Opinion
No. 28536
Decided June 18, 1941.
Civil service — Appeal lies to Court of Common Pleas — Section 486-17a, General Code — Notwithstanding municipal ordinance provides decision of civil service commission final — Member of municipal police department removed for cause.
A member of a police department, who appeals to the civil service commission of the municipality after removal from his position for cause, may, by virtue of Section 486-17 a, General Code, appeal to the Court of Common Pleas of the county in which the municipality is situated, notwithstanding an ordinance of such municipality provides that in such instances the decision of the commission shall be final.
CERTIFIED by the Court of Appeals of Cuyahoga county.
Herbert Fortune was a member of the police department of the city of Cleveland Heights, Ohio. The city manager discharged him from his position for drunkenness while in the performance of his duty of escorting children across the street in front of a schoolhouse. He appealed to the civil service commission of the municipality and upon hearing the commission approved and affirmed the action of the city manager. Thereupon Fortune took an appeal to the Court of Common Pleas of Cuyahoga county. The civil service commission filed a motion to dismiss the appeal upon the ground that under the provisions of city ordinance No. 68-1932, the jurisdiction of the commission is final and the cause is not appealable.
Ordinance No. 68-1932 was passed pursuant to a provision of the charter which had been previously adopted by the city and which permitted the establishment of new departments by the legislative branch of the city government.
That ordinance contains the following provision:
"The general laws of Ohio, except the Constitution, shall not apply to the civil service of this city. The civil service commission shall provide by rules not inconsistent with the provisions of this ordinance for the ascertainment of merit and fitness as the basis for appointments and promotions in the service of said city and said board of education, as required by the Constitution of the state of Ohio, and for appeals from the action of the appointing or employing powers in any case of transfer, reduction or removal and the action of the commission in any such appeal shall be final."
Fortune contended that his case is appealable by virtue of Section 486-17 a, General Code, which inter alia provides "that in the case of the removal of a chief of police or chief of the fire department or any member of the police or fire departments of a municipality an appeal may be had from the decision of the municipal commission to the Court of Common Pleas of the county in which such municipality is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission."
The Court of Common Pleas held that the ordinance and not the statute controlled and dismissed the appeal.
An appeal on questions of law was taken to the Court of Appeals and that court, one judge dissenting, affirmed the judgment of the Court of Common Pleas and certified the cause to this court upon the ground that the decision of the appellate court was in conflict with that of the Court of Appeals of Hamilton county in the case of Kearns v. Sherrill, City Manager, 63 Ohio App. 533, 27 N.E.2d 407, the judgment in which case had been affirmed by this court prior to such certification. Kearns v. Sherrill, City Manager, 137 Ohio St. 468, 30 N.E.2d 805.
Messrs. Miller, Daus Schwenger and Mr. Raymond S. Morris, for appellant.
Mr. G.E. Hartshorn, director of law, for appellee.
The sole question is whether a member of a police department whose removal for cause has been affirmed by the civil service commission of the municipality has a right of appeal from the decision of the commission to the Court of Common Pleas.
It has been held by this court that civil service generally is a matter of municipal concern and therefore subject to regulation and control by the municipality. State, ex rel. Lentz et al., Civil Service Commission, v. Edwards, 90 Ohio St. 305, 107 N.E. 768; Hile v. City of Cleveland, 118 Ohio St. 99, 160 N.E. 621. It must be conceded, however, that the General Assembly has some control of civil service within cities by reason of Section 10, Article XV of the Constitution adopted at the same time as the home rule provisions for cities. Section 10, Article XV, reads: "Appointments and promotions in the civil service of the state, * * * and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision." (Italics ours.)
Pursuant to this authority, the General Assembly passed Section 486-17 a, General Code, which governs the right to appeal from the civil service commission to the Court of Common Pleas by a member of a police department upon his removal. Even though we concede that in some instances civil service is a matter of local concern, the state possesses power to legislate in regard to such service, when it is brought into play in connection with some matter of state-wide concern. Thus in dealing with matters of public health, the Legislature has power to regulate civil service with respect thereto even in municipalities. State, ex rel. Mowrer., v. Underwood et al., Civil Service Comm., 137 Ohio St. 1, 27 N.E.2d 773.
By a series of decisions culminating in City of Cincinnati v. Gamble et al., Bd. of. Trustees, ante, 220, this court has definitely established the rule that matters pertaining to police protection are of state-wide concern and under the control of state sovereignty. It follows that civil service as applied to the police department of a city is subject to state regulation and the statute must prevail.
There is another all-powerful reason why Section 486-17a governs to the exclusion of the ordinance. Municipalities have no power to establish courts or regulate the administration of justice. State, ex rel. Cherrington, Pros. Atty., v. Hutsinpiller, 112 Ohio St. 468, 147 N.E. 647. Moreover, Section 4, Article IV of the state Constitution, provides that the jurisdiction of the Court of Common Pleas shall be fixed by law. Section 486-17 a, General Code, confers jurisdiction upon Courts of Common Pleas "to determine the sufficiency of the cause of removal" on appeal, and the city had no right to alter that jurisdiction by charter or ordinance. See Kearns v. Sherrill, supra, and Hawkins v. City of Steubenville, 134 Ohio St. 468, 17 N.E.2d 641, in which neither ordinance nor city charter was involved.
Since this court holds that the right of appeal is given by Section 486-17 a, General Code, the ordinance notwithstanding, the judgments of the Court of Common Pleas and the Court of Appeals are reversed and the cause is remanded to the Court of Common Pleas with instructions to overrule the motion to dismiss the appeal and to proceed further according to law.
Judgment reversed and cause remanded.
WEYGANDT, C.J., HART, ZIMMERMAN and BETTMAN, JJ., concur.
TURNER, J., dissents.
MATTHIAS, J., not participating.