State ex rel. Patrick v. Baldine

• Decision Date: 07 March 1951
• Citation: 91 Ohio App. 284,108 N.E.2d 107
• Parties: , 48 O.O. 373 STATE ex rel. PATRICK v. BALDINE et al.
• Court: Ohio Court of Appeals

Page 284

91 Ohio App. 284

108 N.E.2d 107, 48 O.O. 373

STATE ex rel. PATRICK v. BALDINE et al.

Court of Appeals of Ohio, Trumbull County.

March 7, 1951.

Syllabus by the Court.

1. The mayor of a village has only such authority as is vested in him by law, and, in the absence of statutory authority, such mayor may not summarily and without the filing of charges suspend a member of the village police department for disciplinary purposes.

2. A member of a village police department who has been summarily suspended from his employment for disciplinary purposes, without the filing of charges, may resort to an action in mandamus to compel the filing of charges by the mayor and the hearing thereof by the village council.

Leo Luchette, village solicitor, Masury, for appellants.

Reed Battin, Warren, for appellee.

PHILLIPS, Presiding Judge.

On Jury 7, 1950, respondent Baldine, Mayor of the Village of Hubbard, orally suspended relator, an appointed member of its police department, for 30 days commencing July 10, s950, without lodging any written or oral charge against him.

On Jury 15, 1950, respondent wrote relator as follows:

'Joseph G. Patrick, Jr.

'27 W. Park Avenue

'Hubbard, Ohio

'Dear Mr. Patrick:

'Kindly be advised effective as of Jury 11, 1950, you are hereby being suspended thirty days for disciplinary reasons. Also turn in your badges and other police credentials to Police Chief Earl Greer.

'Respectfully yours,

'Joseph J. Baldine

'Joseph J. Baldine, Mayor.'

During the suspension relator requested but was refused a statement of charges against him. Whereupon he instituted an action in mandamus in the Court of Common Pleas, after due notification to respondents, seeking to compel respondent Baldine to return him to active duty or to file charges against him with the council of such village, the members of which he made parties respondent.

By alternative writ, issued on Jury 21, 1950, respondent Baldine was ordered by the trial judge to file written charges against relator forthwith. Respondent councilmen were ordered to set such charges for hearing at the next regular meeting of that body, which respondents did on August 7, 1950. As the result of the hearing relator was reinstated to duty by respondent councilmen.

Thereafter respondents appealed to this court on questions of law from the order of the Court of Common Pleas entered 'on the 21st day of July, 1950, granting an althernative writ of mandamus against the respondents,' and simultaneously applied for and were granted by a judge of this court a stay of the order of the Court of Common Pleas.

By assignments of error respondents contend that the trial judge erred to their prejudice 'in using a writ of mandamus to control a discretionary power of the mayor and council of the village of Hubbard,' and 'in ruling that the mayor of the village has no power to temporarily suspend a village policeman.'

Counsel for respondents contends that it is a long established rule in Ohio that a writ of mandamus cannot be issued to compel the doing of a discretionary act, and cites as authority for that statement McGannon v. State, ex rel. Dennis, 27 Ohio Cir.Dec. 245, 23 Ohio Cir.Ct.R., N.S., 301; State, ex rel., v. Crites, 48 Ohio St. 460, 28 N.E. 178; State, ex rel. Grace, v. Lockland City Bd. of Edn., 25 Ohio Law Abst. 90, 1 Ohio Supp. 139; State, ex rel. Barstow, v. Summit County Commrs., 15 Ohio Law Abst. 31; Western Union Telegraph Co. v. Tax Commission, 21 F.2d 355; State, ex rel. City of Middletown, v. City Commission, 140 Ohio St. 368, 44 N.E.2d 459. There is no question concerning this contention. Respondents argue that since disciplinary action against relator is obviously a discretionary act of respondent Baldine, neither the court nor relator could order him to prefer charges against relator nor grant a hearing on his suspension, and that express provision for immediate suspension of relator, a village police officer, is made solely in Section 4262, General Code.

This section of the Code provides:

'The mayor shall supervise conduct of all the officers of the corporation, inquire into and examine the grounds of all reasonable complaints against any of them, and cause all their violations or neglect of duty to be promptly punished or reported to the proper authority for correction.'

Respondents contend further that the order of the trial judge denied respondent Baldine the powers granted by Section 4262, General Code, and left the village of Hubbard without immediate control of or power to suspend relator, such as given to city chiefs of police by Section 4379 et seq., General Code, over such officers.

Counsel for relator takes the position that the issues in this case are:

'1. Whether or not the trial court erred in issuing a writ of mandamus directing the mayor to file charges against the relator and for council of village of Hubbard to hear the same.

'2. Whether or not the trial court erred in ruling that the mayor of a village has no power to suspend a patrolman without first filing charges and council hearing the same.'

The duties specifically enjoined upon respondent Baldine to file charges against relator, and respondent councilmen of the village of...