State ex rel. Arey v. Sherrill

• Decision Date: 01 March 1944
• Docket Number: 29687.
• Citation: State ex rel. Arey v. Sherrill, 142 Ohio St. 574, 53 N.E.2d 501 (Ohio 1944)
• Parties: STATE ex rel. AREY v. SHERRILL, City Manager.
• Court: Ohio Supreme Court

53 N.E.2d 501

142 Ohio St. 574

STATE ex rel. AREY v. SHERRILL, City Manager.

No. 29687.

Supreme Court of Ohio

March 1, 1944

Syllabus by the Court.

1. Section 3, Article XVIII of the Constitution, which grants to municipalities authority to exercise all powers of local self-government, including the power to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws has application to every city and village regardless of whether it has adopted a charter form of government.

2. The words 'general laws,' as used in the phrase 'not in conflict with general laws' in Section 3 Article XVIII of the Constitution, refer to laws enacted by the General Assembly.

3. A city or village which adopts a charter for its government pursuant to the permissive authority granted by the Constitution or the General Code does not thereby become an independent sovereignty and such municipality has no greater power to exercise local self-government than a noncharter municipality.

4. In general, matters relating to the members of a police department are of state-wide concern and are under the control of state sovereignty. City of Cincinnati v Gamble et al., Bd. of Trustees, 138 Ohio St. 220, 34 N.E.2d 226, approved and followed.

5. The acts passed by the General Assembly which provide that in each city there shall be a department of public safety administered by a director of public safety who shall have all powers and duties connected with and incidental to the appointment, regulation and government of the police department, and the power to inquire into the cause of suspension of any police officer and to render judgment thereon, are 'general laws' within the meaning of Section 3, Article XVIII of the Constitution.

6. Where a charter of a municipality and an administrative code enacted under authority thereof grant to a municipal officer, called a city manager, power to appoint, dismiss, suspend and discipline all officers in the administrative service (which service includes members of the police department), such provisions in the charter and administrative code cannot prevail as against the provisions of the General Code; and a police officer, suspended for the claimed violation of certain rules of the police department, has a right to insist that the director of public safety inquire into the cause of such suspension and render judgment thereon regardless of such provision in the city charter or administrative code.

7. A writ of prohibition will be awarded to prevent the city manager of any city not organized pursuant to Section 3515-19 et seq., General Code, from inquiring into the cause of suspension of a police officer of such city or rendering judgment thereon, where such threatened action is contrary to law.

Russell H. Arey (hereinafter called relator) filed a petition in this court against Clarence O. Sherrill (hereinafter called respondent) as city manager of the city of Cincinnati. The relief sought is the issuance of a writ of prohibition to restrain respondent from proceeding with a hearing set for July 30, 1943, of charges filed against relator. An alternative writ was granted, the respondent answered and relator filed a reply to the answer.

The cause was submitted upon the pleadings.

The substantive allegations of the petition are: Relator is and for some time past was a duly appointed qualified and acting patrolman in the police department of the city of Cincinnati (hereinafter called the city); respondent is the city manager appointed pursuant to the provisions of the charter of that city which is a municipal corporation under the Constitution and laws of this state; the city has a department of public safety administered by a director of public safety; on July 26, 1943, relator was summoned to appear before the chief of police of the city who suspended him from duty and served upon him a written notice stating that on Friday morning, July 30, 1943, at 9:00 a. m., a hearing would take place before the respondent upon certain charges filed against him; relator is charged with being guilty of a violation of certain rules and regulations of the police department of the city; respondent, unless prohibited by this court, will proceed to hold a hearing upon such charges and declare relator's position forfeited and vacated, without legal authority so to do and contrary to law, to the irreparable damage to relator, and he has no adequate remedy in the ordinary course of the law. The relator sets forth numerous sections of the General Code by the provisions of which he claims that the respondent is without authority or jurisdiction to hear such charges.

The answer of the respondent admits the official positions of the parties; the corporate existence of the city; that the provisions of the General Code as set forth in the petition are correctly quoted; that relator was suspended by the chief of police on the date and under the circumstances stated; that respondent will, unless prohibited by this court, proceed to hold a hearing of the charges against relator; and denies each and every other allegation of fact contained in the petition, and set forth certain provisions of the Constitution, General Code, city charter and administrative code of the city by the provisions of which respondent claims authority and jurisdiction to hear the charges filed against relator. The prayer of the answer is that relator's petition be dismissed.

The relator in his reply admits that the provisions of the Constitution and General Code set out in the answer are correctly quoted; avers that one section of the city charter set forth in the answer is no longer in effect, and that some of the quoter provisions of the city charter are in conflict with general laws; and alleges additional sections of the General Code.

In the interest of brevity the sections of the Constitution, General Code, city charter and administrative code of the city, alleged in the pleadings, are not set forth in the statement of facts.

Andrew J. Hagan, of Cleveland, and William Jerome Kuertz and Robert G. McIntosh, both of Cincinnati, for relator.

John D. Ellis, City Sol., and Ed F. Alexander, both of Cincinnati, for respondent.

BELL Judge.

In the instant case neither party has filed any motion or demurrer and there is no agreed statement of facts or evidence, therefore the cause will be disposed of as if there had been filed a motion for judgment on the pleadings.

The sole question presented is whether the respondent has the authority to hear and determine the charges filed against the relator.

Counsel for relator vehemently assert that respondent is without authority in law to hear and determine the charges. On the other hand counsel for respondent assert with equal vigor that the city charter and administrative code grant respondent full and complete authority to hear and determine such charges.

The answer to the question presented must come from a consideration and construction of certain provisions of the Constitution, General Code, city charter and administrative code adopted in pursuance of the charter.

Before proceeding to the controlling question it should be noted that Section 2, Article XVIII of the Constitution, provides '* * * and additional laws may also be passed for the government of municipalities adopting the same; * * *.' The General Assembly, by authority of that section, passed laws providing three plans of municipal government known as the 'commission plan' (Section 3515-11 to 3515-18, both inclusive, General Code), the 'city manager plan' (Section 3515-19 to 3515-28, both inclusive, General Code), and the 'federal plan' (Sections 3515-29 to 3515-44, both inclusive, General Code).

The city of Cincinnati did not organize under or adopt any of the statutory plans but adopted its charter under the general grant of power contained in Section 7, Article XVIII of the Constitution, which reads as follows:

'Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.'

Section 3, Article XVIII, provides:

'Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.'

These two provisions of the Constitution were adopted at the same time, are in pari materia and must be construed together. See Fitzgerald et al., Bd. of Supervisors, v. City of Cleveland, 88 Ohio St. 338, 103 N.E. 512, Ann.Cas.1915B, 106.

Section 3, Article XVIII, grants to all municipalities authority to exercise all powers of local self-government, subject to the limitation that police, sanitary and other similar regulations adopted by a municipality shall not conflict with general laws. The word local as used in that provision of the Constitution has a definite meaning. The phrase 'all powers of local self-government' as used therein, means the power of self-government in all matters of a purely local nature.

It seems evident that the framers of that provision had in mind that police, sanitary and other similar regulations were not purely local matters and therefore should continue to be controlled by general law. Hence the limitation upon the power.

The debates in the Constitutional Convention of 1912 upon the subject of the home-rule amendment (now Article XVIII of the Constitution) were both lengthy and heated. Sections 3 and 7 of that amendment proposed for adoption by the convention caused debate which at times became bitter and personal. Vol 2, Proceedings and Debates of the...