State ex rel. Marshall v. Civil Service Commission of Columbus

• Decision Date: 01 August 1967
• Citation: 228 N.E.2d 913,11 Ohio App.2d 84
• Parties: , 40 O.O.2d 243 The STATE ex rel. MARSHALL, Appellant, v. CIVIL SERVICE COMMISSION OF COLUMBUS, Ohio et al., Appellees.
• Court: Ohio Court of Appeals

Page 84

11 Ohio App.2d 84

228 N.E.2d 913, 40 O.O.2d 243

The STATE ex rel. MARSHALL, Appellant, v. CIVIL SERVICE COMMISSION OF COLUMBUS, Ohio et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

Aug. 1, 1967.

Syllabus by the Court

1. Mandamus action in the Common Pleas Court is the proper remedy for a person who is denied by a Civil Service Commission the right clearly prescribed by law to compete and engage in a promotional, competitive examination for a classified civil service position.

2. Mandatory injunction and other equitable remedies are not available remedies when there is an adequate remedy at law by an action of mandamus.

3. Equitable relief by way of injunction or otherwise is not a remedy available to control the acts or orders of a Civil Service Commission concerning the duties resulting from such office, which the law specially enjoins upon members of such commission.

4. A rejection by the Secretary and Personnel Director of a Civil Service Commission of an application of a relator to take a promotional, competitive examination for the classified civil service position of Fire Chief, without communicating such action to the Civil Service Commission, is not a final order which could have been appealed by the relator to the Common Pleas Court pursuant to Chapter 2506, Revised Code; and, for such reason, relator does not have available an adequate and effective remedy at law by way of appeal under Chapter 2506, Revised Code, 'Appeals from Orders of Administrative Officers and Agencies.'

5. Where a Civil Service Commission, pursuant to the rule-making power granted to it by City Charter, adopts a rule determining eligibility for promotional examinations in the classified civil service, and therein limits eligibility to employees who shall be permanently appointed to and shall have served at least six months in a lower rank or grade, an applicant for such examination, who possesses such service of six months in a lower rank or grade, has a clear right to participate in such examination. Such clear right cannot be affected or nullified by action of the Personnel Director of the Civil Service Commission, pursuant to another rule of the Civil Service Commission, which purports to grant to the Personnel Director unbridled and ungoverned discretion to accept or reject an application to engage in such promotional civil service examinations.

6. A rule of a Civil Service Commission, which purports to grant to its Personnel Director the unbridled and ungoverned discretion to reject an application to engage in a promotional civil service examination, considered as a power of quasi-judicial or executive nature, is an illegal delegation thereof to a private person, too broad and indefinite to create any valid standards, which may be exercised only by the duly constituted members acting together as a commission, and is therefore a nullity.

7. A power granted by a City Charter to a Civil Service Commission, including power to make rules for open, competitive examinations for promotional civil service positions, for eligible lists and for rejection of candidates or eligibles who fail to comply with certain specific standards, does not permit the Civil Service Commission to grant or transfer such power to its secretary or personnel director; and any purported rule of the commission which attempts to do so is invalid by reason of its conflict with such City Charter.

Philip R. Bradley and Robert P. DiRosario, Columbus, for appellant.

John C. Young, City Atty., and Alba L. Whiteside, Columbus, for appellees.

CLIFFORD F. BROWN, Judge.

This is an appeal on questions of law by relator from a judgment of the Common Pleas Court of Franklin County dismissing a petition of relator seeking a writ of mandamus to compel respondents, the Civil Service Commission of Columbus, to accept the application of relator, and that, incident to such application, relator be permitted to compete and engage in a promotional competitive examination on August 15, 1966, for the classified position of Fire Chief, Division of Fire, Department of Public Safety, Columbus.

On or about July 18, 1966, the respondents had issued a public notice of the promotional competitive examination for Fire Chief, stating that it would be hald August 15, 1966, and that applications would be accepted between July 25, 1966, and August 5, 1966.

Relator filed his application for examination for Fire Chief on August 2, 1966, and, on the same date, Gale L. Reeder, Personnel Director, Civil Service Commission, Columbus, rejected the application for the reason, as stated in the letter mailed to relator, that relator did not possess the qualification of six months as permanent appointee as Fire Assistant Chief prior to the date of the examination. The Civil Service Commission as a body, or individually, took no action on relator's application before relator filed his mandamus action in Common Pleas Court of Franklin County on August 13, 1966.

