For the reasons given hereafter, I am compelled to disagree with the opinion and judgment of my esteemed colleagues in this case. There is some repetition herein of parts of the majority opinion but such is deemed necessary for continuity.
We have before us an original action in this court in mandamus. The relators are members of the Cleveland Police Department and as such, after having taken competitive civil service examinations for promotion, are now on the eligible *Page 104 lists for promotion within the classified services. Three of the relators are on the list for promotion to lieutenant and two for the rank of sergeant.
The respondents are the Mayor of Cleveland, the Director of Public Safety, and the three members of the Cleveland Civil Service Commission. It is stipulated that the director is the appointing authority for all officers in the Police Department and that the Civil Service Commission certifies the names of persons then appearing on the eligible list for promotion.
Relators Hanton, Duff, Lennert and Lauerhauss head the civil service list as of February 18, 1965, in that order for promotion to lieutenant. Pope and Viancourt head the promotional list for sergeant.
Section 1.350201 of the Codified Ordinances of the City of Cleveland provides as follows:
"There is hereby established a Traffic Control Unit within the Division of Police to be headed by a member of the Division of Police appointed as such head and designated Commissioner of Traffic Control, who shall receive compensation at the rate fixed for the rank of Deputy Inspector.
"In addition to the Commissioner of Traffic Control the Traffic Control Unit shall consist of such members of the police force as may be assigned to said unit."
The position of Commissioner of Traffic Control is provided for in the Table of Organization in the Division of Police as established by Section 1.3502 of Cleveland Ordinance No. 1960-63. This ordinance reads:
"Section 1.3502, Division of Police.
"There shall be and there is hereby established a Division of Police in the Department of Public Safety to be administered and controlled by a Chief of Police subject to the provisions of the Charter and ordinances of the City of Cleveland and to the direction of the Director of Public Safety.
"The Division of Police shall comprise the police force of the City of Cleveland and shall consist of the following ranks of such number of persons in each rank, who shall be appointed by the Director of Public Safety, unless otherwise provided by Charter, and who shall receive the annual compensation fixed by the Director of Public Safety, within the schedule of compensation hereby established for each rank: *Page 105
"Minimum Maximum "1 Chief of Police $14,364.00 $15,720.00 4 Inspectors 12,000.00 12,534.00 11 Deputy Inspectors 10,380.00 10,878.00 1 Commissioner of Traffic Control 10,380.00 10,878.00 24 Captains, one of whom shall be a woman 9,516.00 9,978.00 68 Lieutenants, one of whom shall be a woman 8,016.00 8,448.00 130 Sergeants, 3 of whom shall be women 7,278.00 7,674.00 2500 Patrolmen, 50 of whom shall be women First Year 5,574.00 5,574.00 Second Year 6,096.00 6,096.00 For all subsequent years 6,600.00 6,960.00
"No person holding any of the above ranks in the Department of Public Safety shall perform any work which is of the same nature as or included within the duties of other classified employees of the city except as is immediately necessary to the performance of the duties of such rank and as is necessarily incident thereto.
"* * *."
Clearly, this ordinance establishes the table of organization of the Division of Police including the rank of one Commissioner of Traffic Control, the rank of sixty-eight lieutenants, and the rank of one hundred and thirty sergeants.
It is the contention of relators that by reason of having successfully taken competitive examinations given by the civil service commission and being placed in their respective positions on the eligible lists for certification for promotion to lieutenant and sergeant, which list expired on February 18, 1965, one of them on the list for lieutenant is entitled to promotion by reason of a vacancy in that rank caused by the appointment of Lieutenant Sam Skerotes as head of the Traffic Control Unit and his designation as Commissioner of Traffic Control on October 5, 1962.
Lieutenant Skerotes was appointed head of the Traffic *Page 106 Control Unit and designated as Commissioner of Traffic Control under favor of Ordinance No. 1896-58, Section 1.350201 of the Codified Ordinances of the City of Cleveland, supra.
On being appointed head of the Traffic Control Unit and designated as Commissioner of Traffic Control, Lieutenant Skerotes was advanced in rank according to the ranks established by Section 1.3502, supra, and his salary was increased from the pay of a lieutenant to the salary band of a deputy inspector under the same ordinance. This salary increase was beyond the limits fixed for the grade of lieutenant.
The Charter of the City of Cleveland, Chapter 27, Section 133, provides:
"Whenever practicable, vacancies shall be filled by promotion. Any advancement in rank or increase in salary beyondthe limits fixed for the grade shall constitute a promotion. Lists shall be created and promotions made therefrom of candidates in the same manner as original appointments; provided, however, that less than three shall constitute an eligible list, and the appointing authority shall appoint from the eligible list. (Effective November 8, 1938.)" (Emphasis added.)
Here we have a positive rule set out in the charter to the effect that any advancement in rank or increase in salary beyond the limits fixed for the grade shall constitute a promotion. As a general rule, an essential requisite of a valid municipal ordinance is that the provisions thereof shall not conflict with a positive provision of the municipal charter. No ordinance can conflict with a city charter provision and be effective. SeeReed v. City of Youngstown, 173 Ohio St. 265.
The first ordinance in question here, Section 1.350201, purporting to authorize the appointing and designating of a Commissioner of Traffic Control to receive the pay of a deputy inspector, without considering such appointment and designation a promotion, is patently in conflict with Section 123, Chapter 27, of the Charter of the City of Cleveland. The ordinance cannot and does not supersede the charter provision.
