DocketNumber: No. 16-76-9
Citation Numbers: 369 N.E.2d 1058, 52 Ohio App. 2d 247
Judges: GUERNSEY, J.
Filed Date: 2/11/1977
Status: Precedential
Modified Date: 1/13/2023
Plaintiff Daniel L. Zeigler filed his complaint in the Court of Common Pleas of Wyandot County alleging, in effect, that he and the defendants, the Village of Sycamore and its mayor, entered into a written agreement whereby plaintiff was employed as the village marshal for a period of two years from and after April 1, 1974, at the sum of $7,700 for the first year and $8,200 for the second year; that defendants have refused to let plaintiff work since November 30, 1974, and have sent him a notice of termination; that defendants by their conduct have waived any statutory residence requirement pertaining to the office of constable; and that plaintiff is entitled to a judgment of reinstatement and back pay or to a judgment for $10,766.68 which remains due under the contract. Defendants answered, denying performance of the contract by the plaintiff and alleging that plaintiff failed to maintain his residence in the village as required by statute.
It appears undisputed in evidence that plaintiff was appointed constable by the mayor of the village by and with the consent of council, that he had completed his probationary period of service, and that during the first week of October 1974, he moved his residence from the village. It further appears that the minutes of the council of the village included the following, relating to their meetings on the indicated dates:
August 27, 1974. "Dan Zeigler joined the meeting and wanted to know if he could be Marshal and move to the country — possible in Seneca County. Council showed no objection to this but wants consent of the Wyandot County Sheriff on the legality."
September 10, 1974. "There was another discussion on Mr. Zeigler's moving to Seneca County. Mayor Hannam will check with Mr. Bacon [the village solicitor]."
October 8, 1974. "Mr. Zeigler joined the meeting and discussed his moving into Seneca County. Council decided *Page 249 to table this until more information is obtained. His schooling has not yet been paid for but Mayor Hannam will look into this."
November 13, 1974. "The purpose of the meeting was to discuss the police situation. Mr. Zeigler has moved to Seneca County and cannot legally be a policeman for the Village of Sycamore. By mutual agreement the council agreed to release Mr. Zeigler effective November 30."
It was also undisputed that the plaintiff was advised of the action of council on November 13, 1974, and that at no time did the village council ever adopt an ordinance waiving any residency requirement otherwise imposed by law. The cause was tried and submitted to the jury primarily on the issue of whether residency in the village had been waived, and a verdict was rendered upon which a judgment was rendered against the village in the amount of $10,700. It is from this judgment that both defendants appeal assigning error in four particulars:
"1. The defendant breached the contract by failing to follow the laws of Ohio requiring him to maintain residency in the village in which he was marshal.
"2. It is the rule in Ohio that a public officer or a public general employee holds his position ex lege and not excontractu, and thus a marshal may be removed at any time.
"3. Pursuant to R. C.
"4. The judge erroneously instructed the jury as to the issue of damages since plaintiff did not demand a jury trial as to that issue."
R. C.
"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 need *Page 250
not be a resident of the village at the time of his appointment but shall become a resident thereof within six months after his appointment by the mayor and confirmation of the legislative authority unless such residence requirement is waived by ordinance, and who shall continue in office until removed therefrom as provided by section
R. C.
The plaintiff tried his case in the lower court and maintains in this court that the requirement of R. C.
"The corporation should not be estopped by the acts of its officers to set up these statutes in defense to contracts made in disregard of them. It would be idle to enact those statutes, and afterward permit their practical abrogation by neglect or other misconduct of the officers of the municipality. If such effect should be given to such acts of municipal officers it would defeat the operation of the statutes. The strict enforcement of these provisions may occasionally cause instances of injustice; it is possible that municipal bodies may secure benefits under a contract thus declared void and refuse to make satisfaction. In the nature of things, however, these instances will be rare. Those who deal with public agencies entrusted with the management of municipal affairs, usually experience liberal treatment. Such agencies are not stimulated to acts of injustice by cupidity. Self-interest, that great motive to overreaching, is absent. If, however, cases of hardship occur they should be attributed to the folly of him who entered into the invalid contract. The gateways of municipality prodigality should not be left wide open, because an attempt to narrow them may cause an occasional instance of seeming hardship."
In reality the plaintiff here is attempting to claim two waivers; one, the waiver of the statutory requirement that he reside in the village by failure to act on his request, and, two, the waiver of the statutory requirement that waiver of residence could be accomplished only by ordinance of the legislative authority of the village.
Before its amendment in 1965 (131 Ohio Laws 276), R. C.
R. C.
We are thus of the opinion that the provision of R. C.
The plaintiff asserts that the defendants did not raise the issue of the assertion that plaintiff could not be employed by contract during trial and cannot do so here. However, any rights the plaintiff had under his relationship with the village could not rise above statutory authorizations. The issue was thus fundamental to plaintiff's right of recovery and implicit throughout the trial of his action, thus not being first raised on appeal.
Plaintiff then contnds that his employment could not be terminated except by removal under the provisions of R. C.
"When the mayor of a village has reason to believe a duly appointed marshal * * * of the village has been guilty of incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, or any other acts of misfeasance, malfeasance, or nonfeasance in the performance of his official duty, he shall file with the legislative *Page 253 authority of the village written charges against such person setting forth in detail the reason therefor and immediately serve a true copy thereof upon the person against whom they are made."
It will be noted that all of the items set forth as grounds for written charges relate to the performance of duty and not to the qualifications for appointment set forth in R. C.
It would also appear from the plaintiff's brief that he contests the statutory residence requirement. It is characteristic of the position of village marshal that to be effective he must be available and it is conceded throughout the record that the plaintiff, if not actually performing the duties of his office, was required to be available on a twenty-four hour basis to perform those duties. The residence requirement is obviously a legislative determination of statewide application to insure a marshal's availability unless the village legislative authority, in its sole and unbridled discretion, should determine by ordinance that the situation existing therein does not require the marshal to be a resident. The statutory requirement of residence is entirely reasonable, related logically to the position, and we perceive no limitation, constitutional or otherwise, to invalidate same.
The defendants make claim of an erroneous instruction to the jury but it does not appear from the record that a timely or proper objection was made thereto and such issue is not, therefore, before us for review.
Accordingly, to the extent that the first assignment of error constitutes a claim that the plaintiff forfeited his office we find the same well taken, as we also do the second *Page 254 and third assignments of error. The fourth assignment of error we find not well taken.
Although we have not, and do not rely upon such, we deem it appropriate to observe at this point that estoppel in pais arises from the acts and declarations of a person by which another is induced to alter his position injuriously to himself. The record here indicates, with particular reference to the council meetings and to plaintiff's conversations with the mayor and councilmen at other times, that plaintiff repeatedly brought up the matter as to what council was going to do about his residence, that he continuously pushed for action, and that he did not rely on inaction.
By reason of the assignments of error which we have found well taken and which errors we hereby find prejudicial to the defendants, the judgment of the trial court must be reversed and this court, rendering the judgment that court should have rendered, must render a final judgment for the defendants.
Judgment reversed.
MILLER, P. J., and COLE, J., concur. *Page 255