As a result of the mandamus action, on the date of the examination, August 15, 1966, an agreement was reached between counsel for relator and the President of the Civil Service Commission that relator be permitted to take the examination and his paper impounded, not graded, and held untile the further order of the court. Pursuant to this agreement, the examination was taken, and an amended alternative writ of mandamus was filed, setting forth the agreement.

On September 26, 1966, a hearing was held in the Common Pleas Court in this mandamus action.

Although the petition of relator alleged that respondents, the Civil Service Commission, rejected the application of relator, which allegation was admitted in the answer of respondents, there was sufficient oral testimony and documentary proof introduced into evidence, without any objection offered by respondents, to establish to the contrary that the rejection of relator's application was solely made by Gale L. Reeder, Personnel Director, and not by the Civil Service Commission, and that the Civil Service Commission's minutes of July 29, 1966, and August 2, 1966, coupled with testimony explaining the minutes, to which no objection was interposed, reflected the fact that the commission took no action on relator's application before August 15, 1966, and, further, took no action before the date of the hearing in Common Pleas Court on September 26, 1966. There was, as hereinbefore mentioned, an agreement made on the morning of August 15, 1966, permitting the relator to take the examination followed by an impounding of his examination paper. It is uncontroverted from the evidence that the relator's application never came before the Civil Service Commission or commissioners for official action before September 26, 1966.

Even if we assume, for the sake of argument, that the pleadings raised no issue as to the failure of the commission to act on relator's application, a variance between pleadings and proof in support thereof, which might have been obviated by the amendment of the pleadings, is deemed waived if not properly objected to at the trial, and is to be considered along with other proof, notwithstanding the lack of allegations. Massillon Savings & Loan Co. v. Imperial Finance Co., 114 Ohio St. ,523, 151 N.E. 645; McCray v. Jones, Ohio App., 39 N.E.2d 167, 34 Ohio Law Abst. 612; 43 Ohio Jurisprudence 2d 395, Section 369.

This oral testimony and documentary evidence that the Civil Service Commission had taken no action, and so had entered no final order, as to relator's application to compete in the examination for Fire Chief was admissible on the issue raised by the allegations in the fifth paragraph of relator's petition when he alleged he had no adequate remedy at law.

On the other hand, the allegations of the petition concerning the rejection of relator's application to engage in the examination are broad enough to support the contention and raise the issue that the commission made no final order, adjudication, or decision, but attempted to act through the Personnel Director by his unauthorized rejection of the application and explained in the testimony of the witnesses presented by both parties.

The four assignments of error amount to a claim that the decision of the trial court dismissing the petition was contrary to law and against the weight of the evidence. Our decision does not require us to determine the constitutional issue argued by relator to the effect that Rule IV, Section D, delegating discretion to the Personnel Director to reject relator's application to take the examination for Fire Chief, was unconstitutional.

The respondents contend that relator was properly denied a writ of mandamus in the Common Pleas Court in this case because relator had a plain and adequate remedy in the ordinary course of the law, State ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 218 N.E.2d 428; State ex rel. Sibarco Corp. v. Hicks, Building Inspector, 177 Ohio St. 81, 202 N.E.2d 615; Section 2731.05, Revised Code; and that such term, 'plain and adequate remedy in the ordinary course of the law,' includes equitable remedies, State ex rel. Central Service Station, Inc. v. Masheter, Dir. of Hwys., 7 Ohio St.2d 1, 218 N.E.2d 177; State ex rel. Libbey-Owens-Ford Glass Co. v. Industrial Commission, 162 Ohio St. 302, 123 N.E.2d 23; State ex rel. Durek v. Masheter, Dir. of Hwys., 9 Ohio St.2d 76, 223 N.E.2d 601; 35 Ohio Jurisprudence 2d 278, Section 31; and, in an attack upon an order of the Civil Service Commission, includes an appeal to the Common Pleas Court from an order of the commission pursuant to Chapter 2506, Revised Code, titled 'Appeals from Orders of Administrative Officers and Agencies.' State ex rel. Steyer v. Szabo, 174 Ohio St. 109, 186 N.E.2d 839; State ex rel. Sibarco v. Hicks, Building Inspector, 177 Ohio St. 81, 202 N.E.2d 615 (zoning-building permit case).

The trial court in its memorandum decision suggested that the...