#### Clements et al., Appellants, *v.*Sherwood, Dir. of Pub. Welfare, Appellee.

(No. 3401

Decided March 4, 1942.)

*Mr. John M. Collins*and *Mr. Charles Case,*for appellants.

*Mr. Thomas J. Herbert,*attorney general, and *Mr.. David M. Spriggs,*for appellee.

By the Court.

This matter is before this court upon appeal by the plaintiffs on questions of law and fact from a judgment of the Court of Common Pleas of Franklin county, rendered on the 4th day of June-1941.

The petition is for a declaratory judgment and is-*267■quite lengthy, being filed by tbe appellant, Royal E. Clements, as agent of tbe American Federation of Municipal Employees, Dale Gilkey as president of tbe Ohio State Employees Local No. 5, and Ruth Bolick, as an employee of tbe Institution for Feeble Minded.

Tbe petition recites that tbe plaintiffs are members ■of several enumerated labor unions and alleges that they bring tbe suit on behalf of themselves and all other members of such unions and employees of state institutions; that tbe questions presented are of common and general interest to a large number of persons; and that it is impracticable to bring them all before tbe ■court.

Defendant is tbe director of tbe department of public welfare, and it is alleged that as such be is responsible for tbe determination of general policies in that department and is vested with exclusive power to appoint •employees of tbe state institutions enumerated. It is alleged that tbe rights and status of tbe parties plaintiff are affected by Sections 34 and 37, Article II of tbe Constitution, and Sections 17-1 and 154-20 and ■other related sections of tbe General Code.

It is alleged that a controversy has arisen between tbe plaintiffs and others similarly situated as public ■employees of state institutions and as members of the union involving tbe true intent and tbe meaning of tbe ■constitutional provision and tbe provisions of tbe Code respecting tbe number of hours that shall constitute a •day’s work and a week’s work of employees in state institutions under tbe management of tbe public welfare department, except in emergencies.

It is alleged that tbe defendant has been guilty of violating tbe constitutional and statutory provisions in that tbe employees of tbe several institutions are required and compelled frequently to perform hours of ■service in excess of eight hours a day and forty-eight *268hours a week; that such overtime is required ou the-pretended ground that the number of employees of the-state institutions is numerically too small to permit, the work required on an eight-hour schedule and that without such extra hours the services of the employees-will be impaired; and that without the actual existence of such extraordinary emergency defendant enforces-such extra hours.

It is alleged that doubt exists respecting the correct interpretation of the provisions of the Constitution and the Code, and plaintiffs therefore pray for a declaratory judgment by the court on the status of' plaintiffs and others similarly situated.

The petition enumerates nine several paragraphs, upon which a declaratory judgment is prayed for. Plaintiffs also pray for a declaration of the effect of the constitutional and statutory provisions, determining the status of the parties, the validity of the enforcement of the hours in excess of eight, and the interpretation of the provisions thereof.

To this petition an answer is filed by the defendant, Charles L. Sherwood, as director of the department of public welfare, in which formal admissions are made, and in which he declares that he is of the opinion that the control of the various institutions under the management of the department of public welfare does not violate the Constitution in any respect.

On March 27,1941, the cause was heard by the court below on-evidence presented by the .plaintiffs, which discloses the fact that certain employees are engaged' for a longer period than eight hours a day or forty-eight hours a week, and that they receive no extra, compensation for overtime.

The state presented no evidence.

The court made a ruling to which exceptions and a. motion for a new trial were filed.

*269On June *4,*1941, there was an entry to the effect that the motion for a new trial was overruled, and that the court found that Section 37, Article II of the Constitution, and Section 17-1, General Code, do not apply to employees of the state in institutions under the supervision of the director.

The court further found that neither by constitutional provision nor by legislation have any maximum work hours been prescribed for employees of the state in institutions under the supervision of the director of public welfare.

The court further found that it is within the discretion of the defendant, the director, to determine the hours per day and per week which the employees in institutions under the supervision of the director of public welfare should work. The court, in view of the findings aforesaid, found that it was not necessary to answer categorically other requests contained in the prayer of the plaintiff’s petition.

