#### The State, ex rel. Townsend, *v.*Berning, Treasurer.

(Decided July 5, 1938.)

*Mr. George E. Kearns*aud *Mr. Jerome Goldman,*for relator.

*Mr. Dudleg M. Outcalt, Mr. Walter M. Locke*aud *Mr. I. Jack Martin,*for respondent.

*459Ross, P. J.

This is an original action in mandamus in this court.

The relator seeks to have an order of the treasurer of Hamilton county, dismissing him from the office of tax clerk in such treasurer’s office, set aside.

The relator was appointed to the office after passing a competitive examination and being duly certified by the Civil Service Commission of Ohio. There are other clerks of the same status and duties in the office who were appointed under similar circumstances and who have not been dismissed and who perform like duties to those which the relator performed, which duties are now being performed by the brother of the treasurer, who was appointed upon the dismissal of the relator without cause. •

There is nothing in the agreed statement of facts which indicates that the position formerly held by the relator under the classified service or which is now held by the brother of the treasurer requires a fiduciary relationship or any species of trust, or any quality of merit and fitness which could not most practicably be ascertained by a competitive examination. Other clerks of like.status whose merit and fitness for the same position were ascertained by competitive examination are serving with perfect satisfaction. The dismissal was not placed upon any other basis than upon the privilege granted by Section 486-8, paragraph 8, General Code.

It is contended,that the respondent’s action is sustained by such section, as interpreted by the case of *State, ex rel. Myers,*v. *Blake,*121 Ohio St., 511, 169 N. E., 599. This is a four judge *per curiam,*opinion of the Supreme Court. The court says on page 518 of the opinion:

> “The constitutionality of Section 486-8, General Code, was recognized in *State, ex rel. Bryson,*v. *Smith, Secy, of State,*101 Ohio St., 203,128 N. E., 261. *460See, also, *Hile*v. *City of*Cleveland, 118 Ohio St., 99, 160 N. E., 621.”

In the *Bryson case,*the court had under consideration paragraph 9 of Section 486-8, General Code, which applies to deputies bearing a fiduciary relationship to their principals. Paragraph 8 was not considered and not approved.

The court says at pages 209 and 210 of the opinion in the *Bryson*case:

> “But the occupant of this position is one who, although not actually termed a deputy by the statute, yet is shown by the allegations of this answer to be one who holds a fiduciary relation to his principal; and the Legislature by the passage of Section 486-8, which exempted such applicants from examinations, was merely giving effect to the letter and spirit of the constitutional provision which is here involved. The name is not of the essence of the place.

> “Some of the elements which are conceded to be essential to the occupant of this position, such as experience, knowledge, or technical equipment, can of course be determined by competitive examination, but the confidential and fiduciary relation is paramount. This paramount condition, as pointed out, cannot be determined by examination, but must be determined by the personal knowledge or the personal confidence of the appointing officer in the vigilance and faithfulness of the deputy or the one occupying the fiduciary relation. This is obviously the thing the' Legislature had in mind. And just as the qualities mentioned cannot be ascertained and determined by competitive examination, so the question of the nature of the position, when a sufficient showing has been made concerning these essential elements, the question whether it is such position as contemplated by the Constitution and the legislation enacted pursuant thereto, in regard to the impracticability of ascertaining merit and fit*461ness.by competitive examination, becomes necessarily a judicial one. ’ ’

Tbe first paragraph of the syllabus in the *Hile case, supra,*is:

> “Section 10, Article XV, of the Ohio Constitution, does not prohibit the promotion and appointment of public officials in the civil service of cities without competitive examination in cases wherein it is not practicable to effectively test the capacity of applicants for such promotion or appointment by a competitive civil service examination.”

At page 103 of the opinion, the court says:

> “A large class of persons may be able to pass, with high grade, a civil service examination with respect to a position under consideration, and such an examination may show that all are qualified to fill subordinate places connected with the position, and therein render honorable, loVal, and efficient service, and at the same time- it may easily be true that no one of the class is able to fill the chief place for which an appointee is wanted to manage and superintend an important business’ institution.

> “Performing assigned duties, as an individual, under the guidance of a competent manager, is one thing. Acting as superintendent or general manager of an enterprise employing a large number of individuals is a very different undertaking. ’ ’

In that case the court was considering a general exemption from classified service of those who are required to' hold responsible executive positions of peculiar trust. Such exemption is manifestly sustained by the impracticability of ascertaining merit and fitness for such a position merely by a competitive examination.

