
    The State of Ohio ex rel. v. Wyman.
    
      “Classified list” — In section 149, Revised Statutes — Municipal code — Means register prescribed by section 164, Revised Statutes — Municipal law — Interpretation of.
    
    By the words “classified list” in section 149 of the municipal code of 1902 (96 O. L., 20), is meant the register prescribed by section 164.
    (No. 8738
    Decided November 1, 1904.)
    Quo Warranto.
    This proceeding was commenced by Hon. John M. Sheets, attorney general, filing a petition in quo tuqrranto by leave of court, to oust the defendant from the office of chief of police of the city of East Liverpool. The petition, so far as it is nécessary to state the same to a proper understanding of the points decided, is, in substance, that the appointment of the defendant to the office of chief of police was in violation of the municipal code of 1902 (96 O. L., 20). It is averred that on May 4, 1903, the date on which the act took effect, there were serving in the police department of said city eight patrolmen and that the police department prior thereto was composed of eight patrolmen and a city marshal, and that there was at that time no office of chief of police in said city, and that seven of said eight patrolmen who were serving in the police department when the act took effect had been ever since and then were serving as such patrolmen, and by virtue of the provisions of said code they then were and ever since had been in the classified list of the classified service of the police department of said city in the rank And capacity of patrolmen, and that when said code took effect the defendant was not a patrolman and was not employed in any manner in the police department of said city; that on July 20, 1903, the city council, by ordinance, determined that the police department of the city should be composed of one chief of police, seven patrolmen and one night policeman, the chief of police being first in rank and pay, the patrolmen being second in rank and pay and the night policeman being the third in rank and pay, and that the police department should be classified accordingly; that the board of public safety of said city met August 20, 1903,- and classified the said offices of the police department as provided by said ordinance, and that on September 1], 1903, said board held an examination of applicants for admission to the classified service of the police department of said city; that defendant was one of such applicants and that he passed said examination and that his name, together with the names of two other candidates, whose names were taken from the register and not from the classified list or from the classified service, were certified to the mayor, and that the defendant was by the said mayor appointed to said office of chief of police of said city. It is also averred in the petition that the defendant was ineligible to such examination and appointment because of solicitation that had been made in his behalf for appointment to such office.
    It is unnecessary to notice the issues made by the answer and reply. The case was referred to a special master to take the testimony and report his findings of fact and conclusions of law. The special master found there was no solicitation on behalf of the defendant and found the other facts, heretofore stated, as averred in the petition; and stated as his conclusions of law that the defendant was ineligible to appointment to such office? for the reason that he was not on the classified list of the police department of said city. The case was submitted upon exception to the finding of the special master with respect to the solicitation, and upon motion to confirm his report subject to this exception.
    
      Mr. J. M. Sheets; Mr. S. W. Bennett and Mr. George E. Davidson, for relator.
    Can there be any doubt what the classified service is? It is the officers provided for by council as classified by the board.of public safety in compliance with this ordinance. One occupying one of these offices should be in the classified service. A list of such offices and those serving in them would be a list of the classified service — the classified list. The chief must be appointed from one of the offices in the classified list. We have seen that Wyman never was an incumbent of an office in the classified list. He was not such incumbent by reason of having been appointed temporary chief, for the reason that the board of public safety could only classify the offices that council would provide for by ordinance, and the ordinance did not provide for the office of temporary chief.
    Not being in the police department on May 4, 1903, and not having passed an examination, the fact that he held the office of temporary chief did not and could not place him in the classified list. State v. Stroble, 25 O. C. C., 762.
    The classification made by the board of public safety was:
    1. Temporary chief, John W. Wyman.
    2. Patrolmen (here follow their names).
    3. Night watchman (vacant).
    The fact that they classified the office of temporary chief did not cause him to be on the classified list when they had no power to so classify.
    Defendant seems to endeavor to argue that the provision in section 165 that the board shall by its rules “provide in all cases-where it is practicable that vacancies shall be filled by promotion,” would have some effect in the construction of the provision in section 149 that the chief shall be appointed from the classified list; but section 149 is special, applying only to the office of chief. Section 165 is general, applying to all of the offices in the. department. If it should be construed to mean that he should be appointed from the classified list if it would be practicable, then the office of chief would be in the same position as all other offices in the départment which must be filled by promotion if practicable.
    It is claimed by the defendant that the classified list is the register mentioned in section 164. If by the register was meant.the classified list it would have been designated in the section as classified list, instead of a register; the register mentioned in section 164 is merely a register of persons who are eligible to appointment in the classified service. In order to get in the classified service they must pass an examination, and if found eligible on examina^ tion, their names are placed in the register, and the next step is to be appointed to a position in the classified list. Section 162 provides that all applicants for office or places of appointment in the classified service shall be subject to examination, and then from the result of the examination the board shall, prepare a register, etc., of those eligible. Placing these names on the register does not place them in the classified service. They must be appointed to the classified service from that.
    Section 149 providing that the chief must be appointed from the classified list is special and applies to the office of the chief of police. Section 164 is general and applies to all the offices in the department.
    If the classified list mentioned in section 149 is the same as the register mentioned in section 164, then that provision in section 149 is superfluous and of no force whatever. There was no necessity for that provision, if counsel are' right that the classified list is the register mentioned in section 164. The register applies to all offices. It would apply to the office of chief as well as to any other office, and' what then would be the necessity of providing specially that the chief should be on the register, when all offices must be on the register. As. said by the commissioner, “We have a right to presume that the provision in section 149 was adopted for a purpose and-is not meaningless. ’ ’
    
