Fraternal Order of Police Youngstown Lodge No. 28 v. Hunter , 49 Ohio App. 2d 185 ( 1975 )

I concur with both the reasoning and decision of the majority opinion in the discussion of the defendants' first, second, third and fifth assignments of error. As to defendants' fourth assignment of error, I concur in the decision of the majority opinion as to the validity of Youngstown Civil Service Rule IV, Section 5, in its application to policemen who have been hired since January 20, 1972, but dissent as to the adoption of the "compelling governmental interest" standard as a basis for upholding its constitutionality in such application. I further dissent in both the reasoning and decision of the majority opinion as to the enforcement of such rule against employees hired prior to January 20, 1972. I further concur in the decision concerning Carmen Agnone, but dissent as to the reasoning for such decision.

Defendants introduced into evidence Section 32.04 of the Youngstown City Ordinance, which provides as follows:

"All employees of the city shall reside within the city limits thereof, except temporary employees where the work engaged in may require special skill and expert knowledge. (Ord. 31810-A, Section 1.)"

The record does not reveal when Youngstown Ordinance 31810-A was adopted, but defendants in their brief state that it was adopted January 31, 1928. Defendants introduced into evidence the testimony of four policemen, including one who was appointed December 20, 1932, and they were all aware of the requirement of Section 32.04 of the Youngstown City Ordinances that all employees of the city must reside within the city limits.

In Kissos v. City of Youngstown, Mahoning County Court of Common Pleas, No. 195308, unreported, Judge Sidney Rigelhaupt held that Section 52 of the Youngstown Home Rule Charter vests rule-making power solely and exclusively in the Youngstown Civil Service Commission, and that Section 32.04 of the Youngstown City Ordinances was invalid and unenforceable.

As a result of the above decision, the Youngstown Civil Service Commission on January 20, 1972, enacted Rule IV, Section 9(F), which provides as follows:

"Any officer or employee not residing within the City limits of Youngstown, except as otherwise provided by Rule IV, Section 5, is subject to dismissal from the service of the City."

The attorneys for both sides indicated that employees of the city of Youngstown living outside of the city limits were given a period of one year to acquire residence within the city.

Defendants introduced into evidence a copy of the civil service rules and regulations of the city of Youngstown, as revised on October 1, 1956. Rule IV applies to applicants for appointment to the classified service, and Section 2 provides in part, as follows:

"Applicants * * * must have been residents of Youngstown for one (1) year just preceding the date of application, except where the Commission may deem otherwise because of special requirements of the position. * * *"

The evidence indicates that this rule was in effect since at least 1935. Defendant further introduced into evidence the Police Manuals from 1929 to the present time which contain the rules and regulations of the Police Department of the city of Youngstown.

The record reveals that the Mayor of Youngstown took action only against two city employees — namely, Mr. Carmen Agnone and Mrs. Eileen Bradford — to discharge them because they resided outside of the city limits in violation of Youngstown Civil Service Rule IV, Section 9(F). Mrs. Eileen Bradford was a policewoman. The action to discharge Mrs. Bradford was rescinded because she complied with the civil service rule.

However, Mr. Agnone, who was employed as a maintenance man at the Youngstown Municipal Airport, did not comply with Youngstown Civil Service Rule IV, Section 9(F). He had been employed as a laborer from 1941 to 1951 when he received his civil service appointment to his present position. He had resided in Youngstown until 1959 when he moved to 2990 Belmar, which is located in Liberty Township, Trumbull County. By letter dated January 20, 1973, Mr. Agnone was notified that he was dismissed effective January 23, 1973, because of his failure to comply with Youngstown Civil Service Rule IV, Section 9, Paragraph F.

Defendants' fourth assignment of error is that the trial court erred in its finding that Rule IV, Section 9(F) of the Youngstown Civil Service Rules and Regulations was void and unconstitutional.

The only pertinent reported Ohio case that has come to my attention is Quigley v. Glanchester (1968), 16 Ohio App. 2d 104, the syllabus of which reads:

"A municipal ordinance which requires members of the police department to reside in or within two miles of the municipality is a reasonable exercise of the police power of such municipality and is not violative of the Ohio Constitution."

