### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON November 27,

2000 Session
HARRY JAMES TUSANT, JR., ET AL 

### . v. CITY OF M EMPHIS

A Direct Appeal from the Chancery Court for Shelby County No. 00-0484-2 The Honorable Floyd Peete, Jr., Chancellor

No. W2000-01431-COA-R3-CV - Filed February 6, 2001

Petitioners,Memphis police off icers, filed a pe

tition in chancer

y court for

writ of ma ndamus to require the city

to promote them to certain civil service ranks after they successfully completed the promotional process and are otherwise

eligible and qualified for promotion. The trial court denied the petition, and petitioners have appealed.

Tenn.R.App.P. 3; A

ppeal as of Right; Judgm ent of the Chancery

Court Affirmed and Remanded

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the cour

t, in which D AVID R. F ARMER , J. and H OLLY K IRBY L ILLARD , J., joined.

David M. Sullivan, Me

mphis, For Appella

nts

Louis P. Britt III

, David P. Knox, Memphis, For Appellee

OPINION

On March 31, 2000, petitioners, Harry James Tusant, Jr., John D. Birch, Tom my W. Brac ey, Ernestine T. Davidson, Willie C. Greenwood, and

George M. Olive, filed an amended petition for issuance of mandamus against the respondent, City of Memphis. The petition states that petitioner, Tusant, is employed as a major by the Mem phi s Po lic e Dep art men t an d pe tit ion ers , Bi rch, Brac ey, Davidson, Greenwood, and Olive, are employed

as sergeants b

y the Memphis

Police Departmen

t. It is averred that in 1996 Tusant participated in the promotion process to the rank of inspector, and t he remaining petiti

oners participa

ted in the promotion

process to the ra

nk of lieutenant, b

oth positions being civil service ranks. The petition aversthat after the testing process, Tusant ranked 10thout of 28 on the elig

ibility list for in spector a nd was the

next to be promoted from that list, and that the other petitioners were the next to be promoted from the lieu tenant’s eli gibility list. Petitioners allege that the city charter, Sections 69 and 70, provide that the city

council is authorized to designate the num

ber of insp ectors and lieutenants. For the fiscal years 1999 and 2000, the-2-

authorized ins pect ors for emp loym ent was set at 13, and the fiscal year for 1999 began on July 1, 1998. The petition further avers that there were ample vacancies for the position of lieutenant for the fiscal years involved and that the police departme

nt administrators h

ad stated that the

re was a critical shortage of lieutenants. Petitioner Tusant alleges that he was told by the form er police director Winfrey tha

t once a federa

l court i njunction was lifted concerning the promotions that Tusant would be promoted t

o inspector and that in February of 2000, the injunction was dissolved. It is averred

that the police de

partment then pro

moted some 20 individ

uals to sergeant who were on the eligibility list for promotion from the 1996 promotion process. Petitioner Tusant requested the current police director

to promote him , but h is request was refused, and the current director filled two vacancies at the rank of inspector with individuals who were not on the eligibility list and has filled one vacancy with someone with a lower place on the eligibility

list than Tusant.The petition further alleges that the respondent’s refusal to promote the petitioners is discrimination against them for non-merit factors and is in violation of provisions of the Charter of the City of Memphis and the Ordinances of th

e City of Memp

his, as quoted in the

ir petition as follo

ws:
City Charter Sec. [249]. Director of personnel.

. . . . There shall be

no discrimination in

the City e mployment of personnel because

of relig ion, race , sex, creed, political affiliation, or other non-merit factors, nor shall there be a n y discrimination in the promotion or

demotion of City employees because of religion, race,
sex, creed, political affiliation or other non-merit factors. (Ord. No. 3233, § 4, 8-31-82).

Sec. [250.1]. Examinati

ons for applicant

s for employ

ment.
All applicants for employment in positions protected by this article, shallbe subjected to c ompetitive job-related examinations under such rules and regulations as may be adopted by the Director of Pers

onnel. The examinations to be provided for shall be of a practical nature and relate to such matters as will fairly test the relative competency of the applicant to discharge the duties of the part icular position. Th

ese examinations should

be developed in c

onjunction with

other tools of personnel assess ment and complemented by sound programs of job design to aid significant

ly in the development and maintenance of an efficient work forceand in the utilization and conservation of human

resources. No question in any examination shall

relate to political or rel igious opinions or affilia tions. The examinati

on shall be conducte

d and controlled by

the Director of Pe

rsonnel.

