Opinion
No. 31844
Decided November 2, 1949.
Civil service — Fire department — Competitive promotional examination — Less than two persons holding positions in next lower grade or rank — Persons in the then next lower grade or rank may compete, when.
Under the civil service laws of this state applicable to fire departments, no competitive promotional examination may be held unless there are at least two persons eligible to compete. Whenever a municipal civil service commission properly determines that there are less than two persons holding positions in the grade or rank next lower than that of the position to be filled, 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 next lower than that of the position to be filled.
IN QUO WARRANTO.
Relator filed a petition in quo warranto in this court alleging that he is the only person holding the position of first assistant fire chief and that no other person has held such position within twelve months prior to June 1, 1949.
Relator alleges further that the Cleveland Civil Service Commission in April 1949 held a promotional competitive examination for promotion to the office of the chief of division of fire and permitted respondent, who was then a second assistant chief of fire, which is a rank or grade below that of first assistant chief, and who never served as first assistant, to enter such examination. Relator alleges further that as of June 1, 1949, respondent was promoted to the office of fire chief "in said examination" and since such date respondent has undertaken "to usurp, hold and exercise the authority of said office and act as chief of said division" in violation of law and against the rights of relator who received a passing grade under the rules of such civil service commission. Relator asks that respondent be ousted and relator granted appropriate relief.
Respondent filed an answer alleging, first, that the petition fails to state facts sufficient to constitute a cause of action in quo warranto, and, second, admitting the facts alleged in the petition and adding that second assistant chief is a grade next below that of first assistant chief; that a vacancy occurred in the office and rank of chief of fire; that there is and was but one incumbent in each of the grades of first assistant chief of fire and second assistant chief of fire; that the Cleveland Civil Service Commission duly announced a competitive promotional examination for the position of chief of fire; and that the examination would be administered in accordance with the following:
"Minimum Qualifications For Entrance To The Examination:
"As there are less than two persons in the next lower rank, as required in Section 486-15 a of the General Code of Ohio, applicants now holding regular appointment as first assistant chief of fire or second assistant chief of fire will be permitted to enter this examination."
Relator further alleges that as a result of the examination the civil service commission established the following promotional eligible list: (1) Cain, Elmer Michael (respondent); (2) Nimmo, James (relator); and that the commission certified respondent's name to the director of public service who appointed respondent chief of fire.
To such answer relator demurred and parties agreed that the decision on the demurrer would dispose of the case.
Mr. Charles C. Goldman, for relator.
Mr. Lee C. Howley, director of law, and Mr. Charles W. White, for respondent.
The decision in this case requires the application only of Section 486-15 a, General Code, which contains the following provisions:
"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. * * * After such examination has been held and an eligible list established the civil service commission shall forthwith certify to the appointing officer the name of the person receiving the highest rating. Upon such certification the appointing officer shall appoint the person so certified, within thirty days from the date of such certification. * * *" (Italics ours.)
Relator contends that inasmuch as respondent had not served as first assistant, respondent was not eligible to take the examination. We are of the opinion that in such respect Section 486-15 a, General Code, does not apply whenever the civil service commission properly determines that there are less than two persons holding positions in the grade or rank next lower than the position to be filled. In our opinion the minimum qualifications established by the commission for entrance to the examination were proper. Relator's petition fails to show that respondent has usurped, intruded into or unlawfully holds or exercises the office of chief of fire in the city of Cleveland.
As the answer shows that the foregoing provisions of Section 486-15 a, General Code, have been duly complied with, the demurrer to the answer should be and hereby is overruled.
As a demurrer searches the record and as relator's petition contains no allegation that relator received the highest rating or that his name or the name of any person other than respondent was certified to or appointed by the appointing officer, the demurrer should be and hereby is sustained to the petition for the reason that such petition does not state facts which show a cause of action.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and TAFT, JJ., concur.