Quigley had been a policeman for some eight years prior to the enactment of the municipal ordinance on residency but had his residence some twenty miles outside the village limits. Due to family conditions, he would not comply with the terms of the ordinance. The court upheld the application of such ordinance to Quigley. In my opinion the facts in the Quigley case are identical to the Youngstown employees hired prior to January 20, 1972. Therefore, the decision of the majority opinion in the enforcement of Civil Service Rule IV, Section 5, against employees hired prior to January 20, 1972, is in direct conflict with the Quigley case.

On April 21, 1969, the case of Shapiro v. Thompson (1969),394 U.S. 618, which concerned the constitutionality of state statutes requiring all applicants for welfare assistance to have resided within the jurisdiction of such state for at least a year immediately preceding their application for assistance, was decided. The court held such statutes unconstitutional, because they deny equal protection of the laws to applicants and penalizes their constitutional right to interstate travel. The court further held that any classification which penalizes the exercise of the constitutional right of interstate travel, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.

The holding in the Shapiro case was followed in MemorialHospital v. Maricopa County (1974), 415 U.S. 250, which held that an Arizona statute requiring a year's residence in a county as a condition to an indigent's receiving non-emergency hospitalization or medical care at the county's expense to be unconstitutional. In the Memorial Hospital case, supra at 254, the United States Supreme Court said:

"The right of interstate travel has repeatedly been recognized as a basic constitutional freedom. Whatever its ultimate scope, however, the right to travel was involved in only a limited sense in Shapiro. The Court was there concerned only with the right to migrate, ``with intent to settle and abide' or, as the Court put it, ``to migrate, resettle, find a new job, and start a new life.' [394 U.S.] at 629. Even a bona fide residence requirement would burden the right to travel, if travel meant merely movement. But, in Shapiro, the Court explained that ``(t)he residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites' for assistance and only the latter was held to be unconstitutional. Id., at 636. Later, in invalidating a durational residence requirement for voter registration on the basis of Shapiro, we cautioned that our decision was not intended to ``cast doubt on the validity of appropriately defined and uniformly applied bona fide residence requirements.' Dunn v. Blumstein, 405 U.S. 330, 342, n. 13 (1972)."

Since the Shapiro case and other United States Supreme Court cases following it, several cases concerning state and municipal residency requirements for employment purposes have been reported. There is some conflict between the various cases, but enough cases have been reported to establish a trend.

I agree with the weight of authority which is that municipal ordinances or regulations requiring all municipal civil service employees to reside within corporate limits of such municipality are constitutionally valid. Ector v. City of Torrance, infra;Abrahams v. Civil Service Comm. (1974), 65 N. J. 61,319 A.2d 483; Hattiesburg Firefighters Local 184 v. City of Hattiesburg (Miss. 1972), 263 So. 2d 767; Williams v. Civil Service Comm. ofDetroit (1970), 383 Mich. 507, 176 N.W.2d 593; Fire FightersLocal 1645 v. Salt Lake City (1969), 22 Utah 2d 115,449 P.2d 239.

Contra to prevailing authorities are Hanson v. Unified SchoolDistrict No. 500 (D. Kan. 1973), 364 F. Supp. 330, which held unconstitutional a school district regulation requiring teachers to live within the county in which the school district was located, and Donnelly v. City of Manchester (1971),111 N. H. 50, 274 A.2d 789, which held that a municipal ordinance which required all municipal classified employees be or become residents of the municipality was constitutionally invalid as to school teachers.

A group of cases concern the constitutionality of state and municipal laws which give hiring preference to residents for at least one year over residents of less than one year. Cases that held such laws unconstitutional are Eggert v. City of Seattle (1973), 81 Wash. 2d 840, 505 P.2d 801; State v. Wylie (Alaska 1973), 516 P.2d 142; and Carter v. Gallagher (D. Minn. 1971),337 F. Supp. 626. Contra is Town of Milton v. Civil ServiceComm. (1974), 365 Mass. 368, 312 N.E.2d 188, where the Supreme Judicial Court of Massachusetts held such a statute constitutional. Although the Youngstown Civil Service Rules and Regulations has had a similar provision — namely, Article IV, Section 5, formerly Article IV, Section 2 — for many years, this question is not an issue in this case.

The leading case at this time appears to be Ector v. City ofTorrance (1973), 10 Cow. 3d 129, 109 Cal. Rptr. 849, for which the United States Supreme Court denied certiorari in 415 U.S. 935. The Ector case was quoted with approval in Abrahams v. CivilService Comm., supra.

