#### The State, ex rel. Lynch, *v.*Taylor, Dir. of Dept. of Liquor Control.

(No. 27841

Decided March 20, 1940.)

*418
      *Mr. Joseph L. Meenan,*for relator.

*Mr. Thomas J. Herbert,*attorney general, *Mr.*
      *419
      *Howard Bernstein*and *Mr. John P. Walsh,*for respondent.

By the Court.

A determination of the first defense will dispose of the present controversy. That defense challenges the status of the relator as a provisional appointee in the classified civil service.

Recurring to the stipulation it will be noted that on November 1, 1938, (1) relator was placed upon the payroll, (2) a provisional appointment blank filled out and signed by relator was transmitted to the Civil Service Commission which was informed that his appointment was made effective that same day at the salary stated and (3) the District Supervisor was likewise notified of the employment of relator.

It will be noted further that on November 18, 1938, or eighteen days after relator was placed upon the payroll, the Director of the Department of Liquor Control was notified that the Civil Service Commission had approved the relator for provisional appointment.

Section 486-14, General Code, providing for provisional appointments, reads in part:

> “1. Whenever there are urgent reasons for filling a vacancy in any position in the classified service and the commission is unable to certify to the appointing officer, upon requisition by the latter, a list of persons eligible for appointment after a competitive examination, the appointing officer may nominate a person to the commission for non-competitive examination, and if such nominee *shall be certified by the commission as qualified after such non-competitive examination,*he may be appointed provisionally to fill such made after competitive examination * # (Italics ours.)

From the foregoing it will be observed that in *420order to consummate a provisional appointment the following- steps are necessary:

(1) The appointing officer’s nomination of a person to the commission for non-competitive examination;

(2) The commission’s certification of such nominee as qualified *after*such non-competitive examination; and

(3) The provisional appointment of the nominee so certified.

In the case at bar the appointment of relator preceded his certification by the commission.

Conceding that a non-competitive questionnaire blank was properly filled out by relator on November 1, 1938, the appointing officer was not notified of approval by the' Civil Service Commission until eighteen days after the appointment was attempted. The subsequent action by the commission did not correct the prior defect.

Section 486-14, General Code, prescribes the procedure to provisionally appoint a person and such appointment can be made only *after*approval by the Civil Service Commission.

A relator does not establish a clear legal right to a writ of mandamus restoring him to his position in the civil service, where he has failed to show a compliance with the laws governing his appointment. *State, ex rel. Stein,*v. *Department of Highways, ante,*252, 24 N. E. (2d), -; *State, ex rel. Brewer,*v. *Smith, ante,*67, 23 N. E. (2d), 836; *State, ex rel. Baird,*v. *Schroy, Mayor,*135 Ohio St., 94, 19 N. E. (2d), 644.

A writ of mandamus will be' denied.

*Writ denied.*

Weygandt, C. J., Day, Zimmerman, Williams, Matthias and Hart, JJ., concur.

Myers, J., dissents.

*421Weygandt, C. J., Zimmerman and Williams, JJ.,

concurring. In concurring herein we do not abandon the position that a duly named provisional civil service appointee is within the classified service and have the following additional observations to make.

The selection of provisionals rests upon the taking of non-competitive examinations to test their qualifications for the position to be filled.

By the terms of the statute such examinations precede approval and certification, and naturally so.

It is therefore our view that these provisional appointments, to be recognized as valid when properly challenged, should appear to have been made regularly and in conformity with the definite procedure prescribed by the statute.

Day, J.

concurring. I concur in the judgment and opinion of the majority for the reason therein stated, and also for the following further reasons:

Section 486-14, General Code, requires that a “noncompetitive *examination”*be given preliminary to and for the effectiveness of a provisional appointment. (Italics mine.)

Under the Civil Service Act, an “examination” is the condition precedent to appointment — a “competitive examination” for permanent appointment, and a “non-competitive examination” for a provisional appointment. The examination in either instance must precede the appointment.

An examination, competitive or non-competitive, is by statute required for the purpose of ascertaining the qualifications and fitness of the nominee to fill a given position. In essence, there is no distinction in the quality of examination to be given. The only distinction between the two types of examination is that one is competitive and the other non-competitive, but similar basic tests are to be applied to determine the merit and fitness of a nominee prior to his appointment.

