Harsney v. Allen, 33319

• Decision Date: 10 June 1953
• Docket Number: No. 33319,33319
• Citation: 113 N.E.2d 86,50 O.O. 492,160 Ohio St. 36
• Parties: , 50 O.O. 492 HARSNEY v. ALLEN, Chief of Police.
• Court: Ohio Supreme Court

Page 36

160 Ohio St. 36

113 N.E.2d 86, 50 O.O. 492

HARSNEY v. ALLEN, Chief of Police.

No. 33319.

Supreme Court of Ohio.

June 10, 1953.

Syllabus by the Court.

Under the plain and unambiguous language of Section 48 of the Home-Rule Charter of the City of Youngstown, the chief of police of that city has exclusive control of the stationing and transfer of all patrolmen and other officers and employees constituting the police force, and where, without impairing the status and emoluments of a police radio operator who is a member of the police force, such chief assigns to such operator the duties and functions of a patrolman, injunction will not lie to restrain such chief in so exercising such control.

On February 4, 1952, Theodore Harsney, hereinafter designated plaintiff, instituted an action in the Court of Common Pleas of Mahoning County against Edward J. Allen, Jr., Chief of the Department of Police of the City of Youngstown, hereinafter designated defendant.

In his petition plaintiff alleges that defendant is the duly appointed, qualified, and acting Chief of the Department of Police of the City of Youngstown; that plaintiff is, and since the ninth day of August 1941, has been, a member of the Department of Police of such city by reason of his certification and appointment under the civil service law of Ohio; that on November 15, 1941, he took a special promotional competitive civil service examination for the position of radio operator in the Department of Police and successfully passed the same; that his name was certified to the appointing authority, and on March 26, 1941 (the evidence shows this date was March 26, 1942), plaintiff was especially appointed by the appointing authority to the position of radio operator; and that since that time he has been serving in such capacity.

Plaintiff alleges further that on January 16, 1952, defendant ordered plaintiff to leave the position of radio operator, to become a patrolman in the Department of Police, and to discharge the duties thereof.

Plaintiff alleges further that the position of radio operator has never been abolished, and that he is still carried on the salary ordinance of the city of Youngstown as a radio operator. He prays that defendant be enjoined from interfering with plaintiff's rights and status as a radio operator and from compelling plaintiff to leave such position and to discharge the duties of a patrolman, and for such other relief to which he may be entitled.

Defendant demurred to plaintiff's petition and his demurrer was overruled. He thereafter filed an answer admitting most of the allegations of plaintiff's petition and setting up four defenses.

The first defense is a general denial as to all matters in plaintiff's petition not admitted in the answer.

The second defense is that plaintiff took his examination for the position of radio operator before he had been a patrolman for at least one year, in violation of the statutes of Ohio and the rules and regulations of the civil service commission of the city of Youngstown.

The third defense is that the salaries of police radio operators and patrolmen are the same, which, in effect, abolishes the position of police radio operator and puts it in the status of patrolman.

The fourth defense is that the Home-Rule Charter of the City of Youngstown gives defendant the right and authority to transfer plaintiff from the work of police radio operator to that of a patrolman.

A hearing was had in the Court of Common Pleas upon the petition, the answer, and the evidence introduced in this cause, and that court found that the second and third defenses in the answer are not valio ones from which no appeal was taken, but that the fourth defense is valid and complete.

The court adjudged that defendant is empowered under Section 48 of the Home-Rule Charter of the City of Youngstown to exclusively control the stationing and transfer of patrolmen and all other officers and employees constituting the police force, but that defendant does not have the power to change the designation of the position of an employee from that fixed by council and to which position such employee, through civil service laws, has been appointed.

Defendant was enjoined from any action which would change such designation. With that exception, the court denied the prayer of plaintiff's petition and entered judgment accordingly.

Appeal was taken by plaintiff to the Court of Appeals, which affirmed the judgment of the Court of Common Pleas.

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

William E. Lewis, Youngstown, for appellant.

P. Richard Schumann and Israel Freeman, Youngstown, for appellee.

STEWART, Judge.

Since defendant did not appeal from the judgment which restrained him from interfering with plaintiff's civil service status as a police radio operator, the sole question before us is whether employees occupying...