Opinion
No. 29575
Decided July 21, 1943.
Civil service — Fire protection matters under control of state sovereignty — Municipal fire department members protected by state civil service laws — Tenure of officer and employee during good behavior and efficient service, when — Section 486-17a, General Code — Municipal ordinance requiring compulsory retirement at age of 65 years, invalid.
1. Matters relating to fire protection are of state-wide concern and are under the control of state sovereignty. ( City of Cincinnati v. Gamble et al., Trustees, 138 Ohio St. 220, approved and followed.)
2. Members of a municipal fire department in the classified civil service are entitled to the full protection and benefit of the state civil service laws.
3. The General Assembly having provided by Section 486-17 a, General Code, that the tenure of office of every officer and employee in the classified service of the state, counties, cities and city school districts shall be during good behavior and efficient service, a municipal ordinance requiring retirement of persons in such classified service at the age of sixty-five years is invalid and unenforceable.
IN MANDAMUS.
This cause originated in this court. The relator seeks a writ of mandamus to compel respondents to restore him to his position as deputy chief in the division of fire.
The cause was submitted upon the petition and a general demurrer, the sole ground of the demurrer being that "the petition does not state facts which show a cause of action."
Both parties have agreed that the case be finally disposed of on the demurrer.
The substantial facts are briefly:
The respondent, city of Toledo, was and is a municipal corporation under the law of Ohio; in 1914, the city adopted a charter providing for a city manager form of government and, since that time, has been operating in accordance with the provisions thereof; under the charter an elected council is the legislative body; a city manager duly appointed by council is the chief executive and administrative officer; a director of public safety appointed by the city manager is the executive head of the division of fire; a chief of the division of fire is in immediate control of the officers and firemen under rules and regulations promulgated by the director of public safety; and the respondents, George N. Schoonmaker, Edward A. DeAngelo and Fred T. Schlorf, respectively, are city manager, director of public safety and chief of the division of fire of the respondent city, each having occupied his official position at all times during the year 1943 and for some time prior thereto.
Relator, Patrick J. Daly, on May 15, 1909, was appointed a regular fireman in the classified service of the respondent city by virtue of having taken and passed a regular competitive civil service examination; from time to time during his continuous service he has been promoted and about November 16, 1938, he was promoted to the office of deputy chief; and his original appointment and all promotions were permanent appointments.
Relator, from November 16, 1938, to May 9, 1943, remained uninterruptedly in good standing in the classified service in the capacity of deputy chief of the division of fire.
In 1935 counsel of respondent city passed an ordinance No. 10236; which ordinance was amended in 1936 find now reads as follows:
"Be it ordained by the council of the city of Toledo:
"Sec. 1. No member of the police or fire divisions of the city of Toledo shall remain in the service of the city of Toledo in such divisions after he or she shall have attained the age of sixty-five (65) years.
"Sec. 2. As the term 'fire division' is used in this ordinance, it shall include any and all bureaus or sub-divisions appertaining to the division of fire; and the term 'police division' shall be deemed to include any and all bureaus and subdivisions appertaining to the division of police. For the purpose of this ordinance a detective, either detailed or regular, shall be deemed to have the rank of patrolman.
"Sec. 3. Any individual employee of the city of Toledo in any of the aforementioned divisions shall, upon attaining the age mentioned in Section 1 hereof, be honorably retired by the director of public safety with the right to pension as is provided by the rules of the boards of trustees of the police and fire pension funds.
"Sec. 4. When such individual shall have attained the age specified above, the active connection of such individual with the police or fire divisions, as the case may be, shall be completely terminated.
"Sec. 5. That this ordinance shall take effect and be in force from and after the earliest period allowed by law."
On or about April 15, 1943, relator received the following letter:
"April 15, 1943. "Mr. Patrick J. Daly, "Deputy Fire Chief, "3853 Leybourne Avenue, "Toledo, Ohio. "Dear Chief Daly:
"The records of our fire division show that you will attain your sixty-fifth birthday on May 9, 1943. In accordance with the provisions of Ordinance No. 10236, you are hereby notified that you will be retired from duty effective that date.
"The trustees of the firemen's pension fund are being advised of this notice so that they may provide for the pension to which you will be entitled.
"You have served the fire department faithfully and well and may well be proud of your fine record of service.
"Yours very truly, "Edw. A. DeAngelo, "Director of Public Safety."
Relator reported for active duty on May 9 and 10, and was refused permission to perform active duty; and on May 11, 1943, filed the instant case claiming that ordinance No. 10236 is null and void.
Mr. Cornell Schreiber, for relator.
Mr. Martin S. Dodd, director of law, and Mr. Jas. Slater Gibson, for respondents.
The ordinance here in question provides compulsory retirement of members of the police and fire divisions at the age of 65 years. The sole question for determination is the validity of the ordinance.
We are not concerned with any question of policy; whether this ordinance is wise or unwise is not for us to say. If the respondent city possessed the power to enact this ordinance, it is valid.
It is vigorously asserted by relator that the respondent city was without power to legislate upon the subject of retirement, it being his claim that the General Assembly had fixed his tenure of office and that the ordinance is in conflict with general law. By respondents it is asserted with equal vigor that the city had the lawful right to pass the ordinance and that it is a valid enactment.
Section 3, Article XVIII of the Constitution of Ohio reads as follows:
"Section 3. Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." (Italics ours.)
