#### The State, ex rel. Nimmo, *v.*Cain.

(No. 31844

Decided November 2, 1949.)

*205
      *Mr. Charles C. Goldman,*for relator.

*Mr. Lee G. Rowley,*director of law, and *Mr. Charles*IF. *White,*for respondent.

Turner, J.

The decision in this ease requires the application only of Section 486-15», General Code, which contains the following provisions:

> “No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in positions above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a *conopetitive*promotional examination. Promotion shall be by successive grades or ranks *so far as practicable*and no person in a police or fire department shall be promoted to a position in a higher grade or rank who has not served at least twelve months in the next lower grade or rank. *No competitive promotional examination shall be held unless there are at least two persons eligible to compete. Whenever a municipal civil service commission determines that there are less than two persons holding positions in the grade or rank next loiuer than the position to be filled and who are eligible and willing to compete, such commission shall allow the persons holding positions in the then next lower grade or rank, and who are eligible, to compete with the person or persons holding positions in the grade or rank lower than the position to be filled. *** * After such examination has been held and *206an eligible list established the civil service commission shall forthwith certify to the appointing officer *the name of the person receiving the highest rating.*Upon such certification the appointing officer *shall appoint the person so certified, within thirty days from the date of such certification.** * *” (Italics ours.)

Relator contends that inasmuch as respondent had not served as first assistant, respondent was not eligible to take the examination. We are of the opinion that in such respect Section 486-15a, General Code, does not apply whenever the civil service commission properly determines that there are less than two persons holding positions in the grade or rank next lower than the position to be filled. In our opinion the minimum qualifications established by the commission for entrance to the examination were proper. Relator’s petition fails to show that respondent has usurped, intruded into or unlawfully holds or exercises the office of chief of fire in the city of Cleveland.

As the answer shows that the foregoing provisions of Section 486-15a, General Code, have been duly complied with, the demurrer to the answer should be and hereby is overruled.

As a demurrer searches the record and as relator’s petition contains no allegation that relator received the highest rating or that his name or the name of any person other than respondent was certified to or appointed by the appointing officer, the demurrer should be and hereby is sustained to the petition for the reason that' such petition does not state facts which show a cause of action.

*Writ denied.*

Weygandt, C. J., Matthias, Hart, Zimmerman, Stewart and Taft, JJ., concur.