City Ordinances-3- Section 9-3 Examinat

ions for applicat

ions for employ

ment.

(a) All appl ication s for employ ment in positions prot

ected by thi

s arti cl e shall be subjected to competitive job-related examinations under such rule and regulations as may be adopted by the direc tor of personnel.

(b) The examinations to be provided for shall be of a practical nature andrelate to such matters as will fai rly test the relative competency of the applicant to discharge the duties of the particular position. No question in any examina tion shall rela

te to political or religious opinion s o r affiliations. The examination shall be conducted and controlled by

the director of p

ersonnel.

Sec. 9-5. No discr

imination in city

employment.

There shall be no discrimination in the city employment of personnel bec ause of religious, race, sex, creed, political affiliation, or othe r nonmerit factors, nor sha

ll there be any

discrimin ation in the promotion or demotion of city employees because of religion, race sex, creed, politic

al affiliation, or

other nonmerit fa

ctors.

Sec. 9-4. Miscellaneous offenses in connection with civil service.

No person shall willf

ully or corr

uptly, by him s elf or in cooperation with any person:

(1) De feat, deceive o

r obstruct any

person in respec

t to his rights in relation to any examination or appointment in the classified s

ervices.

The petition further alleges that there are vacancies for the positions sought by the petitioners andthat the petitioners are fit and qualified for the promotions,

and that the respo

ndent, through it

s police department, is willfully defeating and obstructing the petitioners’ rightful promotions. The p etition pray s that the court issue a writ of mandamus requiring the respondent to make the promotions to which these petitioners are entitled.

The city’s answer to the

petition admits that petitioner Tusant was the next individual on the elig ibility list to be promoted and admits that petitioners Greenwood, Bracey, Birch, Olive, an d Davidson are numbered 119, 120, 121, 123, and 125 on the promotion roster for the rank o f lieutena nt; that the roster expired on May 29, 1998, and the last promotion made was for the individual ranked 118. The city den ies that it is violating any provisions of the charter and the ordinances of the city and

denies that the petitioners are entitled to require the promotions as alleged.-4-

A hearing was held on April 25, 20 00. The City of Memphis conceded that in 1996 the police department conducted a promotional process for the ranks of sergeant, lieutenant, major, and inspector, resulting in lists o f individuals elig

iblefor promotion. The petitioners introduced proof that after May of 1998, when the police department claims that these lists had expired, nearly 100 people had been promoted from these “expired lists.” The proof established that in a revers e discrimination case in federa l court, a prelimin

ary injunct

i on was issued limiting the number of promotions the city cou

ld make from the 19

96 promotional list to rema in in effect until the court resolvedthe case then pending. The then police director, Winfrey, ele cted to treat the two-year limitation period for the pr omotion li sts as being tolled du ring the time that

the injunction was i

n play and that this was in his discretion. Director Winfrey testified that he over-saw the promotional proces s and issued the elig ibility lists fo

r the respective

ranks and that the

policy of the

polic e department

had beento make promotions on the strict rank order from those lists. He testified that Tusant was listed 10th on the eligibility list for inspector and that the 9th person listed had been appointedto inspector. He me t with Tusant concerninga possible move to information systems, an

area where Tusant had previously worked, and he was prepared to promote Tusant to the inspector posit ion in that department. He testified, however, that the city’s attorney s handling the fe dera l lawsuit advised him not to ma

ke any prom

otions as that m

ight aggravate the situation in federal court. With that advice, the director informed Tusant that he would not promote him at that time but would promote him when the injunction was lifted, but the director retired before the injunction was lifted.

Kathy

Todd, chief

of administrative services of the police department in 1996, testified that it is within the discretion o f the police director to extend the expiration date of the promotional rosters, and that such an extension was made under former Director Ivy ’s administration.

Harry Tusant testified th

at inNovember or December of 1998, he was called to the office of Director Winfrey and told by the direc tor that he would be promoted to the rank of inspector once the injunction was lifted. After the federal injunction was lifted, Tusant went to the current director of police, Crews,

and requested that the vacant positions be filled from the current roster. Later, after Director Crews had sought the advice of the city’s attorney on the matter, he told Tusant that t he city

was not obligated to promote, and that the promotion process would be starting anew in the near future. Tusant testified r

egarding thr

ee individuals

who had been promoted to “acting inspector”, two of which were not

eligible for a promotion

to inspector, and a third who ranked below Tusant

on the promotion roster. Tusant testified that he consulted police records and determined

that these three individuals were receiving full inspector pay instead of “out of

class pay” as they should have received per police department policy.

