State ex rel. Elchlinger v. Ramser

• Decision Date: 09 March 1961
• Citation: 17 O.O.2d 275,113 Ohio App. 289,172 N.E.2d 731
• Parties: , 85 Ohio Law Abs. 436, 17 O.O.2d 275 STATE of Ohio ex rel. John ELCHLINGER, Relator, v. Fred RAMSER et al., Respondents.
• Court: Ohio Court of Appeals

Page 289

113 Ohio App. 289

172 N.E.2d 731, 85 Ohio Law Abs. 436, 17 O.O.2d 275

STATE of Ohio ex rel. John ELCHLINGER, Relator, v. Fred RAMSER et al., Respondents.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 9, 1961.

Ralph J. Stemberger, Cleveland, for relator.

William J. Tosko, Cleveland, for respondents.

KOVACHY, Presiding Judge.

This is an original action in this court in mandamus. The relator alleges in his petition that he is a patrolman with the police department of the City of Garfield Heights, Ohio, having been appointed on July 1, 1956; that the respondents are members of the Civil Service Commission; that the City of Garfield Heights adopted a charter; that Section 48 of said charter provides:

'The Civil Service Commission shall make necessary rules for the * * * promotion of * * * persons in the classified service * * *';

that the Civil Service Commission has not made or adopted any rules pursuant to said charter provision; that the Civil Service Commission has giving notice of an examination for promotion to lieutenant in the Safety Department to be held February 27, 1961, and has declared only sergeants with 120 days service in such capacity eligible; that no sergeant has served at least twelve months in that rank; and that patrolmen, being that next lower rank in the police department, are likewise eligible to take the examination.

The relator prays 'that a writ of mandamus issue * * * commanding the respondents to permit relator to take the promotional examination for the position of lieutenant.' Respondents filed their answer in which none of the facts alleged in the petition are controverted except the matter of the adoption of necessary rules by the Civil Service Commission. They aver that the notice of examination for promotion to lieutenant in the Safety Department follows rules adopted by them 'at a regular meeting of said commission held February 11, 1957', at which time they caused to be spread on their official minutes 'a resolution that said commission shall be governed by the Ohio Civil Service laws as shown by 'Exhibit A' attached hereto and made a part of this answer.' Exhibit 'A' reads as follows:

'City Of Garfield Heights, Ohio

'Civil Service Commission

'Meeting Held February 11, 1957

'Meeting called to order 7:30 P.M. by Chairman Murphy.

' Present:

'Thos. Murphy

'Ray, J. Kniola

Fred Ramser

H. H. Wightman

'Minutes of previous meeting were read and approved. Chairman Murphy opened with a discussion of the new Charter effective Jan. 1, 1957, and especially referred to section 48, which has reference to the Civil Service Commission. After some remarks regarding rules and regulations for the Civil Service Commission it was moved by Ramser and seconded by Kniola that this Commission operate as in the past and be governed by the Ohio Civil Service Laws. All members agreed No further business meeting adjourned 9:30 P.M.

'signed H. H. Wightman

'Secretary'

The relator has now filed a demurrer to the answer on the ground 'that the matters and things therein contained are insufficient in law to constitute a defense.'

Section 48 of the charter for the City of Garfield Heights, inter alia, reads:

'The Civil Service Commission shall make necessary rules for the * * * promotion * * * of persons in the classified service. Before any such rules or amendments thereof shall become effective, they shall be published in writing and an opportunity given for a public hearing thereon to be held after reasonable notice thereof has been given by the Commission.'

The resolution adopted by the Civil Service Commission in an attempt to comply with the requirements of Section 48 of the charter makes no provision that the rules and regulations to govern its operation 'be...