Orrell v. City of Hot Springs, 78-293

Decision Date12 March 1979
Docket NumberNo. 78-293,No. 1,78-293,1
Citation265 Ark. 267,578 S.W.2d 18
PartiesFloyd ORRELL and Thurman Abernathy, Appellants, v. CITY OF HOT SPRINGS et al., Appellees
CourtArkansas Supreme Court

Gibbs & Henry by Gary R. Gibbs, Hot Springs, for appellants.

Curtis L. Ridgway, Jr., Hot Springs, for appellees.

GEORGE ROSE SMITH, Justice.

The two appellants were sergeants on the Hot Springs police force when they brought this action for a writ of mandamus to compel the city and its Board of Civil Service Commissioners to promote them to the rank of lieutenant and to award them increased pay from the date they passed a civil service examination and became eligible for promotion. The issue of promotion immediately became moot, because the plaintiffs were promoted to lieutenant on the day after the suit was filed. This appeal is from a judgment denying the claim for back pay, amounting to $913.87 for Abernathy and to $808.93 for Orrell.

It was stipulated that the plaintiffs became eligible for promotion when the results of the examination were posted on August 26, 1975, that three vacancies in the rank of lieutenant then existed, and that the plaintiffs were not promoted until August 20, 1976. No testimony was introduced. The trial judge, sitting without a jury, gave the following reasons for his decision, with which we agree:

An eligibility list does nothing more than to establish the eligibility of officers available for promotion and a priority to be given them when the promotions are made. Despite any language in the statutes, ordinances, and civil service regulations, the Civil Service Commission has management responsibilities for the police department and has discretion as to when vacancies are to be filled from the eligibility list. If the Civil Service Commission determines that it will fill existing vacancies, the Civil Service Commission must accept those at the top of the eligibility list unless those are disqualified for reasons permissible under the law. These two officers did not assume the responsibilities of lieutenant until they were appointed on August 20, 1976.

As far as the record is concerned, nothing prevented these officers from pursuing their administrative remedy before the Civil Service Commission on August 26, 1975, and to appeal to this court if the Civil Service Commission declined to advance them without good cause when they were eligible to fill existing vacancies. The record does not disclose that the plaintiffs pursued any administrative remedy.

Since the plaintiffs did not serve in the rank of lieutenant nor fill the existing vacancies prior to August 20, 1976, this Court...

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4 cases
  • Trice v. City of Pine Bluff
    • United States
    • Arkansas Supreme Court
    • April 25, 1983
    ...record, only references were made to it at the trial. We cannot take judicial notice of a municipal ordinance. Orrell v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979). The excerpt reprinted by the majority was furnished by the appellee and did not appear in the We can surmise ther......
  • Burcham v. City of Van Buren
    • United States
    • Arkansas Supreme Court
    • November 6, 1997
    ...Burcham cites this court to three cases. Cross v. Bruce, 284 Ark. 230, 681 S.W.2d 339 (1984); Orrell & Abernathy v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979); Smith v. Little Rock Civil Serv. Comm., 214 Ark. 765, 218 S.W.2d 366 (1949). Prior to 1987, the civil service statute ......
  • Grable v. State
    • United States
    • Arkansas Supreme Court
    • May 1, 1989
    ...not take judicial notice of municipal ordinances and regulations, and thus they are inapplicable here. E.g., Orrell v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979) (municipal civil service regulations); Smith v. City of Springdale, 291 Ark. 63, 722 S.W.2d 569 (1987) (municipal 2.......
  • Bradley v. Bruce
    • United States
    • Arkansas Supreme Court
    • March 17, 1986
    ...of employees. The very next sentence in the statute deals with promotions which we have already quoted. In Orrell v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979), we made the same mistake the Commission did in our reference to Ark.Stat.Ann. § 19-1603(6), by assuming that the thre......

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