Opinion
No. 72-459
Decided April 11, 1973.
Municipal corporations — Civil service — Fire department — Ordinance creating additional captain's position — No funds appropriated — Position not filled — No "vacancy" in position — R.C. 143.342 — Mandamus — Not available to compel appointment of person on eligibility list.
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.
APPEAL from the Court of Appeals for Cuyahoga County.
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.
Relator, 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 (1943)."
The cause is before this court pursuant to an appeal as a matter of right.
Messrs. Barragate Barragate, for appellee.
Mr. Theodore S. Holtz, director of law, for appellants.
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 this position for 1970; that relator took the promotional civil service examination; that, as a result, he is number one on the eligibility list for the fourth captain's position. It is disputed whether a vacancy exists for the fourth captain's position which was duly created by city council but not funded.
For a writ of mandamus to issue, relator "must establish a clear right to the relief sought." State, ex rel. Croft, v. Janis (1970), 24 Ohio St.2d 33, 35. See, also, State, ex rel. Auto Loan Co., v. Jennings (1968), 14 Ohio St.2d 152.
To establish a clear right to the office the relator relies, first, on ordinance No. 72-1969, which reads, in pertinent part:
"(C) There shall be four (4) third class firemen known as captains of the fire department who shall each receive the sum of ten thousand seven hundred forty dollars ($10,740) per annum, payable every two weeks."
Secondly, he relies on R.C. 143.342, which provides in part:
"Where an eligible list exists and a vacancy occurs which may be filled from such eligible list, the vacancy shall be filled within a period of not more than ten days from the date of such vacancy."
Thirdly, relator cites the case of State, ex rel. Wolcott, v. Celebrezze (1943), 141 Ohio St. 627, for the proposition that vacancies must be filled by the promotion of people from a lower grade or rank.
Those enactments and that case did not establish that there was a vacancy at the time relator was first on the eligibility list. The ordinance created the position; the statute requires that "where a vacancy occurs * * * the vacancy shall be filled"; but neither ordinance nor statute answers the key question of whether a vacancy occurs.
Relator contends that:
"* * * It is the duty of the mayor and/or his safety director, under and pursuant to the city's charter, to comply with the ordinance so adopted and to fill the existing vacancy of the rank of captain thereby created and to make and submit to council such appropriations as may be necessary therefor regardless of whether or not in the judgment of the mayor the legislation adopted is `unwise.' This is clearly indicated in State, ex rel. Wolcott, v. Celebrezze * * *."
Relator's argument begs the question, for it assumes that there is a vacancy. Where a city council creates an additional position, without either appropriating money therefor or attempting to fill it, there is not necessarily a "vacancy" in the position, as that word is used in R.C. 143.342 or in the Wolcott case.
"The term `vacancy,' in relation to public office, is not subject to any technical definition or meaning." State, ex rel. Flex, v. Gwin (1969), 20 Ohio St.2d 29, 30.
In the following cases, in which the court issued a writ of mandamus to fill a vacancy in a position, there was a previous occupier of that position and there was no allegation of inadequate appropriation. State, ex rel. Wolcott, v. Celebrezze, supra ( 141 Ohio St. 627); and State, ex rel. Murphy, v. Bd. of Elections (1941), 138 Ohio St. 432.
Thus, relator has not shown that he has a clear right to the position sought. Therefore, the writ of mandamus should have been denied. We hold that 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.
Therefore, the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and P. BROWN, JJ., concur.