Monfrino v. Gutelius
| Citation | 33 N.E.2d 1003,66 Ohio App. 293 |
| Parties | MONFRINO v. GUTELIUS, Mayor, et al. |
| Decision Date | 10 March 1939 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court.
A court of equity will not enjoin the placing of police officers in a business establishment during hours of business, where there is nothing to show the extent of legitimate business conducted in such establishment, but where it is shown that numerous arrests were made, and convictions had, for violations of gambling laws occurring in such establishment, that the owner of such establishment had pleaded guilty to interfering with police officers in the performance of their duties, and that such officers, so stationed, were making no overt acts to interfere with persons coming on the premises to transact business, were in no way threatening, intimidating, persuading, or suggesting that persons should not come on the premises to do business, and were not guilty of any unreasonable conduct tending to destroy such individual's business.
Guarnieri & Secrest, of Warren, for appellant.
George Buchwalter, of Warren, for appellees.
This cause is in this court on appeal by plaintiff on questions of law and fact from the judgment of the Court of Common Pleas of Trumbull county.
In his petition plaintiff prays that the defendants be enjoined from stationing and maintaining police officers in plaintiff's place of business in the city of Warren. The case is submitted to this court upon an agreed statement of facts, wherein it is stipulated that the plaintiff is a married man living in the city of Warren that he is the owner of restaurant located at No. 602 South Park avenue in the city of Warren; that this restaurant is generally known as the 'Steak House'; that the defendant, Dan Gutelius, is the mayor of the city of Warren that Ralph S. Taylor is the service and safety director of the city of Warren and B. J. Gillen is the chief of police of the city of Warren; that from about the middle of October, 1938, to about the 28th day of November, 1938, police officers were kept in the restaurant known as the 'Steak House' intermittently; and that beginning about the 28th day of November, 1938, to the time of the granting of a temporary restraining order by the Common Pleas Court on December 8, 1938, officers were kept in the restaurant continuously from the time of the opening of the restaurant in the morning at approximately 7 a. m., to 1 a. m. the following morning.
It is further stipulated that during the year 1938 the following arrests and convictions for exhibiting gambling paraphernalia at the address known as the 'Steak House,' No. 602 South Park avenue, Warren, Ohio, were secured:
February 6, John Marino; exhibiting gambling paraphernalia, plead guilty, fined $100 and costs;
April 2, Romel Fortuna; possessing lottery slips, plead guilty, fined $25 and costs;
June 8, Anthony Milola; possessing and exhibiting gambling paraphernalia, plead guilty, fined $25 and costs;
June 9, Romeo Fortune; possessing gambling paraphernalia, plead guilty, fined $25 and costs;
June 15, Chestra Ventura; possessing and exhibiting gambling paraphernalia, plead guilty, fined $25 and costs;
July 7, Mike Savino; possessing and exhibiting gambling paraphernalia, plead guilty, fined $50 and costs;
July 15, Patsy Bassoni; possessing and exhibiting gambling paraphernalia, plead guilty, fined $50 and costs;
August 12, Joe Zambori; possessing and exhibiting gambling paraphernalia, plead guilty, fined $50 and costs;
September 9, Joe Zambori; possessing and exhibiting gambling paraphernalia, plead guilty, fined $50 and costs;
September 10, Joe Zambori; possessing and exhibiting gambling paraphernalia, plead guilty, fined $5.00 and costs.
The agreed statement of facts does not definitely set forth whether the police officers stationed in plaintiff's place of business were uniformed or ununiformed officers, but we understand from the oral arguments in this court that these officers were in uniform. The sole question for determination in this case is whether plaintiff is entitled to injunctive relief to prevent these uniformed police officers from remaining in his place of business continuously from the time the place is opened for business until it is closed. Plaintiff claims that defendants have violated his property rights as well as his civil rights, and counsel for plaintiff cite Sections 1 and 14 of the Bill of Rights of the Constitution of Ohio, which provide as follows:
It is argued on behalf of plaintiff that the stipulated facts are not inconsistent with the presumption that plaintiff has conducted his restaurant in an orderly, lawful and legal manner, and that no more than an unjustified suspicion exists that his place of business is being conducted by him for other than a lawful purpose; that this suspicion is insufficient to warrant the invasion of his private property; and that such invasion constitutes a continuing trespass upon his property by the defendants, whereby there has been caused embarrassment, injury and harm to plaintiff in the conduct of his business, for which he has no adequate remedy in law.
There is no evidence in the record indicating that plaintiff's business has in fact suffered or been injured by reason of the stationing of the police officers therein, but it is argued that irreparable injury necessarily results from the continued trespass of the defendants therein.
It is pointed out that no violations of the law took place in plaintiff's premises during the time the police officers were stationed therein, and it is argued from this fact that the invasion of plaintiff's premises by the police officers is unreasonable, unjust and unwarranted, and in violation of the rights guaranteed to him by the Constitution.
On the other hand, it is argued on behalf of defendants that the numerous instances in which arrests have been made and convictions had of various persons for violating the gambling laws of the state demonstrate that plaintiff is not conducting a legitimate business upon his premises but is, in fact, using the name 'Steak House' and calling his place of business a restaurant, as a 'blind' for carrying on gambling operations therein or permitting the same to be carried on therein in violation of law; that the means used by defendants to prevent such unlawful use of the premises and the violation of the gambling laws therein is a reasonable exercise of the police power of these officers; and that plaintiff, under the circumstances, had forfeited his right to enjoin these officers in the duty imposed upon them by law to prevent the commission of crime.
Section 4250, General Code, provides that the mayor shall be the chief conservator of peace within the corporation, and that he shall have power to appoint the director of public safety.
Section 4368, General Code, provides that the director of public safety shall be the executive head of the police department.
Section 4378, General Code, provides that the police force shall preserve the peace, protect persons and property and obey and enforce all ordinances of council, and all criminal laws of the state and the United States.
It is apparent that the civil and property rights of the individual as guaranteed by the Bill of Rights may often conflict with the specific duties enjoined upon the officers of a city in the performance of their respective duties as conservators of the peace and for the prevention of crime. It is not always easy to reconcile these conflicting rights and duties. As stated by the learned judge of the Common Pleas Court, in his opinion in this case (Monfrino v. Gutelius, 1 Ohio Supp. 347, 348): 'A business man is entitled to protection of his legitimate business, from continued interference by policy officers, when that...
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Monfrino v. Gutelius
...66 Ohio App. 29333 N.E.2d 1003MONFRINOv.GUTELIUS, Mayor, et al.Court of Appeals of Ohio, Seventh District, Trumbull County.March 10, [33 N.E.2d 1003] Syllabus by the Court. A court of equity will not enjoin the placing of police officers in a business establishment during hours of business,......