    
      If the register means the classified list then all positions in the classified service must necessarily be filled from the classified list, and then the special provision that the chief must be appointed from the classified list is nugatory, meaningless and useless.
    The object of the law was that the office of chief of police should be filled from those who had seen service, and in order to have the experience they must have been before appointment as chief on the classified list and in the classified, service. With the conditions that might arise from enforcing section 149 by appointing the chief only from the classified list the courts have frothing to do. Its duty is to enforce the law as it is. No such conditions have arisen in this case, and it is not likely ever to arise, because at the time the law was adopted there were patrolmen serving in all the cities, and it was the object of the law to promote one of those to the office of chief, and there would be no difficulty anywhere in promoting one of them to the office of chief. The plan of the code relating to the police department is promotion by merit. If the question of promotion should be left to the discretion of a political board, favorites of the board would be placed in the high office of chief, whether they had been in the service before or not.
    It would be very easy for them to exercise their discretion by saying that it was not practicable to promote one of the under officers .to fill the vacancy, and to avoid this evasion of the merit system, it was positively enacted in the code by section 149. that they must fill the office of chief when there is a vacancy by promoting some one from the lower rank.
    For the reason that Mr. Wyman was not on the classified list, he was ineligible to appointment and should be ousted out, and it is immaterial whether the other grounds stated in the petition are well taken or not. The commissioner found as a fact that he was not on the classified list. The facts stated in the petition and admitted in the answer show that he was not on the classified list.
    The commissioner found as a fact that it was practicable to promote one of the patrolmen to the office of chief of police; that the board of public safety never as a board found or decided that it was not practicable to promote from the lower rank to the office of chief, and that their action in certifying Mr. Wyman for appointment was an abuse of their powers, and that in not appointing one of the patrolmen chief of police they violated the merit system. It makes no difference whether it was practicable to promote the patrolmen to the office of chief or not, for Mr. Wyman was not on the classified list and for that reason he was clearly ineligible, even though it was not practicable to promote the patrolmen to the office of chief of police.
    
      Messrs. Brookes & Thompson and Messrs. Billingsley, Clark £ DeFord, for defendant, presented no brief, but Mr. Billingsley argued orally in behalf of defendant.
   Summers, J.

