Opinion
No. 167030.
1947-03-3
HINCKLEY v. COLE, Director of Public Safety, et al.
Willis Woehrle Metcalf, of Columbus, for plaintiff. John Davies, City Atty., E. W. McCormick, Asst. City Atty., and Richard Gordon, Asst. City Atty., all of Columbus, for defendants.
See 72 N.E.2d 464.
Action by Edwin H. Hinckley against Charles S. Cole, Director of Public Safety, and another, to restrain defendants from assigning or appointing a lieutenant from the Division of Police to be assistant to the captain in charge of detective bureau in accordance with ordinance of City of Columbus, Ohio, passed February 21, 1944.
Permanent injunction denied, temporary restraining order dissolved, and petition dismissed.Willis Woehrle Metcalf, of Columbus, for plaintiff. John Davies, City Atty., E. W. McCormick, Asst. City Atty., and Richard Gordon, Asst. City Atty., all of Columbus, for defendants.
CLIFFORD, Judge.
This is an action brought by the plaintiff, Edwin H. Hinckley, Assistant Chief of Detectives of the Police Department of the City of Columbus, Ohio, wherein he seeks permanent injunctive relief against Charles C. Cole, as Director of Public Safety, and Lester W. Merica, as Chief of Police, of said city of Columbus, Ohio, to restrain them from assigning or appointing a lieutenant from the Division of Police to be assistant to the captain in charge of the Detective Bureau in accordance with Ordinance #73-44 passed February 21, 1944.
Plaintiff claims that by said ordinance #73-44 the position of Assistant Chief of Detectives has been purposely abolished contrary to the rules and regulations of the Municipal Civil Service Commission and the laws of the State of Ohio; that in place thereof, and in violation of said rules, regulations and laws, it is the intention of the defendants herein to appoint a lieutenant who shall be assistant to the captain in charge of the Detective Bureau.
The material facts in this case are not in dispute. The evidence shows that the plaintiff, Edwin H. Hinckley, entered the police department as a patrolman on February 1, 1927, and was detailed as a detective a little over three years later; that on May 15, 1942 he was detailed as Assistant Chief of Detectives under the provisions of Ordinance No. 204-42, passed on March 30, 1942; that said ordinance was approved by the Municipal Civil Service Commission as to classification (as shown by letter dated March 27, 1942 from the said Commission to the City Council, and marked as Defendants' Exhibit ‘G’); that said ordinance repealed Ordinance No. 55-42, passed February 9, 1942.
Ordinance No. 544-41, passed August 25, 1941, classifying the position of Assistant Chief of Detectives, was repealed by said Ordinance No. 55-42. On March 24, 1942, Hinckley successfully took an examination for the so-called classified position of Assistant Chief of Detectives, was certified to the Director of Public Safety for appointment on August 17, 1943, and was appointed on the same day.
On February 21, 1944, the said Ordinance No. 73-44 was duly passed providing for the assignment of a Lieutenant in the police department to assist the captain in charge of the Detective Bureau. Under the provisions of this ordinance, the Lieutenant assigned to those duties would take the place of and substantially do the work of the plaintiff who has been the Assistant Chief of Detectives.
The examination given on March 24, 1942, was opened by order of the Civil Service Commission, to all members of the Division of Police who had had five years experience in the Detective Bureau, and to all Captains, Lieutenants and Sergeants who had five years experience in the Division of Police, and who were at the time of the examination holding such positions.
Six sergeants were eligible to take and did take the examination. In addition, however, twelve patrolmen, including the plaintiff, were permitted under the order of the Commission to take it. A close study of the city ordinances discloses to the Court that the original ordinance establishing the Detective Bureau has been changed by the enactment of later ordinances, each in turn repealing its predecessor ordinance so that at the time of filing this suit the controlling ordinance is ordinance #73-44 passed February 21, 1944.
It appears to the Court that the principle issue in this case is whether or not said ordinance #73-44 is valid, reasonable and in conformity with the laws of the State of Ohio.
We approach said principal issue and the problems involved thereunder with a full realization that nowhere does the petition of the plaintiff allege nor the evidence show that the proposed changes in ordinance #73-44 were not made in good faith and solely for the purpose of efficiency and economy.
In the ‘whereas' clause of ordinance #73-44 it is stated that ‘It has been found to be advisable to make a readjustment in the positions held by members of the Division of Police’ etc., and in Section 1 thereof it is provided: ‘That there shall be set up within the Division of Police a Subdivision designated ‘Detective Bureau’ to which the Chief of Police, under the direction of the Director of Public Safety shall assign: 1 Captain who shall be in charge thereof; 1 Lieutenant who shall be assistant to the Captain in charge; not to exceed 28 Sergeants, and not to exceed 5 patrolmen.'
