dissenting. I cannot concur in the judgment in this case. While assenting to the general rule stated in the several propositions of the syllabus, the facts of this case are such, in my opinion, as to exempt it from the operation of the rule stated in the fourth and fifth propositions thereof.
*415The majority regard the averments of the answer as immaterial in view of the conclusion that the civil service law cannot apply to the case of the relatrix. .Assuming the correctness of the conclusion of the majority as to the sufficiency of the petition, I cannot agree that the averments of the answer may be disregarded. The substance of the answer is quite fully set out in the statement of facts preceding the majority opinion and need not be here repeated.
The first civil service law which in any mknner affected the position here in question became operative August 10, 1913, ten days subsequent to the appointment of the relatrix. Some time thereafter, the date not being stated in the answer, ■ she took a noncompetitive examination under the provisions of Section 486-10, General Code (103 O. L., 703), which she successfully passed, receiving an average grade of 83.3, knd continued in her position as a civil service appointee. The pleading does not disclose whether the noncompetitive examination, as a result of which th'e relatrix entered the classified service, was taken before or after the adoption of the amendment to the constitution, which it is now held validated her appointment as chief matron, but it is quite clear that she continually and consistently treated her tenure of office as being under the civil service and that she sought and secured all the rights and benefits of the laws, rules and regulations governing the classified service.
On September 9, 1915, the Ohio board of administration announced its conclusion to retain the *416relatrix in the position of chief matron as a provisional appointee, pending the certification of an eligible list from which a permanent appointment could be made, and on March 4, 1916, when the names of persons who were eligible for permanent appointment to said position were certified, the name of the relatrix, under the provisions of the statute, the benefits of which she had sought and secured, was certified along with the list of three persons who had passed a competitive examination. From the time the relatrix voluntarily entered the classified service, vouchers for her pay had been submitted to, and had received the approval of, the state civil service commission, the authority of that board being at no time questioned until the bringing of this suit. The relatrix voluntarily placed herself in the classified service, thereby seeking and receiving its benefits, and she should not be permitted to shift her position and again claim tenure under an appointment for a fixed term.
Jones, J., concurs in the dissenting opinion.