Opinion
No, 29827
Decided October 22, 1941.
Civil service — Cleveland Civil Service Commission rule in irreconcilable conflict with statute — Section 486 — 9a, General Code — Graduation from high school as prerequisite to examination for patrolman.
The rule of the Civil Service Commission of the city of Cleveland, adopted pursuant to Section 127 of the city Charter, which provides that applicants for examination for the position of patrolman shall have been graduated from a standard four-year high school as a condition to taking such examination, is in irreconciable conflict with Section 486-9 a, General Code, providing that "no rules or regulations shall be made setting up educational requirements as a condition of taking a civil service examination except in respect to professional and other positions for which such requirements are expressly imposed by statute and to the extent of the requirements so imposed," and the statute must prevail.
IN MANDAMUS.
This is an action in mandamus originating in this court, wherein the relator, as a taxpayer, seeks, under favor of Sections 4313 and 4314, General Code, and Sections 89 and 90 of the Charter of the city of Cleveland, a writ to require the respondents, as members of the Civil Service Commission of the city of Cleveland, to open a certain scheduled civil service examination for the position of patrolman, without requiring applicants to such examination to produce a diploma or certificate of graduation from a four-year high school as a condition to taking such examination. The case is submitted to the court upon the admissions appearing in the pleadings and upon an agreed statement of facts.
The operative facts thus before the court may be stated as follows:
Section 127 of the Charter of the city of Cleveland provides, among other things, that the Civil Service Commission of the city of Cleveland, as created by the charter, "shall make, promulgate, and when necessary may amend, rules for the appointment, promotion, transfer, layoff, reinstatement, suspension and removal of city officials and employees in the classified service"; and section 128 of the charter provides that "the rules of the civil service commission shall, among other things, provide: * * * (b) For open competitive tests to ascertain the relative fitness of all applicants for appointments in the competitive class." Pursuant to these charter provisions the respondents, as members of the Civil Service Commission of the city of Cleveland, adopted a complete set of rules governing civil service applications, qualifications and examinations. Among other things, these rules provide that:
"Whenever in the judgment of the commission requirements as to experience or education, or both, are factors in determining the merit and fitness of applicants, the commission shall prescribe minimum experience or educational requirements, or both, for entrance to examinations."
On August 4, 1941, respondents published a bulletin announcing that an examination for the position of patrolman in the classified service in the city of Cleveland would be held on October 15, 1941. Under the heading, "Minimum Qualifications for Entrance to the Examination," the announcing bulletin contained the following: "Education: Applicants shall have been graduated from a standard four-year high school. Note: Diploma or certificate of graduation must be presented at time of filing application."
It is agreed that applicants who do not possess the educational requirement above stipulated, will not be admitted to such examination for patrolman and will be rejected on that ground.
The relator, as a taxpayer of the city of Cleveland, on August 6, 1941, made a written request upon the Director of Law of the city of Cleveland to institute proceedings for the purpose of compelling respondents to open such civil service examination for patrolmen to applicants without reference to any educational requirement as a condition of admission thereto, which request was refused.
The relator complains that the respondents in making and enforcing the rules as to the educational requirement above set forth are disregarding and violating the provisions of Sections 486-1, 486-9 a, 486-10 and 486-19, General Code, which, it is claimed, have application to the situation presented by the facts in this case.
Messrs. Stanton, Ackerman, Hagan, Braun, for relator.
Mr. Joseph H. Crowley, acting director of law, and Mr. Charles W. White, for respondents.
It is agreed by counsel for both relator and respondents that the adoption of a rule or regulation setting up any educational requirement as a condition to taking a civil service test, except in certain cases not here involved, is prohibited by Section 486-9 a, General Code. It is also agreed that since, under the rule of the commission, an educational standard is made a qualifying factor in determining the merit and fitness of candidates for the position of patrolman in the classified service of the city of Cleveland, there is an irreconcilable conflict between the rule of the commission and the provision of the general statute.
Whether the state civil service law (Section 486-9 a, General Code) has application is the sole question for decision in this case.
The constitutional grant of powers of local self-government to municipalities and the limitations upon such powers are contained in Sections 3 and 7, Article XVIII of the Constitution, which sections are as follows:
Section 3. "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." (Italics ours.)
Section 7. "Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all power of local self-government." (Italics ours.)
Section 486-9 a, General Code, provides:
"No rules or regulations shall be made setting up educational requirements as a condition of taking a civil service examination except in respect to professional and other positions for which such requirements are expressly imposed by statute and to the extent of the requirements so imposed."