We further note that the ordinance fixes the number of lieutenants at eight and sets the salary of $210 per month, minimum for first year; $215 after first year; $220 after third year; and $225 maximum after fourth year. The salary of Assistant Chief of Detectives, as fixed in the classified Civil Service ordinance 544-41, under which the plaintiff claims, was $195 per month, minimum for the first year; $200 after first year; $210 after third year; and $220 maximumu after fourth year; and for the position of Lieutenant, the salary was the same at that time.
Obviously under and pursuant to said ordinance 73-44 it must be presumed that it is planned that the Detective Bureau be reorganized so that the Chief of Police, under the direction of the Director of Public Safety, may assign anyone of eight lieutenants to do the work as assistant head of said Bureau, thereby doing away with the classified position of Assistant Chief of Detectives, and permitting any one of the eight lieutenants assigned to do this work and if he proves to be unsatisfactory may be removed from that assignment and another lieutenant assigned to take his place. The Court is familiar with the procedure of making assignments in the Police Department and that said procedures are longstanding; that assignments of captains or lieutenants are made to command and direct such work as Division of Traffic Regulation, Vice Squad, etc. and that such procedure makes for efficiency and economy in that various captains and lieutenants can be shifted from one type of police work to another as the necessity arises.
On the question of abolishment of classified position we have considered the following citations:
Section 486-17b, G.C.: ‘* * * When a position above the rank of patrolman in the police department and above the rank of regular fireman in the fire department is abolished and the incumbent has been permanently appointed in accordance with the provisions of this act, he shall be demoted to the next lower rank and the youngest officer in point of service in the next lower rank shall be demoted, and so on down until the youngest person in point of service has been reached, who shall be laid off.’
Section 14, City Charter: ‘Sec. 14. Officers and employes. Except as herein otherwise provided, council shall by ordinance determine the number of officers and employes in each department of the city government.’
5 R.C.L., ‘Civil Service’, § 7, page 614: ‘* * * Civil service statutes which prohibit the removal of an appointive officer except for cause and after a hearing do not take away the right of municipal authorities in good faith to abolish the office and thereby effect an indirect removal. Civil service laws are not intended to interfere with the operation of the well established principle that where a municipality or public board has the power to create an office and appoint an incumbent, it has the power, unless restricted by constitutional provision or legislative enactment, to abolish the office at any time; but while a municipality may indirectly abolish an office within the civil service by failing to make an appropriation for the compensation of the incumbent, good faith is essential in such cases, and the municipal authorities will not be allowed to evade civil service regulations by making a colorable change in the title of an office so as to oust the incumbent and permit the appointment of another person to perform substantially the same duties under a new name for the office. * * *’
State ex rel. Stine v. McCaw, 137 Ohio St. 13, syllabus 1, 27 N.E.2d 488: ‘1. The power to create a position in the civil service includes the power to abolish the position, particularly where the purpose of the abolishment of such position is that of economy or improvement in the public service.’
From opinion, 137 Ohio St. pages 15 and 16,27 N.E.2d page 489:
‘The question presented is merely whether, under the civil service laws of Ohio, a position may be abolished and the duties thereof combined with another position which at that time is being held by a civil service employee appointed provisionally when such abolishment results in the discharge of a civil service employee holding her position as the result of a competitive examination.
‘It is well established in Ohio that the power to create a position in the civil service includes the power to abolish the position, particularly where the purpose of the abolishment of such position is that of economy or improvement in the public service. 7 Ohio Jurisprudence, 594, Section 87; Curtis, Safety Dir., v. State ex rel. Morgan, 108 Ohio St. 292, 140 N.E. 522; Vansuch, Dir. of Pub. Safety & Service v. State ex rel. Fetch, 112 Ohio St. 688, 148 N.E. 232;State ex rel. Miller v. Witter, Dir. of Dept. of Ind. Relations, 114 Ohio St. 122, 150 N.E. 431.’
State ex rel. Stoer v. Raschig, 141 Ohio St. 477, syllabus 1, 49 N.E.2d 56: ‘1. The power to create a position in the classified civil service includes the power to abolish such position. The employing officer may abolish any position in such service if such act is done in good faith solely for purposes of economy and more efficient public service. State ex rel. Stine v. McCaw, Chief, 137 Ohio St. 13, 27 N.E.2d 488, approved and followed.