Richard McBr yd e, executive commander of police administration, testified that the three individuals

referred to by Tusant who were promoted to “acting inspector” erroneously receive full inspector pay for a period of time, but that error has been corrected, and they are now re ceiving the correct “out of class pay.”-5-

Petiti oner Tommy W. Bra

cey testifi ed regarding

his qualification f

or eli gibility for promotion to lieutenant in 1996. Bracey testified that the last promotions fromthe 1996 roster we re made in June of 1998, after which the promotional rosters supposedly expired. According to Bracey , an information bulletin

dated February 2000 listed the names of sergea nts thatwere promoted from the 1996 promotion roster. Bracey stated that he qualified for a promotion to lieutenant in 1996, but has been told by the pol

ice department th

at to be promoted to

lieutenant he must t

a ke part in a new processthat will begin soon. Bracey testified that although there are open lieutenant slots and he is qualifiedto be promoted to lieutena nt, he has not even been promoted to a

cting lieutenan

t. Sometime

after the department promo ted 20 sergean

ts from the 1996 promotional process, Bracey was told by Deputy Chief Moses that the individuals left on the 1996 promotional roster were not going to be considered

for “acting lie

utenant” becau

se the list was closed

and promotions cou

ld no long er be made from that list. Moses gave no explanation as to why the sergeant’s list remaine d valid, while the lieutenant’s list had expired. Bracey testified that at all times fr

om1998 to present, there have been a

sufficient number of lieutenant vacanciesin the police depa rtment to promote hi

m andth e other pe titioners in this lawsuit. Bracey is unaware of any police department policy that requires the city

to fill all the vaca

ncies in the police

department.

Walter E. Crews, current director of the police department, testified that at the time of trial, he had been in his current position for five months, and with the police department fo r thirt y-one years.Director Crews t

estified that he ha

d a conversation

with Tusant in

which Tusant told him that Director Winfrey had

discussed with him the possibility of being promoted to inspector. Director Crews informed Tusant th at he knew nothing

about a promotion, b

ut would discuss it wit

h their att orn ey, Mr. Britt. Mr. Britt informed Director Crews that there was no obligation to pr omot e Tusant since there was no particular promotion date promised. Director Crews testified that the duration of a

promotion roster w

as generally

two years,

and a change in

that time period would be at the discretion of the director. Director Crews sought Mr. Britt’s advice regarding the promotion requested by Tusant, because he wanted to give Tusant the benefit of the doubt and make sure that any decision had legal substance. Regarding promotions in the department, Director Crews stated that due to the federal in

junction, he had in

itially not made any promotions to inspector. When the injunction was lifted, he did make promotions to sergeant, however, he made no other promotions. He testified that the department is currently using people that were doing the job of inspector a s acting inspectors, but that they will have to go thr ough the next promotional process, because the 1996 list has expired. He has plans to begin the promotional process fo r ins pector as soon as the department

has completed the

processfor serg eant, lieutenant , and major. I

n explaining his appointment

of the three acting inspectors, director Crews stated that Major Schw ill was placed because he hadbeen the executive officer of the South Precinct and had run the operation on a day to day basis when Inspector Alfred Gr ay, commander of

the South Precinct, was moved to the detective division t o fill a vacancy. When Inspector Gill L everne, commander of the training academy
, was moved to the OCU unit, Major Coria Williams was moved to the position o f commander

of the training academy. Major Cooper was already th

e acting comman

der of the West Precinct. Crews instructions regarding th

e pay of the

se individuals was t

hat they wou

ld receive full inspector’s pay in light of the fact that they ha d b ecome command ers. Subsequently, either Mr. McBryde or his legal advisor informed him that he had made a mistake in giving them full inspector-6-

pay, and the error was corrected. Dir ector Crews stated that the reason for having a promotional

ro ster was so everyone can see how they finished in the total ranking, and management can have

someconcept of who can be promoted. The police department worked together with the Memphis Police Associati on for cont ractual purposes and derived a formula used in the promotional roster processincluding the consideration of seniority, test scores, and other criteria. Ac cording to Director Crew’s personnel people, previously but not recently, the re have been acting inspectors chosen from a non-roster list.

