#### The State, ex rel. Conway, *v.*Taylor, Dir. of Dept. of Liquor Control. The State, ex rel. Hamilton, *v.*Sherwood, Dir. of Dept. of Public Welfare, et al.

(Nos. 27741 and 27745

Decided December 20, 1939.)

*Messrs. Benesch, Marsteller, Friedlander & Morris,*for relator in cause No. 27741.

*175
      *Mr. Thomas H. Monger,*for relator in cause No. 27745.

*Mr. Thomas J. Herbert,*attorney general, *Mr. E. G. Schuessler, Mr. John P. Walsh*and *Mr. Howard Bernstein,*for respondents.

By the Court :

The first question is whether, in the absence of an eligible list, a civil service employee provisionally appointed after a non-competitive examination and upon approval by the Civil Service Commission of Ohio under favor of Section 486-14, General Code, may be summarily discharged from his position without the notice and hearing provided by Section 486-17ft, General Code.

This is the precise question presented and decided in the cases of *State, ex rel. Slovenshy,*v. *Taylor Dir.,*135 Ohio St., 601, 21 N. E. (2d), 990, and *State, ex rel. Lagedrost,*v. *Beightler, Dir.,*135 Ohio St., 624, 21 N. E. (2d), 992. In the former case this court held that “one receiving a provisional appointment under Section 486-14, General Code, in the absence of an eligible list, becomes an appointee in the classified service within the contemplation of Section 486-8(6),' General Code, entitled to retain his position during good behavior and efficient service, until the establishment of an eligible list, or until his services are terminated by arriving at the mandatory retirement age, or until the abolishment of the position, or a lay-off.

“Being in the classified service, he may not be summarily dismissed; his removal is governed by Section 486-17a, General Code.”

The respondents ask this court to overrule this pronouncement. They base their contention on the theory that under the civil service statutes of this state a civil service employee provisionally appointed after a noncompetitive examination and upon approval of the Civil Service Commission is not in the classified service.

*176A careful and dispassionate study of these statutes discloses that this question is clearly answered by the provisions of Section 486-14, General Code (106 Ohio Laws, 400, 409), which then read in part as follows:

> “Positions in the classified service may be filled without competition as follows:

> “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 npn-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 vacancy until a selection and appointment can be made after competitive examination, but such provisional appointment shall continue in force only until regular appointment can be made from eligible lists prepared by the commission, and such eligible lists shall be prepared within ninety days thereafter. In case of- an emergency an appointment may be made without regard to the rules of this act, but in no case to continue longer than thirty days, and in no case shall successive appointments be made: provided, however, that interim or temporary appointments, made necessary by reason of sickness or disability of regular officers, employees or subordinates shall continue only during such period of sickness or disability, subject to rules to be provided for by the commission.”

The very first sentence states that “Positions in the classified service may be filled without competition as follows.” Then comes a provision for provisional appointments upon a non-competitive examination. With the statute thus plainly stating that the classified service may be filled by a provisional appointment upon a non-competitive examination, this court cannot rea*177sonably be expected to indulge in sheer judicial legislation and hold that the classified service may *not*be so filled.

In the same sentence appears the statement that such a person “may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination.” In the face of this language it hardly will do to hold that such a person may *not*be appointed to fill a vacancy until a competitive examination is held.

Furthermore this sentence provides also that “such provisional appointment shall continue in force only until regular appointment can be made from eligible lists prepared by the commission. ’ ’ Again this wording manifestly precludes a holding that such appointment shall *not*continue in force until an eligible list is prepared. But the respondents rely upon the provision that “such eligible lists shall be prepared within ninety days thereafter. ’ ’ They contend that a provisional appointee is thereby prohibited from serving longer than ninety days. However, there seems to be no reason to construe this requirement as other than the thing it appears to be, namely, a direction to the Civil Service Commission to prepare an eligible list within ninety days. The theory of the respondents seems to be that, if the Civil Service Commission fails to discharge its duty in this respect, the appointee is thereby penalized by the loss of his position. This view of the matter would make it possible for the Civil Service Commission to oust an appointee by the simple device of refusing him an opportunity to take a competitive examination, and is a *non sequitur.*

This court finds no reason for departing from the pronouncement in the above-cited cases. These statutes may be amended by the Legislature but not by this court.

The second question here presented relates to the prayer of each relator for an order including not only *178a restoration to his position but also an adjudication of the question of salary. That a writ of mandamus is not the proper remedy for this phase of this controversy is apparent from numerous decisions of this court. In the case of *State, ex rel. Curtis,*v. *DeCorps, Dir.,*134 Ohio St., 295, 16 N. E. (2d), 459, it was held that “Appellant’s prayer that he be awarded the emoluments of his position during the period of his exclusion therefrom cannot be considered here.” In the case of *State, ex rel. White,*v. *City of Cleveland,*132 Ohio St., 111, 5 N. E. (2d), 331, it was held that “where an employee * * * has been suspended from the payroll, a writ of mandamus will not be employed to replace him on the payroll or to restore his wages during the period of his suspension.” Also, in the earlier case of *Williams, Dir.,*v. *State, ex rel. Gribben,*127 Ohio St., 398, 188 N. E., 654, this court said:

> “Mandamus will not lie to enforce the payment of a claim unliquidated and indefinite in amount. Whatever view may be entertained by this court with reference to the right of the relator to recover in an action at law compensation or salary, or any portion thereof, for the period of exclusion from office, * * * we now hold that such question can be considered only in an action at law.”

