Summary
In Karrick v. Bd. of Edn. (1962) 174 Ohio St. 73, 77, in reliance on the Giovanello case, the Supreme Court of Ohio reiterated its position and held that civil service amendments do not extend to villages.
Summary of this case from Ward v. Village of SwantonOpinion
No. 37358
Decided December 12, 1962.
Civil service — Appointments and promotions — Employees of city school districts — Section 10, Article XV, Constitution, construed — Municipal civil service commission — Jurisdiction — Section 143.30, Revised Code, unconstitutional in part.
APPEAL from the Court of Appeals for Hancock County.
This is an appeal as of right, a constitutional question being involved, from a judgment of the Court of Appeals for Hancock County affirming a judgment of the Court of Common Pleas of such county. Plaintiffs, appellees herein, Mary E. Karrick and other nonteaching employees of the Board of Education of Findlay School District, hereinafter called the board, brought a declaratory judgment action to determine their status as employees of the board and of the school district.
The defendant Findlay Civil Service Commission, appellant herein and hereinafter called the commission, is one of two defendants, the other defendant being the board. The members of the original commission were appointed soon after the adoption in 1912 of Section 10 of Article XV of the Constitution of Ohio, hereinafter called the civil service amendment. The commission was created by Section 486-19, General Code (Section 143.30, Revised Code), and in 1914 adopted rules and regulations which were amended in 1948 and on February 2, 1960.
The civil service act creating the commission, in addition to giving it jurisdiction over city employees, also gave it jurisdiction over the employees of the board except those engaged in teaching, library work, research and administrative duties.
From the time of the creation of the commission until early in 1942, it conducted civil service examinations for an undisclosed number of employees of the board. The facts are not in dispute, and it was stipulated that in the 18- or 19-year period from 1942 to April 20, 1960, the commission held no examinations whatever with respect to any employees of the board.
The board, however, continued to employ persons subject to civil service. The janitors' payroll of Findlay city schools for September 1947 (exhibit A) contained the names of 15 persons with compensation for that month totalling $2,435.52. The nonteaching employees' payroll of the Findlay city schools for September 1960 (exhibit B) contained the names of 93 persons with compensation for that month totalling $25,004.19. Both exhibits have this endorsement at the bottom: "Approved by the civil service commission as to those on civil service, Municipal Civil Service Comm., Findlay, Ohio, Edythe W. Morgan." It was stipulated that there was similar payrolls for each month of each school year between 1947 and 1960, and that each such payroll contained a similar endorsement by the commission. The name of each of the plaintiffs appears on exhibit B.
The commission's rules, as amended in 1948, required applicants for positions in the classified service to have been legal residents of Findlay for one year prior to filing their applications. The rules established age limits of not less than 21 years and not more than 60 years, except that for school janitors the age limits were 22 and 60 years and for truant officers, 25 and 50 years.
On February 2, 1960, without advance notice, publication or the holding of a public hearing, the commission met and amended its rules as to nonteaching employees of the board to require that they be residents of the Findlay School District; that the maximum age for bus drivers and maintenance men be 60 years; and that the age limits for secretaries, clerk-typists and bookkeppers be 21 and 50 years.
The commission, after 18 years of inactivity so far as nonteaching school employees of the board were concerned, determined to hold competitive examinations on April 20, 1960, for the positions of secretary, clerk and bookkeeper, causing legal notice thereof to be published in Findlay.
Of the eight plaintiffs in this case, four resided outside the limits of the Findlay School District. One is one year under the minimum age, two exceed the 50-year age limit and two others exceed the 60-year age limit. On the day of the examinations, two of the plaintiffs, one who did not meet the residence requirement and one who did not meet the age requirement, appeared to take the examination but were not allowed by the commission to participate.
In the amended petition, it is claimed that Sections 143.01 and 143.08, Revised Code, are unconstitutional and in conflict with the civil service amendment; that the age and residence requirements are unreasonable, discriminatory and an abuse of discretion by the commission; that the board may employ nonteaching employees without certification by the commission; that the rules of the commission are void because they were not adopted in accordance with the Administrative Procedure Act (Chapter 119, Revised Code); and that plaintiffs, some of whom have been employed by the board as long as 18 years, have thereby acquired civil service status. The answer filed by the commission contains a general denial, and the answer filed by the board neither admits nor denies the allegations of the petition.
In both the Common Pleas Court and the Court of Appeals, the judgments are that the rules of the commission had no effect on the status of the plaintiffs, but for different reasons.
The Common Pleas Court held that the commission's regulations adopted on February 2, 1960, are unreasonable and constitute an abuse of discretion; that the commission, although required to comply with the Administrative Procedure Act, failed to do so; and that its regulations are, therefore, void.
