
    B. J. GUILFORD, K. L. Hamilton, F. Ebron, R. White, E. Hayes, A. McKay, W. Carroll and K. W. Jones, Appellants, v. CITY OF MIAMI, a municipal corporation in the State of Florida, H. Stuart Morrison, Chairman of the Civil Service Board of the City of Miami, Florida, and Col. Roy Frazier Potts, Mrs. Nora Womble, James T. Hurley and T. S. Houston, Members of the Civil Service Board of the City of Miami, Florida, Appellees.
    No. 65-878.
    District Court of Appeal of Florida. Third District.
    July 26, 1966.
    Rayman & Duhig, Miami, for appellants-
    Richard B. Stone, City Atty., and Charles-K. Allen, Asst. City Atty., for appellees.
    Cowart, Dollar, Glassford & Kimbrell, Miami, for intervenors.
    Before PEARSON, CARROLL and BARKDULL, JJ.
   PER CURIAM.

The appellants, who were plaintiffs in the trial court, are policemen of the City of Miami. They brought an action for declaratory decree in the circuit court seeking a declaration that under the Civil Service Rules of the City of Miami they were entitled to permanent status at a higher rank than that in which they were classified. The chancellor entered a decree in which he held that the plaintiffs were not entitled to the higher rank and this appeal is from that decree.

The decree entered by the chancellor is as follows:

“1. The equities in this case are in favor of the Defendants, and the Plaintiffs have failed to prove the contentions made in the Complaint entitling them to the relief sought.
“2. The Plaintiffs have failed to show that they have in any way been selected -under paragraphs (a), (b), (c) or (d) of Sub-section 2 of Section 62 of the Charter of the City of Miami or Sections 16, 25, 63 or 64 of the Charter of the City of Miami, which comprise the applicable law of the case.
“3. The Plaintiffs do not come under the provisions of Rule VIII, Sec. 8, page 31 of the Civil Service Rules and Regulations of the City of Miami, Florida, since they were and are serving only in a ‘transfer in assignment’ and are not ‘incumbents of classified positions allocated to New or Higher Levels’.
(see Bloodworth vs. Suggs, [Fla.] 60 So.2d 768)
(Glendinning vs. Curry, [153 Fla. 398] 14 So.2d 794)
“4. This cause be and the same is hereby finally dismissed with prejudice to and at the costs of the Plaintiffs, and the Defendants are free to go hence without day.”

The appellants rely upon Rule VIII, Section 8, Civil Service Rules and Regulations of the City of Miami, which provides:

“Method of Qualifying Incumbents of Classified Positions Allocated to New or Higher levels:
Whenever an occupied position has been allocated to a new or different class, the incumbent thereof shall be qualified for the new class in one of the following manners :
a. If the incumbent has been performing satisfactorily at the new or higher level for a period of four (4) years or more and has held permanent status in the previous classification, he shall receive the new or higher classification with permanent status, without further examination * *

The decision in this case turns upon the chancellor’s finding that the plaintiffs had “failed to prove the contention made in the complaint 'entitling them to the relief sought.”

The basic contention of the appellants is that they are entitled to relief under section 8 of Rule VIII, supra, because they have performed the duties of a “detective”. An amendment to the rules has changed this classification from “detective” to “police sergeant”. In order to be entitled to a favorable declaration, it would be necessary for the chancellor to find from the evidence that the appellants had performed their duties for four years in the classification to which they claimed a permanent right.

The evidence before the chancellor was: (1) those facts admitted by the pleadings and the exhibits attached thereto; (2) exhibits introduced at trial; (3) stipulations; and (4) the testimony of the assistant to the executive secretary of the Civil Service Board. The facts admitted were summarized by the chancellor as follows:

“ * * * the City of Miami admits that these people are members of the Civil Service Board; and that all of the named plaintiffs were members of the Classified Service of the City of Miami and held permanent status in said classification as Policemen First Class, and that the City of Miami ordinances as set out in Paragraph 3 were valid ordinances of the city.”

