State ex rel. Finn v. City of Garfield Heights

• Decision Date: 11 April 1973
• Docket Number: No. 72-459,72-459
• Citation: 295 N.E.2d 197,34 Ohio St.2d 5,63 O.O.2d 3
• Parties: , 63 O.O.2d 3 The STATE ex rel. FINN, Appellee, v. CITY OF GARFIELD HEIGHTS et al., Appellants.
• Court: Ohio Supreme Court

Page 5

34 Ohio St.2d 5

295 N.E.2d 197, 63 O.O.2d 3

The STATE ex rel. FINN, Appellee, v. CITY OF GARFIELD HEIGHTS et al., Appellants.

No. 72-459.

Supreme Court of Ohio.

April 11, 1973.

Syllabus by the Court

Where a city council passes an ordinance creating an additional captain's position in its fire department, but for which position council has not appropriated funds, there is no 'vacancy' in the position, as that word is used in R.C. § 143.342; and the top person on the civil service eligibility list for such position is not entitled to a writ of mandamus to compel city officials to make an appointment to the position.

This is an action in mandamus initiated in the Court of Appeals for Cuyahoga County. The facts are not in dispute.

In December, 1969, the mayor of the city of Garfield Heights introduced legislation in the city council to increase the number of captains on the police force from three to four and the number of policemen from 22 to 55. A companion piece of legislation was introduced which increased the number of captains in the fire department from three to four and the number of fifth class firemen from 33 to 55. The ordinance for firemen, No. 72-1969, was passed on December 8, 1969, by city council, as was also the authorization for the policemen. The departing administration immediately 'declared a vacancy' in the newly created fourth police captaincy and promoted a police lieutenant. However, no action was taken with respect to the fire department nor has there been any attempt since then to put anyone in this fourth captain's position. The reasons given by the incumbent mayor as to why that position has not been filled are that lack of an appropriation for this position would plunge the city further into debt and that the additional personnel would be superfluous.

Relator, Finn, a lieutenant in the city's fire department, successfully completed, on May 7, 1970, a competitive examination administered by the city civil service commission for promotion to the next succeeding rank of captain within the department. As a result, on June 13, 1970, he was placed on the eligibility list for certification to promotion to the rank of captain.

Ralator, contending that there was a vacancy in the rank of captain in the fire department for over 30 days and that, since he was first on the eligibility list, he should be promoted, sought relief in the form of a mandamus and an injunction action in the Court of Appeals for Cuyahoga County. The prayer of the petition reads:

'That a writ of mandamus be issued directing the respondents, the city of Garfield Heights, Raymond A. Stachewicz (mayor) and Daniel Relic (director of public works), to fill the existing vacancy of the rank of captain and any other vacancies thereby created in said city's fire department, from the names certified to them from the eligible list by the civil service commission of said city, together with any and all such other orders and relief as may be proper and necessary in the premises; and

'That the civil service commission of said city and the respondents herein, Charles Bradler, Hugh Crawford, Donald McCune and Richard Lenczowski, and each of them be restrained and enjoined from (1) abolishing the existing eligible list for promotion within said city's fire department; (2) from certifying the name of any person for promotion therein to the rank of captain other than that of the relator; (3) and/or from holding another promotional examination within said city's fire department until further order of this court.'

The Court of Appeals granted the writ, the essence of its holding being 'The word 'shall' as used in the ordinance is a mandatory requirement and excludes discretion. A vacancy was created by the passage of the amended ordinance and the city must fill this position through the appointing authority from the top ranking person on the promotional list. See State, ex rel. Wolcott v. Celebrezze, 141 Ohio St. 627, 49 N.E.2d 945 (1943).'

The cause is before this court pursuant to an appeal as a matter of right.

Barragate & Barragate, Cleveland, for appellee.

Theodore S. Holtz, Cleveland, director of law, for appellants.

WILLIAM B. BROWN, Justice.

The issue presented in this case is: Whether a writ of mandamus should issue to compel the respondents, officials of the city of Garfield Heights, to elevate the top person on the civil service eligibility list to a position of captain in the fire department, where that position was created by ordinance of city council but was not funded.

There is no dispute that city council adopted an ordinance on December 8, 1969, that increased the number of captains in the fire department from three to four; that city council did not appropriate money for...