State ex rel. Herder v. Shock

• Decision Date: 16 September 1977
• Citation: 379 N.E.2d 608,9 O.O.3d 268,55 Ohio App.2d 116
• Parties: , 9 O.O.3d 268 The STATE ex rel. HERDER v. SHOCK et al.
• Court: Ohio Court of Appeals

Page 116

55 Ohio App.2d 116

379 N.E.2d 608, 9 O.O.3d 268

The STATE ex rel. HERDER v. SHOCK et al.

Court of Appeals of Ohio, Third District, Defiance County.

Sept. 16, 1977.

Syllabus by the Court

The provision of R.C. 124.31 that efficiency in service shall form a part of the maximum mark attainable on examinations is mandatory with relation to the promotion of one to the position of chief of police of a noncharter municipality.

Robert J. Affeldt, Sylvania, for relator.

Squire, Sanders & Dempsey, John R. Gall, Cleveland, and Stephen F. Korhn, Defiance, for respondents.

GUERNSEY, Judge.

This is an original action in quo warranto and mandamus filed in this court by the relator, Norman Herder, against the respondent, Robert E. Shock, Jr., chief of police, and the respondent mayor, safety director, civil service commission and members of that commission in their official capacity, all of the city of Defiance, seeking to oust Shock from his probationary position as chief of police and to establish the relator in that position. Although the complaint filed also sounds in prohibition, declaratory judgment and for punitive damages, the relator has, with leave of this Court, withdrawn his prayers for relief in prohibition and declaratory judgment, and we also dismiss Sua sponte any purported action for punitive damages for want of original jurisdiction in this Court to grant same.

The complaint came on to be heard on the respective motion of the relator and cross-motion of respondents for summary judgment, there having been filed and submitted in support of both motions the depositions of the relator and each of the respondents except the commission. There was also submitted in support of the relator's motion the affidavit of one Don F. Breckler. The motion of the relator was filed before and the cross-motion of respondents was filed concurrently with respondents' answer.

It appearing from the complaint that the relator had previously filed action in the Court of Common Pleas of Defiance County sounding in prohibition and in mandamus the issue of this court's jurisdiction was raised Sua sponte. See State, ex rel. Phillips v. Polcar (1977), 50 Ohio St.2d 279, 364 N.E.2d 33, and authorities therein cited. We have concluded that although many of the same issues pertinent to the action in this court were attempted to be raised on the same facts in the Common Pleas Court, that court had no jurisdiction whatever in prohibition and could not in mandamus oust the respondent as chief of police and establish the relator in that position. Since that is the ultimate relief sought in this Court the jurisdiction of the Common Pleas Court first invoked was not a concurrent jurisdiction operating to exclude this Court from adjudication of the whole issue to settle the rights of the parties.

It appears undisputed from the record that on April 1, 1977, a vacancy occurred in the position of chief of police for the city of Defiance. On May 2, 1977, the civil service commission conducted a written competitive promotional examination to fill the vacancy and the relator and four of the other persons eligible to fill the vacancy took the written examination. On May 9, 1977, the civil service commission certified to the appointing authority, the mayor of Defiance, that the respondent Shock, had received the highest rating on the examination and Shock was shortly thereafter appointed to the position of chief of police in which he is now serving in a probationary capacity.

The seniority credits prescribed by the Revised Code were equal for both Herder and Shock and Herder scored one point less on the written examination than did Shock. Herder never voiced any objection to the commission concerning the form or substance of the examination until after the result was announced. He asserts the disqualification of Shock on the allegation, which is admitted by the respondents, that efficiency was not considered in determining who should be certified as eligible for the promotion. This is the gut issue, I. e., whether it is mandatory in determining the merit of an otherwise eligible candidate for promotion to fill a vacancy in the office of chief of police of a non-charter city to include in the total grade attainable in civil service promotional examinations a grade based on credit for efficiency.

The relator cites State ex rel. Ethell v. Hendricks (1956), 165 Ohio St. 217, 135 N.E.2d 362, as being controlling on this issue. The following appears in the second paragraph of the syllabus:

"No position above the rank of patrolman or regular firemen in a police or fire department of a city where the statutes relative to civil service are applicable shall be filed by any person unless he has first passed a competitive promotional examination which shall include in the grade attainable:

"(a) The grade on an examination composed of questions and answers, which shall be entirely in writing;

"(b) The grade based on a credit for seniority in service according to the formula set out in Section 143.16, Revised Code;

"(c) The grade based on credit for efficiency or conduct and capacity in office."

Respondents assert that at least subdivision (c) of this paragraph of the syllabus is Obiter dictum in that the case involved only the issue of whether a part of the examination composed of questions and answers could be oral. Respondents assert, instead, that the requirement of R.C. 124.31 that in competitive "promotional examinations, efficiency and seniority in service shall form a part of the maximum mark attainable in such examination," are requirements for civil service promotion generally, which yield to R.C. 124.44 relating specifically to promotions to positions above the rank of patrolman in the police department and which the respondents further assert merely requires the holding of a "competitive promotional examination" and the certification to the appointing officer of "the name of the person receiving the highest rating" without reference to efficiency.

We do not conclude, as did the respondents, that subdivision (c) of the second paragraph of the syllabus in the Ethell case is merely, or wholly, Obiter dictum. It is true that the ouster of the respondent from the office of chief of police was based on the giving of an oral examination composed of questions and answers. It is also true, however, that the court refused to order Ethell installed in that position "for the reason that he received a higher grade in part of an examination which we have found to be unlawful In toto," it being "apparent that a new examination must be given in order that the position here in question may be lawfully filled." In accord with the Supreme Court's reasoning on page 223, 135 N.E.2d 362 of its opinion the examination would be equally unlawful In toto for the failure to include a grade based on credit for efficiency as it would be for the inclusion of a grade based on an oral examination composed of questions and answers.

Relator also relies on the cases of State ex rel. Mikus v. Hirbe (1966), 7 Ohio St.2d 104, 218 N.E.2d 438 and State ex rel. Linder v. Troy Civil Service Comm. (1963), 118 Ohio App. 345, 194 N.E.2d 778. The respondents claim that any apparent holding in the former case that efficiency must be considered is...