Opinion
No. 38219
Decided December 18, 1963.
Civil service — Promotional examination in municipal fire department — Validity of examination — Source material not readily available — Section 143.341, Revised Code — Failure to comply with statute voids examination — Mandamus to require another examination — Petition good against demurrer, when.
APPEAL from the Court of Appeals for Summit County.
This action originated in the Court of Appeals with the filing of a petition in March 1963 alleging that on December 5, 1962, relator and several others took a promotional examination given to establish an eligible list for promotion to captain of the Barberton Fire Department, that the passing grade as published by the Barberton Civil Service Commission is 70, that no one attained a passing grade until seniority points were added to their grades but that three others than relator were reported as passing, that two of them have been appointed and are now serving as captains and the other is on the eligibility list created by that examination, and that the examination was null and void because all the published source material was not in fact readily accessible, and the grading methods used were not lawful. The prayer is for a writ of mandamus (1) requiring the civil service commission to nullify the foregoing examination and to conduct another examination and properly grade it and (2) requiring the safety director and mayor to withdraw and revoke the foregoing two appointments to captain.
The cause is now before this court on appeal from the judgment of the Court of Appeals sustaining demurrers to and dismissing the petition.
Mr. Robert D. Moss, for appellant.
Mr. Alexander V. Naumoff and Mr. Edward C. Maher, for appellees.
In a mandamus action originating in any appellate court, the question immediately arises as to whether the relator has or had an adequate remedy in the ordinary course of the law. See State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission (1954), 162 Ohio St. 302, 310 et seq., 123 N.E.2d 23, 27 et seq. However, this court has held that it, as well as a Court of Appeals, may in its discretion allow a writ of mandamus even though the relator has or had an adequate remedy in the ordinary course of the law. State, ex rel. Wesselman, v. Board of Elections of Hamilton County (1959), 170 Ohio St. 30, 162 N.E.2d 118; State, ex rel. Grant, Exr., v. Kiefaber et al., Montgomery County Planning Comm. (1960), 171 Ohio St. 326, 170 N.E.2d 848. See State, ex rel. Tempero, v. Colopy et al., Judges (1962), 173 Ohio St. 122, 180 N.E.2d 273. In the instant case, the writ was not denied because relator has or had an adequate remedy in the ordinary course of the law. Instead, it was denied "for the reason that the attempted cause of action in mandamus cannot be maintained." Therefore, we will not consider the difficult question as to whether relator has or had an adequate remedy in the ordinary course of the law. Instead, we will, as the Court of Appeals apparently did and on the assumption that relator has or had no other adequate remedy in the ordinary course of the law, consider whether relator's petition does state a cause of action in mandamus.
Section 143.341, Revised Code, provides in part:
"The public notice of a holding of a promotional examination for a position or positions in a fire department * * * shall contain a description of the source material from which the examination questions are prepared. Such source material shall be readily accessible to the examinee. Failure to comply with this requirement shall make void the pursuant examination."
The petition alleges that the public notice of the holding of the December 5, 1962, examination did contain a description of the source material from which the examination questions would be prepared but that all that source material was not readily accessible. On the demurrers to the petition, these allegations must be taken as true. In such an instance, the statutory words specify that the "pursuant examination" will be "void." These statutory words are very clear.
Section 143.344 reads in part:
"Whenever a vacancy occurs in a promoted rank in a fire department and no eligible list for such rank exists, the appointing authority shall certify the fact to the civil service commission, and the civil service commission shall within 60 days of such vacancy conduct a competitive promotional examination."
If the examination given was void, then that section imposes a duty on the civil service commission to conduct another examination.
Section 143.341 reads in part:
"Vacancies in positions above the rank of regular fireman in a fire department shall be filled by competitive promotional examinations * * *."
If the examination was void, then there has been no compliance with this duty to fill the two vacancies for the rank of captain "by competitive promotional examinations." Thus the facts alleged in the petition are such as to support the conclusion that relator was entitled to the relief prayed for. It follows that the demurrers to the petition should not have been sustained.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.