State ex rel. Lynch v. City of Cleveland

• Decision Date: 25 January 1956
• Docket Number: No. 34451,34451
• Citation: 164 Ohio St. 437,132 N.E.2d 118,58 O.O. 287
• Parties: , 58 O.O. 287 The STATE ex rel. LYNCH v. CITY OF CLEVELAND et al.
• Court: Ohio Supreme Court

Page 437

164 Ohio St. 437

132 N.E.2d 118, 58 O.O. 287

The STATE ex rel. LYNCH v. CITY OF CLEVELAND et al.

No. 34451.

Supreme Court of Ohio.

Jan. 25, 1956.

Syllabus by the Court.

1. Under the provisions of Section 3 of Article XVIII of the Constitution of Ohio, municipalities 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.

2. Under those constitutional provisions a municipality is authorized to choose its own method of selecting its own chief of police other than from a civil service eligible list.

In Mandamus.

The relator, an inspector in the Division of Police of the Department of Public Safety of the City of Cleveland, Ohio, has invoked the original jurisdiction of this court to obtain a writ of mandamus to require the respondent members of the civil service commission of that city to hold a promotional competitive civil service examination for the purpose of filling an alleged vacancy in the office of chief of police of the city.

The relator contends that under the provisions of Section 143.34, Revised Code, Section 486-15a General Code, a vacancy in the office of a municipal chief of police must be filled from a civil service eligible list; that the Charter of the City of Cleveland has been amended to provide that the appointment of a chief of police need not be made from a civil service eligible list; that the statutory and the charter provisions are in conflict; that hence the charter provisions are void; that nevertheless an appointment was made to the office of chief of police on December 3, 1951, under the charter provisions but contrary to the statutory requirements; that such attempted appointment was void; and that in contemplation of law the office still is vacant.

To the relator's petition the respondents have filed an answer denying the invalidity of the charter provisions and the appointment thereunder.

John P. Butler, Cleveland, for relator.

Ralph S. Locher, Director of Law, Joseph H. Crowley and William T. McKnight, Cleveland, for respondents.

WEYGANDT, Chief Justice.

Fortunately the operative facts are not in dispute.

Nor is this court concerned with the relative qualifications of the relator and Frank W. Story, the present appointee, or with the relative merits of the statutory and the charter methods of appointing a chief of police.

The sole question before the court is one of law. Did the people of the city of Cleveland possess the political power to amend their charter and choose their own method for selecting their own chief of police other than from a civil service eligible list?

The respondents rely on the following provisions of Sections 3 and 7 of Article XVIII of the Constitution of Ohio, adopted September 3, 1912:

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

'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.'

Since adjectives and adverbs are the chief villains and troublemakers in any language--especially that of the law--it is not surprising that the foregoing constitutional provisions have been highly and often bitterly controversial even from the time they were first proposed. A power that clearly is one of 'local' self-government to one mind often is clearly the contrary to another. This court has attempted to be helpful by announcing certain principles to be observed in construing and applying the constitutional language, but the decisions have been limited mainly to the intermittent consideration of a particular power as it has been questioned. Hence, it is not surprising, either, that, with the changing personnel of the court during the 44 years these provisions have been in effect, it has been no easy task to maintain something even remotely resembling consistency, and it would serve no useful purpose to indulge in a discussion of the details of each of the numerous decided cases. Nevertheless, a study of several of the court's pertinent pronouncements is necessary.

One of this court's earliest expressions on this important subject is in the case of Fitzgerald v. City of Cleveland, 88 Ohio St. 338, 103 N.E. 512, Ann.Cas.1915B, 106, which was decided in 1913, less than a year after the adoption of Article XVIII of the Constitution. The two paragraphs of the syllabus read:

'1. The provisions of section 7, article XVIII, of the Constitution, as amended in September, 1912, authorize any city or village to frame and adopt or amend a charter for its government and it may prescribe therein the form of the government and define the powers and duties of the different departments, provided they do not exceed the powers granted in section 3, article XVIII, nor disregard the limitations imposed in that article or other provisions of the Constitution.

'2. Under sections 3 and 7, article XVIII, as so amended, municipalities are authorized to determine what officers shall administer their government, which shall be appointed and which elected, that the nomination of elective officers shall be made by petition by a method prescribed, and elections shall be conducted by the election authorities prescribed by general laws.'

In the recent decision in the case of Harsney v. Allen, Jr., 160 Ohio St. 36, 113 N.E.2d 86, 87, this court held:

'Under the plain and unambiguous language of Section 48 of the Home-Rule Charter of the City of Youngstown, the chief of police of that city has exclusive control of the stationing and transfer of all patrolmen and other officers and employees constituting the police force, and where, without impairing the...