Opinion
No. 29349
Decided June 23, 1943.
Civil service — Police department — Position above rank of patrolman abolished — Incumbent to be demoted to next lower rank — Vacancies to be filled by promotion from grade or rank lower — Increase in salary or compensation deemed a promotion, when.
1. Under the provisions of Section 486-17 b, General Code, when a position above the rank of patrolman in a police department is abolished and the incumbent has been permanently appointed in accordance with the provisions of the act, he shall be demoted to the next lower rank.
2. Under the provisions of Section 486-15 a, General Code, vacancies in positions above the rank or grade of patrolman in a police department must be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled.
3. For the purpose of Section 486-15 a, General Code, an increase in the salary or other compensation of anyone holding a position in a police department, beyond that fixed for the grade or rank in which such position is classified, shall be deemed a promotion.
IN MANDAMUS.
In this action the original jurisdiction of this court is invoked for the purpose of obtaining a peremptory writ of mandamus to compel the respondent, the director of the Department of Public Safety of the city of Cleveland, to promote the relator from the position of captain of police to that of deputy inspector.
The relator's petition reads in part as follows:
"Relator states that he is a member of the police force of the city of Cleveland, Ohio, having the rank of captain therein, and that he has held such rank continuously since February 1937. That the respondent is and was at all times herein mentioned the duly appointed, qualified and acting director of the department of public safety of said city. That on the 31st day of August, 1942, the council of said city passed emergency ordinance No. 919-A-42 and that same became effective on the last mentioned date. That said ordinance provided for a partial re-organization of the police and fire divisions or forces of said city, within said department, and established minimum and maximum salaries to be paid to those holding the various ranks within said divisions. That, among other things, said ordinance established within said police force or division ten (10) deputy inspectorships and that prior to its passage there were seven (7) [eight (8) deputy inspectorships and that there were then seven (7) [eight (8)] members of said force holding such positions. That ever since the 1st day of March, 1942, there has existed an eligible list within said division of police for promotions to the position of deputy inspector, said eligible list having been created by competitive examination as provided by law, and that the relator's name was the first or highest name on said eligible list upon the passage of said ordinance, and still is. That prior to September 1, 1942, said eligible list was filed with the respondent or with his predecessor in office and that upon the last mentioned date the respondent had full knowledge thereof and of the place or position of relator thereon.
"That by reason of the facts herein stated, this relator claims to be entitled, and is entitled, to promotion to the rank of deputy inspector; that on October 5, 1942, he requested the respondent herein to so promote him and that respondent has failed and refused to so do.
"That this relator is without a remedy in the ordinary course of the law."
To this petition the respondent filed an answer admitting that the relator is a member of the police force of the city of Cleveland; that the relator holds the rank of captain therein and has held such rank continuously since February, 1937; that the ordinance mentioned in the relator's petition was duly enacted as alleged; that from and after March 1, 1942, there has been an eligible list for promotion to the position of deputy inspector, which eligible list was created by competitive examination as provided by law; that the relator's name is and has been the first or highest on said promotional eligible list since August 31, 1942; and that on October 5, 1942, the relator requested promotion, which was refused. Then the respondent quotes parts of certain related ordinances as well as the one mentioned in the relator's petition. And finally, the respondent alleges that the "positions or ranks of commissioner of traffic and deputy commissioners of traffic were positions or ranks well above the rank of patrolman in the police department in the city of Cleveland and the incumbents of such positions or ranks as of August 31, 1942, had been permanently appointed thereto. By reason of the provisions of Section 919-A-42, said positions or ranks were abolished within the meaning of Section 486-17 b, General Code, whereby and whereupon it became the duty of defendant, as specifically enjoined by said Section 486-17 b, General Code, to demote the incumbent commissioner of traffic and the incumbent deputy commissioners of traffic to the next lower rank as determined by the salaries received by them prior to September 1, 1942, and the schedule of salaries provided in said ordinance No. 919-A-42. Defendant accordingly demoted the commissioner of traffic to the rank of inspector of police and demoted the two deputy commissioners of traffic to the rank of deputy inspector as of September 1, 1942, whereby any vacancies momentarily present in the rank of deputy inspectors were filled."
To this answer the relator has filed a demurrer on the ground that the facts stated are insufficient to constitute a defense.
Mr. Edward Blythin, for relator.
Mr. Thomas A. Burke, Jr., director of law, and Mr. Charles W. White, for respondent.