The Ector case cites other cases upholding the constitutionality of municipal employee residence requirements, most of which have been cited already in this opinion, and states as follows, quoting from 10 Cow. 3d at 135:

"Among the governmental purposes cited in these decisions or now urged by amici curiae are the promotion of ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee performance by greater personal knowledge of the city's conditions and by a feeling of greater personal stake in the city's progress; diminution of absenteeism and tardiness among municipal personnel; ready availability of trained manpower in emergency situations; and the general economic benefits flowing from local expenditure of employees' salaries. We cannot say that one or more of these goals is not a legitimate state purpose rationally promoted by the municipal employee residence requirement here in issue.

"Appellant contends in the alternative that respondent's residence requirement must be judged by the ``strict' equal protection test, i. e., must be shown to be ``necessary' to promote a ``compelling' governmental interest. To justify invoking the strict standard of scrutiny, appellant proposes a number of ``fundamental rights' which he asserts are curtailed by the provision in question.

"First it is said that the residence requirement impinges on appellant's ``right to travel.' The contention is not persuasive. Viewed realistically, appellant is claiming the right to ``travel' between his home and his place of employment each morning and evening of each working day — in other words, a ``right to commute.' We cannot discern such a right in the United States Supreme Court decisions relied on by appellant. Clearly the cultural and educational rewards of international travel (Kent v. Dulles [1958], 357 U.S. 116, 126-127), are not reaped from routine daily trips of a harassed metropolitan commuter. Nor have such trips any relevance whatever to the right to migrate among the several states for the purpose of starting a new life without fear of being denied welfare if a job is not immediately available (Shapiro v. Thompson [1969],394 U.S. 618), or to the right to move within the confines of a state for the same purpose without fear of being denied prompt access to public housing facilities (King v. New Rochelle MunicipalHousing Authority [2d Cir. 1971], 442 F.2d 646; Cole v.Housing Authority of City of Newport [1st Cir. 1970],435 F.2d 807). Each of the latter decisions invalidated not a residence requirement as such but a durational residence requirement,i. e., a requirement that the migrant not only be a resident but maintain that status for a certain minimum period of time before he qualifies for benefits. There is no similar ``waiting period' in the provision before us, but simply a requirement of residence in the community in order to be a municipal employee. Nothing inShapiro or any of its progeny stands for the proposition that an indigent may demand public assistance without being a bona fide resident of the state or locality to which he has migrated. (See also Dunn v. Blumstein [1972], 405 U.S. 330, 334.)"

In Abrahams v. Civil Service Comm., supra, the court said as follows, in 319 A.2d 488-489:

"Appellant relies on Krzewinski v. Kugler, 338 F. Supp. 492,497-498 (D. N. J. 1972) and Donnelly v. City of Manchester,111 N. H. 50, 274 A.2d 789 (S. Ct. 1971). Both of these cases are in point, as involving municipal employment residence requirements. Both cite Shapiro as authority for the view that such requirements impair the right to travel.Krzewinski imposed upon the municipality the burden of demonstrating a ``compelling' state interest to justify the impairment but found such an interest to exist (where the residence requirement was as to police officers); Donnelly did not in terms impose the compelling state interest test but rather weighed the ``reasonableness of a restriction upon private rights' against the ``importance of the public benefit' (274 A.2d at 791), and found the restriction invalid.

"Both Krzewinski and Donnelly suffer as precedents pertinent here in the light of their failure to appreciate the limited effect of Shapiro, as explicated subsequently in MemorialHospital, (a) as elevating the right of travel to ``fundamental' status only in respect of the right of migration between states; and (b) as expressly abnegating any hostile view of the validity of a simple (non-durational) residence requirement in an appropriate case.

"When the thesis of impairment of a ``fundamental' right of travel by a municipal employment residence requisite is seen as stripped of supporting federal constitutional precedent, and it is appraised on its inherent merits, it is found to lack weight. The undeniable general right of people to live near but outside the boundaries of a city in whose government they aspire to be employed is, realistically, not equitable with the right to travel throughout the land vouchsafed by the federal constitution to all United States citizens, Paul v.Virginia, 75 U.S. (8 Wall.) 168, 19 L. Ed. 357 (1869); nor even, sensibly conceived, with the right to travel at all, but rather, as bluntly stated in Kennedy, merely the common right to live where one will. The same applies to city employees residing in the city but aspiring to move elsewhere, yet near enough to commute to their city jobs. The ``right' involved is subordinate to a rational municipal policy to restrict employment to residents."