In addition “transfer in assignment” slips, which show the dates of transfer, were attached to the City’s answer and were introduced into evidence. The transfer slips show that the plaintiffs, appellants, hold the position of “patrolmen first class” and that their “location of employment” has been changed from “traffic uniform” to “criminal investigation”. The defendants stipulated that each plaintiff has been assigned to the duties designated on the transfer slip. There is nothing in the record to show that the plaintiffs have performed the duties of a “detective”.

It is unnecessary for us to proceed further with the discussion of the legal points involved, inasmuch as we find that the chancellor properly determined that the plaintiffs had not made a factual case.

Affirmed.

CARROLL, Judge

(dissenting).

I respectfully dissent. In my opinion the appellants were shown to be qualified for promotion (without examination) to advancement to the classification of “detective,” or as now termed “police sergeant,” under the 1961 amendment to the civil service regulations relied on by them.

The record adequately shows that the status of the appellants was as described in their complaint for declaratory decree filed November 14, 1963, as follows:

“That the Plaintiffs herein, as referred to above, had all held permanent status as Policemen First Class and, as such, were entitled to all the emoluments of said position. That in addition thereto, the Plaintiffs have all been allocated to a new or different classification, to-wit: Detective in the City of Miami Police Department, and that the said encumbents have been performing satisfactorily at the new or higher level, to-wit: that of Detective, for a period of four (4) years or more and have held permanent status in the previous classification. That the said Plaintiffs have appeared before the Civil Service Board of the City of Miami so as to receive their higher classification with permanent status under the Rules and Regulations of the City of Miami Civil Service Board, as hereinbefore referred to, under Ordinance No. 6945; however, the City of Miami Civil Service Board refused to take cognizance of its own Rules and Regulations presently in effect and declined to make Plaintiffs’ classification permanent as provided for in the said Civil Service Rules and Regulations.”

In the trial court certain policemen acting for themselves and for all other policemen as a class were permitted to intervene. The position taken by them was that the provision of the civil service regulations, for promotions to detective class by competitive examination should be followed exclusively, and, in effect, that the city should renounce and disregard its 1961 amenda-tory ordinance. Since the status of the appellant officers brought them within the terms of the amendatory ordinance, the refusal to apply it to appellants may have been influenced by the resistance of the many others not so specially qualified. Their opposition is understandable, but should in no sense serve to negative the enacted provision relied on by the appellants- or furnish a basis to deny its provisions- and benefits to those meeting its terms.

The contention of the city that appellants are not entitled to promotion as provided for in the 1961 amendment because their assignment was from “traffic uniform” to “criminal investigation” and did not contain the word “detective” or spell out the duties of detectives is without merit, and amounts to quibbling. The duty to which the appellant policemen were assigned or “allocated” as disclosed in the record was plain clothes duty in criminal investigation under supervision of the chief of detectives. If that isn’t detective work, what is it?

The argument of the city that these policemen, after having served as detectives for more than four years, were not entitled to the benefits of the amendatory provision for promotion without examination because they were not “incumbents” of the higher level (detective) classification, but were only “allocated” to the higher classification, is fallacious. If they had become “incumbents” in the detective classification as the city contends and the chancellor held was necessary, that is, if they had become classified detectives, then they would already hold the office and not need to be promoted to it. But this argument that the appellants could not qualify under the amendment because they were not incumbents of the higher classification is without merit for another reason. A reading of the title and the first sentence of the amendatory provision (footnote No. 1) shows that the reference therein to “incumbent” is not to incumbency in the higher classification to which assigned but is to an incumbent of “an occupied position” who has been allocated to “a new or different class.” The language there refers to incumbents of one classified position being allocated to other (higher) positions. It would appear necessary to torture the wording of the amenda-tory provision to hold otherwise.

