Cleveland v. Lutner
| Decision Date | 25 May 1915 |
| Docket Number | 14681 to 14685 |
| Citation | 111 N.E. 280,92 Ohio St. 493 |
| Parties | The City Of Cleveland v. Luttner, The City Of Cleveland v. Yoos, The City Of Cleveland v. Lange, The City Of Cleveland v. Cottrill, The City Of Cleveland v. Esper |
| Court | Ohio Supreme Court |
Office and officers - Policemen wrongfully discharged - But reinstated by court decree - Entitled to salaries, less earnings, when - Notwithstanding substitute policemen employed - Section 16, Article I, Constitution-of redress in courts.
Mr John N. Stockwell, director of law, for plaintiff in error.
Mr Frank F. Gentsch; Mr. Charles Savage and Mr. M. B. Excell for defendants in error. BY THE COURT.
The foregoing cases involve the same questions, and therefore were submitted and considered together.
The defendants in error were formerly policemen of the city of Cleveland. They were ousted from office. Action was subsequently brought by them, whereby they were restored to their former positions as police officers. Thereafter demand was made upon the city of Cleveland for their salaries as police officers for the time during which they had been wrongfully ousted from office. The common pleas court found that, owing to the fact that other policemen had been appointed in their stead through the interval and had drawn substantially the same salary, the police officers so wrongfully ousted could not recover.
The case was appealed to the court of appeals, which held a contrary doctrine, to-wit, that they could recover the full salary for the interval in question, and that such salary was not subject to be reduced by any earnings of said policemen during said interval. To the judgment of the court of appeals error is now prosecuted to this court.
A public officer is a public servant, whether lie be a policeman of a municipality or the president of the United States. His candidacy for appointment or election, his commission, his oath, in connection with the law under which he serves, and the emoluments of his office constitute the contract between him and the public he serves.
The constitution of Ohio guarantees to everyone redress for any injury done him in his land, goods, person, reputation, etc and assures him remedy by due course of law and that justice shall be administered without denial or delay. If the public servant, a policeman in this case, be wrongfully dismissed from public office, he should have the same remedy for such wrong as a private servant for any wrong done him in his employment. The theory in both cases should be to make the wronged party whole; that is, to reimburse him for his loss. The mere fact that the wronging party employs or appoints some one else during the period of wrongful ouster should not excuse him for the full measure of his duty and liability.
The defendants in error in the foregoing cases should, therefore recover their salaries, less the respective amounts they have otherwise earned, in the exercise of due diligence, during the periods they were wrongfully ousted. Decrees accordingly.
Judgments of the court of appeals modified and affirmed as modified. NICHOLS, C. J., JOHNSON, WANAMAKER and MATTHIAS, JJ., concur. DONAHUE, J., for affirmance, without modification. JONES, J., dissenting.
The question involved in this case is whether a discharged employe, who has been afterwards reinstated, can recover his salary from the city when he performed no service for the city during the time of his discharge, and where the city had employed another to take the place of the discharged employe and paid his successor the salary for such services. Stated in another form, can the city be compelled to pay twice for the same services under the circumstances related?
The rule in this behalf is stated by Judge Dillon in his Municipal Corporations (5 ed.), volume 1, section 429, as follows:
"For reasons of public policy, and recognizing payment to a de facto officer while he is holding the office and discharging its duties as a defense to an action brought by the de jure officer to recover the same salary, it is held in many jurisdictions that an officer or employe who has been * * * wrongfully excluded from office, cannot recover against the city for salary during the period when his office was filled and his salary paid to another appointee."
If any criticism could be made of the above text it is in the fact that the rule of law therein stated has in fact been upheld by practically every jurisdiction in the United States. That a de jure officer cannot recover against the city when the city has employed and paid a de facto employe has been held without reserve in all of the following states: Illinois, Connecticut, Iowa, Kansas, Kentucky, New York, Nebraska, New Hampshire, Missouri, Michigan, Washington, New Jersey, Colorado, Delaware, Oregon, South Dakota, Arizona, Louisiana, Oklahoma and Idaho. Bullis v. Chicago, 235 Ill. 472; Coughlin V. McElroy, 74 Conn. 397; Brown v. Tama County, 122 Ia. 745; Commrs. of Saline County v. Anderson, 20 Kans., 298; Walters v. Paducah, (Ky.) 123 S.W. 287; Dolan v. Mayor, 68 N.Y. 274; State, ex rel., v. Milne, 36 Neb., 301; Shannon v. Portsmouth, 54 N. H., 183; Westberg v. Kansas City, 64 Mo. 493; Scott v. Crump, 106 Mich. 288; Samuels v. Town of Harrington, 43 Wash. 603; McDonald v. Newark, 58 N. J. Law, 12; Commrs. of El Paso County v. Rohde, 41 Colo. 258; Lee v. Wilmington, 1 Marv. (15 Del.), 65; Selby v. Portland, 14 Ore., 243; Fuller v. Roberts County, 9 S. Dak., 216; Mitchel v. New Orleans, 32 La. An., 1094; Shaw v. County of Pima, 2 Ariz. 399; Gorman v. Commrs. of Boise County, 1 Idaho 655; Stearns, Mayor, v. Sims, 24 Okla. 623. Included in this list may be added our own state, which adhered to that rule in the case of Steubenville v. Culp, 38 Ohio St. 18, in the following syllabus:
"A police officer, suspended from office, by the mayor of a city, under the authority granted by sections 121 and 211 Of the municipal code, is not entitled to wages during the period of such suspension, notwithstanding the council afterward declared the cause of suspension insufficient."
And in support of the opinion in that case the learned judge cited five cases. An examination of those cases supports the emphatic rule announced in the text above, that where the de facto employe has performed the services and received the emoluments of,office, the discharged de jure officer cannot recover from the public for the time that he was out of office. The contrary view has been held in a minority of states only, those states taking the view, as a rule, that public office is in the nature of a private contract and safeguarded as such by the constitution. of the five states thus holding, Cal- ifornia, by a specific statute, nullified the action of its judiciary and passed a law providing in cases of similar character that double compensation should not be paid.
The court of appeals followed the minority rule, lightly dismissing the decisions, the judge delivering the opinion referring to them as "the roll call of states," and reversed the trial court, who had made an exhaustive review of the decisions supporting the rule in the text. The court of appeals cited no authority in its support.
I am not wedded to judicial precedents that have not kept pace with our ever-changing economic life or which are incompatible with our modern system of government. If precedents are based on a weak and false logic, if they cannot be applied to our present System of government, as an equitable and just rule of action in human affairs, then they should be discarded and a new rule adopted. But judicial precedents should not be lightly disregarded, for they represent thoughtful deliberations of just and distinguished jurists whose wisdom has aided in upbuilding the social and governmental systems we now enjoy.
The rule announced in the majority opinion in this case is not only in conflict with the established law of practically every state in the Union, including our own, but is based on a new conception of vested rights in a public officer to the office - that by reason of its occupancy, by appointment or election, there subsists between such occupant and the public a contractual relation which is protected under our constitutional guarantee as an invasion of private,contract. This was the theory upon which the minority of states based their decisions, that the public might be required to pay a second time for services of an official wrongfully dismissed, although the services were performed by another appointed in his...
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