174 N.E.2d 777 | Ohio Ct. App. | 1961
Lead Opinion
This is an appeal on questions of law from a judgment entered in the Court of Common Pleas of Cuyahoga County wherein the Mayor of the village of Middleburg Heights was commanded to reduce to writing the charges upon which William Sullivan was demoted from Captain to Patrolman of the village Police Department and to file the same with the legislative authority of the village; and the legislative authority was commanded to provide William Sullivan with a hearing in compliance with Sections
Respondents, appellants herein, for their assignment of error claim, in the main, that the trial court was in error in commanding them to comply with Sections
It appears from the record that the village of Middleburg Heights is a noncharter municipal corporation duly organized *356 and existing under and pursuant to the laws of Ohio; that on January 28, 1952, the council passed an ordinance (No. 1952-10) which provided for the appointment of a captain of police from the full-time regular membership of the police department; that, in accordance with such provision of the ordinance, the mayor, on March 28, 1952, arranged with the chief of police to promote relator, William Sullivan, a duly appointed, full-time, regular member of the police department of the village, to such position of captain of police, which promotion the council approved on April 14, 1952; and that on March 22, 1960, the relator was demoted from the position of captain of police to his former position of full-time regular member of the police department by the chief of police with the approval of the mayor.
Respondents contend that the position of captain of police provided for in Ordinance No. 1952-10 was created by the council of the village under the authority of the home-rule provision of the Constitution of the state of Ohio, Section 3, Article XVIII; that general laws passed by the Legislature dealing with the police department of a village have no application; and that the demotion of the relator from captain to patrolman was according to the provisions set forth in Ordinance No. 1952-10 and, therefore, valid.
Relator maintains that the village council derived its authority to create the position of captain of police in Ordinance No. 1952-10 from the general laws enacted by the Legislature for the creation of a police department of a village and that as a consequence the removal of the captain from office could only be effectuated in the manner provided by such general laws and that any method of removal in the ordinance that is inconsistent or at variance with the method set forth in the general laws is invalid and of no effect.
Section
"General laws shall be passed to provide for the incorporation and government of cities and villages; * * *"
The Legislature of Ohio has provided for a police department of a village in Section
Section
Section
Section
Section
Section 2 of Ordinance No. 1952-10 reads:
"The chief-of-police and the other members of the policedepartment shall be appointed by the mayor, subject to the confirmation of the council, for the time and in the mannerprovided by Sec. 4384 G. C. [now Section
Section 3 of the ordinance reads: *358
"The chief and the other members of the police department shall have the powers and the duties prescribed by the statutesof the state of Ohio, and such other powers and duties as shall be prescribed by ordinance from time to time. * * *" (Emphasis ours.)
And Section 4 reads:
"* * * No removals from the membership of the policedepartment shall be made except in the manner provided by thestatutes of Ohio, particularly Section 4384, General Code [now Section
These sections of Ordinance No. 1952-10 clearly indicate that the council, in passing this ordinance, fully intended to install a police department in accordance with the general laws of Ohio, specifically Section
The provisions with respect to the captain of police are found in Sections 2 and 3 of Ordinance No. 1952-10 and read:
"* * * A captain of the police shall be appointed from the full time regular membership of the police department by the chief of police with the approval of the mayor, and may be demoted at any time to the full-time regular membership in the department when the chief, with the approval of the mayor, shall deem it advisable for the good of the department, and thereupon such vacancy shall be filled in the same manner as herein provided for an original appointment to such office of captain of police."
Section 3 also states:
"* * * The captain of the police shall, in addition to his usual duties as a member of the police department, assist thechief and the mayor in their supervision and management of thepolice department, in such manner as the chief or the mayor shall order from time to time." (Emphasis ours.)
Rules and regulations duly adopted by the council authorize an "acting chief" under subsection b of rule 2, with the following language:
"During the absence from the village, or incapacity of the chief of police the next ranking officer in the division shall become the acting chief of police, and during such time he shall be vested with all of the authority of the chief of police." (Emphasis ours.)
