State ex rel. Lathrop v. Excell

Cuyahoga Circuit Court

State ex rel. Lathrop v. Excell

33 Ohio C.C. Dec. 423, 21 Ohio C.C. (n.s.) 603

DecidedMay 15, 1908

StatusPublished

This text of 33 Ohio C.C. Dec. 423 (State ex rel. Lathrop v. Excell) is published on Counsel Stack Legal Research, covering Cuyahoga Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State ex rel. Lathrop v. Excell, 33 Ohio C.C. Dec. 423, 21 Ohio C.C. (n.s.) 603 (Ohio Super. Ct. 1908).

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Opinion

HENRY, J.

In this appeal it is sought by mandamus to enforce the provision of the Glenville annexation agreement for the retention of the Glenville firemen. It is objected that this provision is void, because it is inconsistent with the civil service requirements of the municipal code providing for admission to the fire department only on examination, etc., and, even though Glenville was subject to the same requirements of law, the civil service regulations there may have been such as to let in firemen who could not have come into the Cleveland fire department.

We think the decision of the matter must hinge on the general effect of annexation. If the corporate life and powers of Glenville were not ended, but simply merged with those of Cleveland, there is no legal inconsistency in the agreement to incorporate the Glenville fire departmnt with that of Cleveland, both having been under the merit system.

Section 1536-57 R. S. (Sec. 3574 G. C.) indicates that this is the true construction of the matter. It provides that “when the annexation is completed, the two former corporations shall be governed as one, embracing the territory of each. ’ ’

Of course the provisions of the agreement as to rank and location of the new firemen are in part at least inconsistent with law, and therefore void.

[424]*424A peremptory writ may issue, tbe prayer of the petition being modified in accordance herewith.

Winch and Marvin, JJ., concur.

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HENRY, J.

In this appeal it is sought by mandamus to enforce the provision of the Glenville annexation agreement for the retention of the Glenville firemen. It is objected that this provision is void, because it is inconsistent with the civil service requirements of the municipal code providing for admission to the fire department only on examination, etc., and, even though Glenville was subject to the same requirements of law, the civil service regulations there may have been such as to let in firemen who could not have come into the Cleveland fire department.

We think the decision of the matter must hinge on the general effect of annexation. If the corporate life and powers of Glenville were not ended, but simply merged with those of Cleveland, there is no legal inconsistency in the agreement to incorporate the Glenville fire departmnt with that of Cleveland, both having been under the merit system.

Section 1536-57 R. S. (Sec. 3574 G. C.) indicates that this is the true construction of the matter. It provides that “when the annexation is completed, the two former corporations shall be governed as one, embracing the territory of each. ’ ’

Of course the provisions of the agreement as to rank and location of the new firemen are in part at least inconsistent with law, and therefore void.

[424]*424A peremptory writ may issue, tbe prayer of the petition being modified in accordance herewith.

Winch and Marvin, JJ., concur.

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Bluebook (online)

33 Ohio C.C. Dec. 423, 21 Ohio C.C. (n.s.) 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-lathrop-v-excell-ohcirctcuyahoga-1908.