Summary
In Kluth v. Andrus (1952), 157 Ohio St. 279, 47 O.O. 171, 105 N.E.2d 579, the appointee satisfactorily completed his probationary period and his appointment was confirmed even though the members of the civil service commission fraudulently raised his grade on the test and it did not appear that the candidate sponsored, participated in or had anything to do with illegal or improper actions. Relying upon the latter condition, appellant in this case alleged but failed to establish that the appointee had something to do with the waivers the two officers executed.
Summary of this case from Celina, ex Rel. Piper, v. FelverOpinion
No. 32798
Decided March 26, 1952.
Civil service — Promotional examination not in compliance with statute — Grade fraudulently changed by civil service commission — Appointee satisfactorily served probationary period — Removal governed by Section 486-17a, General Code — Mandamus to avoid examination, certification and appointment — Appointee not made party — Rights not affected by such action, when.
1. Where the promotional civil service examination given for a position did not fully comply with the civil service laws and where the members of the civil service commission fraudulently raised the grade of the candidate whom it certified and lowered the grade of another candidate, so as to make it appear that the candidate certified to the appointing authority as having attained the highest rating did receive the highest grade, but it does not appear that the candidate so certified either sponsored, participated in or had anything to do with such illegal and improper actions, and where such candidate was thereafter appointed to that position, pursuant to Section 486-13, General Code, and rendered satisfactory service in that position for more than three months, his removal from that position is thereafter governed by the provisions of Section 486-17 a, General Code. ( State, ex rel. Byrd, v. Sherwood, Dir., 140 Ohio St. 173, followed.)
2. Where, within three months after such certification to and appointment by the appointing authority, the candidate whose grade was lowered institutes a mandamus action against the commission, its members, the appointing authority and the employing municipality for the purpose of voiding such examination, certification and appointment and of removing the appointed candidate from the position to which he was appointed, and where it does not appear that such appointed candidate was made a party to such mandamus action or was offered an opportunity to or did participate in the defense of such action, a judgment in that action, which was rendered more than three months after such certification to and appointment by the appointing authority and which provided for the removal of the appointed candidate from such position, cannot affect any rights of such appointed candidate to tenure in such position.
APPEAL from the Court of Appeals for Cuyahoga county.
On June 23, 1949, the plaintiff Kluth and the defendant Patton, who were then sergeants of police in the city of Rocky River, took a civil service promotional examination for the position of lieutenant in the police department of Rocky River. Thereafter, the civil service commission of Rocky River certified Kluth as having attained the highest rating in said examination, and, on August 16, 1949, Kluth was appointed as lieutenant.
On October 31, 1949, Patton instituted an action in mandamus in the Common Pleas Court of Cuyahoga County against the three members of the civil service commission, the civil service commission, the director of public service and public safety, the mayor, and the city of Ricky River. In that action, the Common Pleas Court of Cuyahoga County on February 11, 1950, issued a peremptory writ of mandamus ordering the respondents to vacate the appointment of Kluth as lieutenant and commanding them in the alternative either to (1) make up the civil service eligible list for lieutenant and make appointment to the vacancy of lieutenant therefrom based upon the June 23, 1949, examination excepting the so-called "performance records" which had previously been considered by the commission as a part of that examination, or (2) make up that list and make the appointment therefrom upon the basis of that previous examination except that a new competitive section of the examination should be given to replace the so-called "performance records" section of the previous examination.
Thereafter, on March 27, 1950, a further section of the examination was given in accordance with the second of the alternatives hereinbefore referred to in the writ of mandamus issued by the Common Pleas Court. Kluth took this partial re-examination under protest. Patton likewise took this partial re-examination. Thereafter, on April 28, 1950, the civil service commission certified Patton as eligible to appointment as lieutenant.
From the allegations of the pleadings in the instant case, there does not appear to be any dispute about the foregoing facts.
On May 2, 1950, Kluth filed his petition in the instant case in the Common Pleas Court of Cuyahoga County against the director of public safety and the members of the civil service commission seeking an injunction, restraining the safety director from removing and ousting Kluth from the position of lieutenant and from appointing Patton to that position, and further seeking a mandatory injunction directing the civil service commission to withdraw its certification of Patton.
On May 26, 1950, leave was granted to Patton to become a new party defendant in that injunction proceeding.
In his answer, Patton alleged that "he received the highest grade of those taking said [the June 1949] examination but that all members of the civil service commission, as then constituted, fraudulently lowered his grade and increased the grade of the plaintiff in this action so as to make it appear that this defendant did not receive the highest grade; that, however, the inclusion of weight for the so-called performance record was contrary to the civil service laws of Ohio and invalid." In his opening statement counsel for Patton outlined facts supporting those allegations.
At the conclusion of the opening statements of the parties, a motion was made by plaintiff for judgment upon the pleadings and opening statements of counsel.