The Court of Appeals, in affirming the judgment of the Common Pleas Court, disagreed with the two reasons above set forth and held that the commission's regulations need not be adopted in accordance with the provisions of the Administrative Procedure Act, and that, if the commission had the power to act, it did so in a reasonable and lawful manner, but that the case could not be decided without passing upon the constitutional question. It then decided that the civil service amendment authorized the General Assembly to pass laws establishing civil service regulations for employees in the service of the state, the several counties and the cities, and that there was no authority to extend civil service jurisdiction to other political subdivisions, and, hence, Section 143.30, Revised Code, so far as it applies to city school districts, is unconstitutional.
The board did not appeal from the judgment of the Common Pleas Court. The commission has appealed as of right from the judgment of the Court of Appeals and has assigned as error the judgment of such court holding Section 143.30, Revised Code, unconstitutional in its attempt to bring nonteaching school employees under the jurisdiction of the commission.
Mr. John J. Chester, for appellees.
Mr. Russell E. Rakestraw, city solicitor, for appellant.
The sole question for determination by this court is whether Section 143.30, Revised Code, so far as it extends civil service jurisdiction to nonteaching employees of city school districts, is unconstitutional and void as being in conflict with Section 10 of Article XV of the Constitution of Ohio, which reads as follows:
"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."
Section 143.30, supra, as amended, effective November 2, 1959, in 128 Ohio Laws, 1066, so far as here relevant reads as follows:
"Such municipal civil service commission shall prescribe, amend, and enforce rules not inconsistent with Sections 143.01 to 143.48, inclusive, of the Revised Code, for the classification of positions in the civil service of such city and city school district, and all the positions in the city health district; for examinations and resignations therefor; for appointments, promotions, removals, transfers, layoffs, suspensions, reductions, and reinstatements therein; and for standardizing positions and maintaining efficiency therein. Said municipal civil service commission shall exercise all other powers and perform all other duties with respect to the civil service of such city, city school district, and city health district, as prescribed by said sections and conferred upon the Director of State Personnel and the State Personnel Board of Review with respect to the civil service of the state; and all authority granted to the director and the board with respect to the service under their jurisdiction shall, except as otherwise provided by Sections 143.01 to 143.48, inclusive, of the Revised Code, be held to grant the same authority to the municipal civil service commission with respect to the service under its jurisdiction. The procedure applicable to reductions, suspensions, and removals, as provided for in Sections 143.26 and 143.27 of the Revised Code, shall govern the civil service of cities."
A question much similar to that now before the court was decided by this court in the case of State, ex rel. Giovanello, v. Village of Lowellville (1942), 139 Ohio St. 219. In that case, the question was whether the civil service amendment extended to villages, and this court held that it did not. The first paragraph of the syllabus in the Giovanello case reads as follows:
"1. Section 10, Article XV of the Constitution, which requires appointments in the civil service to be made according to merit and fitness to be ascertained as far as practicable by competitive examinations, applies to the state, counties and cities but not to villages."
In the course of the opinion by Williams, J., at page 222, there appears the following:
"There are two principal subjects of inquiry, (a) the validity and force of Section 4389, General Code, with reference to the classified civil service and to the municipal ordinance quoted, and, if the statute is valid, the proper construction thereof, and (b) the relator's right to salary * * *.
"First, then, we shall consider the validity and force of the statutory provision.
"The respondents claim that Section 4389, General Code, is invalid because it is violative of the civil service provision of the Constitution (Section 10, Article XV) which requires that appointments and promotions in the civil service of the state, counties and cities be made according to merit and fitness, to be ascertained by competitive examinations so far as practicable. Since villages are not mentioned in the provision, the maxim expressio unius est exclusio alterius applies; therefore villages are excluded from the operation of the constitutional provision. Respondents claim, however, that `there is an implied limitation and restriction upon the Legislature to pass laws that are tantamount to civil service laws for villages.' Such an implication is inconsistent with the exclusion. In consequence the statute is not invalid for the reason urged."
The doctrine relied upon the Giovanello case is universally recognized.
In 16 Corpus Juris Secundum, 89, Constitutional Law, Section 21, there appears the following:
"Unless a different intention is apparent, the enumeration of specified matters in a constitutional provision usually is construed as an exclusion of matters not enumerated.
"Applying the maxim, expressio unius est exclusio alterius, the enumeration of certain specified things in a constitutional provision will usually be construed to exclude all things not thus enumerated."
In 11 American Jurisprudence, 667, Constitutional Law, Section 57, there appears the following:
"In construing a constitution, resort may be had to the well-recognized rule of construction contained in the maxim `expressio unius est exclusio alterius,' and the expression of one thing in a constitution may necessarily involve the exclusion of other things not expressed. The rule has been variously applied. For example, where the means for exercise of a granted power are given in a constitution, no other or different means can be implied as being more effectual or convenient, for where a power is expressly given by the constitution and the mode of its exercise is prescribed, such mode is exclusive of all others."