In the above case the relatrix sought a writ of mandamus to restore her to the position of Chief Clerk, State Department of Public Works. She was notified that her services were no longer needed and another person was appointed to, and held, the position. Later the position was abolished and the work was assigned to several other persons employed in the department. Held in part, 141 Ohio St. on page 486, 49 N.E.2d on page 60:
‘In determining this question it should be observed at the outset that the statutes relating to civil service have for their primary purpose economy and efficiency in the public service. The secondary purpose is permanent tenure in office for those employed in such service. The power to create a position in the classified civil service includes the power to abolish such position. Therefore any position in the classified civil service may be abolished by the employing officer if such act is done in good faith solely for purposes of economy and more efficient public service. In State ex rel. Stine v. McCaw, Chief of Div. of Aid for Aged, 137 Ohio St. 13, 27 N.E.2d 488, 489, Matthias, J., states the law as follows:
“An order abolishing a civil service position is ineffective where a new appointee is named to perform the same duties; but where there is a substantial merger of two positions for the purpose of economy with no proof of ulterior motive or purpose on the part of the employing officer, or discrimination upon political, religious or other improper grounds, a writ of mandamus will not be granted to require reinstatement of an employee discharged as a result of such merger.'
‘Under the facts shown by this record the conclusion is inescapable that the respondent could and did on October 15, 1942, abolish this position in good faith and for purposes of economy and efficiency in the public service.’
State ex rel. Dick v. Taylor, Dir. (State ex rel. Leisz v. Taylor, Dir.), Ohio Appeals, 2nd Dist., Franklin County, 31 O.L.A. 501, syllabus: ‘The Director of the Department of Liquor Control, appointing authority, has the right to discharge a district supervisor appointed in the classified service, for the worthy purpose of securing a more economical administration of the department, independent of the necessary steps to consummate a provisional appointment.’
Action in mandamus to compel restoration to position in classified civil service. Petition alleged that the relator was appointed to the position of District Supervisor of the division of Ohio Department of Liquor Control; that later, the Director, the appointing authority, appointed another person to that position; that the relator was notified that in order to establish a more efficient economical supervision in the store system the present thirteen supervising districts had been reduced to seven and that because of this consolidation, relator would be relieved of his duties as District Supervisor beginning March 1, 1939. Held in part, 31 O.L.A. at page 502: ‘The third defense is to the effect if the relator did hold a position, such position has, by removal of the relator been abolished for the purpose of economy. We think the record substantially supports this defense in that the number of districts has been reduced from 13 to 7. Independently of the effect of the Lynch case (State ex rel. Lynch vs. Taylor, etc., 136 O.S. 417) the appointing authority had a right to discharge the relator for the worthy purpose of securing a more economical administration of the department.’
Board of Health of City of Canton v. State ex rel. O'Wesney, 40 Ohio App. 77, syllabus 2, 178 N.E. 215: ‘2. Office occupied by one under civil service appointment may be abolished for good of service.’
From opinion, 40 Ohio App. page 82, 178 N.E. page 216: ‘The relator makes the point that the city of Canton had long applied civil service to the employees of its health department, and that he cannot be summarily discharged by the board. It is recognized in Vansuch v. State ex rel. Fetch, 112 Ohio St. 688, 148 N.E. 232 and State ex rel. Miller v. Witter, 114 Ohio St. 122, 150 N.E. 431, that the office occupied by one under a civil service appointment may be abolished for the good of the service, and that is just what has happened in this instance.’
Dykstra, City Manager, et al. v. State ex rel. Albert, 42 Ohio App. 141, 181 N.E. 488. Motion to certify record overruled April 27, 1932. Syllabus 5: ‘5. Provision of ordinance that ordinance should not be construed as abolishing any position held not to prevent abolition of position of workhouse steward incidental to city manager's authorized organization of department.’
State ex rel. McGann v. Evatt, Tax Com'r, 138 Ohio St. 421, 35 N.E.2d 576, 577. This is a mandamus action where it was alleged that the Tax Commissioner attempted to oust the relator from the position of ‘Branch Office Superintendent in the Cincinnati office of the Department of Taxation’; that the relator made demands to be reinstated or replaced in another position in the Department of Taxation. The answer of the Tax Commissioner admitted that the relator occupied the said position was abolished in good faith and for the purpose of economy, and that no person had been appointed to replace relator; that by virtue of the reorganization and consolidation within the Department of Taxation, the services of relator were no longer required and, accordingly, his position was abolished in the manner provided by law. From opinion, 138 Ohio St. page 424, 35 N.E.2d page 578:
‘These three questions are propounded in the brief for relator: First, did the respondent Tax Commissioner have any legal right to supplant the relator with Maddux through the devise of calling him a deputy? Second, was there really a consolidation of positions for the purpose of economy and was relator's position abolished in good faith as a result thereof, or was there a mere manipulation of positions and titles for the purpose of getting rid of relator and replacing him? Third, was any economy intended or effected by the change?
