Opinion
No. 30762
Decided December 11, 1946.
Civil service — Member of fire department reduced in rank — May appeal to Court of Common Pleas from civil service commission — Sections 486-17, 486-17a and 486-17b, General Code — Writ of mandamus not substitute for appeal.
1. Under the cognate provisions of amended Sections 486-17, 486-17 a and 486-17 b, General Code, a member of a fire department who has been reduced in rank may appeal to the Court of Common Pleas from the decision of the civil service commission.
2. Such member of a fire department may not resort to the extraordinary remedy of a writ of mandamus as a substitute for such right to appeal.
IN MANDAMUS.
The four relators are duly appointed, qualified and acting members of the division of fire of the department of public safety of the city of Columbus, Ohio.
One of the four respondents is the director of public safety and the remaining three are members of the civil service commission of that city.
The relators have invoked the original jurisdiction of this court for the purpose of obtaining a writ of mandamus to require the respondents to reinstate them in positions of captain and lieutenants, respectively, from which they have been demoted.
In their petition the relators allege that during World War II a captaincy and three lieutenancies became vacant by reason of the fact that the four men then holding those positions entered the armed service of the United States; that the four relators duly took and passed the competitive, promotional examinations held pursuant to law; that they were placed upon the respective eligible lists for appointment to those positions; that while these eligible lists were in effect the relators were duly certified by the civil service commission to the appointing officer, the director of public safety; that the relators were duly promoted and appointed to the vacant captaincy and lieutenancies, respectively; that the appointments were designated as temporary due to military leaves; that subsequently the four men previously in those positions returned from military service and were reinstated in their respective positions; that thereupon the relators were demoted to the positions they previously held; that the relators appealed to the civil service commission; and that the commission sustained and approved the action of the appointing officer, the director of public safety.
To the relators' petition the respondents have filed a demurrer on the ground that the facts stated do not show a cause of action in mandamus.
Mr. Roscoe R. Walcutt and Mr. Alfred J. Henney, for relators.
Mr. Richard W. Gordon, city attorney, Mr. Hugh K. Martin and Mr. Robert E. Leach, for respondents.
The first contention of the respondents is that under the facts alleged the relators have a plain and adequate remedy in the ordinary course of law by appeal to the Court of Common Pleas from the decision of the civil service commission and therefore are not entitled to the unusual relief of a writ of mandamus.
Section 12287, General Code, contains the following prohibition with reference to a writ of mandamus:
"The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law."
The respondents rely upon the provisions of Section 486-17 a, which read in part as follows:
"* * * provided, however, that in the case of the removal of * * * any member of the police or fire departments of a municipality an appeal may be had from the decision of the municipal commission to the Court of Common Pleas of the county in which such municipality is situated to determine the sufficiency of the cause of removal Such appeal shall be taken within ten days from the finding of the commission."
It is urged that if the relators are dissatisfied with the decision of the civil service commission sustaining their removal from their temporary positions, they are provided with an adequate remedy in the form of a further appeal to the Court of Common Pleas. To this contention the relators reply, first, that an appeal from the civil service commission to the Court of Common Pleas is available only in the event of a removal as distinguished from a reduction in rank, and, second, that even though an appeal may be had in case of a reduction in rank, such an appeal is limited to a reduction resulting from misconduct, misfeasance or malfeasance in office, as set forth in Section 486-17 a, General Code. The relators insist that this view is sustained by the decision of this court in the case of Curtis, Safety Dir., v. State, ex rel. Morgan, 108 Ohio St. 292, 140 N.E. 522, in which it was held that no appeal lies from the action of the appointing authority except in cases of removal on the grounds set forth in Section 486-17 a, General Code.
One difficulty confronting the relators is the fact that since that decision Sections 486-17 (118 Ohio Laws, 216) and 486-17 a (114 Ohio Laws, 224), General Code, have been amended, and Section 486-17 b (120 Ohio Laws, 17) has been added and amended.
The new language in amended Section 486-17 reads in part as follows:
"No * * * member of a * * * fire department shall be reduced in rank, laid off, or suspended, except as provided in Sections 486-17 a and 486-17 b of the General Code * * *."
Previous to this amendment this statute contained no reference to either Section 486-17 a or Section 486-17 b, and no specific reference to firemen was made. Nor did the statute then provide for a hearing by the civil service commission. Now it is required in express terms that "in case the order applies to * * * any member of police or fire departments of a municipality, the commission shall conduct a hearing following the filing of the order and explanation, to determine the sufficiency of the cause of the order."
If, as now provided, "no * * * member of a * * * fire department shall be reduced in rank * * * except as provided in sections 486-17 a and 486-17 b of the General Code," it manifestly would seem that in that event he must be accorded the right to an appeal from the civil service commission to the Court of Common Pleas.
But the relators insist that such an appeal is limited to the case of a reduction in rank resulting from misconduct, misfeasance or malfeasance in office, as set forth in Section 486-17 a, General Code. The respondents rely upon the decision of this court in the case of Gannon, v. Gallagher, Dir., 145 Ohio St. 170, 60 N.E.2d 666, in which it was held that a demoted policeman was not entitled to resort to the remedy of a writ of mandamus to obtain relief. The relators assert that in that case the policeman was reduced in rank for causes set forth in Section 486-17 a, General Code. However, this is not disclosed, and no distinction was made between reductions for reasons provided in Section 486-17 a and those contemplated by Section 486-17 b in the language "for causes other than those outlined in Section 486-17 a of the General Code." Such a distinction is not warranted by the present provisions of these sections.
Under the circumstances the relators had the right to appeal to the Court of Common Pleas from the decision of the civil service commission, and hence they may not now resort to the extraordinary remedy of a writ of mandamus as a substitute therefor. The demurrer to the petition must be sustained and the writ denied.
Writ denied.
BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.
ZIMMERMAN, J., not participating.