Opinion
No. 37471
Decided December 19, 1962.
Quo warranto — Remedy not available, when — Not substitute for appeal — Municipal civil service commission — Promotional examination for chief of police — Right of appeal from final order of commission.
APPEAL from the Court of Appeals for Cuyahoga County.
The relator, Fred J. Steyer, and the respondent Francis N. Szabo, both captains in the police department of the city of Parma, took a civil service promotional examination, given by the Parma Civil Service Commission, a respondent herein, for the position of chief of the police department of that city.
Szabo received the higher grade. Steyer filed a protest with the civil service commission, asking correction of his grade on a number of specific questions in which he claimed he was graded wrong, and challenged on several grounds the propriety of the examination as given. The commission allowed Steyer certian corrections, which resulted in a three-point increase in his grade, and, Szabo's grade being the higher, he was certified and appointed as chief of police. Steyer requested the commission to reconsider its decision, but the commission declined to do so.
Thereafter Steyer instituted the instant action in quo warranto in the Court of Appeals, seeking a decree determining that Szabo unlawfully holds the office of chief of police, that Steyer is in law and fact the first man on the list derived from the examination, and that, therefore, he is entitled to appointment and formal occupancy of the office.
The respondents affirmatively allege in their answer that relator had failed to appeal from the final decision of the civil service commission. This allegation is not denied in the reply.
The respondents moved for a summary judgment in their favor, and the Court of Appeals sustained the motion.
An appeal as of right brings the cause to this court for review.
Messrs. Friedman Brown, for appellant.
Mr. John H. Urbancik, city solicitor, Messrs. Squire, Sanders Dempsey and Mr. Jon R. Waltz, for appellees.
Section 2506.01, Revised Code, in the chapter titled "Appeals from Orders of Administrative Officers and Agencies," provides:
"Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the Common Pleas Court of the county in which the principal office of the political subdivision is located * * *."
The respondent civil service commission is a "commission" within the meaning of that term as used in the above-quoted section; and the decision of the commission rejecting relator's contention that he was entitled to be certified for appointment as chief of police was a "final order, adjudication, or decision" within the meaning of that section.
Therefore, pursuant to the provisions of Chapter 2506, Revised Code, relator had an adequate remedy in the regular course of the law by appeal to the Common Pleas Court from the final order of the commission, and a proceeding in quo warranto cannot be used as a substitute for appeal.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, RADCLIFF, O'NEILL and GRIFFITH, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.