On reading the amendatory provision, including its title or heading, it seems clear that what was meant was that where an officer having permanent status as an incumbent of one classification “occupies” or •is “allocated” to a different or higher classified position, he will be qualified for promotion thereto without examination after satisfactory performance therein for a period of four years or more.

The appellants were negro police officers, classified as policemen first class. During the ten year period before the 1961 amendment was passed they were assigned or “allocated” to the higher class of plain clothes (detective) duty in criminal investigation, and served therein and "occupied” that a higher class more than four years. Certain of them took the competitive examination for promotion to detective classification when occasion permitted. None who sought promotion by such examinations was able to win over other white contestants.

In the case of Bloodworth v. Suggs, Fla.1952, 60 So.2d 768, it was held that certain patrolmen of the City of Miami who for a number of years had been assigned to plain clothes (detective) duty were not thereby entitled to promotion to the higher detective classification, except upon competitive examination as then solely provided for such promotion. In the Bloodworth case, decided in 1952, the Supreme Court pointed out that in the absence of a provision for promotion without examination for serving in a higher class for a number of years, nothing in the civil service rules prevented those officers from being reassigned to patrolmen duty; and the Court observed that the officers involved “failed to show that they have acquired any rights above and beyond those of other members of the police force,” and, therefore, for promotion to the higher classification in which they had served for some years would “have to take their chances with such other members.” Here, however, the officers seeking promotion without competitive examination have the benefit of the 1961 amendment to the civil service regulations which conferred additional rights on them as a result of their years of service in the higher level classification.

Upon adopting the amendment in 1961 the city was aware of its need for the services of negro detectives, as evidenced by its use of them in such capacity in the preceding decade; and knew from the case of Bloodworth v. Suggs, supra, that those negro patrolmen were not entitled to promotion to the higher classification, notwithstanding their years of service therein, except through competitive examination. The city further knew that those negro officers had demonstrated an incapacity to gain such promotion by the competitive examination method; and the city was in a position to conclude it would be unfair or unreasonable to have such officers, classified as patrolmen, continue to serve for an extended period of years or indefinitely in the capacity of detectives without being entitled to the benefits and rewards for performance of duties in such higher classification. On considering those circumstances under which the amendment was enacted, it is not unreasonable to assume it was done principally to serve this very situation.

In now denying to appellants the benefit of the amendment, the city has treated it as though it could operate only prospectively, although it contains no such limitation. It would be naive to assume that in enacting the amendment in 1961 the city was unaware that the appellant officers were thereby given rights which entitled them to the promotion without examination. If it had been intended that those officers thus qualified for promotion under the terms of the amendment should not benefit therefrom, it would have been simple to include a provision excluding them. The failure of the city to so limit the amendment furnishes reason to assume it was intended they should benefit thereby. This is also borne out by the fact that in its operation in the future the amendment will benefit only those officers allocated to a higher level classification who deliberately are permitted by the city to so continue for four years or more. This so because at any time before one so serves for four years he can be reassigned to the lower level permanent classification of which he is an incumbent, and then will not be entitled to promotion to the higher classification except upon competitive examination. Bloodworth v. Suggs, supra.

Refusal of the city to promote the appellant officers under the ordinance or regulation in question amounts to withholding its application from the very class of persons (if not indeed actual ones) for whose benefit it was enacted, and in my view represents a gross injustice. For the reasons stated, I would reverse the judgment appealed from, and remand the cause with directions to enter a decree holding the appellants entitled to promotion under the civil service regulation involved. 
      
      . We considered the sufficiency of the complaint in Guilford v. City of Miami, Fla.App.1964, 169 So.2d 42.
     
      
      . “Method of Qualifying Incumbents of Classified Positions Allocated to New or Higher levels: Whenever an occupied position has been allocated to a new or different class, the incumbent thereof shall be qualified for the new class in one of the following manners:
      “a. If the incumbent has been performing satisfactorily at the new or higher level for a period of four (4) years or more and has held permanent status in the i>revious classification, he shall receive the new or higher classification with permanent status, without further examination * * * ”
     