State Ex Rel. Sullivan v. Village of Middleburg Heights ( 1961 )

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 733.35 and 733.36 of the Revised Code, resulting from the allowance of a writ of mandamus in an action therefor instituted by relator, appellee herein, William Sullivan, against Middleburg Heights village, its mayor and members of council.

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 733.35 and 733.36, Revised Code, in attempting to demote the relator from captain to patrolman.

It appears from the record that the village of Middleburg Heights is a noncharter municipal corporation duly organized 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 2, Article XVIII of the Constitution of Ohio provides:

"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 737.15 et seq., Revised Code. The sections pertinent here are:

Section 737.15. "Each village shall have a marshal, designated chief of police, appointed by the mayor with the advice and consent of the legislative authority of the village, who is an elector thereof, and who shall continue in office until removed therefrom as provided by Sections 733.35 to 733.39, inclusive, of the Revised Code. In case of the removal of a marshal or chief of police of a village, an appeal may be had from the decision of the legislative authority to the Court of Common Pleas to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of such legislative authority."

Section 737.16. "The mayor shall, when provided for by the legislative authority of a village, and subject to its confirmation, appoint all deputy marshals, policemen, night watchmen, and special policemen. All such officers shall continue in office until removed therefrom for the cause and in the manner provided by Section 737.15 of the Revised Code."

Section 737.17. "All appointments made under Sections 737.15 and 737.16 of the Revised Code shall be for a probationary period of six months' continuous service, and none shall be finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the mayor shall transmit to the legislative authority of the village a record of such employee's service with his recommendations thereon and he may, with the concurrence of the legislative authority, remove or finally appoint the employee."

Section 737.18. "The marshal shall be the peace officer of a village and the executive head, under the mayor, of the police force. The marshal, and the deputy marshals, policemen, or nightwatchmen under him shall have the powers conferred by law upon police officers in all villages of the state, and such other powers, not inconsistent with the nature of their offices, as are conferred by ordinance."

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 737.15, Revised Code]. * * * All vacancies hereafter arising in the membership of the police department shall be filled promptly and in the mannerabove provided for original appointments. * * *" (Emphasis ours.)

Section 3 of the ordinance reads:

"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 737.15, Revised Code]." (Emphasis ours.)

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 737.15 et seq., Revised Code.

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 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 737.15, Revised Code, a chief of police. Since Sections 737.15 and737.16, Revised Code, are in pari materia, the council had implicit authority to designate the deputy marshal by some office that was in harmony with the designation chief of police, because it would be incongruous to call an officer who is the acting chief of police a deputy marshal. It is consistent in the public mind to have a police department made up of a chief of police, captain and patrolmen.

In Morris v. Roseman, 162 Ohio St. 447, paragraph two of the syllabus reads:

"An Ohio municipality which has not adopted a charter for its government, as authorized by Section 7, Article XVIII of the Constitution of Ohio, must, in the passage of its legislation, follow the procedure prescribed by the statutes enacted pursuant to the mandate of Section 2, Article XVIII of the Constitution."

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 737.16, Revised Code, had the power to and did appoint the relator a deputy marshal when he was promoted to the position of captain of police, which position is subject to all provisions of the general laws with respect to the members of a police department of a village.

It necessarily follows then that provisions of Ordinance No. 1952-10 which are inconsistent with the provisions of Section737.15 et seq., Revised Code, are invalid and of no effect.

Section 737.17, Revised Code, provides that all appointments made under Sections 737.15 and 737.16, Revised Code, shall be probationary and none shall be final until the appointee has satisfactorily served such period and that "at the end of the probationary period the mayor shall transmit to the legislativeauthority of the village a record of such employee's service withhis recommendations thereon and he may, with the concurrence of the legislative authority, remove or finally appoint the employee." (Emphasis ours.)

In State, ex rel. DeMatteo, v. Allen, Mayor, 170 Ohio St. 375, the Supreme Court held that compliance with Section 737.17, Revised Code, is a mandatory duty of a village.

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 737.16, Revised Code, requires that "the mayor shall, when provided for by the legislative authority of a village, and subject to its confirmation, appoint all deputy marshals, * * *." Under the undisputed facts, this is what, in substance, was done by the village, since the ordinance provided for the position and the council approved of the appointment of the relator, which appointment, though made by the chief of police, was arranged for by the mayor.

Section 737.16, Revised Code, does not in any way state the qualifications required for the office, so that under Section 3, Article XVIII of the Constitution of Ohio, the council had the power to provide that a captain of police or deputy marshal shall be appointed from the full-time regular membership of the police department. Likewise, since Section 737.17, Revised Code, only provides for a method of removal or final appointment of the employee, the council of the village in its ordinance, again under the power bestowed upon it by Section 3, Article XVIII of the Constitution of Ohio, had the right to provide that such captain "may be demoted * * * to the full time regular membership in the department," when removed from his position as provided by Section 737.17, Revised Code.

The Supreme Court of Ohio in Village of Perrysburg v. Ridgway, a Taxpayer, 108 Ohio St. 245, states the law in its syllabus as follows:

"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, 88 Ohio St. 71,102 N.E. 670, 48 L.R.A. [N. S.], 720, Ann. Cas., 1914D, 949, disapproved upon the proposition that a charter is a prerequisite to the exercise of home-rule powers under Section 3, Article XVIII.)"

Paragraph four of the syllabus of City of Mansfield v. Endly,38 Ohio App. 528, reads:

"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, 95 Ohio App. 385, paragraph five of the syllabus.

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 Section737.17, Revised Code, and Ordinance No. 1952-10 as discussed and indicated herein.

Relator in his petition prays, inter alia, that the relator be provided "with a hearing * * * in compliance with Sections733.35 and 733.36 of the Ohio Revised Code, together with any andall such other orders and relief as may be proper and necessaryin the premises." (Emphasis ours.)

The judgment of the Court of Common Pleas is modified 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 737.17, Revised Code, and the judgment, as modified, is affirmed.

Judgment modified and, as modified, affirmed.

HURD, J., concurs.