It is obvious from the above that the duties prescribed in *359
Ordinance No. 1952-10 for the captain of police and the provisions in the rules and regulations for an acting chief describe a person who is to act as a deputy to the marshal designated chief of police. Designating such person a captain of police instead of a deputy marshal is consistent with designating the marshal, in accordance with Section
In Morris v. Roseman,
"An Ohio municipality which has not adopted a charter for its government, as authorized by Section
It seems beyond question that the position of captain of police in reality is that of a deputy marshal. Counsel for the appellants in their brief concede that the duties of the office were such as would be carried out by a deputy marshal. The village, under Section
It necessarily follows then that provisions of Ordinance No. 1952-10 which are inconsistent with the provisions of Section
Section
In State, ex rel. DeMatteo, v. Allen, Mayor,
The relator, having been appointed and having served as a deputy marshal designated captain of police for many months past the six months' continuous service, is entitled to have the mayor "transmit to the legislative authority of the village a record of such employee's service with his recommendation thereon and * * * [the mayor] may, with the concurrence of the legislative authority, remove or finally appoint the employee."
The portions of Section 2 of Ordinance No. 1952-10, which provide that the captain of police shall be appointed by the chief of police and removed from office "at any time * * * when the chief, with the approval of the mayor, shall deem it advisable for the good of the department," are invalid and of no effect and cannot be employed as the means of "demoting" such officer, because the same contravene the applicable provisions of the Revised Code.
Section
Section
The Supreme Court of Ohio in Village of Perrysburg v. *361 Ridgway, a Taxpayer,
"3. The above constitutional grant of power to municipalities [Section 3, Article XVIII] is `self-executing,' in the sense that no legislative action is necessary in order to make it available to the municipality."
"5. The grant of power in Section 3, Article XVIII, is equally to municipalities that do adopt a charter as well as those that do not adopt a charter, the charter being only the mode provided by the Constitution for a new delegation or distribution of the powers already granted in the Constitution. (State, ex rel. City of Toledo, v. Lynch, Auditor,
Paragraph four of the syllabus of City of Mansfield v. Endly,
"4. Municipality's constitutional powers of `local self-government' authorize measures pertaining exclusively to municipality, in which people of state have no interest (Article XVIII, Section 3, Constitution)."
See, State, ex rel. Cutright, v. Akron Civil ServiceCommission,
Accordingly, from the above, the attempted demontion of the relator from captain of police or deputy marshal to patrolman was contrary to law and therefore invalid and of no effect. Under the law, the relator still serves a probationary period as deputy marshal, called captain of police, is entitled to the perquisites of that office, and continues to serve until or unless he is demoted to patrolman or is finally appointed deputy marshal, called captain of police, as provided in Section
Relator in his petition prays, inter alia, that the relator be provided "with a hearing * * * in compliance with Sections
The judgment of the Court of Common Pleas is modified *362
in part, to command Andrew Rosbough, mayor of the village, to transmit to the council of the village a record of the relator's services as deputy marshal designated captain of police with his recommendation thereon and he may, with the concurrence of the legislative authority, remove or finally appoint relator as deputy marshal designated captain of police of the village police department, in accordance with Section
Judgment modified and, as modified, affirmed.
HURD, J., concurs.
Dissenting Opinion
I dissent from the judgment herein entered.
The facts, as shown by the stipulations, the testimony of the relator, and exhibits, show that the relator was employed as a part-time patrolman of the village on September 18, 1950. He became a full-time policeman on December 18, 1950. On January 14, 1952, he was advanced to the rank of captain of police by the chief of police, which advancement in rank was confirmed or approved by the mayor.
Prior to the advance in rank, the village council passed an ordinance creating the office of captain of police and spelling out the duties to be assumed by such officer. The relator was advanced in rank by the authority of this ordinance. It provides that a captain of police shall be appointed from "the full-time regular membership of the police department by the chief of police, with the approval of the mayor, and may be demoted at any time to the full-time regular membership in the department when the chief, with the approval of the mayor, shall deem it advisable for the good of the department * * *."
On March 22, 1960, the relator was relieved of the rank of captain and returned to a full-time policeman in the regular Police Department of Middleburg Heights by order of the chief of police, with the approval of the mayor, upon the authority of the ordinance above quoted. It is the claim of the relator, supported by the judgment of the Court of Common Pleas, that he could not be demoted from the rank of captain and returned to the regular police force as a policeman without charges being filed against him in writing under the provisions of Section
The power of a village to appoint a marshal (chief of police) and deputy marshals and policemen is provided for by Sections
Section
There is also a provision for an appeal from an order of removal by the decision of the legislative authority to the Court of Common Pleas.