He testified that both Schwill and Williams were familiar with the positions that they moved into as acting i ns pectors, and it seemed logical to have them serve in their new capaci t ies. Appointing acting inspectors outside of the promotional roster and beginning the promotional proce

sses are both withi

n the director’s discretion. The individuals promoted in June of 1998 will not have the requisite two years of service in order to be eligible for the next level of promotion. It is within Director Crews’ discretion to move back the time

period to allow the

m to qualify for promotions ; howe ver, Director Crews stated that he has elected to go by the contract guideline negotiated with the Memphis Police Association. With regard to the upcoming p romo tions, Director Crews further testified that he has the discretion to extend the time of a promotional roster, and exercised that discretion in February of 2000 by prom oting 20 sergeants from the 1996 promotional roster, which by its own t erms had expired. Director Crews states that he exercisedhis discretion in January of 2000 in not following the promotional roster for the rank of inspector, and whether he used or did not use the roster was within his discretion. He explained that there were a

lot of people left o

n the list after the

se promotions, as they only promoted the next few numbers on the list: 17, 18, 19, and 20. Crews testified that due to an inability to promote for four yearsunder the feder

al injunction, the d

epartme nt wa s desperate for investigators, who are at the rank of sergeant. He also admitted that there is currently a shor tage of lieutenants in the police departme nt and thatthere are 58 va cancies for the

rank of lieutena

nt, however, stat

es that there is nothing that requires the city to fill all vacancies in the pol ice department. In explaining

his decisions regarding t he promotions of insp ector and lieutenant, he testified that the police department is currently

in the promotional p

rocess, which wil

l alleviate the shortage of

lieutenants and se

rgeants. The petitioners are e

ligible to partic

ipate in the upcomi

ng process, and

will in no way be prejudiced by their participation in this case.

In an order dated June 5, 20 00, the chancel lor denied the petition for a writ of mandamus stating:

The court, having co nside red the entire record, the testimony of the

witnesses, and applicable law, is of the opinion that the petitioners have not shown that they have a clear an d specif ic legal right to be promoted nor have they shown there exists a duty which oug ht to be performed, therefore petitioners are not entitled to receive the relief of mandamus. IT IS THE REFORE, ORDERED, ADJUDGED AND DECREE D that the Petition for Issuance of

a Writ of Mandamus i

s denied with costs o

f this cause to be a

ssessed agains

t petitioners.1 Sec. 28-4 Appointment of other officer s and employe es of divisio n. The dire ctor of po lice services is

hereby authorized and empow ered to appoint one deputy director, four (4) deputy chiefs and as many ch ief inspectors, inspectors, captains, lieutenants, sergean ts, detectives and patrolm en, together with su ch emerg ency police, secretaries, clerks, stenograp hers, oper ators,janitor

s, turn- keys, desk l

ieutenant

s, desk s ergeants,

mechanics, mat

rons, women polic e officers and such other help as may be needed to ef ficient ly police the cit y and to effi

cientl y conduct the pol

ice divi sion of the cit y.

-7- It is from this order

that the petitioners appeal, presenting one issue for review as stated in their brief: “Whether the trial court erred by denying petition for the issuance of a writ of mandamus when the proven facts

established petiti

oners had a clea

r and specific

legal right to be

promoted and defe ndan t had a duty to pro mote t hem?”

Appellants

submit that city ordinance § 28-4 1 , which provides the police director wi t h the authorization to appoint as many chief inspectors, inspectors, captains, lieutenan ts, serg eants, detectiv e s, and patrolmen, along with other listed police personnel as may be neede d, can not be superior to the city c

harter, which ve

sts the city c

ouncil with the exclu

sive duty to establis h by ordinance the number

of officers to be employed at each rank in the police department. The police department

has the legal du

ty to enforc

e the ordinance

by staffing

the ranks as desig

nated by the

city council. Appellants argue that ordinance § 28-4 is in direct conflict with the charter.

The city defen

ds its action in promo

ting persons on th

e sergeant’s l

ist after it expired, while notpromoting appellants, stating that the promotions were in accordance with an agreement between the city and the Memphis Police Association. The city asserts that no promotions to inspector were made from the inspector eligibility roster after it expired in May of 1998. In March

of 1999, former Director Winfrey appointed one major to the position of executive major or “acting inspector” on

a temporary basis. In January of 2000, Director Crews a ppointed two majors

to executive majors,

or “acting inspec

tors.” The individu

als appointed to

those positions wer

e to fill an immediate need andthe appointments were not permanent. “A cting inspector

s” will be required, as

will all majors, to compete in the upcoming promotional process, if they desire the r ank of inspector. The city assertsthat the director of policeser vic es h as t he d isc ret ion ary au tho rit y to fill positions authorized by the city counci l, and that it is not uncommon for a number of a

uthorized positions to

remain vacant. Appellants are eligible to participate in the proposed promotion process.

