State v. Baldwin
| Decision Date | 18 February 1908 |
| Docket Number | 10436 |
| Citation | 77 Ohio St. 532,83 N.E. 907 |
| Parties | The State, Ex Rel. Moyer, v. Baldwin. |
| Court | Ohio Supreme Court |
Mandamus to restore party to office - From which illegally removed - Powers of mayor in removal - Jurisdiction over police department - Provisions of municipal code.
1. Mandamus is the proper remedy to restore a party to the possession of an office from which he has been illegally removed.
2. Under the new municipal code the mayor has authority to remove an officer or appointee in the police department, upon inquiry into the cause of suspension, by the chief of police of such officer or appointee; but he is without original jurisdiction to inquire into charges against such an officer (other than the chief of police) or appointee, and upon such an inquiry he is without authority to remove an officer or appointee.
The case is stated in the opinion.
Mr. M A. Norris; Mr. E. H. Moore and Mr. S. S. Conroy, for plaintiff in error.
Mandamus is a high prerogative writ of most extensive remedial nature and it may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission to an office. 3 Blackstone's Commentaries, 110; Dew v. Judges, 3 Am.Dec. 639, 3 Hening & Mumford (Va.), 1.
It is immaterial whether the duty of which the relator seeks to compel performance, be imposed by statute or common law. 19 Am. & Eng. Ency. Law, 724, and authorities there cited.
Mandamus is the proper remedy when it is not a proceeding to oust the occupant of an office from it, or to determine the right of one holding the office to fill it, but when it is a proceeding to establish the right of the relator to the office. State, ex rel. v. Kinney, 63 Ohio St. 304.
The provisions of our present civil code upon the subject of mandamus fully harmonize with the principles of the common law. Ingerson v. Berry, 14 Ohio St. 321.
That mandamus is the proper remedy to restore an officer who has been wrongfully and unlawfully removed and deprived of the emoluments of his office, as in the persent case, is stated by all text writers and held by all the courts of the different states. Dillon on Municipal Corporations, Sections 255-847; Moses on Mandamus, 150; High on Extraordinary Legal Remedies, Section 67; Metsker v. Neally, 13 Am.St. 269, 41 Kan. 122.
Mandamus will issue after a void order removing a public officer to compel his readmission to the use and enjoyment of his office. State, ex rel. v. Hewitt et al., 44 Am.St. 788; 3 S. Da., 187; Runkle v. Winemiller, 1 Am.Dec. 411; Geter v. Commissioners, 1 Am.Dec. 621.
Proceedings by writ of mandamus seem to be a fair, convenient and reasonable mode of litigating and deciding questions such as the one in the main case of an unlawful removal from office. State, ex rel. v. Common Council, 9 Wis. 254.
It has long been held that mandamus may be issued to restore a person to an office to which he is entitled, and that quo warranto is only the remedy when the office is already filled by another incumbent. State, ex rel. v. Jersey City, 51 N. J. L., 240; County Court v. Sparks, 45 Am.Dec. 355; State, ex rel. v. Paterson, 35 N. J. L., 190; Walker's American Law, 593.
The same construction of the law as to a writ of mandamus prevails in this state.
In State, ex rel. v. Jones et al., 66 Ohio St. 453, the supreme court entertained a petition in mandamus brought on relation of the police commissioners of the city of Toledo, against their predecessors in office, to recover books, papers and property of the police department. While the supreme court held the act under which the relators were appointed unconstitutional, and therefore denied them relief, it is nowhere suggested that they had not pursued the right remedy. Flack v. Humphries, Auditor, 24 Ohio St. 330; State, ex rel. v. Halliday, 61 Ohio St. 352.
That it is the only remedy in Ohio has been held in Reeves v. Griffin et al., 4 O. D., 461; State, ex rel. v. Sutton, 6 O. D. Rep., 135; 7 Am. Law Rep., 786; State, ex rel. v. Hoglan et al., 64 Ohio St. 532; State, ex rel. v. Barrett, 12 O. D., 231; State, ex rel. v. Hyman, Director, 12 O. C. D., 265.
That there is no other remedy for the relator seems to be clear. Zumstein v. Tafel, Mayor, 4 N. P., 314, 6 O. D., 484; Kerr v. Hinkle, Mayor, 12 O. Dec. (N. P.), 365; In re Sawyer, 124 U.S. 200; Delahanty v. Warner, 75 Ill. 185, 20 Am. 237; Chicago v. People, ex rel., 210 Ill. 84, 71 N.E. 816.