Hence the court is of the view that the petition of each relator states facts sufficient to constitute a cause of action for restoration to his position but not for his salary. The demurrer to each petition is overruled, and the respondents are granted leave to plead.

*Demurrers overruled.*

Wbygandt, C. J., Zimmerman, Williams and Myers, JJ., concur.

Williams, J.,

concurring. This court has under consideration the civil service status of a person, ap*179pointed provisionally after a non-competitive examination to a position in the classified service.

What is the meaning of Section 486-14, General Code, which provides for provisional appointments? No provisional appointment is ever to be made unless there are urgent reasons for filling a vacancy and the Civil Service Commission is unable to certify to the appointing authority a list of persons eligible for appointment as determined by a competitive examination. If, however, a provisional appointment must be made, the appointing authority nominates a person to the commission for a non-competitive examination. The commission conducts the non-competitive examination and if it finds the person examined qualified for the position certifies him to the appointing authority. Thereupon he ‘‘may be appointed provisionally to fill such vacancy *until a selection and appointment can be made*after competitive examination, but such provisional appointment shall continue in force only until regular appointment can be made from eligible lists prepared by the commission, and such eligible lists shall be prepared within ninety days thereafter.” (Italics ours.) It is thus apparent that a provisional appointee serves for a determinate period • prescribed by statute.

Is an employee (who is appointed provisionally after a non-competitive examination) in the classified service and not subject to removal without compliance with Section *1486-17a,*General Code, which provides for notice of removal and a hearing?

A position may be in the classified service and the incumbent filling the position may not be.

Section 486-1, paragraph 3, General Code (106 Ohio Laws, 400), contains this provision: “The term ‘classified service’ signifies the competitive classified civil service of the state * * In this connection “classified service” refers to the positions and not the incumbents thereof.

*180Section 486-8, General Code, after specifically providing what positions are in the unclassified service, recites: “The classified service shall comprise *all persons*in the employ of the state * * * not specifically included in the unclassified service, to be designated as the competitive class and the unskilled labor class.

“1. The competitive class shall include all positions and employments now existing or hereafter created in the state, * * * for which it is practicable to determine the merit and fitness of applicants by competitive examinations.” (Italics ours.) Obviously the relators did not hold positions in the unclassified service nor in the unskilled labor class. Consequently they must have held positions in the competitive class.

It remains tó consider whether the relators in filling positions in the classified service were themselves in the classified service. If they were, their removal without notice and hearing was illegal. Of course there is no express statutory provision to the effect that *k*provisional appointee is not in the classified service. Section 486-17, General Code, by its terms does not apply to temporary or exceptional appointments made under authority of Section 486-14, but Section 486-2, General Code, which is germane, provides: “On and after the taking effect of this act [Sections 486-1 to 486-31, General Code (106 Ohio Laws, 400)], appointment to and promotion in the civil service of the state, the several counties, cities and city school districts thereof, shall be made only according to merit and fitness to be ascertained as far as practicable by competitive examination; and thereafter no person shall be appointed, removed, transferred, laid off, suspended, reinstated, promoted or reduced as an officer or employee in the civil service of the state, the several counties, cities and city school districts thereof, in any manner or by any means other than those prescribed in this act or by the rules of the state or municipal *181civil service commissions within their respective jurisdictions as herein provided.”

By virtue of this section when an appointment is made according to merit and fitness, removal can be made only as provided in the statutes governing civil service; and it makes no difference whether merit and fitness are ascertained by a competitive or non-competitive examination, for a competitive examination is required only in so far as practicable.

It is not well, however, to attach too much importance to one passage or to allow the letter of the law to obscure its purpose. After all, the spirit of the law is the touchstone of interpretation. When all the the statutes are read together in the light of the constitutional provision the conclusion is inevitable that the intent of the Legislature was to put in the classified service all persons appointed upon merit and fitness after due examination competitive or non-competitive. See Section 10, Article XY of the Ohio Constitution.

A person, who has been certified as qualified after a non-competitive examination as to merit and fitness and who has been appointed to a position in the classified service upon such certification, is himself in the classified service and entitled to hold the position until an appointment is made from an eligible list duly certified. Being in the classified service, he can be removed only as provided by statute.

Lastly let it be borne in mind that, if state laws as to civil service are observed, all provisional appointees should be replaced within ninety days but only from names certified from the eligible lists after competitive examinations.

Day, J.,

dissenting. The respondents in open court having stated that the demurrers would not be determinative of the issues and that the respondents would file answers m the event the demurrers are overruled, *182the writer does not feel that all the issues in the instant oases are before the court at this time.