*422In the instant ease, it appears that the relator was not at any time given a non-competitive examination. He filled ont a questionnaire blank. This was by no means an “examination” within the letter and spirit of the civil service statutes for the determination of merit and' fitness.

It is my opinion that a non-competitive examination is a primary requisite for provisional appointment under our civil service laws, and one not thus appointed is not entitled to the benefit and protection of the civil service law.

Matthias and Hart, JJ.,

concurring. We concur in the denial of the writ upon the grounds stated in the *per curiam*opinion, but are of the opinion that the writ should be denied for the very fundamental reason that one holding a position as a result of a provisional appointment which is based only upon a non-competitive examination is not in the classified service as defined in Section 486-1, General Code (106 Ohio Laws, 400), and does not come within the tenure of office protective provisions, Section 486-17a, General Code.

Myers, J.,

dissenting. This case is no different in principle from two other cases recently decided by this court: *State, ex rel. Slovensky,*v. *Taylor, Dir.,*135 Ohio St., 601, 21 N. E. (2d), 990; *State, ex rel. Lagedrost,*v. *Beightler, Dir.,*135 Ohio St., 624, 21 N. E. (2d), 992. A pertinent fact not stressed in the majority opinion is [hat the Civil Service Commission, in its letter of approval sent to the appointing authority, stated that such approval would be *effective*as of November 1, 1938, the day he started his employment. That letter of the Civil Service Commission, and known as Exhibit No. 4 in the record, reveals that the procedure followed in respect to relator was the same method followed by the Commission in other like cases. That letter is as follows:

*423“November 18, 1938.

“Hon. J. W. Miller, Director,

“Department of Liquor Control,

“Columbus, Ohio.

“Dear Sir:

“In accordance with your request and Section 486-14-1 of the General Code, this Commission has considered and approved the following nominations for provisional appointments:

*"Name Position Effective Salary*

“ * 'Clerk in Warehouse A-l, Hamilton Co., 9/28/38 $125 month

“ * Clerk in Store No. 12, Knox Co., 11/ 1/38 $115 month

“ * Cashier in Store No. 13, Licking Co., 10/16/38 $125 month

“ * Clerk in Store No. 28, Athens Co., 11/ 1/38 $115 month

“Thomas F. Lynch, Clerk in Store No. 29, Perry Co., 11/ 1/38 $115 month “ * ■ Clerk in Store No. 33, Hamilton Co., 9/27/38 $125 month

“ * Clerk in Store No. 34, Hamilton Co., 10/ 1/38 $125 month

“ * Clerk in Store No. 35, Hamilton Co., 11/ 1/38 $125 month

“ * Clerk in Store No. 36, Hamilton Co., 10/ 1/38 $125 month

* Clerk in Store No. 39, Hamilton Co., 9/28/38 $125 month

“ - * Clerk in Store No. 40, Hamilton Co., 10/ 4/38 $125 month

“ * Clerk in Store No. 41, Hamilton Co., 11/ 1/38 $125 month

“ * Clerk in Store No. 52, Montgomery Co., 11/ 1/38 $125 month

“ * Clerk in Store No. 59, Montgomery Co., 11/ 1/88 $125 month

* Clerk in Store No. 137, Cuyahoga Co., 10/10/38 $125 month

“ * Clerk in Store No. 141, Cuyahoga Co., 10/11/38 $125 month

“ * Clerk in Store No. 144, Cuyahoga Co., 9/27/38 $125 month

* Clerk in Store No. 139, Cuyahoga Co., 10/10/38 $125 month

“Very truly yours,

“The State Civil Service Commission.

“By:

“J. H. Breen, “Chief Clerk.”

It will be observed that in this one letter there were seventeen others, whose names are omitted here, certified in like manner as the relator.

In the record there is also a folder known as Exhibit No. 2. This folder is a form prescribed, prepared and used by the Civil Service Commission in connection with provisional appointments. This folder was used in the instant case. On one page it contains the nomination of the relator by the appointing authority. On *424another page it contains the non-competitive examination questions answered by the relator under oath. On still another blank it contains the approval by the Civil Service Commission. There is a complete record of the provisional appointment of the relator made on a form prescribed, prepared and used by the Civil Service Commission. The relator did everything he was required to do. The record in this case does not justify the summary dismissal of relator who faithfully performed his duties as an employee for more than four months.

The writ should be allowed.