Mr. M. C. McNab and Messrs. Arrel, Wilson & Harrington, for defendant in error.
We suggest, might not a proceeding in equity be prosecuted, setting up the fraud which is specifically relied upon in a defendant's motion, as a ground to impeach the judgment and order of the mayor. We know that in Ohio such equitable actions have been uniformly sustained by the courts, and that proceedings in error, authorized by statute, have never been held to be an exclusive remedy in case of fraud or lack of jurisdiction. Darst v. Phillips, 41 Ohio St. 514; Coats v. Bank, 23 Ohio St. 415; Howenstine v. Sweet, 13 O. C. C., 239.
The "remedy by due course of law which precludes resort to the remedy by mandamus, includes a remedy afforded in equity." Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189.
We therefore submit that, if our municipal code has been so framed as to constrain the court to adopt the narrow construction contended for by the relator, nevertheless he is precluded from any resort to remedy by mandamus.
The remedy by mandamus is improperly invoked in this action, in that the prayer of the relator does not seek to compel the mayor to perform any duties, specifically enjoined by law, as resulting from an office, trust or station. Fraternal Mystic Circle v. State, ex rel., 61 Ohio St. 631; State v. Smith, 71 Ohio St. 38.
Considering the prayer of the relator that the mayor is asked to "withdraw from the board of public safety, the chief of police and auditor, his certificate of the fact of said removal, and to restore all things which he has lost." Certainly no such duty is specifically enjoined by statute. In fact, in other states, we do not understand that this remedy by mandamus may be resorted to in cases of doubtful right to office, depending upon close and uncertain construction of statutory provisions. People v. Goetting, 30 N.E. 969, 19 Am. & Eng. Ency. Law, 769, note 2; Lynde v. Dibble, 53 Pac. Rep., 370.
The relator, George B. Moyer, was a detective in the police department of the city of Youngstown. Charges against him of misconduct in office were filed with the defendant, Frank L. Baldwin, the mayor of the city. The relator protested against the hearing of the charges by the mayor on the ground that the mayor was without jurisdiction. His objections were overruled, and after a full hearing the mayor found that certain of the charges were sustained and removed him from office and certified in writing his removal and the cause thereof to the board of public safety of the city. Thereupon the relator brought a proceeding in mandamus in the court of common pleas to require the defendant to restore him to his office. The defendant answered that the relator took no appeal from the decision of the mayor to the board of public safety, and that subsequently to the action of the mayor the council of the city repealed the ordinance creating the office which the relator had filled, and enacted another ordinance providing for the appointment of two detectives and that the mayor had filled these offices by appointment and that the appointees had duly qualified and were then in office.
The court of common pleas allowed a peremptory writ. The circuit court on appeal dismissed the petition.
The principal contention is whether mandamus is the proper remedy and whether the mayor has authority originally to hear charges against an officer of the police department and to remove the officer in the event he finds that the charges have been sustained, or whether he may act only after the chief of police has suspended an officer and filed written charges with the mayor.
By Section 6741, Revised Statutes, mandamus is defined as, "a writ issued in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station," and it is contended that it is not the remedy because nowhere does any statute specially enjoin upon the defendant, as a duty resulting from his office, the performance of the act of withdrawing his certificate of removal.
The remedy by writ of mandamus did not originate with the legislature but with the courts, and is said to have been in use as early as the thirteenth century. The constitution of 1802 does not mention it, but power to issue the writ is specially given to the supreme court by the act of April 15, 1803, 1st Chase, 355. In the matter of James Turner, 5 Ohio 542, Judge Lane, speaking of the statute, says: "The occasions upon which the writ is to issue are not pointed out, and it is necessary to recur to the common law to learn in what cases the writ is properly applicable." In The Universal Church v. Trustees of Section Twenty-nine, etc., 6 Ohio 446, the court declined to depart from the common law rules and practice on the writ and it was not until the act of 1835 (Swan, 1841, page 689), that the practice was regulated by statute. That statute is limited to matters of practice and did not touch the jurisdiction, and it still was necessary to recur to the common law to learn in what cases the writ might issue. So the matter stood until after the adoption of the constitution of 1851, and until the adoption of the civil code.
The constitution of 1851 confers...
To continue reading
Request your trial