Cupps v. City of Toledo

• Decision Date: 27 December 1961
• Docket Number: No. 36987,36987
• Citation: 172 Ohio St. 536,179 N.E.2d 70,18 O.O.2d 82
• Parties: , 18 O.O.2d 82 CUPPS, Appellee, v. CITY OF TOLEDO et al., Appellants.
• Court: Ohio Supreme Court

Page 536

172 Ohio St. 536

179 N.E.2d 70, 18 O.O.2d 82

CUPPS, Appellee, v. CITY OF TOLEDO et al., Appellants.

No. 36987.

Supreme Court of Ohio.

Dec. 27, 1961.

Syllabus by the Court

1. In an 'appeal' from an order of dismissal of a member of a police department to the civil service commission of the municipality, the burden is upon the appointing authority to prove by a preponderance of the evidence the truth of the charges filed.

2. The appeal on questions of law and fact from the affirmance by a civil service commission of a municipality of an order of dismissal of a member of the police department, taken pursuant to Section 143.27, Revised Code, is a trial de novo, and the burden in such trial is upon the appointing authority to prove by a preponderance of the evidence the truth of the charges theretofore filed with such commission.

Although, as will be seen in the discussion of the question raised herein, there is some confusion as to who should be labelled 'plaintiff' and who 'defendant' in this litigation, the references in this opinion will be to the parties as they have been designated throughout this litigation. Thus, the plaintiff is the member of the Toledo police department, appealing from an order of dismissal from such department, and the principal defendant is the city of Toledo.

Following receipt of the order of dismissal from the Toledo police department issued by the Director of Public Safety of the City of Toledo, plaintiff filed with the civil service commission of the city an explanation and answer to the charges contained in the order of dismissal. A hearing was conducted by the commission, and the dismissal order was affirmed.

Thereupon, plaintiff appealed to the Court of Common Pleas of Lucas County. That court sustained a motion of the city to strike the notice of appeal, on the ground that the Charter of the City of Toledo provides that 'the commission's judgment in the matter shall be final.'

Upon appeal to the Court of Appeals for Lucas County, the judgment of the Court of Common Pleas was reversed and the cause remanded to the trial court for further proceedings upon the appeal on questions of law and fact. This court, in Cupps v. City of Toledo, 170 Ohio St. 144, 163 N.E.2d 384, affirmed the judgment of the Court of Appeals, holding that the provision of the city charter so far as it attempts to make the decision of the civil service commission final conflicts with Section 143.27, Revised Code, and that under such section a member of a police or fire department is entitled to an appeal on questions of law and fact from an affirmance of a dismissal order by a municipal civil service commission.

Upon remand to the Court of Common Pleas of Lucus County, that court held, following a trial of the issues, in its journal entry, as follows:

'This cause came on for trial on the 23rd, 24th and 25th of March, 1960, as an appeal from a ruling of the civil service commission. The court finds that the appellant has not sustained his burden of proof. Therefore, the appeal is ordered dismissed.'

The Court of Appeals, on appeal from the above ruling, found the Court of Common Pleas to be in error in placing the burden of proof on the plaintiff and reversed the judgment of the Court of Common Pleas.

The cause is before this court upon the allowance of a motion to certify the record.

Louis R. Young, director of law, john J. Burkhart and Nathan Greenberg, Toledo, for appellants.

Dan H. McCullough and Norman C. Platz, Toledo, for appellee.

BELL, Judge.

The assignments of error raise but a single question for our determination: Upon whom does the burden of proof rest in an appeal on questions of law and fact to the Court of Common Pleas from the affirmance by a municipal civil service commission of an order of dismissal of a member of the police department?

Section 143.27, Revised Code, clearly gives the right of an appeal on questions of law and fact to, or a trial de novo in, the Court of Common Pleas. Cupps v. City of Toledo, supra.

It has long been the rule in Ohio that upon an appeal on questions of law and fact the appellate court takes up the matter where the court below took it up and proceeds in respect to all phases thereof as if the cause had never been tried below. It is in all respects a trial de novo. Grant v. Adm'r of Ludlow, 8 Ohio St. 1; Mason v. Alexander, 44 Ohio St. 318, 7 N.E. 435; Kiriakis v. Fountas, 109 Ohio St. 553, 143 N.E. 129; Connelly, Treas., v. Balkwill, 160 Ohio St. 430, 116 N.E.2d 701.

The term, 'trial de novo,' of course, denotes some previous trial. In the case of a dismissed member of a police department whose dismissal was...