State ex rel. Wolcott v. Celebrezze

• Decision Date: 23 June 1943
• Docket Number: 29349.
• Citation: 49 N.E.2d 945,141 Ohio St. 627
• Parties: STATE ex rel. WOLCOTT v. CELEBREZZE.
• Court: Ohio Supreme Court

49 N.E.2d 945

141 Ohio St. 627

STATE ex rel. WOLCOTT v. CELEBREZZE.

No. 29349.

Supreme Court of Ohio

June 23, 1943

Syllabus by the Court.

1. Under the provisions of Section 486-17b, General Code, when a position above the rank of patrolman in a police department is abolished and the incumbent has been permanently appointed in accordance with the provisions of the act, he shall be demoted to the next lower rank.

2. Under the provisions of Section 486-15a, General Code vacancies in positions above the rank or grade of patrolman in a police department must be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled.

3. For the purpose of Section 486-15a, General Code, an increase in the salary or other compensation of anyone holding a position in a police department, beyond that fixed for the grade or rank in which such position is classified, shall be deemed a promotion.

In Mandamus.

In this action the original jurisdiction of this court is invoked for the purpose of obtaining a peremptory writ of mandamus to compel the respondent, the director of the Department of Public Safety of the city of Cleveland, to promote the relator from the position of ceptain of police to that of deputy inspector.

The relator's petition reads in part as follows:

'Relator states that he is a member of the police force of the city of Cleveland, Ohio, having the rank of captain therein, and that he has held such rank continuously since February 1937. That the respondent is and was at all times herein mentioned the duly appointed, qualified and acting director of the department of public safety of said city. That on the 31st day of August, 1942, the council of said city passed emergency ordinance No. 919-A-42 and that same became effective on the last mentioned date. That said ordinance provided for a partial re-organization of the police and fire divisions or forces of said city, within said department, and established minimum and maximum salaries to be paid to those holding the various ranks within said divisions. That, among other things, said ordinance established within said police force or division ten (10) deputy inspectorships and that prior to its passage there were seven (7) [eight (8)] deputy inspectorships and that there were then seven (7) [eight (8)] members of said force holding such positions. That ever since the 1st day of March 1942, there has existed an eligible list within said division of police for promotions to the position of deputy inspector, said eligible list having been created by competitive examination as provided by law, and that the relator's name was the first or highest name on said eligible list upon the passage of said ordinance, and still is. That prior to September 1, 1942, said eligible list was filed with the respondent or with his predecessor in office and that upon the last mentioned date the respondent had full knowledge thereof and of the place or position of relator thereon.

'That by reason of the facts herein stated, this relator claims to be entitled, and is entitled, to promotion to the rank of deputy inspector; that on October 5, 1942, he requested the respondent herein to so promote him and that respondent has failed and refused to so do.

'That this relator is without a remedy in the ordinary course of the law.'

To this petition the respondent filed an answer admitting that the relator is a member of the police force of the city of Cleveland; that the relator holds the rank of captain therein and has held such rank continuously since February, 1937; that the ordinance mentioned in the relator's petition was duly enacted as alleged; that from and after March 1, 1942, there has been an eligible list for promotion to the position of deputy inspector, which eligible list was created by competitive examination as provided by law; that the relator's name is and has been the first or highest on said promotional eligible list since August 31, 1942; and that on October 5, 1942, the relator requested promotion, which was refused. Then the respondent quotes parts of certain related ordinances as well as the one mentioned in the relator's petition. And finally, the respondent alleges that the 'positions or ranks of commissioner of traffic and deputy commissioners of traffic were positions or ranks well above the rank of patrolman in the police department in the city of Cleveland and the incumbents of such positions or ranks as of August 31, 1942, had been permanently appointed thereto. By reason of the provisions of Section 919-A-42, said positions or ranks were abolished with the meaning of Section 486-17b, General Code, whereby and whereupon it became the duty of defendant, as specifically enjoined by said Section 486-17b, General Code, to demote the incumbent commissioner of traffic and the incumbent deputy commissioners of traffic to the next lower rank as determined by the salaries received by them prior to September 1, 1942, and the schedule of salaries provided in said ordinance No. 919-A-42. Defendant accordingly demoted the commissioner of traffic to the rank of inspector of police and demoted the two deputy commissioners of traffic to the rank of deputy inspector as of September 1, 1942, whereby any vacancies momentarily present in the rank of deputy inspectors were filled.'

To this answer the relator has filed a demurrer on the ground that the facts stated are insufficient to constitute a defense.

Edward Blythin, of Cleveland, for relator.

Thomas A. Burke, Jr., Director of Law, and Charles W. White, both of Cleveland, for r...