Opinion
No. 27536
Decided November 22, 1939.
Civil service — Eligible list prepared by state commission — Section 486-12, General Code — Names to rank in order of merit in competitive examination — Three highest to be certified and appointment to be made therefrom — Mandamus denied to compel certification of fourth candidate — Third candidate withdrew waiver prior to certification of fourth candidate.
1. It is the duty of the state Civil Service Commission, under the provisions of Section 486-12, General Code, to prepare an eligible list from the returns of a competitive examination upon which the persons eligible for appointment shall take rank in the order of their relative merit as disclosed by such examination.
2. It is required by the provisions of Section 486-13, General Code, that the appointing authority, before making an appointment to a position in the classified service, shall call upon the Civil Service Commission for a certification of the names and addresses of the three candidates standing highest on the eligible list for the class or grade to which such position belongs, and such position shall be filled by appointment "only from those persons whose names are certified to the appointing officer."
3. When there are names of four or more persons upon an eligible list for appointment to a designated position in the classified service and number three of those certified from such list by the state Civil Service Commission for such appointment waives his right to such appointment specifically in favor of number four but withdraws such waiver prior to the certification of the name of number four for such appointment, the Civil Service Commission will not be required by a writ of mandamus to certify the name of number four as of the date of such appointment.
IN MANDAMUS.
This is an action in mandamus originating in this court. Issue was made by petition, answer and reply, and the case was submitted upon an agreed statement of facts. The facts essential to a consideration and decision of the legal question presented may be concisely stated as follows:
The relator, having duly passed the civil service examination therefor, became eligible for appointment to the position of local manager of the Unemployment Compensation Commission. He stood fifth on the list of eligibles for such appointment. On November 30, 1938, the names of the four persons who preceded the relator on the eligible list were certified by the Civil Service Commission to the Unemployment Compensation Commission in response to its request for certification of persons to fill two positions. One such appointment was made, and thereby the relator became number four on the eligible list.
On December 8, 1938, the Civil Service Commission received from one George Gibboney, who stood as number three on the eligible list and immediately preceded the relator, a certain waiver in writing, dated December 6, 1938, stating that he thereby waived his position on the eligible list for local manager, for district No. 53, in favor of Lawrence L. Brewer, only." The relator's name did not appear on the certification which had been made and, in fact, never has been certified to the Unemployment Compensation Commission, or the department now designated as the Bureau of Unemployment Compensation, as being eligible for appointment. However, on December 5, 1938, the Unemployment Compensation Commission, having knowledge of relator's position on the eligible list, sent him a telegram informing him that he had been appointed a local manager and, on December 6, reported such appointment to the Civil Service Commission.
On December 16, 1938, Gibboney filed with the Civil Service Commission a written withdrawal of his waiver in favor of the relator, stating that it had been secured by reason of a misunderstanding, which he would explain upon being given opportunity, and asking for reinstatement to his original position on the civil service eligible list.
The Civil Service Commission had not withdrawn its original certification of persons eligible for such appointment, on which Gibboney stood third, and, by reason of the situation thus presented, refused to certify relator's name for such appointment, by reason whereof relator's services were terminated by the Bureau of Unemployment Compensation.
The relator seeks a writ of mandamus requiring the Civil Service Commission to submit to the Administrator of the Bureau of Unemployment Compensation as of December 6, 1938, a certification of the relator as eligible for the appointment in question, and requiring such administrator to void any previous action terminating the services of the relator or in anywise adversely affecting the continuance of his incumbency.
Mr. M. Ray Allison, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. John P. Walsh, for respondents.
The question of law presented by the record in this case is whether, when the names of four or more persons stand upon an eligible list for appointment to a designated position in the classified service and number three of those certified from such list by the state Civil Service Commission for such appointment waives his right to such appointment in favor of number four but withdraws such waiver prior to the certification of the name of number four, the Civil Service Commission will be required by a writ of mandamus to certify the name of number four for such appointment.
Mandamus may be issued only to require "the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." Section 12283, General Code. It is elementary, too, that it is incumbent upon relator to show a clear legal right in his favor and a manifest duty of the respondent to perform the act demanded.
Whether there is such right and corresponding duty in this case must be determined from an examination of the provisions of Sections 486-12 (106 Ohio Laws, 408) and 486-13, General Code, and Sections 1 and 2 of Rule VII of the Civil Service Commission.
The provisions of Section 486-12, General Code, authorize the state Civil Service Commission to prepare an eligible list from the returns of a competitive examination, and require that persons take rank thereon in the order of their relative merit as disclosed by such examination. It is required by the provisions of Section 486-13, General Code, that the appointing authority, before making an appointment to a position in the classified service, shall call upon the Civil Service Commission for a certification of the names and addresses of the three candidates standing highest on the eligible list for the class or grade to which such position belongs. It is therein further provided that the appointing officer shall fill such position by appointment "only from those persons whose names are certified to the appointing officer."
It is perfectly clear from these statutory provisions not only that the respondent administrator had no duty to appoint the relator but also that he had no right or power to make such appointment in the absence of a certification by the Civil Service Commission of the name of the relator as eligible for appointment to such position. Such appointment can be made only from those persons whose names are certified to the appointing officer in accordance with the provisions of the statute. Knowledge of the relator or of the appointing authority of the proposed waiver in favor of relator, which, it may be observed, was dated a day subsequent to the announcement of relator's appointment, would not dispense with the necessity of the certification in accordance with the requirement of statute. State, ex rel. Hart, v. Board of Commrs. of Hocking County, 101 Ohio St. 336,128 N.E. 286.
The provisions of the rules of the commission referred to consist merely of an abridged form of statement of the statutes above considered, with an addition of a specification of the method of certification when more than one appointment is to be made.
There is no statutory provision requiring the state Civil Service Commission to conform to the precipitant action of the appointing authority demonstrated in this instance by his appointment of one not certified for such position prior to the date of a waiver in his favor somehow procured from one who had been duly certified and who, ten days later, filed a withdrawal of such waiver, which was prior to any action taken upon such waiver or cognizance thereof by the state Civil Service Commission. It follows that the relator has shown no clear legal right to a certification of his name for appointment as of December 6, 1938. The writ is accordingly denied.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS and HART, JJ., concur.