The Abrahams case cited Kennedy v. City of Newark (1959),29 N.J. 178, 148 A.2d 473, in which the court said, as follows, at page 183, 148 A.2d at 476:

"The question is not whether a man is free to live where he will. Rather the question is whether he may live where he wishes and at the same time insist upon employment by government.Cf. McAuliffe v. City of New Bedford, 155 Mass. 216,29 N.E. 517 (Sup. Jud. Ct. 1892). If there is a rational basis for a residence requirement in furtherance of the public welfare, the constitutional issue must be resolved in favor of the legislative power to ordain it."

With reference to the members of the Youngstown Police Department, whom plaintiff Fraternal Order of Police Lodge No. 28 represent, all reported cases that have come to our attention hold that municipal ordinances or regulations requiring police officers and firemen to reside within the municipality are constitutionally valid. Detroit Police Officers Assn. v. City ofDetroit (1971), 385 Mich. 519, 190 N.W.2d 97, appeal dismissed for want of a substantial federal question in 405 U.S. 950 (1972); Ahern v. Murphy (C. A. 7, 1972), 457 F.2d 363;Hattiesburg Firefighters Local 184 v. City of Hattiesburg,supra; Krzewinski v. Kugler (D. N. J. 1972), 338 F. Supp. 492;Jackson v. Firemen's and Policemen's Civil Service Comm. ofGalveston (Tex.Civ. 1971), 466 S.W.2d 412; Salt Lake CityFire Fighters Local 1645 v. Salt Lake City, supra; Fugate v.City of Toledo, United States District Court, Northern District of Ohio, Western Division, No. C 73-251, unreported, decided May 14, 1974.

The leading case, at this time, appears to be Detroit PoliceOfficers Assn. v. City of Detroit, supra, which is cited in the majority opinion. Ahern v. Murphy, supra followed the DetroitPolice Officers Assn. case. The headnotes in the Ahern case state:

1. "Denial of petition for writ of certiorari by United States Supreme Court carries no precedential weight whatever.'``'

2. "United States Supreme Court's dismissal of appeal for want of substantial federal question is a decision on merits of the case appealed."

3. "United States Supreme Court's dismissal for want of substantial federal question in a state court appeal is fully equivalent to affirmance on merits in an appeal from federal court insofar as federal questions are concerned.28 U.S.C.A. Section 1257 (1, 2)."

4. "United States Supreme Court's dismissal for want of federal question of an appeal from Michigan Supreme Court's decision that ordinance requiring city policemen to reside within corporate boundaries of city did not violate equal protection clause of Fourteenth Amendment was dispositive of later appeal attacking constitutional sufficiency of Chicago ordinance and rule of city police department requiring policemen to reside within corporate boundaries of city of Chicago and the United States Supreme Court's decision was not merely persuasive.' 28 U.S.C.A. Section 1257 (1, 2); U.S.C.A. Const. Amend. 14; S. H. A. Ill. ch. 24, Section 3-7-3.1."

In Hattiesburg Firefighters Local 184 v. City of Hattiesburg,supra at 771, the court said as follows:

"We are of the opinion that the ordinance is not an improper classification because the availability of firemen and policemen on short notice directly affects public health and safety in the event of fires, riots or violations of law involving a large number of people. An ordinance requiring such employees to reside within the city has ``some relevance to the purpose for which the classification is made' in that they would more likely be available in the event of an emergency."

In Krzewinski v. Kugler, supra at 499-500, the court said as follows:

"The truly important interests to be realized by the residency requirement demand recognition by the Court of the modern pattern of urban disruption and dissipation prevalent today. Rioting and looting have occurred in major New Jersey cities, such as Newark, Paterson, Plainfield and more recently in Camden and Hoboken. A substantial number who have studied the problem attribute much of this lawlessness to a deeply rooted disrespect for an absentee police force which governs by day and resides afar at night. According to the proponents of this view, a policy of requiring fire department and police force residency would tend to increase the presently low degree of community cooperation uniformly observed by law enforcement officials. While this Court would not impute a conscious or deliberate neglect of duty to a policeman or fireman living apart from his municipal employer, we recognize that reasonable men could conclude that a total disengagement between work hours and personal life could detrimentally affect his attitude toward the community and the people he serves. If with each nocturnal escape he manages to leave city problems behind, it may be just a matter of time before the officer develops at least an unconscious disdain for the city and its residents. The mutual advantages of residency required by N. J. S. A. 40:47-5 and similar laws was noted by The President's Commission on Law Enforcement and the Administration of Justice, Task Force Report, The Police (1967).