‘As to the first question, paragraph 11 of Section 1464-3, General Code (118 Ohio Laws, 346), authorizes the Tax Commissioner to appoint five deputy tax Commissioners. The respondent Tax Commissioner made an appointment pursuant to that statutory authorization and the record reveals no supplanting through the device of calling an appointee a deputy.
‘As to the second and third questions, the record discloses a consolidation of positions, the abolishment of relator's position in good faith and an economy effected.
‘The law involved in this proceeding was declared in State ex rel. Stine v. McCaw, Chief of Div. of Aid for Aged, 137 Ohio St. 13, 27 N.E.2d 488.
‘A writ of mandamus will be denied.
‘Writ denied.’
State ex rel. Schmidt v. Colson, Auditor, 7 Ohio App. 438, syllabus: ‘The repeal of an ordinance, passed pursuant to the provisions of Section 4404, General Code, establishing a board of health, abolishes all appointive positions under such board.’
From opinion, 7 Ohio App. pages 439, 440:
‘Of course it goes without saying that the council of a municipality can only exercise the powers delegated to it by the general assembly. But is a specific grant of power required to authorize the council to amend or repeal an ordinance which it had the power to pass? The efficacy of any legislative body would be entirely destroyed if the power to amend or repeal its legislative acts were taken away from it. The grant of the power to pass the ordinance in question, or any ordinance for that matter, carried with it the power to amend or repeal the same act.
‘The constitution itself provides the method by which it may be changed.
‘The legislature may repeal or modify an act which it has passed, and it seems to us to be utterly illogical to say that a municipality cannot repeal an act of its legislative body, whether the power to repeal is expressly granted or not. And we think that the repeal of the ordinance creating the board of health also abolished all appointive positions under such board. State ex rel. v. Covington, 29 Ohio St. 102;State ex rel. v. Jennings, 57 Ohio St. 415, 49 N.E. 404,63 Am.St.Rep. 723; McHugh v. Cincinnati, 1 Cin. Super.Ct.Rep. 145, and State v. Brown, 38 Ohio St. 344.’
On the question as to whether or not the plaintiff was eligible to take the examination under Section 486-15a, G.C., we note the pertinent parts of said statute:
‘Sec. 486-15a. Promotions in positions above the rank of patrolman or fireman; examination; certification and appointment.
‘No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in positions above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. Promotion shall be by successive grades or ranks so far as practicable and no person in a police or fire department shall be promoted to a position in a higher grade or rank who has not served at least twelve months in the next lower grade or rank. No competitive promotional examination shall be held unless there are at least two persons eligible to compete. Whenever a municipal civil service commission determines that there are less than two persons holding positions in the grade or rank next lower than the position to be filled and who are eligible and willing to compete, such commission shall allow the persons holding positions in the then next lower grade or rank, and who are eligible, to compete with the person or persons holding positions in the grade or rank lower than the position to be filled. For the purpose of this section, an increase in the salary or other compensation of anyone holding a position in a police or fire department, beyond that fixed for the grade or rank in which such position is classified, shall be deemed a promotion. * * *’
The Court finds that the testimony shows that the plaintiff, Edwin H. Hinckley, took the examination as a patrolman, that the same was open to all members of the Division of Police who had five years experience in the Detective Bureau and to Captains, Lieutenants and Sergeants who had five years experience in the Division of Police, and who were at the time of the examination holding such positions by virtue of permission granted by the Municipal Civil Service Commission. Six Sergeants were eligible to take and did take the examination. In addition, however, twelve patrolmen, including the plaintiff were permitted by the order of the Commission to take the examination. The Court is of the opinion that applicants from the grade of patrolmen were not eligible to take said examination under the provisions of said Sec. 486-15a, G.C. and that the Municipal Civil Service Commission erred in permitting applicants from the grade of patrolmen to take said examination. Accordingly for this reason alone it appears to the Court that the plaintiff, Edwin H. Hinckley, cannot successfully make any claim to the permanent classified position of Assistant Chief of Detectives even if the position existed today, an extremely unfortunate situation to find himself in for it appears that he must be the innocent victim.
In conclusion we are of the opinion that under the evidence admitted in this case and on the authorities cited that ordinance #73-44 which provides for the assignment of police under certain circumstances is reasonable, valid, and constitutional and, accordingly, the plaintiff herein has no claim to the classified position of Assistant Chief of Detectives for the reason that the classified ordinance setting up this position has been repealed and the present assignment ordinance, #73-44 is now in full force and effect. Furthermore we are of the opinion that even if the classified position had not been abolished, the plaintiff would have no claim on the basis of permanent appointment of said position for the reason that he was not eligible to take the civil service examination above mentioned.
Permanent injunction denied, temporary restraining order dissolved, and plaintiff's petition dismissed at his costs.