King v. Cole

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: MILLER
• Citation: 62 N.E.2d 650
• Parties: KING v. COLE, Director of Department of Public Safety, et al.
• Decision Date: 17 May 1945

62 N.E.2d 650

KING
v.
COLE, Director of Department of Public Safety, et al.

Court of Appeals of Ohio, Second District, Franklin County.

May 17, 1945.

Original action in mandamus by James M. King against Charles C. Cole, as Director of the Department of Public Safety of Columbus, and others, as members of and composing the Civil Service Commission of the City of Columbus. On defendants' demurrer to the petition.-[Editorial Statement.]

Demurrer overruled.

[62 N.E.2d 650]

Hamilton & Kramer, of Columbus, for plaintiff.

John L. Davies, City Atty., and Richard W. Gordon, Asst. City Atty., both of Columbus, for defendants.

MILLER, Judge.

This is an original action in mandamus filed in this Court. The facts as alleged in the petition may be briefly stated as follows:

Plaintiff has been a police officer of the City of Columbus, Ohio, since 1935, and as such was a member of the classified service. On October 1, 1944, the Chief of Police of the City of Columbus, Ohio, amended a rule governing the Police Department, which amendment provided that a member of the Department should be subject to suspension from duty ‘* * * for owning, operating or being in any way connected, either directly or indirectly, with any place where intoxicating liquors or beverages were sold.’

Immediately following the effective date of the rule, to wit, October 3, 1944, the plaintiff received a letter from the Chief of Police advising him he had been suspended from duty on the charge of having violated the new rule. A hearing was had before the Director of Public Safety and it was contended by the City that the plaintiff had automatically violated the amended rule of the Department because he was the husband of Juanita M. King who was the holder of a D-5 permit, issued by the Liquor Department of the State of Ohio, and for the reason that Juanita M. King had since 1942 owned and operated in the south end of the City of Columbus a restaurant where intoxicating beverages were sold.

Following the hearing the Director of Public Safety suspended the plaintiff for a period of thirty days, effective October 2, 1944. Appeal was taken to the Civil Service Commission and the action of the Director of Public Safety was affirmed, but modified to a suspension of fifteen days.

[62 N.E.2d 651]

An appeal was taken by the plaintiff to the Court of Common Pleas of Franklin County, Ohio, and upon motion of the defendant city, the appeal was dismissed. In the meantime there was a new amendment to the rules and regulations of the Division of Police, said amendment becoming effective Junuary 1, 1945, and which provided as follows:

‘For the purposes of this rule the relationship of a police officer to his wife or her husband who owns or operates a place of business where intoxicating liquors or beverages are sold, or the relationship to his or her son, daughter, sister, brother, father or mother, who occupies the same household as the police officer and who owns or operates a place of business where intoxicating liquors or beverages are sold, shall be considered such a connection with a liquor establishment as is prohibited by this rule.’

The Director of Public Safety, without filing any formal charges, and without a hearing or any opportunity for a defense or an explanation,...