Lyons v. City of Cincinnati

• Decision Date: 05 November 1936
• Citation: 55 Ohio App. 458,9 N.E.2d 988
• Parties: LYONS v. CITY OF CINCINNATI et al.
• Court: Ohio Court of Appeals

9 N.E.2d 988

55 Ohio App. 458

LYONS v. CITY OF CINCINNATI et al.

Court of Appeals of Ohio, First District, Hamilton

November 5, 1936

Charles H. Elston, of Cincinnati, for plaintiff.

John D. Ellis, City Sol., and Francis T. Bartlett, both of Cincinnati, for defendants.

ROSS Presiding Judge.

This is an appeal from the court of common pleas of Hamilton county the judgment having been entered prior to January 1, 1936.

The petition sets forth the official character of the defendants, who it will be noticed are, the city of Cincinnati, the acting city manager, and the chief of police. It is then alleged that the plaintiff is engaged in a restaurant business, including a dining room and cigar store. Then follow statements showing interference with the business of the plaintiff by various members of the police force of the city of Cincinnati.

Nowhere is it alleged that the defendants did any of the things of which complaint is made. Nor is there anything in the evidence to establish this fact, except the inference arising from the relationship of the police force to the city of Cincinnati. The acts of a police officer are presumed to have been performed in his official capacity until the contrary is made to appear. New York, C. & St. L. R. Co v. Fieback, 87 Ohio St. 254, 100 N.E. 889,43 L.R.A.(N.S.) 1164.

The allegation and proof is merely that certain police officers did certain objectionable things and made threats to continue such acts to the irreparable damage of the plaintiff. The petition recites:

‘ All of the actions of said police officers, herein complained of, have resulted in irreparable damages to the plaintiff and unless restrained by this court will continue to result in irreparable damages to plaintiff's business for which he has no adequate remedy at law. Plaintiff avers that such actions of said police officers constitute an abuse of authority and power, and plaintiff says that said officers are acting arbitrarily, unjustly, and oppressively, and, unless restrained by this court, will continue so to act, and plaintiff will suffer irreparable damage in the conduct of his business.’

The prayer of the petition is:

‘ Wherefore, plaintiff prays that the defendants be enjoined temporarily and permanently from permitting police officers or others of its agents or employes from entering and stationing themselves in plaintiff's place of business and from interfering with plaintiff's employes in the performance of their duties, and from interfering with plaintiff's patrons; and plaintiff further prays that said defendants be enjoined temporarily and permanently from destroying, injuring, or otherwise interfering with telephones or other equipment used by the plaintiff in the conduct and operation of his business and for all other proper relief to which plaintiff may be entitled in equity.’

The request is, therefore, in effect that the executive department of the city of Cincinnati be enjoined from ‘ permitting officers or other of its agents or employees' from interfering with the business of the plaintiff.

It is plain that the judicial department of the government should not, even if it could, interfere with the executive department in the prevention of crime or the apprehension of law violators. It is well recognized that law enforcing agents are only required to have probable cause to believe a crime is being, or has been committed in order to justify interference with the citizen.

On the other hand, it is apparent that police may by arbitrary, unreasonable, and unjustifiable acts so perform their duties as to render the prosecution of a legitimate business wholly impossible.

There is evidence presented justifying a conclusion that the officer had probable cause to believe offenses against the law were being committed in the plaintiff's place of business. There is also evidence indicating that the activity of the officers in attempting to carry out their duties did interfere with the business of the plaintiff.

The instant action is one in which the court is asked to restrian the city in the exercise of a...