and therefore not subject to competitive examination, had performed their full duty and have nothing further to do.

This question, has never been directly passed upon by any court, whose decision I can find.

Does the mere fact that the State Civil Service Commission having exercise their judgment- and discretion and having found this office to be such .a one as it is not practicable to fill by competitive examination and placing the same in the unclassified list, relieve them of all further duty in the matter? I am unable to bring myself to that view. I believe that the S'taLq Civil Service Commission. has a further duty to perform as found in the statutes, and under their own rules and regulations While it is true that said paragraph 2 of Section 486-14 speaks of a position in the classified list, and of temporary and. exceptional appointments, yet Director Thorne has proceeded under said section to fill said vacancy temporarily, and I may say in passing that the temporary injunction granted on the 8th day of October is still in force, and. no other appointment has been made, but it is claimed that Director Thorne has the power to fill the vacancy as I have indicated, without any act ón the part of the Civil Service Commission, beyond that which they have performed, that is, placing said office in the unclassified list; and it is claimed in the answer of the defendant in this case as follows: “After said orders of said commission the request for the certification of the names of eligibles would be, a vain, thing, as said positions were no longer under the civil service lawfc and regulations. ’ ’

The orders of the commission above referred to was the order transferring the position of chief of animál industry and various other scientific positions, into the unclassified list, but the defendant claims in his answer that that act of the State Civil Service Commission removed this position from any act of the Civil Service laws,' and that said position was not under the Civil Service laws as above quoted, which, in effect, claims that any one in the unclassified list ceases to be under the Civil Service laws, and yet the constitution provides that “all appointments and promotions in Civil Service shall be according to merit and fitness” and that all appointments means all appointments under the state, such as chief of animal industry. The claim of the defendant simply wipes out the constitutional provisions that all employees, agents and officers of the state shall be selected and promoted according to merit and fitness, aud this claim is founded upon one act of the State Civil Service Commission, that they have placed this office in the unclassified list. A deliberate nullification of the constitutional and statutory provisions governing the Civil Service of the state of Ohio.

I do not believe the State Civil Service Commission can delegate to the appointing power in the unclassified list the selection of some person of high and recognized attainments, even though they have decided that that person need not undergo a competitive examination. It is a plain case of delegating their authority to the appointing power instead of exercising said authority themselves, either by competitive examination, in a proper case where it is practicable, or selecting a person of high and recognized attainments, where it is not practicable. They performed their duties under the first class in certifying eligibles under the competitive examination, and why should it not be their duty to select the eligibles under the second classification, or the unclassified list ?

I hope I have made myself clear in the presentation of this matter. The issue is simple in the case, and there is but one issue and that is this: must the Civil Service Commission act in selecting an eligible to fill a position, even though he Was in the unclassified list, or can they delegate that to the appointing power ?

I think the duty is encumbent upon the State Civil Service Commission to perform that duty, and they can not delegate that, as it was admitted to be done in the case at bar.

From the exhibits in the case, especially Exhibit A, appears the action of the State Civil Service Commission in- this case, in which they have set aside some twenty positions in the Ohio Agricultural Experiment Station as in the unclassified list and allowed the Director,- with the consent of the Board of Control, to fill them all arbitrarily, delegating him as the person to select some person of high and recognized attainments to fill each said positions, the said Civil Service Commission having found that these persons required technical training and experience in a specialized line of agricultural work, and the commission having found from previous attempts to create eligible lists by competitive examination for such places, that competition in these cases is impracticable, because of the limited competition and the specialized requirements of the positions in question.

And their further order as found in Exhibit B, that they have exempted from the competitive, classified service the newly created position of chief of the department of animal industry. That they have made said exemption under the provisions of paragraph 12 of Section 486-8 of the Civil Service law for the reason that it appears that the position requires technical training and experience in a specialized line of agricultural work and that competition in such case is impracticable because of the limited field for competition and specialized requirements of the position.

We are not finding fault with the aetiou of the Civil Service Commission in placing said positions in the unclassified list and waiving the necessity for competitive examination, although it does seem to the court that the Civil Service law and the Constitution of the state is being violated in spirit, if not in letter. This court does criticise the Civil Service Commission in stopping after the passage of said resolutions and certifying the same to Director Thorne, and from that time on allowing Director Thorne to act as the State Civil Service Commission in filling-such appointments. ■ We think it was the duty of the State Civil Service Commission in carrying out both the spirit and letter of the law, to have “selected some designated person or. persons of high and recognized attainments and the qualities necessary to fill said positions, ’ ’ and certify said names to Director Thorne, which was-not done in this ease.

I therefore hold that the allegations of the petition are sustained by the law and the evidence, and that the appointment of E. B. Forbes to said position was illegal and void. And it now appearing to the court that said E. B. Forbes has resigned said position and left said Station, and that said position is vacant, it is ordered that a mandatory injunction issue to the defendant to request the Civil Service Commission for a list of eligibles for said position under the unclassified Civil Service laws of the state. Said temporary injunction is made perpetual as prayed for'in said petition. To all of which rulings, and findings of the court the defendant excepts, and exceptions are granted to the defendant. Motion for a new trial, if filed; is overruled, and bond of appeal, if necessary in this case, is fixed at the sum of two hundred dollars.  