Opinion
No. 30682
Decided June 26, 1946.
Civil service — Eligible list terminated in two years — Section 486-12, General Code — Promotion from municipal fireman to lieutenant in fire department, not ordered — Mandamus — Relator's name not certified by civil service commission for appointment — Facts and conditions considered as of time writ to be issued — Writ refused where relief ineffective.
IN MANDAMUS.
Relator invokes the original jurisdiction of this court in mandamus and seeks a writ compelling the director of public safety of the city of Cleveland to promote him from the position of fireman, which he now holds, to the position of lieutenant in the fire force of the city of Cleveland, and to pay him the salary of a lieutenant from the time he claims such promotion should have been made.
The respondent, Frank D. Celebrezze, is the duly appointed, qualified and acting Director of the Department of Public Safety of the City of Cleveland. The petition alleges that on September 1, 1942, there were elevated to the rank of lieutenant in the fire force twelve persons who had theretofore held positions of fire alarm signal system operators and fire alarm signal system linemen; that those positions were inferior to the rank of lieutenant; that the salaries prior to such promotions were less than those paid to lieutenants; that none of the twelve persons ever took and passed a competitive promotional examination for the rank of lieutenant; and that they were ineligible for such appointment.
Relator says that on January 21, 1943, and May 10, 1944, a competitive promotional examination for the position of lieutenant was held, as required by law; that he took and successfully passed the examination; that when the eligible list was published he ranked sixty-ninth on the list; that he ranked twelfth on the list on September 1, 1945, and at the present time ranks tenth; and that he is entitled to be promoted to the rank of lieutenant immediately and to have the increased pay of a lieutenant retroactive to the date when by law he should have been appointed to the rank of lieutenant.
The respondent filed an answer wherein he admits some of the averments of the petition, denies others and then avers, among other things, that the eligible list, published June 5, 1944, will expire June 5, 1946. Respondent alleges further that the relator has never been certified to him by the Civil Service Commission for appointment to any vacancy in the rank of lieutenant.
The issue presented was made by a demurrer of the relator to respondent's answer.
Mr. Saul S. Biskind and Mr. Morton M. Stotter, for relator.
Mr. Lee C. Howley director of law, and Mr. Charles W. White, for respondent.
The single question presented is whether the answer constitutes a valid defense. The demurrer admits all the allegations in the answer, which are well pleaded, and, therefore, concedes that the eligible list, from which the appointment which relator seeks must be made if the writ of mandamus is granted, expires June 5, 1946.
Section 486-12, General Code, provides as follows:
"Eligible List. From the returns of the examinations the commission shall prepare an eligible list of the persons whose general average standing upon examinations for such grade or class is not less than the minimum fixed by the rules of the commission and who are otherwise eligible; and such persons shall take rank upon the eligible list as candidates in the order of their relative excellence as determined by the examination without reference to priority of time of examination. In the event of two or more applicants receiving the same mark in an examination, priority in the time of application shall determine the order in which their names shall be placed on the eligible list. The term of eligibility of each list shall be fixed by the commission at not less than one year nor more than two years. When an eligible list is reduced to three names or less a new list shall be prepared."
By force of this statutory provision, the eligible list from which appointments could be made terminated after two years and the Civil Service Commission of the city would not have been authorized to certify names from that list after June 5, 1946. Admittedly the relator has never been certified to the respondent by the Civil Service Commission, and it is only upon such certification that appointment is authorized to be made.
It is well settled by the numerous decisions of this court that in exercising the extraordinary power of mandamus a court should take into consideration the facts and conditions existing at the time it determines whether to issue a peremptory writ; if it should affirmatively appear that no wrong could possibly be remedied or no right could possibly be enforced or promoted, the writ will be refused. State, ex rel. Stoer, v. Raschig Dir., 141 Ohio St. 477, 49 N.E.2d 56, and cases therein cited.
The demurrer to the answer is overruled and the writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.