"``Aside from convenience, local residence avoids the impression that the police come from the outside world to impose law and order on the poor and minority groups and also avoids the risk of police isolation from the needs, morals and customs of the community.

"``Perhaps, more effectively than any amount of training, off duty contact between police and the people they service prevents the stereotyping of police by citizens and of citizens by police.

"``Wherever possible, police officers should be encouraged to live within city limits for it is important officers have a feeling of commitment to the city, above and beyond the obligation to police it.'

"See also, Governor's Select Committee on Civil Disorders, State of New Jersey, Report for Action 163-164 (1968) (recommending residency as a statewide police requirement);Detroit Police Officers Association v. City of Detroit,385 Mich. 519, 190 N.W.2d 97 (1971). Thus, New Jersey has a valid interest in promoting what it has called ``identity with the community' among police and firemen. Mercandante v. City ofPaterson, supra, 111 N. J. Super. at 40, 266 A.2d at 614, citing State v. Benny, 20 N. J. 238, 252, 119 A.2d 155, 162 (1955).

"Two additional considerations magnify the need for direct community association by these uniformed employees. Residency places the off-duty officer physically within the municipality in which he is authorized to perform his duties. This immediate discharge of duties is not to be confused with the exigencies of quick, emergency recall, for it is not the call from the station house but the chance observations of a neighbor or of the officer himself which will prompt his off-duty actions. * * *

"The added presence of off-duty police in an urban municipality to the on duty force, even if the off-duty police are rarely called upon to act, will undoubtedly have a deterrent effect on crime. Additionally, the chance associations and encounters which follow from residence and which may lead to invaluable sources of information will go far towards making each residence policeman a more knowledgeable, qualified officer."

In Fugate v. City of Toledo, supra, the court held that a charter provision of the city of Toledo requiring all employees of the city to be residents therein must be judged against the rational basis test and will be upheld if it bears a rational relationship to a valid state purpose. Pertinent excerpts of the court's opinion are as follows:

"* * * the Court finds that Memorial Hospital v. MaricopaCounty, 415 U.S. 250, 94 S. Ct. 1076 (1974); Dunn v. Blumstein,405 U.S. 330 (1972); and Shapiro v. Thompson, 394 U.S. 618 (1969), are not controlling here. These cases all involved application of the compelling interest test to durational residency requirements. In each case the Court found that the freedom to migrate among the states had been burdened.

"Where, as here, a local charter provision involving social economic issues is being challenged on Fourteenth Amendment equal protection or due process grounds, the Supreme Court has generally required less exacting judicial scrutiny under the traditional rational basis test. Under this test state legislation will be upheld if it bears a reasonable relation to a valid state purpose. See McGowan v. Maryland, 366 U.S. 420,425-6 (1961). And as the Court noted in Dandridge v.Williams, 397 U.S. 471, 485 (1970), this test has been applied to state legislation restricting the availability of employment opportunities. * * *

"The City argues that Section 61 and AR-16 are supported by the following reasons:

"1. The availability of police and firemen on short notice is important to public health and safety. Residence within the City helps insure that ready availability.

"2. Police officers are required to be armed at all times and to be immediately prepared to perform their law enforcement duties at any time. The residency requirement helps insure that the City will receive the benefits of this ever vigilant readiness.

"3. Employees who are also City residents feel special motivation toward better performance in their duties than do non-resident employees.

"4. City residence, especially of policemen, tends to help avoid the risk of isolation from the needs and customs of the community and lessens the opportunity for the people to receive the impression that the police commute from the outside world to impose law and order on the poor and minority groups.

"5. Resident employees are more likely than non-residents to have an awareness of the special needs of their employing community.

"6. City employees make decisions daily which directly affect the welfare of the community. By requiring that employees be residents, the rules help to make sure that the employee has a stake in the outcome.