The language employed in this section of the Charter is clear. Its provisions do not need any interpretation. It is distinguished by its simplicity. It is not susceptible of any other meaning than that an advancement in rank or an increase in salary above that of the grade in which the individual is classified *Page 107 constitutes a promotion. The charter provision speaks for itself, and the legislative effort did not change it. Being in conflict with the Charter, it is ineffective as far as considering such appointment and designation of Lieutenant Skerotes as Commissioner of Traffic Control to be anything other than a promotion.
It should be further noted that under the Cleveland Charter, Chapter 27, Section 126, the civil service of the city is divided into the classified and unclassified service and the only member of the Division of Police included in the unclassified service is the Chief of Police. This section further provides that the classified service shall comprise all positions not specifically included by the Charter in the unclassified service.
The classified service, by the same section, is divided into three classes known as the competitive class, the noncompetitive class and the ordinary unskilled labor class. The noncompetitive class includes all positions requiring peculiar and exceptional qualifications of a scientific, managerial, professional or educational character as may be determined by the commission, the fitness of applicants for which may be determined by noncompetitive tests. The position of Commissioner of Traffic Control is not at the present time and cannot conceivably be considered as coming within this noncompetitive class. This point was not urged by either side in the case, but in the exercise of an abundance of circumspection it is felt that it should be covered in this opinion.
It is worthy of note also that Section 10, Article XV of the Ohio Constitution reads:
"Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision."
The second ordinance, Section 13502, No. 1930-63, provides for one Commissioner of Traffic Control, sixty-eight lieutenants, and one hundred thirty sergeants. When Lieutenant Skerotes was appointed and designated Commissioner of Traffic Control, he was promoted under the terms of the Charter of the City of Cleveland and necessarily a vacancy occurred in the rank of lieutenant. He cannot hold the ranks *Page 108 of lieutenant and Commissioner of Traffic Control at the same time. In ancient Greek mythology there was a prophetic sea deity in the service of Poseidon (Neptune) who, when seized, could assume different shapes or forms so as to avoid being identified and being required to prophesy. Such tales were entertaining to the populace and fine tributes to the imaginations of the mythmakers but beyond reality. The chief contribution in this myth was the gift of a new word to the lexicographers. That word was "protean" as describing the characteristic of readily assuming different shapes or forms. Lieutenant Skerotes cannot be described as protean in our instant situation because, whether above the bar of a lieutenant or above the insigne of the Commissioner of Traffic Control, the visage is that of Skerotes. And we are dealing with stern reality in connection with the integrity of civil service laws as they apply to that most important arm of the government, the division of police. One of the relators on the civil service list for promotion to the grade of lieutenant is entitled to be appointed to that vacancy.
Mention is not made in the briefs of petitioners or respondents of the applicability to our instant case of Section143.361, Revised Code. Nor was this statute alluded to in oral argument. It provides:
"In any city with a population of seven hundred thousand or more as shown by the last federal census, which by action of the legislative authority establishes within the police department a unit assigned to the control of traffic, a member of the police department of said city who is appointed the head of such unit by whatever title designated, shall not be subject to competitive examination, notwithstanding Section 143.34 of the Revised Code. The status within the uniform ranks of such member while serving as the head of such traffic unit shall remain unchanged and notwithstanding the compensation fixed for such position, he shall not acquire any right to promotion other than such rights to promotion which apply to the rank held at the time of appointment as head of such traffic control unit."
This section became effective on September 4, 1957, the same month Cleveland City Ordinance No. 1.350201, given above, became effective. *Page 109
In disposing of the problem before us, we must consider what effect, if any, this statute has on our factual situation in view of the provisions of the City of Cleveland Charter, Chapter 27, Section 123. Does the Charter control the manner of promotion in the police force of a city as representing the exercise of a power of local self-government within the meaning of those words as used in Sections 3 and 7 of Article XVIII of the Ohio Constitution? Or is a state statute (Section 143.361, Revised Code), which specifically conflicts with the provision of the Charter as to the effect of an increase in salary beyond the limits fixed for the grade held on the appointment of a member of the police department to the position of head of the traffic control unit therein, the controlling law applicable thereto?
The Supreme Court of Ohio has spoken on the basic question involved in the case of State, ex rel. Canada, v. Phillips, Dir.,168 Ohio St. 191. It was contended there that the promotion of officers in the police force of a city represents the exercise of a power of local self-government within the meaning of those words as used in Sections 3 and 7 of Article XVIII of the Ohio Constitution and that therefore the provisions of a section of the City of Columbus Charter could be applied notwithstanding their conflict with Section 143.34, Revised Code. The Supreme Court upheld this contention of respondents in that case and stated in paragraph seven of the syllabus:
"Where a municipality establishes and operates a police department, it may do so as an exercise of the powers of local self-government conferred upon it by Sections 3 and 7 of Article XVIII of the Constitution; and, if it does, the mere interest or concern of the state, which may justify the state in providing similar police protection, will not justify the state's interference with such exercise by a municipality of its powers of local self-government."
It is clear to this member of the court that the organization and regulation of its police force are within a municipality's powers of local self-government under the Ohio Constitution and case law, and Section 143.361, Revised Code, is applicable only where a city has failed to enact charter or legislative provisions on the subject covered by the statute. Such a law may not restrict the exercise by such cities of their powers of local self-government where the city has adopted charter provisions *Page 110 or municipal legislation on the subject. If there is a conflict on the subject between the charter provision and the statute, the charter controls.
A writ of mandamus, in my opinion, should issue directing the respondents, Ralph S. Locher and John W. McCormick, to fill the existing vacancy in the rank of lieutenant and any other vacancies thereby created in the Cleveland Police Department from the names certified to them from the existing eligible list by the Cleveland Civil Service Commission.