Opinion
No. 30858
Decided January 15, 1947.
Civil service — Cincinnati recreation commission a principal appointive commission — Entitled to appoint two secretaries, assistants or clerks in unclassified service — Section 486-8 (a) 8, General Code — Recreation commission authorized to place superintendent of recreation in unclassified service.
1. The recreation commission, created by virtue of the provisions of Section 14, Article Vll of the charter of the city of Cincinnati, is one of the principal appointive commissions of that city and as such has the right under the permissive authority granted by Section 486-8 (a) 8, General Code, to appoint two secretaries, assistants or clerks in the unclassified civil service of such city.
2. Where such recreation commission was authorized by an ordinance (363-1946) to appoint a "superintendent of recreation" to act as secretary and chief administrative officer and to assist in the direction and development of recreational activities, such commission has the right, pursuant to the provisions of Section 486-8 (a) 8, General Code, to place such appointee in the unclassified civil service of the city.
IN MANDAMUS.
John D. Ellis, in his official capacity as city solicitor of the city of Cincinnati, filed a petition in this court seeking a writ of mandamus to compel Henry Urner, as city auditor, to draw a warrant on the city treasurer in the net sum of $181.45 for compensation due Elmer Gerwin, as "superintendent of recreation," and to compel George C. Schiele, as city treasurer, upon presentation of such warrant, to pay the same according to its terms.
In the petition it is alleged that prior to September 25, 1946, there had been a position in the classified service of the city designated as "director of recreation" which position then was being filled by Elmer Gerwin under a provisional appointment; and that on the aforementioned date the city council passed an ordinance numbered 363-1946 abolishing the position of "director of recreation" and creating the position of "superintendent of recreation." That ordinance also authorized the "recreation commission" of such city to appoint such "superintendent of recreation."
Section one of the ordinance prescribed the duties of such superintendent and reads in part as follows:
"The superintendent of recreation shall be the secretary and chief administrative officer of the commission and shall be responsible to the commission for the direction and development of the recreational and other activities under its jurisdiction. * * *"
The ordinance was passed as an emergency measure and by section three thereof it was further provided that "the reason for the said emergency is the fact that there exists the immediate necessity for the appointment by the public recreation commission of a chief administrative officer to assist said commission in the direction and development of organized recreational and community activities." (Emphasis supplied.)
The compensation of the "superintendent of recreation" was fixed by separate ordinance.
On October 1, 1946, Gerwin resigned as "director of recreation," and on the same day was appointed by the recreation commission as "superintendent of recreation." He accepted such appointment and performed the duties thereof. On October 15, 1946, Gerwin became entitled to the amount, hereinbefore mentioned, as compensation for his services for the period from October 1 to October 15, 1946. He made demand upon the city auditor for the issuance of a warrant drawn on George C. Schiele, city treasurer, for the sum due. The city auditor refused to draw such warrant for the sole reason that the position of "superintendent of recreation" as established is in classified service of the city and that Gerwin was not appointed in accordance with the law applicable to positions in the classified service but was appointed as an employee in the unclassified service.
To the petition a general demurrer was filed upon the ground that the petition failed to state facts sufficient to constitute a cause of action.
It is agreed that the ruling upon the demurrer is to be dispositive of the case.
Mr. John D. Ellis, city solicitor, and Mr. Ed F. Alexander, for relator.
Mr. Robert J. White, for respondents.
During the course of this opinion the city of Cincinnati will be designated as relator and Henry Urner, city auditor, and George C. Schiele, city treasurer, will be designated as respondents.
A careful examination of the allegations of the petition discloses that no cause of action is stated against the respondent Schiele. Under the facts alleged in the petition (admitted to be true by the demurrer) Schiele as city treasurer had no authority to pay out any sum of money to Gerwin unless and until there was presented to such respondent a warrant drawn by the respondent Urner as city auditor. No such warrant having been presented for payment to respondent Schiele, it follows that he has failed to perform no duty specially enjoined by law and as to him the demurrer is well taken and should be and hereby is sustained.
The remaining and ultimate question to be determined is whether respondent Urner was justified in law in refusing to issue the requested warrant in favor of Gerwin. If the position of "superintendent of recreation" is in the classified service of the city as claimed by respondent Urner, then he was justified in his refusal, otherwise not.
In 1912, the people wrote into the Constitution a provision declaring the public policy of this state with reference to civil service and requiring that laws shall be passed for the enforcement of that constitutional provision (Section 10, Article XV). Thereafter the General Assembly passed what is commonly known as the Civil Service Code (Sections 486-l a to 486-31, both inclusive, General Code). All offices and positions of trust or employment in the service of the state, counties, cities and city school districts are embraced within the term "civil service" (Section 486-l a, General Code).
Under the provisions of that code there are two divisions of civil service, the classified and unclassified, one distinction between them being that all appointments and promotions in the classified service are determined by competitive examination.
The controversy in the instant case is centered around the question of whether the position of "superintendent of recreation" of the city is in the classified or unclassified service.
Relator contends that under the provisions of Section 486-8 (a) 8, General Code, the recreation commission has authority to appoint in the unclassified service two secretaries, assistants or clerks and pursuant to that authority has appointed the "superintendent of recreation" in the unclassified service.
Respondent Urner contends that the recreation commission is not a "principal appointive * * * commission" and therefore is not entitled to appoint two secretaries, assistants or clerks under the provisions of Section 486-8 (a) 8.
The solution of that problem is not difficult.