We are favored with a well-considered decision of the court below which relieves us of the necessity of discussing in detail many of the interesting questions raised. However, we will briefly sketch the matter leading to the controversy.

Section 37, Article II of the Constitution, as amended in 1912, provides as follows:

“Except in cases of extraordinary emergency, not to exceed eight hours shall constitute a day’s work, and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract, or otherwise.”

Section 17-1, General Code, provides:

“Except in case of extraordinary emergency, not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for *270workmen engaged on any public work carried on or aided by tbe state, or any political subdivision thereof, whether done by contract or otherwise * * *.”

It will be observed that this statute states in substance the provision of the Constitution in reference to the hours of labor. There are certain other sections which are alluded to in the briefs and which the plaintiffs claim support their contention. We will briefly comment upon .these.

Section 154-20, General Code, provides in substance that all employees in the several departments of the state shall render *not less*than eight hours of labor each day with holidays excluded; and that such employees shall have two weeks absence with full pay.

It will be noted that this section does not prescribe the *maximum*hours of employment, but the minimum, and consequently it has no reference to the matter now before us.

Section 1008-2, General Code, under the chapter relating to “Chief Inspector of Workshops and Factories, ’ ’ relates largely to the hours for employment of females, and further relates to the hours of employment of those of specified ages.

Section 12996, General Code, under the chapter “Offenses against Minors,” provides the limitation of the hours of employment of minors of certain designated ages in certain enumerated employments. Neither of these sections seems to have relation to the employees of the welfare department enumerated in the petition. It will be further observed that both of these sections relate to general employment of the individuals enumerated, but that neither has any reference to those employed by the state, and that each is a general statute.

In *State, ex rel. Nixon,*v. *Merrell, Dir. of Highways,*126 Ohio St., 239, 185 N. E., 56, it is held in the first paragraph of the syllabus:

*271“The state is not honnd by the terms of a general statute, unless it be so expressly enacted. ’ ’

Judge Allen, delivering the opinion of the court, on page 246 discusses this matter at some length, and cites a number of supporting opinions. She there states that it is the contention of the state that the state as a sovereignty is not bound by the terms of a general statute unless such statute expressly applies to the state. She states: “This is a well established doctrine,” citing cases in support thereof. It will thus be seen that these two general statutes, even though they might apply to the very character of work done by the employees whose position is now in question, do not control the state in its employment for the reason that as a sovereignty it is not bound by the terms of these general statutes.

Section 12996 in addition to relating exclusively to minors has special application to those employments enumerated in Section 12993 under the general heading, “Employing Minor in Factory.” In addition to this, none of the evidence introduced discloses that any of the individuals named are minors.

Counsel for plaintiffs cited this provision of the Constitution and the various statutes above noted and based upon them their claim that there should be a declaratory judgment in which the rights of the several state employees would be determined to be as claimed in the petition. We find that most of the points raised by counsel for plaintiffs are decided directly or by inference in the case of *State*v. Peters, 112 Ohio St., 249, 147 N. E., 81, wherein it is held:

“1. Section 17-1, General Code, has no application to the employment of labor by a municipality in the operation of a public utility owned by such municipality. The expression ‘workmen engaged on any public work carried on or aided by the state, or any *272political subdivision thereof, whether done by contract or otherwise,’ relates to the *construction*of public improvements and not to their *maintenance*or operation.” (Italics ours.)

It will not be claimed that any of the employees enumerated in the petition are engaged in the *construction*of any public institution. They are all engaged in its operation. The case above cited is of too much importance to do it justice by merely quoting from it. We, therefore, commend it to the careful consideration of counsel. See, also, *Stange*v. *City of Cleveland,*94 Ohio St., 377, 114 N. E., 261.

We have no difficulty in arriving at the conclusion that a correct construction of the Constitution and the several statutes, especially as interpreted in the case of *State*v. *Peters, supra,*does not support the claim made by plaintiffs.

This is an appeal on questions of law and fact. Our conclusions are the same as the court below and our judgment to that effect may be entered.

*Decree for appellee.*

Geiger, P. J., Barnes and Hornbecic, JJ., concur.