These two authorities, therefore, sustain an exemption only when the impracticability of ascertaining merit and fitness by examination is apparent, either *462because of a fiduciary relationship or a required executive ability.

In the *Blake ease,*the position under consideration was that of chief of the division of boiler inspection. The court passed upon four questions. It decided that the appointing authority had acted within the 30-day period provided by statute in which exceptional appointments can be made; second, it decided that chief of the division of boiler inspection was an “assistant”; third, paragraph 8 of Section 486-8, General Code, did not contravene Section 10, Article XV of the Ohio Constitution, when given a construction permitting the exceptional appointment of such chief of the division of boiler inspection; and, fourth, that the appointment was not discriminatory or made for political reasons, contrary to the provisions of Section 486-17, General Code.

In passing upon the constitutional consideration, the court, at pages 517 and 518 of the opinion, says:

> “An examination of the debates of the Ohio Constitutional Convention, Vol. 2, page 1378, indicates that the practical operation of this article was to be left to the Legislature to carry into effect by the enactment of'proper laws. The section in question, Section 486-8, is one of the laws within the purview of the constitutional provision, and, as such, if we can give the same a construction consistent with the Constitution, it is our duty so to do. If a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional, it is the duty of the court to adopt that construction which, without doing violence to the fair -meaning of the language, will render it valid. *State*v. *Kendle,*52 Ohio St., 346, 39 N. E., 947; *State, ex rel. Weinberger,*v. *Miller, 87*Ohio St., 12, 99 N. E., 1078, 44 L. R. A. (N. S.), 712, Ann. Cas. 1913E, 761.

> “We think that the construction given the word ‘assistants.’ in the section under consideration is a reason*463able one, and within the legislative intent in the passage of the law in question, and that the same is not inconsistent with the constitutional requirements.”

In deciding that the relator was an assistant, the court on page 516 of the opinion says:

> “Each of these divisions has a chief, who is the recognized head of such division within the department of industrial relations. Clearly the word ‘assistants,’ as used in paragraph (a), subsection 8, of Section 486-8, General Code, does not refer to the assistant director contemplated in Section 154-5, because the director might have chosen two ‘assistants’ under Section 486-8, whereas Section 154-5 refers to only one ‘assistant.’

> “The office of chief of the division of boiler inspection being thus within the purview of the department of industrial relations, he was clearly within its jurisdiction and a subordinate of the director thereof. As such chief of the division of boiler inspection, he was an ‘assistant’ to the head of the department, as an agent through whom the duties and purposes of the department were accomplished.”

Now, although the court did not expressly so state, it is obvious that such a single individual as the chief of the division of boiler inspection of the state of Ohio, applying the laws relating to the particular subject to the multiple industries in Ohio, could most easily be a person whose merit and fitness could not be practicably ascertained merely by an examination. This, in effect, is the holding of the court, and such conclusion is especially evident from the supporting authorities noted, which, as heretofore indicated, are predicated upon this basis.

Following the line of reasoning in the *Blake case,*therefore, we cannot conclude that the Legislature, by passing paragraph 8 of Section 486-8, General Code, intended to provide that any elective officer could exceptionally appoint one whose merit and fitness *ta*
      *464the position conld be ascertained practicably by an examination, and that the paragraph only refers to those who conld not be so selected.

It is clear in the instant case that the position occupied by the relator is not one in which any fiduciary relationship to his principal exists, and it is also clear that his merit and fitness for such position could be ascertained by a competitive examination, for, in the first place, they were so ascertained, and, in the second place, clerks of exactly the same status are carrying on the same work as their fellow employee, and these clerks are in the classified service, and their merit and fitness were ascertained by a competitive examination.

If paragraph 8 means that an elective officer may exceptionally appoint two or three assistants or clerks without reference to the practicability of ascertaining merit and fitness by examination, then the Legislature could increase this number of exemptions to 100 or 1000 and completely negative the entire civil service provisions of the Constitution. Such could not have been the intention of the Legislature, regardless of the fact that the constitutional provisions are not self-enacting.

The prayer of the petition for a permanent writ is granted. The dismissal was unlawful and the relator will be reinstated as of October 15, 1937.

*Writ allowed.*

Hamilton and Matthews, JJ., concur.