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

(No. 27531

Decided May 8, 1940.)

*563
      *Mr. Jerome Goldman,*for relator.

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

By the Court.

It appears that in 1934 relator took a civil service examination for clerk in a state liquor store, that as a result he became seventy-sixth on the eligible list for the district concerned, and that his name was certified to the Department of Liquor Control as being eligible for appointment on three separate certifications of which relator received notice. However, he was never appointed as clerk by the appointing officer from those certifications.

From the time of his employment in December of J 935 relator continued in the status of a laborer upon an hourly salary until October 1, 1936, when he was entered as a provisional clerk at a regular clerk’s monthly salary. On October 10th relator signed and executed a non-competitive examination blank as candidate for provisional appointment and on October 15th that document, which also contained a nomination for *564provisional appointment effective October 1, 1936, was received by tbe Civil Service Commission. On October 19,1936, approval of tbe nomination for provisional appointment was entered by tbe commission on tbe face of the document, which also bore tW notation that the appointing officer was notified on November 6,1936.

Relator contends that, under Section 486-13, General Code, he is entitled to a permanent status as clerk. That section requires the appointing officer to “fill *such position*by appointment of one of the three persons certified to him as provided in this act.” (Italics ours.) No proof has been produced to sustain the allegation of the petition that relator was appointed as clerk from the eligible list certified to the appointing officer. As recited in the foregoing statement of facts, the reply pleads merely that relator *was employed*in a clerical capacity but does not allege that he *was appointed*as liquor store clerk. If this were a proceeding in mandamus to reinstate relator to a position as clerk to which he had been appointed from an eligible list and he established his right to such position, a'different question would be before the court.

Furthermore, relator is not entitled to the position of clerk even as a provisional appointee since his appointment in that status preceded his certification by the commission contrary to the provisions of Section '486-14, General Code. *State, ex rel. Lynch,*v. *Taylor, ante,*417, 26 N. E. (2d), 207.

The relator not having demonstrated a clear legal right in himself and a duty imposed by law upon the respondent, a .writ of mandamus will be denied.

*Writ denied.*

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

Myers, J., dissents.

*565Myers, J.,

dissenting. This case and the *Lynch case,*recently decided by this court, are typical examples of visiting the sins of the appointing authority and the Civil Service Commission upon the employee. In the two cases, *State, ex rel. Slovensky,*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, this court decided that on principle provisional appointees were entitled to the protection of Section 486-17a, General Code, against summary removal without cause. That was an interpretation of the rights of the appointee on the merit of his services rendered. Now it is sought through mere technicalities to invalidate the standing not only of all provisional appointees, but even of this relator, who took and satisfactorily passed a competitive examination for a permanent civil service status but who through no fault of his own but under a threat of being “fired” was forced to sign a provisional application blank. If technical mistakes are to render futile permanent and provisional appointments alike, and if the mistakes of the appointing authority and commission are to be charged to innocent employees, then security of tenure will give way to insecurity and no civil service employee may feel safe unless he first hires an attorney or abstracter to examine the record. Such execution and interpretation of civil service laws do not hold much promise for the future. Apparently all an appointing authority will need to do is to make a few convenient mistakes and the hapless employee will be at his mercy.

The writ should be allowed.