Fraternal Order of Police, Capital City Lodge No. 9 v. City of Columbus , 10 Ohio App. 3d 1 ( 1983 )

^* Reporter's Note: The text of the opinion as it appears herein was abridged by Judge Strausbaugh. This is an action in declaratory judgment which arose as a result of a complaint filed by plaintiff, Fraternal Order of Police, Capital City Lodge No. 9 (hereinafter "FOP"), on behalf of its members against defendant, city of Columbus, wherein plaintiff sought relief as to the right to compensation of a police officer temporarily taking the place of a superior officer at a wage level for the higher position. Plaintiff also sought a court order directing defendant to amend the police salary ordinance to pay officers, acting in command, wages earned at the level set forth by the police salary ordinance, at the end of every pay period.

The trial court held that plaintiff, a non-profit corporation under R.C. Chapter 1702, had standing to bring the declaratory judgment action; that a police officer who has been temporarily appointed to a higher rank pursuant to departmental practices is entitled to the compensation so fixed by ordinance for such position; that the police officers under temporary appointment were already permanently employed at a lesser rank and, therefore, Civil Service Commission Rule X(B)(2) does not apply; and that all salary claims by police officers which accrued after November 17, 1974 were allowed. Defendant filed a timely notice of appeal and raises the following assignments of error:

"1. The trial court erred in finding that appellee, a non-profit corporation, had standing to maintain an action for declaratory judgment as to the entitlement of some of its members, individual police officers, to increased compensation for temporary special duties not expressly provided for in the police salary ordinance.

"* * *."

In the city's first assignment of error, it claims that the trial court erred in finding that plaintiff had standing to invoke the court's jurisdiction. The trial court found standing in this case noting that plaintiff is a non-profit corporation under R.C. Chapter 1702, and, as such, it is a person under R.C.2721.01 and may bring an action for declaratory judgment under R.C. 2721.03.

R.C. 2721.03 provides in part:

"Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status,or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, contract, or franchise, mayhave determined any question of construction or validity arisingunder such instrument, constitutional provision, statute, rule,ordinance, contract, or franchise and obtain a declaration ofrights, status, or other legal relations thereunder." (Emphasis added.)

The city claims that the finding of standing was erroneous for three reasons. First, plaintiff did not plead a personal right, status or other legal relationship affected by defendant's action as to Columbus City Charter, Section 15, the police manual, police salary ordinances or civil service rules. Second, plaintiff did not allege that the challenged action caused it injury in fact. Third, there is no express authority authorizing plaintiff to bring this action on behalf of individual members of the FOP.

Conversely, plaintiff claims it has standing for two reasons. First, a labor union in the form of a non-profit corporation has an interest in litigating claims relating to the working conditions of its members. Second, a labor union is not required to expressly plead the statement that the labor union itself has suffered any injury in fact, as a result of defendant's actions. In other words, the FOP claims that it can sue in a representative capacity.

As to the first reason, plaintiff argues that this court recognized a labor union's direct, personal interest in litigating claims relating to the working conditions of its members in Local Union No. 67, I.A.F. v. Columbus (June 28, 1977), No. 76AP-950, unreported. However, in that case, the party was an unincorporated association that brought the action pursuant to R.C. 1745.01, which provides that an unincorporated association may sue on behalf of its members, thereby giving an unincorporated association specific statutory authorization to bring an action on behalf of its members. No such statutory authorization to bring an action for its members is set out in R.C. Chapter 1702.

The issue, then, is whether a non-profit corporation has standing to sue on behalf of its members without express statutory authorization. This court has recognized the right of an association to sue on behalf of its members in State, ex rel.Connors, v. Ohio Dept. of Transp. (1982), 8 Ohio App.3d 44; andMechanical Contractors Assn. v. State (Nov. 1, 1979), No. 79AP-405, unreported, affirmed (1980), 64 Ohio St.2d 192 [18 O.O.3d 407]. In these cases, we have followed the reasoning of the United States Supreme Court as set out in Warth v. Seldin (1975), 422 U.S. 490. The Warth case involved three incorporated associations: Metro Act of Rochester, Inc.; Housing Council in the Monroe County Area, Inc.; and Rochester Home Builders Association, Inc. Although no standing was found the Supreme Court did not distinguish between incorporated and unincorporated associations and we conclude that, as long as the association meets the standards set forth in Warth, supra, and Hunt v.Washington State Apple Advertising Comm. (1977), 432 U.S. 333, a representative action may be brought. The United States Supreme Court, in interpreting a statute involving the term "associations of persons," in United States v. Trinidad Coal Coking Co. (1890), 137 U.S. 160, at 169, stated:

"* * * The object of these restrictions as to quantity was, manifestly, to prevent monopolies in these coal lands. The reasons that suggested the prohibitions in respect to associations of persons apply equally to incorporated and unincorporated associations. But the purpose of the government would be defeated altogether, if it should be held that corporations were not ``associations of persons' within the meaning of the statute, and subject to the restrictions imposed upon the latter by sections 2347 and 2350. It is unreasonable to suppose that Congress intended to limit the right of entering coal lands to one hundred and sixty acres in the case of an individual, and to three hundred and twenty acres in the case of an unincorporated association, and leave the way open for an incorporated association, by means of entries made for its benefit in the names of its agents, officers, stockholders, employes and agents, to acquire public coal lands without any restriction whatever as to quantity. The language of the statute, to say nothing of the policy which underlies it, does not require or permit any such interpretation of its provisions. The words``association of persons' are often, and not inaptly, employed todescribe a corporation. An incorporated company is an associationof individuals acting as a single person, and by their corporatename. As this court has said, ``private corporations are but associations of individuals united for some common purpose, and permitted by the law to use a common name, and to change its members without a dissolution of the association.' Baltimore andPotomac Railroad v. Fifth Baptist Church, 108 U.S. 317, 330." (Emphasis added.)

Turning to the facts of this case, the police officers who are members of the FOP would have standing to sue in their own right and seek a declaration that the Columbus City Charter, police manual, and the Civil Service Commission Rules confer upon a police officer, who temporarily takes the place of a superior and assumes the rank of that officer, compensation at a wage level established by the police salary ordinance for such position. The wage issues raised by these actions are germane to plaintiff's purposes which include the betterment of existing conditions as they affect police officers, the enforcement of civil service laws as applied to police officers, and the enforcement of all laws, ordinances, rules and regulations protecting police officers. Finally, the complaint does not seek relief which requires individual participation in this suit. We find that plaintiff meets the requirements of Warth, supra, as to standing to sue. The first assignment of error is overruled. * * *

* * * The judgment of the trial court is affirmed in part and reversed in part, and this cause is remanded to the trial court for further proceedings consistent with law and this opinion.

Judgment accordingly.

WHITESIDE, P.J., concurs.

MOYER, J., dissents in part.