The city ass

erts that the trial court correctly denied the petition for the wr

it of mandamus, because of its nature as a

n extraordinary

remedy, wh

ich lies only

in enforcing min

isterial acts,

and is not to c ont rol a le gisl ati ve o r di scr eti ona ry du ty. The city asser ts that the promotion

of individuals i n the Memphis Police Department is a discretionary duty f or which the director is solel y responsible, and not a purely ministerial act in which the director exercises no discretion as claimed by the appe

llants.

The general rule

regarding

the issuance of a writ of mandamus is that the writ is not issued to control or

coerce discretionary

power by a board or officer, but will lie to enforce the pe rformance of an official duty and to compel the exercise of

power. State v. Mayor & Alderman, 184 Tenn. 1, 195 S.W.2d 11 (1946); White’s Creek Tpk. Co. v. Marshall, 61 Tenn. (2 Baxt.) 104 (1872); and-8-

Barnhart v. Neiser, 25 Tenn.(6 Hum.) 4 93 (1846). In

determining whe

ther an act is

a “ministerial act” for which mandamus may lie, courts look to whether the law defines the duties to be performed “with such precision and certainty as to leave nothing to the exercise of judgement.” Lamb v. State, 207 Tenn. 159, 338 S.W.2d 584, 586 (1960)(quoting C.J.S. Mandamus \sec 63, page 101). Where the duty involves the exercise of discretion or judgement the act is discretionary. Id. A discretionary act, which will not support the issuance of a mandamus to compel performance, i s defined as one done by an official who has lawful authority to de termine whet

her or not he will perfor

m the act. Bradley v. State ex rel. Haggard, 222 Tenn. 535, 438 S.W.2d 738 (1969).

For an act to be en for ced b y a

writ of mandamus, t

he act must be purely "minister

i al." Peerless Constructio n Co. v. Bass, 158 Tenn. 518, 520, 14 S.W.2d 732 (1929). If t he right to have the act performed i s doubtful, the rig ht must be first esta

blished in some other form of action. Mandamus is a summary rem edy, extraordinary in its nature, and to be applied only when a right has been cl ea rly established. Peerless, 14 S.W.2d at 733. The writ of mandamus will notlie to control official judgment or discretion, but it is the proper remedy where t he pr oven facts show a clear and specific legal right to be enforced, or a duty which ought to be and can b e pe rformed. State ex rel. Weaver v

. Ayers , 756 S.W.2d 217, 221 (Tenn.1988), citing State ex rel. Ragsdale v. Sandefur, 215 Tenn. 690, 696, 389 S.W.2d 266, 269 (1965).

Hackett v. Smith County, 807 S.W.2d 695, 698 (Tenn.Ct.App. 1990). Furthermore, a mandamus will not l ie w here a right is doubtful. State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn. 1988).

Gen eral ly, where a public offi cia l ha s an y discretion concerning the doing of an act, the issuance of a mandamus is not available. Davis v. Fentress County Bd. Of Educ., 218 Tenn. 280, 402 S.W.2d 873 ( 1966). Whe re the exe

rciseof judgment or discretion is required, he may be compelledby the issuance of a mandamus to perf

orm the duty,

however his

judgment regarding the details in the performance of the duty are to be lef t unf ettered. Blair v. State ex rel. Watts, 555 S.W.2d 709 ( Tenn 1977). Where an official has th

e duty to do a

n act only af

ter ma kin g determinations,

evaluations or judgments, a wit of mandamus will not lie to do the act in any particular way. Seagle-Paddock Pools of Memphis, Inc. v. Benson, 503 S.W.2d 93 (Tenn. 1973). A court will not substitute its judgment for that of an official vested with discretio n unless the official has clearly acted arbitrarily andwithoutregard to his duty in the exercise of that discretion. See State v. Mayor & Aldermen, 184 Tenn. 1, 195 S.W.2d 11, 13 (1946). A court will not, by mandamus, disturb the decis ion and action of b oards and office

rs vested in discr

etionary po

wers, “except where they act in an arbitrary andoppressive manner [citation omitted], or act beyond

their jurisdiction [citation omitted], or where they refus e to assume

a jurisdiction which the law devolves upon them [citation omitted].” Peerless Const. Co. v. Bass, 158 Tenn. 518, 14 S.W.2d 732 (Tenn. 1929).2 § 69 of the City Charter prov ides: The [City Council] , in addi tion to all oth

er powers del

egated t o it, i s hereby authorized

and full y empowered,

by ordinance, to determine the number of officers and employees in each grade, rank and classification to b e employe d by the City of Mem phis in the po lice depar tment and to fix the salaries of said officers and employees.