The Common Pleas Court entered an order determining that Kluth was entitled to hold the office and position of lieutenant of police, subject only to dismissal or demotion under the provisions of Section 486-17 a, General Code, and restrained and enjoined the defendants from interfering with Kluth in his enjoyment of that office and position "excepting as under the provisions of law as herein indicated."
The judgment of the Common Pleas Court was affirmed by the Court of Appeals.
The cause is now before this court on appeal from the judgment of the Court of Appeals, a motion to certify having been allowed.
Mr. Neil W. McGill and Mr. Ralph L. Bailey, for plaintiff appellee. Mr. Emery C. Smith, for defendant appellees.
Mr. George J. McMonagle and Mr. Robert B. Krupansky, for appellant.
The first question to be considered is whether Kluth, having served the three-month probationary period provided for in Section 486-13, General Code, after his certification by the commission and his appointment on August 16, 1949, can thereafter be reduced in rank from lieutenant to sergeant without compliance with the provisions of Sections 486-17 and 486-17 a, General Code. Since there is no allegation in the pleadings and nothing in the opening statements, charging Kluth with sponsoring or participating in or having anything to do with the alleged improper conduct of the civil service commission and others in certifying and appointing Kluth, the answer to that question is that he cannot. Such an answer is required by the decision of this court in State, ex rel. Byrd, v. Sherwood, Dir., 140 Ohio St. 173, 42 N.E.2d 889.
It does not follow that, if Kluth had been wrongfully demoted or otherwise removed from the position of lieutenant, he would not lose his right to tenure in that position by failing to avail himself within the time limited of the right of appeal given him by Sections 486-17 and 486-17 a, General Code. See State, ex rel. Sidell, v. Cole, Dir., 147 Ohio St. 203, 70 N.E.2d 451; State, ex rel. Harris, Chief, v. Haynes, Mayor, ante, 214. Likewise, it does not follow that Kluth may resort to the courts to enforce any right he may have to tenure in the position of lieutenant without first exhausting the administrative remedies by way of appeals to the civil service commission and to the Common Pleas Court provided by the General Assembly as a protection for such rights. See 21 Ohio Jurisprudence, 1023, Section 28; State, ex rel. Lieux, v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d 414. Although those questions might have been raised in opposing the motion of Kluth for judgment on the pleadings and opening statements, the opinions of the Common Pleas Court and of the Court of Appeals do not disclose that they were raised. Furthermore, no such questions were raised in the assignment of errors in this court and no such questions were presented to this court either in the briefs or in argument. We are, therefore, fully justified in disregarding those questions (Section 12223-21, General Code) until such time as they are presented to this court for decision in some other case. See Milwaukee Mechanics Ins. Co. v. Russell, 65 Ohio St. 230, 257, 62 N.E. 338, 56 L.R.A., 159. We do not intend to express any opinion as to what answer should be given to either of those questions.
The next question to be considered is whether the judgment of the Common Pleas Court in the mandamus action affects any claim which Kluth has to the position of lieutenant. Since Kluth's rights are not necessarily dependent on the propriety of the action condemned by the judgment in the mandamus action ( State, ex rel. Byrd, v. Sherwood, supra) and since Kluth was not made a party to the mandamus action and was not offered an opportunity to and did not participate in the defense of that action, we fail to see any basis for a conclusion that the judgment may affect any rights of Kluth to the position of lieutenant.
Patton refers to cases indicating that Kluth was not a necessary party in the mandamus action. See State, ex rel. Byrd, v. Sherwood, supra; State, ex rel. Bigam, v. Hainen et al., Civil Service Commission, 150 Ohio St. 371, 82 N.E.2d 734. It may be observed that in neither of those cases was it determined that a judgment, in an action in which a certain person was not a party, would bar such person from asserting his rights. The question, as to whether it would, was not apparently raised or considered in those cases.
It may be observed that our statutes tend to negative the authority of a court to affect the rights of a person who is not a party. Thus, Section 11262, General Code, provides:
"The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. When such determination can not be had without the presence of other parties, the court may order them to be brought in, or dismiss the action without prejudice."
However, it is not necessary to determine in the instant case whether Kluth was a necessary party in Patton's mandamus action. Certainly he was a proper party. State, ex rel. Nixon, v. Merrell, Dir., 127 Ohio St. 72, 186 N.E. 806. Kluth had an interest in the controversy adverse to Patton. Unless he was a party or otherwise bound because of participation or an opportunity to participate in the defense of the mandamus action, the judgment in that action would be as between Patton and Kluth res inter alios acta. See State, ex rel. Gerke, v. Board of Commissioners, 26 Ohio St. 364; Holt v. Lamb, 17 Ohio St. 374; Reformed Presbyterian Church v. Nelson, 35 Ohio St. 638, 643.
Judgment affirmed.
WEYGANDT, C.J., STEWART, MIDDLETON, MATTHIAS and HART, JJ., concur.
ZIMMERMAN, J., dissents.