Mullen v. City of Akron
| Decision Date | 26 September 1962 |
| Citation | 116 Ohio App. 417,188 N.E.2d 607 |
| Parties | , 22 O.O.2d 251 MULLEN, Appellant, v. CITY OF AKRON, Appellee. |
| Court | Ohio Court of Appeals |
Edward C. Maher, Akron, for appellant.
James V. Barbuto, Director of Law, and Sal Germano, Akron, for appellee.
The issues in this appeal from a judgment of the Court of Common Pleas of Summit County concern the application of either a statute of the state of Ohio, or a municipal ordinance of the chartered city of Akron, Ohio, to salary rights of a municipal employee, who instituted this action in the trial court praying for a declaratory judgment.
The plaintiff (appellant here) is, and has been for a period of time, a 'full-time, permanent employee of the airport division, department of public service,' of the defendant (appellee here), the city of Akron. He also is, and has been, a master sergeant in the 4th Howitzer Battalion of the United States Army, a reserve component of the Federal Armed Forces. As a soldier, he was 'required to attend periods of full-time training * * * of approximately two weeks' duration in * * * [the years] 1958, 1959, and 1960; * * * [he] has expressed the intention, and it is presumed that he will remain a member of the military reserve and [will] continue to attend periods of full-time traning in future years which will conflict with his normal working schedule as an employee of the defendant [Akron].'
The trial court, after a hearing on an agreed statement of facts (the quotations appearing in this opinion are taken from the agreed facts), entered the following judgment:
'* * * the court upon consideration thereof finds that ordinance number 443-1958 enacted by the council of the city of Akron, Ohio, providing for compensation of an employee to be paid by the city while he is performing services for state and federal government, is a valid ordinance, and any act of the state Legislature purporting to fix compensation contrary to said ordinance is inoperative.
'It is, therefore, hereby ordered, adjudged and decreed that the petition of the plaintiff be dismissed and judgment rendered for the defendant [the city of Akron].'
Ordinance No. 443-1958, city of Akron, provides:
'* * * All city employees who are members of the Ohio National Guard, the Ohio State Guard, the Ohio Naval Militia, or other reserve components of the armed forces of the United States shall be entitled to leave of absence from their respective duties for such time as they are in such military services on field training or active duty for periods not exceeding thirty-one (31) days in any calendar year. * * * ...
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...of any conflict." N. Ohio Patrolmen's Benevolent Assn., 61 Ohio St.2d at 378, 402 N.E.2d 519, citing Mullen v. Akron, 116 Ohio App. 417, 188 N.E.2d 607 (9th Dist.1962). The issue in N. Ohio Patrolmen's was "whether a nonchartered municipality [had] similar powers to enact an ordinance in ma......
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...bar, if enacted by a chartered municipality, would prevail over the state law irrespective of any conflict," citing Mullen v. Akron , 116 Ohio App. 417, 188 N.E.2d 607 (1962).The Ohio Supreme Court faced the issue "head-on" of an ordinance adopted by a chartered municipality pursuant to its......
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