Opinion
No. 31398
Decided December 15, 1948.
Municipal corporations — Civil service — Commission amended rules for age limits of applicants during emergency — Applicant passed examination, accepted appointment during emergency and signed waiver — Appointee separated from employment in accordance with terms of acceptance — Estopped from claiming rights under civil service laws.
Where, due to an emergency creating a shortage of qualified man power, a city civil service commission amends its rules by increasing for the duration of emergency the age range of applicants for examination for positions on the police force, and under such amendment an applicant above the former age limit passes an examination, is appointed to such a position and signs an acceptance of appointment reciting that the appointment is for such duration and that the appointee waives all claims to civil service status except such as may accrue during his emergency tenure, such appointee is estopped from claiming any of the rights conferred by civil service laws, except rights accruing during such emergency period, and cannot successfully complain when he is separated from his employment in accordance with the terms of his acceptance.
APPEAL from the Court of Appeals for Scioto county.
This case is before the court on appeal as of right from a judgment of the Court of Appeals for Scioto county denying Walter E. Sullens, appellant herein, a writ of mandamus to require his restoration to his former position of patrolman in the police department of the city of Portsmouth, from which position he was dismissed and separated on April 15, 1946.
The facts are not in dispute and are as follows:
Prior to September 16, 1942, Subsection (c), Section 2 of Rule 4 of the Rules and Regulations of the Civil Service Commission of the City of Portsmouth fixed the age limits for those admitted to examinations for position as patrolman as "not under 25 years nor over 35 years of age." Probably due to the emergency of World War II, the city experienced difficulty in obtaining men "not under 25 years nor over 35 years of age" for service on the police force because men of such ages were entering the service of their country at war. Thereupon, the civil service regulation providing for the age limits of applicants for the position of patrolman was amended as follows:
"Resolved: That the age limit provided for the patrolmen, police division, subsection (c) of section 2 of rule 4 of the rules and regulations of the civil service commission be suspended for the duration of the war and a period of 6 months thereafter, and that during said period applications for examination for such position be received from applicants not under the age of 25 years nor over the age of 50 years.
"This resolution effective as of September 24, 1942."
On January 13, 1943, the civil service commission adopted the following resolution:
"Resolved: That the age limit provided for the patrolmen, police division, subsection (c) of section 2 of rule 4 of the rules and regulations of the civil service commission be suspended for the duration of the war and a period of 6 months thereafter and that during said period applications for examination for such position be received from applicants not under the age of 25 years nor over the age of 60 years.
"This resolution effective as of January 21, 1943."
And, again, on April 19, 1944, the commission adopted still another resolution as follows:
"Resolved: That the age limit provided for the patrolmen, police division, subsection (c) of section 2 of rule 4 of the rules and regulations of the civil service commission be suspended for the duration of the war and a period of 6 months thereafter and that during said period applications for examination for such position be received from applicants not under the age of 23 years nor over the age of 60 years.
"This resolution effective as of April 26, 1944."
Sullens took and passed the civil service examination subject to such regulations and subsequently received the following letter of appointment under date of February 24, 1943:
"You are hereby appointed to the position of patrolman in the police department of the city of Portsmouth, Ohio, at a salary of $135 per month plus $15 per month war bonus, effective February 25, 1943.
"Your appointment is probationary and will continue for a period of three months at the end of which time permanent appointment will be made if your services have been satisfactory during the probationary period.
"However, your permanent appointment is for the duration of the present war only, and will terminate automatically at the end of the emergency."
On February 24, 1943, Sullens signed the following statement of acceptance of his appointment:
"The undersigned Walter E. Sullens, in accepting appointment as a patrolman in the police department of the city of Portsmouth, Ohio, accepts said appointment with the specific understanding that the same is for the duration of the present war and such reasonable time thereafter that may be necessary in order to fill said position pursuant to civil service laws.
"The undersigned specifically waives any and all claims to civil service status including seniority and pension rights except as the same may accrue during said period of the duration of the war and such reasonable time thereafter above referred to."
On March 23, 1946, Sullens received the following letter from the city manager:
"In order to comply with the present rules of the civil service commission in respect to qualification of members of the police department, it has become necessary to retire those members of the department who were appointed under wartime conditions, when the age requirements were suspended.
"It now becomes necessary to replace overage members of the department with returning veterans and qualified new members under the present rules of the commission. You, as one of the last overage members of the department appointed, are accordingly retired, effective April 15, 1946, subject to all pension rights that you may have acquired.
"The city of Portsmouth is appreciative of your services during the wartime emergency and I, personally, wish you success in any future endeavor."
Subsequently, on June 2, 1947, Sullens instituted this action in mandamus in the Court of Appeals for Scioto county to compel his reinstatement, contending that he was improperly removed from his position without cause and without hearing.
The Court of Appeals denied the writ and the case is now before this court on an appeal as of right.
Mr. Paul L. Selby, Jr., and Mr. Robert Dow Hamilton, for appellant.
Mr. Lowell C. Thompson, city solicitor, for appellees.
The city of Portsmouth was confronted in 1942 with an emergency in its police department when the man-power requirements of our country's war effort were at their highest peak. Younger men of the police department were entering the armed services and it became impossible to maintain adequate police protection for the city without changing the age limit for patrolmen provided by the city civil service commission regulation.
In order to provide adequate police protection and at the same time to provide for the reinstatement of those patrolmen who might return from the war seeking their former positions, the civil service regulations were amended to permit, as a temporary emergency measure, applicants of more advanced age to take the examination for position of patrolman.
Sullens knew that his appointment was of a limited tenure, and there was no evidence of misunderstanding on his part and no evidence of any fraud practiced upon him. By his own act he estopped himself from successfully claiming any of the privileges or benefits conferred by the civil service laws, and he cannot now complain when he is separated from his employment in accordance with the specific terms of his own agreement.
The judgment of the Court of Appeals is affirmed.
In view of our decision, it becomes unnecessary for us to pass upon the question pertaining to the statutory requirements in connection with Sullens' removal and his appeal therefrom.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.
TURNER, J., not participating.