In the petition it is alleged that a "public recreation commission" is provided for by the charter of the city. While it is true that, under the provisions of the charter set forth, the powers and duties of the commission are to be fixed by ordinance of the council, the charter does provide that the commission shall expend all funds obtained from levies for recreational purposes, appropriated by other public bodies, or donated for such purposes to the city of Cincinnati or the public recreation commission. (Section 14, Article VII, Charter of city of Cincinnati.)
In view of the fact that the commission is created by the organic law of the city (the charter) coupled with the fact that the charter vests the commission with exclusive authority to expend all funds which are to be expended for recreational purposes, we cannot agree that the recreation commission is not a "principal appointive commission" as that phrase is used in Section 486-8 (a) 8, General Code. In our opinion the recreation commission is a principal appointive commission under that section and entitled to appoint two secretaries, assistants or clerks in the unclassified service.
The second contention of respondent Urner is that "the position of superintendent of recreation, as created by ordinance No. 363-1946, does not fall within the category of 'secretary, assistant or clerk.' "
It should be noted that the words "secretary," "assistant" and "clerk" are not defined in the Civil Service Code and, therefore, under a familiar rule of statutory construction we must presume that the General Assembly used those words in their ordinarily accepted meanings.
Webster's International Dictionary defines those words as follows:
Secretary * * * One entrusted with secrets * * *."
"Assistant * * *. One who assists; helper * * *. A means of help; an auxiliary * * *."
"Clerk * * *. One employed to keep records or accounts * * *; a scribe; an accountant; as, the clerk of a court; a town clerk * * *."
Tested by those definitions, the duties of the "superintendent of recreation" as defined in ordinance 363-1946 are not inconsistent with the duties of a secretary, assistant or clerk.
This court had occasion to consider Section 486-8 (a) 8, General Code, in the case of State, ex rel. Myers, v. Blake, Dir., 121 Ohio St. 511, 169 N.E. 599.
In that case the court was considering the question whether the chief of the division of boiler inspection was an assistant (within the meaning of the word "assistant" as used in Section 486-8 (a) 8, General Code) to the director of the department of industrial relations. There it was held that such chief was an "assistant" to the director and such position could be properly placed in the unclassified service as provided in such statute.
We fail to discern any logical reason why the conclusion reached in the Myers case should not apply with equal force to the present situation.
Respondent Urner urges that the exact question here in issue was presented and determined in the case of Deering v. Hirsch, 146 Ohio St. 288, 65 N.E.2d 649. We do not think so.
The Deering case, supra, presented the question of the authority of the recreation commission of the city of Cincinnati to summarily dismiss the "director of recreation" under substantially the following factual situation.
The position of "director of recreation" had been listed in the classified service of the city of Cincinnati for several years prior to 1931, and, there being a vacancy in the position in that year, the civil service commission of that city took steps to hold a competitive examination for the selection of three names to certify to the recreation commission, from which that body might make a selection to fill the vacancy. Various persons throughout the country were invited to take the examination, with the assurance that the position was in the classified service. Among others Deering responded and had next to the highest grade in the examination. He was therefore one of three whose names were certified by the civil service commission to the recreation commission on its written request and he received the appointment. At the expiration of the probationary period his appointment was made permanent and he served in the position for more than 14 years prior to December 12, 1944.
On that date the recreation commission passed a resolution which provided in substance that although the position of "director of recreation" had thereto-fore been treated as in the classified service, it was the unanimous opinion of the recreation commission that the position, being properly in the unclassified service, would therefore in the future be treated as in that service.
Two days thereafter, the recreation commission determined by resolution to discontinue the plaintiff's service as director of recreation as of December 31, 1944, and notified him of such action.
After such notice Deering brought an action for injunction against the commission in the Court of Common Pleas of Hamilton county where an injunction was allowed. Upon appeal the Court of Appeals dissolved the injunction and dismissed the action. This court upon review reversed the judgment of the Court of Appeals and held that Deering was in the classified service and could not be dismissed except in accordance with the provisions of Section 486-17 a, General Code.
Keeping in mind that the syllabus and opinion in the Deering case must be read in the light of the factual situation and the questions presented, we do not think that the conclusion there reached is inconsistent with our present views.
It should be further noted that neither the ordinance creating the office of "director of recreation" nor the ordinance prescribing the duties thereof defined such officer as a "secretary" or "assistant." (Sections 5 and 6 of Article XIV of the Administrative Code of the city.)
In the ordinance here under consideration (363-1946), it is specifically provided that the "superintendent of recreation" shall be the secretary and administrative officer to assist the commission in the direction and development of organized recreational activities. A perusal of the duties of such superintendent makes it abundantly clear that he is both a secretary of and an assistant to the recreation commission within the meaning of the word "secretary" and the word "assistant" as used in Section 486-8 (a) 8, General Code.
There can be no serious question as to the right of the city to abolish the position of "director of recreation" nor as to its right by ordinance to authorize the recreation commission to appoint a secretary and assistant under the name of superintendent of recreation."
The recreation commission, being a principal appointive commission of the city, undoubtedly had, under the permissive authority of Section 486-8 (a) 8, General Code, the right to place the position of "superintendent of recreation" in the unclassified service and to fill such position by appointment without a competitive examination therefor.
We are of the opinion that the respondent Urner was not justified in refusing to draw his warrant upon the city treasurer for the sum due Gerwin as compensation.
It follows that the writ should be and hereby is allowed:
Writ allowed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
SOHNGEN, J., not participating.