"7. The residency requirement serves partially to insure that the City does not become victim to ``white flight,' whereby white citizens flee to the suburbs in ever-increasing numbers while the city population becomes predominantly non white. The City's residency requirement is thus an important instrument of a municipal policy which seeks to advance integration of the races within the City."

I agree with the Ector, Abrahams and Fugate cases that theShapiro, Memorial Hospital, Dunn and similar cases on the constitutionality of state laws — which require a state to show a compelling governmental interest when such laws penalize the constitutional right to interstate travel — apply to durational residency requirements. Therefore, they are inapplicable to the simple residency requirement of Rule IV, Section 9(F) of the Youngstown Civil Service Rules and Regulations.

I further agree with the Ector, Abrahams and Fugate cases that the test to be applied to the constitutionality of this rule is whether such a rule bears a reasonable relation to a valid state purpose.

I would hold that there is a presumption in favor of the constitutionality of this rule and the burden of showing the unconstitutionality of this rule is upon plaintiffs. 10 Ohio Jurisprudence 2d 227, Constitutional Law, Section 151, and Section 158.

I would find that plaintiffs have not sustained their burden of proof as to the unconstitutionality of this rule either as to its general application or to its specific application to policemen. Therefore, I agree that Rule IV, Section 9(F) of the Youngstown Civil Service Rules and Regulations is constitutionally valid in its specific application to members of the Youngstown Police Department, and that the trial court committed error in holding otherwise.

With reference to the specific application of Rule IV, Section 9(F), of the Youngstown Civil Service Rules and Regulations to plaintiff Carmen Agnone, the facts established by the record must be considered.

Mr. Agnone testified that the Youngstown Airport is located in Trumbull County, approximately twelve miles from downtown Youngstown; that his present address is approximately eight to eight and one-half miles from the Youngstown Airport; that his job requires him to report each and every day to the Youngstown Airport; that he is on call during the time when he is not scheduled to work for any emergency such as a heavy snowfall during the winter months or a plane going off the runway; and that the city of Youngstown owns residence property on the Youngstown Municipal Airport property in which the former General Foreman, Earl Hopkins, who was under the classified service of the city of Youngstown, had resided for eighteen years. When Mr. Hopkins left, Mr. Agnone took over the position of General Foreman and was offered the residence at the Youngstown Airport, but Mr. Agnone refused. The residence is now being rented out to the Beckett Aviation Corporation. Mr. Agnone is sixty years old, and would like to work another year or two before he retires in order to build up his retirement benefits. This testimony was not contradicted by any evidence introduced by defendants; therefore, we have to accept it as factually correct.

I would find from the undisputed facts of this case that the duties of Mr. Agnone's position require him to be readily accessible to the Youngstown Airport even when he is not scheduled to work; that in recognition of this fact Mr. Agnone's immediate predecessor lived on the Youngstown Airport in a residence owned by the city of Youngstown for eighteen years prior to Mr. Agnone's assuming the position of General Foreman; that Mr. Agnone was offered the use of the residence at the Youngstown Airport but declined; that Mr. Agnone lives in Trumbull County where the Youngstown Municipal Airport is located and is three and one-half to four miles closer to the Youngstown Airport than he would be if he lived in the center of Youngstown.

I would hold under the facts of this case that the application of Rule IV, Section 9(F), of the Youngstown Civil Service Rules and Regulations by the defendant Mayor of Youngstown to plaintiff, Carmen Agnone, was unreasonable and arbitrary and, therefore, constitutionally invalid. 10 Ohio Jurisprudence 2d 193, Constitutional Law, Section 111. Therefore, I agree with the majority decision that the rule cannot be enforced against plaintiff Carmen Agnone.

Plaintiffs introduced no evidence on the question of the specific application of this rule to members of the Youngstown Police Department. The evidence as to Policewoman Eileen Bradford was elicited from defendants' witness on cross-examination.

I would take judicial notice that the conditions of employment and duties of the members of the Youngstown Police Department are similar to those of the other cities, such as Toledo, Ohio; Detroit, Michigan; or Hattiesburg, Mississippi, and that the reasons set out in this opinion from cases arising out of such cities on similar residency requirements as the Youngstown Civil Service Rule are applicable to this case.

