Opinion
No. 28106
Decided July 2, 1941.
Civil service — Positions may be consolidated and abolished in good faith for economy — Department of Taxation — Deputy tax commissioner appointed — Section 1464-3, General Code — Position of branch office superintendent abolished.
IN MANDAMUS.
This action was commenced in this court by relator filing a petition in mandamus against Tax Commissioner Evatt, the members of the Board of Tax Appeals in the Department of Taxation and the members of the state Civil Service Commission.
Relator avers, in substance, that he was duly appointed to the position of "Branch Office Superintendent in the Cincinnati office of the Department of Taxation, in the permanent classified civil service, and duly served as such from March, 1934, until October 31, 1939, when the Tax Commissioner, wrongfully and in violation of relator's rights, attempted to oust him from such position and refused to permit him to perform the duties or enjoy the rights, privileges and emoluments thereof.
Relator pleads also that no charges had been preferred or complaints made against him or his services; that the Tax Commissioner, as part of a scheme to deprive relator of his position and to supplant him with a person of opposite political faith, pretended to abolish relator's position; that the position was in fact not abolished; and that Wilbur E. Maddux, who was named to replace relator, performs only the same duties that relator performed.
Relator further pleads bad faith by the Tax Commissioner, demands by relator for reinstatement or replacement in another position in the Department of Taxation and refusal by the commissioner.
The petition contains allegations that the Tax Commissioner and Board of Tax Appeals have not jointly determined to which department relator should be assigned and the matter of his employment has not been referred to the state Civil Service Commission to make an assignment as required by Section 1464-12, General Code, in the event his position was in fact abolished. He avers that he has appealed and protested to the commission, which has declined to accept jurisdiction but has marked on its records that his position has been abolished, although such is not a fact.
He prays for a writ ordering the Tax Commissioner to reinstate relator to his position aforementioned and the Civil Service Commission to change its records to show he is still employed, or, if the position has been abolished in fact, ordering the Tax Commissioner and the Board of Tax Appeals to place relator in another position in the classified service in the department.
Tax Commissioner Evatt, in his amended answer, admits that relator, at the time of his removal from active state service, occupied the position of Branch Office Superintendent of the Intangible and Personal Property Tax Division, Department of Taxation, which position was in the classified civil service. Commissioner Evatt alleges that the position formerly occupied by relator was, on or about November 1, 1939, abolished in good faith and for the purpose of economy and that no person has been appointed to replace relator; that on or about June 8, 1939, Wilbur E. Maddux was appointed under Section 1464-3, paragraph 11, General Code, to the office of Deputy Tax Commissioner in the unclassified civil service; that as such Deputy Tax Commissioner Maddux had been assigned the full control and management of all branch offices in the Department of Taxation, including the branch office formerly supervised by relator in the Cincinnati area; and that by virtue of a reorganization and consolidation within the Department of Taxation the services of relator were no longer required and accordingly his position was abolished in the manner provided by law.
The members of the Board of Tax Appeals in their amended answer allege that on or about June 13, 1939, pursuant to Section 1464-12, General Code (118 Ohio Laws, 352), they and the Tax Commissioner jointly determined which of the employees of the former Tax Commission should be assigned to each; that as a result of such joint determination relator was assigned to the Tax Commissioner and relator was at no time assigned to or under the jurisdiction of the Board of Tax Appeals; and that at no time were they and the Tax Commissioner in disagreement as to the assignment of relator.
The answer of the state Civil Service Commission avers that its records reveal the position formerly occupied by the relator was abolished by the Tax Commissioner; that subsequently no person has been appointed to the position; that the matter of the assignment of relator had not been referred to it pursuant to Section 1464-12, General Code; and that in accordance with Section 486-16, General Code, relator's name was placed at the head of an appropriate eligible list from which to certify upon proper requisition of an appointing officer.
Relator's reply denies consolidation of position for economy, alleges the abolishment of his position was a sham and merely for political purposes, and pleads that Maddux is not a true deputy within the meaning of that term.
Proper denials by all pleaders were interposed to allegations not specifically admitted.
The controversy was submitted upon the pleadings, a stipulation and depositions.
Mr. Jerome Goldman, for relator.
Mr. Thomas J. Herbert, attorney general, Mr. Howard Bernstein and Mr. John P. Walsh, for respondents.
Although the members of the Board of Tax Appeals and the Civil Service Commission are named as respondents, the brief of counsel for relator presents no question of law arising from the allegations as to those two bodies.
These three questions are propounded in the brief for relator: First, did the respondent Tax Commissioner have any legal right to supplant the relator with Maddux through the device of calling him a deputy? Second, was there really a consolidation of positions for the purpose of economy and was relator's position abolished in good faith as a result thereof, or was there a mere manipulation of positions and titles for the purpose of getting rid of relator and replacing him? Third, was any economy intended or effected by the change?
As to the first question, paragraph 11 of Section 1464-3, General Code (118 Ohio Laws, 346), authorizes the Tax Commissioner to appoint five deputy tax commissioners. The respondent Tax Commissioner made an appointment pursuant to that statutory authorization and the record reveals no supplanting through the device of calling an appointee a deputy.
As to the second and third questions, the record discloses a consolidation of positions, the abolishment of relator's position in good faith and an economy effected.
The law involved in this proceeding was declared in State, ex rel. Stine, v. McCaw, Chief of Div. of Aid for Aged, 137 Ohio St. 13, 27 N.E.2d 488.
A writ of mandamus will be denied.
Writ denied.
WEYGANDT, C.J., TURNER, WILLIAMS, HART, ZIMMERMAN and BETTMAN, JJ., concur.
MATTHIAS, J., not participating.