If the plain provisions of this statute which are within the power of the Legislature to enact are applicable to all municipalities by virtue of the reservation in the constitutional provision above pointed out, the statute must prevail over the rule of the city civil service commission since it is conceded that the latter is in conflict with the former. It is true that this court in former decisions has held that charter provisions, having to do with governmental as distinguished from administrative matters, with the preservation of public peace and with the protection of persons and property within the territorial limits of municipalities, may be adopted by such municipalities. However, such legislation must not conflict with constitutional state legislation on the same subject. Also, there is reserved to the Legislature power to direct the manner and method by which municipal corporations shall effectively carry out their functions having to do with the preservation of the peace and the protection of persons and property. State, ex rel. Strain, Dir., v. Houston, Chief, ante, 203, 210, 34 N.E.2d 219. Especially does the Legislature in the enactment of general legislation have supremacy over municipal legislative bodies on subjects or state-wide concern. State, ex rel. Strain, Dir., v. Houston, Chief, supra; City of Cincinnati v. Gamble, ante, 220, 34 N.E.2d 226; In re Fortune, ante. 25 N.E.2d 442.
The question presented can perhaps be best tested by supposing the requirement of the statute to be the greater and that of the charter the less in scope. For instance, if the statute required that one seeking appointment as patrolman could not enter a civil service examination unless he first presented a certificate or diploma of graduation from a four-year high school, or a school of equivalent rank, and a municipality by charter or ordinance declared that no such educational qualification under the same circumstances should be required, it is apparent that the requirement of the would prevail.
In the case of In re Fortune, supra, this court, speaking through Judge Williams, said.
"Even though we concede that in some instances civil service is a matter of local concern, the state possesses power to legislate in regard to such service, when it is brought into play in connection with some matter of state-wide concern. Thus in dealing with matters of public health, the Legislature has power to regulate civil service with respect thereto even in municipalities." State, ex rel. Mowrer, v. Underwood et al., Civil Service Comm., 137 Ohio St. 1, 27 N.E.2d 773.
"By at series of decisions culminating in City of Cincinnati v. Gamble et al., Bd. of Trustees, * * * [ supra], this court has definitely established the rule that matters pertaining to police protection are of State-wide concern and under the control of state sovereignty. It follows that civil service as applied to the police department of a city is subject to state regulation and the statute must prevail."
In the Fortune case, supra, this court held that procedure in an appeal from the removal of a member of the police department of a municipality was governed by the provisions of general state law (Section 486-17 a, General Code) and not by conflicting city ordinance provisions. If the provisions of state-wide legislation prevail in the removal of a city policeman or patrolman, it would seem that state legislation should also prevail over rules adopted pursuant to charter provisions relating to the method of admission to the department.
There may also be involved here a constitutional question as to whether a city civil service commission may reasonably require an applicant for a civil service examination for the position of patrolman, as a condition to taking the examination, to produce a diploma or certificate of graduation from a four-year high school, without providing any equivalent as to educational qualifications, since the position of patrolman is not a professional or other position for which such requirements are expressly imposed by statute. However, since this question has not been raised, the court makes no decision upon it.
Writ allowed.
WEYGANDT, C.J., WILLIAMS, MATTHIAS, ZIMMERMAN and BETTMAN, JJ., Concur.
Complaint is made because a rule of the Cleveland Civil Service Commission enacted pursuant to the Cleveland Charter provision conflicts with Section 486-9 a, General Code.
Section 4 of Rule 3 of the municipal commission requires the commission to establish for each open competitive examination minimum entrance qualifications which include, among other things: "b. Experience and Education: Whenever in the judgment of the commission requirements as to the experience or education, or both, are factors in determining the merit and fitness of applicants, the commission shall prescribe minimum experience or educational requirements, or both, for entrance to examinations."
Pursuant to this rule, the commission gave other wise proper notice of an open competitive, examination for the position of patrolman in the service of the city of Cleveland. Among the minimum qualifications for entrance to the examintnion, it was provided: "Education: Applicants shall have been graduated from a standard four-year high school. Note: Diploma or certificate of graduation must be presented at the time of filing application."
Section 486-9 a, General Code, provides: "No rules or regulations shall be made setting up educational requirements as a condition of taking a civil service examination except in respect to professional and other positions for which such requirements are expressly imposed by statute and to the extent of the requirements so imposed."
Clearly there is a conflict between the minimum requirement prescribed by the Civil Service Commission of Cleveland and Section 486-9 a, General Code.
Section 3 of Article XVIII of the Constitution of Ohio provides: "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
"Section 7 of Article XVIII of the Constitution of Ohio provides: "Any municipality may frame and Ohio or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all powers of local self-government."
Section 486-9 a, General Code, is neither a police, sanitary, nor similar regulation. Neither the above provisions of the Cleveland Charter nor the above rule of the Cleveland Civil Service Commission amount to local police, sanitary, or similar regulation. The mere fact that a regulation is prescribed for the examination of prospective policemen does not make such a regulation a local police regulation.
Therefore, the rule of the Cleveland Civil Service Commission providing for an educational requirement as a condition of taking a civil service examination is a valid exercise of the power of local self-government, unless it conflicts with Section 10 of Article XV of the Constitution of Ohio, which provides:
"Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision."
There is nothing in this section of the Constitution which prevents a civil service commission from accepting an educational certificate issued under the laws of Ohio as a part of the method of ascertaining by practical means the merit and fitness of applicants for appointment.
The rule not being unreasonable, the writ should be denied.