
    The State, ex rel. Wynne et al., Appellants, v. Urban et al., Appellees.
    
      (No. 7564
    Decided March 3, 1952.)
    
      Mr. G. JR. Beirne, for appellants.
    
      Mr. Henry M. Bruestle, city solicitor, and Mr. James W. Farrell, Jr., for appellees.
   Ross, J.

The Court of Common Pleas refused a writ of mandamus. This is an appeal upon questions of law from the judgment entered to such effect.

The purpose of the action was to compel the Civil Service Commission of the City of Cincinnati to permit certain lieutenants in the fire department of such city, having less than two years service as lieutenants, to take an examination for the position of captain in such fire department.

The respondents, members of such commission, defend their position upon the ground that the commission announced a rule applying to such special examination, requiring such prior service, and that it had authority in law to take such action.

This position is vigorously assailed by the relators, who assert that although the commission may have power to establish measures applicable to procedure in the taking of such examinations, it has no right to usurp the function of the General Assembly and enact legislation appropriate only to the power of that body, and in conflict with rules adopted by the Legislature applicable to promotion of lieutenants in the fire departments of municipalities. The provisions of Section 486-15a, General Code, upon which appellants rely, are:

“No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in positions above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. Promotion shall be by successive grades or ranks so far as practicable and no person in a police or fire department shall be promoted to a position in a higher grade or rank who has not served at least twelve months in the next lower grade or rank.”

The law governing the operation of both the state and municipal civil service commissions is found in Section 486-1 et seq., General Code. An examination of those sections discloses special legislation applicable to the promotion of persons employed in municipal police and fire departments.

In Section 486-15, General Code, it is provided:

“Vacancies in positions in the classified service shall be filled in so far as practicable by promotions. The commission shall provide in its rules for keeping a record of efficiency for each employee in the classified service, and for making promotions in the classified service on the basis of merit, to be ascertained as far as practicable by promotional examinations, by conduct and capacity in office, and by seniority in service ; and shall provide that vacancies shall be filled by promotion in all cases where, in the judgment of the commission, it shall be for the best interest of the service so to fill such vacancies. All examinations for promotions shall be competitive. In promotional examinations efficiency and seniority in service shall form a part of the maximum mark attainable in such examination. In all cases where vacancies are to be filled by promotion, the commission shall certify to the appointing authority only the name of the person having the highest rating. The method of examination for promotions, the manner of giving notice thereof, and the rules governing the same shall be in general the same as those provided for original examinations, except as otherwise provided herein.”

In Section 486-10, General Code, it is provided:

“All applicants for positions and places in the classified service shall be subject to examination which shall be public, and open to all, within certain limitations to be determined by the commission, as to citizenship, residence, age, sex,' experience, health, habit and moral character * * V’

It is apparent that the Legislature considered some service in the lower grade necessary as a requirement-precedent to promotion. It is to be noted, however, that such requirement is applicable to promotions and not permission to take an examination. Has the Legislature pre-empted the legislative area applicable to the matter here involved? No lieutenant can be promoted under the state law until one year service as such elapsed before promotion, but there is nothing in the state law forbidding an examination of such lieutenant at any time. On the other hand, it is obvious that under the municipal rule if a lieutenant can not take an examination until two years service has elapsed, he certainly cannot be promoted until after such two years service. The municipal rulé goes much further than the state law, although it is stated that its application has been waived where the two years prior service lacks only a short time of completion. Still, it is obvious that some injustice and even discrimination could occur in view of the fact that the lists of successful applicants having been made up, some considerable periods elapse before other examinations may be held.

In Section 486-19, General Code, it is provided:

‘ ‘ Said municipal commission shall have and exercise all other powers and perform all other duties with respect to the civil service of such city, city school district and city health district, as herein prescribed and conferred upon the state civil service commission with respect to the civil service of the state; and all authority granted to the state commission with respect to the service under its jurisdiction shall, except as otherwise provided in this act, be held to grant the same authority to the municipal commission with respect, to the service under its jurisdiction.”

It seems obvious then that, unless the provisions of Section 486-15a, General Code, are in conflict with the local rule of the Civil Service Commission of the City of Cincinnati, such commission had full power to establish the rule in question.

Great reliance is placed upon the case of Neil House Hotel Co. v. City of Columbus, 144 Ohio St., 248, 58 N. E. (2d), 665. The effect of the rule laid down in that case is found in the statement of Zimmerman, Judge, at page 252:

“From a perusal of the pertinent statutes and regulation No. 30, it is difficult to escape the conclusion that plaintiff, under state authorization, may lawfully sell beer and intoxicants to its customers after the hour of midnight and that a municipal ordinance fixing midnight as the time when the sale of such beverages must cease, is invalid. See Village of Struthers v. Sokol, 108 Ohio St., 263, 140 N. E., 519. See, also, Noey v. City of Saginaw, 271 Mich., 595, 261 N. W., 88.

“When the statutes and a valid regulation of the Board of Liquor Control say that the sale of intoxicants may not be made after a designated hour, it is equivalent to saying that sales up to that time are lawful, and an ordinance which attempts to restrict sales beyond an earlier hour is in conflict therewith and must yield. Schneiderman, an Infant, v. Sesanstein, 121 Ohio St., 80, 86, 167 N. E., 158, 160, 64 A. L. R., 981.

“In principle at least this case is controlled by the decision in City of Akron v. Scalera, 135 Ohio St., 65, 19 N. E. (2d), 279, the implications of which are that if a municipal ordinance of the type here involved is in collision with, a general law upon the same subject, the ordinance is ineffective.”

It must be admitted that upon a casual reading of this case and the provisions of Section 486-15a, General Code, that a seeming analogy exists, but upon cióse scrutiny a vital difference appears between the situation presented in the Neil House Hotel Co. case and that now considered by this court. If nothing else were present the use of the words, ‘ ‘ at least, ’ ’ in Section 486-15&, General Code, would, in the opinion of the court, be sufficient to distinguish the two situations. In the rule considered in the Neil House Hotel Co. case a specific time was fixed after which beer and intoxicating liquors could not be sold, that is, after 2:30 a. m. and before 5:30 a. m. The Columbus ordinance sought to cut down the implied privilege of sale up to 2:30 a. m., and thus increase the period of nonsale.

In the situation here presented, the state merely requires at least one year (twelve months) service— and impliedly leaves it open to either state or municipal commissions to provide by rule for a longer period. Had the state regulation provided that ‘ ‘ at least ’ ’ a period of nonsale should exist between 2:30 a. m. and 5:30 a. m. it may be seriously doubted whether the pronouncement in the Neil House Hotel Co. case would have been the same as under the facts therein stated.

Courts are always reluctant to pronounce a conflict in legislative action and will not do so unless clear evidence of conflict exists. 28 Ohio Jurisprudence, 442, “Municipal Corporations,” Section 277.

It must be concluded that the Civil Service Commission of the City of Cincinnati was completely within its jurisdiction in establishing the rule here in question, there being no conflict with state authority clearly apparent in its rule. Although it might be better to have a permanent rule applicable to examinations, the fact that the rule here considered is promulgated at the time of each examination does not seem of sufficient importance to warrant this court in holding such rule invalid, especially as the record shows that in all respects the commission has complied with the provisions of Section 486-9, General Code, in which it is provided, in part:

“Due notice of the contents of such rules and of all changes therein shall be given to appointing officers affected thereby, and such rules shall also be printed for public distribution: provided, however, that until such rules are adopted and in force, the rules existing when this law takes effect shall continue in force. ’ ’

Therefore, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus, opinion and judgment.  