In 10 Ohio Jurisprudence (2d), 141, Constitutional Law, Section 41, it is stated as follows:
"In construing a constitution, resort may be had to the well-recognized rule of statutory interpretation contained in the maxim, `expressio unius est exclusio alterius.' The expression of one thing in a constitution may necessarily involve the exclusion of other things not expressed."
In the case of Board of Elections for Franklin County v. State, ex rel. Schneider (1934), 128 Ohio St. 273, Stephenson, J., in the course of the opinion stated:
"In approaching the question of the constitutionality of this act we are not unmindful of the following well established rules of construction, viz:
"* * *
"5. If the maxim `expressio unius est exclusio alterius' is involved, we must consider it. State, ex rel. Robertson Realty Co., v. Guilbert, Aud. of State, 75 Ohio St. 1, 78 N.E. 931.
"* * *
"8. However, the General Assembly exercises delegated authority only, and any act passed by it not fairly falling within the scope of legislative authority is as clearly void as though expressly prohibited. Cincinnati, Wilmington Zanesville Rd. Co. v. Commissioners of Clinton County, 1 Ohio St. 77; Baker v. City of Cincinnati, 11 Ohio St. 534; Lehman v. McBride, supra; State, ex rel. Garnes, v. McCann, supra; Bloom v. City of Xenia, 32 Ohio St. 461."
In the case of City of Cleveland v. Board of Tax Appeals (1950), 153 Ohio St. 97, in the opinion by Matthias, J., at page 112, it is said:
"As stated in 2 Cooley on Taxation (4 Ed.), 1382, Section 661, `generally, where the Constitution enumerates the property which is or may be exempted, it is held that the Legislature has no power to exempt other property than that enumerated. The lack of power to exempt may result from the express wording of the constitutional provision or be implied on the theory that the enumeration is intended to be exclusive.'"
Being of the opinion that the decision of this court in the Giovanello case is controlling here, we conclude that the Court of Appeals correctly decided that Section 143.30, supra, is unconstitutional so far as it includes employees of a city school district under the jurisdiction of a municipal civil service commission. Being of that opinion, it is unnecessary to decide other questions raised in this case.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BRYANT and GRIFFITH, JJ., concur.
BRYANT, J., of the Tenth Appellate District, sitting by designation in the place and stead of HERBERT, J.
I concur in the judgment for the reason that, in adopting the regulations involved, the commission did not comply with the Administrative Procedure Act (Chapter 119, Revised Code). See State, ex rel. Board of Education of North Canton Exempted Village School District, v. Holt, Supt., 174 Ohio St. 55. However, I cannot agree with the conclusion of the majority that Section 143.30, Revised Code, so far as it applies to city school districts, is unconstitutional.
By reason of Section 1 of Article II of the Ohio Constitution which provides that "the legislative power of the state shall be vested in a General Assembly" and of Section 7 of Article I of the Ohio Constitution which provides that "it shall be the duty of the General Assembly to pass suitable laws * * * to encourage schools and the means of instruction," the General Assembly clearly has the power to enact civil service laws applicable to schools.
This was recognized by Zimmerman, J., when he stated in the opinion in State, ex rel. Bishop, v. Board of Education, 139 Ohio St. 427, 438, 40 N.E.2d 913:
"Such legislation [teachers' tenure acts] bears a resemblance to the older civil service laws, and the general constitutionality of teachers tenure acts has been upheld by the courts as a valid exercise of legislative power."
That statement was specifically approved in the opinion "by the court" in State, ex rel. Saltsman, v. Burton, 154 Ohio St. 262, 267, 95 N.E.2d 377.
The actual holding of this court in State, ex rel. Giovanello, v. Village of Lowellville, 139 Ohio St. 219, 39 N.E.2d 527, was that, since villages are not mentioned in Section 10 of Article XV of the Ohio Constitution, that section does not limit the power of the General Assembly to enact civil service laws applicable to villages.
In that case, it was contended that a law providing for appointments of firemen was invalid by reason of Section 10 of Article XV of the Ohio Constitution because the law authorized the making of such appointments other than (to use the words of Section 10 of Article XV) "according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations." In disposing of that contention, it was said in the opinion by Williams, J.:
"Since villages are not mentioned * * *; therefore villages are excluded from the operation of the constitutional provision [Section 10 of Article XV]. Respondents claim, however, that `there is an implied limitation and restriction upon the Legislature to pass laws that are tantamount to civil service laws for villages.' Such an implication is inconsistent with the exclusion. In consequence the statute is not invalid for the reason urged."
Likewise, in the instant case, since school districts are not mentioned in Section 10 of Article XV, its limitations on the power of the General Assembly to enact laws relating to "appointments and promotions in the civil service" are not applicable to Section 143.30 so far as that statute applies to appointments and promotions in the civil service of city school districts.
O'NEILL, J., concurs in the foregoing concurring opinion.