3 § 70 provides: There shal l be but one chief

of police and one chief of detec tives, but the [City C ouncil] shall be empowered by

ordinance to designate the number of captains, lieutenants, sergeants, detec tive sergeants, detectives, patrolme n and all othe r officers and e mployees as may be ne cessary to efficien tly conduct the departm ent.

-9- The petitioners assert that §69 2 and §70 3 of the city c harter vest exclu

sive authority

in the city council to establish by ordinance the number of officers to be employ ed at each rank in the police department,

as may be necessary

to efficiently conduct the department. Petitioners further assert that the charter requir

es the city c

ouncil each y

ear to pass a budg

et ordinance de

si gnating the number of employees for

each rank in thepolice department, and the mayor is responsible for carry ing out the budget ordinance passed by city counsel. Petitioners argue that the administration of t

his duty is clearly ministerial and t herefore man damus is an appropriate remedy. In their r eply brief, petitioners assert in their reply brief that ordinance §28-4 “ostensibly confers on the police director [the authority] to appoint as many employe es as he wants, is in direct conflict with the Charter.”

If there is a conflict between the charter and the ordinances, it has long been the law in this state that ordinances of the city are subordinate to the charter. See Marshall & Bruce Co. v. City of Nashville
, 109 T enn. 495, 512, 71 S.W. 815, 819 (1903); State ex rel. Lewis v. Bowman , 814 S.W.2d 369, 373 (Tenn. Ct. App. 1991). In Stuermer v. City of Chattanooga , 914 S.W.2d 917 (Tenn. Ct. App. 1995), the Court stated:

City ordinances are subordinate to charter provi

sions. Wilgus

v. City of Murfreesboro, 532 S.W.2d 50 (Tenn. Ct. App. 1975). However, where an ordinance is susceptible of two constructions, the court will adopt the construction which woul d re nder it valid. Hermitage Laundry Co. v. City of Nashv ille , 186 Tenn. 190, 209 S.W.2d 5 (1948). Those questioning the validity have the burden of proof. Town of Surgoinsville v. Sandidge , 866 S.W.2d 553 (Tenn. Ct. App. 1993). Where possible, a s tatute and ordina

nce on the same subject will be reconciled, and effe ct gi ven to both. SPE, Inc. v. Metropolitan Government of Nashvil le and Davidson County
, 817 S.W.2d 330 (Tenn. Ct. App. 1991).

Id. at 920.

We disagree with petitioners that there is a conflict between the charter and the ordinance. The city charter provides guidelines for the formulation and a dministration of

a city budget

which includes budgeting by

the city counsel the maximum number of positions allowable for each rank in the police department. City ordinance §28-4 vest s the police director with discretion to work within the budgetary restraints mandated by the city council. We construe the budgetary mandates-10-

anddiscretionary

power vested in

the director to

be reconciled and not conflicting. The testimonies of Kathy Todd, former Director Winfrey andDirector Crews support the proposition that the director has discretion in the process of filling vacant positions within the police depa rtment and is not required to fill a position merely because it is vacant. As expressedby Our Supreme Court in Davis v. Fentress County Bd. Of Ed., 218 Tenn. 280, 402 S. W.2d 873, (Tenn. 196

6):

The rule is so gener

al and obvious as to

be almost axiomatic that a public officer

clothed with discretionary or Quasi judicial power, as contradistinguished fro m me re m ini ste ria l du ty, cannot be coerced by mandamus, or restrained by injunction in the exercise of his judgment under that power; otherwise, the court would substitute its judgement for his, w hich is not permissible. Insurance Co. v. Craig, 106 Tenn. 621, 639, 62 S.W.155 (1901).

Id. at 874. Therefore, we find that the director acted within his discretionary powers concer ning the promotions in question.

Acco rdi ngly, the order

of the trial court

is affirmed, and

the case is

remanded to the trial court for suc h fu rth er pr ocee din gs as nece ssa ry. Costs of this appeal are assessed ag

ainst the appellants, Harry James Tusant, Jr., John D . Birch, Tommy W. Bracey, Ernestin

e T. Davidson, Willie C. Greenwood, and

George M. Olive

, and their sureti

es.

__________________________________________ W. FRANK CRAWFORD, PRESI DING JUDGE, W.S

.