Section 7 of the same article grants the power to municipalities to frame and adopt a charter.
A charter may be adopted by any municipality to prescribe its form of government and such charter becomes the organic law of the municipality insofar as purely local matters are concerned; the state however remains supreme in all matters not purely local. Billings v. Cleveland Ry. Co., 92 Ohio St. 478, 111 N.E. 155; State, ex rel. Giovanello, v. Village of Lowellville, 139 Ohio St. 219, 39 N.E.2d 527.
A municipality, by the adoption of a charter, has no greater or different power than other municipalities. Whether respondent city was or was not a charter city is of no special importance in the consideration of this case.
The next step in the solution of our problem is whether fire protection is a matter of purely local concern. This is no longer an open question in Ohio. Two pronouncements of this court will suffice to demonstrate the established law of this state upon that subject.
In State, ex rel. Strain, Dir., v. Houston, Chief, 138 Ohio St. 203, 34 N.E.2d 219, this court held:
"Fire protection is a matter of concern to the people of the state generally, * * *."
In City of Cincinnati v. Gamble et al., Trustees, 138 Ohio St. 220, 34 N.E.2d 226, paragraph four of the syllabus reads as follows:
"In general, matters relating to police and fire protection are of state-wide concern and under the control of state sovereignty."
By virtue of the grant of power contained in Section 3, Article XVIII of the Constitution, although fire protection is of state-wide concern, the respondent city had the power to enact the ordinance here in question unless it be in conflict with general law.
The legal effect of this ordinance is to limit the tenure of office of members of the fire department, and to make retirement compulsory when any member has reached the age of sixty-five years.
Section 10, Article XV of the Constitution provides:
"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."
Pursuant to this provision the General Assembly passed a state civil service code (Sections 486-1 to 486-31, both inclusive, General Code).
It is conceded that relator was in the classified service and is entitled to the protection of the civil service code.
That the General Assembly has the power to fix the tenure of office of officers and members of a municipal fire department in the classified service is not open to dispute.
It is asserted by relator that the General Assembly has exercised that power and has fixed his tenure of office. This contention is denied by respondents who claim that the General Assembly has failed to fix the tenure of office of relator and therefore there can be no conflict between this ordinance and any general law.
Section 486-17 a of the civil service code reads in part as follows:
"The tenure of every officer, employee or subordinate in the classified service of the state, the counties, cities and city school districts thereof, holding a position under the provisions of this act, shall be during good behavior and efficient service; but any such officer, employee or subordinate may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office." (Italics ours.)
The word tenure and the word term are not synonymous although frequently so used. "Tenure" has a more extended meaning than "term".
Tenure is the right to hold office for an indefinite time.
Term denotes a period of time within fixed limits.
It must be presumed that the General Assembly used the word tenure in Section 486-17 a, General Code, deliberately and not inadvertently. Such construction is required in view of the further language employed: "Shall be during good behavior and efficient service." No one could seriously contend that "during good behavior and efficient service" does not denote an indefinite period of time.
The General Assembly having fixed the tenure of office of all persons in the classified civil service of the state, counties, cities and city school districts, a member of the fire department in such service, therefore, is protected in his tenure and can be removed from service only as provided by the statute.
The General Assembly having determined and specified the causes for removal, that action amounts to a prohibition of a removal for a different cause. Mechem on Public Offices and Officers, 285, Section 450, and cases cited.
It is claimed that retirement is not removal.
The statute having granted relator a specific tenure of office, any interference therewith by any municipal authority based upon an age limit or for any reason other than those specified in the statute is invalid.
By whatever name it may be called, removal or retirement, an ordinance interfering with such tenure is inconsistent with the provisions of the statute and cannot be sustained.
It was argued by respondents that to hold this ordinance invalid would work a hardship on property owners of the respondent city in that, because of the high average age of the members in the division of fire, an increase in insurance rates will result. This argument might well be advanced, if such a situation should result, as a cogent reason for action by the General Assembly wherein is reposed the power to remedy any such situation.
The contention that the work of a fire department, in the main, requires young and active men is not without merit. Fixing the qualifications of such members, however, involves questions of policy which are committed by law to the legislative and executive branches of government.
Counsel for respondents have cited cases from California and New York as authorities in support of the validity of this ordinance. We have carefully read those cases and nowhere do we find any question of municipal power raised or decided.
We cannot agree with the contention of respondents that no question of tenure is here involved.
Tenure in office means the right to perform the duties and to receive the emoluments thereof.
This ordinance attempts to take away relator's right to perform the duties and receive the emoluments of the office of deputy chief of the division of fire for no reason other than that he has reached the age of sixty-five years. This purpose, in our judgment, cannot be accomplished by municipal ordinance.
We are of opinion that this ordinance is inconsistent with Section 468-17 a, General Code, and therefore invalid.
It follows that the demurrer should be overruled and a writ of mandamus should be and hereby is allowed.
Writ allowed.
MATTHIAS, HART and ZIMMERMAN, JJ., concur.
WEYGANDT, C.J., and TURNER, J., dissent.
WILLIAMS, J., not participating.
Ordinance 10236 of the city of Toledo providing for the retirement of members of the fire department upon reaching the age of sixty-five years is reasonable and within the power of the council to adopt under Article XVIII of the Constitution.
WEYGANDT, C.J., concurs in the foregoing dissenting opinion.