Opinion
No. 77-1031
Decided June 14, 1978
Prohibition — Remedy not appropriate, when — Respondent not usurping function not given by law.
APPEAL from the Court of Appeals for Cuyahoga County.
Relator, a patrolman in the Cleveland police department, filed the instant complaint in prohibition in the Court of Appeals, wherein he asserted his eligibility for promotion to the rank of police sergeant and alleged his name had been wrongfully removed by respondents from a list of those eligible for promotion. Relator sought to prohibit the respondents, who are elected and appointed officials of Cleveland, from establishing a list of police officers eligible for promotion to sergeant unless the list contained relator's name.
The Court of Appeals, treating respondents' motion to dismiss as a motion for summary judgment, found that under applicable rules of the Cleveland Civil Service Commission, relator was not eligible to be promoted to sergeant and that respondents had the authority to remove relator's name from the promotion list, which name had been placed thereon through error. The court granted the motion to dismiss and entered final judgment for respondents.
The cause is now before this court upon appeal as of right.
Mr. Patrick L. Gerity, for appellant.
Mr. Jack M. Schulman, director of law, Ms. Karen B. Newborn and Mr. Norman Buckvar, for appellees.
Prohibition is a writ designed to prevent a tribunal from proceeding in a matter in which it seeks to usurp or exercise authority with which it had not been invested by law. Marsh v. Goldthorpe (1930), 123 Ohio St. 103.
However, if the tribunal has jurisdiction to determine the question before it, a writ of prohibition will not issue to prevent it from exercising such authority. State, ex rel. Dayton, v. kenealy (1960), 170 Ohio St. 320.
In this cause there is no showing by relator that the members of the Cleveland Civil Service Commission, or the other named respondents, are in any manner attempting to usurp a function with which they are not properly invested by law.
For the reason that a writ of prohibition is not an appropriate remedy, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
HERBERT, J., concurs in the judgment.