In support of his answer the respondent contends that he has pleaded facts which show there is no vacancy in the rank of deputy inspector to which the relator can be promoted.
It is admitted that the ordinance of August 31, 1942, increased the number of deputy inspectorships from eight to ten. The respondent alleges that the two newly created positions were filled as of September 1, 1942. Hence, he insists that there is no vacancy to which the relator can be promoted. The relator's response to this is that in making the two appointments the respondent acted in violation of law and that therefore the two new deputy inspectorships remain vacant.
The respondent's procedure in filling the two new positions was based upon the fact that the ordinance of August 31, 1942, provided for a number of changes in the structure of the Cleveland police force. Several ranks were abolished — among them that of deputy commissioner of traffic. This rank was listed next above that of deputy inspector, and the latter was immediately above the rank of captain. However, the salaries for the ranks of deputy commissioner of traffic and deputy inspector were of equal amounts — $3783.60 per year. There were two positions in the rank of deputy commissioner of traffic, and the respondent says that when that rank was abolished he "demoted" the two incumbents to the two new positions in the existing rank of deputy inspector in which the salary had been increased to a minimum of $4067 per year. The relator contends that the transfer of the two men from abolished positions paying $3783.60 per year to new ones paying $4067 per year constituted promotions and not demotions. He insists that the positions of deputy inspector and deputy commissioner of traffic were of equal rank inasmuch as the salaries were of equal amounts, and that therefore the next rank below either of them was in fact that of captain.
The relator relies upon two statutes. The first is Section 486-17 b, General Code, which provides in part that when "a position above the rank of patrolman in the police 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 * * *." Likewise, in Section 486-15 a, General Code, appear the following requirements:
"* * * Vacancies in positions above the rank or grade of patrolman * * * in a police * * * department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. * * * If there is a list, the civil service commission shall, where there is a vacancy, immediately certify the name of the person having the highest rating and the appointing authority shall appoint such person within thirty days from the date of such certification."
Hence, the General Assembly has provided in unmistakable terms that when such a position is abolished the incumbent "shall be demoted to the next lower rank," and that vacancies above the rank or grade of patrolman "shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled."
Were the two former deputy commissioners of traffic demoted to the next lower rank and were the newly created vacancies in the rank of deputy inspector filled by promotion from among persons holding positions in a rank lower than the position to be filled?
From the pleadings it is apparent that neither of these equally mandatory requirements has been met. The respondent concedes that there has been no promotion from a lower rank to that of deputy inspector in compliance with the second. As to the first requirement the relator relies upon that part of Section 486-15a, General Code, which provides that for "the purpose of this section, an increase in the salary or other compensation of anyone holding a position in a police * * * department, beyond that fixed for the grade or rank in which such position is classified, shall be deemed a promotion." The salary of each of the two former deputy commissioners of traffic was $3783.60. The respondent transferred them to the two newly created positions in the rank of deputy inspector at a minimum salary of $4067. Under the language of the statute it would be futile to attempt to construe this action as a demotion. Hence, it is apparent that the respondent was in error. The relator's name admittedly is and has been the first or highest on the promotional eligible list since August 31, 1942, and he was entitled to be appointed within thirty days from the date of certification by the civil service commission.
The respondent comments upon what he considers to be the unwisdom of the provisions of these statutes. However, that is not a judicial problem but rather a matter of legislative policy resting in the discretion of the General Assembly.
The relator relies upon the decision of this court in the case of State, ex rel. Taiclet, v. Cull, 140 Ohio St. 207, 42 N.E.2d 983. It is true that the same statutes were involved, but the question was different. In that case the position or rank was not abolished but the services of the incumbent became unnecessary. In the instant controversy two positions were abolished and two new ones established. The syllabus in that case reads as follows:
"Under the provisions of Section 486-17 b, General Code, a marine engineer permanently appointed to a position above the rank of regular fireman in a city fire department is entitled to a permanent appointment in the next lower rank in the department when his services in the higher rank are no longer necessary."
The demurrer to the respondent's answer must be sustained and the writ of mandamus allowed.
Writ allowed.
MATTHIAS, HART, ZIMMERMAN and BELL, JJ., concur.
WILLIAMS, J., not participating.
As the demurrer searches the record, it should have been sustained to the petition for the reasons stated in the dissenting opinion in State, ex rel. Taiclet, v. Cull, 140 Ohio St. 207, at 210, 42 N.E.2d 983.