Under the provisions of Section
The appointment of the relator to the rank of captain of police was under the authority of the ordinance, the appointment being made by the chief of police, with the approval of the mayor. The appointment was not made as provided by Section
There is a marked distinction between the police department of a city and a village. Their status (policemen of a city) is fixed under separate sections of the Revised Code. Section
"* * * In the case of the suspension, demotion or removal of * * * any member of the police * * * department of a city an appeal on questions of law and fact may be had from the decision of the municipal civil service commission to the Court of Common Pleas of the county in which such city is situated. * * *" (Emphasis added.)
In villages (municipal corporations with less than five thousand inhabitants) (Section
Under the home-rule amendment to the Constitution, the village was empowered to pass an ordinance conferring additional duties on a full-time policeman appointed to such work by the chief of police, with the approval of the mayor, and to further provide that such appointee may be relieved of such duties and returned to the regular duties of a full-time policeman at the will of the chief of police with the consent of the mayor. If the relator is dependent on the ordinance as the basis for his appointment as captain of police, he must also be bound by its terms as to his removal from such office.
The record shows that the appointment of the relator to the office, created by ordinance, of captain of police was accomplished by following out the requirements of the ordinance — that is that the appointment was made by the chief of police with the approval of the mayor. An exhibit intended to demonstrate the manner of his appointment is in the record in the form of a letter directed to the relator. It is dated March 28, 1952, and presumably signed by the chief of police. The approval of the mayor is indicated, as well as that of the council, by marginal notes. The approval of the council was not required by the ordinance, and the fact that such notation is in the letter is of no significance to the relator's case.
Conceding only for the purpose of considering the law of the case that the appointment of the relator to the office of captain must be construed as making him a deputy marshal (although it is clear from the record that this was not intended) and that there is a difference in the rank of deputy marshal and policeman (no such difference being found in the statutes), upon such contention, and the admitted facts, the relator was never legally appointed to such office.
Section
"All appointments made under Sections
The record clearly shows that the last act of the village authorities (the chief of police, the mayor and the legislative authority) with reference to the appointment of the relator as captain occurred on January 14, 1952, which was the date he was first made captain under the ordinance. No act of final appointment after the probationary period of six months has been taken. The serving of a probationary period and the subsequent final appointment or removal without trial is an absolute requirement for continued tenure of an officer in a village police department, such proceeding being provided without doubt to take the place of civil service requirements as testing the officer's ability to fill such office.
In the case of State, ex rel. DeMatteo, v. Allen, Mayor,
"For those which do not and which elect to remain within the general framework of village government as provided by the general statutes, the General Assembly has established a simple form of government which in large measure revolves around the village mayor. As pointed out, he is, or at times may be, virtually a seventh member of council. That it was intended that the mayor exert a potent force in all police matters in a village *367
is further evidenced by the provision in Section
"The relator, never having been recommended for permanent appointment as chief of police, has not shown a clear right to the extraordinary remedy of mandamus, and the Court of Appeals properly denied the writ."
Under the law of that case, the relator's claim that he cannot be "demoted" without trial upon charges before the legislative body of the village is without merit. This is the only issue pleaded as the basis of relator's claim, that is that he was not afforded a trial on charges before the council. Under Section
The petition does not claim the relator was appointed deputy marshal. The words "deputy marshal" are not found in the petition. The prayer of the petition is as follows:
"Wherefore, relator prays that a Writ of Mandamus be issued, directing the respondent, Andrew Rosbough, to reduce to writing the charges upon which the Relator was demoted from rank of captain to patrolman and to file the same forthwith with the legislative authority of said respondent village, and that the respondents [names of all the councilmen] * * * as the legislative authority thereof, provide the relator with a hearing upon said charges at their next regular meeting, all in compliance with Sections
Under the undisputed facts, the relator is not entitled to the relief prayed for since he was never legally appointed to any office defined in the statutes other than patrolman, which he now holds under Sections
The claim is that the village of Middleburg Heights was not authorized to pass the ordinance creating the office of captain of police and providing for his reduction in rank to patrolman in a manner said to be in conflict with Sections
The suggestion that if he were, in fact, appointed as a deputy marshal from the rank of patrolman, his removal as deputy marshal would return him to his former office, is unsound. No such result could obtain where the only provisions of Sections
The relator is still a policeman of the village of Middleburg Heights, and since he has not been removed from that office to which he was appointed under the authority of Section
For the foregoing reasons, the judgment of the trial court, issuing the writ, should be reversed and final judgment entered for the appellant. *369