State ex rel. Canada v. Phillips

• Decision Date: 09 July 1958
• Docket Number: No. 35503,35503
• Parties: , 5 O.O.2d 481 The STATE ex rel. CANADA, Appellant, v. PHILLIPS, Director of Public Safety, Appellee.
• Court: Ohio Supreme Court

Page 191

168 Ohio St. 191

151 N.E.2d 722, 5 O.O.2d 481

The STATE ex rel. CANADA, Appellant, v. PHILLIPS, Director of Public Safety, Appellee.

No. 35503.

Supreme Court of Ohio.

July 9, 1958.

Syllabus by the Court

1. The appointment of officers in the police force of a city represents the exercise of a power of local self-government within the meaning of those words as used in Sections 3 and 7 of Article XVIII of the Ohio Constitution.

2. Provisions of a city charter, for appointment to a position in the competitive classified service of the city from among the three candidates highest on the eligible list, authorize appointment as a deputy inspector of police of the candidate second highest on such list, notwithstanding that a state statute (Section 143.34, Revised Code) requires, with respect to a vacancy in a position above the rank of patrolman in a police department, that the candidate highest on the eligible list be appointed.

3. The authority of the General Assembly, to enact laws applicable to cities pursuant to Section 10 of Article XV of the Constitution, is an authority to enact such laws to be applicable in cities only where and to the extent that such laws will not restrict the exercise by such cities of their powers of local self-government.

4. The words, 'as are not in conflict with general laws' found in Section 3 of Article XVIII of the Constitution, modify the words 'local police, sanitary and other similar regulations' but do not modify the words 'powers of local self-government.'

5. The mere fact that the exercise of a power of local self-government may happen to relate to the police department does not make it a police regulation within the meaning of the words 'police-regulations' found in Section 3 of Article XVIII of the Constitution.

6. Only what is stated in a syllabus or in an opinion per curiam or by the court represents a pronouncement of law by this court.

7. Where a municipality establishes and operates a police department, it may do so as an exercise of the powers of local self-government conferred upon it by Sections 3 and 7 of Article XVIII of the Constitution; and, if it does, the mere interest or concern of the state, which may justify the state in providing similar police protection, will not justify the state's interference with such exercise by a municipality of its powers of local self-government.

8. Paragraph two of the syllabus of and State ex rel. Lynch v. City of Cleveland, 164 Ohio St. 437, 132 N.E.2d 118; State ex rel. Lentz v. Edwards, 90 Ohio St. 305, 107 N.E. 768, and paragraph two of the syllabus of and Hile v. City of Cleveland, 118 Ohio St. 99, 160 N.E. 621, approved and followed. State ex rel. Strain v. Houston, 138 Ohio St. 203, 34 N.E.2d 219, distinguished and paragraphs two and four of its syllabus questioned. City of Cincinnati v. Gamble, 138 Ohio St. 220, 34 N.E.2d 226, distinguished, paragraph three of its syllabus questioned and paragraph four of its syllabus overruled. In re Fortune, 138 Ohio St. 385, 35 N.E.2d 442, distinguished. The syllabus of and State ex rel. O'Driscoll, v. Cull, 138 Ohio St. 516, 37 N.E.2d 49, the syllabus of and State ex rel. Daly v. City of Toledo, 142 Ohio St. 123, 50 N.E.2d 338, and paragraphs four, five and six of the syllabus of and State ex rel. Arey v. Sherrill, 142 Ohio St. 574, 53 N.E.2d 501, overruled.

This proceeding was instituted in the Court of Appeals for Franklin County for the purpose of seeking a writ of mandamus against the respondent, the Director of Public Safety of the City of Columbus, to compel him to revoke the appointment of Captain List to the position of deputy inspector of police and to appoint relator to that position.

Both List and relator had taken a competitive civil service examination for the position of deputy inspector. Relator received the highest grade and List the second highest grade in the examination. The Civil Service Commission certified to the respondent the names of the three who received the highest grades in the examination, and respondent appointed List.