It is provided, by section 151 of the municipal code of 1902, that the police and fire departments in every city shall be maintained upon the merit system, as provided in this act; and by section 149 it is provided that the police department of each city shall be composed of a chief of police and such inspectors, captains, lieutenants, sergeants, corporals, detectives, patrolmen, and other police court officers, station house keepers, drivers, and substitutes as shall have been provided by ordinance or .resolution of council, and that the chief of police shall be appointed from the classified list of such department. Section 153 provides that the directors of public safety shall classify the service in the police and fire departments in conformity with the ordinance of council determining the number of persons to be employed therein, and shall make all rules for the regulation and discipline of such departments and for the qualification and examination of all appointees thereunder; and section 156 provides that, the board of public safety shall enforce and administer the merit system as provided in this act. Section 158 provides that the board of public safety shall within thirty days after the organization of such board, classify all offices and places of appointment and employment in each city in the department of public safety, with reference to the examinations hereinafter provided for. The offices, employment and places so classified by the said board of public safety shall constitute. the classified service of the department of said city, and no ■ appointments to such places shall be made except under and according to the rules hereinafter mentioned. Immediately upon the classification of such department, such board shall furnish'to the mayor a list of all offices, employment and places in any way connected with such department within said classified service, with the names of the incumbents, their compensation and the nature of their duties; and said board shall from time to time promptly furnish to the said mayor in writing at Ms request all other information desired' hy him for the proper fulfillment of his duties. Section 162 provides for the examination of all applicants for offices or places of employment in such classified service; and section 164 is as- follows: “From the results of the examinations made-by said board, said board shall prepare, a register, for each grade or class of positions in the classified service of such city, of the names of the persons whose general average standing upon such examination for such grade is not less than the minimum fixed by the-rules of said board and where otherwise eligible; and such persons shall take rank upon the register as candidates, in the order of their relative, examinations, as determined by examination, without reference to priority of the time of examination.” Section 165 provides that the board shall, by its rules,, provide for promotions in the classified service, on the basis of ascertained merit, and seniority in service, and on examination, and shall provide in all cases where it is practicable, that vacancies shall be-filled by promotion. Section 166 provides that the mayor shall notify said board of any vacancy which may exist in the classified department of such city,, and said board shall certify to said mayor the names and addresses of the three candidates standing highest upon the register, for the class or grade to which said position belongs. The mayor shall notify said commission of each position to be filled, separately, and the mayor shall fill such place by appointment, of one of the persons certified to him by said board;, and section 167 provides that no officer, secretary,, clerk, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city of the state at the' time this act goes into -effect shall be removed or reduced iu rank or pay except, in accordance with the provisions of this act. .

It seems to have been the purpose of the legislature in the enactment of the code, so far as possible, to provide that officers and employes in the police and fire departments, in office when the new code went into effect, should not be disturbed in their office or employment, and that thereafter these departments should be under the so-called merit system, and that appointments thereto could be made only in the manner provided by the code. But it was not the intention of the legislature that appointments to any vacancies that might exist in any of the offices or employments in the classified service could be made only from the list of incumbents of offices and employments in the classified service. It is not difficult to understand why the legislature, in adopting the merit system, should provide that those already in office might remain without examination, but it does not appear why it also should be provided that a vacancy in the highest office could be filled only from their number. These provisions of the new code are taken, in substance, from the so-called Pugh-Kibler code, a code that was prepared by a •commission appointed by the governor under authority from the general assembly, but which code was not adopted, and it is apparent from the provisions of that code that the merit system commissioners therein provided for were required to prepare from the returns or reports of the examiners, or from the examinations, made by the commission, a register for each grade or class of positions in the classified service of each city, and in case of a vacancy in any office or employment in the classified service the commission was to certify to the appointing officer the name of the candidate standing highest upon the register for the class or grade to which the position belonged and the appointing officer was required to fill the place by the appointment of the person so •certified. The code provision is substantially the same, it is that the names of the three candidates •standing highest upon the register are to be certified and the mayor is required to fill the place by appointment of one of the three. The only ground for the •contention that the appointment must be made from the persons already in office is the provision in section 158, that immediately upon the classification of such department, such board shall furnish to . the mayor a list of all offices, employment and places in any way connected with such department within said classified service, with the names of the incumbents, their •compensation and the nature of their duties, and the provision in section 149, that the chief of police shall be appointed from the classified list of such department. This provision does not support the contention. The provision of section 158 is not that the names of the incumbents shall comprise a classified list, but that the board shall furnish the mayor a list of the offices and employments within the classified service, and then in order that the persons in office or •employment in these departments at the time the new code went into effect may not be disturbed, it is further provided that the board shall accompany the list with the names of the incumbents; and the reason for the provision in section 149, that the chief •of police shall be appointed from the classified list •of such department, is that there may not be any doubt of the legislative intent that that office also «hall be under the merit system, and that appointees thereto, other than those in office at the time the code takes effect, shall be required to be selected by examination. That section provides that the police department shall be composed of a chief of police and such other officers as may be provided by ordinance of council, and it well might be contended that it was not necessary for council to provide by ordinance for. the office of chief of police, that such office was provided for by the statute itself, and that, therefore, that office would not necessarily come under the merit system. It is evident that the classified list referred to in section 149 is the register provided for by section 164. This conclusion finds support also in the wording of sections 148 and 150. Those sections provide that in case of riot, or other like emergency, the mayor shall have power to appoint, for temporary service, in the police and fire departments, respectively, additional patrolmen and firemen, who need not be in the classified list of such department. The. classified list evidently being the registry of those who had taken the examination, for it would be' absurd to provide that in an emergency the mayor should not be restricted in his appointments to those already in service.

The petition is dismissed.

Spear, C. J., Davis, Shapck, Price and Crew, Jj., concur.  