Furthermore, Rule 293 of the current Police Manual provides as follows:

"Rule 293. Members shall devote their entire time and attention to the business of the department while on active duty. Although certain hours are allotted for the performance of duty, on ordinary occasions, yet at all times they must be prepared to act immediately on notice that their services are required. Members shall always be subject to call when not on active duty."

Prior Police Manuals had similar provisions.

I would hold that the Youngstown Chief of Police had the power to promulgate Rule 293.

Former Chief of Police John Terlesky testified that on several occasions he had to call members of the police department on emergencies, and they appeared within a half-hour.

The availability of policemen on short notice has been widely recognized as directly affecting public health and safety in the event of riots or violations of law involving a large number of people, and as a basis for requiring policemen to reside within a city so that they would be available in the event of an emergency.

The majority holds that Rule IV, Section 9(F) of the Youngstown Civil Service Rules and Regulations does not apply to employees hired prior to the enactment of such regulation on January 20, 1972, because, in effect, it would be retroactive in its operation.

The record established that Rule IV, Section 9(F) of the Youngstown Civil Service Rules does not penalize any employee who lived outside of Youngstown prior to January 20, 1972. Policewoman Eileen Bradford apparently lived outside of Youngstown prior to January 20, 1972, but she was not discharged because of this. She was given one year after January 20, 1972, to move into Youngstown which she did, and she was continued as a policewoman. Therefore, the enforcement of this rule is prospective in its requirement that those employees residing outside of Youngstown must move into Youngstown within one year after its enactment on January 20, 1972.

There is nothing in the amended complaint of plaintiffs or the record of preceedings in this case that indicates that any other member of the Youngstown Police Department, except Mrs. Eileen Bradford, resided outside of Youngstown when Rule IV, Section 9(F) went into effect on January 20, 1972. Therefore, I assume that all members of the Youngstown Police Department, except Mrs. Eileen Bradford, resided in Youngstown on January 20, 1972. As to those who did reside in Youngstown, the application of Rule IV, Section 9(F) to them should cause no financial problems. Therefore, in my opinion, there is a serious question whether those policemen who resided in Youngstown on January 20, 1972, have any vested rights that would raise the question of the retroactive application of this rule to them.

The record is silent as to whether Mrs. Eileen Bradford suffered any financial loss or other inconvenience by being forced to move into Youngstown.

The question of the application of municipal residency requirements to employees living outside the municipality at the time such residency requirement was adopted has been considered in a few cases.

In each case that has come to my attention, the application of municipal ordinances or regulations requiring employees living outside the municipality at the time such residency requirement was adopted to move inside the municipality within a reasonable time have been held constitutionally valid against claims that such application was an ex post facto law, impaired contracts, or violated due process. Quigley v. Blanchester, supra,Hattiesburg Firefighters Local 184 v. City of Hattiesburg,supra.

In Salt Lake City Fire Fighters Local 1645 v. Salt Lake City,supra, the court stated as follows at page 117,449 P.2d at 240:

"It is conceded that there will be cases of hardship and inconvenience for some in order to continue their employment with the City, which is regrettable, but we cannot subscribe to the theory of counsel that place of residence is a God-given, constitutional right, determinable and enforceable by an employee against his employer who offers and give the employee his job, unless such right contractually is protected."

The record indicates that Rule IV, Section 9(F) of the Youngstown Civil Service Rules and Regulations was no surprise to the members of the Youngstown Police Department.

Youngstown Ordinance 32.04 was in effect during the tenure of all present members of the Youngstown Police Department until declared invalid in the case of Kissos v. City of Youngstown,supra. Legally speaking, this ordinance was invalid from its enactment.

However, Rule 280 of the current Police Manual provides as follows:

"Members shall not violate any of the laws of the United States, State of Ohio, or ordinances of the City of Youngstown."

Prior Police Manuals had similar provisions. I would hold that the Youngstown Chief of Police had the power to promulgate Rule 293.

Thus, members of the Youngstown Police Department were required under Rule 280 of their Police Manual to obey Youngstown Ordinance 32.04 until it was declared invalid. Our court has held that it is presumed that policemen perform acts required by law in accordance with the law. State v.Williams, 19 Ohio App. 2d 234.

In my opinion, Rule IV, Section 9(F), of the Youngstown Civil Service Rules and Regulations is not an ex post facto law in its requirement that policemen living outside the municipality of Youngstown must move inside Youngstown within one year of the enactment of the rule, on January 20, 1972.