So far as pertinent, Section 143.34, Revised Code, reads:

'Whenever a vacancy occurs in a position above the rank of patrolman in a police department, and there is no eligible list for such rank, the municipal civil service commission shall, within sixty days of such vacancy, hold a competitive promotional examination. After such examination has been held and an eligible list established, the commission shall forthwith certify to the appointing officer the name of the person receiving the highest rating. Upon such certification, the appointing officer shall appoint the person so certified within thirty days from the date of such certification.'

So far as pertinent, Section 151 of the Charter of the City of Columbus reads:

'When a position in the competitive classified service is to be filled, the appointing authority shall notify the commission of that fact and the commission shall certify to such authority the names and addresses of three candidates standing highest on the eligible list for the class or grade to which such position belongs. The appointing authority shall appoint one of the three persons certified to him, to such position.'

So far as pertinent, our Constitution reads:

Section 10, Article XV.

'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.'

Section 3, Article XVIII.

'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, Article XVIII.

'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 powers of local self-government.'

The Court of Appeals rendered a judgment denying the writ of mandamus.

The cause is now before this court on appeal from that judgment.

R. Brooke Alloway, Columbus, for appellant.

Russell Leach, City Atty., John W. E. Bowen and Frank A. Reda, Columbus, for appellee.

TAFT, Judge.

Respondent contends that the appointment of officers in the police force of a city represents the exercise of a power of local self-government within the meaning of those words as used in Sections 3 and 7 of Article XVIII of the Ohio Constitution; and that therefore the provisions of Section 151 of the Columbus charter can be applied notwithstanding their conflict with Section 143.34, Revised Code.

In State ex rel. Lynch v. City of Cleveland, 164 Ohio St. 437, 132 N.E.2d 118, 119, the question was whether 'a vacancy in the office of a municipal chief of police must be filled from a civil service eligible list' as required by the abovequoted provisions of Section 143.34, Revised Code, or whether such appointment could be made otherwise in accordance with the provisions of the Charter of the City of Cleveland. The unamimous holding of this court is indicated in paragraph two of the syllabus, which reads so far as pertinent:

'Under * * * [Section 3 of Article XVIII] a municipality is authorized to choose its own method of selecting its own chief of police other than from a civil service eligible list.'

In the opinion by Weygandt, C. J., it is said:

'Is the method of selecting a chief of police a matter of local self-government within the meaning of the first part of section 3 providing that 'Municipalities shall have authority to exercise all powers of local self-government?' It would seem that if a municipality is to possess such powers, one of them should be the authority to determine the method of selection that probably would be most effective and desirable in meeting the needs of that particular community.

'Hence, this court is of the opinion that the people of Cleveland did possess the political power to amend their charter and choose their own method for selecting their own chief of police other than from a civil service eligible list.'

The opinion also cites with approval and quotes from Harsney v. Allen, 160 Ohio St. 36, 113 N.E.2d 86, 88. In the opinion in the latter case by Stewart, J., it is said:

'The organization and regulation of its police force, as well as its civil service functions, are within a municipality's powers of local self-government. * * *

* * *

* * *

'Whether the chief of police should have control and power over the employees in his department, which the Charter of the City of Youngstown gives him, is a question for the people of Youngstown * * *.'

Relator endeavors to distinguish State ex rel. Lynch v. City of Cleveland, supra, 164 Ohio St. 437, 132 N.E.2d 118, on the ground that the application of Section 10, Article XV of the Ohio Constitution, was not raised or passed upon in that case. See paragraph four of syllabus of B. F. Goodrich Co. v. Peck, 161 Ohio St. 202, 118 N.E.2d 525. Relator contends that that section of the Constitution, which was presented by the Constitutional Convention of 1912 and approved by the voters at the same time as were Sections 3 and 7 of Article XVIII, specifically authorizes the General Assembly to enact laws providing for 'appointments and promotions in the civil service of * * * cities' being 'made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations'; and that hence Section 143.34, Revised Code, as such a law, must apply notwithstanding any contrary provisions of the Columbus charter. There is much force to this contention. However, we are of the opinion that our previous decision in State ex rel. Lentz v. Edwards, 90 Ohio St. 305, 107 N.E. 768, which is cited with approval in Judge Stewart's opinion in Harsney v. Allen, supra, 160 Ohio...